To Constitute AIJS Would Be The Greatest Step Since Independence

Coming straight to the nub of the matter, let me begin penning down my forthright views by first and foremost expressing my utmost happiness to note that Centre has finally decided to get its act together and constitute the All India Judicial Service (AIJS) about which we have been hearing since ages! AIJS is the crying need of the hour and must be debated, discussed and deliberated fully so that all best features are included in it and all possible drawbacks are deleted before it is finally created. There can be no two opinions on it.

It delights me to no end to see that Prime Minister Narendra Modi while addressing a function to celebrate the completion of 50 years of the Delhi High Court on October 31, 2016 set the cat among the pigeons when he sought a debate on creating AIJS which has been hanging fire right since independence. It is most tragic to see that AIJS has always been mocked at by the ruling party in Centre. Even now if AIJS is constituted, it will be the greatest step since independence.

Most recently, Central Government after holding a meeting presided over by Law Minister Ravi Shankar Prasad has sought the advice of its two top officers - Attorney General Mukul Rohatgi and Solicitor General - Ranjit Kumar on the question of constituting All India Judicial Services just on the lines of All India Civil Services. This will be the biggest landmark decision of Modi government if taken by him in next two years. I am sure Modi government will take that landmark decision which no government till now has taken!

It needs no rocket scientist to figure out that how much our judicial system which is currently on the verge of collapsing due to a whooping number of pending cases will benefit if AIJS is created soon. While I fully support the creation of AIJS, I don't support reservation in judiciary at all. I certainly would welcome the inclusion of people from the lower strata of society into the judicial system but only when they enter by their own merit and I know that they can do it on their own. They are no less than others in anyway.

Let me be direct in saying: Did Dr BR Ambedkar make a name for himself by coming up through reservation? Selection should only and only be on merit alone. There should be no other criteria for selection. No compromise should be made on merit under any circumstances, come what may!

While craving for the exclusive indulgence of my esteemed readers, let me inform you all that I am not at all against Dalits, oppressed, poor and people coming from lower strata of society entering AIJS. But that should not be at the cost of merit under any circumstances as most unfortunately we have been seeing in other services since last 70 years even though Dr Ambedkar had proposed reservations only for 10 years! In fact, I treat them just like others and very strongly feel that they too can do whatever they want just like others! Why should they be treated worse than disabled?

Let me ask some more troubling questions: Who is stopping Centre from imparting free coaching to Dalits and all those coming from lower strata of society? Why can't more scholarship be given to them? Why can't they be coached by top successful persons of the field for which they are trying? Why can't they be allowed free expense for giving as many exams as they like? They can be helped in thousands of ways other than reservations. Why politicians favour only reservation as the best possible way? Did Tina Dabi who topped IAS this year becoming the first Dalit to become a topper did by availing reservation benefit? No, by her merit she made it to the top!

Few more troubling questions:How long will this cancer of reservation be allowed to fester and harm the unity and integrity of our nation endlessly? How long will we ignore how huge violence broke out when Jats demanded reservations and many resorted to violence and similarly Gujjars in Rajasthan stopped trains and hugely damaged public and private property demanding reservations? What precedent are politicians and PM setting by always talking about reservations only and never talking about finishing them as Dr Ambedkar wanted them to finish after 10 years only?

Let me not shy away from saying: Reservation is the worst form of tool and only spreads hatred in society. Also, once it is inserted in the system, it is never thrown out as we can see in our own country where Dr BR Ambedkar who is the founding father of our Constitution wanted reservation only for 10 years but what an unbeatable irony that 70 years later we still see no end of reservations rather many States have increased it beyond 50% which only draws the ire of Supreme Court. This should never happen in AIJS.

For my esteemed readers exclusive benefit, let me tell them that it has been widely reported in the media that the Centre was preparing to introduce reservations for dalits, tribals and other backward classes (OBCs) in the appointment of district judges through AIJS, on lines of the all-India administrative and police services. We all know it fully well that it is only the already privileged section from Dalits, OBCs etc who are able to garner maximum benefit of reservation policy meant for the poor only but which has been deliberately ignored by all PM till now! This is something that is just not done and is completely unacceptable!

