Government has spearheaded a consultative process for the creation of the All India Judicial Service (AIJS) in 2019.
Current Process of appointment of Judges:
It is appointed by recommendations of a collegium system.
Collegium system is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court.
The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
Challenges to Collegium system:
The system is non-transparent, since it does not involve any official mechanism or secretariat.
It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.
There is no public knowledge of how and when a collegium meets, and how it takes its decisions.
It violates the principle of separation of power as judges are appointing themselves. It has led to tyranny of unelected.
There is the lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings.
All India Judicial services:
The AIJS 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
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.
Benefits associated with AIJS
Accountability and transparency: A career judicial service will make the judiciary more accountable, more professional, and arguably, also more equitable.
Infuses objectivity in recruitment: Open competitive exams would bring objectivity in the recruitment process of the judiciary by reducing discretion of the selection panel.
Securing the best talent: AIJS will ensure a transparent and efficient method of recruitment to attract the best talent in India’s legal profession. Also the prospects of promotion to High Courts, for lower judiciary, at an early age would increase as they currently join at much later age than judges from the Bar.
Uniformity across the country: Quality of adjudication and the dispensation of justice would attain uniformity across the country by ironing out state-level differences in laws, practices and standards.
Checks pendency of cases: Streamlined and objective recruitment process would ensure regular stream of good quality judicial officers for vacant posts, which would reduce pendency of cases.
Representative Character: AIJS will improve the judiciary’s representative character by drafting in trained officers from deprived sections of society especially women and SC/STs.
Overall Efficiency: A well-organized judicial service can attract talent from our law schools and young, well-informed judicial officers at the level of additional district judge will make a difference. As ADJs and district judges, they can help make the judicial system move faster and more efficiently.
Inclusion of vulnerable sections: AIJS will necessarily increase representation of marginalized communities in the Indian judiciary.
Challenges Associated
Vernacular language problem: Courts up to District and Sessions Judge transact their business in State language and AIJS officers would find difficult to acclimatize themselves with local language, thus hampering dispensation of justice.
Problem of local laws and indegeneous customs: AIJS does not take into account the problem of local laws, practices and customs which vary widely across States, thus increasing the costs of training for judges selected through the mechanism.
Young age of the selected candidates: one of the objections was whether a person who will clear the exam in the age of 24-25 would have enough experience to be in the position of a District Judge.
Dilute separation of power under Article 50 of Indian Constitution: If the control over state judiciary is transferred to the Union government, through AIJS, by removing control of the High Court as provided under Article 235 currently, independence of judiciary would be undermined.
Violation of Federalism: Under the envisaged AIJS, the fundamental power of the States to make rules and govern the appointment of district judges would rest with the union government. It will enhance power of the union government.
Issues with the subordinate judiciary: Another aspect of concern is that the operationalization of the AIJS could severely curtail the promotional avenues of the subordinate judiciary.
Social issues: Many states provide higher representation to the marginalised sections than compared to the provided by the central government. AIJS may not provide sufficient representation to bring these states on the same platform.
Way Forward:
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 dispel doubts and at the same time give wings to the aspirations of all stakeholders when implementing the proposal.
