JUDICIAL SERVICES IN INDIA : WITH SPECIAL REFERENCE TO ALL INDIA JUDICIAL SERVICES
Bhumika Sharma*
Before Montesquie's concept of separation of powers became popular, all functions in the nature of legislative, executive and judicial were clubbed together and vested in the same authority. If all three types of powers are exercised by the same authority, justice will be arbitrary and capricious.1 With application of this philosophy, the role of judiciary as distinct and separate organ became prominent. The legal system of a country at a given time represents the cumulative fruit of the endeavor, experience, thoughtful planning and patient labour of a large number of people through generation. 2
Historical Outlines
The Conference of the Premiers of Provinces held in 1946 under the Chairmanship of Sardar Vallabh Bhai opined that there was no necessity of organizing subordinate judiciary on an All India basis on the model of administrative services. Later Swaran Singh Committee, 1976 was given the task of examining the need of organizing an All India Judicial Service but, without expressing its opinion on the matter, it referred the matter to the government for its recommendations. In the Consultative Committee meeting, 1980 a consensus emerged in favour of creating an All India Judicial Service in principle subject to appropriate mechanism being drawn up keeping all aspects in view.
Constitutional Philosophy
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 exercising jurisdiction in relation to such State.3
Amendment in Article 312 provides inclusion of a ll India Judicial Service within the meaning of a ll India Services.4
Need For Judicial Services at National Level
Our adversary system of justice is fraught with processual injustice.5 Social justice is virtually a casualty because of the backwardness and the backlog of the cases from top to bottom.6 Justice V.R.Krishna Iyer has rightly pointed out that the criteria for selection of judges ignore the activist fidelity and ability to bear true faith and allegiance to the radical values of the Constitution.
While most government departments have all India service recruits, selected after an all India competitive examination conducted by the Union Public Service Commission every year, the judiciary is the only set-up that does not have an all India selection process. The quality of justice administered would, of course, depend upon the strengths of judges engaged in delivery of justice to the masses. There are established procedures for elevation from subordinate courts to higher courts. Once recruitment practices are sound, incentives for better performance and effective monitoring, at least until a judge is elevated to the h igh c ourt, are in place.7 More judges, more salaries and more flatory are the panaceas proposed.8
Recommendations of Various Commissions
The 1 st Law Commission recommended in its 14 th Report the creation of an AIJS and opined that such a course is necessary in the interest of efficiency of the subordinate judiciary. The 8 th Law Commission in its 77 th Report while examining the problem of arrears in trial courts, recommended formation of an AIJS.
The Law Commission in its 116 th Report 1986 observed that a service organized on All India level attracting talent from the whole country would provide more competent service than the service organized on a State level. It also discussed objections that inadequate knowledge of regional language would corrode judicial efficiency both with regard to understanding and appreciating parole evidence pronouncing judgments; promotional avenues of the members of the State judiciary would be severely curtailed causing heart burn to those who have already entered the service and manning of the State judicial service would be adversely effected; and erosion of control of the High Court over subordinate judiciary would impair independence of the judiciary.
The Parliamentary Standing Committee on Law and Justice in its 15 th Report has also laid stress on creation of an All India Judicial Services and directed the Law Ministry to take immediate steps for setting up such a service. First National Judicial Pay Commission, 1999 recommended that the qualification for direct recruitment to AIJS should be in conformity with that prescribed under Article 233(2) of the Constitution; the age limit for recruitment to AIJS should be between 35 years to 45 years and the procedure for selection shall be by written examination followed by viva voce.
Evaluation
The establishment of such procedure would enable talented, brilliant and young law graduates to rise to the level of District Judges at an all India basis. It can be said that such services would provide two fold benefits to subordinate judicial officers— providing them a wider field to prove their mettle and ensuring equitable service conditions.9
So, it can hardly be understood why the States and the High Courts have always opposed creation of judicial services on an All India level.
Conclusion
In the All India Judges case10 , the Supreme Court supported the need for such a service, as enshrined in Article 312 of the Constitution. All this calls for early setting up of the a ll India j udicial s ervice. So in order to make human rights meaningful for each and every one, judges need to be sensitized to the right of every citizen and this can be achieved only by having quality of compassion and knowledge in them. The law access must have participation of people. If the divine function of justice dispensation has to be given in the safer hands, steps must be taken at the earliest to establish judicial services at the national level.
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* School of Legal Studies, Shimla.
1 M.C. Jain Kagzi, Indian Administrative Law , at 16.
2 M.P. Jain, Outlines of Indian Legal History , at 1.
3 The Constitution of India , 1950; Article 233(1)
4 42 nd Amendment
5 V.R.Krishna Iyer, Social Justice - Sunset or Dawn , at 13.
6 Ibid .
7 “High time for an All-India Judicial Service”, Financial Express, April 22, 2005 .
8 Supra V.R.Krishna Iyer at 14.
9 R.D. Sharma, “Merits of an a ll India j udicial s ervice”, The Hindu , August 20, 2006 .
10 AIR 1992 SC 165.