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All India Judicial Service Need Of the Hour

Finally the Centre has decided to get its act together and constitute the All India Judicial Service (AIJS) about which we have been long hearing. AIJS is the crying need of the hour and must be debated, discussed and deliberated fully so that all its best features are included and all possible drawbacks are deleted before it is finally created. Prime Minister Narendra Modi while addressing a function to celebrate completion of 50 years of Delhi High Court on October 31, 2016 sought a debate on creating AIJS which has been hanging fire right since independence. It is most tragic to see that AIJS has always been mocked at by the ruling party in the Centre. So if now the AIJS is constituted, it shall be a great achievement.

Most recently, the Central Government after holding a meeting presided over by the Law Minister Ravi Shankar Prasad had sought advice of its two top law officers – Attorney General Mukul Rohatgi and Solicitor General Ranjit Kumar – on question of constituting AIJS just on the lines of All India Civil Services. Truly speaking, formation of AIJS is an issue that has been hanging fire since 1960 due to differences of opinion between states and judiciary. No doubt, Modi government has given fresh impetus to the long-pending proposal to set up the AIJS.

It is most heartening to see that Justice AP Shah (Retd.), Former Chief Justice of Delhi High Court and Former Chairman of Law Commission, made a strong argument in favour of the creation of AIJS, in an effort to make judiciary more accountable, professional and equitable. He based his argument on the following grounds: (i) the quality of Judges at present is average and the best talent is not attracted to judiciary; (ii) vacancies arise due to the inability to attract meritorious candidates as the state judiciaries are not rewarding enough, therefore Judges in the High Courts, who are promoted from subordinate judiciaries are also average; (iii) adjudication is a specialization; (iv) AIJS would lead to efficiency in judicial processes.

It is quite easy to figure out how our judicial system, which is currently on the verge of collapsing due to a whooping number of pending cases, will benefit if AIJS is created soon. Be it noted, move for an AIJS didn’t curry much favour with the higher judiciary in the past. The Chief Justices Conferences in 1961, 1963 and 1965 favoured the creation of an AIJS, but the proposal had to be shelved after some States and High Courts opposed it. To put things in perspective, subsequently, the Constitution was amended in 1977 to provide for an AIJS. 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 after fierce opposition from the High Court Chief Justices. In 1972, the then Chief Justice of India had again endorsed the creation of AIJS.

If the Centre is really serious to combat the more than three and a half crore cases pending in lower courts all across the country, it has just no other viable option left before it but to start the AIJS. Ad hoc measures like re-employing retired judicial officers won’t serve much in the longer run even though it may provide some relief. In the absence of AIJS, it is becoming increasingly difficult to maintain the required judge strength in district courts and High Courts.

The Delhi High Court had asked the government on July 11, 2016 to consider a lawyer’s representation seeking setting up of an AIJS on the lines of the Indian Administrative and Police Services. A Bench of Delhi High Court comprising of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal had asked the Ministry of Law and Justice to take a decision on the petitioner’s representation and inform him.

Let us quickly recapitulate important events associated with AIJS:

03-01-1977: AIJS inserted into Article 312 by the Constitution (Forty-second Amendment) Act, 1976. The purpose of the constitutional amendment was to ensure uniformity in standard of selection and to attract the bright and young talent in judiciary so that fair trial and speedy justice could be made available to every citizen throughout the country.

27-11-1986: Law Commission submitted in its 116th report titled “Formation of All India Judicial Service” to the Union Law Minister and explained in details the importance and urgent need for the All India Judicial Service.

10-4-1995: Supreme Court in WP(C) 1022 of 1989, All India Judges Association v. Union of India, directed the Union Government to take immediate measures for setting up the AIJS.

10-2-1997: Union Government submitted a status report on constituting AIJS in the Apex Court.

24-10-2009: CJI endorsed the All India Judicial Service in his inaugural address in a conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” in Delhi.

25-10-2009: Conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” unanimously adopted the resolutions presented by the Union Law Minister for establishment of AIJS.

19-05-2014: CJI RM Lodha on eve of assuming charge reiterated the need for AIJS. He said: “Setting up of an All India Judicial Service, being planned by the government on the lines of the IAS and IPS for recruiting judges for subordinate courts, should be given serious thought. A national consensus is lacking as some States have raised reservations on the framework of the AIJS.
Those States should also be brought on board.”

It must be noted that the Law Commission of India has four times – in its 1st, 8th,  77th and 116th reports called for an AIJS. The Apex Court has twice – first in 1991, and then in All India Judges case (1992) endorsed the creation of AIJS. It is imperative to ensure fair selection of candidates and to attract bright and best law graduates to judiciary.

It warms the inner cockles of my heart to note that three eminent Judges – Justice VR Krishna Iyer, Justice JS Verma and Justice MN Venkatachaliah gave their joint views on the constitution of AIJS as follows: “We agree with the urgent need to constitute the All India Judicial Service envisaged by Article 312 of the Constitution of India, at par with the other All India Services like the IAS, to attract the best available talent at the threshold for the subordinate judiciary which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Courts. The general reluctance of competent lawyers to join the Bench even at the higher level adds an additional urgency to the problem. AIJS will in due course of time, also help to improve the quality of the High Courts and the Supreme Court. The modalities for creating the AIJS to achieve its avowed purpose, and the necessary constitutional changes and the legal framework can be worked out after acceptance of the proposal in principle.”

