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All India Judicial Service - NITI Aayog’s Proposal

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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.

 

Source: The Indian Express

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