Modi’s government will have to wait for all Indian judicial services. Top Main Judicial Opposition

OWith an overwhelming majority of states and high courts not in favor of establishing a All India Judicial Service or the AIJS – a national level test for district judges modeled on the Union Civil Service Commission – the Narendra Modi government’s “idea” to improve judicial infrastructure will have to wait.

To understand the pros and cons of the proposed AIJS, let us know a few things about the All India Services (AIS) and its creation, the vast scheme that the government wants to emulate in the justice system.

When the Secretary of State for India wanted to disband the Indian Civil Services (ICS) before the transfer of power, Sardar Patel called a meeting in October 1946 with the prime ministers of the eleven provinces: Assam, Bengal, Bihar, Bombay , Central Provinces and Berar, Madras, NWFP, Orissa, Punjab, Sindh and United Provinces to discuss the future of ICS and IP (Indian Police). Eight of the eleven provinces (except Punjab, Bengal and Sindh) agreed that it was imperative not only to retain the ICS and IP (as the IPS was then known), but also to constitute IAS and IPS as All India Services besides having a common exam for AIS and Central Services including Foreign Service which will be organized by the Public Service Commission of India Union (federal).

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Talent Hunt for the Lower Judiciary

The third AIS, the Indian Forest Service, was constituted in 1966, based on the ‘obiter dicta’ of the States Reorganization Commission (1956), which also stressed the need for AIS officers to work in rotation between the Union and the State governments. In 1958, the Fourteenth Law Commission recommended the establishment of an AIJS, in the hope ‘that an all-India service would attract better talent to the district and subordinate judiciary at a time when these strata were expected to face a talent shortage.

Prior to independence, these positions were held by members of the ICS and the state civil service. They rose through the ranks of district judges to the high court and the Supreme Court as well. In fact, India’s 10and Chief Justice Kailas Nath Wanchoo was a member of the ICS.

However, the general feeling in the Indian political establishment was that after independence the states would develop their own mechanisms for the administration of criminal and civil justice, as the separation of powers between the judicial, executive and tax courts was a long-standing request of Congress. party, as early as the first session of 1885. Thus, article 50 was incorporated into the Guiding Principles which required “States to take measures to separate the judiciary from the executive in the public services of the State”. While Madras, Bombay and Mysore took immediate steps in this direction, the separation of judiciary and executive in UP, Rajasthan, MP and Punjab took much longer. Moreover, the high courts felt that in addition to the power of judicial review, they needed to have an effective say in the administration of the district courts. It is perhaps in this context that the Law Commission made this recommendation.

During the state of emergency, the 42n/a the constitutional amendment empowered the Rajya Sabha under Section 312 to establish the AIJS, only for the cadre of District Judges (as defined in Section 236). This was different from the Law Commission’s proposal, which sought to create AIJS for all executives who form the district and subordinate judiciary.

In 1992, the Supreme Court, while deciding the All-India Judges Association case, passed a guideline for the establishment of an All-India Judicial Service as well as an All-India Standard for Judges’ Benefits and Remuneration. In 1999, the first National Judicial Remuneration Commission (Shetty Commission) asked all states and high courts for their views on AIJS. In 2002, Justice Minister Arun Jaitley said that “consultation was ongoing with States and HCs and no definitive time frame could be given”.

Between 2004 and 2014, the position of the UPA government on the issue remained ambivalent.

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When the NDA came to the helm, it enacted 99and amendment for the creation of a National Judicial Appointments Committee (NJAC) which would have assumed the responsibility of filling all judicial positions in the country, but it was canceled in October 2015 by the Constitutional Court of Supreme Court . While the Supreme Court did not want the ‘collegiate system’ to be disrupted for High Courts and Supreme Courts, when it comes to the appointment of District Judges, it learned suo moto of the matter in 2017 and appointed lead counsel Arvind Datar as amicus curie. Datar recommended that a common review for AIJS be conducted by an independent commission, but final interviews for candidates opting for a particular state would be given to the respective high courts. It was estimated that once recruitment is done on an annual basis (as is the case with UPSC), the backlog of vacancies would be cleared within a fixed timeframe. In March 2018, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice also recommended the creation of an AIJS.

Last month, Union Minister Kiren Rijiju said: “In the opinion of the government, a properly managed Indian judicial service is important in strengthening the overall justice delivery system. This will provide an opportunity to induce suitably qualified new legal talent selected through an appropriate merit selection system across India as well as address the issue of social inclusion by enabling proper representation of marginalized and disadvantaged sections of society”.

The senior judiciary, the main opposition

Efforts are still ongoing to achieve consensus on this issue, as given the current composition of the Rajya Sabha, a two-thirds majority vote in favor of AIJS is rather unlikely. However, it should be noted that the opposition to the AIJS does not come from the bureaucracy or the legislative assemblies. It comes from the highest levels of the judiciary, which does not want to change either the opaque collegiate system or their discretion and assertion over the district courts.

Sanjeev Chopra is a historian and director of the Valley of Words festival. Until recently, he was director of the Lal Bahadur Shastri National Academy of Administration. He tweets @ChopraSanjeev. Views are personal.

This article is the fourth part of the ‘State of the State’ series which analyzes politics, public services and governance in India.

(Edited by Anurag Chaubey)

Mark M. Gagnon