Despite setbacks and opposition from both state governments and the judiciary, the central government is not ready to give up the proposal to set up an all India service for recruitment of judges modeled on the Indian Administrative Service and the Indian Police Service.
The idea was officially endorsed five years ago when a committee of the secretaries of various central government departments approved setting up a All India Judicial Service similar to the IAS, IFS, IPS and so on.
Recruitment to the AIJS would be through an all Indian recruitment exam like the Civil Services Examination. At present, judges and magistrates are recruited by the high courts of the respective states.
It is expected that the move will also help improvement the representative character of the judiciary and make it more transparent.
At present, the judiciary in India is drawn overwhelmingly from regions and social groups that have traditionally had a higher representation in the legal profession. As such, many communities that are not present in the legal profession in large numbers due to economic and social reasons, are thinly represented in the judiciary as well. This, it is feared, impacts the representative nature of this crucial arm of the government.
“The All India Judicial Service, however is a laudable idea, which will help bring in fresh talent in the process of judicial appointment and will also give opportunity for representation of deserving candidates from the inadequately represented community in the higher judiciary,” law minister Ravi Shankar Prasad said this week.
The Indian democracy is built on the principle that people from all regions, social classes, linguistic divisions and religions are to be given fair representation in the government. But the proposal was opposed or ignored by most high courts and state governments.
The center, however, is in no mood to give up, and is expected to be taken up for consultation this year at a conference of chief justices of various high courts.
“The Government has undertaken the consultative process to arrive at a common ground,” Prasad said.
So far, only 10 of the 24 high courts of India — Allahabad, Chhattisgarh, Himachal Pradesh, Kerala, Manipur, Meghalaya, Orissa, Uttarakhand, Sikkim and Tripura — have given a positive response to the center on the proposal to set up the All India Judicial Service. Nine have opposed the idea while five have not given any response.
The government was not able to sell the idea at the Chief Justices Conferences held in 2013 and 2015.
Seven state governments have also opposed the formation of the service, while eight have favored the idea. The states in opposition are Arunachal Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, Meghalaya, Nagaland and Punjab.
Those that have showed willingness to examine the proposal are Maharashtra, Bihar, Chhattisgarh, Manipur, Orissa, Uttarakhand, Haryana and Mizoram.
Some of the high courts are worried that the AIJS is being set up to facilitate the interference of the executive wing of the government into the judicial wing.
For example, the members of the Indian Administrative Service and Indian Police Service are largely controlled by the executive branch of the central government even when they are deputed to state governments.
As such, even those High Courts that are open to the idea of recruiting judges through an AIJS have therefore insisted that the administrative control of the ‘lower’ judiciary has to remain with the respective High Court of the states.
The Indian state is to some extent modeled on the American system under which the government is split into three vertical and independent wings — a legislature that creates laws, an executive that implements them and a judiciary that resolves disputes in their application.
Both the executive and the legislative branches — particularly those of the central government — have clashed with the judiciary on several matters and sought to influence it.
Under the constitution, the Supreme Court of India has the power to nullify and modify the actions of the executive brand if it finds them to be against the law.
Similarly, it has the right to abrogate any law created by the legislature if it finds the new rule to be not in consonance with the stated intent of the law, or if it find it inconsistent with a higher law — such as a fundamental right given in the constitution.
The judiciary, particularly the Supreme Court, has been using these powers more and more in recent times, making both the legislative wing and the executive wing uncomfortable.
Indian judiciary also addresses the issue of ‘absence’ of laws, where it steps in to create new laws when it detects a lacuna on the part of the legislature to create the rules required to implement a government policy or constitutional provision.
This was demonstrated in case of relocation of liquor shops away from highways — a stated central government policy.
Irked over the inaction of state governments to create laws to relocate liquor shops away from highways despite multiple letters from the center, the Supreme Court stepped in and created a new rule closing such liquor shops from this month.
Such actions — where courts go beyond resolving disputes on the application of laws to creating new laws via public interest litigation — have also irked the legislature.
Due to these disputes, many observers of politics fear the executive and legislative branches — which are joined at the hip in the British model of democracy — may be trying to make the judiciary more ‘pliable’ by ascribing a role for themselves in the recruitment of judges.
A similar effort at increasing its role in the recruitment of judges to the ‘higher judiciary’ — High Courts and the Supreme Court — was declared unconstitutional by the Supreme Court in 2015.