A Critical Analysis of the All-India Judicial Services

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Introduction

The idea of All India Judicial Services (hereinafter AIJS) arose in Post Independent India when there was a need to unify the system of judicial appointments in the country. However, till date there has been no such implementation despite there being so many efforts in this direction.

There has been constitutional amendment in this regard, the apex court has itself argued the necessity and implementation of AIJS along with the law commission reiterating for the need of same in their numerous reports.

It is a matter of fact that the appointment of judges to the constitutional courts are made under the hand and seal of the President of India whereas the appointment of the judges to the district courts are made by the governor of respective state(s) “in consultation with the High Court having jurisdiction in relation to such state.”[1]

This in turn brings us to the idea of federal structure wherein there are levels of appointment. In the need to fill the vacant positions in the district courts, there has arisen a need for the All-India Judicial Services. However, there seems to be so many problems with regards to its implementation.

This research paper is an attempt to bring out those problems and to critically comment on them. Through this research paper, the author will look into the constitutional and legal authorities which back the need for the implementation of AIJS. It is also an attempt to see as to whether the idea of All India Judicial Services is antithetical to the idea of federal structure since the services will seek to centrally appoint the judges to the judiciary.

It will also look into as to whether the idea of All India Judicial Services should be kept at par with other All India Services considering that judiciary has to remain an independent institution, free from the clutches of the government and the executive. Lastly, it will analyse the socio-legal problems which have encapsulated the implementation of All India Judicial Services.

All India Judicial Services vis-à-vis the Federal Structure and Judicial Independence

The idea of AIJS has been long due in the sense that there are relevant authorities not just in the constitution but also in the judicial pronouncements and the law commission of India’s reports. The idea has been brought to the public and political domain but it has not yet been possible in the light of central judicial appointments.

Through the 42nd Constitutional Amendment Act, 1976[2] the provision for AIJS was inserted in article 312(1) of the constitution which provides for the All-India Services. However, the creation of AIJS or any All-India Service is preceded by the inherent national interest. This by itself implies that if it is in the national interest to have an AIJS, the “Rajya Sabha may pass a resolution supported by not less than 2/3rd of the members present and voting.”

It is to be noted here that the term “national interest” is to be construed with utmost diligence. In a highly diversified country like India, to decide what is in the national interest is a tedious task since the federal nature of the very constitution and its institutions therein may have their own self-interest which might clash with the national interest. This is exactly what is happening with the implementation of AIJS.

The very federal nature of the constitution and its institutions lays down levels of governance. While the Supreme Court is at the Central or Union level, High courts are at the state levels. Similarly, the district courts are at the district or subordinate level.

The parallel of this structure can be seen in terms of the legislature as an institution. The parliament is at the Central or Union level, State Legislatures are at the state levels and Village Panchayat and/or Municipal Corporations are at the Gram and/or District Level.

Just like state legislatures have control over the Village Panchayat[3] and/or Municipal Corporations, High Courts of respective states have control over the district and/or subordinate courts.[4] This clearly depicts the federal nature of the legislature and the judiciary.

The decentralization of power ensures greater participation and ensures that power is not concentrated in few hands. While decentralization also ensures greater efficiency and this has been a matter of fact that in a diversified country like ours, it is better to have a leaning towards the federalism.

To ensure further decentralization of power in terms of the legislative powers, federal structure of the legislature was enhanced when the 73rd constitutional amendment act, 1992 was passed.[5] Therefore, a question arises when the functions of the legislature can be decentralized so as to strengthen federalism, why can’t the federalism in the judiciary be strengthened by ensuring that a centralized process to recruit judges is kept at stake and the High Courts be left with the power to recruit judges.

At the very outset, it is relevant to mention that federalism is a basic feature of the constitution[6] and this has been reiterated by various courts in several of their judgements.

