The proposal to implement an All India Judicial Services (AIJS) examination for judicial appointments has sparked ongoing debate in India. Initially suggested in 1958 and legally supported by Article 312 of the Constitution, the AIJS aims to centralize recruitment to address judiciary vacancies, particularly in district courts. However, its implementation faces opposition due to concerns about judicial independence, local language and customs, and the perceived inefficacy of centralized recruitment in addressing regional disparities.
All India Judicial Services (AIJS) and Its Impact on the Judiciary
Suggesting the executive’s independence, President of India Droupadi Murmu also opposed the establishment of an All India Judicial Services (AIJS) examination to appoint judges in December last year.
The demands for the formation of the AIJS have been made as early as 1958.
Why has it not been operated in India for more than 60 years? More importantly, will the AIJS contribute to the void in the positions in the subordinate courts and, therefore, to pendency? We take a closer look.
What is AIJS?
The primary objective of the AIJS is to regulate the centralization of judicial officer recruitment policy, discuss the issue of vacancies, and standardize among states. At this moment, the system is that there are state-recruiting offices. The proposal for AIJS aims to shift power from the High Courts and the state governments to over-centralisation, and it is unclear what exactly this means.
The Artificial Intelligence and Justice System (AIJS) recruitment is provided by Article 312 of the Constitution in the same manner as that of civil services. This can be done through a resolution adopted by the Rajya Sabha with not less than two-thirds majority of members.
What is the need for AIJS?
The philosophy of forming the AIJS is that the organization of a centralised service would efficiently overcome the existing vacancy problems in the district and judiciary in India.
Rajya Sabha was informed on August 3, 2023, that 5,306 vacant positions exist in India’s district and subordinate courts out of 25,246 sanctioned positions. More than 4 crore cases are pending in the lower courts, and increasing vacancies will not help.
According to a report submitted by the Supreme Court, in the last year, 1,788 of these vacancies (21%) are in the district judge cadre (Higher Judicial Services) against its 8,387 sanctioned posts, and 3,512 vacancies are in the civil judge Cadre against 16,694 sanctioned posts.
As many as 70.9% of the district judge positions advertised and which can be directly recruited through the Bar remain unfilled in 24 states.
A Supreme Court report has revealed that in many states, the percentage of candidates who clear the minimum qualifying standards in the HJS examination is very meagre compared to the number of vacant posts advertised.
Is AIJS the answer?
Article 312(3) states that the AIJS cannot comprise any post subordinate to the level of a district judge as defined under Article 236.
Even if the AIJS were constructed, we would only see a small minority of around 1700 vacancies, excluding the subordinate judiciary, which includes civil judges junior and senior division hired through the civil judge examination.
Hence, it would be more reasonable to question why an AIJS can be proposed as a solution to judicial vacancies while there are many more ways to explore the cause of so many empty posts in underperforming states. The reasons for these vacancies may range from a lack of courtrooms to problems in employee recruitment.
In conversation with Bar & Bench, Advocate and former judge Bharat Chugh said that it is making AIJS the magician that will solve all the problems of the judicial system, but it is not.
“The biggest challenge facing the system currently is: and absence of worthy crowns, tremendous vacancies. I do not understand how a centrally conducted exam can help redress this cropped up situation. It may interest the members of this house to know that there are vacancies and infrastructural related problems in central services too, so, I do not see how AIJS is the solution,” he stated.
Judicial independence
Because the candidates who pass the AIJS are appointed by the central government, there are doubts about whether such judges will be able to dispense the role independently.
Senior Advocate Sidharth Luthra said,
”While those who support The All India Judicial Service would like to have the AIJS on the same footing as the IAS, its critics (quite rightfully) ask whether it would be possible to maintain the judicial independence of such entrants, their familiarity with local language and laws.”
Again, if the Central government intends to set up an AIJS, then it needs to explain how the service will be independent.
Kapil Sibal, the senior advocate, has said that AIJS or any NJAC are not feasible for judicial appointments.
As far back as when Nariman Setalvad was the Chairman of the then Law Commission, a recommendation was made to the effect that for our district judges, we should have a judicial service and recruitment to district judges on an all-India basis.” In my opinion, that would have been total disaster. Because if you have a judicial service for district judges, ultimately – who are going to appoint them? Which judge will go where? It cannot be decided by the government,” he noted.
