All India Judicial Service
What is ‘All India Judicial Service’
The All India Judicial Service (AIJS) is a proposed centralized system for recruiting and assigning district judges across India, similar to the UPSC's approach for central civil services. This proposal aims to improve the justice delivery system by attracting top talent, addressing social inclusion, and potentially streamlining recruitment processes.
Article 312 of the Constitution provides for the establishment of AIJS, which does not include any post lower to that of a District Judge. According to the view of the Government, a properly framed AIJS is important to strengthen the overall justice delivery system. This will give an opportunity for induction of suitably qualified fresh legal talent selected through a proper all-India merit selection system as well as address the issue of social inclusion by enabling suitable representation to marginalized and deprived sections of society.
Although due to existing divergence of opinion about the establishment of AIJS by various stakeholders, there is no consensus on the proposal for setting up an AIJS.
Legal provisions relating to All India Judicial Service
All India Judicial Service as defined in the Constitution
Article 312 of the Indian Constitution lays out the parameters for the establishment of AIJS. Aimed at creating a centralized cadre of District Judges, the creation of an AIJS will mean transferring the recruitment and appointment powers of these judges, from the High Courts and State Governments, to a centralized system, as exists for other All India Services.
The 42nd constitutional amendment 1976 confers powers to the Rajya sabha for the process of setting up and regulation of an All India Judicial Service, by a two-thirds majority, to declare it necessary or to expedite the process due to national interest. AIJS covers all posts that are mentioned under Article 236.
In contrast to the above, Article 233 of the Constitution states that the “recruitment to the lower judiciary is the prerogative of the state government”. This gives rise to a tussle of power between the centre and the states.
All India Judicial Service as defined in case laws
1. All India Judges Association v. Union of India (1993)
In this judgment, while the court did not mandate the creation of AIJS, it highlighted issues in the recruitment process of judges. The court held the view that the delay in justice delivery, the casual approach and incompetence in many instances is directly traceable to poor recruitment, lack of proper training, and dismal working conditions. It underscored the need for a more uniform, merit based selection process, supporting the creation of an All India Judicial Service.
2. Malik Mazhar Sultan v. U.P. Public Service Commission (2006)
A Public Interest Litigation was filed to address delays and irregularities in the recruitment of civil judges in Uttar Pradesh and other states. These issues increased the case pendency rates in courts. The Supreme Court noted that the large number of judicial posts remain vacant, resulting in severe case backlog and it affects access to justice. The Court emphasized that High Courts must take the lead in ensuring the process is conducted efficiently. It directed High Courts to coordinate with state public service commissions, monitor progress, and inform the Supreme Court Registry of compliance. This judgement called for a standardization of procedures across the states. It doesn't directly mention the AIJS but calls for creation of a centralized and standardized process of recruitment for judges.
Official Reports
14th Report of the Law Commission of India (1958)
The 14th Law Commission of India, in its 1958 report, proposed the creation of an All India Judicial Service (AIJS). The AIJS aimed to establish a centralized cadre of District Judges, similar to the IAS and IPS, potentially shifting recruitment and appointment powers from High Courts and State Governments to a centralized system. The creation of the AIJS was first proposed in this report, which was later followed by many discussions, reports and committees for deliberation of its efficacy. Although the AIJS has not been implemented yet, it is still under consideration.
77th Law Commission Report 1978
The recommendations of the 14th Law Commission report were later reiterated in the 77th law commission report calling for the establishment of a centralised recruitment system for the judiciary—the All India Judicial Service.
116th Law Commission Report 1986
The 116th report of the Law Commission recommended that appointments, postings and promotions to the AIJS be made by a proposed ‘National Judicial Service Commission’ consisting of retired and sitting judges of the Supreme Courts, members of the bar and legal academics. A problem created by this recommendation was that the creation of such a body will result in the immense concentration of power in a few hands. Apart from that, the report also suggests that India should have 50 judges per million population as against 10.50 judges (then). Currently, the figure stands at 21 judges in terms of the sanctioned strength.
15th Report of the Committee on Personnel, Public Grievances, Law and Justice
The report underscores the longstanding recommendation to establish the All India Judicial Service (AIJS) as a means to bring uniformity, transparency, and merit-based recruitment to the judiciary, particularly at the district and subordinate levels. The Committee highlights that despite continuous advocacy and the clear need to address large vacancies and delays in judicial appointments, the AIJS proposal has remained pending for years. It emphasizes that the creation of the AIJS is part of the Department of Justice’s mandate and urges the Ministry of Law and Justice to take prompt, coordinated action with the judiciary to finalize and implement the framework. The Committee sees the AIJS as a critical judicial reform necessary to enhance the quality, efficiency, and credibility of the judicial system.
