Daily Answer Writing
06 July 2021

Q) Comment on the feasibility of an All India Judicial service in India. Is it indispensible for reforms in India's criminal justice system? Give reasons for your answer (250 Words)

Source: <https://www.thehindu.com/opinion/op-ed/will-a-national-judiciary-work/article35157303.ece?utm_source=op-ed&utm_medium=sticky_footer>

GS 2: Judiciary

Approach Answer:

Introduction: Under Articles 233 and 234 the governor appoints judges in the subordinate judiciary in consultation with the High Courts and aid and advice of State public service commission. However, the 42nd constitutional Amendment made changes in Article 312 to allow  Rajya Sabha to pass a resolution, by 2/3rd majority, in order to kick-start the process of creating an All India Judicial service (AIJS) for the posts of district judge or other senior posts.

 

In 2019, Government spearheaded a consultative process for the creation of AIJS, which has reignited the debate.

 

Feasibility for AIJS:

              • Feasibility of the Process: It can be passed by a 2/3rd majority of the Rajya Sabha, without a formal amendment. In such as scenario, views of the state assemblies wouldn't matter and the constitution provisions of the Articles 233 and 234 shall stand changed.

              • Political Feasibility:

              Against principles of Federalism: If the fundamental power of the States to make such rules and govern the appointment of district judges is taken away, it may be against the principle of federalism and the basic structure doctrine.

              Bad response in the consultation process:  only four States and two High Courts supported the proposal.

              Regional Problems: Many states might oppose due to the language barrier of the candidates from the outside, as language plays an important role in accessing the Judiciary.

 

Argument for establishment of AIJS:

              • Solution to the Problem of vacancies in the lower judiciary by making a system as in the case of Administrative officers.

              • Lack of representation in the judiciary from marginalised communities. An all India process can make adequate representation.

              • Objective & impartial system: Creation of AIJS and a centralised recruitment process will make lower judicial services more competitive.

              • The assumption is 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.

             

Arguments against  AIJS:

              • Fear of curtailment of promotional avenues of the subordinate judiciary: Only 50% of the posts of district judges are to be filled by promotion from the subordinate judicial service, to make room for the remaining for direct recruitment.

              • Language barrier: People from other states would be required to adjust in new localities and tune up with the bar associations.

              • Not all states inefficient: Going by the latest figures published by the Supreme Court in its publication Court News, many States are doing a very efficient job when it comes to recruiting lower court judges. There is less than 5% vacancy in Maharashtra and around 8% in West Bengal. Only states like UP have as high as 42% vacancy.

              • Not a guaranteed solution: For example IAS —  recruitments are through the UPSC — reportedly has a 22% vacancy rate, while the Indian Army’s officer cadre, also under a centralised recruitment mechanism, is short of nearly 7,298 officers.

              • Most States already have a reservation policy: Ex: Tamil Nadu provides for a roster-based reservation of 69%, of which 30% is for women. UP merely provides 20% reservation for women and the AIJS may therefore benefit States like U.P.

             

Further it wouldn't solve all the problems of the Judiciary, which also include:

              • Inadequate Funds: It is difficult to pay and accommodate the newly appointed judges, magistrates & staff. We need to increase sanctioned strength from 20judges/million population to 50 as per the Law commission. This requires even more funds.

              • Case Listing Practices: Number of cases listed per day often exceed over 100 matter/judge/day. Thus many cases inevitably go unheard and get up stuck in the system as neither the judges nor lawyers can plan for the preparation of their case. This compels lawyers to waste time waiting in court. This also enables them to cite simultaneous listing of multiple cases as an excuse for adjournment.

              • Court Infrastructure: We spend just 0.09% of GDP to maintain Judicial infrastructure. A 2016 SC Report says that Existing infrastructure could accommodate only 75% judicial officers against the all-India sanctioned strength of 20,588.

              Dearth of adequate courtroom facilities.

              Basic facilities: Drinking water, usable washrooms, seating & canteen facilities;

              • Inadequate support staff & research facilities for judges: Even if a judge finishes 70 hearings a day; Stenographers would take two days to finish typing them.

              • Number of cases: Government The largest Litigant.

              Menace of PILs.

              LIMBS data shows that Centre and the States were a party to 46% of all pending cases.

              Special Leave Petition cases: 40% in SC.

 

Conclusion: In December 2018, NITI Aayog in its report, ‘Strategy for New India@75’, 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 UPSC in order to maintain “high standards” in the judiciary. This can be the solution to the problem of appointments in the Judiciary. However, it is not a solution to all ailments that the Judiciary faces today.

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