ABOUT THE AUTHOR
This Article is written by Aisha Ali, a student at Jamia Milia Islamia.
With the Government finalizing the draft for the creation of All-India Judicial Service, the issue is again receiving support as well as support from various High Courts, Jurists and academicians. In this article, the author has elaborately discussed the need for the creation of a centralized uniform Judicial Service for the subordinate judiciary. The authors has brought to light the apprehension that has been coming forth in the creation of All-India Judicial Service and recommendation of various law commissions and Chief Justice Conference reports to overcome those. At the end, the author has concluded the topic by favoring the creation of the service after the consideration of all valid points.
India has over 670 district courts. The data as of November 2019 shows that over 3.14 crore court cases are pending at the district and subordinate court levels, but the strength of judges has barely increased since 2011. The current data of pending cases can be seen on National Judicial Data Grid, it has the status of over 12.23 crore cases. Based on the 2011 census, the judge to population ratio is about 17.72 judges per 10 lakh people. This is seven times worse than the US. Both the SC and law commission (120th Report) have recommended that the strength of judges per million should be 50. The three-fold increase in current strength looks like a pipedream looking at the vacancies and infrastructure. As per the 101st Report on Demands for Grants (2020-2021) of the Ministry of Law and Justice, there are 24018 sanctioned posts of judicial officers in India, out of which 5146 are vacant. To fill these vacancies, to balance the ratio of judges to people and to attract young talented aspirants from all over India, there is a dire need to create a system which can resolve all these problems. The government is all set with the bill to create all-India Judicial Commission, which can conclude all the above mentioned problems. However, the recommendation to create this centralized structure has a long history of vociferous support but remained an unfinished endeavor due to fierce opposition. All- India Judicial service is a proposal to conduct a centralized exam for Indian Judicial Service in the lines of Indian Administrative Service by Union Public Service Commission for the subordinate Judiciary not below the rank of District Judge. Currently, these exams are conducted by State Public Service Commission by the aid and advice of High Curt of the concerned states. The appointments to the state judicial services below the rank of district judge are made by the governor in consultation with the State Public Service Commission and the High Court. High Courts are independent of administrative control of the SC.
HISTORICAL ANTECEDENTS AND VIEWS SHOWING ATTEMPTS TO CREATE ALL INDIA JUDICIAL SERVICE: A TIMELINE
The debate for the creation of a centralized cadre for the recruitment and appointment of district judges was first mooted in the year 1958 by First Law Commission of India which recommended for All India Judicial Service (AIJS) in the lines of All India Service in the interest of efficiency of subordinate judiciary. Since then, there has been a long and cheered history for the creation of All India Judicial Service. This recommendation of Law commission was considered in Law Minister’s conference held in 1960 but later held to be not practical.
The periodical conferences of various High Court Judges called by chief Justice of India in the year 1961, 1963 and 1965 favored the recommendation to form All India Judicial Services. The Chief Justice Conference of 1965 even made a firm suggestion to the government to take early steps in the creation of AIJS. Views were taken from various States and it could not be implemented as more than half of the states disapproved the proposal.
The Eight law Commission while examining the ‘delay and arrears’ in the trial court suggested the formation of AIJS of the same rank and pay scale as Indian Administrative Service. It reiterated the recommendation of First Law commission that it would attract young talent to map it.
The 42nd Amendment Bill, 1976, in its clause 45 has dealt with amendment to Article 312 of the constitution relating to All India Service to provide for the creation of an All India Judicial Service by a Parliamentary law.
The seventy-seventh and One-hundred and sixteenth Law commission report has also recommended for the creation of AIJS. The One-Hundred and sixteenth commission has broadly addressed all the problems and its solution along with the structure, plan and views of jurists and academicians, in the creation of AIJS.
The Supreme Court in the case of All India Judges Association v. Union of India has also endorsed the idea that AIJS should be set and Government must take necessary steps, referring to the observations of the State Reorganization Commission that creation of such all-India service as a “major and compelling necessity”.
Over a period of year, many union law ministers and others has strongly suggested for the creation of All-India Judicial Commission but it could not be done without the recognition of states and various High Courts.
Recently, with the centre finalizing a draft for the creation of All-India Judicial Commission, the debate is again creating a buzz.
