The proposal for an All-India Judicial Service (AIJS) exam for judges in lower courts, on the lines of the Union Public Service Commission (UPSC) for IAS officers, has been around for about a decade now. The topic is in the news again, with the Union government reportedly making a fresh attempt to reach a consensus with State governments that are strongly opposed to it.
It is expected that Union Law Minister Kiren Rijiju, at a meeting with State law ministers later this month, will broach the subject of establishing the AIJS. For now, judicial infrastructure is the only reported agenda of the meeting.
The Centre’s argument
Currently, the high courts and State service commissions hold exams in their respective States to recruit judicial officers. The Constitution has vested the power to make lower judiciary appointments with State governments, and they are in no hurry to give it up.
On the other hand, the Centre has stated that a well-framed AIJS will bolster the nation’s justice delivery system. Such a common entrance test will enable the induction of well qualified fresh legal talent through a nationwide merit selection system, it argues. It would create a pool of talented legal professional who could later on join the higher judiciary, covering 25 high courts and the Supreme Court.
Further, the AIJS will ensure social inclusion by offering representation to marginalised and deprived sections of society, goes the theory.
In fact, an all AIJS on the lines of the Indian Administrative Service (IAS) and the Indian Police Service (IPS) was mooted right after Independence. Article 312 of the Constitution, through an amendment in 1976, makes a provision for such a judicial selection system. But it was not implemented, and would now require fresh legislation. A new bill would define the broad contours of the selection process including the test.
States up in arms
While the Union government is all for AIJS and even the Supreme Court has shared its favourable views on it, several State governments — such as the Trinamool Congress one in Bengal — have opposed it hammer and tongs. It is feared that the AIJS, if implemented, will dilute the federal structure.
The State governments argue that their opposition to AIJS goes beyond the urge to retain a power vested on them by the Constitution. For starters, they point to the language problem. In a multi-lingual nation like India, a common entrance test would not be feasible, or fair, to people of all regions.
The Centre argues that when IAS officers pick up the language of the States they are deputed to, so can judges. However, experts observe that in a court, language — the strict definitions as well as nuances — is of paramount importance. So, the ‘picking up’ of a language, while sufficient for an IAS officer, may not let a judge do justice to his/her post.
Also, the State point out, the AIJS does little to address the key problems of the lower judiciary such as a poor compensation structure. The pay is often low, and chances of getting a promotion to higher judiciary are rather rare.
‘Work in progress’
Earlier this year, then Union Law Minister Ravi Shankar Prasad has said he was ‘keenly pushing’ the AIJS, which he went on to call ‘work in progress’. About four years earlier, he had held a meeting with senior officials including the Attorney General of India, the Solicitor General of India, Secretaries of the Justice, Legal Affairs and Legislative departments. There, topics such as entry age, eligibility, qualification and other selection criteria were discussed.
In 2017, Chief Justice of India JS Khehar took up the issue suo motu, circulating a concept note saying the AIJS would facilitate the efficient filling of vacancies in lower courts. “We assure you (States) that we will not tamper with the federal structure,” he was quoted as saying had in the Supreme Court.
However, the governments of West Bengal, Kerala, Andhra Pradesh and Uttarakhand opposed the AIJS, and filed affidavits to that effect before the Supreme Court.
In his upcoming meeting, it is anticipated that Rijiju will seek consensus from the State government to come to a middle ground on the contentious subject.