Only 2 states, two HCs are for all-India judicial service: Union Law Ministry

The AIJS is a national-level recruitment process for district judges on the lines of the Union Public Services Commission proposed by the Central government to “strengthen overall justice delivery system”.

However, under the Constitution, the power to make appointments to the lower judiciary vests with the states. Currently, states conduct their own examinations in consultation with high courts, based on vacancies that arise. The AIJS has been seen as a dilution of state’s powers.

The Centre is likely to give a fresh push to the contentious reform, placing the proposal on the agenda of a proposed meeting of law ministers from all states and union territories to discuss judicial infrastructure in the lower judiciary. Union Minister for Law Kiren Rijiju had said in November that a fresh attempt will be made to bring states on board.

In a written response to a question on whether the government is facing any opposition from states on setting up AIJS, the law ministry said eight states — Arunachal Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, Maharashtra, Meghalaya, Nagaland and Punjab — have written to the government opposing the proposal. While five states have sought changes in the government’s 2015 proposal, 13 states did not respond.

“Arunachal Pradesh State is of the view that considering the fact that Arunachal Pradesh is purely a tribal state with its own peculiar and distinct tribal customs and ethos and the modes of rendering justice varies from tribes to tribes, the proposition of having a common judicial services would not be the right proposition and would create chaos and instability in their administration of justice,” the government said in its reply.

Among states that have sought changes with the proposal, the government said Bihar has sought “major” changes, Chhattisgarh “wants only 15% of vacancies at level of Additional District Judge and above from the Bar to be filled up through AIJS” and Orissa is “insisting on minimum experience of ten years and upper age limit of forty years.”

According to government data on high courts, only the High Courts of Sikkim and Tripura are in favour of AIJS. While 13 High Courts have opposed the proposal, six high courts — Allahabad, Chhattisgarh, Himachal Pradesh, Meghalaya, Uttarakhand, Manipur — have sought changes in the proposal and the High Courts of Gauhati and Madhya Pradesh did not respond.

The Andhra Pradesh High Court, Bombay High Court, Delhi High Court, Gujarat High Court, Karnataka High Court, Kerala High Court, Madras High Court, Patna High Court, Punjab and Haryana High Court, Calcutta High Court, Jharkhand High Court, Rajasthan High Court and Orissa High Court have objected to AIJS, the government said.

While the Bombay High Court cited a 2014 full court resolution that rejected AIJS, both Calcutta and Punjab and Haryana High Courts made a case of AIJS diluting federal structure.

“The constitution of All India Judicial Service will seriously erode the federal structure contemplated by the Constitution. The constitution of ‘All India Judicial Service’ with power of disciplinary action by the President (Central Government) completely oust the control and supervision of the District Courts vested with High Court under Article 235 of the Constitution,” was the reply stated by the Punjab and Haryana High Court, according to the government.

The objections of a majority of high courts is significant as the Supreme Court in 2017 also batted for a centralised recruitment process of district judges.

In August 2017, the Supreme Court under Chief Justice of India J S Khehar took up the issue suo motu, and circulated a concept note to all states stating that the move was only to ensure that vacancies were filled in a timely manner. “We assure you that we will not tamper with the federal structure,” CJI Khehar had said in court.

However, in affidavits filed before the Supreme Court, West Bengal, Kerala, Andhra Pradesh and Uttarakhand opposed AIJS. Their key concerns were the dilution of the federal structure and that the proposal does not address structural issues plaguing the lower judiciary, including low pay and fewer chances of being promoted to the higher judiciary.