Dhananjay Dutta Shrimali and Lokendra Singh Chouhan
Central Government is planning to come up with a draft policy for All India Judicial Service ridden with some problem, which makes it another form of wasted effort failing to accomplish the objective it seeks to achieve.
The formation of an All India Judicial Service (AIJS) has a long and cheered history. Since the matter is gaining momentum as the Central Government finalizing a draft bill to set up All-India judicial service, a bill that lingered in the backdrop of the judicial reforms debate for sixty-two years. This bill aims to create a centralized cadre of district judges and transfer the recruitment and appointment powers of these judges from the High Courts and State governments to a centralized network as exists for other All India level exams. It is believed that this bill will help to fill the vacancies existing in the Judiciary.
The AIJS was first proposed by the 14th report of the Law Commission in 1958. This report recommended the setting up of the AIJS with little detail on the structuring of it. They hoped that creating the AIJS would attract the best talent from the country. Then in 1976, Article 312 drawing a parallel to the process of selection of officers for the I.A.S was amended in the Constitution by the 42nd Amendment to create AIJS for the appointment of District cadre Judges. The 77th and 116th law commission report also recommended the creation of an AIJS. Moreover, the 116th Report has submitted the structure, plan, views of academicians, jurists, and the logic behind the AIJS. It mentioned that 40% of its strength through the promotion of Subordinate judges, 40% through direct recruitment, and 20% elevation from the Bar. The rules for the service, the examination, and promotions were to be controlled by a proposed National Judicial Service Commission.
The Hon’ble Supreme Court of India also endorsed the same in the All India Judges Association vs. Union of India’ case (1993) laying down that AIJS should be set up and the Union of India should take appropriate steps in this regard, referring to the observations of the State Reorganization Commission that creation of such all-India service as a “major and compelling necessity”. In the last few years, even the Union Law Minister, along with others, have repeatedly voiced their support for the creation of the AIJS and recently the Central government responded by preparing a draft policy of the AIJS. However, the proposed policy has faced a mixed response from the legal profession.
The AIJS is meant for the selection of district-level judges as opposed to the state-judicial examination that inducts for the lower judiciary like the Munsif courts and Additional Chief Judicial Magistrate, Additional Chief Metropolitan Magistrate, Magistrate First Class, Civil Judge-cum-Magistrate First Class, etc. The outline of the released policy includes the procedure of selection, qualification criteria of the selected candidates. A lawyer or a graduate engaged in the teaching profession at a recognized law institute with seven-years of experienced are qualified for taking the AIJS exam. A serving judge is also qualified for the examination with the same working experience. Another important aspect of the policy is the age bracket of 28-35 years of qualification for the candidates opting for the AIJS examination.
However, a prior assent of all High Courts is required for the implementation of the policy. Unfortunately, the HCs across India have shown a blank face to the idea of a National Judicial Selection Examination every time it was proposed. An alleged reason is that the High Courts do not wish to lose administrative control over selection. This makes it a challenging job for the Law Ministry as even earlier because in 2012-13 a committee of secretaries backed the idea of a national common test for judicial appointments. The same received a mixed response from the states and their judiciaries with 13 states and 18 High Courts either declined the idea or sought several changes to it.
Apart from that, the policy itself has some major issues due to which it has failed to gain a positive reaction from the legal professionals yet again. The first issue is regarding the age bracket and the prior experience that the exam seeks under its qualification criteria. The requirement for 7-years of experience would defeat the purpose of the legislators which was more participation from graduating students. Currently, the average age of a graduating student is 24-26 years of age, which creates a challenging situation where the legislators believe that a person of 31-33 years of age will attempt for the exam when s/he can be at the same position by attempting state judicial examination after the graduation. Therefore, the age restriction and a prior 7-years’ experience would be detrimental to the aim of gauging the interest of the young law graduates.
Another criticism of the bill is the non-consideration of language barrier specifically in non-Hindi speaking states where English is not that much popular. Eventually, the union government resolved this issue by making a further addition to the policy by conducting the examination in 22 listed languages in schedule 8 of the Constitution of India and adopting the UPSC pattern. However, the problem of inter-state appointments still exists where someone from one state cannot be appointed in another state. In that case, the AIJS comes on the lines of State-Judicial examination, therefore, it has not brought some radical change in the existing examination structure apart from some areas.
As per the 101st Report on Demands for Grants (2020-2021) of the Ministry of Law and Justice, there are 24018 sanctioned posts of judicial officers in India, out of which 5146 are vacant. Jurisdictions such as those falling under the Allahabad High Court, The Patna High Court, and The Madhya Pradesh High Court contribute 42.7% to the total vacancy in India. However, other High Courts account for a very less proportion. The vacancies in the Subordinate courts are much higher than the District courts. Thus, AIJS will fill only a limited percentage of the total vacancies. The objective of fulfilling the vacancies is hollow because the majority of vacancies are from these courts, and changing the existing judicial structure for their inefficient performance would be a detrimental step, which may yield negative results.
The AIJS has been denoted as the solution for attracting the best talent to the judiciary, for the vacancies, etc. However, the language barrier, the number of vacancies in the subordinate judiciary, and others are some of the issues that can’t be answered by this proposal.
Firstly, to solve the problem of the Language barrier, the candidates can fill the preference list for the state they want to join. And a small test relating to the language can be conducted before or during the interview. The Final Allotment list will be based on the Merit cum preference basis.
Secondly, the Union government and the Judiciary have locked horns over the new draft on AIJS and it is important to get the assent of all the High Courts before implementing the new examination structure. To resolve this wrangle the union government can assure accommodating every High Court’s issue with the AIJS policy by making a central committee, which would have the Registrar (Examination) of every High Court as its member in the advisory body.
Thirdly, with regards to the issue of higher subordinate courts’ vacancies, the AIJS can be conducted into two parts – One exam for the lower judiciary, which would fill the posts for Subordinate courts, and other for the higher judiciary which will solely for District courts. The amendment has to be made in Article 312 which allows AIJS recruitment only for District Judge cadre, and not for Subordinate judiciary. Amending this Article will allow introducing this policy to conduct this exam both for District and Subordinate Courts
In conclusion, these suggestions may help the Central government in fulfilling the object and purpose of the AIJS which it seeks to aspire or achieve.
Dhananjay is a student at the National Law School of India University, Bangalore. Lokendra is a student at National Law University, Delhi.
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