This post has been written by Aditi Singh, a first year law student from Hidayatullah National Law University, Raipur
Before discussing about All India Judicial Services examination, we should know about the Judiciary in our country. India has a single integrated system of Judiciary in the view of a single Constitution. The framework of the current legal system has been laid down by the Indian Constitution and judicial system derives its power from it. The Constitution of India is the supreme law of the country, the fountain source of law in India. The judiciary in India acts as the custodian of the Indian Constitution and the protector of the Fundamental Rights of an individual. The Indian Judicial System is one of the oldest legal systems of the World. The local customs and religion majorly influenced the Indian legal system. The judicial system in India is integrated and pyramidal in structure with the Supreme Court at the top and the High Court and the other Subordinate Courts.
There are various levels of judiciary in India – different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of importance, in line with the order of the courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with district judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. Courts hear criminal and civil cases, including disputes between individuals and the government. The Indian judiciary is independent of the executive and legislative branches of government according to the Constitution.
CURRENT PROCEDURE OF RECRUITING JUDICIAL OFFICERS IN SUBORDINATE JUDICIARY
Currently, the recruitment of lower level judicial officers is conducted by the respective state governments in consonance with the State High Courts. There are majorly two ways to become a judicial officer in our country – the first is LOWER JUDICIARY SERVICES EXAMINATION, any student who has completed his/her law degree can give this exam. The exam is conducted in 3 steps first the students have to give prelims and then the selected students will proceed to give mains and finally the students will be selected for the interview. Students who clear the Lower Judiciary Services exam are posted as civil judge junior division, who has the power of a Judicial Magistrate second class. The second way is to give HIGHER JUDICIARY SERVICE EXAMINATION, anyone who has some experience in litigation generally for 7 years is eligible for this. A person who qualifies it can directly become an ADJ, that is, Additional District Judge.
It takes 15-20 years of service to become a District Judge and then some of the district judges gets the chance to go to HIGH COURT, and they are selected by Collegium system.
WHAT IS ALL INDIA JUDICIAL SERVICES (AIJS)
Now we are going to discuss about the meaning, history, need, benefits and some of the arguments against the All India Judicial Services Examination(AIJS) :
- AIJS is a proposed cadre of judicial officers at the lower levels (below High Courts) recruited through an open competitive national level exam.
- It is proposed to be an All India Service under Article 312. A National Judicial Commission will also be constituted to oversee the AIJS, working on the lines of UPSC.
- Currently, the recruitment of lower level judicial officers is conducted by the respective state governments in consonance with the State High Courts.
- District judges will get recruited centrally through an all-India examination and allocated to each State along the lines of the AIJS.
BRIEF HISTORY OF AIJS
- The Constitution of India in its original form did not carry any provision on AIJS but the Drafting committee, at last, came out with Article 235 which puts the lower judiciary under the control of the High Court.
- The proposal for an All-India Judicial Service (AIJS) in lines of All-India Services was proposed as early as 1950.
- The idea of formation of AIJS first came out as a proposal by the Law Commission of India in 1958.
- After the Swaran Singh Committee’s recommendations in 1976, Article 312 (which deals with creation of new All India Service (AIS)) was modified to include the judicial services, but it excluded anyone below the rank of district judge.
- The Chief Justices conferences in 1961, 1963, and 1965 favouredcreation of All-India Judicial Services and even the Law Commissions (1st, 8th and 11th, 116th) had suggested the creation of the service. However, each time it was faced with opposition.
- The proposal was again floated by the ruling UPAgovernment in 2012 but the draft bill was done away with after opposition from High Court Chief Justices who labelled this an infringement of their rights.
- Most recently, the Central Government after holding a meeting presided over by the Law Minister Ravi Shankar Prasad had sought the advice of its two top law officers – Attorney General Mukul Rohtagi and Solicitor General Ranjit Kumar – on the question of constituting All-India Judicial Services just on the lines of All-India Civil Services.
NEED FOR All India Judicial Services:-
- Huge vacancy of judges and delay in recruitment: Currently there are about 5400 vacant posts in lower judiciary across the country and a pendency of 2.78crore cases in lower judiciary primarily due to inordinate delay in holding regular exams by states.
- Dearth of good quality judicial officers: The ever continuing decline in their quality will delay delivery of justice, increase pendency of cases, impair quality of judgments, and in turn affect the competence of higher judiciary as well.
- Lack of finances with state governments: State judicial services are not attractive for ‘best talents’ due to low salaries, rewards and compensations by the state governments.
- Lack of specialized state training institutions: Adjudication is a specialization which requires state of the art training institutes and professors but state institutes don’t allow such exposure to interns.
- Discretion of a narrow body: The process of selecting a good judge is a difficult job and should not be left at the discretion of few persons (collegium) however sagacious they may be.
