Lower Judiciary & Centralised recruitment debate

Syllabus: General Studies Paper 2

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.

Background

• The Law Minister has called a meeting of state law ministers recently to discuss the AIJS and issues related to infrastructure in the lower judiciary.
• The idea of centralised recruitment of judges has been debated in legal circles for decades and remains contentious.

About the proposed All India Judicial Service (AIJS)

• The AIJS is a reform push to centralise the recruitment of judges at the level of additional district judges and district judges for all states.
• In the same way that the Union Public Service Commission conducts a central recruitment process and assigns successful candidates to cadres, judges of the lower judiciary are proposed to be recruited centrally and assigned to states.

Implementation & Challenges

• As per the amended Constitution, although Article 312(1) gives provision for setting up All India Judicial Services, a resolution must be passed in the Rajya Sabha with the support of not less than two-thirds of its members present and voting.
• Thereafter, a law for the creation of AIJS has to be enacted by the Parliament.
• The challenge behind the implementation of the All India Judicial Service (AIJS) is that the filling of vacancies of Judicial officers or Judges in Subordinate Courts and Districts is the domain of the respective High Courts and State Governments.
• Hence, the Government has to take a consultative approach to arrive at a common ground as the different stakeholders have diverging opinions.
• In November 2012, a Committee of Secretaries had approved a proposal for the constitution of AIJS. This was a comprehensive proposal.
• This proposal was included as an agenda item in the Conference of Chief Justices of the High Courts and State Chief Ministers, which was held in April 2013. Some of the States and High Courts wanted changes in the proposal, some of them had favoured the proposal, while some of the States and High Courts had rejected the proposal.
• The proposals received from the State Governments and High Courts were included in the Chief Justices’ conference held in April 2015.
• In 2019, the Government of India had initiated a consultative process for the establishment of the All India Judicial Services (AIJS). Eleven states did not respond to the Government, Five States had suggested some changes, and the Eight States had rejected the proposal of the Government.

Current recruitment process

• Articles 233 and 234of the Constitution of India deal with the appointment of district judges, and place it in the domain of the states.
• The selection process is conducted by the State Public Service Commissions and 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 appointment.
• All judges of thelower judiciary up to the level of district judge are selected through the Provincial Civil Services (Judicial) exam.
• PCS(J) is commonly referred to as the judicial services exam.

The rationale behind the AJIS proposal

• The idea of a centralised judicial service was first mooted in the Law Commission’s 1958 ‘Report on Reforms on Judicial Administration’.
• The idea was:
  • to ensure an efficient subordinate judiciary,
  • to address structural issues such as varying pay and remuneration across states, to fill vacancies faster, and
  • to ensure standard training across states.
• A statutory or constitutional body such as the UPSC to conduct a standard, centralised exam to recruit and train judges were discussed.
• The idea was proposed again in the Law Commission Report of 1978, which discussed delays and arrears of cases in the lower courts.
• In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 15th Report backed the idea of a pan-Indian judicial service, and also prepared a draft Bill.

The judiciary’s view on the AIJS

• In 1992, the Supreme Court in All India Judges’ Assn. (1) v. Union of India directed the Centre to set up an AIJS.
  • In a 1993 review of the judgment, however, the court left the Centre at liberty to take the initiative on the issue.
• In 2017, the Supreme Court took suo motu cognizance of the issue of appointment of district judges, and mooted a “Central Selection Mechanism”.
• Senior advocate, who was appointed amicus curiae by the court, circulated a concept note to all states in which he recommended conducting a common examination instead of separate state exams.
• Based on the merit list, High Courts would then hold interviews and appoint judges.
  • Advocate submitted that this would not change the constitutional framework or take away the powers of the states or High Courts.

The opposition to the AIJS

• A centralised recruitment process is seen as an affront to federalism and an encroachment on the powers of states granted by the Constitution.
  • This is the main contention of several states, which have also argued that central recruitment would not be able to address the unique concerns that individual states may have.
• 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.
• 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.
• The opposition is also based on the constitutional concept of the separation of powers.
• A central test could give the executive a foot in the door for the appointment of district judges, and dilute the say that High Courts have in the process.
• Additionally, legal experts have argued that the creation of AIJS will not address the structural issues plaguing the lower judiciary.
• The issue of different scales of pay and remuneration has been addressed by the Supreme Court in 1993 All India Judges Association case by bringing in uniformity across states.
• Experts argue that increasing pay across the board and ensuring that a fraction of High Court judges is picked from the lower judiciary, may help better than a central exam to attract quality talent.

Why is the government seeking to revive the idea of AIJS?

• The government has targeted the reform of the 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.
• 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.

The Indian Express Link:

https://indianexpress.com/article/explained/explained-lower-judiciary-centralised-recruitment-debate-7607709/

Question:

The Reforms for Indian Judiciary Should start From Grassroots. In the context of the above statement Describe the issues faced and possible solutions for efficient working of the lower judiciary?