Out of the 3 wings of Government, Judiciary has been the most in news with many issues – NJAC, Sabrimala issue, problem of pendency in courts. At times it has faced the flak of over-reaching. A question on Judiciary both in Prelims and Mains is highly probable this year.
Niti Ayog, in its report titled “Strategy For New India @ 75”, has given important suggestions for judicial and legal reforms. The apex planning body has mooted an All-India judicial services examination on a ranking basis to maintain high standards in the judiciary.
Placing in syllabus
Indian Polity :
- Subordinate courts – Structure and functioning in India
- Problems in Subordinate Judiciary in India
- Problems in Judiciary in general
- All India Judicial Services
- Its advantages and disadvantages
- Should India go for it?
- The chief justices’ conferences in 1961, 1963 and 1965 favoured creation of an AIJS, as did various Law Commissions (1st, 8th, and 11th), but the proposal had to be shelved after some states and HCs opposed it, according to a consultation paper prepared in 2001 as part of the National Commission to Review the Working of the Constitution.
- The Apex Court in two of its judgments, in 1991 and 1993, had also recommended setting up of an AIJS
- Subsequently, the Constitution was amended in 1977 to provide for an AIJS under Article 312. The proposal was again floated by the UPA government in 2012 when it got it vetted by a committee of secretaries and prepared a Cabinet note. But the draft bill was shelved again after opposition from HC Chief Justices who found this an infringement of their rights.
Problems with Subordinate courts/ states
- The main problem cited by the states is that the states have used the powers under the CrPC and CPC to declare that a local language can be used in lower courts even for writing orders. Because of this a person form other state may find it difficult to hold the proceedings in other states and it will affect the quality of justice.
- The other issue of conflict is that an all India judicial service may hamper the progression of state judicial service officers.
- It may also end up not taking into account local laws, practices and customs which vary widely across States, vastly increasing the costs of training for judges selected through the mechanism.
- States and high courts are apprehensive of the scheme because, if implemented, it would take away their powers to appoint and administer subordinate judges.
Advantages in AIJS which can solve these problems
- There is a huge shortage of judges in the country. If AIJS is implemented, it will allow a huge number of judges to fill those vacancies through an all-India test.
- Applicants, on being selected through AIJS, could be posted in states where more judges are needed.
- There are many cases where serving judges are sons or daughters of former judges. AIJS will break this nexus. It will give you quality judges, who are experienced and have studied all sorts of cases.
- The argument that the creation of the AIJS and a centralised recruitment process will help the lower judicial services is based on the assumption that the current federal structure, that vests the recruitment and appointment for the lower judiciary in the hands of State Governors, High Courts and State Public Service Commissions, is broken and inefficient.
- Creation of AIJS will attract young and bright law graduates and help build a new cadre that can enhance accountability in the governance system.
- An all-India judicial services examination on a ranking basis can be considered to maintain high standards in the judiciary.
- Another argument in support of the AIJS is that its creation, along with provisions of reservations for the marginalised communities and women, will lead to a better represented lower judiciary.
Disadvantages of AIJS
- The argument that the centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process is flawed and not a guarantee of a solution. For example, the Indian Administrative Service — its recruitments are through the UPSC — reportedly has a vacancy rate of 22%.
- With respect to the reservations, the fact is that several States already provide for reservations in their lower judicial service. Hence centralisation of recruitment processes would not make a difference. For example, at least 12 States, which include Madhya Pradesh, Chhattisgarh, Uttar Pradesh, Rajasthan and Kerala, provide for caste-based reservation in the direct recruitment examination for district judges from the bar. In addition, U.P., Karnataka, Rajasthan and Chhattisgarh provide women with special reservations.
- Karnataka also recognises two additional categories of reservation within caste-based reservation — for those from a rural background and those from Kannada medium backgrounds. Karnataka is an example of how States are best suited to assess the level of intersectional disadvantage of various communities residing in the State.
- Unlike States, the Centre almost never provides reservation for women in the all India services. On the issue of caste, an AIJS may provide for SC/ST reservation along with reservation for the Other Backward Classes (OBC) but it should be noted that a recent Supreme Court ruling has held that SC/STs can avail the benefit of reservation in State government jobs only in their home States and not when they have migrated. The same principle is usually followed even for OBC reservations. Thus, instituting an AIJS would mean that nationally dominant SC, ST and OBC groups would be at an advantage as they can compete for posts across the country, which they would otherwise be disqualified from because of the domicile requirement. Thus an AIJS will have consequences for State-level politics.
- During the Emergency, Parliament amended Article 312 of the Constitution to allow for the Rajya Sabha to pass a resolution, by two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge. Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which law will strip States of their appointment powers. This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures. In other words, if Parliament decides to go ahead with the creation of the AIJS, State legislatures can do nothing to stop the process.
- Under the centralized process of recruitment, if judges from north India were to be transferred to the south, for instance, they wouldn’t be able to understand the language and hence conduct proceedings properly.
How should they be connected?
The solution is to pressure poorly performing States into performing more efficiently and bring about uniformity in all states without going for a AIJS which could harm the federal structure of India.
Test Yourself : Mould your thoughts
(From now on question’s will posted in our free MANIFEST VLOG initiative)
1. Consider the following statements about the procedure to establish AIJS
- Rajya Sabha has to pass a resolution by 2/3 majority of total membership supporting it
- Parliament has to pass a law later which shall be deemed to be an amendment to the Constitution
Which of the above statements is/are correct?
a) 1 only
b) 2 only
c) Both 1 and 2
d) Neither 1 nor 2
2. AIJS for subordinate may prove inefficient. Which of the following statements convincingly support/s this argument?
- Judges recruited may face problem in learning local language
- Prospects of promotion of State recruited judges may get harmed
Select the correct answer using codes below
a) 1 only
b) 2 only
c) Both 1 and 2
d) Neither 1 nor 2