The vision document titled ‘Strategy for New India @ 75’, released by the NITI Aayog in December last, amongst other things, proposes a spate of judicial reforms. The think-tank has come out batting for the creation of an All India Judicial Service, akin to the other central services like the IAS and the IPS. However, in a reductionist policy format, this document attempts to deal with this complex issue without addressing some crucial aspects of the debate.
The idea of an All India Judicial Service (AIJS) has been deliberated since Independence. In fact, the first law commission — 14th Report on Reform of Judicial Administration — alluded to the need for creating a separate all-India service for judicial officers. This report favoured an AIJS to ensure that subordinate court judges are paid salaries and given perks at parity with government bureaucrats, thereby incentivising the option of the state judiciary as a viable career prospect. Subsequently, a crucial step towards formalising the process for setting up an AIJS was taken under the infamous 42nd Constitutional Amendment during the Emergency in 1976. Herein, Article 312 was amended to confer power on the Rajya Sabha to initiate the process for setting up an AIJS, by passing a resolution supported by two-thirds majority in the upper house. It is noteworthy that the said provision also restrained the composition of such a service to the rank of district judges — defined under Article 236 — while excluding the lower subordinate judiciary.
Given this mandate under Article 312, the creation of an AIJS is, prima facie, constitutionally permissible. Presently, the appointments to the subordinate judiciary are made under Articles 233 and 234 of the Constitution. However, the amended Article 312 commences with a non-obstante clause, overriding these provisions. Therefore, any appointments made to the post of district judges, in terms of a law enacted under Article 312 would not conflict with the existing process. Furthermore, entry 70 of the Union List (List I Schedule VII) provides Parliament exclusive authority to enact a law creating such an AIJS, and all connected matters. Hence, should the Rajya Sabha initiate the process for setting up an AIJS such a law would not be assailable for want of legislative competence.
Despite the constitutional permit, the road to setting up an AIJS is ridden with numerous concerns, which remain unaddressed in the NITI Aayog’s trite proposal. The foremost is the logic offered as the raison d’être by the government think-tank. The AIJS is being proposed as a panacea to cure the chronic vacancy crisis plaguing the Indian subordinate judiciary. Given the limited extent to which the Constitution only permits the appointments of district judges to such a prospective AIJS, it will not magically remedy this crisis. At best, what an all India service potentially offers is a more streamlined and regularised recruitment process for the limited number of vacancies for district judges in the country.
The second concern is the much wider composition of the AIJS proposed by NITI Aayog, than what is permissible under Article 312. The top government think-tank has rather ambitiously pitched an omnibus service to covering entry level civil judges, prosecutors and legal advisers to comprise the service. Such a sweeping mandate would require considerable amendments to the Constitution, especially with respect to the appointments process for the lower subordinate judiciary (that is, all ranks below that of a district judge). These amendments, establishing a centralised appointments mechanism, may arguably be constitutionally untenable and vulnerable to being struck down as flagrant violations of the basic structure doctrine and judicial federalism.
The final contention against the NITI Aayog’s proposal for an AIJS is the oversimplification of a complex legal and political issue into a punchline reform, manifested through its rhetorical brevity. The idea of an AIJS has been significantly contentious within the legal fraternity and other concerned stakeholders. Last year, on a reported internal note prepared by the Department of Justice on the feasibility of an AIJS, there was vehement disagreement by almost half the high courts in the country. Similar challenges have also been witnessed by state judiciaries in two ongoing petitions in the Supreme Court, focusing on filling up the lower vacancies (namely, suo motu W.P. (C) 1 of 2017, and suo motu W.P. (C) 2 of 2018). Be it the need to familiarise oneself with the local languages, customs, and laws of the state where a potential judicial officer will be posted, or the need to ensure reservation for locally domiciled citizens, these central selection mechanisms have thrown up grave concerns impugning their utility and legality as judicial reforms.
In this background, the proposal of NITI Aayog leaves much to be desired, both in terms of research rigour, as well as the presentation and articulation of a complex policy challenge. While policy-vision statements are typically broad and hyperbolic, being the government’s chief policy think-tank, the onus rests on the NITI Aayog to accurately project the scope and limitations of its solutions, in order to facilitate a responsible deliberative process to address these concerns.