A centralized mechanism to recruit judges poses two main issues. Firstly, it disturbs the very federal structure of the judiciary in the sense that a centralized mechanism will do away with the powers of the respective High Courts in terms of the place that they hold in the recruitment of District and/or Subordinate Courts.

In the of Supreme Courts Advocates-on-Record Association vs. Union of India,[7] the Supreme Court observed there are certain powers within each branch and that one’s power must not be any interference with respect to the powers of others.

Article 233 of the constitution bestows power upon the governor to exercise control over the district courts in respect of all the appointments and promotions made therein in consultation with the respective High Courts. It is to be noted that if the recruitment or conditions of services are to be amended, article 309 of the constitution has to be referred to.

However, such amendment shall be in consonance with article 233 of the constitution otherwise such a practice or a law would be ultra vires.[8]

This points to a question as to whether the constitution of AIJS, will it not violate the constitutional mandate of article 233? Will such a practice not be ultra vires on account of such violation? Even though the answer to this question is negative in extreme sense because of the unitary nature of the constitution and the government, the practice will be antithetical to the idea of federalism.

While there is clear division of power, the implementation of AIJS will seek to take away this power of the governor and the High Courts therein as the process will be centralized. The centralization of the power in this context will disturb the federal nature of the judiciary.

It is also pertinent to mention here that considering the huge diversity in terms of religions and customs, the lower judiciary is the starting point for any dispute and this starting point is well versed with the customs of the local people, something which the central authority is partly, if not completely, unaware of.

Secondly, the AIJS will allow the executive to step in the process of judicial appointments, thereby hampering judicial independence which has been observed as a basic feature of the constitution.[9]

While article 235 of the constitution provides for control of High Court over the district and subordinate courts and this is an element of judicial independence, the constitution of AIJS will seek to deter this independence and will allow the executive to step in and take up the process.

The control of High court over the district and subordinate courts comprehends a wide variety of matters and is “exclusive in nature, comprehensive in extent and effective in operation.”[10] When the process will be centralized, it will overlook the element of judicial independence by giving powers in the hands of the few executives.

The current appointment mechanisms in the lower judiciary involve the consultation of the High Court judges.[11] The control of the respective High Courts over the subordinate courts “is for the purpose of preserving the judicial independence and its protection from the executive interference.[12] The judicial independence, in this respect, shouldn’t be diluted in the strictest sense.

Article 233 of the constitution requires consultation of the High Court and this is an inevitable element as was seen in the case of State of Bihar vs. Bal Mukund Sah.[13] It would be worth noting as to whether when there is no consultation from the respective High Courts in terms of the appointment of judges, will this not infringe the very federal nature of the constitution?

Moreover, such an appointment wherein there is no consultation from the High Court will be unconstitutional as was seen in the case of Chandra Mohan vs. State of U.P.[14]  There are judicial precedents which have placed emphasis on the consultation element.

The constitution of India places a great emphasis on the element of separation of powers and any interference in the judicial procedures will not get along with the basic feature of the constitution. In case where the appointment of district judges was made by the government without the prior consultation of the respect High Court, the appointments so done were altogether quashed.[15]

Though the appointments are still done by the executive, the condition precedent to it is a mandatory element, which is of a prior consensus of the respect High Court. This provision, therefore, brings in the dual nature of appointments to the district courts viz., the federal principle and the judicial independence. And, with the coming up of AIJS, both of these elements will be largely affected.

Problems circumnavigating the implementation of All India Judicial Services

Though the idea of AIJS has been advocated and mooted by various institutions such as the Supreme Court, Law Commission of India etc. several times, yet its implementation faces major challenges every time the matter is up for implementation.

The major issue with respect to its implementation is regionalism or localism. While the district and subordinate courts work on a local level, the officers therein are well versed with the practicality of the situations and the laws existing. This depicts the very feature of the federal nature viz., the federalism can be ensured when people are as close as possible to the institutions.

