All India Judicial Service, An Unproven Solution
India is a quasi-federal state having single unified judicial system with three
tier structure, i.e., Supreme Court, High Court and Subordinate courts. Current
turf war is going on between top echelons of the government and the judiciary
over the judicial appointments for subordinate courts by a centralised
recruitment process called All India Judicial Services (AIJS).
Considering the little literature available to explain the rationale for
allowing the state governments to control the power of judicial appointments to
the district and subordinate judiciary till now, its better to look through the
lens of group identities and increase administrative efficiency as Constitution
allows states to choose judges who are best suited to judge a dispute arising in
the unique socio-economic context.
The idea of AIJS was first proposed by 14th Report of Law Commission titled
'Report on Reforms on Judicial Administration' in 1958, which was shelved after
some states and High Courts opposed it until in 1976 ,on the basis of Swaran
Singh Committee recommendations, 42nd Constitutional amendment was brought which
amended Article 312(1) wherein Rajya Sabha by passing a resolution supported by
not less than 2/3rd of its members present and voting, is empowered to make laws
for the creation of one or more All India services including an AIJS, common to
the union and the states.
Even Supreme Court in All India Judges Association vs. Union of India case
directed the union government to take immediate steps for the
formation of AIJS. In 2017, Supreme Court reiterated the need of the same by
taking suo-moto cognizance of the issue of appointment of District Judges and
mooted a Central Selection Mechanism
Before delving deeper into the intricacies of how the system like AIJS could
sustain itself, we need to first understand why there is a recurring demand for
the same in the first place. Law Commission Report of 1987 suggested India
should have 50 Judges per million population as against 20 Judges per million
now. Considering the insurmountable number of pending cases from 2.5 cr cases in
2017 to 3.5 cr presently , exacerbated by the COVID-19 induced lockdown, AIJS
envisages to bridge the underlying gap in judicial vacancies by filling it
routinely and automatically in an objective manner.
Various law commissions have pointed towards parochialism, regionalism and
inefficiency in the recruitment process for state judicial service. The
incumbent central government believes that properly framed AIJS would induct
pool of talented people through all India merit-based selection system and also
bring social inclusion by enabling suitable representation to marginalised
sections of the society by providing quota for women,SC and ST.
The proponents of this idea also believe that this will bring about bottom up
approach in recruitment which would address issues like corruption and nepotism
in the lower judiciary and will further strengthen the justice dispensation
system in the lower levels of society.
A centralised recruitment process in the form of AIJS is seen as an affront to
federalism and basic structure doctrine and also encroachment on the powers of
states granted by the Constitution. It further creates dichotomy between Article
233 and Article 312 as Article 233 lays down that appointments of persons to be,
and the postings and promotion of district judges in any state shall be made by
the governor of the state in consultation with the High Court exercising
jurisdiction in relation to such state. So the states have the apprehension that
AIJS will unsurp their fundamental power to make rules and the appointment of
This idea is seen as a spectre, where an outsider who is not familiar with the
customs and language of the state will hear the arguments and decide the cases.
There is a apprehension as to how a person from North India can hold hearings in
This apprehension has been addressed in the recent round of meetings with the
recommendation that AIJS entrance exam may be held at the zonal levels, i.e.
North, south, east, west and central level so that judges are posted closer to
the place they belong to. Infact even IAS and other Central service officers are
serving in different states overcoming the language barrier after being trained
in local language of the state.
While language barrier has been figured out , there is incorrect diagnosis of
the issues faced, for which AIJS is pitched as a solution . As AIJS brings with
it the element of centralisation to counter the current recruitment procedures,
it carries the underlying assumption that state governments and High Courts are
not performing well in appointing judges.
Whereas figures present a baseless allegation in its entirety as States across
the country are performing in a fairly decent manner. Only certain jurisdiction
such as those falling under Allahabad High Court and Patna High Court account
for approximately 5000 vacancies while states like Maharashtra, West Bengal
recorded a 2.8% and 7.8% vacancy rate and states like Gujarat, Kerala,
Assam, Rajasthan have around 10 % to 30% vacancy rates. Chandigarh has 30 out of
its 30 judicial positions filled up.
Centre's case for AIJS is dented by the whopping 43% vacancies in High Court
where it has a say in quickly filling vacancies. Moreover, if centralisation of
services is to be considered as a one-stop solution, then reconsideration in
that aspect is to be made as well, looking at the number of vacancies going
vacant on yearly basis in various IAS, IPS, Indian Navy and Army recruitments.
The argument that women and lesser represented caste groups would reap enormous
benefits out of this unified system is also logically flawed, as considerable
amount of states like Rajasthan, Kerala, Punjab, Madhya Pradesh have caste-based
reservations and even additional reservation for women in their judicial entrant
Regarding the allegation of inefficiency, from the studies conducted by Vidhi
Centre for Legal Policy (2019) it appears that degree of efficiency in
recruitment to the judicial services varies greatly among different states
wherein many states have built up considerable administrative capacity.
Instead of batting for a cause that will not solve any of the major hindrances
being faced by the lower judicial system, the states need to get their
respective systemic issues cleaned up in order to provide for a transparent and
accountable recruitment mechanisms that they are vying for. This includes
restructuring the delegated authorities that hold influence in the conduct of
lower judicial examinations, bringing uniformity in the yearly or regular
conduct of the examination, providing grievance redressal methods to the
candidates so that the citizens and aspiring judges faith in the lower judiciary
can be automatically restored.
It is time to recognise that AIJS cannot be the answer to these systemic
problems, especially when it is an unproven solution to the proven problems and
reliance been placed on the archaic reports of the Law Commission.
Award Winning Article Is Written By: Mr.Ayush Sarna
Authentication No: NV37463158337-24-1121
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