Parliamentary Standing Committees
In its 15th Report (2006), the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice strongly advocated for the establishment of AIJS modeled after the All India Civil Services. The Committee directed the Law Ministry to expedite the creation of AIJS to address the lack of a centralized selection process in the judiciary, which contrasts with other government departments that recruit through the Union Public Service Commission (UPSC).
The Committee emphasized that a uniform selection mechanism would enhance the quality of judicial personnel across High Courts and improve the overall dispensation of justice from the subordinate courts upwards. It also highlighted that AIJS would help in filling vacancies promptly and ensuring standardized training nationwide
The 20th report supports the discussions raised in the 1st, 8th and the 11th Law Commission regarding the creation of an All India Judicial Service. It also takes into light the questions raised during the second judges case (All India Judges Association) in 1993 to make its decision for setting up of an All India Judicial Service.
The 32nd report filed as a reply to the 26th report which advocates for the creation of a centralized All India Judicial Service, published by the committee acknowledges the responses provided by states and the government regarding the establishment of AIJS, supporting its creation, being similar to the existing system for civil services, in order to attract talent and improve vacancies in courts. The committee recommends taking necessary steps including constitutional amendments if necessary, to establish AIJS without causing any delays.
The 52nd report and the 57th report published in 2012 and 2013 respectively, reiterate the importance of having a centralized recruitment system for the judiciary for reducing case pendency in courts and reduction of vacancies in the higher judiciary.
The 64th report of the parliamentary standing committee deliberated the issue of judicial appointments and commissions. It discusses issues related to the creation and operation of AIJS to attract best available talents to subordinate courts, expressing its deep concern over delays in its establishment. The members of this committee also gave examples from other democratic countries, stating how no democratic country has the Supreme Court which arrogates itself with the power of judicial appointments in it.
The 96th report of the parliamentary standing committee held a similar view to that of its previous reports and reiterated the need and importance for the creation of an All India Judicial Service. It held the view that by creating AIJS for the recruitment and training of judicial personnel at subordinate courts would end up helping to reduce court pendency of cases and the vacancies in judicial positions might be fixed by adjusting the judge-population ratio.
Historical significance
The creation of the All India Judicial Service was first recommended by the Law Commission of India in its 14th Report (1958), which was later reiterated in other reports. The Supreme Court of India in the matter of All India Judges Association versus Union of India and others, recommended that the Government should examine the feasibility of implementing the recommendations of the Law Commission for setting up of All India Judicial Service. The issue of creation of All India Judicial Service was considered and recommended by the First National Judicial Pay Commission (FNJPC) better known as Justice Shetty Commission.
A comprehensive proposal was formulated for the constitution of an All India Judicial Service (AIJS) and the same was approved by the Committee of Secretaries in November, 2012. It was decided that the issue needs further deliberation and consideration. The views of the State Governments and High Courts were sought on the proposal. There was divergence of opinion among the State Governments and among the High Courts on the constitution of All India Judicial Service. The proposal for constitution of All India Judicial Service with views from the High Courts and State Governments received, was included in the agenda for the Joint Conference of Chief Ministers and Chief Justices of the High Courts in 2015. However, no progress was made on the subject. Keeping in view the divergence of opinion among the stakeholders on the constitution of All India Judicial Service, the Government has undertaken the consultative process to arrive at a common ground.
Research that engages with All India Judicial Services
A Primer On The All India Judicial Service
This paper written by Prashant Reddy T. and Ameen Jauhar and published by Vidhi Centre for Legal Policy, explores the concept of AIJS and advocates for the creation of a centralized service for increasing administrative efficiency, enhancing quality and uniformity of judicial appointments. It helps in understanding why most of the reasons for the creation of the AIJS no longer exist or have been resolved through changes in rules, regulations and practices. While the primary objective of this paper was to debunk some of the age- old justifications supporting the creation of the AIJS, it is also aimed at being a conversation starter to discuss the actual systemic challenges being faced by the judiciary.
All India Judicial Services: Problems and Prospects (NUJS Law Review)
This paper written by Shivam Kaushik & Anushri Singh, has been published in the NUJS Law Review. Given that the concept of AIJS has attracted significant criticism from its detractors, the merit of such criticism also needs to be scrutinised before giving the idea any definite shape, the efficacy and vitality of such a system would be directly dependent upon its legal model. It is important to clothe the concept in a normative legal framework that is tailored to the needs of the Indian judicial system and is workable. Thus, this paper conducts an in-depth analysis of the prevailing conditions and administrative setup of lower courts. It further enumerates the attempts to revamp the system and their corresponding insufficient yield.
