December 1, 2023
📰 FEATURE STORY
Does India need an All-India Judicial Service?
Given the judiciary’s vital role in India and the ripple effects its verdicts can have, there is a sense that representation among judges who pronounce judgments needs to be looked at. In any space, representation is often viewed as a pipeline problem, hence to be looked at from a bottom-up approach. But how exactly do you get diverse judges onto a court?
One approach is an All-India Judicial Service (AIJS). While others, including the government, have proposed it in the past, it’s back in the news recently when President Droupadi Murmu spoke in favour of it. Having a merit-based pan-Indian test for judges could help broaden representation. However, some see this as a good intention not amounting to sound policy.
Context
India is a diverse country with people from different ethnicities and religions. In many ways, the country’s demographic diversity is an asset. It’s not unreasonable to expect that diversity to be reflected in something as crucial as the judiciary. It’s come up when discussing the appointment of judges time and again to give due consideration to suitable and qualified candidates belonging to Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs), women, and minorities.
A couple of years ago, senior advocate P Wilson wrote to President Ramnath Kovind, calling for greater diversity in the higher judiciary. He cited a disturbing trend of declining representation from different social sections. He warned this would “widen the trust deficit over the last bastion”. The big worry is that the rights of unrepresented and underrepresented groups won’t be safeguarded or could even be infringed upon.
This worry goes back decades. In 1980, then Union Law Minister P Shiv Shankar, himself from the OBC community, wrote to high court Chief Justices requesting more SC and ST judges be appointed. In 1988, Union Law Minister B Shankaranand, from the SC community, held up several appointments based on his insistence to appoint SC judges.
Gauging the social backgrounds of judges is tricky since there’s no official data. American political scientist GH Gadbois’ book ‘Judges of the Supreme Court of India: 1950-1989’, estimated that almost 50% of the judges were from other forward castes. Sticking with the Supreme Court, 256 judges have been appointed to the apex court since its inauguration. Only 5 have been from SCs, 1 from STs, and 11 women.
Solving this issue, not just for the Supreme Court but for the judiciary overall, has resulted in some debate and discussion. The AIJS is one approach. It was first proposed in 1958 by the Law Commission and then in its subsequent reports in 1978 and 1986. If this were to happen, a Parliamentary bill would need to be introduced to set up a pan-India AIJS. Parliament can look to Article 312 of the Constitution, which deals with All-India Services.
If we look at the lower and subordinate courts, recruitment and appointment are done by the high courts and the government in the states they serve. In 2018, the Law Ministry worked with the Supreme Court for a nationwide examination to recruit 6,000 judges on a one-time measure. The goal was to wipe off the over 5,400 vacancies in the lower judiciary.
Given the need for better representation, would such a pan-Indian system ensure the pipeline issue gets fixed? Or is this a wrong approach?
VIEW: It’s a good idea
The 116th report of the Law Commission recommended that India have 50 judges per million population. What the AIJS would do is fix the bottlenecks in the localised recruitment of lower court judges. Given the number of vacancies and the urgency to fill them, they usually aren’t filled on time. There’s also no parity of training, salary, and remuneration for judges across India.
What would such a system look like? We’ve already got one for the civil services. So, why not one for the judiciary? It would be a similar merit-based, competitive and transparent process. Even the Supreme Court was in favour of an AIJS. When the government proposed it a few years back, they defined it as “a proper all-India merit selection system”. This system would ensure the government and the judiciary will have a large talent pool to choose from.
The issue of representation would be the crux of the AIJS. The key here is pan-India. Similar to the IAS and IPS, the AIJS would standardise and streamline judicial recruitment. A pan-India recruitment process would help nurture and promote youngsters from lower to higher courts. It would also help reduce or eliminate the scope for political interference and irregularities in the recruitment process.
COUNTERVIEW: There’s no consensus
If the goal is to have better judges and increased representation, then an AIJS may not be the solution. Apart from the details of it all, would the courts agree to such a system? The answer is probably not. Last year, the Union Law Minister stated in the Rajya Sabha that there’s no consensus on an AIJS. Only two high courts were in favour.
When an AIJS was previously proposed, some states were sceptical. Others were staunchly opposed to it. The issue of federalism and constitutional powers has come up before. Separation of powers is crucial for states, and a centralised recruitment process would infringe on their rights and duties in recruiting judges for lower and high courts. The structural issues plaguing lower courts would best be left to the states.
Coming to diversity, the current recruitment process via respective high courts and subordinate judicial officers through public service commissions is better. Here, there’s scope for reservation and a better understanding of local practices. Judicial business is often conducted in regional languages, which could be affected by central recruitment. Judges, unlike the civil service, aren’t assisted by a bureaucracy in decision-making.
Reference Links:
- Explainer: Ensuring social diversity in the appointment of judges – The Leaflet
- A Recruitment Pipeline For Judges Like IAS? Why Centre Is Pushing For All India Judicial Service – News18
- NEET-like national entrance exam proposed to recruit judges for lower courts – Hindustan Times
- Judicial service – Tribune India
- President Murmu backs all-India test to appoint judges – Hindustan Times
- AIJS: Will this IAS-like service work for judge recruitment? – Deccan Herald
What is your opinion on this?
(Only subscribers can participate in polls)
a) India needs an All-India Judicial Service.
b) India doesn’t need an All-India Judicial Service.
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