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Shubhi Srivastava,
Jamia Millia Islamia
INTRODUCTION
Multiculturalism has long been ingrained in the Indian way of life.[i] India's long history of multiculturalism makes it difficult to bring the country's legal system together. Even if its many languages and cultures are valued, they make it difficult to develop a strong, single system. In contrast to other countries where courts use a single language for all proceedings[ii], India's subordinate courts use multiple languages, which disrupts communication and makes operations difficult.[iii] To exacerbate the situation, the legal systems in many states are essentially unrecognizable to one another due to their vast differences in language, benefits, and working circumstances.[iv] This separates them and isolates the subordinate courts, which hear over two crore cases annually, the lowest and most important tier of the judiciary. [v]
This article proposes a centralized pan-Indian service called the All-India Judicial Service (AIJS) as the remedy for these issues. The AIJS hopes to revive the lower judiciary and strengthen the judicial system as a whole by promoting uniformity and standards. Bringing the subordinate judiciary together and addressing these problems are the goals of the planned All India Judicial Service.
OBJECTIVE
The purpose of this article is to examine the feasibility and possible advantages of establishing an All-India Judicial Service (AIJS) in order to revitalize the lower judiciary, which is presently in dire need of help due to an overwhelming backlog of cases and a severe shortage of
vacancies. It examines these courts' existing conditions and organizational setup in detail and assesses previous reform initiatives, emphasizing their flaws and narrow scope of influence.
HISTORICAL BACKGROUND
First Law Commission, 1958: The First Law Commission of 1958 proposed in its 14th Report on Reform of Judicial Administration that judicial officers be placed in a distinct all-India service.[vi]
The 42nd Amendment Act, 1976: All India Judicial Services was established under Article 312 of the 42nd Amendment Act, 1976, which also granted the Parliament the power to create one or more services that are exclusive to India and shared by the Union and its member states.[vii]
Chief Justices Conferences: The establishment of an All-India Judicial Services was favoured in 1961, 1963, and 1965.
The Law Commission Report, 1978 proposed an idea for creating All-India Judicial Services.
The establishment of All India Judicial Services was mandated by the Court in the case of All India Judges’ Assn. v. Union of India,[viii]. However, the 1993 review petition sincerely softened the direction by allowing the Union to take the lead on the issue.
Committee on Personnel, Public Grievances, Law and Justice, Parliamentary Standing Committee, 2006: In its 15th Report, the Committee supported the concept of a pan-Indian judicial service and presented a draft bill.
The former Chief Justice of India, Deepak Misra, oversaw the Supreme Court's conversion of a 2017 letter from Law Minister Ravi Shankar Prasad into a suo motu writ petition, which is currently awaiting a decision.[ix]
STATUS QUO
Despite shifting sands of time, district courts, fossilized remnants of colonial rule, cling stubbornly to archaic ways. Even Supreme Court thunder hasn't dislodged their entrenched habits, leading to mere cosmetic changes, not true reform.[x] There are now three points of provenance for recruitment, In compliance with the decision from the Supreme Court in All India Judges' Association v. Union of India[xi]. An incoherent judiciary is produced by the district judge recruiting process, which consists of three stages: internal tests, promotions, and external hiring. Fifty-five percent of the posts are filled through regular promotions from the cadre of Civil Judge (Senior Division), twenty-five percent through direct recruitment from the Bar Council of India, and ten percent through competitive departmental examinations held exclusively on the basis of merit. Every state has a distinct syllabus and format for exams. Judges with varying levels of competence and intelligence are the result of broad variances in state-level procedures and credentials.
PROBLEMS
Court hearings are conducted in regional languages, which could be damaged by central hiring. Judges' ability to assess evidence and make decisions may be compromised by a lack of skill in the local language.
As the lower judiciary becomes a central concern, the promotional opportunities available to State service personnel would be severely curtailed.
Loss of control over subordinate judiciary by High Courts would impair its independence. High Courts perceive it as an encroachment on their autonomy and authority over the subordinate judiciary.
One significant problem would be that the appointed judge would not be familiar with the local laws and customs that are crucial in making decisions in cases, especially in property, testamentary, and marriage matters where local customs dictate the ultimate resolution.
Not every state has the same number of vacancies. Moreover, the majority of the openings are found at the subordinate level rather than the district judge level. As a result, the AIJS, which is only used for district judge hiring, is not the answer to vacancies.
Critics argue that caste-based quotas might disadvantage rural candidates or linguistic minorities within states.
A centralized recruiting process for district judges is opposed by a number of States, who consider it as an encroachment on their constitutionally authorised powers.
States contend that a central recruiting process would overlook each state's particular requirements, including language, representation, and reservations for various groups.
States further worry that central recruiting will diminish the role of High Courts, which is
against Article 50[xii], and give the administration more control over the appointment of district judges.
