Will a national judiciary work?

Source: The Hindu 

Relevance: The article analysis the idea of an All India Judicial Service through various judgments and recommendations of committees. 

Synopsis:

The idea of an All India Judicial Service (AIJS) is surrounded by impairment of federal powers, language barriers, and debatable efficacy in addressing pendency. Thus, a cautious analysis needs to be done by constitutional experts and legal professionals before its establishment. 

Background:

• The Union government appears to be devoted in its resolve to implement reforms in recruitment and appointment to the subordinate judicial services. 
• In 2019, it spearheaded a consultative process for the creation of the All India Judicial Service (AIJS). 
  • Initially, only four States and two High Courts supported the proposal. Eight States rejected it, five suggested changes, and 11 are yet to respond.

Constitutional Perspective on Subordinate Judicial Services:

• Article 233(1) of the Constitution: It states that appointments, posting, and promotion of district judges in any State shall be made by the Governor of the State in consultation with the state’s High Court. 
• The 42nd Constitutional amendment in 1976 amended Article 312 (1) empowering Parliament to make laws for the creation of one or more All-India Services. This included the creation of an AIJS common to the Union and the States. 
  • However, Clause 3 of Article 312 places a restriction that such a service shall not include a post inferior to that of a district judge. 
• The amendment also brought about a significant change in the Seventh Schedule. Entry 3 of List II in its entirety was placed as Entry 11A in List III.
  • Entry empowers the parliament to enact laws with regard to ‘Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts’.

Judgements, Opinions, and Commissions over the formation of AIJS:

• The 11th law commission deliberated upon the objections.
  • The primary fear was that promotional avenues of the subordinate judiciary would be severely curtailed.
    • 50% of the posts of district judges are to be filled by promotion from the subordinate judicial service. It leaves the remaining posts open for direct recruitment. 
  • Another fundamental concern was the language barrier. An outsider would face difficulties in understanding the local language and local concerns.
  • Similarly, taking away the fundamental power of the States to govern the appointment of district judges would be against the principle of federalism and the basic structure doctrine.
• Some experts believe that the AIJS will not reduce judicial delays. Because the reason behind delays is the existence of large vacancies and not the poor quality of judges.
• The First National Judicial Pay Commission (headed by Justice K. Jagannatha Shetty) found that it would be in the interest and the health of the judiciary to form an AIJS. The report supported and reiterated the recommendations of the 14th Law Commission.
• The issue was again discussed in All India Judges Association Vs. Union of India (2002). The court accepted most recommendations of the Shetty Commission and directed the government to implement the judgment.
• The Union Law Minister has supported AIJS to be an ideal solution for equal representation of the marginalised and deprived sections of society. 
  • Most States already have a reservation policy in force. Tamil Nadu provides for a roster-based reservation of 69%, of which 30% is for women. 
  • Uttar Pradesh merely provides 20% reservation for women and the AIJS may therefore benefit States like U.P. 

Way Ahead:

• The feasibility of the AIJS in the current context requires to be studied, especially when reliance is placed upon archaic reports of the Law Commission. 
• It is for the Union to dispel doubts and at the same time give wings to the aspirations of all stakeholders when implementing the proposal.