To Constitute AIJS Would be Greatest Step Since Independence
The central government has finally decided to get its act together and constitute the All India Judicial Service (AIJS) about which we have been hearing since ages. AIJS is the crying need of the hour and must be debated, discussed and deliberated fully so that all best features are included in it and all possible drawbacks are deleted before it is finally created. There can be no two opinions on it.
It delights one to no end to see that Prime Minister Narendra Modi, while addressing a function to celebrate the completion of 50 years of the Delhi High Court on October 31, 2016, set the cat among the pigeons when he sought a debate on creating AIJS, which has been hanging fire right since Independence. It is most tragic to see that AIJS has always been mocked at by the ruling party at Centre. Even now if AIJS is constituted, it will be the greatest step since Independence.
Most recently, the central government after holding a meeting presided over by Law Minister Ravi Shankar Prasad has sought the advice of its two top law officers – Attorney General Mukul Rohatgi and Solicitor General Ranjit Kumar – on the question of constituting All India Judicial Services just on the lines of All India Civil Services. This will be the biggest landmark decision of the Modi government if taken by him in next two years. Truly speaking, the formation of the All India Judicial Services is an issue that has been hanging fire since 1960 due to differences of opinion between the states and the judiciary. Both the law officers – Rohatgi and Ranjit – had attended the January 16 meeting along with other officials of the Law Ministry, where the issue of an All India Services for Judges was discussed. No doubt, the Narendra Modi government has given a fresh impetus to the long-pending proposal to set up the new service to have a separate cadre for lower judiciary in the country.
It is most heartening to see that in his piece, dated November 4, 2016, Justice AP Shah, who is the former Chief Justice of Delhi High Court and Bombay High Court and also the former Chairman of Law Commission, has minced absolutely no words in making a strong argument in favour of the creation of All India Judicial Services (AIJS), in an effort to make the judiciary more accountable, professional and equitable. He based his argument on the following grounds: (i) the quality of Judges at present is average and the best talent is not attracted to judiciary; (ii) vacancies arise due to the inability to attract meritorious candidates as the state judiciaries are not rewarding enough, therefore Judges in the High Courts, who are promoted from subordinate judiciaries are also average; (iii) adjudication is a specialization; (iv) AIJS would lead to efficiency in judicial processes.
It needs no rocket scientist to figure out that how much our judicial system, which is currently on the verge of collapsing due to a whooping number of pending cases, will benefit if AIJS is created soon. While I one fully supports the creation of AIJS, one does not support reservation in judiciary at all. One certainly would welcome the inclusion of people from the lower strata of society into the judicial system but only when they enter by their own merit and they can do it on their own. They are no less than others in anyway. Let one be direct in saying: Did Dr BR Ambedkar make a name for himself by coming up through reservation? Selection should only be on merit alone. There should be no other criteria for selection. No compromise should be made on merit under any circumstances, come what may.
Against this beakdrop, there are some troubling questions: Who is stopping Centre from imparting free coaching to Dalits and all those coming from lower strata of society? Why can’t more scholarship be given to them? Why can’t they be coached by top successful persons of the field for which they are trying? Why can’t they be allowed free expense for giving as many exams as they like? They can be helped in thousands of ways other than reservations. Why politicians favour only reservation as the best possible way?
Few more troubling questions: How long will this cancer of reservation be allowed to fester and harm the unity and integrity of our nation endlessly? How long will we ignore how huge violence broke out when Jats demanded reservations and many resorted to violence and similarly Gujjars in Rajasthan stopped trains and hugely damaged public and private property demanding reservations? What precedent are politicians and PM setting by always talking about reservations only and never talking about finishing them as Dr Ambedkar wanted them to finish after 10 years only?
One is not hesistant in saying: Reservation is the worst form of tool and only spreads hatred in society. Also, once it is inserted in the system, it is never thrown out as we can see in our own country where Dr BR Ambedkar, who is the founding father of our Constitution, wanted reservation only for 10 years but what an unbeatable irony that 70 years later we still see no end of reservations rather many states have increased it beyond 50 per cent, which only draws the ire of Supreme Court. This should never happen in AIJS.
