The proposal to set up an All India Judicial Service (AIJS) has gained momentum as the Centre is making fresh attempts to build consensus with the state governments.
At present, the process of selection of judicial magistrates and district & sessions judges are done through the written examination conducted by the high courts. The selection process of judges to the lower judiciary is done by the high court and the government in the state they serve. The proposed AIJS intends to take away the selection process of district & sessions judges from the existing system.
The provision for AIJS on the lines of the Indian Administrative Service and the Indian Police Service was mooted a few years after attaining independence. In 1958, the Law Commission of India recommended setting up of the All India Judicial Service. The commission, in its 1978 and 1986 reports, reiterated the above recommendation.
Clause (1) of Article 312 of the Constitution states: “Notwithstanding anything in chapter VI of Part VI or Part XI, of the council of states, has decided 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 so to do, Parliament may by law provide for the creation of one or more All India Judicial Service common to the Union and the states and subject to the other provisions of this chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service.”
The aforesaid provision seeks to create an All India Judicial Service. It was inserted in Article 312 of the Constitution through the 42nd amendment in 1976.
In contrast to the above, Article 233 of the Constitution states that the “recruitment to the lower judiciary is the prerogative of the state government”. This glaring conflict gives rise to a power tussle between the state and the Centre.
In the case of ‘All India Judges Association Vs. Union of India’, the Supreme Court has suggested that the “Union government must examine the feasibility of implementing the recommendation of the Law Commission for setting up of the AIJS. Further, the issue of the creation of AIJS was considered and recommended by the first national judicial pay commission, better known as the Justice Shetty Commission.
The proponents of AIJS feel that a properly framed service is important to strengthen the overall justice delivery system of the country. They contend that it will address the issue of social inclusion by enabling adequate representation to the deprived sections of society.
In March 2020, the Ministry of Law and Justice had told Parliament that a properly framed AIJS is important to strengthen the overall justice administration system and it would pave the way for the induction of suitably qualified fresh legal talent selected through a proper all-India merit selection system. In fact, the ministry notes that most high courts want the administrative control over the lower judiciary to remain with respective high courts. However, there are differences of opinion among the states regarding the formation of AIJS. Reports indicate that some state governments have said that taking away their powers of making appointments to the lower judiciary would go against the spirit of federalism and the doctrine of basic structure.
It has also been pointed out that the language factor needs to be considered since the lower courts function in local languages. There have been apprehensions about how a person from a Hindi-speaking state can hold hearings in South Indian states. But the government is of the view that IAS/IPS officers who serve in their non-home states have overcome the language barrier. But high court judges who serve in non-home states prefer the translation of case papers and documents from the local language to English.
Under Section 272 of the Code of Criminal Procedure, the state government may determine what shall be, for purposes of this code, the language of each court within the state other than the high court. There is no clarity as to how lawmakers are going to address this legal dichotomy.
The Union government contends that the pendency in the district and lower judiciary stood at 3.80 crore cases, thus accounting for the bulk of more than 4.40 crore cases pending across Indian courts. As of January 28 2021, the working strength of the lower judiciary was 19,318 as against the sanctioned strength of 24,247 — which means almost 5,000 vacancies. Data suggests that the judge-to-population ratio in India is about 19 judges per 10 lakh population, but it’s nothing compared to the US and UK’s 107 & 50 judges per 10 lakh population, respectively. In fact, 50 judges per 10 lakh population was the ratio recommended by the Law Commission of India.
As per a 2018 report, Other Backward Class (OBC) accounted for only 12% of judges in the lower judiciary in 12 states that had shared data with the Union Law and Justice Ministry. This is far below the estimated share of OBCs in the entire population. As for SC and STs, the ministry had said they made up less than 14% and 12%, respectively. The Centre is arguing that these disparities can be addressed by extending adequate representation to marginalised sections of the society at the national level.
The defenders of federalism would contend that the Centre is snatching the power of appointment of judges to the lower judiciary in the guise of reformation of the judicial system. Pertinently, all the basic infrastructure facilities to the lower judiciary were provided by state governments.
Notably, the proposal floated during the UPA regime was opposed by states by calling it an infringement of their rights.
Now, the current proposal assumes significance because of the 2012 report of the National Court Management Systems, which had projected that the number of cases being filed would reach 15 crore in 30 years, requiring 75,000 judges!
Practising advocates and law professors are the best persons to understand the ground realities. The consultation must involve all stakeholders including law colleges, bar associations and state bar councils. Any reformation without broader consultation and consensus will be unfruitful.
Particularly, the southern states are apprehensive about the manner of the selection process. The medium and method followed in IBPS, NEET and UPSC examinations are contentious issues, which tilt the argument in favour of proponents of linguistic equality.
The view that the creation of AIJS may lead to the erosion of administrative control of high courts over the lower judiciary and impair the judiciary’s independence cannot be ruled out.
(The writer is an advocate.)