All-Inclusive GS-2 & GS-3 MAINS 2021

Class-2
Class-1

All India Judicial Service

➢ First proposed by 14th report of Law Commission in 1958.
➢ Presently being pushed as a part of judicial reforms.

What?
❑ A centralized cadre of district judges.
❑ Recruit district judges through an all India exam

Constitution Articles:
❑ Article 233: district judges are appointed by Governor in
consultation with HC
❑ Article 312: Parliament can create AIJS if RS passes
resolution by 2/3rd majority.

Issues with present system (need for AIJS)

❑ Vacancies: There are more than 5,000 vacancies in lower judiciary, mainly due to slow
recruitment process. AIJS will speed up filing vacancies through regular examination.
❑ Inefficiency: Recruitment exams are inefficient and full of loopholes. AIJS will improve
quality of exam.
❑ Training: training is not up to the mark in some states. AIJS will be trained by Union govt.
institutions.
❑ Unattractive: Talented law graduates prefer being lawyer than become district judge. AIJS
will provide excellent career opportunities, and uniform pay scales.
❑ Beneficial to states: states poor in human resource will be able to find talent.

Challenges:
❑ Federalism: AIJS will transfer power of states (article 233) to Centre.
❑ Language & culture: Lowers courts work in local language. Local laws and customs vary
across states.
❑ Reservation: OBCs in state list, but not in Central list, will no longer get reservation.
❑ Inequality: due to national competition, candidates from weaker background may not be
able to compete.
❑ Promotion: members of State Judicial Service will find it difficult to get promotion.
❑ High courts: AIJS may reduce control of High Court over Subordinate judiciary.

Way forward:
With ever increasing cases in courts, its time to build consensus on AIJS, and at the same time,
insulate it from influence of Centre and State governments.

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 Judicial Pendency Total pending cases:
➢ Jan 2020: 3.7 crore
Non-functioning / partial functioning of courts during ➢ Jan 2021: 4.2 crore
pandemic has substantially increased judicial pendency. ➢ July 2021: 4.5 crore
Reasons for large number of pending cases: -National Judicial Data grid
➢ Increasing literacy:
➢ people becoming aware of their rights
➢ Shortage of judges:
➢ Low Judge/population ratio: presently 20/million; Law comm. recomm. 50/million
➢ 25% vacancy in subordinate courts; 40% in HCs
➢ Inefficient investigation:
➢ non-scientific investigation by police drags cases longer.
➢ Forensic evidence results in faster verdict.
➢ Burden of govt. cases:
➢ Govt. is the biggest litigant; accounts for 46% of cases
➢ Frequent adjournments:
➢ Frequent adjournments, sometimes on flimsy grounds
➢ only 3 adjournments per case are allowed but this rule is not followed
➢ Low budgetary allocation:
➢ leads to poor infra at courts
➢ Special leave petition: (Article 136)
➢ 40% of cases pending in SC are from SLP

Impact:
➢ People lose faith in judiciary:
➢ Justice delayed is justice denied; Speedy justice is the right of every litigating person
➢ Higher crime rate:
➢ Delay in conviction encourages criminals.
➢ Overcrowded prisons:
➢ due to more number of undertrials (150% of capacity in some prisons)
➢ Economic impact:
➢ delay in contract enforcement; cost of doing business increases; discourages investment

What can be done:

➢ Fill vacancies:
➢ include timeline in MoP for each step; appoint ad-hoc judges; Constitute AIJS; timely
conduct of state judicial service exams
➢ Increase in working days of courts
➢ Efficient court management: (efficiency in administrative functions)
➢ Professional Court Managers as suggested by the 13th Finance Commission.
➢ Establish Indian Courts and Tribunal Services to focus on the administrative aspects of
the legal system.
➢ Improve court infra, new campuses, computerisation of all courts
➢ Use of IT solutions like e-courts
➢ Adjournments:
➢ Penalty for adjournment on flimsy grounds
➢ Time bound case disposal
➢ For petty cases:
➢ Start evening courts for petty offences, as in Delhi since 2008.
➢ Use of Lok Adalat, Gram Nyaylayas

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 Collegium
➢ SC has asked govt. to give a timeline within which it will clear names given by Collegium.
➢ Judges of SC and HCs are appointed by the President of India under Articles 124 and 217.
➢ But the process of selection is not clearly given in Constitution; hence a debatable issue.
Collegium system:
❑ CJI and four senior-most Judges recommend appointment & transfer of judges of higher judiciary.
❑ It is not mentioned in the Constitution.
❑ It has evolved through the three Judges cases.
Three Judges cases:
❑ Article 124(2) says that the President must consult CJI.
❑ But, what 'consult' means is not defined, hence debatable.