It has been widely reported in the media that the Centre was preparing to introduce reservations for Dalits, tribals and other backward classes (OBCs) in the appointment of district judges through AIJS, on lines of the all-India administrative and police services. We all know it fully well that it is only the already privileged section from Dalits, OBCs etc, who are able to garner maximum benefit of reservation policy meant for the poor only, but which has been deliberately ignored by all PMs till now. This is something that is just not done and is completely unacceptable.
As things stand, PM Narendra Modi, while addressing audience judges and lawyers at the Delhi High Court’s golden jubilee function asked: “Can Dalits, the oppressed, the exploited, the poor, the neglected, those coming from the lowest strata of society, be given an opportunity to become a part of this system? Can we evolve a new system in which they can be included? We have experience of 60 years. Using this experience, can we develop a roadmap? We have to collectively find the road ahead.” He also said: “Debates, discussions and dialogues are part of democracy. We (government) cannot contribute much. Our contribution will not help much. It is those sitting here who can contribute.”
It may be noted here that there is no reservation for any social groups in high courts and the Supreme Court, though the collegiums do try to give representation to various regions and communities in the appointment of judges. Needless to say, PM Narendra Modi too like others is eyeing the votes of Dalits and others from the lowest strata of society by advocating reservation for them in AIJS. Reservation only divides society and this we have seen time and again. We all know very well how there is so much of huge damage to life and property when Patels, Gujjar, Jats etc escalate their street fight for reservation with Marathas being the latest to jump in the bandwagon. This can never be good for our national interests.
But yes, we must applaud Modi’s courage and conviction to do what no PM has ever dared to do even though they too supported it – creation of AIJS. PM Modi has called for debate and discussion on creating AIJS but it is felt Law Commission has time and again recommended the creation of AIJS, former CJI too has recommended it, Parliamentary Standing Committee also has recommended
it and National Judicial Pay Copmmission too has recommended it, then why so much of inordinate delay over it? It must be cleared soon now. After the Modi’s Cabinet clears the landmark proposal, the Union Public Service Commission (UPSC) will be entrusted with the AIJS examinations. The Delhi High Court asked the government in an earlier petition by Ashwini Kumar Upadhyay to decide on creating the AIJS. It will again hear another petition by him for creating an AIJS.
It may noted that the move for an AIJS didn’t curry much favour with the higher judiciary in the past. The Chief Justices Conferences in 1961, 1963 and 1965 favoured the creation of an AIJS, but the proposal had to be shelved after some states and high courts opposed it. What should have happened way back in 1960s, we don’t see happening even in 2017 and it is only now after PM Narendra Modi has spoken on its dire need from a public platform and that too while addressing a function of lawyers and judges that some bright ray of hope has finally emerged.
To put things in perspective, subsequently, the Constitution was amen – ded in 1977 to provide for an AIJS. The proposal was again floated by the UPA government in 2012
when it got it vetted by a committee of secretaries and prepared a cabinet note. But the draft bill was shelved after fierce opposition from high court chief justices.
If the centre is really serious to combat the more than three and a half crore cases pending in lower courts all across the country, it has just no other viable option left before it but to start the AIJS. Ad hoc measures like re-employing retired judicial officers won’t serve much in the longer turn he even though it may provide some relief. It cannot be a permanent cure. centre must realize this which it has failed to realize in last 70 years.
In the absence of AIJS, it is becoming increasingly difficult to maintain the required judge strength in district courts and high courts. The available judges are unable to clear the huge backlog of over 30 million cases. In spite of all this, AIJS not started till date and mere opposition by few States/High Courts gave a lame excuse to successive Union governments to just sleep over the matter.
