It can raise the bar
THE TRIBUNE DEBATE: ALL INDIA JUDICIAL SERVICE
PRESIDENT Droupadi Murmu’s recent remarks, stating that an all-India judicial service (AIJS) will help diversify the judiciary by allowing bright youngsters from varied backgrounds to become judges through a merit-based process, has revived the debate on whether the creation of the AIJS is desirable or not.
A nationally recruited judiciary could be less susceptible to local political pressures and influences. This could enhance the independence of the judiciary.
The need for the AIJS in India has been discussed for decades, with the objective being to create a centralised cadre of judges in the lower courts that could ensure uniformity and high standards in the judiciary across the nation. The AIJS proposal is anchored in the Constitution and has been reinforced through various Law Commission reports. Article 312 of the Constitution, as amended by the 42nd Amendment, provides for the creation of an AIJS and requires a resolution adopted by the Council of States with two-thirds majority and a parliamentary law. The idea of establishing the AIJS was initially proposed in the Law Commission’s 14th report in 1958 and reiterated in its 77th and 116th reports. However, it was looked down upon by the executive and the judiciary on primarily three grounds: the lack of proficiency in regional languages could erode judicial efficiency in understanding evidence and delivering judgments; it could significantly restrict the promotional opportunities for members of the state services; it could diminish the High Court’s control over the subordinate judiciary, compromising its independence.
The proposal has been debated by the judiciary as well. In the All India Judges’ Assn. (1) vs Union of India, the Supreme Court directed that the AIJS should be set up. The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, in its 15th report, backed the scheme of pan-India services and in pursuance of it, a draft Bill was prepared in 2006. However, in view of the opposition by Chief Justices of some High Courts on the above-mentioned grounds, it could not crystallise. The proposal for the AIJS was also part of the agenda for the Chief Ministers’ and Chief Justices’ Conference in April 2015. The proposal was discussed in January 2017 at a meeting chaired by the Minister of Law and Justice. It was also discussed at meetings of the Parliamentary Consultative Committee in March 2017 and the Parliamentary Committee on the Welfare of SCs/STs in February 2021. However, due to divergent opinions among key stakeholders, there is no consensus on establishing the AIJS.
The establishment of the AIJS is anticipated to bring a host of benefits to the judicial system. It would ensure that the selection process for judges is uniform across the country. This would be achieved through a standardised national-level examination and selection procedure. The centralisation of the recruitment process is expected to maintain high standards in the selection of judges, much like the Indian Administrative Service (IAS) and Indian Police Service (IPS) do for administrators and police officers, respectively.
With the AIJS, the judiciary would likely see an influx of qualified, competent and skilled judges who have been trained uniformly. The establishment of centralised training institutes, akin to the National Judicial Academy, would ensure that judges across the country are exposed to the same quality of training and judicial education.
One of the chronic problems plaguing the Indian judiciary is the high number of vacancies in judicial positions, leading to an overwhelming backlog of cases. The AIJS can provide a streamlined and continuous mechanism for filling vacancies in a timely manner, thus reducing pendency and ensuring swifter justice delivery.
Like other all-India services, the AIJS could foster national integration by ensuring that the judiciary has representation from diverse parts of the country. It could potentially improve the representation of various sections of society in the judiciary. A national recruitment process can be designed to be more inclusive and provide opportunities to candidates from marginalised and under-represented communities.
A nationally recruited judiciary could be less susceptible to local political pressures and influences. This could enhance the independence of the judiciary as judges would not be beholden to state politicians for their appointments.
The judiciary’s primary goal is to deliver justice and counter oppression, but when it fails in this role, societal faith in justice erodes, leading to potential anarchy. This loss of trust, particularly in India’s subordinate judiciary, which is often perceived as ineffective, underscores the urgent need for reformative measures to restore public confidence in the legal system. The proposed AIJS is aimed at establishing a more efficient and trustworthy judicial system. Efforts to improve the functioning of lower courts since Independence have largely been unsuccessful. However, recent reforms in legal education and the professionalisation of law practice indicate that it’s an opportune time for comprehensive judicial reforms.
The AIJS isn’t a panacea for all judicial problems, but it is central to broader reforms. It needs to be complemented with quality legal education, better court infrastructure and a collegium system open to promoting lower judiciary judges. The Justice Venkatachaliah Commission had noted that younger judges from AIJS could be future High Court appointees. The AIJS aims to streamline the complex and convoluted workings of lower courts, facilitating the constitutional guarantee of speedy justice.
The establishment of the AIJS can present several potential solutions to address current challenges within India’s judiciary. Addressing the concerns previously raised, such as proficiency in regional languages, promotional avenues for state service members, and preserving the independence of High Courts, requires a nuanced policy design. Solutions could involve mandatory regional language training for judges in AIJS, a balanced approach to promotions that respects existing state service structures, and mechanisms to maintain High Court autonomy while ensuring a standardised judicial service. The key lies in crafting a system that harmonises the need for a diverse, efficient and independent judiciary with the practicalities and unique challenges of the Indian legal system.