In retrospect, it may be recalled here that the First Law Commission of India, headed by the learned MC Setalwad, with the benefit of the opinion of the then Chief Justice of India KN Wanchoo and Justice MC Chagla and eminent jurist Nani Palkhivala among others, had made a strong recommendation for the constitution of an AIJS, like the IAS and IPS. The felt need for such a service increased several fold in the last 57 years since that recommendation was made.

Further, in its 77th Report presented by the Law Commission of India to the then Law Minister Shanti Bhushan, it was noted in Para 9.6: “At the same time, we are of the view that the suggestion to have an All India Judicial Service of the same rank and same pay-scales as the Indian Administrative Service should receive serious consideration. According to Article 312, as now amended, Parliament may by law provide for the creation of one or more all-India services (including an All India Judicial Service) common to the Union and the States. We are conscious of the fact that a school of thought and many States are strongly opposed to the creation of All India Judicial Service. The objection is mostly based upon the consideration that since the proceedings before the subordinate courts would be conducted in regional languages, members of the higher judicial service hailing from other States would not be in a position to efficiently discharge their functions. This difficulty can be obviated if, like recruits to the Indian Administrative Service, the recruits to the All India Judicial Service also undergo a training period of two years. During that period, they can also acquire familiarity with and mastery of the regional language of the State to which they are to be allocated after the completion of their training period. The requirement about practice at the Bar may perhaps have to be waived for recruitment to All India Judicial Service, as they will be recruited at a comparatively younger age. It should, however, be essential that the competitors are graduates in law.”

Para 9.6A of this very 77th Report further notes: “Another reason which should weigh in favour of the creation of the All India Judicial Service is the attraction that an All India Service holds for bright young graduates, including law graduates. The result is that many of them compete for and are selected for the Indian Administrative Service. If the All India Judicial Service is created with the same rank and pay scale as Indian Administrative Service, the Judicial Service would hold perhaps greater attraction for bright law graduates. The Judicial Service in such an event would not be denuded of talented young persons.”
The Law Commission in this connection referred to the following observations of an experienced Chief Justice: –

“One reason why meritorious young men or young practitioners of some standing keep away from the judicial service is the comparative inferiority of the status of district judicial officers vis-a vis officers of the district executive. Formerly, the district judge, like the district magistrate, used to be a member of the Indian Civil Service and his position in the district was superior to that of the district magistrate. Under the present system, the district magistrate is a member of the Indian Administrative Service which is a service of an all-India character, while the district judge is a member of the higher judicial service which is a State service.”

The Parliament Standing Committee endorsed the AIJS in its 64th Report (Para 50) which says: “All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that All India Judicial Service may be created without further delay to attract best talent to the subordinate judiciary from where 33% of the judicial officers are elevated to the Bench of the High Courts.”

It may be recalled here that the first-ever National Judicial Pay Commission (NJPC), headed by Justice K Jagannatha Shetty which submitted its report in November 1999 too recommended constitution of AIJS in the cadre of District Judges as per provision of Article 312(3) of the Constitution of India. The NJPC mooted that the District Judges, directly recruited and promoted, should constitute the AIJS. Seniority of AIJS will be on All India basis and as per the ranking in the select list.

Uniformity in standards for selection will definitely improve the quality of judges in different High Courts and will minimize the scope of partiality, arbitrariness and aberrations in judicial selection and simultaneously the quality of dispensation of justice will improve considerably as it essentially hinges upon the quality of judges recruited. It is the larger public interest that will be served if AIJS is created as also the interest of fair trial and speedy justice. The recruitment of judges right from the entry level should be handled by an independent agency just like the UPSC and can be named National Judicial Service Commission (NJSC).

It would be the job of NJSC to ensure that only the best talent selected through open competition is given a chance thereby ensuring fair and transparent selection process. Also, there should be a comprehensive training of 2-3 years after selection into AIJS to be undergone in National Judicial Academy as we see in Bhopal.

It is most disconcerting to note that court cases do not end even after more than 50 years. This completely erodes and tears apart the otherwise irrevocable faith of people in getting justice from courts. Access to fair, fast and uniform justice is regarded as a basic human right which keeps the people’s faith ingrained in the system which is so important for the successful functioning of any democratic country.

It is well accepted by thinkers, philosophers, academicians and jurists that if fair, fast and uniform justice is to be secured to all citizens, and equality before the law and equal protection of law has to be ensured, India needs the best talent in judiciary. Needless to say, quality of justice dispensation will ameliorate considerably right from the subordinate courts to the apex court by initiating the AIJS.

It needs no rocket scientist to conclude that it is in the interest of all concerned that guilt or innocence of accused is determined as quickly as possible. This in turn is possible only if there are adequate judges. Adequate judges can be made available only if they are recruited in large strength through AIJS just like we see in case of IAS, IPS, IFS and other civil services. It brooks no more delay.

Finally, on a concluding note, let me state that it is the young generation who have just graduated or are about to graduate in Law in any part of India that will benefit by leaps and bounds if PM Modi takes this landmark decision anytime soon. We only hope that it does not again turn out to be an endless wait for them as we’ve been witnessing in the past. We earnestly hope that history does not repeat itself!

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