Context

• Recently the Law Minister recommended All India Judicial Service as more than 5,000 positions of judicial officers in the district and subordinate courts are lying vacant thus contributing to pendency and a lack of representation in the judiciary from marginalised communities.

Background

AIJS:

• AIJS is a proposed cadre of judicial officers at the lower levels (below High Courts) recruited through an open competitive national level exam.
• It is proposed to be an All India Service under Article 312. A National Judicial Commission will also be constituted to oversee the AIJS, working on the lines of UPSC.
• Currently, the recruitment of lower level judicial officers is conducted by the respective state governments in consonance with the State High Courts.

How Will AIJS function?

• District judges will get recruited centrally through an all-India examination and allocated to each State along the lines of the AIS.
• It is well argued that it will ensure a transparent and efficient method of recruitment to attract the best talent in India’s legal profession.
• A slighter version of this, with judges recruited by High Courts on the basis of a common examination is currently being debated in the Supreme Court.

A Brief History Of AJIS

• The Constitution of India in its original form did not carry any provision on AIJS but the Drafting committee, at last, came out with Article 235 which puts the lower judiciary under the control of the High Court.
• The idea of formation of AIJS first came out as a proposal by the Law Commission of India in 1958.
• After the Swaran Singh Committee’s recommendations in 1976, Article 312 (which deals with creation of new All India Service (AIS)) was modified to include the judicial services, but it excluded anyone below the rank of district judge.
• The Chief Justices Conferences in 1961, 1963 and 1965 favoured the creation of an AIJS, but the proposal had to be shelved after some States and High Courts opposed it, as it takes away their powers to recruit lower level judiciary.
• Recruitment to lower judiciary is the responsibility of state governments which is either done by state High Courts and in other states by state level Public Service Commissions.

Need for All India Judicial Service:

• Huge vacancy of judges and delay in recruitment: Currently there are about 5400 vacant posts in lower judiciary across the country and a pendency of 2.78crore cases in lower judiciary primarily due to inordinate delay in holding regular exams by states.
• Dearth of good quality judicial officers: The ever continuing decline in their quality will delay delivery of justice, increase pendency of cases, impair quality of judgments, and in turn affect the competence of higher judiciary as well.
• Lack of finances with state governments: State judicial services are not attractive for ‘best talents’ due to low salaries, rewards and compensations by the state governments.
• Lack of specialized state training institutions: Adjudication is a specialization which requires state of the art training institutes and professors but state institutes don’t allow such exposure to interns.
• Discretion of a narrow body:The process of selecting a good judge is a difficult job and should not be left at the discretion of few persons (collegium) however sagacious they may be.
• Subjectivity in the process: Current judicial appointments at the lower level and upper levels suffer subjectivity, corruption and nepotism on the part of Collegium, hence there is a need to reflect the social reality and diversity of the country by establishing a neutral and impartial system of recruitment.

Objections to AIJS:

• Dilutes separation of power: If the control over state judiciary is transferred to Union government, through AIJS, by removing control of High Court as provided under Article 235 currently, independence of judiciary would be undermined.
• Problem of mismanaged legal education: Curriculum followed by law universities, overseen by Bar Council of India, lacks effective standards (barring few National Law Universities) which results into low-quality legal research and scholars, a problem unaddressed by AIJS.
• Uncertainty regarding posts to be covered: There is lack of consensus and uncertainty of the level upto which posts should be included in Indian Judicial Service.
• Local 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.
• Restricts promotional avenues for State officers:  Avenues for promotion would be curtailed for those who had already entered through the state services if officers at senior levels are taken through AIJS, which will affect the manning of State Judicial Service.
• Discriminatory for weaker sections: A “national exam” risks shutting out those from less privileged backgrounds from being able to enter the judicial services.
• Affects only tip of the iceberg:
• AIJS addresses neither the problem of disproportionately low pay nor unavailability of adequate judicial infrastructure (including courts or training of officers) in states nor the lack of career advancement.
• Though first two are responsibility of State governments, but the latter is judiciary’s responsibility, but no changes have been made to ensure better district judge representation in the High Courts, as less than a third of seats in the High Courts are filled by judges from the district cadre.
• Problem of local laws and 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.
• Instituting an AIJS would mean that nationally dominant SC, ST and OBC groups would be at an advantage as they can compete for posts across the country, which they would otherwise be disqualified from because of the domicile requirement. Thus an AIJS will have consequences for State-level politics.
• The argument that the centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process is flawed and not a guarantee of a solution. For example, the Indian Administrative Service — its recruitments are through the UPSC — reportedly has a vacancy rate of 22%, while the Indian Army’s officer cadre, also under a centralised recruitment mechanism, is short of nearly 7,298 officers.

Benefits of 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 exam would bring objectivity in the recruitment process of judiciary by reducing discretion of 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,

Way-forward:

• In its report on Strategy for New India @75 which defines objectives for 2022-23, Niti Aayog suggested that
• an all-India judicial services examination on a ranking basis can be considered to maintain high standards in the judiciary.
• there is a need to facilitate the availability and usage of video-conferencing facilities to assist in speedy access to justice and to minimise logistical issues.
• To maintain judicial independence, the cadre should report to the Chief Justice in each High Court.
• 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.

Also,

• Members of AIJS will be allocated to the states, and except the manner of recruitment, they will be subject to direct control of High Courts under Article 235.
• ‘All India Judicial Commission’ also recommended, on the lines of UPSC, with powers to take care of AIJS, hence independence of subordinate judiciary is expected to further strengthen rather than being eroded.
• Article 236 clearly defines what posts are included in the expression ‘District Judge’ and when read with Article 312, the level of posts to be included in AIJS and their nature becomes clear.

Conclusion

• If we want to create a robust judicial system at the subordinate level and a rich pool to draw from for the appointment of high court and, later, Supreme Court judges, the constitution of an Indian judicial service is a sound idea.
• Only a meritocratic service with a competitive recruitment, high-quality uniform training and assured standards of probity and efficiency would be able to ensure speedy and impartial justice in India.