Question

Which of the following statements are correct regarding the All India Judicial Service?

1. The 42nd Amendment Act of 1976 provided for the creation of an All India Judicial Service.

2. The All India Judicial Service includes posts inferior to that of a district judge.

3. A law creating the All India Judicial Service does not require a constitutional amendment under Article 368.
   

• A. 1 and 2
• B. 1 and 3
• C. 2 and 3
• D. All are correct

Answer 1

Answer:

B. 1 and 3

All India Judicial Service (AIJS)

• The concept of an All India Judicial Service (AIJS) aims to standardize the recruitment process for judges at the level of District Judges and below across states, similar to the All India Services like the IAS and IPS.

Constitutional Basis

• The provision for the creation of an AIJS is enshrined in Article 312 of the Indian Constitution.

• Article 312(1) empowers Parliament to create one or more All India Services common to the Union and the States, including an AIJS.

• However, it explicitly states that such a service shall not include any post inferior to that of a district judge. This clarifies that AIJS would cover posts at the District Judge level and above, and potentially feeder posts to District Judges, but not the lowest judicial posts like Civil Judge (Junior Division).

Historical Context & Amendments

• The idea of a unified judicial service was first proposed by the Law Commission of India in its 1st report in 1958 and reiterated in subsequent reports.

• The 42nd Amendment Act of 1976 introduced Clause (3) to Article 312, specifically enabling Parliament to create an All India Judicial Service. This amendment was crucial as it provided the explicit constitutional backing for such a service.

Legislative Procedure for Creation

• As per Article 312(2), a law made by Parliament for the creation of an All India Judicial Service shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.

• This means that such a law can be passed by a simple majority in both Houses of Parliament, provided the Rajya Sabha passes a resolution by a special majority (two-thirds of members present and voting) declaring it necessary or expedient in the national interest.

• It does not require the more stringent special majority and ratification by states mandated for constitutional amendments under Article 368.

Objectives and Arguments for AIJS

• Standardization: To ensure uniform standards of recruitment and training across states for judicial officers.

• Merit-based Selection: To attract the best legal talent to the judiciary through a centralized, competitive examination.

• Addressing Vacancies: To expedite the filling of judicial vacancies, which often lead to pendency of cases.

• Reducing Regional Bias: To promote national integration by having judges transferable across states, reducing local influences.

• Improving Quality: To enhance the overall quality and efficiency of the lower judiciary.

Concerns and Arguments Against AIJS

• Erosion of States' Powers: States and High Courts often oppose it, viewing it as an encroachment on their autonomy in judicial appointments.

• Language Barrier: Concerns exist regarding judges from one linguistic background serving in a state where a different regional language is predominant, especially in lower courts where local language proficiency is crucial.

• Local Knowledge: Apprehensions about lack of local knowledge and customs if judges are recruited centrally and transferred frequently.

• Impact on Diversity: Fear that a centralized exam might not adequately account for diverse legal systems and local nuances across states.

Current Status

• Despite the constitutional provision and various discussions, the All India Judicial Service has not yet been constituted.

• The Supreme Court, in cases like All India Judges' Association v. Union of India (1993), has supported the creation of AIJS, but implementation remains pending due to lack of consensus among states and High Courts