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Insights into Editorial: Will a national judiciary work?

 

 

Introduction:

India is a federal State and has a single and unified judicial system with three tier structure, i.e. Supreme Court, High Courts and Subordinate Courts.

The Indian constitution under Article 124(1) states that there shall be a Supreme Court of India constituting of a Chief Justice of India (CJI) and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

Article 39 (A) of the Constitution directs the State to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way.

The Jurisdiction of the Supreme Court of India can broadly be categorised into original jurisdiction, appellate jurisdiction and advisory jurisdiction. However, there are other multiple powers of the Supreme Court.

 

Context:

The Vice President of India has recently raised concerns over making the entire judicial system more accessible and understandable for the common man.

He said that “inordinate delay, cost of legal processes and inaccessibility are impeding the effective delivery of justice to the common man”.

The Union government appears to be steadfast in its resolve to implement reforms in recruitment and appointment to the subordinate judicial services.

 

Idea of creation of All India Judicial Service (AIJS):

In 2019, it spearheaded a consultative process for the creation of the All India Judicial Service (AIJS).

Initially, only four States and two High Courts supported the proposal. Eight States rejected it, five suggested changes, and 11 are yet to respond.

Recently, the Centre took the ordinance route to effect changes in the appointment of members to various tribunals.

In a single stroke, it abolished several tribunals. The manner of appointment of members to the remaining tribunals underwent a sea change.

It is likely that the ordinance may not pass judicial scrutiny in light of the Supreme Court’s judgment in Rojer Mathew v. South Indian Bank (2019).

 

Constitutional provisions and perspective in Judiciary:

  1. The Indian constitution provides for a provision of Supreme Court under Part V (The Union) and Chapter 6 (The Union Judiciary).
  2. Articles 124 to 147 in Part V of the Constitution deal with the organisation, independence, jurisdiction, powers and procedures of the Supreme Court.
  3. Article 233(1) of the Constitution lays down that “appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State”.
  4. The 42nd Constitutional amendment in 1976 amended Article 312 (1) empowering Parliament to make laws for the creation of one or more All-India Services, including an AIJS, common to the Union and the States.
  5. However, Clause 3 of Article 312 places a restriction that such a service shall not include a post inferior to that of a district judge.
  6. The amendment also brought about a significant change in the Seventh Schedule Entry 3 of List II in its entirety was placed as Entry 11A in List III.

 

Evolution on debate on All India Judicial Service:

  1. In the early 1960s, the issue of creation of AIJS was debated during the Chief Justices Conference and was favoured by the eminent body, but many States and High Courts opposed it.
  2. The First National Judicial Pay Commission found that it would be in the interest and the health of the judiciary to form an AIJS.
  3. The report supported and reiterated the recommendations of the 14th Law Commission.
  4. In the All-India Judges case in 1992 the apex court had opined that the recommendations of the Law Commission should be examined and implemented.
  5. The issue was again discussed in All India Judges Association Vs. Union of India (2002).
  6. The court accepted most recommendations of the Shetty Commission and directed the government to implement the judgment.
  7. Any ground breaking reform is bound to receive criticism. The National Commission constituted for review of the Constitution had suggested a paradigm shift in the approach of the Union.

 

Need for reforms in Judiciary:

  1. The judge-population ratio in the country is not very appreciable. While for the other countries, the ratio is about 50-70 judges per million people, in India it is 20 judges per million heads.
  2. Although it is an increase from 12 judges per million people in the past, it does not make us anywhere close to an affordable judicial system.
  3. The total pendency of cases in the several courts of India at different levels, sums up to a total of about 3.7 crores thus increasing the demand of a better and improved judicial system.
  4. The gap between the number of judges and cases is widening. In the next 3 decades, the number of cases is expected to rise by approximately 15 crores requiring a total no of judges about 75000.
  5. In fact, currently the 25 high courts have the strength of less than 1200 judges.
  6. It is only since the pandemic that the court proceedings have started to take place virtually too, earlier the role of technology in the judiciary was not much larger.

 

 Concerns and Arguments for the creation of All India Judicial Service:

  1. What was essentially intended to be the prerogative of the State will now be the prerogative of the Union.
  2. If the fundamental power of the States to make such rules and govern the appointment of district judges is taken away, it may be against the principle of federalism and the basic structure doctrine.
  3. The First Law Commission deliberated upon this, but it was only in 1972 that the issue gained momentum.
  4. The views of the Chief Justice of India and the Law Commission reports perhaps paved the way to bring in the 42nd constitutional amendment.
  5. It was only in 1986 that the Law Commission resurrected the issue and deliberated upon the objections.
  6. The primary fear was that promotional avenues of the subordinate judiciary would be severely curtailed.
  7. Fifty per cent of the posts of district judges are to be filled by promotion from the subordinate judicial service, thus leaving open the remaining for direct recruitment. Another fundamental concern was the language barrier.

 

Way Ahead:

  1. A sound judicial system is one based on an objective enquiry, practical and unbiased analysis of evidence and delivery of timely and even-handed justice to all citizens.
  2. The vacancies must be filled without any unnecessary delay. A proper time frame for the appointment of judges must be laid down and the recommendations must be given in advance.
  3. The Constitution of the All India Judicial Services is also an important factor which can definitely help India establish a better judicial system.
  4. Since cases in lower courts are argued in local languages, there have been apprehensions as to how a person from a particular state can hold hearing in another state that has completely different language.
  5. But the government is of the view that even IAS and IPS officers have served in different States overcoming the language barrier.

 

Conclusion:

The feasibility of the AIJS in the current context requires to be studied, especially when reliance is placed upon archaic reports of the Law Commission.

It is for the Union to dispel doubts and at the same time give wings to the aspirations of all stakeholders when implementing the proposal.

It, however, remains to be seen if the AIJS would be like the proverbial curate’s egg.

The insurmountable number of pending cases calls for establishment of a recruitment system that recruits efficient judges in large numbers for speedy dispensation of cases.

However, before AIJS gets into the legislative framework, there is a need to build consensus and take a decisive step towards the AIJS.