Let me reveal here that in his PIL, Ashwini Upadhyay, who is also a BJP spokesperson, contends fiercely that the establishment of AIJS under the Article 312 of the Constitution of India, is not only necessary to provide equal opportunity to all prospective Advocates in spirit of Article 16 but also essential to secure fundamental right of fair trial and speedy justice to the citizens in spirit of Article 21. AIJS has not been established in spite of constitutional provision and despite the apex court strongly endorsing it, he states in his petition. He further states that, while most government departments have ‘All India Service’ recruits, the Judiciary is the only setup that does not have a national level selection process to attract the best prospective Advocates. “When IAS officers can be allotted State cadres and adjust to local requirements, why can’t AIJS officers? Every organ of the State including the judiciary needs to be accountable to the public. People need to know how judges are appointed, what criteria they have been evaluated on. Many judges appointed by the collegiums or by political intervention may have been brilliant, yet their recruitment process is questionable. Judiciary should reflect social reality and the country’s diversity,” the petition reads.
Delhi High Court asked the government on July 11, 2016, to consider a lawyer’s representation seeking setting up of a All India Judicial Service on the lines of the Indian Administrative and Police Services. A Bench of Delhi High Court comprising Chief Justice G Rohini and Justice Sangita Dhingra Sehgal asked the Ministry of Law and Justice to take a decision on the petitioner’s representation and inform him. In his plea, Ashwini Upadhyay said the step to set up the AIJS was “long overdue and has been hanging fire for over five decades”. He also pointed out, “Most government departments now have ‘All India Service’ recruits, the Judiciary does not have a national level selection process to attract the best possible talent.”
It must be emphasized here that the Law Commission of India has four times – in its 1st, 8th, 77th and 116th reports – called for Indian Judicial Service. The apex court has twice – first in 1991, then in All India Judges Case (1992) – endorsed the creation of AIJS. It is imperative to ensure fair selection of incumbents and to attract bright and best law graduates to judiciary.
It must be appreciated here that centre too strongly felt that to prevent the fresh law graduates from rushing to the all enticing private and corporate sector, it is imperative that All India Judicial Service be started immediately and they too are made eligible just like we see in case of Civil Services. Presently, what we are seeing is that the best talent is wasting no time in jumping on the bandwagon of corporate and private sector who is ever ready to hire them at attractive prices. To stop this to a great extent, it is all the more imperative that AIJS be started immediately without any more delay!
It is noteworthy that three eminent jurists – Justice VR Krishna Iyer, Justice JS Verma and Justice MN Venkatachaliah – gave their joint statement on the constitution of All India Judicial Service, which is: “We agree with the urgent need to constitute the All India Judicial Service envisaged by Article 312 of the Constitution of India, at par with the other All India Services like the IAS, to attract the best available talent at the threshold for the subordinate judiciary, which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Courts. The general reluctance of competent lawyers to join the Bench even at the higher level adds an additional urgency to the problem. AIJS will in due course of time, also help improve the quality of the High Courts and the Supreme Court. The modalities for creating the AIJS to achieve its avowed purpose, and the necessary constitutional changes and the legal framework can be worked out after acceptance of the proposal in principle.”
In retrospect, it may be recalled here that the First Law Commission of India, headed by learned MC Setalwad, with the benefit of the opinion of the then Chief Justices of India KN Wanchoo and Justice MC Chagla and eminent jurist Nani Palkhiwala among others, had made a strong recommendation for the constitution of an All-India Judicial Service, like the IAS and IPS. The felt need for such a service increased several fold in the last 57 years since that recommendation was made.
Also, looking back, in its 77th Report presented by the Law Commission of India to the then Law Minister Shanti Bhushan, it was noted in Para 9.6: “At the same time, we are of the view that the suggestion to have an All India Judicial Service of the same rank and same pay-scales as the Indian Administrative Service should receive serious consideration. According to Article 312, as now amended, Parliament may by law provide for the creation of one or more all-India services (including an all-India Judicial Service) common to the Union and the States. We are conscious of the fact that a school of thought and many states are strongly opposed to the creation of All India Judicial Service. The objection is mostly based upon the consideration that since the proceedings before the subordinate courts would be conducted in regional languages, members of the higher judicial service hailing from other states would not be in a position to efficiently discharge their functions. This difficulty can be obviated if, like recruits to the Indian Administrative Service, the recruits to the All India Judicial Service also undergo a training period of two years. During that period, they can acquire also familiarity with and mastery of the regional language of the State to which they are to be allocated after the completion of their training period. The requirement about practice at the bar may perhaps have to be waived for recruitment to All India Judicial Service, as they will be recruited at a comparatively younger age. It should, however, be essential that the competitors are graduates in law.”
