Note4Students:

There has been lingering issues of inefficiency, pendency of cases and vacancy of judges within the Indian judiciary. Recently union government sought the opinion of attorney general with regards to the AIJS. So discussion over AIJS is important.

Introduction

1. Article 309 of the Constitution deals with the recruitment and conditions of service of persons serving the Union or a State.
2. It empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and post in connection with the affairs of the Union or of any State.
3. The Constitution was amended in 1977 to provide for an AIJS under Article 312.
4. Under article 312,if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all-India services (including an all-India judicial service)] common to the Union and the States
5. Earlier recommendations: The first Law Commission recommended the creation of an AIJS.  It opined that such a course is necessary in the interest of efficiency of the subordinate judiciary.
6. This proposal was considered in the Law Ministers’ Conference held in the year 1960, but the proposal was shelved.
7. The 8^th Law Commission while examining the problem of arrears in trial courts, recommended formation of an AIJS.

Analysis

Problems of subordinate judiciary:

1. Vacancies: There are at least 4,400 vacancies for judges in the subordinate judiciary, including for district judges.
2. There always 20 per cent vacancies in the courts.
3. Vacancies are never filled in time because the judiciary is unable to attract talent.
4. Not attractive: Today the subordinate judiciary depends entirely on state recruitment. But the brighter law students do not join the state judicial services because they are not attractive.
5. Career progression: With no career progression, no one with a respectable bar practice wants to become an additional district judge, and deal with the hassles of transfers and postings.
6. Quality : Consequently, the quality of the subordinate judiciary is by and large average, although there are some bright exceptions.
7. By extension, at least one-third of high court judges elevated from the subordinate judiciary are also mostly average. As a result, the litigants are left to suffer.
8. Pendency of cases :As of December 31, 2015, 51.2 per cent of all cases pending in the subordinate courts have been pending for more than two years.

Why AIJS Required

1. Improved quality: It will improve the quality of judicial officers in high courts.
2. Proved quality: One-third of the judges would enter the high courts through the route of promotion from subordinate courts. Judges of the Supreme Court are drawn from the high courts. In this process, the persons eventually selected into the judiciary would be of proven competence.
3. Quality of judgements: Simultaneously, the quality of adjudication and the dispensation of justice would undergo transformative changes across the judicial system, from the lowest to the highest levels. This can have far-reaching impact on the quality of justice and on people’s access to justice as well.
4. Accountability: A career judicial service will make the judiciary more accountable, more professional, and arguably, also more equitable.
5. Time consumption: Well trained and qualified judicial officers would be instrumental to reduce the time required for the litigation.

Recommendations of the National Judicial Pay Commission

1. The AIJS should be constituted only in the cadre of District Judges as per provisions of Article 312 (3) of the Constitution.  The District Judges directly recruited and promoted should constitute the AIJS.
2. The selection for direct recruitment should be by the National Judicial Commission / UPSC and the promotes by the respective High Courts.
3. The qualification for direct recruitment to AIJS should be in conformity with that prescribed under Article 233(2) of the Constitution.
4. Service Judges also should be allowed to compete for recruitment of AIJS, by appropriately amending Article 233(2) of the Constitution.
5. Not exceeding 25% of the posts in the cadre of District Judges in every State should be earmarked for direct recruitment.
6. The age limit for recruitment to AIJS should be between 35 years to 45 years.
7. Appointment: The National Judicial Commission / UPSC, after selecting the candidates for direct recruitment to the cadre of District Judges, must allocate to the States / UTs, the candidates equal to the vacancies that are surrendered by them.
8. The High Court thereupon will recommend those names to the Governor for appointment as per Article 233 of the Constitution.

Arguments against AIJS

1. Status of Legal education: The Bar Council of India has mismanaged legal education. Within this incredibly small talent pool, the judiciary competes by offering unremunerated pay and limited avenues for career advancement.so attractive remuneration will increase the quality of the judicial system.
2. Disadvantages of national exam A “national exam” risks shutting out those from less privileged backgrounds from being able to enter the judicial services
3. Inadequate knowledge of regional language would corrode judicial efficiency both with regard to understanding and appreciating parole evidence pronouncing judgments.
4. Career prospects of state judiciary members: Promotional avenues of the members of the State judiciary would be severely curtailed causing heart burning to those who have already entered the service and manning of the State judicial service would be adversely effected.
5. Statistics from different time period’s :shows that both the decentralised approach of each High Court conducting its own appointment and a centralised one of all India civil services seem to have roughly the same efficacy in filling up the vacancy.
6. Erosion of control of the High Court over subordinate judiciary would impair independence of the judiciary.
7. Overburdened judicial officers If clerical task of judicial officers has removed, entrusted to non-judicial clerks , it will help judges to focus on judicial matters. This will infuse more efficiency. AS per independent studies conducted by Centre for Civil Society and Daksh, clerical tasks constitute almost half of subordinate judges’ time.
8. Source of real experience Richness of judiciary comes from experience and exposure to real cases which the AIJS exam will take away from.

Conclusion

The problems of the Indian judiciary at all levels have reached catastrophic level. The public is losing confidence in the judiciary despite the latter’s assertions. Data show that they are acting on this belief by filing fewer cases year on year. It is likely to be a combination of delays, cost, uncertainty, inefficiency and corruption. So, solution of these problems lies in the identifying a sustainable mechanism of appointment. That mechanism should address the negative aspects of the AIJS and de centralised appointment system.

Questions:

1. Do you support the idea of constituting an “All India Judicial Service .?

2. The constitution of AIJS will solve the problems of judiciary. Critically analyse