A non-starter

General Studies Paper 2

Context:

Good intentions do not always make for sound policy. President Droupadi Murmu’s suggestion that the creation of an All India Judicial Service (AIJS) will help diversify the judiciary by allowing bright youngsters from varied backgrounds to become judges through a merit based process revives the debate on whether a national system of recruitment at the district judge level is desirable.

All India Judicial Service (AIJS) :

• AIJS is a proposed service at all India level, on same lines as IAS, IPS etc, to recruit and nurture talented individuals into judicial service, ensuring representation from underrepresented social groups.
• Currently, under Articles 233 and 234 of the Constitution, states manage district judge appointments. State Public Service Commissions conduct recruitment, supervised by High Courts.
• The idea of AIJS has been part of discussions on official policy in the Union government for years. However, as the Union Law Minister disclosed last year in the Rajya Sabha, there is no consensus on the proposal. Only two High Courts agreed to the idea, while 13 were against it.

Advantages/ need for AIJS:

• Clear pendency of cases: The lower judiciary faces about 5400 vacancies and a backlog of 2.78 crore cases.
• Financial Incentives: State services often fail to attract top talent due to lower salaries.
• Training and Subjectivity: State-run institutions lack adequate training resources;
• Prevent favouritism and nepotism in selection of judges: current appointments are marred by subjectivity and nepotism.
• Ensure quality of justice: The declining quality of judicial officers necessitates a better mode of recruitment.
• Other advantages: AIJS aims to enhance judicial efficiency, standardise compensation, expedite recruitment, and ensure uniform training.

Arguments against AIJS:

• The AIJS may not be the panacea it appears to be. The current system of recruitment of district judges through the respective High Courts and other subordinate judicial officers through public service commissions is more conducive to ensuring diversity, as there is scope for both reservation and a clear understanding of local practices and conditions.
• Unlike the civil service, judges are not assisted by an experienced lower bureaucracy in decision making, and they require to be well versed in the issues involved for judicial functioning.
• Article 312 of the Constitution, as amended by the 42nd Constitutional Amendment, provides for the creation of an AIJS, and requires a resolution adopted by the Council of States with two thirds majority, and a parliamentary law. This Constitution recognises that rules governing the subordinate judiciary in the States will have to be superseded by a central law for this proposal to achieve fruition. It is unlikely that all States will agree to one more subject from their domain being consumed by centralisation.
• On the face of it, it may appear that a national service for judges not inferior to the post of district judges, with a superannuation age of 60, will be an attractive proposition for young lawyers to apply for it. However, it cannot be forgotten that legal education lacks country wide uniformity.
• After enrolling, lawyers typically consider judicial service based on practical experience rather than academic brilliance. Toppers, especially from the few elite law schools, are unlikely to sit for a national judicial service recruitment examination. In comparison, options such as litigation, joining law firms and going into the corporate sector will appear more beneficial.
• Further, given that the number of district judges elevated to the High Courts is much lower than those from the Bar, the lack of certainty on career progression may also render a national judicial service unattractive.

Conclusion:

• The idea of AIJS has been recommended over the years by many law commissions, Parliamentary panels, and recently, by NITI Aayog as well. Parliament and the Supreme Court should together deliberate on the merits and demerits of the same and take a policy decision.