The paper briefly sketches the outline of the process of appointment to subordinate Courts; it puts forth the aim of AIJS of centralising the appointments of District Judges, taking away the onus from the High Courts and vesting it in an independent constitutional body. It traces the evolution of AIJS as an idea since it was first recommended. Arguments against the concept coming from the High Courts and State executive have also been pursued in this. Later this paper explores the contemporary framework and is divided into four subheadings. It attempts to argue that the High Courts have amateurishly failed to fulfil their duty towards their younger sibling and that divesting them of such duty would be in the interest of administration of justice. Furthermore, this paper asserts that the Supreme Court’s tinkering with the system has by and large been inconsequential. It endeavours to contend that the pre-requisites of knowledge of local language and prior practice at the Bar, portrayed as the biggest hurdle in the implementation of AIJS, are dispensable and rather an obstacle in the efficient functioning of lower Courts. Interlinking the aforementioned points, it provides a pragmatic normative structure for AIJS which is compatible with the idea of Indian federal structure.
Justifications for the creation of the All India Judicial Service
A recent justification for the creation of the AIJS is that a centralized service would help in filling vacancies across District and Subordinate courts. It has been stated as a possible solution by the Parliamentary Standing Committee on Law and Justice in 2013. It also concluded that although AIJS would facilitate a continuous availability of exemplary legal talent, it requires a more detailed examination.
Apart from this, various statements have been made by the Union Law Minister at the time, stating that the government would reserve posts for the Scheduled Castes(SC) and the Scheduled Tribes(ST) with the aim of providing them with better representation in the judiciary. Research shows that certain state governments allot quotas to certain categories in their state, which do not get the benefit of reservation nationally. This means that the centralized service wont recognise the posts reserved by the states, leading to people losing their jobs. This is likely to result in protests and backlash against the creation of AIJS, especially due to the competition for jobs in the judiciary.
The Law Commission, in its reports from 1958 and 1986, justified the creation of AIJS to attract better talent to the District and Subordinate Judiciary. It argued that All India Services, which offered earlier entry and greater prestige, were drawing top graduates away from the judicial services, which required years of legal practice. This led to older entrants with lower lifetime earnings. Additionally, the Commission criticized the state-level judicial appointments for being marred by nepotism, inefficiency, and lack of standardization. However, critics point out that the Law Commission's conclusions lacked empirical backing. Despite a centralized recruitment system, even the All India Services like the IAS face high vacancy rates, suggesting that centralization alone does not guarantee efficiency.
Challenges
One of the arguments made against the creation of the AIJS, is that judges recruited through this process will not know the local languages of the states in which they are posted. Most State Governments prescribe the language of the state as the language of the civil and criminal courts. Only High Courts are required to conduct their proceedings in English, although some High Courts have a special exemption and conduct their proceedings in Hindi. Judges are often required to directly deal with litigants, prisoners, lawyers and witnesses in their local languages. The proficiency of judges in the local language, both orally and written, has to be much higher than of a gazetted officer in the IAS or IPS because the cost of a judicial error due to the judge misunderstanding the local language could result in a litigant being deprived of their liberty or property. Thus, the costs of misunderstanding or mistranslation by a judge who lacks native proficiency of the local languages are simply too high.
Similarly, there is also the question of whether an out of state candidate will be well-versed in the local customs of a state. This is particularly important for civil cases, especially matrimonial or testamentary or communal property cases where local customs can determine final outcomes. In fact, some states have opposed the creation of the AIJS on this very ground.
One of the issues which has received relatively little attention in context of the AIJS debate, is the issue of preserving the judicial independence of District Judges who may be part of such a service in the future. Currently, the independence of District Judges from the State Governments, is guaranteed by the fact that the High Courts play a significant role in the appointment, transfer and removal of District Judges. Article 233 of the Constitution is quite clear that the appointments of persons to the post of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction over such State. Since the independence of the judges of the High Court is guaranteed by the Constitution, it follows that any institution, such as District Courts which are subject to the control of High Court judges, will enjoy a similar degree of independence from the State Governments.
If the Central Government does intend to create an AIJS, it needs to explain the manner in which such a service is insulated from the influence of both the Central Government and State Government, right from the process of appointment to the process of removal. The centre should conduct wide-ranging deliberations regarding an institutional arrangement to control the AIJS and instill confidence in the bar, bench and citizens of India, so that the AIJS would enjoy the highest standards of judicial independence from both the Central Government and State Governments.
Way Ahead
The paramount object of the judiciary is to administer justice to the people, and to act as an instrument against oppression and unjustness. However, when courts inadvertently cease to discharge their role of dispensing justice, the nation begins its march towards anarchy. The faith of the populace in justice dispensation is implicit for maintaining law and order in the society, and it is unfortunate that the masses of our country have completely lost their faith in the subordinate judiciary, which is often viewed as an impotent ideogram of justice. It is the need of the hour to adopt such measures that not only thwart the shortcomings but also send a message to the people at large, because trust in the legal system is elemental in the administration of justice. AIJS has the capacity to make lower courts more efficient. The end is to ensure the rule of law and legal security for individuals in the most efficient way.
References
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