A DEBATE FOR IMPLEMENTING THE NATIONAL JUDICIARY
Author: Lavanya KS, IV year of B.A.,LL.B from Chennai Dr ambedkar government law college pudupakkam.
An article evaluates the proposal to the Union government to establish 'All India Judicial Service'. Many law commissions and the judiciary itself in several cases came upon the government to consider and implement the All India Judicial Service(AIJS). It's a model of IAS, IPS, etc. It empowers recruitment officers in subordinate courts by Subordinate Judicial Services. It's a national-level entrance exam similar to IAS, IPS recruited through UPSC Civil Service Exam(CSE). Those who were enlisted for this Pan India Test were to be appointed in the Subordinate Judiciary by the respective high courts and the state governments.
National judiciary, All India Judicial Services(AIJS), law commission, model like UPSC, consult, implementation, uniform system, recruitment.
Back in 2019, initiated by the union government to form a consultation process involving state government, supreme court, high courts to consider the possibility of these reforms about judicial recruitment which would provide for a National level Uniform system to recruit and appoint Subordinate Judicial officers to the Subordinate Judiciary. As of now this proposal by the Government of India is supported by four states and two high courts. Whereas eight state governments have ejected it and five of them suggested changes and eleven states are yet to answer back.
FEASIBILITY OF ALL INDIA JUDICIAL SERVICES FROM A CONSTITUTIONAL PERSPECTIVE
Article 233(1) of the Indian Constitution says that Appointment, posting, and promotion of District level judges and these powers are vested with the state level. It is the Governor of the state who is acting upon the aid and advice by the state government to provide for the appointments of district judges based on his consultation concerning high courts.
Whereas Article 312(1) empowers Parliament after an amendment of the 42nd Constitutional Amendment Act, 1976. To make laws for the creation of one or more All India Services. So this gives powers to Parliament to establish All India Judicial Services".
But clause 3 of this Article places restrictions. The parliament cannot provide for a creation of AIJS which could be an inferior post to District Judge but if you look into the government proposal AIJS is at a subordinate judicial level below the district level judiciary.
The Seventh Schedule of the Indian Constitution provides three types of lists: Union List(List -I), State list(List-II), and Concurrent list(List-III). The subject of administration of justices was shifted from the State list(L-II) to the Concurrent list(L-III) through the 42nd constitutional amendment act. The subject of the administration of justices is to provide for the constitution and organizations of all courts except the Supreme court and the High Court. Before the amendment of 1976 this subject was listed in List -II as Entry-3. Through 42nd CAA it shifted to Entry 11A of List -III.
THE DICHOTOMY BETWEEN ARTICLE 233 & ARTICLE 312
Art 233 says the powers vested with States to appoint and recruit district-level judges. Art 312 also empowers the Parliament to create All India Judicial Services. Now the Centre is looking to address the dichotomy by allowing for the creation of AIJS. To be created by the Union and established to appoint at the subordinate level on the line of AIJS.
SEVERAL ASSERTIONS IN FAVOR OF THE UNION GOVERNMENT
So this proposal raised arguments aiding and against the All India Judicial Services.
It is argued that the creation of AIJS will remove any scope of judicial or executive intervention in the appointments to the lower judiciary. This brings more transparency to the appointment process. According to the Government of India, this will help to appoint a lower judiciary and help reduce judicial delays due to the faster filling up of vacancies. The Union Government also said that AIJS will provide equal representation for marginalized sections as well as deprived sections through the policy of reservation.
SEVERAL CONCERNS AGAINST THE ALL INDIA JUDICIAL SERVICES
The major contention is the principle of federalism. By ascertaining an AIJS the state will become the prerogative of the Union to appoint lower judiciary concerns. It brings out the dichotomy between the two articles. The fundamental power of the state to make rules on the appointment of district judges is taken away and might go against the principle of federalism which is seen as the basic feature of the Indian Constitution.
The First Law Commission promoted the creation of AIJS in 1972. This debate gained momentum. Again in 1986, the issue was brought up and concern would be deliberated upon and the subordinate judiciary expressed concern about their opportunities for promotion. Currently, 50% of the post of district judge is filled by promoting subordinate judges and only the remaining 50% is direct recruitment. But if AIJS is introduced it might compromise the promotion of opportunity available to subordinate judges.
A MAJOR CONCERN ABOUT THE LANGUAGE BARRIER
Since all cases in lower courts are argued in the local language. There is apprehension how a person from a particular state can hold a hearing in another state when it has a completely different language. Judges who are recruited through a centralized process cannot be fluent in local languages in a particular state where they are posted in. This lack of understanding of local language or local dialects might affect the quality of judgment and hence the quality of justice.
FEAR OF SOCIAL IMPLICATIONS
There is a fear of the social implications of establishing AIJS. The reservation policy is already in a few states like Tamilnadu, Uttar Pradesh. They make sufficient & adequate for lower caste, women, and deprived and marginalized sections of society. In the case of AIJS, the reservation policy was made uniform and it might affect social justice in those states where the larger states are reserved for marginalized sections. so all these concerns open up for debate regarding the Union proposal to establish All India Judicial Services.
DEBATE BY JUDICIARY & LAW COMMISSION
In the 1960s Chief Justices Conference brought up the issue that supported the creation of AIJS but it was opposed by the same governments and the high courts.
The 1st National Judicial Pay Commission found a proposal of health and interest of judiciary and it was rewritten with support and recommended the 14th law commission report.
In the All India Judges Case,1992 and All India Judges Association Case, 2002. The Supreme Court opined that the recommendations of the law commission were implemented about the establishment of AIJS. In the 2002 case, most recommendations were accepted by the Shetty Commission and directed the governments to implement the judgments.
EXAMPLE OF CONTROVERSIAL ORDINANCE
By drawing a controversial ordinance of 2017 act which provides the Finance Act because back then the government tried to reform the recruitment and governance of tribunal and several tribunals were unilaterally abolished through this ordinance and it completely changed many tribunals. This ordinance challenged in the supreme court 'Rajer Mathew Case of 2019' the Supreme Court of India struck down some changes as unconstitutional.
Even the National Commission to review the Constitution which had eminent judges were in favor of establishing AIJS. But the government of India cannot do this because there needs to be a consultation process with all stakeholders to get their opinion and without building the concerns of state governments and high courts the government of India should not proceed with these reforms. The government learns from this and when it comes to changes to the governance of the judiciary should rely upon a consultation process to closely work with the state government and higher and lower courts.
"A BASIC TENET OF A HEALTHY DEMOCRACY IS OPEN DIALOGUE AND