Lawwatch

Need for an All India Judicial Service (AIJS) to Revitalise Indian Judiciary

Introduction

No other reform is as important as establishing an All India Judicial
Service (AIJS) in revitalising Indian judiciary. But the proposal for
setting up an AIJS, in the lines of Indian Civil Service, is hanging
fire for more than five decades despite there were several proposals and
decisions including that of the apex court, in its favour. It is quite
curious that a key judicial reform of such a magnitude remains wholly
neglected at a time when more than 5000 judicial posts are lying vacant
and as many as 2.3 crore cases are pending in the country. There is
widespread hope that AIJS can deal with great many ills Indian judiciary
face right now and revitalize it into a far more vibrant constituent of
Indian governance and democracy.

The precise purpose of AIJS is to create a rigorous mechanism for
appointment of persons of highest ability, impartiality and integrity to
the district courts and to equip the subordinate judiciary in turn to
serve as the feeder line for appointment of competent judges to the high
courts or eventually the Supreme Court. The quality of judicial officers
in the subordinate judiciary is a matter of concern. The ever continuing
decline in their quality will delay delivery of justice, increase
pendency of cases, impair quality of judgments, and in turn affect
competence of higher judiciary as well.

The Constitution of India in its original form did not carry any
provision on AIJS. The drafting committee of the Constitution was
indecisive in creating AIJS under Article 312. The committee at last
came out with Article 235 which puts the lower judiciary under the
control of the High Court. Therefore the recruitment to lower judiciary
in eleven states is being carried out by the High Courts and in
seventeen states by the state level Public Service Commission.

In fact the administration of justice and organization of courts, except
that of the High Courts and Supreme Court, had been a provincial state
subject in the Government of India Act 1935. The Constitution later
followed the same scheme by putting the subject as entry 3 of list II.
It was under 42th amendment of the constitution the entry was
transferred to the concurrent list as Entry 11A. In the Indian
Constitution the judiciary and executive remained separate but the
control of lower judiciary remains vested with the high courts.

The idea of formation of AIJS first came out as a proposal by the Law
Commission of India. The first Law Commission in its 14th “Report of
Reforms on the Judicial Administration”, submitted in the year 1958 (
Vol I Chapter IX para 59 page 184) states that if we are to improve the
personal of the subordinate judiciary we must take measures to extend or
widen our field of section in such a way we can draw from it really
capable persons to man our higher judiciary. The report proposes to
recruit the judicial officers by an all India competitive examination.
The officers of the higher subordinate judiciary - the District
Magistrates - were proposed to be selected by a national competitive
test while the officers of the subordinate judiciary other than the
District Magistrates by a state level test.

The proposal was considered in the conference of law ministers held in
the year 1960 where it was vociferously supported by some and fiercely
opposed by some others. The proposal was hence shelved in view of the
stern opposition of a section of them. Later the Conference of Chief
Justices held in 1961, 1963 and 1965 favoured the proposal. But the
proposal met with a natural death when some states and High Courts
continue to oppose it.

In August 1963, the government sought the opinion of the Chief Justice
of India (CJI) and the then Chief Justice opined that the proposal was
not feasible. But in 1972, the CJI while proposing reforms relating to
subordinate judiciary suggested considering the issue of AIJS.

Again the eighth law commission in its 77^th^ report (Chapter IX para 96
page 32), while examining the excessive arrears in trial court,
recommended that there was a compelling case for creating AIJS.

In 1976 a committee headed by Shri Swaran Singh recommended amendment to
Article 312 so as to include the AIJS in its preview and exclude the
lower subordinate judiciary from it. The committee referred the matter
to the government for its consideration. The Constitutional amendment in
1977 brought in AIJS under Article 312 which stipulates that if Rajya
Sabha passes a resolution with special majority a new All India Judicial
Service can be created by enacting a law.

The proposal then figured in the Consultative Committee meeting of the
Ministry of Law, Justice and Company Affairs held on 17^th^ August 1978,
again on 4^th^ July 1979 and finally on 2^nd^ November 1980 wherein the
proposal was accepted in principle.

