Monday, January 17, 2022
 
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All India Judicial Service – “ A Solution in search of a Problem ”






B L Saraf





The Central government is preparing to give fresh thought to the establishment of an All India Judicial Service ( AIJS ) on the lines of the central services . There are reports that it is in the process of drafting a bill to introduce AIJS which will push for creation of unified Pan – India judicial service for appointing judges to the lower judiciary .
The concept of AIJS was first proposed by the 14th report of Law Commission in 1958 . Law Commission Report of 1978 reiterated the idea. In 1976 Central government brought about 42nd amendment to the Constitution of India which , among other things, amended Article 312 Clause (1) thus paving a way for creation of AIJS . Clause (3) of the amended Article 312 excluded posts inferior to that of the district judge ,as defined by the Article 236 , from the sweep of AIJS . In 2006 the Parliamentary Standing Committee on Personnel , Public Grievances ,Law and Justice in its 15th Report backed the idea of a pan Indian judicial service.
In 1992 , the Supreme court in All India Judges’ Association case directed the Centre to set up AIJS and in 2017 it mooted a Central Selection Mechanism to conduct a common examination for recruitment of the District Judges (DJs ) . In late 1980s , the J &K High Court conducted an elaborate exercise on the issue . Many stake holders were consulted but , for variety of reasons , didn’t muster enough support for the idea. The Central government ,in 2019 , spearheaded a consultative process for creation of all India judicial Service . It intended to appoint 5000 judges to the lower judiciary on the basis of all India competition and create a centralized cadre of District Judges .
Article 233 the Union Constitution and Sec 109 of , now in operational -J & K Constitution said that the recruitment of the DJs is to be made by the Governor in consultation with the State High Court . While as under Article 234 of the Union Constitution and Section 110 of the State constitution appointment of Sub Judges is to be made by the Governor on the recommendations of the State Public Service Commission .
Claimed Merits of AIJS
It is said that AIJS will ensure an efficient subordinate judiciary , address structural issues such as varying pay and remuneration across states , will fill vacancies faster and ensure standard training of judicial officers across country .Next, it is argued that it is will facilitate speedy Dispute Resolution and do justice to the Judge –Population Ratio , attract Talent Pool , ensure higher representation of women and Marginalized sections of the society . Vidhi Centre For Legal Policy has come up with a Report titled -“A Primer on AIJS –A Solution in search of a Problem ” which concluded that most of the reasons for creating AIJS have been resolved through changes made in Rules , Regulations and Practices .
Thanks to the Supreme Court , now there is pan- India uniformity in pay structure and remuneration among members of the District Judiciary . Facilities provided are also equal in nature . They are governed centrally and exclusively as per the guide lines settled by the SC In All India Judges Association case of 1993. There is a National Judicial Academy run by the Supreme Court which conducts training and refresher programs for the District Judiciary –across states –on regular basis . Besides that every state has a Judicial Academy run by the respective High Courts for the similar purpose. National Legal Services Authority Act and State Legal Services Authorities Act ensure that there is a cost effective and speedy dispute resolution .It is common knowledge that- even without AIJS - the institution of Lol –Adalat has come to stay with fair success in speedy dispute resolution .
Demerits
A centralized recruitment process will go against the nature of federalism and will be an encroachment on the powers of states granted by the Constitution . Every individual state has unique linguistic and cultural characteristics which cannot be addressed by AIJS.
Skewed Parallel with IAS and IPS
To know the difference of working of IAS ,IPS and the proposed AIJS one has to understand the nature of job of a judge and an administrative officer . A judge has to be discernible to everything that goes before him .True , lawyers are there to assist him in conducting the proceedings but he is not absolved of his duties cast on him by Procedural Codes and law of Evidence . He has a duty to examine a person brought as a witness by a party , or otherwise , if it is necessary to arrive at a just and a fair decision in the case .Similarly , a judge has a legal duty to record demeanor , way of narration and other associated mannerism of a witness produced before him ,besides seeking a clarification of facts deposed by the witness , if there is a manifest ambiguity in his statement . That requires a judge to develop- what noted jurist Falli Nariman would say - a 3rd Eye to see what is invisible to an ordinary person and a 3rd Ear to hear what not audible to a common man . He must be alert to discern something which the silence of a crafty witness speaks out eloquently . As Court proceedings are conducted in a local language , therefore , for a judge to do justice to a cause it is essential to be fully conversant with the local languages , dialect , the idiom and the local legal jargon .He should have a sharp sense to understand local folklore and mannerism specific to a particular area .
Seen as above , it is false assumption that if unfamiliarity of local language in case of IAS and IPS officers can be sorted out by language training in the state of the posting it could be so with an AIJS Officer . This argument runs counter to the reality . For IAS and IPS officer knowledge of local language may be desirable but cannot be a pre-condition for the service . Many a time such officers are posted at a place where day to day interaction with local population is limited .So they don’t suffer a major impediment in discharge of the duty . These officers can always take the help of their staff to understand an issue : a judicial officer doesn’t enjoy such a luxury .
Once the AIJS is in place, there is every likelihood of state High Courts loosing grip over the District Judiciary ,as we have seen how at times state governments become helpless to rein in a recalcitrant IAS officer whose gaze is fixed to his real boss in Delhi . The argument that recruitment process of the DJs would get expedited once a centralized mechanism is in place won’t cut much ice . No matter the hue of a central government , it has become a regular thing for it to take years to fill up the vacancies . If the latest proposal of CJI for setting up Judicial Infrastructure Corporation goes through the structural issue raised in favor of AIJS would get automatically resolved .
The votaries of AIJS plead that “ Bottoms –UP Approach “ in the recruitment would address issues like corruption and nepotism in the lower judiciary . We don’t know on what kind of anecdotal evidence they say so . We have the continuing experience that , despite the centralized process , the appointment to the higher and highest judiciary in the country is getting delayed . Delay in establishing Consumer Redressal Fora in J K is a glaring example . Experience tells that it is the “ Trickle Down Effect “ that has most aggravating consequences so far as questions of corruption and nepotism are concerned . Rather than proposing AIJS it will be desirable to investigate the causes of delay in filling up the large scale vacancies and reasons for the laws delay . AIJS will create more problems than solve any .




(The author is a Former Principal District & Sessions Judge. Feedback- [email protected] )



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