All India Judicial Service is a proposal to centralise the recruitment of judges at the level of additional district judges and district judges for all states. In the same way that the Union Public Service Commission conducts a central recruitment process and assigns successful candidates to cadres, the All India Judicial Service seeks to establish a national-level recruitment process for lower judiciary. Amid reports of the Centre renewing attempts to build consensus with state governments and High Courts on setting of the All India Judicial Service, the government informed Parliament during its just concluded Winter Session that only 2 states – Haryana and Mizoram, and two high courts, Tripura High Court and Sikkim High Court, are in favour of creating the AIJS. Eight states- Arunachal Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, Maharashtra, Meghalaya, Nagaland and Punjab – have opposed the idea, while five states – have sought changes in the government’s proposal, 13 states did not respond. And as per govt data on High Courts, 13 have opposed the proposal, six have sought changes in it and others have not responded.
Why has the AIJS been proposed?
- The idea of a centralised judicial service was first mooted in the Law Commission’s 1958 ‘Report on Reforms on Judicial Administration’.
- The idea was to ensure an efficient subordinate judiciary, to address structural issues such as varying pay and remuneration across states, to fill vacancies faster, and to ensure standard training across states.
- A statutory or constitutional body such as the UPSC to conduct a standard, centralised exam to recruit and train judges was discussed.
- The idea was proposed again in the Law Commission Report of 1978, which discussed delays and arrears of cases in the lower courts.
- In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 15th Report backed the idea of a pan-Indian judicial service, and also prepared a draft Bill.
Background: What is the judiciary’s view on the AIJS?
- In 1992, the Supreme Court in All India Judges’ Assn. (1) v. Union of India directed the Centre to set up an AIJS.
- In a 1993 review of the judgment, however, the court left the Centre at liberty to take the initiative on the issue.
- In 2017, the Supreme Court took suo motu cognizance of the issue of appointment of district judges, and mooted a “Central Selection Mechanism”.
- Senior advocate Arvind Datar, who was appointed amicus curiae by the court, circulated a concept note to all states in which he recommended conducting a common examination instead of separate state exams.
- Based on the merit list, High Courts would then hold interviews and appoint judges. Submitted that this would not change the constitutional framework or take away the powers of the states or High Courts.
Need for AIJS:
- The AIJS is an attempt to ensure that younger judges are promoted to the SC and HCs. In the existing system, recruits join as magistrates in the subordinate judiciary and take at least 10 years to become district judges.
- This is expected to ensure a transparent and efficient method of recruitment to attract the best talent in India’s legal profession.
- Currently India’s legal infrastructure is facing various issues, particularly the lower judiciary. At present India has just 13 judicial posts per million people, though the Law Commission had recommended 50 judges per million of the population, based on the ratio prevalent in the US previously.
- Judiciary is suffering from massive vacancies across the nation and the scarcity is worsened in some states due to judicial absenteeism. Hence there is need of urgent mechanism to appoint new judges.
- As a consequence, the pendency is high with the number of cases about 2.8 crores.
- Similarly, judiciary suffering from various infrastructures related issues, like newly appointed judges does not have required court rooms; hence there is need of huge investment.
Issues with AIJS:
Solving Vacancy issues:
- The AIJS is being proposed as a panacea to cure the chronic vacancy crisis plaguing the Indian subordinate judiciary.
- An all India service potentially offers is a more streamlined and regularised recruitment process for the limited number of vacancies for district judges in the country.
Violates Basic Structure Doctrine:
- Niti Aayog’s document rather ambitiously proposed an AIJS to cover entry level civil judges, prosecutors and legal advisers to comprise the service (subordinate judges).
- A sweeping mandate would require considerable amendments to the Constitution, especially with respect to the appointments process for the lower subordinate judiciary (that is, all ranks below that of a district judge).
- Presently, the appointments to the subordinate judiciary are made under Articles 233 and 234 of the Constitution under State High Court Purview.
- These amendments, establishing a centralised appointments mechanism, may arguably be constitutionally untenable and vulnerable to being struck down as flagrant violations of the basic structure doctrine and judicial federalism.
- The idea of an AIJS has been significantly contentious within the legal fraternity and other concerned stakeholders.
- The proposal for AIJS was floated by the ruling UPA government in 2012 but the draft bill was shelved again after opposition from High Court Chief Justices who labelled this an infringement of their rights.
- Taking into account local laws, practices and customs which vary widely across States and even training judges in this line would be a problem.
- The need to ensure reservation for locally domiciled citizens, the central selection mechanisms will throw up grave concerns impugning their utility and legality as judicial reforms.
- 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.