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Standardising Justice: The Potential Impact of All India Judicial Services

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   04-Jul-2024 | Samiksha Kanaujia



All India Judicial Services (AIJS) aims to centralise the recruitment of judges. Last year on Constitution Day (November 26) the President of India advocated for All India Judicial Services. Essentially AIJS seeks to enhance diversity in the judiciary by increasing representation from the marginalised sections of the society.

What is All India Judicial Service (AIJS)?

AIJS aims to bring change in the current system of recruitment. There is a proposal to centralise the recruitment process for judges of the district judiciary. Once recruited, these judges will then be assigned to different states. This is similar to how the Union Public Service Commission (UPSC) conducts a central recruitment examination and assigns successful candidates to states.

The idea for centralised services was first discussed in the 14th Report of the Law Commission in 1958 and then again in 1978. The purpose was to establish an effective subordinate judiciary and address structural issues such as disparities in varying pay, filling faster vacancies and standardised nationwide training. The AIJS was endorsed by the Chief Justices' Conferences in 1961, 1963, and 1965.

In 1976, the 42nd Constitutional Amendment amended Article 312 (1) to legally enable the establishment of an AIJS, subject to a resolution ratified by the Rajya Sabha with a two-thirds majority. Thereafter, Parliament can by simple majority amend Article 233 and Article 234, to create an AIJS. It does not require an amendment of the Constitution, under Article 368.

Constitutional Basis:

  • Article 312 of the Constitution provides for the establishment of All India Judicial Service (AIJS), after the Swaran Singh Committee’s recommendations in 1976. However, Article 312 (2) states that AISJ shall not include any post inferior to that of a District Judge, as defined in Article 236.
  • Article 236 specifies that a district judge may comprise various judicial positions, such as a city civil court judge, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge, and assistant sessions judge.

Existing Recruitment Process

  • Under the current system, the authority to select district judges is granted to states through Articles 233 and 234. This process is managed by State Public Service Commissions and High Courts, as High Courts have jurisdiction over the subordinate courts in the state.
    • Article 233 pertains to the selection and appointment of district judges. The Governor of a State, in consultation with the High Court that has authority over that State, is responsible for appointing individuals to serve as district judges, as well as for their assignment and promotion.
    • Article 234 deals with the recruitment process for the district judge posts below is done by the state's Governor in accordance with regulations established in consultation with the State Public Service Commission and the High Court.
  • The selection process for all judges in the lower judiciary, up to the district judge level, requires passing the Provincial Civil Services (Judicial) exam. The judicial services exam is often known as PCS (J).
  • Following the examination, panels of High Court justices conduct interviews with candidates and subsequently select individuals for appointment.

More Recent Developments on AIJS

  • In 2006, the Parliamentary Standing Committee reconsidered the issue and expressed support for the establishment of a pan-Indian judicial service.
  • The idea was also incorporated into the agenda of the Conference of Chief Ministers and Chief Justices of the High Courts, which took place in April 2013. During the conference, it was deliberated that the matter requires additional discussion and consideration.
  • The proposal for the formation of the All India Judicial Service, along with feedback from the High Courts and State Governments on it, was on the agenda for the meeting of Chief Ministers and Chief Justices of High Courts in April 2015.
  • The establishment of AIJS was also discussed during a meeting of the Parliamentary Consultative Committee in March 2017 and the Parliamentary Committee on the Welfare of SCs/STs in February 2021.
  • Current Status: As of 2024, there is no agreement on AIJS because the main stakeholders responsible for its implementation hold different views. The AIJS proposal has not been put into effect yet, which emphasises the difficulties in reaching an agreement for its implementation.

Judiciary’s Take on AIJS

  • In the 1991 Union of India v. All India Judges' Association case, the Supreme Court mandated the Centre to establish an All India Judicial Service (AIJS). Nevertheless, in a 1993 reassessment of the verdict, the court granted the Centre the authority to assume control of the issue.
  • In 2017, the Supreme Court introduced a "Central Selection Mechanism" as a solution to the problem of appointing district judges. The court appointed senior attorney Arvind Datar as an amicus curiae, who then sent a concept note to all the states advocating for a unified examination instead of individual state examinations. Subsequently, the High Courts would conduct interviews and select judges based on their ranking in the merit list.

Need

  • A centralised examination process would ensure more accountability and transparency ensuring effective and minimising selection panel discretion.
  • Implementing AIJS would enhance the inclusivity and diversity among judges from different regions, genders, castes, and communities.
  • AIJS seeks to accelerate the process of filling vacancies and enhance recruitment processes in the lower courts in India. Its objective is to achieve the recommended ratio of 50 judges per 10 lakh population, as opposed to the current ratio of approximately 19 judges per 10 lakh population.
  • AIJS aims to establish uniformity in the quality of adjudication and justice throughout the country, resolving discrepancies in legal practices at the state level.

Challenges with AIJS

  • It would breach the federal structure and the sovereignty of the states and the high courts, which have the constitutional authority and duty to oversee the lower judiciary.
  • It would create a conflict of interest, and the judges would be subject to oversight and accountability from both the national and state governments, leading to dual rule.
  • There is speculation that it would undermine the local laws, languages, and customs of the different states, which are important for the judiciary to operate effectively.
  • The lack of possibilities and incentives for career progression would have a negative impact on the morale and motivation of the current judicial officers.
  • Besides a few National Law Universities, most law schools lack effective and uniform curricula, resulting in subpar legal research and academic performance. AIJS does not address this issue.

Way Forward

Over several decades, numerous States and High Courts have expressed their opposition to establishing an All-India Judicial Service. Thus, before Parliament forms an AIJS, the Centre, States, and Judiciary must reach an accord.

The other solution is to introduce AIJS on a trial basis in specific states to evaluate its effects and gradually tackle any difficulties. Before fully implementing the system a transitional period is needed so that current judicial officers can smoothly adjust to the new system.

Additionally, AIJS needs to conform to local laws, languages and culture while ensuring efficient operation.

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