Legal experts suggest addressing judicial issues through better compensation, improving career paths for lower judges, and promoting them to High Courts rather than implementing the AIJS.
ALL INDIA JUDICIAL SERVICES PROPOSED STRUCTURE
Despite the lack of concrete statistics indicating the precise number of District Judge vacancies, Senior Advocate Arvind P. Datar states that it is reasonable to conclude that 25% of all vacancies, or 4800, are District Judge vacancies.[xiii] As a result, there are over 1200 district judge vacancies, of which 25% must be filled through direct hiring in accordance with the ruling in All India Judges' Association v. Union of India.[xiv] Accordingly, there are 300 openings that need to be filled through direct hiring each year.[xv] The ailing subordinate judiciary urgently needs a complete overhaul, not just a piecemeal change like a central selection mechanism. Fixing recruitment alone won't restore public trust; qualifications, training, and even promotion systems must be reformed.[xvi] To find truly exceptional judges, the subordinate judiciary needs to cast a wider net, beyond state-specific rules and regulations. The All-India Judicial Services (AIJS) aims to do just that, attracting a larger pool of candidates and increasing the chances of finding the best. The subordinate judiciary needs a complete re-roofing, from materials to construction, to regain public trust. The AIJS offers a fresh approach with a wider pool of ‘roofers’, increasing the chances of finding the best.
Promoting merit-based selection via a rigorous All-India Judicial Services Examination administered by NITI Ayog draws applicants from all over the nation and promotes rankingbased selection. When contrasted to state-based selection procedures, this may guarantee a greater grade of judicial officer.17 Emphasizing the role internet and technology in contemporary courts is essential for accessibility, openness, and efficiency. By streamlining
court procedures, enhancing record-keeping, and even enabling virtual hearings, technological integration can increase access to justice.
CONCLUSION
The primary responsibility of the judiciary is to protect the public from injustice and administer justice. We must move quickly to address the system's shortcomings and restore public trust, both of which are essential for the administration of justice, if we have to accomplish this successfully. It is possible to accomplish both of these objectives with the proposed All India Judicial Services paradigm. Over the course of six decades, the argument surrounding AIJS has evolved from a scholarly exercise to a critical response to the long-denied constitutional right to prompt justice. With the promise of producing an effective and reliable judiciary, this suggested approach provides a concrete route to reform.
REFERENCES
[i] Dillip Kumar Maharana, In Defence of Indian Perspective of Multiculturalism, 71 The Indian Journal Of Political Science 1, 69-83 (2010).
[ii] The United States of America does not have any national or official language but still, the proceedings in all of the courts are carried out in English, or more accurately, in ‘legal English’.
[iii] The Code of Civil Procedure, 1908, §137, No. 5, Acts of Parliament, 1908 (India) of the Code empowers the State Government to declare as to what shall be the language of the civil courts and in what character applications and the proceedings in such Courts shall be written. Similarly, there is a corresponding provision under The Code of Criminal Procedure, 1973, §272, No. 5, Acts of Parliament, 1974 (India) which confers similar power to the State Government with respect to criminal courts.
[iv] In the Constitution of India, prior to the Forty Second Amendment, 1976, the subject matter of ‘Administration of Justice; Constitution and Organisation of all Courts, except the Supreme Court’ formed a portion of Entry 3, List II (State List), Schedule VII. But after the amendment, it was exported and made into a separate Entry 11A under List III (Concurrent List).
[v] In 2015, only 1,90,44,877 cases were instituted before the subordinate courts across the country. Centre for Research and Planning, Subordinate Courts of India: A Report on Access to Justice, available at https://www.sci.gov.in/pdf/AccesstoJustice/Subordinate%20Court%20of%20India.pdf (Last visited Jan 13, 2024).
[vi] Report on All India Judicial Service, ¶5.1.
[vii] INDIA CONST. art. 312.
[viii] (1992) 1 SCC 119.
[ix] In Central Selection Mechanism for Subordinate Judiciary, In Re, 2017 SCC OnLine SC 1644.
[x] Robert S. Moog, Elite-Court Relations in India: An Unsatisfactory Arrangement, 38 Asian Survey 4, 410–423 (1998).
[xi] (2010) 15 SCC 170.
[xii] INDIA CONST. art. 50.
[xiii] Arvind P. Datar, Concept Note on the District Judiciary Recruitment Examination (DJURE), 2 (Annexure B) (2017).
[xiv] (2010) 15 SCC 170.
[xv] Datar, supra note 14.
[xvi] In re, 2017 SCC OnLine SC 1644, a three-judge Bench headed by the Chief Justice of India noted that the Central Selection Mechanism (CSM) deliberated upon, will be carried out substantially in consonance with prevalent rules. The process contemplated is more like a single window system for candidates to apply to all the State judiciaries. Its objective is to make recruitment a ‘regular reoccurring feature.’ 17 Niti Aayog, Strategy for New India @ 75, 180.
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