1st Judges case, 1982: 2nd Judges case, 1993: 3rd Judges case, 1998:
❑ Consultation means ❑ Consultation means concurrence ❑ CJI must consult four
exchange of views. ❑ CJI's advice is binding on Prez. senior-most judges
❑ CJI's advice is not ❑ CJI must consult two senior
binding on President. most judges
Arguments in support of Collegium system:
❑ Article 50: State shall take steps to separate Judiciary from Executive.
❑ Independence of Judiciary: protects judiciary from political influence.
❑ Democratic process: Decision taken by majority; unlike Executive where leader has
disproportionate influence.
❑ Talent recognition: Judges can better assess the suitability of candidates.

Arguments against Collegium system:

❑ Opaque system:
❑ There is lack of transparency in working of Collegium.
❑ Reasons for selecting or rejecting candidates is not made public.
❑ Nepotism:
❑ Judges selecting Judges increases possibility of nepotism and favouritism.
❑ Uncle Judges Syndrome as mentioned by LC in 230th report.
❑ No permanent commission:
❑ Law Commission in 1987 and NCRWC in 2002 recommended that a permanent
commission be set up for appointments to higher judiciary.

99th Constitution (Amendment) Act, 2014

❑ inserted articles 124A, 124B, 124C.
❑ established National Judicial Appointment Commission
❑ Composition: CJI, two senior-most SC judges; Law Minister; two eminent persons.
❑ Struck down by SC in 2015 through judicial review.

SC verdict:
❑ 99th CAA 2014 is unconstitutional and void.
❑ Inclusion of law minister is against independence of judiciary and separation of powers.
❑ It is against primacy of judiciary, a basic feature of constitution
❑ Collegium system will continue; steps can be taken to improve it.

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Way forward:
➢ Amend MoP for timeline for each step
➢ Reform Collegium system:
➢ more transparency in functioning
➢ basis for selection must be made public
➢ take public inputs with confidentiality
➢ Judge having a relative in a HC should
not be appointed in the same court
Mains 2017:
Critically examine the Supreme Court’s
judgement on ‘National Judicial
Appointments Commission Act, 2014’
with reference to appointment of judges
of higher judiciary in India.

Memorandum of Procedure (MoP):

➢ It is an agreement between judiciary and government.
➢ It has guidelines for making appointments to SC and HCs.
➢ In 2016 MoP was re-negotiated after SC had stuck down NJAC
News:
➢ To fill HC vacancy: HC Collegium → Central govt → SC Collegium
➢ HC C.J. must send names at least 6 months before occurrence of
vacancy.
➢ But there is no timeline in MoP for govt to take action on HC
Collegium's recommendation.
➢ SC has now ruled that HC Collegium's recommendation must
reach SC Collegium within 4 months.

Transfer of High Court Judges:

❑ Collegium recommended transfer of Madras HC C.J. to Meghalaya HC; C.J. resigned
❑ While some questioned lack of transparency in collegium's decision; Collegium
clarified that it had strong reasons for the transfer.

Transfer of HC judge: What is the basis for transferring a HC judge?

❑ President consults CJI
▪ Transfer can be made only in 'public interest'
❑ CJI consults:
for 'better administration of justice'.
▪ 4 senior most SC judges
▪ It cannot be a punitive measure.
▪ CJs of the two HCs

Arguments against the transfer:

➢ HC are not subordinate to SC [except in case of appeals].
➢ Transfer is used to punish judges for unfavorable judgement.

Arguments in support of the transfer:

➢ Collegium system is a well-established system, used even for appointments.
➢ Judges can't be removed for every wrong, so transfer acts like a warning.

Way forward:
➢ Reasons for transfer must be substantive and put on record.
➢ Steps should be taken to improve transparency in functioning of collegium.

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