It may be noted that Para 9.6A of this very 77th Report further notes: “Another reason which should weigh in favour of the creation of the All India Judicial Service is the attraction that an All India Service holds for bright young graduates, including law graduates. The result is that many of them compete for and are selected for the Indian Administrative Service. If the All India Judicial Service is created with the same rank and pay scale as Indian Administrative Service, the Judicial Service would hold perhaps greater attraction for bright law graduates. The judicial service in such an event would not be denuded of talented young persons.’’
The Law Commission presided over by Shri Setalvad also felt this difficulty and observed that an important factor which detracts from the attractiveness of the judicial service is the inferiority of the status of a judicial officer compared with that of the executive officer. The Law Commission in this connection referred to the following observations of an experienced Chief Justice: “One reason why meritorious young men or young practitioners of some standing keep away from the judicial service is the comparative inferiority of the status of district judicial officers vis-a-vis officers of the district executive. Formerly, the district judge, like the district magistrate, used to be a member of the Indian Civil Service and its position in the district was superior to that of the district magistrate. Under the present system, the district magistrate is a member of the Indian Administrative Service, which is a service of an all-India character, while the district judge is a member of the higher judicial service which is a State service. The difference in the category of the cadres to which they belong is reflected in the status they occupy in relation to each other and in the estimation of the public. The district judge feels small and is treated as a person of little consequence. Nor can the district judge attain the sense of independence which he might have acquired, if he had not been under the administrative control of the state government in regard to his service.”
It must also be brought out here that Parliament Standing Committee endorsed the AIJS in its 64th Report (Para – 50). The Report says: “All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that All India Judicial Service may be created without further delay to attract best talent to the subordinate judiciary from where 33 per cent of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of the government may be made applicable in All India Judicial Service.”
It may be recalled here that the first-ever National Judicial Pay Commission (NJPC), headed by Justice K Jagannatha Shetty who is a former Judge of the Supreme Court and who submitted its report in November 1999, too recommended constitution of All India Judicial Service in the cadre of district judges as per provision of Article 312(3) of the Constitution of India. The NJPC mooted that the district judges, directly recruited and promoted, should constitute the AIJS. Seniority of All India Judicial Service will be on All India basis and as per the ranking in the select list. The inter-se seniority between direct recruits and promoters will be determined according to the date of allotment of promotion. Such direct recruit must thus be annexed to the respective State Judicial Service within the three-tier system. At present, there are only three All India Services i.e. The Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFS). While the first two were inherited from British Raj, the IFS is the only All-India Service which was created after independence. It was constituted in 1966 under the All India Service Act, 1951 by the Government of India.
The Judicial Hyper-Activism
The growing overpowering of the government duty-bound activities by the Judiciary has become a matter of worry. No doubt, the courts are the watchdog to keep vigilance and ensure that the state authorities function within the framework of the Constitution, law, and rules regulations, and, if required, the courts may also lay down the laws. Recently, President Pranab Mukherjee, who is a man of few words, questioned the Judiciary. He said that the judicial activism should not lead to dilution of the seperation of power. Each organ must function within its own sphere. The Supreme Court and the high courts must act and the high courts should take advice of Mukherjee seriously and should self-restraint to their judicial powers. There are innumerable instances, which apparently look as if the courts had started functioning on behalf of the government.
