- Aditya Gill
Problem or Panacea: Analysing the need for All India Judicial Services
The creation of an All India Judicial Service (AIJS) along the lines of the central civil services is receiving a new push from the central government.
The All India Judicial Services (AIJS) is an initiative to centralise the appointment of district judges for all states and additional district judges. Judges of the lower judiciary are planned to be recruited centrally and assigned to states in a similar manner as the Union Public Service Commission conducts a central recruiting procedure and allocates successful applicants to cadres.
Previous Proposals -
In 1958, the Law Commission's 14th report made the initial recommendation for the AIJS. A proposal for the establishment of the All India Judicial Service was also made in the 1961 Chief Justices' Conference. At the conference, it was suggested that the executive and the judiciary refrain from interfering in the appointment process for the judges. The Law Commission again recommended the establishment of the All India Judicial Service (AIJS) in its 116th report, which was submitted in 1986 and in its 77th report, which was submitted in 1978. A pan-India judicial service was supported by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 15th Report from 2006.
Supreme Court’s Stand -
In All India Judges' Association v. The Union of India, the Supreme Court (SC) ordered the Centre to establish an AIJS. However, the court freed the Centre to take the lead on the matter in a 1993 review of the ruling. In 2017, the Court again proposed a central selection mechanism after taking suo motu cognizance of the problem of district judge appointment. Arvind Datar, a senior attorney who was designated by the court as an amicus curiae (friend of the court), sent a concept note to all states recommending a common exam rather than separate state exams. High Courts would then conduct interviews and appoint judges based on the merit list. Datar argued that this would neither alter the structure of the constitution nor reduce the authority of the High Court or the states.
Benefits of the AIJS -
The AIJS will ensure an effective subordinate judiciary, address structural concerns including different salary and compensation between states, fill positions more quickly, and ensure uniform training across states.
According to a Law Commission assessment from 1987, India should have 50 judges per million people instead of 10.50 judges (then). In terms of sanctioned strength, the number has already surpassed 20, although that still pales in comparison to the US or the UK, which have 107 and 51 judges per million citizens, respectively.
The Government views the AIJS as the best option for ensuring fair representation for the disadvantaged and marginalised groups in society. The administration thinks that if such a service were to emerge, it would contribute to building a talent pool of individuals who might subsequently join the higher judiciary. Issues like corruption and nepotism in the lower judiciary will be addressed by this ‘bottom-up approach’ to hiring.
Criticisms of the AIJS -
A centralised hiring procedure is viewed as a violation of federalism and an encroachment on the constitutionally granted powers of the states. This is the main argument made by a number of states, who have also claimed that central recruitment cannot address the particular issues that various states may have. Regional languages are used for judicial transactions, which means that central hiring may have an impact. Additionally, a central test could diminish caste-based preferences, especially for candidates from rural areas or from the state's linguistic minorities.
The separation of powers principle found in the constitution also forms the basis of opposition. A centralised test could reduce the influence that the High Courts have in the selection of district judges and offer the government a foot in the door. Moreover, critics feel that the structural problems that plague the lower judiciary will not be resolved by the establishment of AIJS. In the 1993 All India Judges Association case, the Supreme Court addressed the issue of disparate pay and payment scales by establishing uniformity across states. According to experts, rather than using a centralised exam to find qualified candidates, boosting salary across the board and making sure that certain High Court judges are chosen from the lower judiciary may be more effective.
The construction of a recruitment mechanism that attracts efficient judges in large numbers is required due to the overwhelming volume of cases that need to be resolved. But first, there must be a consensus among all the stakeholders to set a strong stage for the AIJS before it enters the legislative framework.
By Aditya Gill