Modi govt will have to wait on All India Judicial Services. Top judiciary main opposition

WWith an overwhelming majority of states and supreme courts, establishing an All India Judicial Service, or the AIJS – a national-level test for district judges modeled on the Union Public Service Commission – is not for the Narendra Modi government’s “idea” of the judiciary to improve The 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 sweeping blueprint that the government hopes to emulate in the judiciary.

In October 1946, when the Secretary of State for India wanted to dissolve the Indian Civil Service (ICS) before the transfer of power, Sardar Patel convened a meeting with the Prime Ministers of the eleven provinces: Assam, Bengal, Bihar, Bombay, Central & Berar, Madras, NWFP, Orissa, Punjab, Sindh and the United Provinces to discuss the future of ICS and IP (Indian Police). Eight of the eleven provinces (excluding Punjab, Bengal and Sindh) agreed that not only was it imperative to maintain ICS and IP (as the IPS was then known), but also to constitute IAS and IPS as All India Services, as well as one joint audit for the AIS and the central services, including the Foreign Service, conducted by the Union (Federal) Public Service Commission.

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Talent hunt for the lower judiciary

The third AIS, the Indian Forest Service, was formed in 1966 on the basis of the State Reorganization Commission’s “Obiter Dikta” (1956), which also emphasized the need for AIS officers to work alternately between the Union and state governments. In 1958, the Fourteenth Judiciary Commission recommended the establishment of an AIJS in the hope “that an All-India Service would attract better talent to the District and Subordinate Judiciary at a time when these strata were said to be facing a talent shortage.”

Before independence, these positions were held by members of the ICS and the state civil service. They worked their way up from district judges to the High Court and also to the Supreme Court. In fact, the 10th Chief Justice of India, Kailas Nath Wanchoo, was a member of the ICS.

However, India’s political establishment generally believed that post-independence states would develop their own mechanisms for criminal and civil justice administration, as the separation of powers between the judicial, executive and financial courts had been a long-held demand of the Congress party, directly by the first session of 1885. Thus Article 50 was incorporated into the policy principles, requiring that “states 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 judiciary and executive branches in the UP, Rajasthan, MP and Punjab lasted much longer. In addition, the High Courts felt that, alongside judicial review powers, they needed an effective say in the administration of district courts. Perhaps this was the context in which the Law Commission made this recommendation.

During the state of emergency, the 42nd Amendment authorized the Rajya Sabha under Article 312 to create AIJS exclusively for the District Judge cadre (as defined in Article 236). This was unlike the Judiciary Commission’s proposal, which aimed to create an AIJS for all cadres making up the district and sub-judiciary.

In 1992, in deciding the case of the All-India Judges Association, the Supreme Court passed a directive creating an All-India Judicial Service and an All-India standard for the perks and pay of judicial officers. In 1999, the First National Judicial Pay Commission (Shetty Commission) asked all states and Supreme Courts for their opinions on the AIJS. In 2002, Justice Minister Arun Jaitley said that “consultation with States and HCs was ongoing and no definitive timeframe could be given”.

Between 2004 and 2014, the UPA government’s stance on the issue remained ambivalent.

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NDA and AIJS

When the NDA came to power, it passed the 99th Amendment creating a National Judicial Appointments Committee (NJAC), which would have assumed responsibility for filling all judicial posts in the country, but was struck down by the NDA in October 2015 by the Constitutional Court of the Supreme Court . While the Supreme Court did not want the “collegiate system” for the High Courts and Supreme Courts to be disrupted, in relation to the appointment of district judges in 2017 it took suo moto cognizance of the matter and appointed lead counsel Arvind Datar counsel amicus curia . Datar recommended a joint examination for AIJS to be conducted by an independent commission, but the final interviews with candidates who chose a particular state would be entrusted to the respective high courts. It was assumed that once recruitment was on an annual basis (as is the case with UPSC), the backlog of vacancies would be cleared over a fixed time frame. In March 2018, the Parliamentary Standing Committee on Personnel, Public Complaints, Law and Justice also recommended the establishment of an AIJS.

Last month, Union Minister Kiren Rijiju said: “From the government’s perspective, a properly designed All India Judicial Service is important to strengthen the entire judicial system. This will provide an opportunity to induct suitably qualified fresh legal talent, selected through an appropriate all-India merit selection system, and address the issue of social inclusion by allowing for adequate representation of marginalized and disadvantaged sections of society.”

Higher Justice the main opposition

A consensus on this issue is still being sought, as given the current composition of the Rajya Sabha, a two-thirds majority for AIJS is rather unlikely. However, it must be noted that opposition to the AIJS does not come from the bureaucracy or the legislature. She comes from the highest level of the judiciary, which does not want to change the opaque system of the colleges or their discretion and enforcement vis-à-vis the regional courts.

Sanjeev Chopra is a historian and festival director of Valley of Words. Until 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 in a State of the State series analyzing politics, public services and governance in India.

(Edited by Anurag Chaubey)

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