Insights into Editorial: All India Judicial Service no panacea, says study
Currently, the appointments of District Judges and Subordinate Judiciary are done by the respective State governments.
But in recent years, there have been an invigorated push for creation of a unified pan-India judicial service for appointing them.
AIJS has been pitched as a solution to judicial vacancies, lack of representation for the marginalised and the failure to attract the best talent.
NITI Aayog in its report, ‘Strategy for New India@75’, mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary.
All India Judicial Service:
The Constitution of India was amended in 1977 to provide for an All-India Judicial Services under Article 312.
The Chief Justices conferences in 1961, 1963, and 1965 favoured creation of All-India Judicial Services and even the Law Commissions (1st, 8th and 11th, 116th) had suggested the creation of the service. However, each time it was faced with opposition.
The idea for AIJS was first proposed by the 14th Report of the Law Commission of India in 1958, aimed at creating a centralised cadre of District Judges that would draw better talent.
One of the recent justifications for creation of AIJS has been that a centralised service would help fill the approximately 5,000 vacancies across the District and Subordinate Judiciary in India.
The proposal was again floated by the ruling UPA government in 2012 but the draft bill was done away with after opposition from High Court Chief Justices who labelled this an infringement of their rights.
The report, however, said it is only certain High Courts which account for a majority of the approximately 5,000 vacancies.
Issues with Subordinate courts/ states:
States and high courts are apprehensive of the scheme because, if implemented, it would take away their powers to appoint and administer subordinate judges.
The main problem cited by the states is that the states have used the powers under the CrPC and CPC to declare that a local language can be used in lower courts even for writing orders.
Because of this a person form other state may find it difficult to hold the proceedings in other states and it will affect the quality of justice.
The other issue of conflict is that an all India judicial service may hamper the progression of state judicial service officers.
It may also end up not taking into account local laws, practices and customs which vary widely across States, vastly increasing the costs of training for judges selected through the mechanism.
Opposing from certain communities:
- During the Emergency, Parliament amended Article 312 of the Constitution to allow for the Rajya Sabha to pass a resolution, by two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge.
- Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which law will strip States of their appointment powers.
- This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures.
- In other words, if Parliament decides to go ahead with the creation of the AIJS, State legislatures can do nothing to stop the process.
- The argument that the centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process is flawed and not a guarantee of a solution.
- For example, the Indian Administrative Service its recruitments are through the UPSC, reportedly has a vacancy rate of 22%.
Concern because of state quotas:
- The report also highlighted that many of the communities who currently benefit from the State quotas, may oppose the creation of AIJS.
- This is because the communities recognised as Other Backward Classes (OBC) by State governments may or may not be classified as OBCs by the Central government.
- While AIJS has been pitched as a solution to lack of representation for the marginalised on the Bench, the report said many States are already reserving posts for marginalised communities and women.
- Another argument made against creation of AIJS is that judges recruited through this process will not know the local languages of the States in which they are posted.
- This becomes important considering that the proceedings of civil and criminal courts are to be conducted in a language prescribed by the respective State governments.
- The issues of local language and customs are issues that deserve serious consideration before moving ahead with the creation of the AIJS.
- Nine High courts are against this proposal and hence disapproving this proposal. The conflict between Centre and State would start.
- The status of legal education in India is very much mismanaged. Except for a few national law schools, others do not prioritize the legal education too much. Law is taken as the last report who do not get into medicine, IITs etc.
- Unremunerative pay is a big issue. Despite an effort by the Supreme Court to ensure uniformity in pay scales across States in the All India Judges’ Association case, it is still very low.
- Also, the judiciary has fewer avenues for growth, promotion and limited avenues for career advancement.
- There is low district judge representation in the High Courts, as less than a third of seats in the High Courts are filled by judges from the district cadre. The rest are appointed directly from the Bar.
- Both the decentralized approach of each High Court conducting its own appointment and a centralized one seem to have roughly the same efficacy in filling up the vacancy.
It is through an all India judicial services examination conducted by the UPSC in order to maintain “high standards” in the judiciary.
In addition to proposing an AIJS as a solution for judicial vacancies, it may be more prudent to investigate the reasons and causes for the large number of vacancies in the poorly performing States.
AIJS is facing hurdles from the administrative block and also from High Courts, even though Supreme Court has asked for AIJS twice.
Therefore, AIJS should be designed in a manner to remove its shortcomings and it can be an effective solution to the vacancy in Judiciary.
Adequate judges can be made available only if they are recruited in large strength through AIJS just like we see in case of IAS, IPS, IFS and other civil services. Hence there should be no more delay.
Moreover, after the selection, a Judicial service officer can be provided sufficient training to handle the job. A meritocratic judiciary is the need of the hour which is possible with a competitive recruitment process.