All India Judicial Service (AIJS)

What is All India Judicial Services (AIJS)?

• AIJS first proposed by the 14th Report of the Law Commission of India in 1958- it aimed at creating a centralised cadre of District Judges

• Creation of AIJS was favoured by the Chief Justices conferences in 1961, 1963, and 1965.

• The Law Commissions in its several reports had suggested the creation of the service.

• Proposal floated by the government in the year 2012, but the draft bill was abandoned due to opposition from High Courts, claiming violation of their rights.

• At present, various high courts and state service commissions hold exams to recruit judicial officers.

Why is it required?

• Recruitment in lower judiciary happens state-wise resulting in lower standard of district court judges.

• Many judicial posts remain vacant despite an extraordinarily high number of pending cases.

• To standardise process of appointments to lower judiciary.

• To create a carder of dedicated, professional judicial officers.

Who recommended AIJS?

• The idea of judicial service was introduced as early as in the 1950s.

• The provision of AIJS was also included in Article 312 of the Constitution through the 42nd amendment in 1976.

• NITI Aayog, in its report, ‘Strategy for New India@75’, also mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary.

AIJS in the news

• Draft bill to introduce AIJS prepared by the Government, to be introduced to the Union Cabinet after seeking the views of the Higher Judiciary

• 2019 - The Union Govt spearheaded a consultative process to create an AIJS

• Initially, only 4 states and 2 HCs supported the proposal; 8 rejected it, 5 States proposed changes, and 11 are yet to respond

• July 2021 - Recently, the Centre took the ordinance route to effect changes in the appointment of members to various tribunals, many were even abolished

Constitutional provisions regarding AIJS

• Article 233(1)- appointment, promotion, posting of District Judges in any State shall be done by Governor, in consultation with that State’s High Court

• 42ndConstitutional Amendment, 1976-

• ➤ Article 312(1) was amended- it empowered the Parliament to make laws for the creation of one or more AIS, common to both Union & States

• ➤ Article 312(3) places a restriction that such a service shall not include a post inferior to that of a district judge

• ➤ A significant change was also brought about in the Seventh Schedule- Entry 3 of List II (State list) in its entirety was placed at Entry 11A in List III (Concurrent List- where the Union Law prevails over the State law, generally) {“Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts”}

Arguments in favour of AIJS

• It could be an ideal solution for equal representation of marginalised and deprived sections of the society. ➤ Most States already have a reservation policy in place. ➤ TN provides a roster-based policy of 69%, of which 30% are for women. ➤ States like UP can immensely benefit from the AIJS - there is merely 20% reservation for women. 

• Efficiency and efficacy of judiciary would be increased.

• Transparent and efficient method of recruitment would be followed.

• The issue of pendency and issue of delay of cases would be solved to a great extent.

• Corruption, nepotism etc. would be strongly dealt with.

• Best legal talent across the country would be selected on the basis of merit.

• Better qualified judges in the lower judiciary would translate into more experienced judges in the higher judiciary.

• Public faith in the judiciary would be restored.

• Favoured by various eminent Bodies- Chief Justices’ Conference, Law Commissions

• Supreme Court: ➤ Judgements in favour of AIJS- All-India Judges Case of 1992, All India Judges Association vs. UoI of 2002. ➤ The Court accepted most recommendations of the Shetty Commission and directed the government accordingly.

Arguments against AIJS

• Article 233 vs. 312- What was initially, essentially intended to be the prerogative of the State will now be that of the Union. When such fundamental powers of the States get curbed, it affects the basic principle of federalism and is against the basic structure doctrine.

• May lead to conflict between Centre & State as the power to recruit judicial officers so far rests with the states- it would take away the powers of the States and HCs to appoint and administer subordinate judges.

• Issue of differences in local laws of each state.

• Local languages and dialects would pose problems in a hyper technical field such as law.

• Legal Education in India is mismanaged. Except for a few well reputed law schools across the country, legal education is not prioritised.

• It will be difficult for the less privileged to enter the profession.

• Currently, the judges of subordinate courts are appointed by the governor in consultation with the High Court which will not be so if AIJS is implemented. This may be construed as a violation of the Independence of Judiciary as some other body will have a control in appointments.

• There is no substantial improvement in the existing efficacy of the procedure for filling the vacancy in the judiciary.

Conclusion

Although AIJS proposes to solve the problem of judicial vacancies, it would be crucial to first conduct a detailed investigation into the reasons for judicial vacancies in poorly performing states so as to structure AIJS in a manner to solve the inherent issues.

Moreover, after the selection of candidates, a Judicial service officer can be provided sufficient training to handle the job, similar to the training imparted to candidates of IAS, IPS, IFS and other civil services, in order to resolve state-specific issues. A meritocratic judiciary is the need of the hour which is possible with a competitive recruitment process. Nevertheless, the efficacy of the AIJS would depend on its potential to efficiently address existing issues and impartiality in its implementation.