JUDGEMENT DAY- IJS & beyond

The issue of setting up of an AIJS along the lines of IAS, IPS examinations is making headlines again. The idea was mooted recently by Prez Murmu on the august occasion of "Constitution Day".

She emphasised on the fact that, for the representation of people from all sections of the society in the judiciary (be it women, SCs, STs, OBCs or minorities) the formulation of a pan Indian judicial service is imperative and is the need of the hour.

The history of origination of the idea concerning AIJS dates back to 1958, wherein the Law Commission of India in its 14th report suggested for its creation. This was later reiterated in LC’s 1978 report as well as the 15th report of the Parliamentary Standing Committee on Law and Justice. The most important development took place through the 42nd CAA in 1976, which enabled the parliament under article 312(1) to make laws help design one or more All India Services, incorporating the AIJS.

Subsequently, in the landmark case of “All India judges’ association v the UOI”, the SC instructed the centre to set up the same, underscoring the importance of the constitutional article.

“These latest developments therefore compel us to weigh the pros against the cons in order to unearth the exigencies of laying down of the AIJS”.

Positives;

Institutionalisation of meritocracy;

The selection of candidates through a merit based process will incentivise the candidates to showcase their talents and help them get recruited directly at the level of DJs and ADJs.

Centralization of recruitment process;

Conduction of a common exam rather than separate tests for different states would help centralise the selection process.

Reduction in Nepotism and favouritism;

Pratap Bhanu Mehta refers to the judiciary as a “self perpetuating institution”. This is because of prevalence of the infamous “uncle judge syndrome”, where most of the members of the higher judiciary are related to each other.

The commencement of the AIJS would help eventually do away with this phenomenon, ensure transparency, and thus in a sense oblige the collegium to consider the judges appointed through this exam for elevation to HCs instead of handpicking their kith and kin.

Filling up of vacancies;

Across the country, a large no. of posts of judges are vacant against the sanctioned strength. Therefore, appointment of judges through an all India exam would fill up the vacancies in a time bound and efficient manner, thereby improving the “judges to population" ratio.

Minimization of pendency;

Recruitment of judges through a centralised selection mechanism would facilitate speedy dispensation of justice. This would help in reducing the large number of cases pending in both lower as well as higher judiciary.

Equal representation to the weaker and the marginalized sections of the society;

There is a need for more inclusive judiciary, subject to representation of people from all walks of life, and this can only be achieved by the implementation of AIJS.

Lately, the incumbent CJI advocated the need of having higher women representation in the judicial arena, but doing mere lip service isn’t going to suffice, adequate measures must be taken on his behalf.

Negatives;

Language barrier;

Central recruitment would affect the conduct of judicial business in different states because of the prevalence of vernacular languages spoken within the court premises. (For instance, a candidate from North India would find it difficult to acclimatize to the functioning of courts in South India and vice versa)

Against the principle of federalism;

AIJS would encroach upon the power of the states to select their own judges through the PCS(J) exam conducted by the State Public Service Commission.

Conflict of Interest;

Dual accountability both to the state as well as the centre would create a sense of dilemma within the minds of the judicial officers. ( Recent tussle between the Central government and the GNCTD with respect to the control of bureaucracy highlights the concerns associated with Central services)

Enfeebles the independence of judiciary;

The creation of AIJS will ultimately transfer the reins of the State judiciary over to the Union government, thus subverting the doctrine of “separation of powers” enshrined in Article 50 of the DPSP.

Thus, taking into consideration both the postives and the negatives, it can be said that at the time, it seems feasible to go ahead with the development of the AIJS. But in my opinion, its implementation should first take place on a “pilot basis” so that the problems associated with it could be identified and be done away with.

A consensus must be achieved asap for ensuring an effective justice delivery system.