Local language and customs
One of the most compelling and frequently used arguments against implementing the AIJS is that centrally appointed judges cannot be expected to be proficient in the local language of their assignment. Further, some state laws prescribe that higher court proceedings should be in the languages preferred by the state government. Even High Courts stage proceedings in what they refer to as Hindi or the Hindi language.
On this aspect, Luthra noted that,
Due to the variability of state laws, regulations, and trial court languages, trial court judges require an accurate understanding of local peculiarities. An all-India judicial service can indeed attract a wide pool of talent, but appointments and the distribution of cadres have to take into consideration the regional language, rules, and regulations.
Advocate Vikram Hegde had something more to say about these All India Services. Much to the disdain of the country’s federal structure, they centralize the governance systems, and the same will happen with judicial administration.
The district judiciary deals with society more directly than the High Courts and Supreme Court. It deals with important matters and involves knowledge of local language, customs, and laws. He also said that if district judges are transferred to areas in which they have little working knowledge of these features, it may potentially erode judicial efficiency and justice quality and create an unequal geography of judges.
Chugh pointed out that the forecast that AIJS would provide a better attraction of talented juniors to the question of judicial services, this statement is also a myth.
First of all, as the system is now developed, AIJS is only for higher judicial services, not for the primary level posts. Furthermore, because it is a central station, an officer may always be transferred to different state where he/she may be compelled learn a new language and the laws of the state only to be transferred again. This leads to wastage of money and time,” he went on to say.
He pointed out that candidates destined for the bench many desire posting within their home states for the convenience of their families.
“One needs to build on state exams to make them more challenging, improve working conditions, give young judges an opportunity to do meaningful work in order to retain them and ensure the work environment signifies the dignity of their office and the decisions they made to leave lucrative practices for the bench,” he recommended.
In matrimonial or property cases, for example, prejudices of the state are relevant, and an out-of-state candidate would be a stranger to such prejudices. In fact, the formation of the AIJS has been objected to in some states like Arunachal Pradesh, Meghalaya, and Chhattisgarh on this ground.
Government and court incident concerning AIJS
The 31st report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on Infrastructure Development and Strengthening of Subordinate Courts was laid down on February 6, 2014. In this report, the Committee called on the government to investigate the establishment of the AIJS without further delay to enhance the quality of judges in the lower judiciary and address issues of case overload.
The Secretary of the Union Ministry of Justice sent a letter on 28 April 2017 recommending the formation of a CSM central for selecting District Judges across the national territory.
Later on, the Supreme Court in Re Central Selection Mechanism for Subordinate Judiciary) on its own motion, drew attention to this letter.
But in another case, the Supreme Court had made its remarks regarding the possibility of an AIJS in the present federal structure. “Creation of All India Judicial Services is not something that can be done by way of a judicial order,” the top court had said in 2018 while dismissing a petition filed by NGO Lok Prahari seeking formulation of AIJS. The petitioner, in that case, had earlier sought the same relief in the Delhi High Court, which declined the petition in an order made in November 2016.cember last year, President of India Droupadi Murmu also proposed the selection of judges through a nationwide All India Judicial Services (AIJS) examination.
FAQs
Q1: What is the main goal of the AIJS proposal?
The AIJS aims to centralize the recruitment process for district judges in India, thereby addressing vacancies and standardizing judicial appointment policies across states.
Q2: Why has AIJS not been implemented despite being proposed over 60 years ago?
The AIJS has faced resistance due to concerns about judicial independence, local language barriers, and potential erosion of regional autonomy, all of which are critical for effective district-level judiciary functioning.
Q3: How does AIJS relate to judicial independence?
Judicial independence may be compromised with AIJS, as judges recruited centrally could be seen as influenced by the central government, which critics argue could affect their impartiality and autonomy.
Q4: How do language and cultural factors impact the opposition to AIJS?
Local languages and customs play a significant role in district courts, where familiarity with local nuances is crucial. Critics argue that centrally appointed judges may lack these necessary insights, potentially reducing judicial efficiency and fairness.
Q5: Is AIJS the only solution to address judiciary vacancies?
While AIJS is one approach, critics recommend improving state-led recruitment exams, enhancing work conditions, and offering more local judicial opportunities to attract and retain qualified candidates without centralizing the process.
Conclusion
The AIJS proposal is contentious. It balances the need for a unified judicial recruitment system with the complexities of India’s diverse and regionally varied judiciary. While AIJS could potentially streamline recruitment, the emphasis on maintaining judicial independence, respecting local languages, and preserving regional judicial autonomy remains a significant counterargument.
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