All India Judicial Services (AIJS)

In News

• Centre to make a fresh attempt for consensus on judicial services.

About

• The All India Judicial Services (AIJS) was first mooted in the 1950s by the Law Commission.
• The establishment of an AIJS, a national-level recruitment process for district judges on the lines of the Union Public Services Commission, is a proposal that has been floated by the Centre for over a decade.
• A bill could be required to establish an all-India judicial service to recruit officers for subordinate courts through an entrance test.

Constitutional Provisions

• Power of the states: Under the Constitution, the power to make appointments to the lower judiciary vests with the states.
  • Currently, states conduct their own exams based on vacancies that arise.
• 42nd amendment in 1976: The provision of AIJS was included in Article 312 of the Constitution through the 42nd amendment in 1976. But it would still require a bill to decide on its broad contours.
• Articles 124 and 217 of the Constitution: Dealt with the appointment of judges of the higher judiciary.
  • These articles specifically said that judges would be appointed by the President of India after “consultation” with the Chief Justice of India (CJI) and other judges.
• Collegium system: The word “consultation” is significant because in 1993, in the so-called Second Judges case, the SC decided that the CJI must agree to all judicial appointments, a concept known as “concurrence”.
  • This created the collegium system, wherein the three senior-most Supreme Court judges decided on who would be a high court or Supreme Court judge.
• Article 312 in the Constitution Of India: which deals with ‘All-India Services’, says that Parliament may, among other things, provide for the creation of one or more all India services, including an all-India judicial service, common to the Union and the states.
  • Article 312 also lays down 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 that it is necessary or expedient in the national interest to do so”.

Benefits of AIJS

• Strengthen the overall justice delivery system: All India Judicial Service is important to strengthen the overall justice delivery system, especially at the district and subordinate court levels.
• Vacancies: The move was only to ensure that vacancies were filled in a timely manner. 
• Fresh legal talent: All India Judicial Service (AIJS) will give an opportunity for induction of suitably qualified fresh legal talent through a proper all-India merit selection system.
  • It would create a pool of talented legal professionals who could, later on, join the higher judiciary, covering 25 high courts and the Supreme Court.
• Social inclusion: It will also address the issue of social inclusion by enabling suitable representation to marginalised and deprived sections of society.
• Reducing the pendency of the cases: Data from earlier this year said the backlog in the lower judiciary comprising the district and subordinate courts stood at 3.8 crore cases, thus accounting for the bulk of the more than 4.4 crore cases pending across the Indian judiciary.
• Judge-to-population ratio: in India is about 19 judges per 10 lakh population even though the Law Commission had recommended that it should be at least 50 per 10 lakh people. 
  • All this points to an urgent need to ensure swift filling up of vacancies and ramping up of recruitment to the lower judiciary, for which the Centre has long proposed the creation of the AIJS.

Challenges in AIJS 

• Issue of language: Since cases in lower courts are argued in local languages, there have been apprehensions about how a person from north India can hold hearings in a southern state. But, if IAS officers can learn the languages of different states when they are assigned cadres, even judges can.
• Opposition from various states: While several states, including Trinamool Congress-ruled West Bengal, have opposed the creation of a central service for state judiciary, the Supreme Court has expressed positive views on the issue.
• Divergent views: on eligibility, age, selection criteria, qualification and reservation.
• Dilution of the federal structure: key concerns were the dilution of the federal structure and that the proposal does not address structural issues plaguing the lower judiciary, including low pay and fewer chances of being promoted to the higher judiciary.
• Administrative control of High Courts: Law Ministry notes that “most of the high courts want the administrative control over the subordinate judiciary to remain with the respective high courts”.
• Judicial independence of District Judges: One of the issues which have received relatively little attention in the context of the AIJS debate, is the issue of preserving the judicial independence of District Judges who may be part of such a service in the future.

AIJS and the federalism debate

• Basic structure of the Indian Constitution: Although the Indian Constitution avoids using the words ‘federal’ or ‘federalism’, the Supreme Court of India, has held ‘federalism’ to be one of the features of the ‘basic structure’ of the Indian Constitution.
• Single judiciary: At the time the Constitution was being drafted, there appears to have been unanimity of opinion favouring a ‘single judiciary’ wherein a single judicial system would enforce both central and state laws.
• In the U. S. A: the Federal Judiciary and the State Judiciary are separate and independent of each other. 
  • The Indian Federation though a Dual Polity has no Dual Judiciary at all. The High Courts and the Supreme Court form one single integrated Judiciary having jurisdiction and providing remedies in all cases arising under constitutional law, civil law or criminal law.
• As explained by Ambedkar: the Indian system is different from other federal nations like the United States where the federal unit and state units have their own respective judiciaries. 
  • Typically, the federal judiciary can hear only disputes under federal law, while the state judiciary is limited to hearing disputes under state laws.

Conclusion

• The AIJS has been pitched as a solution to judicial vacancies, lack of representation for the marginalised on the bench and the failure to attract the best candidate. As demonstrated in this primer, many of these issues have been incorrectly diagnosed.

Source: IE