[op-ed snap] A solution in search of a problem


Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Article 233, 234, 312

Mains level: Vacancy across various levels of the judiciary and the idea of an All India Judicial Service


Idea of a pan India judicial service

  1. In its report, ‘Strategy for New India@75’, the NITI Aayog mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary through an all India judicial services examination conducted by the Union Public Service Commission (UPSC) in order to maintain “high standards” in the judiciary
  2. Similar proposals were made by the Union Law Minister on three different occasions this year as a solution to the problems of vacancies in the lower judiciary and a lack of representation in the judiciary from marginalised communities

The argument against AIJS

  1. The argument that the creation of the AIJS and a centralised recruitment process will help the lower judicial services is based on the assumption that the current federal structure, that vests the recruitment and appointment for the lower judiciary in the hands of State Governors, High Courts and State Public Service Commissions, is broken and inefficient
  2. Going by the latest figures published by the Supreme Court in its publication Court News (December 2017 and the last available figures), many States are doing a very efficient job when it comes to recruiting lower court judges
  3. The problem of vacancies is not uniform across different States and varies significantly from one state to another
  4. 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
  5. For example, the Indian Administrative Service — its recruitments are through the UPSC — 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

Against equality

  1. Another argument in support of the AIJS is that its creation, along with provisions of reservations for the marginalised communities and women, will lead to a better represented lower judiciary
  2. Dalit and tribal politicians are supporting the AIJS on these grounds
  3. The fact is that several States already provide for reservations in their lower judicial service
  4. Unlike States, the Centre almost never provides reservation for women in the all India services
  5. On the issue of caste, an AIJS may provide for SC/ST reservation along with reservation for the Other Backward Classes (OBC) but it should be noted that a recent Supreme Court ruling has held that SC/STs can avail the benefit of reservation in State government jobs only in their home States and not when they have migrated
  6. The same principle is usually followed even for OBC reservations
  7. Thus, instituting an AIJS would mean that nationally dominant SC, ST and OBC groups would be at an advantage as they can compete for posts across the country, which they would otherwise be disqualified from because of the domicile requirement

No constitutional hurdle in creating AIJS

  1. Articles 233 and 234 of the Constitution vested all powers of recruitment and appointment with the State Public Service Commission and High Courts
  2. During the Emergency, Parliament amended Article 312 of the Constitution to allow for the Rajya Sabha to pass a resolution, by a two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge
  3. Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which law will strip States of their appointment powers
  4. This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures
  5. In other words, if Parliament decides to go ahead with the creation of the AIJS, State legislatures can do nothing to stop the process

Way forward

  1. The AIJS is not a solution to judiciary recruitment problems and the government would be well advised to reconsider its stance
  2. The solution is to pressure poorly performing States into performing more efficiently
Judiciary Institutional Issues
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