APPREHENSION FOR A PAN-INDIA TEST FOR JUDICIAL EXAM OF DISTRICT LEVEL JUDGES
There has been a lot of opposition for the creation of All-India Judicial Commission, which shall be for the lower judiciary not below the rank of District Judge. A centralized test for India’s lower judiciary has inherent weaknesses:
It promotes elitism and adversely affects diversity. Even in the US, it has been found that mostly rich, white and children of politically powerful families make to the common tests.
Inadequate knowledge of the regional language- In the exercise of power conferred by section 272 of Code of Criminal Procedure, 1973 and sub-section (2) of section 137 of Code of Civil Procedure, 1908, most of the High Courts have declared local or regional language as the language of the court and proceedings takes place in that particular language. It is also true that witnesses’ statements are often recorded in the local language to draw evidence. It is possible that when a centralized exam common to all is introduced, a person who has cleared an exam in a particular language may find his posting in state having entirely different languages. The centre has argued that when IAS or IPS can cope-up with the problem, there should be any opposition on this point for Judges too. The centre has failed to notice that IAS and IPS are trained to adapt the local environment and they often come in direct contact with the local masses. On the other hand, judges are not allowed to come in contact with masses and the cases are generally presented by lawyers in local language.
Local laws and custom- Every state has its own law and custom and thus every state conducts exams for that particular law. For example if a person is appearing for MP judiciary, he will have to get accustomed with land revenue code, accommodation act to clear the exam. AIJS has failed to take concern of these two issues.
Another issue is regarding the age bracket of 28-35 years and the prior experience of 7 years that the exam seeks under its qualification criteria. The requirement for 7-years of experience would defeat the purpose of the legislators which was more participation from graduating students. The person can be at the same position after freshly graduating from law school. Therefore, the age restriction and a prior 7-years’ experience would be detrimental to the aim of gauging the interest of the young law graduates.
Promotional avenues of members of state judicial service- The other ground for opposition has been that promotional avenues for the member of State Judicial exam would be severely curtailed, causing frustration to young talents and reducing their chances for the recruitment in State Judicial service due to age bracket.
Control of High Court (Federalism Debate) - Thought Constitution of India has not mentioned the term ‘Federalism’ anywhere but Supreme Court has declared ‘Federalism’ as the ‘basic structure’ of the constitution. Though federalism has no single defined definition, it is often defined as ‘division of powers’ between two orders of government specially, Parliament and State legislature. India has integrated judiciary for the purpose of adjudicating the law but the responsibility of appointments and funding for the District and Subordinate Judiciary falls upon the State Governments. Setting up of AIJS would take away the power of appointments and funding from State government and High Courts, thus, violating the ‘basic structure’ and also the court’s decision in the case of Keshvananda Bharti v. State of Kerala that the basic structure cannot be amended.
Another argument in this comes that it would also result in the violation of separation of powers thereby curtailing independence of judiciary as affairs would be handled by administrative body. Article 233-237 under the head of “subordinate courts” were drafted with the aim to protect the subordinate judiciary from the influence of executives. The word ‘control’ as used in article 235 has been given much interpretation by the court. The Supreme Court while defining the ambit of word ‘control’ in article 235 held that it covers entire spectrum of administrative control and is not confined merely to general superintendence and arranging day-to-day work of the subordinate court. Thus, the article comprehends control over conduct and discipline of district judges.
POSITIVE APPROACH TO THE APPREHENSIONS: REMOVAL OF DIFFICULTIES
As far as the apprehension of local language and custom is concerned, the union government has resolved the issue by adopting UPSC pattern and conducting the exam in 22 listed languages listed in Schedule 8 of the constitution. For local laws, there should be an optional paper which shall be consisted of local laws and custom of a particular state.
For the apprehension about whittling down the control of High court over subordinate Courts lacks legitimacy as it would remain undisturbed. The power that has been vested under article 235 to the High Court to control the subordinate judiciary will remain intact and they will be informed about recruitment, posting, proportion, if there is any problem and if it needs any changes. This will instead strengthen the control instead for corroding it. Also a provision can be made in section 2 of Administrative Tribunals Act, 1985 that administrative Tribunal have no jurisdiction over service. Even in the absence of such provisions, the Supreme Court as the guardian of basic structure ensuring independence of judiciary in the case of Chief Justice, Andhra Pradesh High Court v. L.V.A. Dikshitalu denied jurisdiction to Andhra Pradesh administrative tribunal over subordinate judiciary and staff of High Court.
