During the golden jubilee function of the Delhi High Court, on October 31, Prime Minister Narendra Modi emphasised on creating an All India Judicial Service (AIJS) and a quota for persons belonging to the lower strata of society, in the subordinate judiciary. A passing reference for reservation in the Supreme Court and high courts was also made.
The pyramid of justice delivery system has three tiers but it is the subordinate judiciary that is more proximate to the people and plays a dominant role. The power of superintendence over the subordinate judiciary, including appointment, has been vested in the high court.
In retrospect, the move to constitute an AIJS on lines with the Indian Administrative Service and Indian Police Service, was introduced through the 42nd constitutional amendment in 1976, adding sub-article 3 and 4 to Article 312. Even the apex court gave directions for setting up of an AIJS and to provide uniform designation, pay and other facilities to the judicial officers.
However, despite almost two-and-a-half decades, the AIJS has not been established due to a lack of unanimity among the states and consequent sharing of financial burden. It was also resisted by judicial officers apprehending transfer to remote areas. Another constraint is the lack of knowledge of the local language.
Let’s not forget that the judiciary was separated from the executive to maintain its independence and it has to be different from other all India services. Bringing the subordinate judiciary of all states and Union Territories under an AIJS is a matter to be debated extensively.
It seems Modi was keen to highlight the message of reservation in the lower judiciary for “Dalits, the oppressed, exploited, the poor, the neglected, belonging to the lower strata of the society”. But the fact is that in all states/UTs, the reservation for SC/STs, OBCs, ex-serviceman and differently-abled already exists in the recruitment rules. In some states the process to update this is underway.
For instance, in Delhi, according to the DJS and DHJS recruitment rules, reservation is provided and some amendments are in the process, but there is no reservation in promotions — which is another issue.
It is not clear what is being contemplated by the central government for reservation and at what level. The claim for reservation at the level of the Supreme Court and high court and in promotions has been repeatedly resisted. However, the collegium can always consider the names of lawyers from various sections of society for appointment based on merit.
The government has not made its intentions clear on whether it wants to introduce reservation at the high court level or to the appointment of judges at the subordinate judiciary or promote them to the high courts. These issues are not of recent origin and have been debated for decades. As far as an AIJS, considering the objections of the states and judiciary, a viable solution needs to be found out.
What the government has in mind needs to be first formulated and put in the public domain so that it is debated by various stakeholders. The reference to reservation at the level of the lower judiciary seems to have been made with an eye on the ensuing assembly elections.
The judiciary is an important constitutional wing. We cannot compromise on a strong and viable judiciary. Reservations in statutory rules apart, it is the duty of the government and even the collegium to consider persons belonging to various sections of the society to give appropriate representations at the level of the higher judiciary, based on merit. The fair representation of competent persons from different strata of society is a constitutional obligation.
The implementation of an AIJS has no easy solutions and any hasty move may damage the judicial structure. The government must tread cautiously on this issue.
KC Mittal is former president, Delhi High Court Bar Association
The views expressed are personal