The idea of an All India Judicial Service or AIJS seems to be back on the government’s agenda. In a meeting between the Union law minister and state law ministers scheduled in the last week of November to discuss the issue of judicial infrastructure, it seems that the Union government is planning to raise the issue of AIJS as well. This comes off the back of reports from last year that the Narendra Modi government was in the process of drafting a bill to introduce AIJS.
The fascination with AIJS is part of the tendency where centralisation is perceived as the inevitable solution, regardless of the nature of a problem. There is no effort to actually examine the factors contributing to the existing malaise in the system and assess if centralisation is indeed the preferred option. Rather, there is an axiomatic presumption that if there is something wrong in a system that lacks uniformity, the source of the problem must be in its absence.
A brief history of AIJS and its structure
Across various states in India, the subordinate judiciary generally comprises three cadres and there are two points of direct entry. The first point of direct entry is at the level of the Civil Judge/Civil Judge Junior Division, (through written examinations and interviews), which is the beginner’s cadre. From this, officers are promoted to the cadre of Senior Civil Judge and then the district judge. The other point of direct entry is at the level of district judge (through written examination and interview), which is open for advocates who have practised for a minimum number of years (usually seven years).
Under Article 312, the AIJS has been conceptualised as regulating recruitment at the level of district judges and not at the level of Civil Judges/Civil Judges Junior Division. Article 312 authorises Parliament to legislate for one or more of all-India services common to both the Union and the States if a resolution is passed by the Council of States (supported by 2/3rd of the members present and voting) that doing so is necessary or expedient in the national interest. During the Emergency, in 1976, the term ‘All India Judicial Service’ was specifically inserted in the main text of the Article.
Thus, even if the All India Judicial Service is brought into effect through a law, it should only deal with recruitment directly into the cadre of district judges and will not interfere (hopefully) with the recruitment at the entry-level (Civil Judge/ Civil Judge, Junior Division). It is also unlikely to affect the promotion track of officers who join at the entry-level and are eventually promoted to the cadre of a district judge.
Over the years, the idea of AIJS has been endorsed by the Law Commission on multiple occasions (1958, 1978 and 1986). Prior to this, the United Progressive Alliance government had also sought to set up AIJS in 2012. While those who support AIJS argue that it can help reduce pendency, opposition to AIJS has mostly centred around knowledge of the local language and local laws.
False parallels with IPS and IAS
There is an argument that if unfamiliarity with the local language in the case of Indian Administrative Service/Indian Police Service officers can be resolved by language training in the state to which they are posted, it should not be an issue for AIJS officers either. This argument is superfluous and disconnected from reality. The parallel of IAS/IPS officers is not applicable in relation to AIJS for two important reasons.
First, for IAS/IPS officers, proficiency in the local language is required as a desirable element and not as a pre-condition for service. For example, when non-Odia IAS/IPS officers are posted in Odisha, they are made to appear for an exam in Odia after receiving language training. However, even when they fail the exam, which many have over the years, their posting is not halted on that account. In fact, in these services, there is always the option of finding a suitable post for an officer where day to day interaction with the local population is limited and thus weakness in the local language will not be a major impediment.
Second, the level of linguistic proficiency required to function as a judge in the district judiciary is much higher than what would be necessary for an IAS/IPS officer. Judges need to peruse FIR and other written documents on an everyday basis and have to conduct the proceedings throughout the day entirely in the local language. They need to be well-versed with a whole range of legal jargon, which is vogue only in the local language and in no other part of the country. Most importantly, unlike IAS/IPS officers, they cannot take the help of other office staff for translation while they sit on the bench.
Judicial leadership in the state
Officers in the cadre of district judge constitute the judicial leadership of the State and hold all important positions in the judicial administration. For example, positions like Registrar General, Registrar (Judicial), Member Secretary of State Legal Services Authorities, etc, are held only by officers in the cadre of district judges. Also, officers from the cadre constitute the pool, from which around one-third of High Court judges are appointed. To illustrate, in the last 20 years, 19 judicial officers in Odisha have been appointed as judges in the Orissa High Court. Out of the 19, nine joined the subordinate judiciary at the entry-level and reached the cadre of district judges through internal promotion. Ten officers were recruited directly as district judges. Thus, when the cadre of district judges has people from other states, it will also impact the opportunity for judicial officers in the parent state to be appointed to the High Court.
Uniform and standardised tests in the context of a diverse population have the potential to amplify the benefits of entrenched privileges in a society. In the context of legal education, the quality and capacity of institutions vary wildly across the country. There are also stark differences in terms of opportunities to gain thorough exposure to legal practice. Apart from the inherited benefits arising out of gender, caste and other such social indicators, the domicile of individuals has a direct bearing on the resources they can access. Such tests also incentivise the culture of coaching institutions, which creates barriers amongst candidates who cannot avail such facilities by reason of finance or geography.
This is not to say that the effects of such disparities are not already in play within the different regions of individual states. However, a nationalised competition can have the effect of completely pushing out candidates from disadvantaged regions already struggling to compete within their state.
AIJS is a square peg in a round hole
To support the idea of AIJS as a solution to the issue of pendency is to put a square peg in a round hole. While pendency is definitely a major concern, to suggest AIJS as a panacea is to willingly ignore the complexity of the pendency issue. There is sufficient research to suggest that the factors contributing to pendency have more to do with issues inherent in the judicial process than with vacancies. Talking about solutions to pendency without an empirical understanding of judicial productivity is pointless.
Also, there is no guarantee that the creation of AIJS will automatically result in filling up these vacancies. There has been no meaningful study of why we do not have a sufficient number of eligible candidates competing for judicial services and why states might be struggling to fill the vacancies. Instead, the creation of AIJS will require a mammoth reset of the existing system. It will require harmonisation of different service conditions prevalent in various states, along with equalising the standards of selection. Ultimately, AIJS is likely to create more problems and solve none of the existing ones.
The author is a Professor of Law at National Law University, Odisha, and was a Fulbright Post-Doctoral Research Scholar at Harvard Law School (2019-2020). Views are personal.
(Edited by Srinjoy Dey)