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.
Law Minister Kiren Rijiju has called a meeting of state law ministers in the last week of this month 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.
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.
Articles 233 and 234 of 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 the lower 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 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 was 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.
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 Arvind Datar, 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. Datar submitted that this would not change the constitutional framework or take away the powers of the states or High Courts.
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 the 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 are picked from the lower judiciary, may help better than a central exam to attract quality talent.
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The government has targeted the reform of 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.
Officials have said that 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.