A solution in search of a problem Editorial 25th Dec’18 TheHindu

Headline : A solution in search of a problem Editorial 25th Dec’18 TheHindu

Details :

Proposal for All India Judicial Service (AIJS):

  • The current federal structure in India vests the recruitment and appointment for the lower judiciary in the hands of State Governors, High Courts and State Public Service Commissions.
  • Recently, in its report ‘Strategy for New India@75’, the NITI Aayog mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary.
  • Similar proposals were made by the Union Law Minister.

Reasons cited:

  • Fixing a broken system: Those in favour of AIJS say that the current system is broken and inefficient and the creation of the AIJS and a centralised recruitment process will help the lower judicial services.
  • To Maintain high standards: The appointments are proposed to be done through an all India judicial services examination conducted by the Union Public Service Commission (UPSC) in order to maintain “high standards” in the judiciary.
  • Faster filling of vacancies: The proposal is being mooted as a solution to the problems of vacancies in the lower judiciary and a lack of representation in the judiciary from marginalised communities.
  • Representation to marginalized communities: Another argument in support of the AIJS is that its creation, along with provisions of reservations for the marginalised communities and women, will lead to a better represented lower judiciary.

 

Constitutional provisions regarding appointments to lower judiciary:

  • As originally enacted, Articles 233 and 234 of the Constitution vested all powers of recruitment and appointment of lower judiciary (district judges and lower) with the State Public Service Commission and High Courts.

Superceding Art 233 and Art 234 through Art 312:

  • During the Emergency, Parliament amended Article 312 of the Constitution to allow for the Rajya Sabha to pass a resolution, by two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge.
  • Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which law will strip States of their appointment powers.
  • This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures.

 

Some say AIJS is not the solution

  • Some say that the AIJS is not a solution to these problems and that the government should reconsider its stance over AIJS.
  • They say that the problem of vacancies is not what it is actually made out to be, and that the centralisation  of recruitment is not the solution.

Reasons:

  1. Problem of vacancies is not uniform across India:
  • Going by the latest figures published by the Supreme Court, many States are doing a very efficient job when it comes to recruiting lower court judges.
  • In Maharashtra, of the 2,280 sanctioned posts, only 64 were vacant. In West Bengal, of the 1,013 sanctioned posts, only 80 were vacant.
  • However, there are States such as Uttar Pradesh where the situation is shocking. Of the 3,204 sanctioned posts, 1,348 are vacant, i.e. 42% vacancies.
  • Solution could be to put pressure on poorly performing states:
    • These numbers show that the problem of vacancies is not uniform across different States.
    • The solution is to pressure poorly performing States into performing more efficiently.
  1. Centralization of recruitment is not a solution:
  • The argument that the centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process may be flawed and not a guarantee of a solution.
  • Examples of vacancies even in centralized recruitment:
    • The Indian Administrative Service — its recruitments are through the UPSC — reportedly has a vacancy rate of 22%.
    • Similarly, the Indian Army’s officer cadre, also under a centralised recruitment mechanism, is short of nearly 7,298 officers.
  1. Not a solution to improve representation in the judiciary from marginalised communities:
  • Will the creation of an AIJS lead to more representation from marginalised communities and women?
  • Many states already provide reservations:
    • The fact is that several States already provide for reservations in their lower judicial service.
    • For example, at least 12 States, which include Madhya Pradesh, Chhattisgarh, Uttar Pradesh, Rajasthan and Kerala, provide for caste-based reservation in the direct recruitment examination for district judges from the bar.
    • Karnataka also recognises two additional categories of reservation within caste-based reservation — for those from a rural background and those from Kannada medium backgrounds.
      • Karnataka is an example of how States are best suited to assess the level of intersectional disadvantage of various communities residing in the State.
  • States often provide wider representation that Centre:
    • States like U.P., Karnataka, Rajasthan and Chhattisgarh provide women with special reservations.
    • Unlike States, the Centre almost never provides reservation for women in the all India services.
  • Central recruitment will favour nationally dominant SC, ST and OBC groups:
    • On the issue of caste, an AIJS may provide for SC/ST reservation along with reservation for the Other Backward Classes (OBC).
    • However, it should be noted that a recent Supreme Court ruling has held that SC/STs can avail the benefit of reservation in State government jobs only in their home States and not when they have migrated.  The same principle is usually followed even for OBC reservations.
    • Thus, instituting an AIJS would mean that nationally dominant SC, ST and OBC groups would be at an advantage as they can compete for posts across the country, which they would otherwise be disqualified from because of the domicile requirement.
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