Why is it in the News?

President Draupadi Murmu on Sunday called for the creation of an all-India judicial service to recruit judges, saying this will help make the judiciary diverse by increasing representation from marginalised social groups.

News Summary:

• President Draupadi Murmu in her inaugural address, advocates for the establishment of an all-India judicial service during the Supreme Court’s Constitution Day celebrations on 26th Nov.
• November 26th is observed as Constitution Day to commemorate the adoption of the Constitution of India by the Constituent Assembly in 1949.
• The creation of an all-India judicial service is proposed to diversify the judiciary, increasing representation from marginalized social groups.
• She also discusses gender and caste representation, emphasizing the need for accessible justice and suggested a merit-based, competitive, and transparent process for recruiting judges from varied backgrounds.
• The President envisions an all-India judicial service selecting talented individuals from across the country, providing opportunities to less-represented social groups.
• She calls for removing colonial remnants from all domains as part of India's continued democratization.
• She highlights India's democratic strides post-independence, celebrating diverse leadership across genders and socially disadvantaged groups.

About All-India Judicial Service:

• The concept of the All-India Judicial Service was initially introduced in the 14th Report of the Law Commission of India in 1958.
• This service envisions the central recruitment of district judges through an all-India examination, with subsequent allocation to each state, mirroring the organizational structure of other All-India Services such as IAS and IPS.
• The primary objective is to establish a transparent and efficient recruitment method, aiming to attract the finest legal talent in India.
• The idea was again proposed in the Law Commission Report of 1978, which discussed delays and arrears of cases in the lower courts.
• In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 15th Report backed the idea of a pan-Indian judicial service and also prepared a draft Bill.
• Currently, the appointment of district judges is carried out by the state governor based on the recommendations of the chief justice of the respective state's high court.

What is the procedure to set up an All-India Service?

• The 42nd Constitutional Amendment (1976) brought about modifications to Article 312(1), granting the Parliament the authority to legislate for the establishment of one or more All-India Services.
• Following this, as per Article 312(1) of the Constitution, the Rajya Sabha must pass a resolution with the support of at least two-thirds of its members present and voting.
• Subsequently, Parliament can amend Article 233 and Article 234 by a simple majority to institute an All-India Judicial Service (AIJS).
• The recruitment procedures and terms for individuals appointed to All India services are subject to regulation by Parliament through the enactment of the All India Service Act, 1951.
• Importantly, this process does not necessitate a constitutional amendment under Article 368.

Arguments Setting of the All-India Judicial Service (AIJS):

• Enhanced Judicial Efficiency: Implementation of the All-India Judicial Service (AIJS) ensures an efficient subordinate judiciary by addressing issues such as different pay scales, faster vacancy fulfillment, and standardized training across states.
• Vacancies and Pendency of Cases: As of July 2023, the subordinate judiciary's working strength was 19,858, with 5,000 posts remaining vacant against the sanctioned strength of 25,246.
• Over 85% of the 5 crore pending cases, especially in district courts, contribute to a significant backlog, with more than one lakh cases pending for over 30 years.
• Balancing Judges To Population Ratio: The AIJS aligns with a Law Commission report (1987) suggesting a judge-to-population ratio of 50 judges per million people, a considerable increase from the then-existing 10.50 judges.
• Despite progress, the current figure of 20 judges in terms of sanctioned strength remains comparatively lower than the U.S. (107) and the U.K. (51) ratios.
• Enhanced Representation for Marginalized Sections: The AIJS is advocated by the government as an optimal solution for achieving equitable representation of marginalized and deprived sections of society within the judiciary.
• Addressing Corruption and Nepotism: A bottoms-up approach to recruitment through the AIJS is seen as a strategy to tackle issues like corruption and nepotism prevalent in the lower judiciary.
• Absence of career growth: Currently, less than 25% of judicial officers have the chance to ascend to High Court judgeship, primarily reaching the rank of district judges towards the end of their careers.
• The remaining 75% quota is allocated for High Court judge recruitment from the Bar Association of India.
• The establishment of an All-India Judicial Service (AIJS) would ensure a richer talent pool with a younger age profile for selection by High Courts and the Supreme Court, offering a remedy to the issue of limited career growth.

Criticism Against Setting up an All-India Judicial Service:

• Centralization and State Power Concerns: The adoption of a centralized recruitment process is criticized as infringing on federalism, and encroaching on the constitutional powers granted to states.
• Language Barrier Challenge: An argument against AIJS is that judges recruited through this process may lack proficiency in the local languages of the States where they are posted.
• Given that civil and criminal court proceedings are conducted in languages prescribed by respective State governments, this language barrier is a significant concern.
• Impact on Local Reservations: Centralized testing may potentially dilute reservations based on caste, rural backgrounds, or linguistic minorities, undermining localized efforts to ensure representation.
• Conflict with Separation of Powers: Opposition stems from constitutional principles of the separation of powers.
• Centralized testing raises concerns about the executive gaining influence in the appointment of district judges, potentially diminishing the role of High Courts.
• Limited Impact on Structural Issues: Critics argue that the creation of the All-India Judicial Service (AIJS) fails to address inherent structural challenges in the lower judiciary.
• Uniformity in pay scales, as addressed by the Supreme Court in the 1993 All India Judges Association case, is seen as a more effective approach.
• Alternative Solutions Over Central Exam: Experts contend that addressing structural issues involves increasing pay universally and ensuring that a portion of High Court judges are selected from the lower judiciary.
• This approach is seen as more effective than relying solely on a central exam to attract quality talent.

Supreme Court’s Stand:

• In 1992, the Supreme Court (SC) issued a directive in the case of All India Judges’ Association v. The Union of India, instructing the Centre to establish an All India Judicial Service (AIJS).
• However, during a review of this judgment in 1993, the court granted the Centre the freedom to take the lead on the AIJS matter.
• In 2017, the SC independently addressed concerns about the appointment of district judges, suggesting the exploration of a Central Selection Mechanism.
• Senior advocate Arvind Datar, acting as amicus curiae (friend of the court), circulated a concept note to all states proposing a common examination instead of separate state exams.
• The merit list from this common examination would guide High Courts in conducting interviews and appointing judges.
• Datar emphasized that this approach would not alter the constitutional framework or diminish the authority of states or High Courts.

Way Forward

Despite the prolonged debate spanning decades, numerous States and High Courts have expressed reservations regarding the creation of an All-India Judicial Service (AIJS). Therefore, it is imperative to foster a comprehensive consensus among the Centre, States, and the Judiciary before the Parliament proceeds with establishing the AIJS. In the meantime, efforts should be concentrated on implementing more targeted and immediate solutions to effectively address the challenges faced by the Indian judiciary.