NEWS  In the current context, the feasibility of the All India Judicial Service requires to be studied.

BACKGROUND

• The idea for an ‘All India Judicial Service (AIJS)’ was first proposed by the 14th Report of the Law Commission of India in 1958, aimed at creating a centralised cadre of District Judges.
• Later the First National Judicial Pay Commission found that it would be in the interest and the health of the judiciary to form an AIJS. The report supported and reiterated the recommendations of the 14th Law Commission.
• In 2019, the central government initiated a consultative process for the creation of the All India Judicial Service (AIJS).
• Initially, only four States and two High Courts supported the proposal, but eight States rejected it, five suggested changes, and 11 are yet to respond.

RECENT STEPS TAKEN BY CENTRE

• The Union government appears to be steadfast in its resolve to implement reforms in recruitment and appointment to the subordinate judicial services.
• Taking steps in this direction, the Centre recently took the ordinance route to effect changes in the appointment of members to various tribunals.
• Hence, in a single stroke, the centre abolished several tribunals.

ARGUMENTS IN FAVOUR OF AIJS

• AIJS envisages to bridge the underlying gap in judicial vaccines, by streamlining the appointment process of the lower judiciary.
• According to the Government, the AIJS is an ideal solution for equal representation of the marginalised and deprived sections of society.
• Also it believes that implementation of AIJS, would help create a pool of talented people who could later become a part of the higher judiciary
• The bottom-up approach involved in AIJS in the recruitment would also address issues like corruption and nepotism in the lower judiciary.
  • This will  in turn improve the quality of justice dispensation in the lower levels of society.

CONSTITUTIONAL DICHOTOMY

• 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”.
• 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.
  • However, Clause 3 of Article 312 places a restriction that such a service shall not include a post inferior to that of a district judge.
  • The amendment also brought about a significant change in the Seventh Schedule — Entry 3 of List II in its entirety was placed as Entry 11A in List III.
  • This paved the way for Parliament to enact laws with regard to ‘Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts’.

Post-Emergency, amendment to Article 312 (1) has escaped parliamentary scrutiny, thus there exists a dichotomy with regard to Articles 233 and 312.

CONCERNS RELATED TO AIJS

• The AIJS would lead to a situation where the fundamental power of the States to make rules and govern the appointment of district judges is taken away in favour of the centre.
  • Thus, it may be against the principle of federalism and the basic structure doctrine.
• The operationalization of the AIJS could severely curtail the promotional avenues of the subordinate judiciary.
  • Currently, fifty per cent of the posts of district judges are to be filled by promotion from the subordinate judicial service. This will decrease with direct recruitment under the proposed AIJS.
• Another fundamental concern would be the language barrier.
  • The cases in the lower courts are argued in local languages, but Judges recruited through a centralized process may not know the local languages of the States in which they are posted.
  • Hence, this lack of understanding of the local language and customs could affect the quality of judgments.

CONCLUSION

• Any groundbreaking reform is bound to receive criticism.
• Hence, the feasibility of the AIJS in the current context requires to be studied, especially when reliance is placed upon archaic reports of the Law Commission.
• It is for the Union to eliminate the doubts and at the same time give wings to the aspirations of all stakeholders when implementing the proposal.

Reference:

1. https://www.thehindu.com/opinion/op-ed/will-a-national-judiciary-work/article35157303.ece