With an overwhelming majority of states and high courts not in favour of establishing an All India Judicial Service or the AIJS — a national level test for district judges on the lines of the Union Public Service Commission — the Narendra Modi government’s ‘idea’ of improving judicial infrastructure will have to wait.
To understand the pros and cons of the proposed AIJS, let’s know a few things about the All India Services (AIS) and its creation, the broad blueprint that the government wants to emulate in the judiciary.
When the Secretary of State for India wanted to wind up the Indian Civil Services (ICS) before the transfer of power, Sardar Patel convened a meeting in October 1946 with Premiers of the eleven provinces: Assam, Bengal, Bihar, Bombay, Central provinces & Berar, Madras, NWFP, Orissa, Punjab, Sindh, and United Provinces to discuss the future of the ICS and IP (Indian Police). Eight of the eleven provinces (apart from Punjab, Bengal, and Sindh) agreed that it was imperative not only to retain the ICS, and IP (as the IPS was then known), but also to constitute IAS and IPS as All India Services, besides having a common exam for the AIS and Central services, including the Foreign Service, to be conducted by the Union (Federal) Public Service Commission.
Talent hunt for lower judiciary
The third AIS, the Indian Forest Service, was constituted in 1966, based on ‘obiter dicta’ of the States Reorganisation Commission (1956), which also stressed the need for AIS officers to work in rotation between the Union and state governments. In 1958, the Fourteenth Law Commission recommended the setting up of an AIJS, with the hope ‘that an All-India Service would draw better talent to the district and subordinate judiciary at a time when these layers were supposedly facing a talent crunch’.
Prior to Independence, these positions were manned by members of the ICS and the State Civil Services. They worked their way up from district judges to high court and the Supreme Court as well. In fact, India’s 10th Chief Justice, Kailas Nath Wanchoo, was a member of the ICS.
However, the general feeling in the Indian political establishment was that after Independence, the states will evolve their own mechanisms for criminal and civil justice administration as the separation of powers between judicial, executive and revenue courts had been a long-standing demand of the Congress party, right from the first session of 1885. Thus, Article 50 was incorporated in the Directive Principles which required ‘states to take steps to separate the judiciary from the executive in the public services of the State’. While Madras, Bombay and Mysore took immediate steps in this direction, the separation of judicial and executive in UP, Rajasthan, MP and Punjab took much longer. Moreover, the high courts felt that in addition to the power of judicial review, they needed an effective say in the administration of the district courts. Perhaps this was the context in which the Law Commission made this recommendation.
During the Emergency, the 42nd constitutional amendment empowered the Rajya Sabha under Article 312 to create AIJS, solely for the cadre of district judges (as defined under Article 236). This was different from the proposal of the Law Commission, which aimed at creating an AIJS for all cadres that form the district and subordinate judiciary.
In 1992, the Supreme Court while adjudicating the All-India Judges Association case, passed a direction regarding the creation of an All-India Judicial Service as well as an All-India norm for the perquisites and pay of judicial officers. In 1999, the First National Judicial Pay Commission (Shetty Commission) asked all the states and high courts for their views on the AIJS. In 2002, law minister Arun Jaitley said the ‘consultation was in progress with States and HCs and no definitive time frame could be given’.
Between 2004 and 2014, the stand of the UPA government on the issue remained ambivalent.
NDA and AIJS
When the NDA came to the helm, it enacted the 99th amendment for the creation of a National Judicial Appointments Committee (NJAC) which would have assumed responsibility for filling up all judicial positions in the country, but it was struck down in October 2015 by the Constitution Bench of Supreme Court . While the Supreme Court did not want the ‘collegium system’ to be disturbed for the high courts and the Supreme Courts, with regards to appointment of district judges, it took suo moto cognizance of the issue in 2017 and appointed senior advocate Arvind Datar as an amicus curia. Datar recommended a common examination for AIJS to be conducted by an independent commission, but the final interviews of candidates opting for a particular state would be entrusted to the respective high courts. It was felt that once the recruitment is done on an annual basis (as is the case with UPSC), the backlog of vacancies would be settled in a fixed time frame. In March 2018, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice also recommended the creation of an AIJS.
Last month, Union Minister Kiren Rijiju said: “In Government’s view, a properly framed All India Judicial Service is important to strengthen overall justice delivery system. This will give an opportunity for induction of suitably qualified fresh legal talent selected through a proper all-India merit selection system as well as address the issue of social inclusion by enabling suitable representation to marginalized and deprived sections of society”.
Higher judiciary the main opposition
Efforts are still on to get a consensus on this issue, because given the current composition of the Rajya Sabha, a two thirds majority vote in favour of AIJS is rather unlikely. However, it must be placed on record that the opposition to the AIJS does not come from the bureaucracy or the legislatures. It comes from the topmost echelons of judiciary, which does not want to change either the opaque system of collegium or their discretion and assertion over the district courts.
Sanjeev Chopra is a historian and Festival Director of Valley of Words. Till recently, he was the Director of the Lal Bahadur Shastri National Academy of Administration. He tweets @ChopraSanjeev. Views are personal.
This article is the fourth part of the ‘State of the State‘ series that analyses policy, civil services, and governance in India.
(Edited by Anurag Chaubey)