The union government is preparing to set up an All India Judicial Service (AIJS), in the lines of the Indian Administrative Service (IAS) and the Indian Police Service (IPS), for central recruitment officers of the lower judiciary. The proposal for AIJS has, however, been under debate for long.
The proposed AIJS is a reform push to centralise the recruitment of judges at the level of additional district judges and district judges for all states. It would be just as the Union Public Service Commission conducts a central recruitment process and assigns successful candidates to cadres.
Articles 233 and 234 of the Constitution of India deal with the appointment of district judges and place it in the domain of the states.
At present, the state public service commissions (SPSCs) and the high courts concerned do the selection process. The high court judges panel interviews and selects the candidates for appointment after the SPSC exam, as the high courts exercise jurisdiction over the subordinate judiciary in the state. All the judges of the lower judiciary, up to the level of district judge, are selected through the provincial civil services (judicial) exam.
AIJS: Background
The idea of a centralised judicial service was first put forward in the Law Commission’s 1958 ‘Report on Reforms on Judicial Administration’ to warrant a properly organised subordinate judiciary to address structural issues such as varying pay and remuneration across states, address rapid filling of vacancies, and ensure standard training across states. It was also discussed that a statutory or constitutional body like the UPSC would conduct a standard, centralised exam for the recruitment and training of judges.
A centralised judicial service was proposed in the Law Commission Report of 1978 with regard to delays and arrears of cases in the lower courts.
The commission reiterated the need for the same in its 1986 report.
The Supreme Court of India in the All India Judges Association (1) vs Union of India case directed the union government to set up an AIJS in 1992.
In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 15th report favoured the idea of a pan-Indian judicial service. It then prepared a draft bill.
In 2017, the Supreme Court took suo motu cognizance of the issue of appointment of district judges, and mooted a ‘Central Selection Mechanism’. A senior advocate, Arvind Datar, was appointed as the amicus curiae by the Supreme Court. He circulated a concept note to all the states recommending to conduct a common examination instead of separate state examinations. Then, based on the merit list, the high courts would hold interviews and appoint judges. He also asserted that such a procedure would not change the constitutional framework or take away the powers of the states or the high courts.
According to Article 312 of the Indian constitution, the Parliament has the power to create one or more all India services, including an All India Judicial Service, which would be common to the centre and the states. It states that such a service may be created if the Rajya Sabha declares by resolution supported by not less than two-thirds of the members present and voting. It is also necessary or expedient in the national interest to do so. Furthermore, it states that no law providing for the creation of AIJS, which shall not include any post inferior to that of a district judge, shall be deemed to be an amendment of this Constitution. This would mean that a parliamentary Bill would have to be brought in to set up an AIJS with recruitment through an entrance test.
Hurdles in Setting up AIJS
According to the law ministry, some state governments and high courts are in favour of an AIJS, while some others are not. Others want changes in the proposal formulated by the central government.
Some state governments say that a centralised recruitment process would take away their powers of making appointments to the lower judiciary. This would be an affront to federalism and an encroachment on the powers of the states granted by the Constitution. The process would be a hurdle in addressing the unique concerns that individual states may have.
Another obstacle is language and representation. Since lower courts use state language, an all-India service would face the issue of finding judges who could function with equal ease. Also, reservations based on caste and even for rural candidates or linguistic minorities could be diluted in a central test. A central test could give the executive a major hand in appointment of district judges and dilute the say that high courts have in the process.
The setting up of the AIJS would anyway not address the structural issues plaguing the lower judiciary. Increasing pay across the board and ensuring that a fraction of high court judges are picked from the lower judiciary would be a better option than conducting a central exam to attract quality talent.
The Centre’s Take
The Centre has been pushing the AIJS proposal to accelerate the filling up of vacancies and ramping up recruitment to the lower judiciary.
Of the more than 4.4 crore cases pending across the Indian courts at present, about 3.8 crore cases are part of the backlog in the lower judiciary including the district and subordinate courts.
The lower judiciary has a sanctioned strength of more than 22,000 judges. Until July 2021, there were more than 5,000 vacancies for the post of judicial officers. The judge-to-population ratio in India is about 19 judges per 10 lakh population while the Law Commission had recommended a ratio of at least 50 per 10 lakh population.
The union law ministry sees a properly framed AJIS as important to strengthen the overall justice delivery system: to induct suitably qualified fresh legal talent selected through a proper all-India merit selection system. It would ensure social inclusion by enabling suitable representation to marginalised and deprived sections of the society. According to a report shared with the law ministry in 2018, the other backward classes (OBCs) account only for 12 per cent of the judges in the lower judiciary in 12 states; Dalits and tribals make up less than 14 per cent and about 12 per cent respectively.
The Supreme Court has endorsed the union government in its attempt to examine the feasibility of implementing the recommendations of the Law Commission for setting up of an AIJS.
The union government sees reform of the lower judiciary as important to improve India’s Ease of Doing Business ranking, as efficient dispute resolution is one of the key determinants in the ranking process. It views the AIJS as vital for ensuring an efficient lower judiciary. It has countered states’ opposition by arguing that if a central mechanism could work for administrative services, it could work for judicial services as well.
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