As things stand, PM Narendra Modi while addressing audience judges and lawyers at the Delhi High Court's golden jubilee function asked that, 'Can Dalits, the oppressed, the exploited, the poor, the neglected … those coming from the lowest strata of society be given an opportunity to become a part of this system? Can we evolve a new system in which they can be included? We have experience of 50 years. Using this experience, can we develop a roadmap? We have to collectively find the road ahead.' He also said: 'Debates, discussions and dialogues are part of democracy…We (government) cannot contribute much. Our contribution will not help much. It is those sitting here who can contribute.'

Let me hasten to add here that there is no reservation for any social groups in high courts and the Supreme Court, though the collegiums do try to give representation to various regions and communities in the appointment of judges. Needless to say, PM Narendra Modi too like others is eyeing the votes of Dalits and others from the lowest strata of society by advocating reservation for them in AIJS. Reservation only divides society and this we have seen time and again. We all know very well how there is so much of huge damage to life and property when Patels, Gujjara, Jats etc escalate their street fight for reservation with Marathas being the latest to jump in the bandwagon. This can never be good for our national interests and I shall always oppose it tooth and nail.

Truth be told, the political masterstroke by PM Modi of advocating reservations in AIJS even before it has been actually set up will have political ramifications in states like Punjab and UP where polls are due next year. Dalits and backward classes form a sizeable chunk of the electorate in these states. This alone explains why PM Modi is trying his level best to woo them. After all, Modi too is a human being always too keen to protect his and his party's political interest and has certainly not fallen from heaven! This much we must grant him!

But yes, we must applaud Modi's courage and conviction to do what no PM has ever dared to do even though they too supported it - creation of AIJS. PM Modi has called for debate and discussion on creating AIJS but I very strongly feel that Law Commission has time and again recommended the creation of AIJS, former CJI too have recommended, Parliamentary Standing Committee also has recommended and National Judicial Pay Copmmission too has recommended then why so much of inordinate delay over it? It must be cleared soon now. After the Modi's Cabinet clears the landmark proposal, the Union Public Service Commission (UPSC) will be entrusted with the AIJS examinations. The Delhi High Court asked the government in an earlier petition by Ashwini Kumar Upadhyay to decide on creating the IJS. It will again hear another petition by him for creating an IJS.

Be it noted, the move for an AIJS didn't curry much favour with the higher judiciary in the past. The Chief Justices Conferences in 1961, 1963 and 1965 favoured the creation of an AIJS, but the proposal had to be shelved after some states and high courts opposed it. What should have happened way back in 1960s that we don't see happening even in 2016 and it is only now after PM Narendra Modi has spoken on its dire need from a public platform and that too while addressing a function of lawyers and judges to celebrate the completion of 50 years of the Delhi High Court that some bright ray of hope has finally emerged.

To put things in perspective, subsequently, the Constitution was amended in 1977 to provide for an AIJS. The proposal was again floated by the UPA government in 2012 when it got it vetted by a committee of secretaries and prepared a cabinet note. But the draft bill was shelved after fierce opposition from high court chief justices. In 1972, the then Chief Justice of India had again endorsed the creation of AIJS.

Enough is enough! Now not any more! No more endless wait for AIJS! If Centre is really serious to combat the more than three and a half crore cases pending in lower courts all across the country, it has just no other viable option left before it but to start the AIJS. Ad hoc measures like re-employing retired judicial officers won't serve much in the longer turn even though it may provide some relief. It cannot be a permanent cure. Centre must realize this which it has failed to realize in last 70 years.

Let me add here: In the absence of AIJS, it is becoming increasingly difficult to maintain the required judge strength in district courts and high courts. The available judges are unable to clear the huge backlog of over 30 million cases. Inspite of all this, IJS not started till date and mere opposition by few States/High Courts gave a lame excuse to successive Union Governments to just sleep over the matter.

Let me reveal here that in his PIL, Ashwini Upadhyay, who is also a BJP spokesperson contends fiercely that the establishment of IJS under the Article 312 of the Constitution of India, is not only necessary to provide equal opportunity to all prospective Advocates in spirit of Article 16 but also essential to secure fundamental right of fair trial and speedy justice to the citizens in spirit of Article 21. IJS has not been established in spite of constitutional provision and despite the Apex Court strongly endorsing it, he states in his petition. He further states that, while most government department has ‘All India Service' recruits, the Judiciary is the only setup that does not have a national level selection process to attract the best prospective Advocates. 'When IAS officers can be allotted State cadres and adjust to local requirements, why can't IJS officers? Every organ of the State including the judiciary needs to be accountable to the public. People need to know how judges are appointed, what criteria they have been evaluated on. Many judges appointed by the collegiums or by political intervention may have been brilliant, yet their recruitment process is questionable. Judiciary should reflect social reality and the country's diversity,' the petition reads.

