Chief Justice of India (CJI) DY Chandrachud recently called for national-level recruitment of judges for the district judiciary.
In December last year, President of India Droupadi Murmu also proposed the selection of judges through a nationwide All India Judicial Services (AIJS) examination.
Calls for the AIJS date back to as far as 1958.
Over six decades later, why hasn't it been implemented in India? More importantly, will the AIJS help reduce vacancies, and, consequently, pendency in the subordinate judiciary? We take a closer look.
What is AIJS?
The AIJS aims to centralise judicial officer recruitment, ensuring uniform standards and addressing vacancies across states. Currently, recruitment is handled by individual states. The proposal for AIJS seeks to transfer authority from the High Courts and the state governments to a central body, though specifics of this centralisation are not yet fully defined.
Article 312 of the Constitution provides for the establishment of the AIJS, similar to the civil services. This can be initiated through a resolution by the Rajya Sabha, supported by at least two-thirds of its members.
What is the need for AIJS?
The rationale behind establishing the AIJS is that a centralised service would effectively address the vacancy issues within the district and judiciary in India.
According to an answer in the Rajya Sabha on August 3, 2023, district and subordinate courts across the country have over 5,300 vacancies out of 25,246 sanctioned posts. The burgeoning number of vacancies is certainly not helping with more than 4 crore cases pending before the lower courts.
As per a report presented by the Supreme Court last year, 1,788 of these vacancies (21%) are in the district judge cadre (Higher Judicial Services), which has a sanctioned strength of 8,387, while 3,512 vacancies are in the civil judge Cadre, against a sanctioned strength of 16,694.
Across 24 states, 70.9% of advertised district judge positions (direct entry from the Bar) are left unfilled.
The Supreme Court report shows that the number of candidates qualifying the minimum qualifying criteria in the HJS examination in many states is very low as compared to the number of vacancies notified.
Is AIJS the answer?
Article 312(3) specifies that the AIJS shall not include any post inferior to that of a district judge, as defined in Article 236.
So, even if the AIJS were established, it would only address a small portion of the approximately 1,700 vacancies (excluding subordinate judiciary which consists of civil judges junior and senior division filled through civil judge examinations).
Therefore, instead of suggesting an AIJS as a remedy for judicial vacancies, it would be wiser to scrutinise the underlying reasons for the high number of unfilled positions in underperforming states. The causes for these vacancies may be diverse, encompassing issues such as insufficient courtrooms to obstacles in the recruitment process.
Speaking to Bar & Bench, Advocate and former judge Bharat Chugh said that AIJS is being portrayed as a panacea for all the challenges of the judicial system, but is no such thing.
"The biggest challenge facing the system currently is: lack of infrastructure and huge vacancies. I don't see how a centrally conducted exam can remedy this situation. There are vacancies and infrastructure related issues in central services too, so I don't see how AIJS is a remedy," he added.
Judicial independence
Since candidates who come through the AIJS are appointed by the Central government, it raises questions as to whether such judges will be independent.
Senior Advocate Sidharth Luthra said,
"While the proponents of the all-India judicial service would desire AIJS on the lines of the all-India services such as the IAS, its detractors (rightly) raise a concern as to the ability to retain judicial independence and need for experience of local language and laws of such entrants."
If the Central government indeed intends to establish an AIJS, it must clarify how the service would remain free from influence.
Senior Advocate Kapil Sibal recently commented that AIJS or a National Judicial Appointments Commission (NJAC) are not viable alternatives for judicial appointments.
"Way back, I think - when Setalvad was the Chairman of the then Law Commission - did a recommendation that for our district judges, we should have a judicial service where recruitment to district judges should be done on all India basis. According to me, that would be absolute disaster. Because if you have a judicial service for district judges, ultimately - who are going to appoint them? Which judge will go where? It can't be decided by the government," he remarked.
Local language and customs
A key argument against the AIJS is that centrally appointed judges may lack proficiency in the local language of their posting. Additionally, some state laws mandate that court proceedings be conducted in languages chosen by the respective state governments. Some High Courts even conduct proceedings in Hindi.
On this aspect, Luthra remarked,
"Given the diverse state laws, regulations, and court languages, it is crucial for trial court judges to be well-versed in local specifics. While an all-India judicial service can attract diverse talent, it is important to consider regional factors such as language, rules, and regulations when making appointments and allocating cadres."
Adding to this, Advocate Vikram Hegde remarked that All India Services are anti-federal in nature, as they tend to centralise the governance systems and it will have the same effect in judicial administration.
