All - Indian Judicial service:
The All - India judicial service envisages recruiting officers for subordinate
courts through a national entrance test. Those who clear the pan-India test
would be appointed by high courts and the State governments.
The All Indian
Judicial service (AIJS) is meant to induct district-level judges. A certain
percentage of inductions will be reserved for civil judges, who will thereby be
provided an opportunity to improve their career prospects. However, states and
respective high courts will be responsible for hiring the remaining civil
judges. The subordinate judiciary has two tiers and involves civil judges or
magistrates and district judges. Even serving civil judges can take the exam to
qualify for the AIJS provided they have served for the required number of years.
Background:
Many law commissions and the judiciary in many cases have
called on the administration to consider and implement All Indian Judicial
Service (AIJS).
The idea for an ‘All Indian 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.
In the All-India Judges case in 1992 the apex court had
opined that the recommendations of the Law Commission on the setting up of AIJS
should be examined and implemented. Similar opinions were expressed in the All
India Judges Association Vs. Union of India (2002) case as well.
In 2019 there had been a consultative process for the
creation of the All Indian Judicial Service (AIJS).While a few states and high
courts supported the proposal, most rejected it or are yet to respond. In this
context, the article analyses the feasibility of the All Indian Judicial
Service.
Constitutional perspective:
Article 233(1) of the Constitution states that appointments,
posting and promotion of, district judges in any State shall be made by the
Governor of the State in consultation with the corresponding High Court.
Article 312 (1) empowers Parliament to make laws for the
creation of one or more All-India Services, including an AIJS, common to the
Union and the States.
The 42nd Constitutional amendment in 1976 shifted the domain
of administration of justice constitution and organisation of all courts,
except the Supreme Court and the High Courts into the concurrent list from the
previous state list.
Arguments in favour of All Indian judicial service :
- 1. The AIJS will help remove any scope for judicial or executive intervention in the appointments to the lower judiciary and result in increased transparency in the appointment process.
- 2. It will help streamline the appointment process of the lower judiciary. This will allow the vacancies to be filled without any unnecessary delay.
- 3. AIJS will give an opportunity for induction of suitably qualified fresh legal talent selected through a proper all-India merit selection system and will thus help strengthen the overall justice delivery system in India.
Concerns with respect to AIJS:
Against the principle of federalism:
Under the envisaged all Indian judicial service, the
fundamental power of the States to make rules and govern the appointment of
district judges would rest with the union government.
The AIJS would lead to a scenario where the Union government’s powers would increase at the cost of the state governments. This will go against the principle of federalism and the basic structure doctrine.
Concerns for the subordinate judiciary:
Another aspect of concern is that 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.
Concerns over language proficiency:
Another fundamental concern would be the language barrier. Since
cases in lower courts are argued in local languages, there are apprehensions as
to how a person from a particular state can hold a hearing in another state
that has a completely different language.
Judges recruited through a centralized process may not know
the local languages of the States in which they are posted. The lack of understanding
of the local language and customs could affect the quality of judgments.
all working about Indian judicial service - knowledge bouquet
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