As it comes closer to the end of its five-year tenure, the government has once more started talking about the urge to have an All India Judicial Service (AIJS)—the idea has been around since the ’50s—as well as reservation for scheduled castes (SCs) and scheduled tribes (STs) in the judicial services.
The purpose is clear: to attract Schedule caste and Schedule tribes with the sweets called reservations.
The AIJS is a stillborn concept, with the plan itself facing strong criticisms from the higher judiciary—despite the fact that the Parliament amended Article 312 in 1976 to incorporate a provision for Establishment of the AIJS.
Article 312 (1) says that Parliament can pass an Act to provide for the creation of AIJS while Article 312 (3) says the AIJS can’t include a post inferior to the rank of district judge.
Yet, 40 years after the legislature passed the amendment, the AIJS remains just a proposition.
In India, we have a double-tier judicial structure: a subordinate judiciary led by district and sessions judges, who mainly come from the state judicial service whose control vests with the high courts and the state governments.
The assignation of subordinate judges is made by the governor through discussion with the respective state’s high court and the state public service commission.
Opposition to AIJS
The Law Commission of India in three reports—14th (1958), 77th (1978) and 116th (1986)—suggested the incorporation of the AIJS.
Even the SC, in its judgment in the All India Judges Association versus Union of India case, suggested that the practicability of incorporating the AIJS be analysed.
Still, the hostility to the idea has come mainly from within the judiciary with several high courts and some state governments opposing it on the grounds that insufficient knowledge of regional languages could make the judges’ job extremely hard.
The high courts, opposed the move on the grounds that it would dissolve their control over the subordinate judiciary.
The UPA government prepared a coherent roadmap for the constitution of AIJS and the same was passed by a committee of secretaries in November 2012.
But when the issue was taken up for discussion at the 2013 Conference of Chief Ministers and Chief Justices, there was no unity.
High courts like Madras, Andhra Pradesh, Bombay, Delhi, Punjab and Haryana, Gujarat, Karnataka, Madhya Pradesh and Patna opposed it.
Consensus avoided the issue at the 2015 Conference of CMs and CJs too. This has allowed successive governments to keep the issue in cold storage.
Need for representation
Under the Constitution, there is a prohibition on reserving posts of judges of the Supreme Court and the high courts for SC, STs, OBCs and other minorities.
At present, there isn’t a single SC or ST Judge in the SC.
In 2000, the Parliamentary Committee on the Welfare of SC and ST led by BJP leader Karia Munda, in a report, recommended to the govt. that it take steps to amend Articles 217 and 124 of the Constitution to give enough representation to the deprived sections in the higher judiciary.
“Judges take oath that they (will) uphold the Constitution and the laws. But the Supreme Court and a few high courts by claiming power over the Constitution practise untouchability and are disobeying the Constitution with regard to Article 16(4) and Article 16(4A),” the report said.
Nevertheless, nothing has been done to change the status quo and as things stand, government, too, is not going to make a change.