All India Judicial Service - NITI Aayog’s Proposal
iasparliament
January 05, 2019
What is the issue?
NITI Aayog, in its recent ‘Strategy for New India @ 75’ document, made a strong case for the creation of All India Judicial Service.
But the varied limitations and concerns in its implementation call for a relook on the proposals.
Is this the first time?
All India Judicial Service (AJIS) is being advocated akin to the other central services like the IAS and the IPS.
The idea of an All India Judicial Service (AIJS) has been deliberated since Independence.
The first law commission in its 14th Report on Reform of Judicial Administration recommended creating a separate all-India service for judicial officers.
It favored an AIJS to ensure that subordinate court judges are paid salaries and given perks at parity with government bureaucrats.
The objective was to incentivize the option of the state judiciary as a viable career prospect.
Subsequently, a crucial step towards formalizing the process for setting up an AIJS was taken under 42nd Constitutional Amendment in 1976.
What is the constitutional provision in place?
With 42nd Constitutional Amendment, Article 312 was amended to confer power on the Rajya Sabha to initiate the process for setting up an AIJS.
To this effect, it has to pass a resolution supported by two-thirds majority in the house.
The provision also restrained the composition of such a service to the rank of district judges (defined under Art 236), excluding the lower subordinate judiciary.
So, given this mandate under Art 312, the creation of an AIJS is constitutionally permissible.
Presently, the appointments to the subordinate judiciary are made under Articles 233 and 234 of the Constitution.
However, the amended Art 312 commences with a non-obstante clause, overriding these provisions.
Therefore, any appointments made to the post of district judges, in terms of a law enacted under Art 312 would not conflict with the existing process.
Furthermore, entry 70 of the Union List (List I Schedule VII) provides Parliament the exclusive authority to enact a law creating such an AIJS and all connected matters.
What are the limitations?
Despite the constitutional permit, there are some significant concerns which remain unaddressed in the NITI Aayog’s proposal.
Vacancy - The AIJS is being proposed as a way to address the vacancy crisis plaguing the Indian subordinate judiciary.
But notably, the Constitution permits only the appointments of district judges to such a prospective AIJS.
At best, AIJS can only offer a more streamlined recruitment process for the limited number of vacancies for district judges in the country.
Composition – NITI Aayog has proposed a much wider composition for AIJS than what is permissible under Article 312.
It has covered entry level civil judges, prosecutors and legal advisers to comprise the service.
But such a sweeping mandate would require considerable amendments to the Constitution.
This is especially with respect to the appointments process for the lower subordinate judiciary (all ranks below that of a district judge).
These amendments, establishing a centralized appointments mechanism, may be constitutionally unsound.
It is also vulnerable to being struck down as violations of the basic structure doctrine and judicial federalism.
Disagreement - The central selection mechanism has been contentious within the legal fraternity and other stakeholders.
There are concerns with the need to familiarize with local languages, customs, and laws of the state where a potential judicial officer will be posted.
There are also procedural challenges to the need to ensure reservation for locally domiciled citizens.
In all, the NITI Aayog’s proposal should be revised in the light of these concerns and challenges.
