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Lower judiciary and centralised recruitment debate

  • Posted By
    10Pointer
  • Categories
    Polity & Governance
  • Published
    12th Nov, 2021
  • Context

    The central government is preparing to give a fresh push to the establishment of an All India Judicial Service (AIJS) on the lines of the central civil services.

    • Judges of the lower judiciary are planned of being recruited centrally and assigned to states, similar to how the Union Public Service Commission performs a central recruiting procedure and allocates successful applicants to cadres.
  • Background

    • The proposal for an All-India Judicial Service was first suggested in the early 1960s.
    • While the proposal was revived a few times, including in 2012, it could not be implemented due to opposition from some high courts and states.
    • In December 2019, reported that the government's proposal had received mixed response from various states and high courts.
  • Analysis

    What is the proposed concept of ‘All-Indian Judicial Service’?

    • The AIJS is a reform push to centralize the recruitment of judges.
    • It would work at the level of additional district judges and district judges for all states.
    • This idea has been discussed in legal circles for many years, and remains debatable.
    • In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 15th Report pushed the idea of a pan-Indian judicial service, and made a draft Bill.

    Who deals with All-India Services?

    • Article 312 of the Indian Constitution, which deals with ‘All-India Services’, says that Parliament may, among other things, provide for the creation of one or more all India services, including an all-India judicial service, common to the Union and the states.
    • Article 312 also lays down that such a service may be created if the Rajya Sabha declares “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".
    •  It adds that no law providing for the creation of AIJS — which “shall not include any post inferior to that of a district judge" — “shall be deemed to be an amendment of this Constitution".
  • Supreme Court’s View

    • In 1992, the Supreme Court(SC) in All India Judges’ Association v. The Union of India directed the Centre to set up an AIJS.
    • In a 1993 assessment of the judgment, however, the court left the Centre at liberty to take the initiative on the issue.
    • In 2017, the SC took suo motu cognizance of the issue of appointment of district judges, and mooted a Central Selection Mechanism.
      • Based on the merit list, High Courts can hold interviews and recruit judges.
  • How are district judges currently recruited?

    • The selection process is conducted by the State Public Service Commissionsand the concerned High Court since High Courts exercise jurisdiction over the subordinate judiciary in the state.
    • Panels of High Court judges interview candidates after the exam and select them for an appointment.
    • Articles 233 and 234 of the Constitution of India deal with the appointment of district judges, and place it in the domain of the states.
    • All judges of the lower judiciary up to the level of district judge are selected through the Provincial Civil Services (Judicial) exam.
  • What are the major issues faced by Indian judiciary?

    • Poor infrastructure 
    • State Public Service Commission (SPSC) does not recruit enough staff to assist the judges.
    • Lack of funds 
    • Procedural delays in working
    • High rate of vacancy
    • Judiciary is unable to attract best talent
  • How would AIJS improve the judiciary system?

    • Efficient Judiciary: It will ensure an efficient subordinate judiciary, addressing structural concerns such as disparities in pay and remuneration among states, filling vacancies more quickly, and ensuring uniform training throughout states.
    • Ease of Doing Business: In order to enhance India’s Ease of Doing Business score, the government has focused on reforming the lower judiciary, as effective dispute settlement is one of the primary indicators used to determine the ranking.
    • Judges to Population Ratio: According to a 1987 Law Commission report, India should have 50 judges per million people, compared to 10.50 (back in 1987). The AIJS, according to the government, is a great answer for equal representation of marginalized and underprivileged elements of society.
    • Attracting a Talent Pool: The government expects that if such a service is established, it will assist in the creation of a pool of brilliant individuals who could eventually join the higher judiciary.
    • Bottom-Up Approach: In the lower judiciary, a bottom-up approach to recruiting would address concerns such as corruption and nepotism.
  • What are the arguments and challenges against the proposed system?

    • Affect on federalism: AJIS is seen as an affront to federalism and an encroachment on the powers of states granted by the Constitution.
    • Language of Business:Language and representation, for example, are key concerns highlighted by states. Judicial business is conducted in regional languages, which could be affected by central recruitment.
    • Quotas:Also, reservations based on caste, and even for rural candidates or linguistic minorities in the state, could be diluted in a central test, it has been argued.
    • Separation of power: The opposition is also based on the constitutional concept of the separation of powers.
    • Incomplete Remedy:Additionally, legal experts have argued that the creation of AIJS will not address the structural issues plaguing the lower judiciary.
  • Why does the government want to revive the idea of AIJS?

    • The government has targeted the reform of lower judiciary in its effort to improve India’s Ease of Doing Business ranking, as efficient dispute resolution is one of the key indices in determining the rank.
    • Officials have said that the AIJS is a step in the direction of ensuring an efficient lower judiciary.
    • The government has countered the opposition by states, saying that if a central mechanism can work for administrative services, IAS officers learn the language required for their cadre it can work for judicial services too.
  • Way forward:

    The overwhelming amount of pending cases necessitates the construction of a system that recruits efficient judges in large numbers in order to expedite case resolution.

    However, before the AIJS is included into the legislative framework, agreement must be established and a definite move toward the AIJS must be taken.