All Indian Judicial Service: Serving With Purpose Or Problems?

While the proposal reflects potential in resolving several long-standing difficulties in the Indian court system such as transparency in appointments, caste and gender-based representations, uniform standards across the judiciary and greater integration of the judiciary. However, it also raises questions on representation, efficiency, and institutional autonomy. Supreme Court has had minimal representation from muslim community and despite recent advances, the case remains the same for dalits, tribals, and women in high-level judicial posts.

Structural Discrepancy in the System

As per Law Ministry, 67% of High Court judges are selected from the Bar, with 33% coming from judicial services, conforms to the 1:2 ratio established by a 1999 Conference of Chief Justices resolution.^[1] The appointment system for senior judicial positions which is mostly sourced from the Bar by the collegium, confronts heavy criticism on accounts of being gravely affected by nepotism and favouritism. Overcoming on this aspect may be aided by the presence of an All-India Judicial Service, with successive appointments of AIJS servants to higher judicial positions. However, the system creates many structural lapses and complexities.

There is also a lack of impetus for joining judiciary. Appointments to High Courts are governed by the Collegium and two-third of the seats is filled by advocates. Giving preference to someone who has not dictated an order in his/her entire career over someone who has been doing it for past two decades or more is also deplorable. If more appointments would be made from the bench, it will attract more talents and would help in filling vacancies at the lower level.

Language barrier is another such structural complexity. It is a known fact that the proceedings in the District Courts are conducted in the native language. Even though AIJS would recruit judicial officers for pan India, they can only work in a handful of states. Appreciation of evidence, testimony, and witnesses is a crucial part of adjudication. A person unfamiliar in the local language would fail to dispense these duties in a judicious manner. The Supreme Court itself has upheld the compulsory induction of local language in State Judiciary examinations.^[2] Mandating native state language training for AIJS entrants still may not suffice since the volume of judicial work and daily interaction involved in local court responsibilities differ enormously from administrative tasks of IAS and IPS officers. Hence, use and proficiency in state languages would still be a hindrance to the vision of AIJS.

Addressing vacancies

The vision of AIJS, as many would perceive, envisages including positions ranging from entry-level positions of judicial magistrates and munsifs in sub-district courts to the Supreme Court. However, by the 42nd Constitution Amendment of 1976, it may be established at the District Judge level, but not below, owing to Article 312(3) which was inserted. The AIJS will also bereft of subordinate judiciary, which is actually bereft of purpose too, as the subordinate judiciary is often the initial point of contact for most litigants and a key cause of delays and vacancies. As a result, the assertion that AIJS would reduce vacancies is weak since it only applies to district judges and ignores the larger difficulties in the lower courts.^[3] The move is being touted for filling vacancies. This is another problem related with the previous one. Most of the vacancies in a district are available at the posts of JMSC, JMFC, etc. These vacancies are usually in ranks below to that of District Judges (DJ). Filling up vacancies at the DJ level cannot sufficiently address this situation.

The problem lies at the very first instance where a candidate joins the service. The senior-most position currently is the District Judge in the State judiciary system. However, the Constitution mandates that the AIJS recruits cannot be posted below the level of a District Judge. The next career advancement for a District Judge is the elevation to the position of a High Court Judge. In the current structure of subordinate judiciary, a candidate would require more than 15 years of experience to become a District Judge. The career of many judges ends at this post. It would not be wise to appoint a newly passed candidate with one or two years of training as District Judges. Even if the selection test is made tough and only the most talented are appointed, the candidate will considerably lack the experience. DJ often deals with serious and high-stake cases.

Representation Ignoring State Autonomy

The next advantage it is expected to offer is addressing representation as an issue. Another fallacy! By introducing a uniform reservation policy, it cannot achieve true representation. It is very likely that the reserved seats would be captured by candidates from some particular region or group, as per the demography for each state. The demography in each state is different and states are better suited to provide representation to their people. In fact, many states are providing reservation in the judicial appointments. States are able to tailor the reservation policy in such a manner that the representation of different groups is effectively secured. Hence, the concept of AIJS also poses threat to state autonomy.

There are also some doubts about how the AIJS and State Examination would co-exist. The state of appointments under state judiciary would depend on AIJS appointment policy. If in accordance with to its purpose of solving vacancies, the AIJS starts appointment of lower judiciary position then it will contravene Article 312(3), Though, if in accordance with Article 312(3), AIJS appointments are made at the level of District Judge, then it serves no purpose at all. Furthermore, challenges would emerge in syllabus designs for the AIJS, regarding the inclusion of state-specific laws. Deciding which state specific laws to include or exclude would be another consideration.

The AIJS though seems promising panacea to the existing difficulties however, on a closer look, it only seems to be a hollow vision. At the current stage, AIJS looks nothing short of an attempt by the government, to secure some role in judicial appointments. Government involvement and influence over junior judicial officers, could risk them being cultivated with personal or political goals, could prove as detrimental as a system where judges are directly picked by the head of state. It is even much more necessary that the judiciary shall be impassive to the political or public opinions and sentimentalities which can be discomforted by the courts' decision, or even vice versa. In a collegium system, the judges are stoic to such considerations and can freely function impartially without any threat to their appointment as a judge.

Most importantly, the state of control over AIJS servants would require much contemplation. Whether there would be any control at all, or whether government have any powers over such officers and if yes, to what extent, are some questions that need a serious thought. Though varying system of judicial appointments across the globe exist, however granting powers over AIJS servants to the government would be problematic with risks of undermining judicial independence. Such governmental control could create a situation where AIJS officers could be compromised over political leanings and allegiance. Compared to the instance of US Supreme Court, where judges are nominated by the President and confirmed by the Senate. During Donald Trump's presidency, three conservative-leaning judges were appointed to the court, creating a long-term conservative majority. The 2022 overturning of Roe v. Wade judgement points out the terrible vulnerabilities and detrimental repercussions of a system where elected representatives are involved in the appointments/control of judicial officials as the custodian of the responsibility.

Views are personal.

[1] Ministry of Law and Justice, Department of Justice, Government of India, 'Rajya Sabha Unstarred Question No. 908' Appointment of High Court Judges from Senior Lawyers dated 27.07.2023.