Opinion

Getting Lateral Entry Right

The judiciary experimented with lateral entry five years ago. Here’s what we can learn from what followed.

“Do you love me, Mulla?” whispered the girl. “Of course I do,” Mulla Nasrudin whispered back. “Will you marry me then?” she asked.” Lets not change the subject, shall we!” quipped Nasrudin.

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Lateral entry into the civil services is once again in the news.  The Department of Personnel & Training has called for applications for positions in various ministries at the joint secretary level. It has generated a heated debate on whether the move is politically motivated and its chances of success.

It is interesting to note that the Indian judiciary already has some form of lateral entry.  And there are lessons to learn from it.

The Structure of the Judiciary

To many, the Indian judicial system is an imposing monolithic black box. In practice, it is a fine matrix of many layers and verticals. The schematic representation below gives an overview of the hierarchy and personnel operating our judiciary.

The red lines indicate promotion within the judiciary. The orange lines indicate entry into the judiciary by members who are not judges. The single green line indicates possible promotion from registrar to High Court Judge within a High court.  

There are two types of staff in the subordinate judiciary: judicial officers (judges) and court staff. Law graduates (with 2 to 3 years of experience) can apply to become judicial officers at the entry level. After joining the service, they can rise up the ranks through promotions. Lawyers who are practising can become judges of higher ranks too by the examination route, for which a minimum  number of years of experience–seven in many states–is required. Court staff, on the other hand, are recruited at entry level, and career progression is through promotions.

Judges at the High Courts and Supreme Court are also made up of those promoted from the subordinate judiciary and practising advocates appointed from the bar. The judicial staff at these courts is made up of registrars (district judges on deputation) and court staff.  Registrars at the High Courts are in many cases appointed as judges of High Court.

Appointing practising lawyers as judges can be viewed as a lateral entry, in some sense, into the strictly hierarchical judiciary. In fact, the Supreme Court as of date has more judges who have been elevated from the bar than promoted through subordinate judiciary.

The Experiment

But I digress; it is the experience with court managers that is relevant to us. The Thirteenth Finance Commission, recognising the need to bring in management expertise into court administration, set apart Rs 300 crores for recruitment of court managers out of the special outlay to judiciary of Rs 5000 crores. Management graduates were appointed at many High Courts and subordinate courts across the country from 2010 onwards on a five-year contract. In many cases, these contracts have been extended annually on expiry of their term.

It is now commonly agreed that court managers have not been able to make much of an impact. See these proceedings of the National Conference of Principal District Judges on Court Administration and Management held at National Judicial Academy in 2015, where judges shared their experience on this move. Even after five years of the scheme being announced, in some courts these posts had not yet been filled up. Some of the reasons given for their failure in the conference: duties and responsibilities not defined clearly; lack of co-ordination with legacy staff at the registry; insufficient training to bring them up to speed with other registry staff; lack of knowledge of rules and procedures.  NALSAR, a premier law university, that had started a specialisation in court management to fill up such posts had to discontinue the course in 2015 – see here.

A couple of years ago, some court managers had even set up a website to air their grievances. It has since been pulled down.

The Lessons

The lessons are obvious: It takes more than just funding and creation of posts to both attract the right talent and have an impact on day-to-day functioning. Senior members of the institution need to define expectations precisely, and put in place enabling mechanisms to get the new talent to contribute effectively at the earliest. The enabling mechanisms could be as simple as regular meetings and mentoring. In a bureaucratic organisation, rules and regulations that enable, or at the least not hinder, the functioning of these positions are also important.

Of course, there are other reasons that the move to try lateral entry into civil services may fail, and other dangers that it poses, such as the politicisation of the process and thus the bureaucracy. Nevertheless, these learnings from the experiment in the judiciary need to be factored into the first tentative steps in civil services reform. Institutionalising an attraction takes a lot of hard work.

 

 

About the author

Surya Prakash B S

Surya Prakash B .S. , a Chartered Accountant and law graduate, is Programme Director at DAKSH, Bengaluru, a civil society organisation working on judicial reforms. His research interests include judicial management, administration, technology and tax.