Q . Do you think the creation of an All-India Judicial Service (AIJS) along the lines of the All India Services (AIS) would solve problems being faced by the Indian judiciary? Critically examine. 21TH, NOVEMBER,2020 (10 marks, 150 words, GS-2)
Answer-
Approach-
- In the first para, include details about the history and debate with respect to AIJS.
- The next para about the role and impact
- Third para could be about the Constitutional provisions, challenges and issues
- Final para about the steps to be taken so that independence of the judiciary is not compromised neither the federal structure.
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.
- Based on Swaran Singh Committee’s recommendation, The Constitution of India was amended (42nd Constitutional Amendment) 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 11th, 116th) 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 labeled this an infringement of 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 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.
Why the need of AJIS?
- Vacancies: There are at least 4,400 vacancies (20%) for judges in the subordinate courts.
- Low pay: Despite efforts by the Supreme Court to ensure uniformity in pay scales across States, it is still very low. It is such low that brighter law students do not join state judicial services
- Career Progression:
-
-
- 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.
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.
Arguments in favour of AIJS:
- Improve quality of judges & judgements
- Accountability– reduces arbitrariness and nepotism in the judiciary.
- Reduce pendency of cases– Well trained and qualified judicial officers would 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.
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 then would need to familiarize with local languages, customs, and laws of the state which may be a huge hassle.
- Procedural challenges to ensure reservation for locally domiciled citizens.
- 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.
Way Forward:
- 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.
[Additional information regarding the topic is also being provided]