All India Judicial Service

Why in news?

The NITI Aayog recently mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary.

What are the underlying constitutional provisions?

• Articles 233 and 234 of the Constitution vested all powers of recruitment and appointment (judicial services of the state) with the State Public Service Commission and High Courts.
• Article 312 of the Constitution allows the Rajya Sabha to pass a resolution, by two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge.
• Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which will strip States of their appointment powers.
• This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures.
• In other words, if Parliament decides to go ahead with the creation of the AIJS, State legislatures can do nothing to stop the process.
• The recruitment is to be made through an all India judicial services examination conducted by the UPSC in order to maintain “high standards” in the lower judiciary.

Can AIJS resolve the problem of judicial vacancies?

• The idea was mooted on the argument that a centralised judicial recruitment process will help the lower judiciary on timely recruitment and clearing vacancies.
• This was also proposed as a solution to the problems of lack of representation in the judiciary from marginalised communities.

• But the Supreme Court recently noted that many States are doing a very efficient job when it comes to recruiting lower court judges.
• In Maharashtra, of the 2,280 sanctioned posts, only 64 were vacant and in West Bengal, only 80 were vacant of the 1,013 sanctioned posts.
• Only in certain States such as Uttar Pradesh, the vacancies stand at 42%.
• These numbers show that the problem of vacancies is not uniform across different States.
• Thus the solution is to pressure poorly performing States into performing more efficiently.
• Further, the argument that the centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process is flawed and not a guarantee of a solution.
• For example, the Indian Administrative Service reportedly has a vacancy rate of 22%, while the Indian Army’s officer cadre, also under a centralised recruitment mechanism, is short of nearly 7,298 officers.

Will it lead to more representation from marginalised communities and women?

• AIJS was also supported on the fact that its creation, along with provisions of reservations for the marginalised communities and women, will lead to a better represented lower judiciary.
• But the fact is that several States already provide for reservations in their lower judicial service.
• For example, at least 12 States, which include Madhya Pradesh, Chhattisgarh, Uttar Pradesh, Rajasthan and Kerala, provide for caste-based reservation in the direct recruitment examination for district judges from the bar.
• In addition, U.P., Karnataka, Rajasthan and Chhattisgarh provide women with special reservations.
• Karnataka also recognises two additional categories of reservation within caste-based reservation — for those from a rural background and those from Kannada medium backgrounds.
• Karnataka serves as an example of how States are best suited to assess the level of intersectional disadvantage of various communities residing in the State.
• Unlike States, the Centre almost never provides reservation for women in the all India services.
• On the issue of caste, an AIJS may provide for SC/ST reservation along with reservation for the Other Backward Classes (OBC).
• However, the Supreme Court recently held that SC/STs can avail the benefit of reservation in State government jobs only in their home States (domicile) and not when they have migrated.
• The same principle is usually followed even for OBC reservations.
• Thus, instituting an AIJS would mean that nationally dominant SC, ST and OBC groups would be at an advantage as they can compete for judicial posts across the country.
• On the other hand, if the process of recruitment stays with the states, these dominant groups would be disqualified because of the domicile requirement.
• Thus the present system of recruitment does ensure adequate representation of marginalised communities and hence the proposal for AIJS needs re-consideration.

Source: The Hindu