Is the idea of 'All India Judicial Service' viable

Does India need an AIJS - a comprehensive assessment

 Is the idea of 'All India Judicial Service' viable

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• The story: The first level of recruitment in Indian judiciary is at state-level. However, in line with centralisation of many other facets of governance, the government of India has proposed the establishment of an All-India Judicial Service (AIJS) to recruit officers for subordinate courts through an entrance test. This has met with predictable resistance from states.
• Not the first time: Earlier, the provision of an all-India judicial service (AIJS) on the lines of the Indian Administrative Service (IAS) and the Indian Police Service (IPS) was mooted soon after independence.

1. Today, the idea of AIJS is being pushed in order to bring judicial reforms, to check long-pending vacancies in judiciary and pendency of cases.
2. The establishment of AIJS may looo=k like a positive step, but faces severla constitutional and legal hurdles.

• Constitutional and legal angle: In 1958, for the first time, the AIJS was proposed in the 14th report of the Law Commission.

1. The 42nd Constitutional amendment in 1976 amended Article 312 (1) empowering Parliament to make laws for the creation of one or more All-India Services, including an AIJS, common to the Union and the States. (this was the period of Emergency)
2. Under Article 312, the Rajya Sabha is required to pass a resolution supported by not less than two-thirds of its members present and voting. Thereafter, Parliament has to enact a law creating the AIJS.
3. This means no constitutional amendment will be required for establishment of AIJS.
4. The Supreme Court of India 'endorsed' the same in the "All India Judges Association vs. Union of India case (1993)" laying down that AIJS should be set up.

• Pros and Cons of AIJS: It is a loaded dice, and all aspects need to be understood well.

1. It may boost the judicial bench strength - A Law Commission report (1987) recommended that India should have 50 judges per million population as against 10.50 judges (then). The figure now is 20 judges in terms of the sanctioned strength, but in the US or the UK it is 107 and 51 judges per million people, respectively. The AIJS can bridge the gap in judicial vacancies.
2. It may bring more representation to the marginalised - The AIJS may be an ideal solution for equal representation of the marginalised and deprived sections of society, which presently is not the case, at least not in higher echelons of the Indian judiciary. But various states are already ensuring due affirmative action at their own levels, which in fact, may get diluted in a centralised model.
3. Creating a larger talent pool - The government believes that if such a service comes up, it would create a talent pool that may later become a part of the higher judiciary. But the problem then will be the Collegium system, that is not entirely transparent.
4. It may tackle corruption - The bottoms-up approach in the recruitment would also address issues like corruption and nepotism in the lower judiciary. It will improve the quality of justice dispensation in the lower levels (Trial Courts) of society.
5. AIJS may face language barrier - Since lower courts work mostly in vernacular (local languages), apprehensions exist as to how a person from north India can hold hearings in a southern state.

• Constitutional examination: There seems to be a dichotomy between Articles 233 and 312. As per Article 233, recruitment to subordinate judiciary is the prerogative of the State. Many states and high courts have clearly opposed the idea on the ground that it would go against federalism. Thus, AIJS may be against the principle of federalism and the basic structure doctrine. {Article 233(1) of the Constitution lays down that “appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State”.}

1. Constitutional limitation - The Clause 3 of Article 312 places a restriction that AIJS shall not include a post inferior to that of a district judge. So appointment of subordinate judiciary through AIJS, may face a constitutional barrier.
2. Dilution of adminstarrtive control of High Court - The creation of AIJS would lead to an erosion of control of the High Courts over the subordinate judiciary, which might affect the judiciary’s independence.

• Summary: It is clear that the more than 4 crore pending cases needs a recruitment system that works really fast. Any AIJS like struture will need a strong consensus. Else, it will produce more problems than it would solve.
• EXAM QUESTIONS: (1) What is the idea behind an All India Judicial Services (AIJS)? Explain. (2) Suggest three pluses and three minuses of the proposed AIJS. (3) Decentralisation and federal distribution of powers alone can help Indian judicial system get a new balance. Do you agree? Analyse.

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#Judiciary #AIJS #Constitution #Federalism

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