All India Judicial services or AIJS in short refers to the recruitment of judges at the level of additional district judge and district judge via a process that would be central and not state specific. In other words, there would be a common recruitment process for all the states unlike the present process wherein, each state has a separate recruitment process for the post of additional district judges and district judges. The AIJS was initially first proposed by the 14th Report of the Law Commission in 1958. According to data provided by the Union Ministry for Law and Justice, only two state governments, Haryana and Mizoram, and two high courts, Tripura High Court and Sikkim High Court are in favour of the government’s 2015 proposal of creating the AIJS[1]. This concept of AIJS has received criticism on various grounds. Therefore, this article will further discuss in detail the concept, its advantages and disadvantages along with the case laws pertaining to the same.
PRESENT
RECRUITMENT PROCESS OF JUDGES
Articles 233 and 234 of the Indian Constitution of India provides for the
appointment of district judges and give the power to the states concerned in
this regard. The State Public Service Commissions and the concerned High Court
conduct the recruitment process. Candidates go through three stages of the
process i.e., Preliminary Examination (Objective Type), Mains examination
(descriptive) and interview round which is conducted by Panels of High Court
judges of the concerned state. Judges of the lower judiciary up to the designation
of district judge are selected through the Provincial Civil Services (Judicial)
exam or PCS (J).
BACKGROUND
This concept of a centralized judicial
service was proposed for the first time in the Law Commission’s 1958 ‘Report on Reforms on Judicial Administration’.
The main reason
behind proposing this idea was as follows:
In order to
secure a well-structured subordinate judiciary,
For addressing
issues such as varying pay and remuneration across states
To fill
vacancies faster, and standard training across states.
Formation of a
statutory body such as the UPSC in order to conduct a centralized exam to
recruit and train judges was discussed in the said report.
This concept was again proposed in the Law Commission Report of 1978, which
provided the details on 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.
SUPREME COURT’S APPROACH TO AIJS
→Supreme Court in All India Judges’ Assn.
(1) v. Union of India[2]directed the Centre to set up an
AIJS in the year 1992. In a 1993 review of the judgment, however, the
court left the Centre at liberty to take the initiative on the issue.[3] The
Court held that judicial service is not a service in the
sense of ’employment’ and judges are not employees.
→In 2017, the Supreme Court took suo motu cognizance in In re: Central Selection Mechanism for
Subordinate Judiciary[4]of the issue of appointment of district judges, and mooted a
“Central Selection Mechanism”.
•Senior advocate Arvind Datar, gave 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. Datar submitted that this would not
change the constitutional framework or take away the powers of the states or
High Courts.
CRITICISM TO AIJS
The
concept of AIJS has been criticized on the ground that it would lead to
encroachment of the state power which infringes the idea of federalism and state
power granted by the Indian constitution. Another ground for criticism is that
the centralized recruitment of the judges would not be able to solve state
specific issues. Unlike
UPSC, judiciary involves public dealing. Fluency in native language for a judge
is very important in order to deliver just decisions. For example: if a judge
belonging to a northern state where Hindi and English are mostly spoken is
recruited in a southern state, then even if he is given training in the
concerned language, he won’t be able to understand that case before him as
effectively as a judge who belongs to the same state. Caste-based
reservations, and rural candidates or
linguistic minorities in the state, could be at a disadvantage due to AIJS. Since AIJS would dilute state monopoly, it
would also be against the doctrine of separation of powers. The structural
issue is one of the most important reasons behind this proposal won’t be
addressed which is already persistent in the lower judiciary. Supreme Court
in 1993 All
India Judges Association Case by bringing in uniformity across
states has already addressed the issue of varying pay. According to the experts, 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.
CONCLUSION
The recent poll[5] shows the majority of High Courts and states being against the idea of AIJS is evident of the fact that it has more disadvantages than advantages. A recruitment process that has more disadvantages than advantages would lead to ineffective adjudication of matters before the courts. Therefore AIJS would become a barrier to the effective delivery of justice in a system that is already clogged with over 4.5 crores cases As of September 15, 2021.[6]
*The Author is a Student of LL.M at Himachal Pradesh National Law University.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript
[1] Question by: Shri Bidyut Baran Mahato
& Adv. Adoor Prakash, Question to: Shri Kiren Rijiju, Minister of Law &
Justice, Starred Question No. 191, Lok Sabha, Dec 10, 2021.