Let me also add here: Delhi High Court asked the government onJuly 11to consider a lawyer's representation seeking setting up of a All India Judicial Service on the lines of the Indian Administrative and Police Services. A Bench of Delhi High Court comprising of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal asked the Ministry of Law and Justice to take a decision on the petitioner's representation and inform him. In his plea, Ashwini Upadhyay said the step to set up the AIJS was 'long overdue and has been hanging fire for ever five decades'. He also pointed out that, 'Most government departments now had ‘All India Service' recruits, the Judiciary does not have a national level selection process to attract the best possible talent'.

Before proceeding ahead, it is imperative to quickly recapitulate the important events associated with AIJS. It will help us in understanding this subject better. The list of important events are as follows: -

03-01-1977: AIJS inserted into Article 312 by the Constitution (Forty-second Amendment) Act 1976. The purpose of the constitutional amendment was to ensure uniformity in standard of selection and to attract the bright and young talent in judiciary so that fair trial and speedy justice made available to every citizen throughout the country.

27-11-1986: Law Commission submitted in its 116threport titled 'Formation of All India Judicial Service' to the Union Law Minister and explained in details the importance and urgent need of All India Judicial Service.

10-4-1995: The Hon'ble Supreme Court in WP(C) 1022 of 1989, All India Judges Association v Union of India, directed the Union Government to take immediate measures for setting up the All India Judicial Service. The Union Government sought the views of the State Governments and High Courts on constituting the All-India Judicial Service before moving a resolution in Rajya Sabha.

10-2-1997: Union Government submitted a status report n constituting the All India Judicial Service in the Apex Court. Out of 25 states, 08 states endorsed AIJS, 08 states conditionally agreed upon AIJS, 07 states disagreed on AIJS and 02 states not responded. Out of 18 High Courts, 04 High Courts endorsed AIJS, 04 High Courts conditionally endorsed the AIJS, 03 High Courts disagreed with AIJS and 07 High Courts not responded on AIJS.

24-10-2009: Hon'ble Chief Justice of India endorsed the All India Judicial Service in his inaugural address in a conference titled 'National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays' in Delhi.

25-10-2009: Conference titled 'National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays' unanimously adopted the resolutions presented by Union Law Minister for establishment of All India Judicial Service and increase in the strength of judges by 25% to reduce the pendency of cases from 15 years to 3 years.

19-05-2014: Hon'ble 41stChief Justice of India Sh. R.M. Lodha on the eve of assuming charge reiterated the need of the All India Judicial Service. He said: 'Setting up of All India Judicial Service, being planned by the government on the lines of the IAS and IPS for recruiting judges for subordinate courts, should be given serious thought. A national consensus is lacking as some states have raised reservations on the framework of the Indian Judicial Service. Those states should also be brought on board.'

It must be emphasized here that the Law Commission of India has four times - in its 1st, 8th,77thand 116threports called for Indian Judicial Service. The Apex Court has twice - first in 1991, then in All India Judges Case (1992) endorsed the creation of AIJS. It is imperative to ensure fair selection of incumbents and to attract bright and best law graduates to judiciary.

It must be appreciated here that Centre too strongly felt that to prevent the fresh law graduates from rushing to the all enticing private and corporate sector, it is imperative that All India Judicial Service be started immediately and they too are made eligible just like we see in case of Civil Services. Presently, what we are seeing is that the best talent is wasting no time in jumping on the bandwagon of corporate and private sector who is ever ready to hire them at attractive prices. To stop this to a great extent, it is all the more imperative that AIJS be started immediately without any more delay!

It warms the inner cockles of my heart to note that three eminent Judges - Justice VR Krishna Iyer, Justice JS Verma and Justice MN Venkatachaliah gave their joint views on the constitution of All India Judicial Service as follows: 'We agree with the urgent need to constitute the All India Judicial Service envisaged by Article 312 of the Constitution of India; at par with the other All India Services like the IAS, to attract the best available talent at the threshold for the subordinate judiciary; which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Courts. The general reluctance of competent lawyers to join the Bench even at the higher level adds an additional urgency to the problem. AIJS will in due course of time, also help to improve the quality of the High Courts and the Supreme Court. The modalities for creating the AIJS to achieve its avowed purpose, and the necessary constitutional changes and the legal framework can be worked out after acceptance of the proposal in principle.'

