Will A National Judiciary Work?

Context: The feasibility of the All-India Judicial Service (AIJS) in the current context requires to be studied.

Towards AIJS

     

• First National Judicial Pay Commission and 14th Law Commission report found that it would be in interest and health of judiciary to form an AIJS. 
• All-India Judges case in 1992: Supreme court had opined that the recommendations of Law Commission should be examined and implemented.
• National Commission constituted for review of the Constitution, 2000: Suggested a paradigm shift in approach of Union regarding judicial appointments.
• Recent attempts by Union government towards reforms in judicial appointments: In 2019, spearheaded a consultative process for the creation of AIJS, but did not receive adequate support from states and High Courts.

Major concerns over AIJS

• Constitutional dichotomy between Articles 233 vs 312 of the Constitution: 

• • Article 233(1): “appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court”.
  • 42nd Constitutional amendment in 1976 to Article 312(1): empowered Parliament to make laws for creation of one or more All-India Services, including an AIJS.
  • This paves the way for Parliament to enact laws with regard to ‘Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts’.
  • Therefore, what was essentially intended to be prerogative of State will now be prerogative of Union. This is against principle of federalism and basic structure doctrine.

• Administrative issues cited by Law Commission in 1986: Promotional avenues of subordinate judiciary would be severely curtailed, also language barrier remains a concern.
• Jeopardises reservation policy of States: E.g. Tamil Nadu provides for a roster-based reservation of 69%, of which 30% is for women, Uttar Pradesh merely provides 20% reservation for women.
• Arguments that the AIJS will reduce judicial delays do not hold water as subordinate courts are crucial point of delays owing to existence of large vacancies.

Conclusion: Case for creation of AIJS cannot be based on archaic reports of Law Commission and the feasibility of AIJS shall be studied in current context.