Saurabh Kumar
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Author- Pragya Chandni*
INTRODUCTION
All India Judicial services or AIJS in short refers to the recruitment of judges at the level of additional district judge and district judge via a process that would be central and not state specific. In other words, there would be a common recruitment process for all the states unlike the present process wherein, each state has a separate recruitment process for the post of additional district judges and district judges. The AIJS was initially first proposed by the 14th Report of the Law Commission in 1958. According to data provided by the Union Ministry for Law and Justice, only two state governments, Haryana and Mizoram, and two high courts, Tripura High Court and Sikkim High Court are in favour of the government’s 2015 proposal of creating the AIJS[1]. This concept of AIJS has received criticism on various grounds. Therefore, this article will further discuss in detail the concept, its advantages and disadvantages along with the case laws pertaining to the same.
PRESENT RECRUITMENT PROCESS OF JUDGES
Articles 233 and 234 of the Indian Constitution of India provides for the appointment of district judges and give the power to the states concerned in this regard. The State Public Service Commissions and the concerned High Court conduct the recruitment process. Candidates go through three stages of the process i.e., Preliminary Examination (Objective Type), Mains examination (descriptive) and interview round which is conducted by Panels of High Court judges of the concerned state. Judges of the lower judiciary up to the designation of district judge are selected through the Provincial Civil Services (Judicial) exam or PCS (J).
BACKGROUND
This concept of a centralized judicial service was proposed for the first time in the Law Commission’s 1958 ‘Report on Reforms on Judicial Administration’.
This concept was again proposed in the Law Commission Report of 1978, which provided the details on 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.
SUPREME COURT’S APPROACH TO AIJS
→Supreme Court in All India Judges’ Assn. (1) v. Union of India[2] directed the Centre to set up an AIJS in the year 1992. In a 1993 review of the judgment, however, the court left the Centre at liberty to take the initiative on the issue.[3] The Court held that judicial service is not a service in the sense of ’employment’ and judges are not employees.
→In 2017, the Supreme Court took suo motu cognizance in In re: Central Selection Mechanism for Subordinate Judiciary[4] of the issue of appointment of district judges, and mooted a “Central Selection Mechanism”.
•Senior advocate Arvind Datar, gave 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. Datar submitted that this would not change the constitutional framework or take away the powers of the states or High Courts.
CRITICISM TO AIJS
The concept of AIJS has been criticized on the ground that it would lead to encroachment of the state power which infringes the idea of federalism and state power granted by the Indian constitution. Another ground for criticism is that the centralized recruitment of the judges would not be able to solve state specific issues. Unlike UPSC, judiciary involves public dealing. Fluency in native language for a judge is very important in order to deliver just decisions. For example: if a judge belonging to a northern state where Hindi and English are mostly spoken is recruited in a southern state, then even if he is given training in the concerned language, he won’t be able to understand that case before him as effectively as a judge who belongs to the same state. Caste-based reservations, and rural candidates or linguistic minorities in the state, could be at a disadvantage due to AIJS. Since AIJS would dilute state monopoly, it would also be against the doctrine of separation of powers. The structural issue is one of the most important reasons behind this proposal won’t be addressed which is already persistent in the lower judiciary. Supreme Court in 1993 All India Judges Association Case by bringing in uniformity across states has already addressed the issue of varying pay. According to the experts, 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.
CONCLUSION
The recent poll[5] shows the majority of High Courts and states being against the idea of AIJS is evident of the fact that it has more disadvantages than advantages. A recruitment process that has more disadvantages than advantages would lead to ineffective adjudication of matters before the courts. Therefore AIJS would become a barrier to the effective delivery of justice in a system that is already clogged with over 4.5 crores cases As of September 15, 2021.[6]
*The Author is a Student of LL.M at Himachal Pradesh National Law University.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript
[1] Question by: Shri Bidyut Baran Mahato & Adv. Adoor Prakash, Question to: Shri Kiren Rijiju, Minister of Law & Justice, Starred Question No. 191, Lok Sabha, Dec 10, 2021.
[2] (1993) 4 SCC 288.
[3] All India Judges Association v. Union of India, Writ Petition (Civil) No. 643 of 2015
[4] Suo Motu Writ Petition (Civil) No. 1 of 2017.
[5] https://www.livelaw.in/top-stories/all-india-judicial-service-2-high-courts-in-favour-13-hcs-against-law-minister-tells-lok-sabha-187361
[6] https://prsindia.org/policy/vital-stats/pendency-and-vacancies-in-the-judiciary
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