India is a quasi-federal state having single unified judicial system with three tier structure, i.e., Supreme Court, High Court and Subordinate courts. Current turf war is going on between top echelons of the government and the judiciary over the judicial appointments for subordinate courts by a centralised recruitment process called All India Judicial Services (AIJS).
Considering the little literature available to explain the rationale for allowing the state governments to control the power of judicial appointments to the district and subordinate judiciary till now, its better to look through the lens of group identities and increase administrative efficiency as Constitution allows states to choose judges who are best suited to judge a dispute arising in the unique socio-economic context.
The idea of AIJS was first proposed by 14th Report of Law Commission titled ‘Report on Reforms on Judicial Administration’ in 1958, which was shelved after some states and High Courts opposed it until in 1976 ,on the basis of Swaran Singh Committee recommendations, 42nd Constitutional amendment was brought which amended Article 312(1) wherein Rajya Sabha by passing a resolution supported by not less than 2/3rd of its members present and voting, is empowered to make laws for the creation of one or more All India services including an AIJS, common to the union and the states. Even Supreme Court in All India Judges Association vs. Union of India case (1993) directed the union government to take immediate steps for the formation of AIJS. In 2017, Supreme Court reiterated the need of the same by taking suo-moto cognizance of the issue of appointment of District Judges and mooted a ‘Central Selection Mechanism’.
Before delving deeper into the intricacies of how the system like AIJS could sustain itself, we need to first understand why there is a recurring demand for the same in the first place. Law Commission Report of 1987 suggested India should have 50 Judges per million population as against 20 Judges per million now. Considering the insurmountable number of pending cases from 2.5 cr cases in 2017 to 3.5 cr presently , exacerbated by the COVID-19 induced lockdown, AIJS envisages to bridge the underlying gap in judicial vacancies by filling it routinely and automatically in an objective manner.
Various law commissions have pointed towards parochialism, regionalism and inefficiency in the recruitment process for state judicial service. The incumbent central government believes that properly framed AIJS would induct pool of talented people through all India merit-based selection system and also bring social inclusion by enabling suitable representation to marginalised sections of the society by providing quota for women,SC and ST. The proponents of this idea also believe that this will bring about bottom up approach in recruitment which would address issues like corruption and nepotism in the lower judiciary and will further strengthen the justice dispensation system in the lower levels of society.
A centralised recruitment process in the form of AIJS is seen as an affront to federalism and basic structure doctrine and also encroachment on the powers of states granted by the Constitution. It further creates dichotomy between Article 233 and Article 312 as Article 233 lays down that appointments of persons to be, and the postings and promotion of district judges in any state shall be made by the governor of the state in consultation with the High Court exercising jurisdiction in relation to such state. So the states have the apprehension that AIJS will unsurp their fundamental power to make rules and the appointment of district judges .
This idea is seen as a spectre, where an outsider who is not familiar with the customs and language of the state will hear the arguments and decide the cases. There is a apprehension as to how a person from North India can hold hearings in Southern India. This apprehension has been addressed in the recent round of meetings with the recommendation that AIJS entrance exam may be held at the zonal levels, i.e. North, south, east, west and central level so that judges are posted closer to the place they belong to. Infact even IAS and other Central service officers are serving in different states overcoming the language barrier after being trained in local language of the state.
While language barrier has been figured out , there is incorrect diagnosis of the issues faced, for which AIJS is pitched as a solution . As AIJS brings with it the element of centralisation to counter the current recruitment procedures, it carries the underlying assumption that state governments and High Courts are not performing well in appointing judges. Whereas figures present a baseless allegation in its entirety as States across the country are performing in a fairly decent manner. Only certain jurisdiction such as those falling under Allahabad High Court and Patna High Court account for approximately 5000 vacancies while states like Maharashtra, West Bengal recorded a 2.8% and 7.8% vacancy rate and states like Gujarat, Kerala, Chhattisgarh, Assam, Rajasthan have around 10 % to 30% vacancy rates. Chandigarh has 30 out of its 30 judicial positions filled up.
Centre’s case for AIJS is dented by the whopping 43% vacancies in High Court where it has a say in quickly filling vacancies. Moreover, if centralisation of services is to be considered as a one-stop solution, then reconsideration in that aspect is to be made as well, looking at the number of vacancies going vacant on yearly basis in various IAS, IPS, Indian Navy and Army recruitments. The argument that women and lesser represented caste groups would reap enormous benefits out of this unified system is also logically flawed, as considerable amount of states like Rajasthan, Kerala, Punjab, Madhya Pradesh have caste-based reservations and even additional reservation for women in their judicial entrant examination.
Regarding the allegation of inefficiency, from the studies conducted by Vidhi Centre for Legal Policy (2019) it appears that degree of efficiency in recruitment to the judicial services varies greatly among different states wherein many states have built up considerable administrative capacity.
Instead of batting for a cause that will not solve any of the major hindrances being faced by the lower judicial system, the states need to get their respective systemic issues cleaned up in order to provide for a transparent and accountable recruitment mechanisms that they are vying for. This includes restructuring the delegated authorities that hold influence in the conduct of lower judicial examinations, bringing uniformity in the yearly or regular conduct of the examination, providing grievance redressal methods to the candidates so that the citizens and aspiring judges faith in the lower judiciary can be automatically restored.
It is time to recognise that AIJS cannot be the answer to these systemic problems, especially when it is an unproven solution to the proven problems and reliance been placed on the archaic reports of the Law Commission.
Assistant Advocate General, Punjab