Whereas, the farther the people from the political institutions, the more unitary the constitution gets. While regionalism or localism ensures and strengthens federalism, centralism ensures and strengthens centralization and subsequently less participation. AIJS, in the like sense, suffers from the infirmity of centralization in the sense that a central authority would not take into account the local or regional interests.

While there will be more emphasis on the central laws; state or regional laws will suffer from having place in the central recruitment process. This, in turn, will affect those recruited officials who are not acquainted with the regional or local practices or customs.

The government is willing to conduct the exam at the zonal levels such as north, south, east, west and central.[16] However, the government in this plan has failed to take into account the regional aspect. While the zonal method of recruitment is a welcome step, it can’t be said to ensure regionalism because even within the zones there are several states which might altogether have different socio-legal elements. And hence, this option is also not feasible.

Another issue which is a result of or rather emanates from regionalism or localism is the language issue. The argument that when Indian Administrative Services (IAS) and Indian Police Service (IPS) officials can learn the local language, why cannot a judicial officer learn the local language seems to be a flawed argument.

It is flawed on two grounds. Firstly, it is not mandatory for an IAS or IPS officer to learn the local language and therefore, the officers can choose to either limit their interaction with the local people or hire a translator.

On the other hand, when it comes to judicial officers, learning a local language will be a mandatory thing as the local proceedings are conducted only in the local language. Hence, there is no option on the part of the judicial officers to limit their interaction with the local people. Moreover, they cannot hire translators for their ease as then the entire purpose or job of the judicial officer will serve no real purpose.

Secondly, even though the judicial officers learn the local language, it would not be easy for them to quickly understand the legal jargons which are altogether a different ball game. In this sense, learning a local language is very different from learning and understanding the legal jargons.

Even if the government, still, sticks to the idea of AIJS, this entire process of ensuring that language does not act as a barrier will take considerable amount of time, thereby jeopardizing the inherent purpose of AIJS, that of filling vacancies arising in the lower judiciary effectively and efficiently.

Another major issue which infirms the implementation of AIJS is that of judicial consensus. Article 368 of the constitution requires consensus from the states with respect to any amendment that is sought by the parliament in respect of the High Courts in the states.[17] This provision seeks to bring about the true federal nature of the constitution.

While the AIJS seeks to bring about a centralized mechanism to recruit and induct judicial officers, this is bound to dilute the power of superintendence and control of High Courts over the district and subordinate courts.[18] Hence, the implementation of AIJS requires the consensus from the states and the High Courts and as, per the constitution, at least one-half of the states shall ratify such an amendment.[19]

In a bid to implement AIJS, the Centre has sought the responses from the states and the High Courts with respect to the AIJS. However, the responses sought do not imply that a great deal of power devolution.

As many as 13 High Courts are not in favour of AIJS and 8 states have opposed the constitution of AIJS.[20] Moreover, there are various states and High Courts which have not responded to such a proposal while many others want changes in the present way of constitution of AIJS.

This comes as an utter shock to the central government and the Supreme Court as they are pushing for the constitution of AIJS but such a response will not go well along with the provision of AIJS.

Such a response from the states and the High Courts can act as an impediment to the constitution of AIJS particularly at a stage when the district courts and the subordinate courts are plagued with several problems as claimed by the supporters of AIJS with burgeoning cases, presence of corruption and nepotism, high vacancies among a few of them.

It is a fact that India follows a quasi-federal system of governance. However, the features are more unitary than federal[21] in the sense that there is a natural inclination towards the centre.

However, the courts while looking into matters which have an inclination towards the centre must ensure that the federal structure is not compromised at the very outset. But, if the situations or circumstances require that the matter shall be dealt with the parliament despite having a clear bifurcation of powers between the stats and the centre, the inclination should shift from the federal structure to a more unitary structure.

India does not specifically and strictly follow the federal structure as it exists in USA and hence the states in situation like these are bound to dilute their powers by the very measures taken by the parliament. The transition from a weak centre and strong states in the Cabinet Mission Plan[22] to strong centre and weak states led to this inclination of more unitary than federal.

