GS Paper II

News Excerpt:

During an event celebrating Constitution Day at the Supreme Court, the President of India suggested the establishment of an All-India Judicial Service (AIJS). 

Need for AIJS:

• Suggestions of the various bodies:
  • The first Law Commission recommended the creation of an AIJS for efficiency in the subordinate judiciary.
  • The 8th Law Commission also recommended it for arrears in trial courts.
  • Chief Justice Conferences in 1961, 1963, and 1965 supported AIJS.
  • The National Judicial Pay Commission supported AIJS in 1999.
  • The Supreme Court's observation in the All India Judges case suggests examining the feasibility of implementing Law Commission recommendations expeditiously for the health of the judiciary.
• India faces a shortage of judges in its subordinate courts, with around 35% of vacant posts. This has led to a poor judge-to-population ratio, with only 17 judges per million people.
• Since the inception of the Supreme Court, only 11 women have been appointed as judges, and none as Chief Justices.
• According to the 'Prison Statistics India' report published by the National Crime Records Bureau (NCRB) in 2020, out of the total inmates 76% of the inmates are undertrials.
• The appointment and transfer of judges in India is carried out through the collegium system, which has been criticized for its opaque functioning.
• Pending cases across various courts in the country are moving towards the five crore mark.
  • According to the law minister, as of December 31, 2022, the total number of pending cases in district and subordinate courts was pegged at over 4.32 crore.
  • Over 69,000 cases are pending in the Supreme Court, while there is a backlog of more than 59 lakh cases in the country's 25 high courts.

Significance of AIJS:

• The All India Judicial Service (AIJS) is crucial for strengthening India's justice delivery system. This will also make justice accessible to all.
• It will allow for the induction of qualified legal talent through a merit-based system, addressing social inclusion and attracting competent individuals.
• This system will also facilitate the inclusion of competent persons from marginalised, deprived sections and women in the judiciary.
• A more varied representation of India's unique diversity on the bench and bar will serve the cause of justice better.
• Judges can be recruited from various backgrounds through merit-based, competitive, and transparent processes, creating more significant opportunities.

Challenges:

• The National Commission to Review the Working of the Constitution is of the opinion that while examining the idea of the All-India Judicial Service, the following factors to be kept in view:-
• The creation of AIJS could further diminish the powers of States, which currently have limited powers. The 42nd Amendment to the Constitution has already adversely affected states' powers, and it is questionable whether it is advisable to diminish them further by transferring the power of selection from the High Courts to a central body.
• Article 312 of the Constitution, as amended by the Constitution (Forty-second Amendment) Act, states that no post inferior to that of a "district judge" should be included in the service.
• If young individuals aged 24-30 are inducted into the service, they must be posted as district judges soon after selection and training.
• District judges handle serious criminal cases, have appellate jurisdiction in criminal and civil matters, and exercise original jurisdiction in certain civil matters.
• It is questioned whether entrusting these young recruits with such vast powers and their ability to handle such tasks is advisable.
• The Law Commission again considered this matter in its 116th report. The report dealt with three objections -
• Inadequate knowledge of the regional language would corrode judicial efficiency both with regard to understanding and appreciating parole evidence and pronouncing judgments;
• Promotional avenues of the members of the State judiciary would be severely curtailed, causing demotivation to those who have already entered the service and manning of the State judicial service would be adversely affected and
• The erosion of control of the High Court over subordinate judiciaries would impair the independence of the judiciary.

Way forward:

• The National Judicial Pay Commission has recommended that the All India Judicial Service (AIJS) should be constituted only in the cadre of District Judges, following Article 312 (3) of the Constitution.
• The selection process for direct recruitment should be conducted by the National Judicial Commission / UPSC and the promotees by the respective High Courts.
• The qualification for direct recruitment should conform to Article 233(2) of the Constitution.
• Service Judges should also be allowed to compete for AIJS recruitment.
• Not exceeding 25% of posts in every state cadre of District Judges should be earmarked for direct recruitment.
• A “citizen-centric approach” should be followed to improve access to justice. Our systems have been products of time, more precisely, products of colonialism. Clearing away its vestiges should be a work in progress.

Mains PYQ

1. Discuss the desirability of greater representation to women in the higher judiciary to ensure diversity, equity and inclusiveness. (UPSC 2021)

Prelims PYQ

Q. Which one of the following factors constitutes the best safeguard of liberty in a liberal democracy?​ (UPSC 2021)

(a) A committed judiciary​

(b) Centralization of powers​

(c) Elected government​

(d) Separation of powers