- Subjectivity in the process:Current judicial appointments at the lower level and upper levels suffer subjectivity, corruption and nepotism on the part of Collegium, hence there is a need to reflect the social reality and diversity of the country by establishing a neutral and impartial system of recruitment.
Benefits of AIJS:-
- Accountability and transparency:A career judicial service will make the judiciary more accountable, more professional, and arguably, also more equitable.
- Infuses objectivity in recruitment: Open competitive exam would bring objectivity in the recruitment process of judiciary by reducing discretion of selection panel.
- Securing the best talent:AIJS will ensure a transparent and efficient method of recruitment to attract the best talent in India’s legal profession. Also the prospects of promotion to High Courts, for lower judiciary, at an early age would increase as they currently join at much later age than judges from the Bar.
- Uniformity across the country: Quality of adjudication and the dispensation of justice would attain uniformity across the country by ironing out state-level differences in laws, practices and standards.
- Checks pendency of cases:Streamlined and objective recruitment process would ensure regular stream of good quality judicial officers for vacant posts, which would reduce pendency of cases.
- Representative Character:AIJS will improve the judiciary’s representative character by drafting in trained officers from deprived sections of society especially women and SC/STs.
- Overall Efficiency: A well-organized judicial service can attract talent from our law schools and young, well-informed judicial officers at the level of additional district judge will make a difference. As ADJs and district judges, they can help make the judicial system move faster and more efficiently.
ARGUMENTS AGAINST ALL INDIA JUDICIAL SERVICES EXAMINATION WITH PROBABLE SOLUTIONS
The topic of AIJS has been discussed since 1950s, but still we does not have any national level examination for judiciary and the main reason behind it is the objections and arguments against it. The judiciary in our country especially the High Courts have been continuously repulsive to the proposal for the institution of All India Judicial Services examination. The main arguments against AIJS are as follows :-
- Local language problem: Courts up to District and Sessions Judge transact their business in State language and AIJS officers would find difficult to acclimatize themselves with local language, thus hampering dispensation of justice.
- I don’t think that language is a barrier in this era of technology like there are advance translating devices which literally translate in real time speed. We use these type of devices in Parliament and in various international meetings of UN, BRICKS, SAARC, etc. Moreover, learning a language is never that difficult. For example – If we look at the people who are selected through UPSC hardly get posted to their domicile state, they usually learn the local language of place where they are posted.
- Problem of local laws and customs:AIJS does not take into account the problem of local laws, practices and customs which vary widely across States, thus increasing the costs of training for judges selected through the mechanism.
- I don’t think that learning about some local laws, practices and customs will cost any major value. The concerned state can conduct a little workshop regarding local laws and customs for the selected candidates.
- The communities recognised as Other Backward Classes (OBC),Scheduled castes (SC) and Scheduled Tribes (ST) by State governments may or may not be classified as OBCs, SCs and STs by the Central government.
- This can be a political issue but it can be resolved. We should observe like how other national level exams like UPSC deal with this issue.
- Young age of the selected candidates : one of the objection was whether a person who will clear the exam in the age of 24-25 would have enough experience to be in the position of a D.J.
- A simple solution to this argument is if a person as young as 22 is able to work as an IAS officer than why a candidate as young as 24-25 cannot work as a judicial officer. The selected candidates will obviously go through a vigorous training which will make them mature enough to deal any stress. Most importantly you cannot judge someone’s capability on the basis of their experience, it should be judged on the basis of their maturity.
- Dilutes separation of power: If the control over state judiciary is transferred to Union government, through AIJS, by removing control of High Court as provided under Article 235 currently, independence of judiciary would be undermined.
- A national level exam can never snatch the independence of Judiciary. From time to time Judiciary has faced various allegations of corruption and nepotism, especially because of the Collegium system, so by conducting an exam where a candidate is selected on the basis of his/her merit, it will rebuild the transparency in the system.
Also, a country like America follows the method of “check and balance”, in which all the three branches, that is, judiciary, legislature and executive are independent but they keep a check upon each other, so the system work in a more transparent and progressive manner. So, if India starts following the “check and balance” method, it would improve the quality and efficiency of work.
I have discussed about the current procedure of recruiting judicial officers and I really think that All India Judicial Services should substitute it because if we want to create a robust judicial system at the subordinate level and a rich pool to draw from for the appointment of high court and, later, Supreme Court judges, the constitution of an Indian judicial service is a sound idea and only a meritocratic service with a competitive recruitment, high-quality uniform training and assured standards of probity and efficiency would be able to ensure speedy and impartial justice in India. As a matter of fact AIJS will be able to grab a lot of attention from the youth because it will ensure their representation from the very beginning as they will be selected on the basis of their merit and capability and not on their experience.