This unitary element is pertinent in various respects. For instance, entry 70 of Union List provides for creation of All India Services and AIJS is being considered as one of those All-India Services.

While the parliament has the power to constitute any All-India Services provided there is some valid backing but the parliament, in doing so, cannot ignore the fact that actions which sought to disturb the federal nature of government even in the narrowest sense. Moreover, the question is not just of disturbing the federal structure but also the practicality.

With respect to the arguments which are advanced by the proponents of AIJS vis-à-vis the common pay remuneration, common working conditions, common recruitment system and thereby ensuring greater efficiency is an unsubstantiated claim. Though it is true that there are so many vacancies in the district and subordinate courts but having an AIJS may fill the vacancies timely is not backed by any relevant evidence.

It is better at this juncture to analyse the problem and then come up with a solution rather than focusing on the solution which is an unsubstantiated one as there is no empirical data which supports the claim that filling the vacancies only through a centralized mechanism will ensure that the pendency of cases is reduced over a period of time.

Also, with respect to large cases pending in the district and subordinate courts, the problem lies not in the large number of vacancies present but it has more to do with the judicial processes which seek to delay the proceedings for a number of years without even making a case out of it.

At the very outset, it would be a tedious task to constitute an AIJS as this will require a great revamp of the existing system while also ensuring that there is a commonality in the existing working conditions as without this, it would be pointless to constitute an AIJS.

Conclusion: The Way Forward

The constitution of AIJS has been facing major issues not just with respect to its constitution but also with respect to having a consensus in the first place. The idea in itself seems to be problematic since it is most plagued with regionalism.

States, particularly the North Eastern States have their own peculiar culture, tradition and ethos as the matters of dispute arising therein are adjudicated and the justice is rendered from place to place and from tribes to tribes.

While AIJS will ensure a centralized mechanism, it will not take into account the local interests. It might also create instability in the justice delivery mechanism as the local laws might be overlooked by the very fact that the judicial officers appointed may not be well acquainted with those laws.

Moreover, what will be the language of such an exam is a question worth asking as any common language, if taken for the purpose of this exam, will not go well with those who do not speak that language. While the proponents of AIJS are claiming that the powers of the respective High Courts will not be tampered with and that they shall continue to hold interviews, this is a questionable aspect.

Moreover, the parallel of IAS and IPS vis-à-vis AIJS will not work since the judiciary has to remain an independent institution even when it comes to the judicial appointments and that the executive cannot step in to make such appointments. Even though there are many relevant provisions and authorities in the constitution to constitute an All-India Services, the question still remains there as to the federal structure and the judicial independence.

Instead of focusing on AIJS, it is better to have a system where federalism thrives while ensuring that the loopholes are filled. It is true that the entire process of recruitment of judges to the lower judiciary takes considerable amount of time and that there is no regularity in the recruitment process but instead of going for a centralized system, it is better to ensure that the gaps are filled.

This can be done in terms of a common provision vis-à-vis the working conditions and the common pay across the country. India does not follow a strict separation of power and hence the legislature should step in to ensure that that the working conditions are as per the standards while also ensuring that there should be a minimum pay to all the judicial officers.

It is not a proper thing to have such a huge disparity in terms of the pay that the higher judicial officers are getting and the lower judicial officers are getting. Moreover, to fill up vacancies quickly, there should be a timeline within which the vacancies shall be filled. Additionally, the vacancies shall be filled at regular intervals so as to ensure that there is less or no vacancy.