"The district judiciary interacts directly with the public more than High Courts and Supreme Court, handling crucial matters and requiring knowledge of local languages, customs, and laws. If district judges are transferred to areas where they lack familiarity with these aspects, it could undermine judicial effectiveness and justice quality, leading to regional imbalances in judicial representation," he added.
According to Chugh, the idea that AIJS would attract better talent by making judicial services more appealing to young lawyers, is not true.
"Firstly, the AIJS, as currently designed, is intended only for higher judicial services, not entry-level positions. Additionally, since it’s a central service, an officer might be posted in a different state, requiring them to learn a new language and local laws, only to face potential transfers again. This results in unnecessary expense and effort," he added.
He emphasised that aspiring judges may prefer positions in their home states to be closer to their families.
"The solution lies in enhancing state exams to make them more rigorous, improving working conditions, providing meaningful work to keep young judges engaged, and ensuring that their work environment reflects the dignity of their office and the sacrifices made by leaving lucrative legal practices," he suggested.
An out-of-state candidate would be unfamiliar with the local customs of a state in matrimonial or property cases, where local customs play a significant role in determining outcomes. In fact, the establishment of the AIJS has faced opposition in some states (Arunachal Pradesh, Meghalaya, Chhattisgarh) based on this concern.
Government and courts views on AIJS
A Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice presented its report on Infrastructure Development and Strengthening of Subordinate Courts on February 6, 2014. In this report, the Committee urged the government to swiftly consider creating the AIJS to improve judge quality in lower courts and to reduce case backlog.
On April 28, 2017, the Secretary of the Union Ministry of Justice issued a letter suggesting the establishment of a Central Selection Mechanism (CSM) for the appointment of district judges nationwide.
Subsequently, the Supreme Court, on its own initiative, took notice of this letter in the matter titled Re Central Selection Mechanism for Subordinate Judiciary.
However, in another matter, the Supreme Court had expressed its doubts about the feasibility of an AIJS in the existing federal setup. “Creation of All India Judicial Services is not something that can be done by way of a judicial order,” the top court had remarked in 2018 while dismissing a plea filed by NGO Lok Prahari seeking creating of AIJS.
The petitioner in that case had initially approached the Delhi High Court, which dismissed the plea in an order passed in November 2016. However, the Court sought a reply from the Union Law Ministry on the issue.
The Law Ministry's reply in the PIL indicated that no advancements had been made since the issue was deliberated upon during the Joint Conference of Chief Ministers and Chief Justices of the High Court in April 2015.
Previously too, Law Ministries, including those headed by Veerappa Moily and Ashwani Kumar, have mooted the idea before, to no avail. It has also been discussed at multiple Chief Justice and Chief Ministers’ Conferences before.
In 2021, then Union Law Minister Kiren Rijiju had revealed in Parliament the sharp divergence in views among state governments and High Courts in implementing the AIJS.
He cited data revealing that only two state governments - Haryana and Mizoram - unequivocally endorsed the AIJS concept. Eight states, including Arunachal Pradesh, Himachal Pradesh and Karnataka, supported the proposal. Five states, including Bihar and Odisha, requested modifications. Thirteen states did not respond.
In December last year, Union Law Minister (independent charge) Arjun Ram Meghwal informed the Rajya Sabha that there is no consensus on establishing the AIJS at the district judge level.
In November 2023, in the ongoing Malik Mazhar case, Senior Advocate Vijay Hansaria (amicus curiae) suggested the conduct of a preliminary examination for civil judge on an all-India basis by a centralised agency but no order was passed on this suggestion by the top court.
One major cause of extensive vacancies in the district judiciary judges' appointments is the delayed conduct of the preliminary examination for civil judges (junior division), the amicus had stated.
"The AIJS necessitates parliamentary legislation, focusing solely on district judges' recruitment with a direct quota of 25 percent, i.e., not exceeding 250 out of approximately 1000 vacancies. It may not be worth the effort," told Hansaria to Bar and Bench.
Amidst all these issues, and a lack of consensus by states, the proposal for the AIJS seems to be dead in the water. Besides, as pointed out, it would not substantially address the problem of vacancies in our lower courts.
However, if the Central government is genuinely committed to making AIJS a reality, it should release a public document outlining how it plans to implement the service while preserving judicial independence and transparency. A thorough discussion with stakeholders is essential to ensure that the decision is not made in haste.