Is AIJS the answer to systemic problems faced by the Judiciary? Vidhi report delves deeper

Vidhi Centre for Legal Policy recently released a primer titled All India Judicial Service: A Solution in Search of a Problem?, which examines the history behind the idea of the All India Judicial Service (AIJS) and highlights the significant challenges associated with the creation of the same.The primer mainly deals with issues such as federalism, judicial vacancies, existing reservation policies, local language and customs within states, in relation to the AIJS..Will the AIJS go against Indian Federalism?Looking into the present system, the primer states that the responsibility of appointments and funding for the subordinate judiciary falls upon the state governments, while the Centre has the responsibility of appointing judges to the High Court and Supreme Court.The original idea for the AIJS was included in the 14th report of the Law Commission that was submitted to the government in 1958.“The Law Commission had pitched the idea of the AIJS, with the hope that an All India Service would draw better talent to the District and Subordinate Judiciary at a time when these layers of the judiciary were supposedly facing a talent crunch.”.The Constitution (Forty-Second Amendment) Act, 1976 amended Article 312 of the Constitution to enable the creation of the AIJS, solely for the cadre of district judges, the primer notes.“...Article 312, would presumably amend Articles 233 and 234 of the Constitution which currently vests the power of recruitment and appointment of District Judges, in the office of the Governor of the State acting in consultation with relevant High Court. Any attempt to create the AIJS would necessarily have to shift this power of selection and appointment to some centralized institution, although the identity of this institution remains unclear."Introduction of a centralized examination will adversely affect the federal structure of judicial administration of recruitment, the primer notes. It is further observed that states are best suited to select judges, rather than the Centre..Will AIJS fill up the vacancies of posts at District and Subordinate Judiciary?One of the prominent reasons for the creation of the AIJS was that a centralized service would help fill the approximately 5,000 vacancies in the subordinate courts.The report notes that the vacancies at the level of district judges, which is the only cadre for which an AIJS can be created as per Article 312, is not uniform across all the states. Only certain courts, such as those falling under the jurisdiction of the Allahabad High Court and the Patna High Court, account for the approximately 5,000 vacancies. The vacancy rates for the majority of judicial services under the Rajasthan High Court, the Madhya Pradesh High Court, the Bombay High Court and the Calcutta High Court are hovering between 1% and 12%.The primer also illustrates how most of these vacancies actually lie at the subordinate judiciary and not at the level of district judges. It concludes that an AIJS only for the district judges will not be the solution for vacancies..Representation of marginalised communitiesThe primer addresses the claim made by Union Law Minister Ravi Shankar Prasad that the AIJS will increase representation of marginalized communities. In this regard, it is noted that many states already reserve posts under their State Judicial Service Rules for different communities and classes.Moreover, it is noted that many states reserve posts for classes of persons who are not provided any form of reservation quotas under existing central government norms. For example, women do not have reservation quotas for any central government jobs but many states do provide reservation quotas for women in the state judicial services.Further,"It is very likely that many of these communities who currently benefit from the state quotas, will oppose the creation of the AIJS. This is because the communities recognized as Other Backward Classes by State Governments may or may not be classified as OBCs by the Central Government and can therefore not apply for the posts reserved under a potential AIJS."Service conditionsAn argument in favour of the creation of a central service was that it would help incentivize better talent to join the district and subordinate judiciary due to the prestige associated with the post as well as the lack of parochialism and nepotism in appointments. In response, the primer states that due to the lack of such details in the Law Commission report, it is difficult to critically analyse its claims that state judicial services are underpaid or marred by a nepotistic and inefficient appointment process.On the issue of pay, the Government of India has set up two National Judicial Pay Commissions to recommend pay revisions for state judicial services. Both these Commissions are progressive steps to ensure better service conditions for the state judicial services, the primer notes.“In any event, it must be pointed out that like the State Governments, even the Central Government works on the assumption that there should be parity between members of the executive branch and judicial branch. For example, the Cabinet Secretary, who is the senior most bureaucrat gets paid as much as a Supreme Court judge. So even if an AIJS is created, its salary will be pegged to that of the Central Government’s bureaucracy.”.AIJS well equipped to deal with local language and customs?One of the arguments made against the creation of the AIJS is that judges recruited through this process will not know the local languages of the states in which they are posted. However, the 14th report of the Law Commission had dismissed the language issue as a “faint objection”. The primer further states that the costs of misunderstanding by a judge who lacks native linguistic proficiency would be higher, as compared to an IAS or IPS officer.The primer also points out that such an appointed judicial officer would not be well acquainted with the local customs as well.“Similarly, there is also the question of whether an out of state candidate will be well-versed in the local customs of a state. This is particularly important for civil cases, especially matrimonial or testamentary or communal property cases where local customs can determine final outcomes.”As a matter of fact, certain states like Chhattisgarh and Meghalaya have opposed the creation of the AIJS on this very ground.Judicial IndependenceThe primer states that in the likelihood that an AIJS is created, it would have to be specified as to how such a service would be insulated from the influence of both the Central government and state government, right from the process of appointment to the process of removal. The 14th report of the Law Commission did not deal with this aspect in its report, the Vidhi primer notes.