We don’t need career judges India

NITI Aayog’s proposal for All India Judicial Service is ill-judged

The vision document titled ‘Strategy for New India @ 75’, released by the NITI Aayog in December last, amongst other things, proposes a spate of judicial reforms. The think-tank has come out batting for the creation of an All India Judicial Service, akin to the other central services like the IAS and the IPS. However, in a reductionist policy format, this document attempts to deal with this complex issue without addressing some crucial aspects of the debate.

The idea of an All India Judicial Service (AIJS) has been deliberated since Independence. In fact, the first law commission — 14th Report on Reform of Judicial Administration — alluded to the need for creating a separate all-India service for judicial officers. This report favoured an AIJS to ensure that subordinate court judges are paid salaries and given perks at parity with government bureaucrats, thereby incentivising the option of the state judiciary as a viable career prospect. Subsequently, a crucial step towards formalising the process for setting up an AIJS was taken under the infamous 42nd Constitutional Amendment during the Emergency in 1976. Herein, Article 312 was amended to confer power on the Rajya Sabha to initiate the process for setting up an AIJS, by passing a resolution supported by two-thirds majority in the upper house. It is noteworthy that the said provision also restrained the composition of such a service to the rank of district judges — defined under Article 236 — while excluding the lower subordinate judiciary.

Given this mandate under Article 312, the creation of an AIJS is, prima facie, constitutionally permissible. Presently, the appointments to the subordinate judiciary are made under Articles 233 and 234 of the Constitution. However, the amended Article 312 commences with a non-obstante clause, overriding these provisions. Therefore, any appointments made to the post of district judges, in terms of a law enacted under Article 312 would not conflict with the existing process. Furthermore, entry 70 of the Union List (List I Schedule VII) provides Parliament exclusive authority to enact a law creating such an AIJS, and all connected matters. Hence, should the Rajya Sabha initiate the process for setting up an AIJS such a law would not be assailable for want of legislative competence.

Despite the constitutional permit, the road to setting up an AIJS is ridden with numerous concerns, which remain unaddressed in the NITI Aayog’s trite proposal. The foremost is the logic offered as the raison d’être by the government think-tank. The AIJS is being proposed as a panacea to cure the chronic vacancy crisis plaguing the Indian subordinate judiciary. Given the limited extent to which the Constitution only permits the appointments of district judges to such a prospective AIJS, it will not magically remedy this crisis. At best, what an all India service potentially offers is a more streamlined and regularised recruitment process for the limited number of vacancies for district judges in the country.