The higher courts are charged not only by the leaders and the government, but also by the lawyers and the intellectuals for their activism. The courts have also been charged for sluggish proceedings, resulting in compilation of thousands and thousands of cases in the Supreme Court and high courts. There are many instances where the cases have been pending for the third generation to contest
The highest judiciary should evolve a system so that the courts are neither blamed for activism nor for hyper-activism. On various occasions, the courts have done more harm than good by entering into the domain of the government. For example, the Supreme Court appointed Justice Verma Committee to review and suggest the ways and means for the improvement in the B.Ed. education courses. The committee suggestions were in toto followed by NCTE, the controlling authority of teacher education programmes in the country. The Supreme Court decided not only rules and regulations but also the course, curriculum, mode of admission, and the calendar of events date by date for the whole session. It also barred the high courts not to interfere, therefore, the sufferers on this account could not move to the courts for the genuine relief. This has resulted in lakhs and lakhs of seats remaining vacant every year in the B.Ed. course.
The government and even the high courts are not allowed to review this order. This also rendered the infrastructure of the colleges unused and reduced the number of prospective teachers to many lakhs. The Verma Committee’s recommendations have been found impractical to the extent that the government has appointed two successive committees to evolve a solution. But the reports are yet to see the day of light, because the government has to go to the Supreme Court for the clearance, even if there is a minor change.
But then, the judicial hyper-activism has been selective; the court does not intervene where it should. The glaring example of this selective hyper-activism is the overlooking of the fact that the Delhi footpaths all over are encroached by vendors, fruit sellers, drinking water machines, etc. It not only creates the traffic jam but also compels the students and the tiny tots to walk on the main road with their bag of books. This causes road accidents and the death of innocent children.
It is a well-known fact that the government of any political party won’t remove the encroachments for the sake of votes. The colonies developed by DDA have been surrounded by unauthorized construction up to the level of four-storey buildings leading to the polluted atmosphere and the epidemics in the absence of civil amenities. The courts might have taken suo motu action in this regard.
The reconstitution of the collegium to select judges has become a race of cat and mouse between the union government and the Supreme Court. The SC does not want to accommodate the government nominee, meaning thereby to have exclusive control and the authority on the collegium. The charges against the collegium for pick and choose in the appointment of judges will automatically die down, if one member not belonging to the Supreme Court is allowed in the collegium.
It is necessary to remind here that ‘the Gods of the Judiciary’ of yesteryears Mr. Katju and Mr. Kanan have been condemned by the Supreme Court. The judges of Rajasthan High Court have been allegedly found embroiled in sexual scandals. One of the former CJI was alleged in the corruption charges. This sufficiently proves that the judiciary is not above board;hence the collegium must have a member not belonging to the Supreme Court bench.
At the sametime, one should also note that the government machinery is not dutiful and is also corrupt. The officers behave like dictators and the clerical staff really runs the show. Whenever the courts grant the relief against the high handedness of the government officials, the government fails to punish the erring officers. A minor lacuna or a judgement written in short gives the officers the chance to ignore the very sprit of the judgement.The courts must guide, lay down the principles and also ensure functioning of the state authorities in accordance with the rules.
by Vijay Khaira
It is, therefore, high time and in this background as PM Modi has himself said that the setting up of AIJS must be debated, discussed and deliberated upon before finally transforming it into reality. But it must be done soon. It should have happened right at the time of independence but 70 years later we see it still has not materialized.
Uniformity in standards for selection will definitely improve the quality of different High Courts and will minimize the scope of partiality, arbitrariness and aberrations in judicial selection and simultaneously the quality of dispensation of justice will improve considerably right from the top to the bottom, as it essentially hinges upon the quality of judges recruited. It is the larger public interest that will be served if AIJS is created and also the interest of fair trial and speedy justice. The recruitment of Judges right from the entry level should be handled by an independent agency just like UPSC and can be named National Judicial Service Commission (NJSC).
No doubt, it would be the job of NJSC to ensure that only the best talent selected through open competition is selected into AIJS, thereby ensuring fair and transparent selection process just like IAS, IPS and others are selected into Civil Services by UPSC. Also, there should be comprehensive training of two-three years after selection in AIJS to be undergone at National Judicial Academy as we see in Bhopal.