In retrospect, it may be recalled here thatthe First Law Commission of India, headed by learned MC Setalwad, with the benefit of the opinion of the then Chief Justices of India KN Wanchoo and Justice MC Chagla and eminent jurist Nani Palkhiwala among others, had made a strong recommendation for the constitution of an All-India Judicial Service, like the IAS and IPS. The felt need for such a service increased several fold in the last 57 years since that recommendation was made.

Also, looking back, in its 77thReport presented by the Law Commission of India to the then Law Minister Shanti Bhushan, it was noted in Para 9.6: 'At the same time, we are of the view that the suggestion to have an All India Judicial Service of the same rank and same pay-scales as the Indian Administrative Service should receive serious consideration. According to article 312, as now amended, Parliament may by law provide for the creation of one or more all-India services (including an all-India Judicial Service) common to the Union and the States. We are conscious of the fact that a school of thought and many States are strongly opposed to the creation of All India Judicial Service. The objection is mostly based upon the consideration that since the proceedings before the subordinate courts would be conducted in regional languages, members of the higher judicial service hailing from other States would not be in a position to efficiently discharge their functions. This difficulty can be obviated if, like recruits to the Indian Administrative Service, the recruits to the All India Judicial Service also undergo a training period of two years. During that period, they can acquire also familiarity with and mastery of the regional language of the State to which they are to be allocated after the completion of their training period. The requirement about practice at the bar may perhaps have to be waived for recruitment to All India Judicial Service, as they will be recruited at a comparatively younger age. It should, however, be essential that the competitors are graduates in law.'

It must be noted that Para 9.6A of this very 77thReport further notes: 'Another reason which should weigh in favour of the creation of the All India Judicial Service is the attraction that an All India Service holds for bright young graduates, including law graduates. The result is that many of them compete for and are selected for the Indian Administrative Service. If the All India Judicial Service is created with the same rank and pay scale as Indian Administrative Service, the Judicial Service would hold perhaps greater attraction for bright law graduates. The Judicial Service in such an event would not be denuded of talented young persons. The Law Commission presided over by Shri Setalvad also felt this difficulty and observed that an important factor which detracts from the attractiveness of the judicial service is the inferiority of the status of a judicial officer compared with that of the executive officer. The Law Commission in this connection referred to the following observations of an experienced Chief Justice: -

'One reason why meritorious young men or young practitioners of some standing keep away from the judicial service is the comparative inferiority of the status of district judicial officers vis-a vis officers of the district executive. Formerly, the district judge, like the district magistrate, used to be a member of the Indian Civil Service and its position in the District was superior to that of the District Magistrate. Under the present system, the district magistrate is a member of the Indian Administrative Service which is a service of an all-India character, while the district judge is a member of the higher judicial service which is a State service. The difference in the category of the cadres to which they belong is reflected in the status they occupy in relation to each other and in the estimation of the public. Vis-à-vis the district judge feels small and is treated as a person of little consequence. Nor can the district judge attain the sense of independence which he might have acquired, if he had not been under the administrative control of the State Government in regard to his service.'

It must also be brought out here that Parliament Standing Committee endorsed the AIJS in its 64thReport (Para - 50). The Report says: 'All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that All India Judicial Service may be created without further delay to attract best talent to the subordinate judiciary from where 33% of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of the Government may be made applicable in All India Judicial Service.'

It may be recalled here that the first-ever National Judicial Pay Commission (NJPC), headed by Justice K Jagannatha Shetty who is a former Judge of the Supreme Court and who submitted its report in November, 1999 too recommended constitution of All India Judicial Service in the cadre of District Judges as per provision of Article 312(3) of the Constitution of India. The NJPC mooted that the District Judges, directly recruited and promoted, should constitute the AIJS. Seniority of All India Judicial Service will be on All India basis and as per the ranking in the select list. The inter-se seniority between direct recruits and promoters will be determined according to the date of allotment of promotion. Such direct recruit must thus be annexed to the respective State Judicial Service within the three-tier system. At present, there are only three All India Services i.e. The Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFS). While the first two were inherited from British Raj, the IFS is the only All-India Service which was created after independence. It was constituted in 1966 under the All India Service Act, 1951 by the Government of India.

