All-India Judicial Services (AIJS): Should it be formed?

Prime Minister Narendra Modi while addressing a function to celebrate the completion of 50 years of Delhi High Court on October 31, 2016, sought a debate on creating the All-India Judicial Services.  The present government has tried to convince parties to support its move to set up an all-India judicial service (AIJS), on the lines of all-India Civil Services.

The Government believes that All-India Judicial Services (AIJS) will help promote federal governance. Here in this article, we analyse the need of forming an All-India Judicial Services.

What is the history of All-India Judicial Services (AIJS)?

• The proposal for an All-India Judicial Service (AIJS) in lines of All-India Services was proposed as early as 1950.
• The idea was first mooted by the Law Commission in the 1950s to have an All-India Judicial Services.
• 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 11^th, 116^th) had suggested the creation of the service. However, each time it was faced with opposition.
• 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.
• Most recently, the Central Government after holding a meeting presided over by the Law Minister Ravi Shankar Prasad had sought the advice of its two top law officers – Attorney General Mukul Rohtagi and Solicitor General Ranjit Kumar – on the question of constituting All-India Judicial Services just on the lines of All-India Civil Services.

What is the proposal for selection into AIJS?

• Under this, the district judges will be recruited centrally through an all-India examination.
• They will then be allocated to each State along the lines of the All-India Services.

What are the chronological events?

• 03-01-1977: All India Judicial Services inserted into Article 312 by the Constitution (Forty-second Amendment) Act, 1976. The purpose of the constitutional amendment was to ensure uniformity in the standard of selection and to attract the bright and young talent in judiciary so that fair trial and speedy justice could be made available to every citizen throughout the country.
• 27-11-1986: Law Commission submitted in its 116th report titled “Formation of All-India Judicial Service” to the Union Law Minister and explained in details the importance and urgent need for the All-India Judicial Service.
• 10-4-1995: Supreme Court in Writ Petition (Civil) 1022 of 1989, All India Judges Association v. The Union of India, directed the Union Government to take immediate measures for setting up the All-India Judicial Service.
• 10-2-1997: Union Government submitted a status report on constituting All-India Judicial Service in the Apex Court.
• 24-10-2009: Chief Justice of India (CJI) endorsed the All-India Judicial Service in his inaugural address in a conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” in Delhi.
• 25-10-2009: Conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” unanimously adopted the resolutions presented by the Union Law Minister for the establishment of All-India Judicial Services.
• 19-05-2014: CJI RM Lodha on eve of assuming charge reiterated the need for All-India Judicial Services. He said: “Setting up of an All-India Judicial Service, being planned by the government on the lines of the IAS and IPS for recruiting judges for subordinate courts, should be given serious thought. A national consensus is lacking as some States have raised reservations on the framework of the AIJS. Those States should also be brought on board.”

Arguments in favour of All-India Judicial Services

• Efficiency and efficacy of judiciary would be increased.
• Transparent and efficient method of recruitment would be followed.
• The pendency and issue of delay of cases would be done away with.
• Corruption, nepotism etc would be strongly dealt with.
• Best legal talent across the country would be selected on the basis of merit.
• Public faith in the judiciary would be restored.
• The Supreme Court is not averse to the idea of AIJS as in its 2 judgments of 1991 and1993 it supported the idea of AIJS.

Arguments against All-India Judicial Services

• There will be an issue of local laws differences.
• Local languages and dialects would be a problem.
• 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.
• It will be difficult for the less privileged background to enter the profession.
• Again coaching institutes etc would flourish and education would be commercialized.
• Currently, the judges of subordinate courts are appointed by the governor in consultation with the High Court which will not be so if AIJS is implemented. Hence it will be against the Independence of Judiciary as some other body will have a control in appointment and integration because in the judiciary, higher level controls and evaluates lower level.
• 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.

Reports mentioning All India Judicial Services

• The Law Commission of India in this connection referred to the following observations of an experienced Chief Justice: –

“One reason why meritorious young men or young practitioners of some standing keep away from the judicial service is the comparative inferiority of the status of district judicial officers vis-a vis officers of the district executive. Formerly, the district judge, like the district magistrate, used to be a member of the Indian Civil Service and his position in the district was superior to that of the district magistrate. Under the present system, the district magistrate is a member of the Indian Administrative Service which is a service of an all-India character, while the district judge is a member of the higher judicial service which is a State service.”

• The Parliament Standing Committee endorsed the AIJS in its 64th Report (Para 50) which says:

“All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that All India Judicial Service may be created without further delay to attract the best talent to the subordinate judiciary from where 33% of the judicial officers are elevated to the Bench of the High Courts.”

Way forward

• 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.
• Despite the limitations, the establishment of AIJS makes a strong case because, if Civil servants can learn the local language of the state they are posted in, even a judicial service officer can. Thus, the language shouldn’t be a barrier.
• Pay scale, issue of transfers, career growth etc should be looked after.
• 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.
• It is in the interest of all concerned that cases should be disposed of as quickly as possible. Thi, in turn, is possible only if there are adequate judges. 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.

Article by: Ipsita Mishra