A solution in search of a problem (Lower judiciary won't be helped by centralised recruitments)

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A solution in search of a problem (Lower judiciary won't be helped by centralised recruitments)

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Read more on - Polity | Economy | Schemes | S&T | Environment

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• NITI's proposal: In Dec.2018, NITI Aayog proposed as part of "Strategy for New India @ 75" that we should create an All India Judicial Service (AIJS) to conduct an all India exam for filling up posts in lower judiciary pan-India. Similar idea was earlier given by the Law Minister also.
• What is the problem? Vacancies in the lower judiciary, and inadequate representation from marginalised communities are two problems. Some Dalit leaders are voicing concerns already.
• AIJS is not a solution: The first assumption is that the present system of recruiting for lower judiciary is not working well. It vests the recruitment / appointments in State Governors, High Courts, and State PSCs. But numbers tell that states are doing a good job of it (lower court judges‘ recruitments).

1. Good numbers: Only 64 posts (of 2280) were vacant in Maharashtra, and only 80 (of 1013) in West Bengal. These are good numbers. So system is working!
2. Shocking numbers: In UP, 1348 seats (of 3204 sanctioned) were vacant, making it a 42% vacancy rate. So statewise variations are large. Why not  pressure such states?
3. UPSC not a guarantee of a solution: The IAS service has a vacancy rate of 22%. Indian Army officer cadre is short of 7298 officers. So centralisation is not a panacea.

• Representation of the marginalised: Many states already have reservations in lower judicial services, with 12 states (MP, Chhattisgarh, UP, Kerala, Rajasthan etc.) having caste-based quotas in direct recruitment exams for district judges from the bar. Some states give women special reservations.

1. Karnataka gives reservations to candidates with a rural background and also Kannada language education.
2. States seem better sensitised to the needs of this exercise than the Centre itself.

• Reservations with AIJS: Even if the Centre starts national level entrance with AIJS, and gives SC/ST and OBC reservations, a recent S.C. ruling stipulates that SC/STs can take benefits only in State govt. jobs in home states, and not where they've migrated to. Same for OBCs. So nationally dominant SC / ST / OBC groups will benefit disproportionately, which today they cannot due to domicile needs.
• Articles 233 and 234: These vest the powers of recruitments and appointments with State authorities (SPSCs, HCs). The Article 312 was amended during emergency to allow the RS to pass by 2/3rd majority a resolution (proposing to start the process of creating an AIJS for district judge). If such a resolution is passed today, then Articles 233 and 234 can be amended by a simple majority, and all powers taken away. So without using Article 368 to amend the constitution (where state legislatures' concurrence is needed), the govt. can simply create an AIJS and States would be helpless.
• Summary : The needs of lower judiciary are best fulfilled in the existing system of state-level appointments, and the proposed All India Judicial Service may not be the magic bullet it is perceived to be.

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