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• How recruitment to lower judiciary is carried out currently?
• All India Judicial Services
• Reasons given to support AIJS
• Criticism / Other suggestions

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How recruitment to lower judiciary is carried out currently?

• Article 233 and Article 234 of the Indian constitution vests all powers of recruitment and appointment of lower judiciary with the High Courts and State Public Service Commission.
  • Article 233 provides that District Judge shall be appointed by the Governor of the state in consultation with the High Court.
  • Article 234 provides that appointment of persons other than district judge to the Judicial Services of a state shall be made by the governor of the state in accordance with the rules made by him in that behalf in consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such state.
• Article 235 puts the lower judiciary under the control of the High Court

Some Key Problems faced by Lower Judiciary

• Quality of judges
• Large vacancies
• Complaints of nepotism
• Complicated state processes etc.

All India Judicial Services

• The AIJS has been conceived to create a rigorous mechanism for appointment of persons of highest ability, impartiality and integrity to direct district courts and to equip the sub-ordinate judiciary in turn to serve as the feeder line for appointment of competent judges to the high courts or eventually Supreme Court.
• The issue of AIJS is hanging fire since 1960 due to difference of opinion between the state and judiciary.
  • Infact, in 2023, government informed the Lok Sabha, that consensus couldn’t be achieved among states and High courts on the issue of AIJS.
• In the past, Law Commissions, Parliamentary Standing committee, NITI Aayog etc. have supported the AIJS.
  • NITI Aayog has said that AIJS examination on a ranking basis will contribute to high standards in Judiciary and the selection process may be entrusted to UPSC. For independence of Judiciary, the cadre should report to Chief Justice of each High Courts.
• Similarly, Swaran Singh Committee also recommended the same, based on which, the Constitution (42nd Amendment) Act 1976, inserted “All India Judicial Services” provision into article 312 that lays down the legal ground for the creation of All India Services. ­

Article 312 of the constitution allows creation of new All India Services (including judicial services).

Reasons given to support AIJS

i. Filling vacancies

ii. Attracting talent and improving efficiency

iii. Bring Uniformity in the selection and training process.

iv. Curb nepotism and favoritism i.e. the uncle judge problem.

v. Specialization through training

• Adjudication is a specialization, and specialized training for it should be provided.

vi. Increasing Inclusiveness

• AIJS through reservation for weaker sections and women can ensure better represented lower judiciary.

­Criticism / Other suggestions

• AIJS may be seen as an affront to federalism and an encroachment on powers of states granted by the Constitution.
• No empirical evidence to prove that AIJS will solve the problems.
  • Law commission reported cited are from 1958, 1978, and 1986 and even these reports are based on personal observation and not empirical studies.
  • Percentage of vacant seats in different states vary from less than 10% to more than 40%. Therefore, proper implementation of current mechanisms in poorly performing states may be required, rather than a new system of AIJS
• Inability to attract talent may be due to low salaries or weak compensation; Even All India services have huge vacancies (e.g. IAS-22% vacancies).
• Adjudication may be a specialized stream – but this is why we have judicial academies to train the selected candidates on the finer aspects of judging.
• Efficiency can be improved by making judges focus only on adjudication task (remove clerical tasks from their domain)
• Reservation is already provided by State Service Commission so inclusivity may not be an issue presently.
• AIJS may hamper the career of State Judicial Services officers.
• It may be less inclusive as many communities which are covered by state quotas may not be covered in the central list.
• Language barriers

­ Other challenges

• Dichotomy between Article 312 and Art 233
  • Art 233 says that district judge would be appointed by Governor, whereas AIJS selection responsibility would be with Central government.
• Constitutional Limitations: Article 312(3) says that AIJS shall not include any post inferior that that of a district judge as defined in Article 236. Thus appointment of lower judiciary through AIJS may face constitutional barrier.
• Question of Judicial Independence: AIJS may dilute High Court’s control over lower judiciary.

Way Forward

• If the government finally decides to go for AIJS, it should be designed in a manner which limits the above shortcomings as far as possible.
• Pay scale, issue of transfers, career growth etc. should be carefully designed to make it attractive for youth.
• Post-selection training will be very crucial for AIJS cadre to ensure that language doesn’t become a negative factor in delivery of justice.
• After selection and initial appointment, all other kinds of control should remain with High Court to prevent dilution of High Court’s control.

Example Questions

• “There is a compelling need to have a centralized selection process to appoint members of the lower judiciary” Critically Analyze [15 marks, 250 words]
• “A properly framed All India Judicial Service (AIJS) is important to strengthen overall justice
  delivery system” Elaborate [10 marks, 150 words]