It is high time and now as PM Modi has himself said that the setting up of AIJS must be debated, discussed and deliberated upon before finally transforming it into reality. But it must be done soon. It should have happened right at the time of independence but 70 years later we see it still has not materialized! No delay any longer!

Let me mince no words in stating the palpable: Uniformity in standards for selection will definitely improve the quality of different High Courts and will minimize the scope of partiality, arbitrariness and aberrations in judicial selection and simultaneously the quality of dispensation of justice will improve considerably right from the top to the bottom, as it essentially hinges upon the quality of judges recruited. It is the larger public interest that will be served if AIJS is created and also the interest of fair trial and speedy justice. The recruitment of Judges right from the entry level should be handled by an independent agency just like UPSC and can be named National Judicial Service Commission (NJSC).

No doubt, it would be the job of NJSC to ensure that only and only the best talent selected through open competition is selected into AIJS thereby ensuring fair and transparent selection process just like IAS, IPS and others are selected into Civil Services by UPSC. Also, there should be comprehensive training of 2-3 years after selection in AIJS to be undergone in National Judicial Academy as we see in Bhopal.

It is most disconcerting to note that we see court cases not ending even after more than 50 years. This completely erodes and tears apart the otherwise irrevocable faith of people in getting justice from courts. In foreign countries like USA, UK and Canada cases are decided very soon. But in India it is exactly the opposite. This must change if we want to project the image of India as a global destination centre for investment. That can happen only when cases are decided in time. Fair, fast and uniform justice keeps the people's faith ingrained in the system which is so important for the successful functioning of any democratic country. Access to fair, fast and uniform justice is deeply rooted in the concept of democracy and regarded as a basic human right.

Truth be told, for cases to be decided in time, we need to have adequate number of judges which in turn is possible only if AIJS is started at the earliest. There is just no other viable option available and Centre must grab it with both hands and do the needful so that people at large benefit the most from it for whom justice is really meant. Only such a meritocratic service with open competitive examination and 2-3 years of comprehensive training to all the trainee judges and assured standards of probity and efficiency would be able to ensure 'Fair Trial and Speedy Justice' to citizens in spirit of the Article 21. Unnecessary delay gradually declines the citizenry faith in judicial system which is most dangerous. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become casualty. This will only usher in lawlessness which we can allow only at the cost of our own peril!

It must also be stated upfront: Opposition too must play its role well by cooperating in ensuring that the Bill for AIJS is passed with thumping majority in both Houses of Parliament. It must be noted that the Union Government cannot do anything unless the Council of States in this behalf passes a resolution to this effect, which is a mandatory requirement for creation of the same as also specified in Article 312. Centre must move a resolution in this regard without further delay. Delay of 70 years is quite a long delay by itself. Now no more alibis of any kind.

It is well accepted by thinkers, philosophers, academicians and jurists that if fair, fast and uniform justice is to be secured to all the citizens, and equality before the law and equal protection of the law has to be ensured, India needs the best talent in the judiciary. Needless to say, the quality of justice dispensation will ameliorate considerably right from subordinate courts to the Apex Court by initiating the AIJS and by establishing a NJSC like UPSC which is of seminal and pivotal concern.

It needs no rocket scientist to conclude that it is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. This in turn is possible only if there are adequate Judges. Adequate judges can be made available only if they are recruited in large strength through AIJS just like we see in case of IAS, IPS, IFS and other Civil Services. This alone explains why I mince no words to state emphatically that, 'To constitute AIJS would be the greatest step since independence'. It brooks no more delay anymore now! I am sure that PM Narendra Modi would take further necessary steps to ensure that AIJS is given the green signal and after getting it passed in Rajya Sabha with the cooperation of Opposition as we saw recently in case of GST is soon brought into action!

Finally, on a concluding note, let me state here that it is the young generation who have just graduated or are about to graduate in Law in any part of India that will benefit by leaps and bounds if PM Modi takes this landmark decision anytime soon! I only hope that it does not again turn out to be an endless wait for them also as we saw most unfortunately in the past! Let's hope history will not repeat itself again!

 

Sanjeev Sirohi 
on 30 November 2017
Published in Others
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