In 1982, the Conference of Chief Ministers approved the concept of AIJS.
Most of the states were in agreement with the concept but a few - mainly
three - issues were raised in opposition. The issues were lack of
knowledge of local language by the incumbents, absence of avenues of
promotion for them and erosion of control of high courts over
subordinate judiciary. The eleventh law commission in its 116^th^ report
submitted in 1986 vividly describes how to address these three
objections put forth against AIJS.

In the judgment in All India Judges case in 1992 ( AIR 1992 SC 165)
the SC directed the Union government to consider settings up an AIJS for
better selection through UPSC and to bring about uniformity in
conditions of service for the District Magistrates in the country. The
later verdict in the All India Judges case in 2002 also proposes AIJS
and the need for bringing uniformity in service conditions.

A consultation paper prepared as part of the working of the National
Commission to Review Indian Constitution in 2001 also favours AIJS. It
clearly narrates how the problems that AIJS raises can easily be
addressed.

The Parliamentary Standing Committee on Personnel, Public Grievance, Law
and Justice in its 15^th^ report tabled in May 2006 asked law ministry
to set up AIJS to appoint district level judges.

The proposal for AIJS again came up in 2012 before the Union Government.
A cabinet note along with a draft bill was prepared by a Committee of
Secretaries and was circulated to gather suggestions from the
stakeholders. But the bill was again shelved due to opposition from the
Chief Justices of High Courts. Eighteen out of twenty four High Courts
responded but most of them opposed the move.

Again in 2013, the proposal for creation of AIJS came up as an agenda
item in the conference of Chief Justices of the High Courts. Some of the
state governments and the High courts were not in favour of the proposal
while some others demanded some changes in it. Thus the revival move
came to a close again due to divergence of opinion.

Two of the former law ministers - Shri Veerappa Moiley and Shri Aswin
Kumar - had supported the proposal of AIJS but despite their interest
they had also failed to push it further forward.

The first National Judicial Pay Commission and the National Advisory
Council (NAC) also endorsed the institution of AIJS. In fact, the
judicial side of the SC has been in favour of AIJS but the
administrative side opposes it. In short, the proposal for AIJS is being
discussed in multiple platforms for more than five decades but the
unending wait still continues.

Now the present union government has revived the proposal so as to
address the problem of vacancies in lower judiciary which has crossed
5000 right now. The government’s proposal now is to constitute AIJS for
appointment of District Judges through an all India competitive
examination to be conducted by the UPSC and to continue the appointment
of civil judges and magistrates by the state governments under the
guidance of the HC as of now. AIJS does not include any post below that
of the district judge.

The proposal has great significance in revitalizing Indian judicial
system. Now Judiciary finds it difficult to recruit professionals who
possess requisite merit and talent required for a judge. The judiciary
has a twenty percent vacancy all the time, mainly due to dearth of
talented incumbents. No bright student of law right now joins the state
judicial service which is not attractive in terms of career prospects
including the hassles of transfer. AIJS will bring to judiciary a
promising section of young learned and talented law professionals, who
otherwise may prefer private employment or job elsewhere.

The selection by UPSC, as experience shows, will most probably be fair,
objective and transparent. Therefore the aberration, arbitrariness and
nepotism in selection of judicial officers, which we notice in almost
every selection process as of now, may decline. Then the quality of
lower judiciary remaining now as just average with some exceptions will
move upward. The incumbents joining AIJS may get a better chance to rise
up to the level of HC and SC. Therefore AIJS is one way to attract
better talents to judiciary and to make the judiciary more proactive and
vibrant in dispensation of justice.

No doubt, AIJS is a sound idea to attract capable judicial professionals
who can make our subordinate judiciary robust by speeding up disposal of
cases, ensuring right decisions that do not lend themselves to appeal
and thereby bringing down the possibility of appeals to the minimum. The
competence and quality of the lower judiciary is crucial for
revitalizing the entire edifice of Indian judiciary.