It is most disconcerting to note that we see court cases not ending even after more than 50 years. This completely erodes and tears apart the otherwise irrevocable faith of people in getting justice from courts. In foreign countries like USA, UK and Canada cases are decided very soon. But in India it is exactly the opposite. This must change if we want to project the image of India as a global destination centre for investment. That can happen only when cases are decided in time. Fair, fast and uniform justice keeps the people’s faith ingrained in the system, which is so important for the successful functioning of any democratic country. Access to fair, fast and uniform justice is deeply rooted in the concept of democracy and regarded as a basic human right.
Truth be told, for cases to be decided in time, we need to have adequate number of judges, which in turn is possible only if AIJS is started at the earliest. There is just no other viable option available and Centre must grab it with both hands and do the needful so that people at large benefit the most from it for whom justice is really meant. Only such a meritocratic service with open competitive examination and 2-3 years of comprehensive training to all the trainee judges and assured standards of probity and efficiency would be able to ensure “fair trial and speedy justice’ to citizens in spirit of the Article 21. Unnecessary delay gradually declines the citizenry faith in judicial system, which is most dangerous. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become casualty. This will only usher in lawlessness, which we can allow only at the cost of our own peril.
Important events associated with AIJS
03-01-1977: AIJS was inserted into Article 312 by the Constitution (Forty-second Amendment) Act 1976. The purpose of the constitutional amendment was to ensure uniformity in standard of selection and to attract the bright and young talent in judiciary so that fair trial and speedy justice is made available to every citizen throughout the country.
27-11-1986: Law Commission submitted in its 116th report titled “Formation of All India Judicial Service” to the Union Law Minister and explained in details the importance and urgent need of All India Judicial Service.
10-4-1995: All India Judges Association v Union of India, directed the Union government to take immediate measures for setting up the All India Judicial Service. The Union government sought the views of the state governments and High Courts on constituting the All-India Judicial Service before moving a resolution in Rajya Sabha.
10-2-1997: The Union government submitted a status report on constituting the All India Judicial Service in the apex court. Out of 25 states, 08 states endorsed AIJS, 08 states conditionally agreed upon AIJS, 07 states disagreed on AIJS and 02 states not responded. Out of 18 High Courts, 04 High Courts endorsed AIJS, 04 High Courts conditionally endorsed the AIJS, 03 High Courts disagreed with AIJS and 07 High Courts not responded on AIJS.
24-10-2009: Hon’ble Chief Justice of India endorsed the All India Judicial Service in his inaugural address in a conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” in Delhi.
25-10-2009: Conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” unanimously adopted the resolutions presented by Union Law Minister for establishment of All India Judicial Service and increase in the strength of judges by 25 per cent to reduce the pendency of cases from 15 years to 3 years.
19-05-2014: Hon’ble Chief Justice of India R.M. Lodha on the eve of assuming charge reiterated the need of the All India Judicial Service. He said: “Setting up of All India Judicial Service, being planned by the government on the lines of the IAS and IPS for recruiting judges for subordinate courts, should be given serious thought. A national consensus is lacking as some states have raised reservations on the framework of the Indian Judicial Service. Those states should also be brought on board.”
It must also be stated upfront: Opposition too must play its role well by cooperating in ensuring that the Bill for AIJS is passed with thumping majority in both Houses of Parliament. It must be noted that the Union government cannot do anything unless the Council of States in this regard passes a resolution to this effect, which is a mandatory requirement for creation of the same as also specified in Article 312. The Centre must move a resolution in this regard without further delay.
It is well accepted by thinkers, philosophers, academicians and jurists that if fair, fast and uniform justice is to be secured to all the citizens, and equality before the law and equal protection of the law has to be ensured, India needs the best talent in the judiciary. Needless to say, the quality of justice dispensation will ameliorate considerably right from subordinate courts to the apex court by initiating the AIJS and by establishing a NJSC like UPSC, which is of seminal and pivotal concern.
It needs no rocket scientist to conclude that it is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. This in turn is possible only if there are adequate Judges. Adequate judges can be made available only if they are recruited in large strength through AIJS just like we see in case of IAS, IPS, IFS and other Civil Services and it is the young generation who have just graduated or are about to graduate in Law in any part of India that will benefit by leaps and bounds if PM Modi takes this landmark decision anytime soon.
By Sanjeev Sirohi