NITI Aayog in its recent ‘Strategy for New India @ 75’ document, suggested for the establishment of All India Judicial Service. However, the number of different shortcomings and concerns in its implementation necessitates a relook on the proposals.
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What is All-India Judicial Service (AIJS)?
- Under this, the district judges will be recruited centrally through an all-India examination.
- Then they will be allotted to each state similar to All-India Services (IAS, IPS etc.).
- The idea of AIJS was first mooted by the law commission in the 1950s.
What is the need for AIJS?
- There are at least 4,400 vacancies (20%) for judges in the subordinate courts.
- Vacancies are never filled due to the inability of the judiciary to attract talent.
- Thus the idea of AIJS is that the centralised judicial recruitment process will help improve judiciary through timely recruitment and clearing vacancies.
Low pay: Despite efforts by the Supreme Court to ensure uniformity in pay scales across States, it is still very low = Brighter law students do not join state judicial services (Note- Subordinate judiciary totally depends on state recruitment) = Very poor quality of the subordinate judiciary.
- Subordinate Judiciary in India has lesser avenues for growth, promotion and career advancement.
- There is low district-judges representation in the High Courts as only less than a third of seats in the High Courts are filled by judges from the district cadre. The rest are directly appointed from the Bar.
Legal education standard: The standard of legal education across the nation except for a few law schools has not been improved or updated for a very long time.
Lack of representation in judiciary from marginalized communities
The pendency of cases: Almost 50% of all cases pending in the subordinate courts have been pending for more than 2 years.
What is the background?
- The proposal of an All-India Judicial Service (AIJS) in line with All-India Services (AIS) was proposed as early as 1950.
- The Chief Justices Conferences in 1961, 1963 and 1965 suggested the creation of AIJS and even the law commissions (1st, 8th, 11th, and 116th) had suggested the same. But each time the proposal was faced with stiff opposition.
- Based on Swaran Singh Committee’s recommendation, the Constitution was amended in 1977 to set up an All-India Judicial Services under Article 312. However, it excluded anyone below the rank of the district judge.
- The proposal was again put forward in 2012 by the UPA government with a draft bill. However, the bill was withdrawn after opposition from High Court Chief Justices who claimed that it violates their rights.
- It has been endorsed and suggested by the Supreme Court, Parliamentary Standing Committee, 1st National Judicial Pay Commission and the National Advisory Council.
- Even, NITI Aayog in its recent ‘Strategy for New India @ 75’ document, made a strong case for the establishment of All India Judicial Service.
What are the constitutional provisions?
- Articles 233 and 234 of the constitution conferred all powers of recruitment and appointment (regarding judicial services of the state) with the State Public Service Commission and High Courts.
- Article 312 of the constitution permits the Rajya Sabha to pass a resolution, by 2/3 majority, for kick-starting the process of establishing an AIJS for the posts of district judges (not lower subordinate judges).
- After the resolution is passed, Parliament can amend Articles 233 and 244 by means of simple law (passed by a simple majority), which will remove the appointment powers of the state. Unlike constitutional amendment under Article 368, this won’t require ratification by state legislatures.
- The recruitment is to be made via an all India judicial services examination conducted by UPSC for maintaining high standards in the lower judiciary.
What are the arguments in favour of AIJS?
Improve quality of judges & judgements
- It will improve the quality of judicial officers in all levels of the judiciary – district courts, high courts and supreme court due to the following
- Step 1: The district judges will be recruited centrally through an all-India examination = competent law students would be attracted to the judiciary = quality judges in the district courts.
- Step 2: 1/3 of those judges would enter the high courts through promotion from subordinate courts.
- Step 3: As Judges of the Supreme Court are selected from the high courts, those competent officers from high court would be appointed to the Supreme Court.
- Thus AIJS could have a far-reaching impact on the quality of justice and on people’s access to justice as well.
Accountability: The judicial service as a career would make the judiciary more accountable, professional and equitable. Competent judges = reduce arbitrariness and nepotism in the judiciary.
Reduce pendency of cases: Well trained and qualified judicial officers = minimise the time required for the litigation.
Reduce vacancies: through regular conducting of AIJS exams by UPSC. Also, recruitment by UPSC would ensure objectivity and transparency in selection. This will also end the current tussle between the judiciary and the executive over judicial appointments.
What are the arguments against AIJS?
- A national exam would be disadvantageous to the less privileged candidates from being able to enter the judicial services.
- Permits only the appointments of district judges under AIJS and that too, excluding lower subordinate judiciary.
- It is also vulnerable to being struck down as the violation of the basic structure doctrine provisions such as judicial independence and separation of powers as it would result in the erosion of the control of the high courts over the subordinate judiciary and some other body will have control in judiciary appointment.
- A potential judicial officer could be posted anywhere in India = need to familiarize with local languages, customs, and laws of the state = a huge hassle.
- Procedural challenges to the need to ensure reservation for locally domiciled citizens.
- The Supreme Court recently noted that many states are doing a very good job recruiting lower court judges.
- In Maharashtra, of the 2,280 sanctioned posts, only 64 were vacant and in West Bengal, of the 1,013 sanctioned posts, only 80 were vacant.
- Only in particular states like UP, the vacancies are at 40%.
- These numbers reveal that the issue of vacancies is not uniform across different states.
- Hence, the solution is to pressure the poorly performing states into performing more effectively.
- Moreover, the argument that the centralisation of recruitment processes through the UPSC automatically result in a more efficient recruitment process is flawed. For instance, the Indian Administrative Service has a vacancy rate of 22% and the India Army’s officer cadre, also under a centralised recruitment mechanism, is short of around 7300 officers.
- The conflict between Centre and State would start, thus affecting federalism.
- Avenues for promotion would be affected for those who had already entered through the state services.
- There are no provisions for improving the status of legal education and the pay scale of judicial officers.
What should be done?
- AIJS should be designed in a manner to remove its shortcomings and it can be an efficient solution to the problem of the vacancy in the judiciary.
- If civil servants could be able to learn the local language of the state they are posted in, even a judicial service officer can. Hence, the language is not a barrier to serve the country.
- Pay scale, the problem of transfers, career progression etc should be resolved.
- Furthermore, after recruitment, a judicial service officer should be provided with adequate training to handle the job.
- The central government should provide adequate support for improving judicial infrastructure in the state.
- All disputes below a certain value should not be adjudicated by courts at all and could be left to other social devices and institutions.
All India Judicial Service is necessary to create an effective judicial system at the subordinate level and a quality pool of candidates to draw from for the appointment of the high court and later, Supreme Court Judges. Hence, only a meritocratic service with competitive recruitment, high-quality training and guaranteed standards of accountability and efficiency would be able to ensure speedy and impartial justice in India.