References

  1. The Constitution of India
  2. M P Jain, Indian Constitutional Law, (Lexis Nexis, 8th Edition/2018)
  3. Durga Das Basu, Introduction to the Constitution of India (Lexis Nexis, 24th Edition/2019)
  4. Law Commission of India. “116th Report on formation of All India Judicial Services” (November 1986)
  5. All India Judges’ Association vs. The Union of India
  6. The Constitution (Forty-Second Amendment) Act, 1976 available at: https://legislative.gov.in/constitution-forty-second-amendment-act-1976 (Last visited on March 18, 2022)
  7. The Constitution (Seventy-Third Amendment) Act, 1992 available at: https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-seventy-third-amendment-act-1992 (Last visited on March 18, 2022)
  8. R. Bommai vs. Union of India, AIR 1994 SC 1918
  9. Supreme Courts Advocates-on-Record Association vs. Union of India, (2016) 5 SCC 1
  10. State of Bihar vs. Bal Mukund Sah, AIR 2000 SC 1296
  11. Chief Justice, Andhra Pradesh vs. L.V.A. Dikshitulu, AIR 1979 SC 193
  12. Chandra Mohan vs. State of U.P., AIR 1966 SC 1987
  13. M. Gupta vs. State of Jammu and Kashmir, AIR 1982 SC 1579
  14. Hari Datt vs. State of Himachal Pradesh, AIR 1980 SC 1426
  15. drafts All India Judicial Services Plan available at: https://www.hindustantimes.com/india-news/govt-drafts-all-india-judicial-services-plan/story-5Evr1R2Xy43jNaP7VFTjOP.html (Last visited on March 18, 2022)
  16. Lok Sabha Starred Question No. 191; AIJS (10.12.2021) available at: https://hindi.livelaw.in/pdf_upload/as191-405734.pdf (Last visited on March 18, 2022)
  17. Shamsher Singh State of Punjab, 1975 SCR (1) 814
  18. C. Alexander, “The Cabinet Mission’s Scheme and Division of Powers: The problem of a weak centre and strong units” 8 The Indian Journal of Political Science 736-741 (1947)

End Notes

[1] The constitution of India, art. 233 (1)

[2]  The Constitution (Forty-Second Amendment) Act, 1976 available at: https://legislative.gov.in/constitution-forty-second-amendment-act-1976 (Last visited on March 18, 2022)

[3] The Constitution of India, art. 243 C

[4] The Constitution of India, art. 233

[5] The Constitution (Seventy-Third Amendment) Act, 1992 available at: https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-seventy-third-amendment-act-1992 (Last visited on March 18, 2022)

[6] S.R. Bommai vs. Union of India, AIR 1994 SC 1918

[7] (2016) 5 SCC 1

[8] Hari Datt vs. State of Himachal Pradesh, AIR 1980 SC 1426

[9] S.P. Gupta vs. Union of India,

[10] Chief Justice, Andhra Pradesh vs. L.V.A. Dikshitulu, AIR 1979 SC 193

[11] The Constitution of India, art. 233

[12] M.P. Jain, Indian Constitutional Law, 642 (Lexis Nexis, 8th Edition/2018) 

[13] AIR 2000 SC 1296

[14] AIR 1966 SC 1987

[15] M.M. Gupta vs. State of Jammu and Kashmir, AIR 1982 SC 1579

[16] Govt. drafts All India Judicial Services Plan available at: https://www.hindustantimes.com/india-news/govt-drafts-all-india-judicial-services-plan/story-5Evr1R2Xy43jNaP7VFTjOP.html (Last visited on March 18, 2022)

[17] The Constitution of India, art. 368 (2) (b)

[18] The Constitution of India, art. 227

[19] The Constitution of India, art. 368 (2) (e)

[20] Lok Sabha Starred Question No. 191; AIJS (10.12.2021) available at: https://hindi.livelaw.in/pdf_upload/as191-405734.pdf (Last visited on March 18, 2022)

[21] Shamsher Singh vs. State of Punjab, 1975 SCR (1) 814

[22] P.C. Alexander, “The Cabinet Mission’s Scheme and Division of Powers: The problem of a weak centre and strong units” 8 The Indian Journal of Political Science 737 (1947)


This article was submitted by Ayush Gaur, a student at Tamil Nadu National Law University.


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