Another argument came, that natives of a particular state will be posted in another state where he has little or inadequate knowledge about local customs and language. It the declared policy of the Government of India that one-third of the judges of High Court is from outside the jurisdiction of the state. The chief Justice should not be of the same state where the jurisdiction of state prevails is not only accepted but being implemented in almost every state. The same can be accepted and implemented for subordinate judiciary too.
The morale argument that All-India Judicial Service can be set up not below the rank of District judges and it will impair the chances of promotion of subordinated judges is also based on a erroneous assumption. Going by the definition ‘district judge’ in the article 236 (a), it says:
the expression district judge includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;
This can alone be taken into consideration for the inclusion in Indian Judicial Service.
As far as promotional avenues for subordinate posts as munsif magistrate, civil judges are concerned; the principle of service jurisprudence cannot be refuted. It says that a person already in service cannot be disqualified from taking examination for direct recruitment on the ground of being age- barred. The judgment of Supreme Court in the case of O. P. single v. Union of India shows that direct recruitment to the cadre of district judge subordinate was provided by the rules for Delhi Higher Judicial Service can also be taken into consideration. Besides all posts in the cadre of district and session judges are not available to promotees of lower rank. So there is hardly any chance that the promotional avenues to the subordinate judges will be impaired.
Conserving all the points mentioned above, there should not be any apprehension for the creation of All-India Judicial Service. The new unified structure would instead help to overcome the existing difficulties in the service. The only problem left would be a dominance of elite class in the service. The government can overcome that too by providing easy access to the education for middle and lower class. Therefore, the need for All-India Judicial service should be seriously taken into recommendation by all the states and High courts and relevant provisions should be made to make it even more effective.
Kesavananda Bharati Sripadagalvaru v. State of Kerala (1973) AIR SC 1461; SR Bommai v Union of India (1994) 3 SCC 1.
State of west Bengal v. Nigendra Nath Bagchi, AIR 1986 SC 447.
Chief Justice, Andhra Pradesh High Court v. L.V.A. Dikshitalu, AIR 1979 SC 193.
O. P. single v. Union of India AIR 1984 SC 1595.
All India Judges Association v. Union of India (2002) 4 SCC 247.
Constitution of India, 1950.
Civil Procedure Code, 1908.
Code of Criminal Procedure, 1973.
LAW COMMISSION REPORTS AND COMMAND PAPERS
Law Commission of India, Reform of Judicial Administration (law com. No. 1, 1958) fourteenth report, Vol I, Chapter 9, Para 59, p.184
Law Commission of India, Delay and arrears in Trial court ( Law Com No 77, 1978) Seventy seventh report, chapter 9, para9-6, p 32.
Law Commission of India, Formation of an All-India Judicial service ( Law Com No. 116, 1986) p. 7-32.
Govt. of India, Demand for Grants (Ministry of Law and Justice 2020-21).
Over 3.5 Crore Cases Pending Across Courts in India, Little Change in Numbers Since 2014, THE WIRE, Nov. 27, 2019.
Faizan Mustafa, Why a NEET-like common test for lower judiciary is not a good idea, HINDUSTAN TIMES, Aug. 09, 2017.
Government Finalizing Draft Bill to Set up All-India Judicial Service: Report, NDTV INDIA, May 26, 2020.
Prashant Reddy T, Ameen Jauhar, “A Primer on the All-India Judicial Service”, (2019) < https://vidhilegalpolicy.in/wp-content/uploads/2019/12/AIJS_digital-1.pdf> accesed 10 September 2020.
WEBSITES AND BLOGS
Ajay Kumar Shukla, ‘Govt. plans to conduct judicial exams in 22 languages’ (ET Government.com March 19, 2020) <https://government.economictimes.indiatimes.com/> Accessed 11 September 2020.
Over 3.5 Crore Cases Pending Across Courts in India, Little Change in Numbers Since 2014 ( The Wire November 27, 2019) < https://thewire.in/law/pending-court-cases> accessed 11 September 2020