Annoyed by the Supreme Court observations on the reservation not being a fundamental right, Dalit MPs across party lines met at Union Food Minister recently and favored the creation of an Indian Judicial Service (IJS) with reservation.
Recent ruling of SC
- The State governments are not bound to make a reservation and have discretion in providing reservations.
- Hence, reservation in promotion in public posts cannot be claimed as a fundamental right.
- Articles 16 (4) and 16 (4-A) only empowers the State to make a reservation in matters of appointment and promotion in favor of the Scheduled Castes and the Scheduled Tribes, only if (in the opinion of the State) they are not adequately represented in the services of the State.
- The judgment also noted that even the courts could not issue a mandamus directing the States to provide reservation.
Article 312 makes the following provisions in respect of all-India services:
- The Parliament:
- Can create new all-India services (including an all-India judicial service), if the Rajya Sabha passes a resolution declaring that it is necessary or expedient in the national interest to do so.
- Such a resolution in the Rajya Sabha should be supported by two-thirds of the members present and voting.
This power of recommendation is given to the Rajya Sabha to protect the interests of states in the Indian federal system.
- Parliament can regulate the recruitment and conditions of service of persons appointed to
all-India services. Accordingly, the Parliament has enacted the All-India Services Act, 1951 for the purpose.
- The all-India judicial service should not include any post inferior to that of a district judge.
- A law providing for the creation of this service is not to be deemed as an amendment of the Constitution for the purposes of Article 368.
Though the 42nd Amendment Act of 1976 made the provision for the creation of all-India judicial service, no such law has been made so far.
- The state judiciary consists of a high court and a hierarchy of subordinate courts, also known as lower courts.
- The subordinate courts are so-called because of their subordination to the state high court. They function below and under the high court at district and lower levels.
Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive.
- Appointment of District Judges: The appointment, posting, and promotion of district judges in a state are made by the governor of the state in consultation with the high court. A person to be appointed as district judge should have the following qualifications:
- He should not already be in the service of the Central or the state government.
- He should have been an advocate or a pleader for seven years.
- He should be recommended by the high court for appointment
- Appointment of other Judges: Appointment of persons (other than district judges) to the judicial service of a state are made by the governor of the state after consultation with the State Public Service Commission and the high court.
- Control over Subordinate Courts: The control over district courts and other subordinate courts including the posting, promotion, and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in the high court.
- Interpretation: The expression ‘judicial service’ means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of the district judge.
- Application of the above Provisions to Certain Magistrate: The Governor may direct that the above-mentioned provisions relating to persons in the state judicial service would apply to any class or classes of magistrates in the state.
All India Judicial Service (AIJS)
- An all-India judicial service will create a cadre of judges who can be appointed at the district courts level across the country.
- The AIJS is an attempt to ensure that younger judges are promoted to the SC and HCs.
- The striking down of the National Judicial Appointments Commission (NJAC) by the Supreme Court has raised the need for the creation of an objective and transparent system of appointments in the judiciary system of India.
- By Swaran Singh Committee’s recommendation in 1976, Article 312 was modified to include the judicial services, but it excluded anyone below the rank of the district judge.
- The Constitution (Forty-second Amendment) Act 1976 inserted an “all-India judicial services” provision into Article 312 that lays down the legal ground for the creation of All-India Services.
Advantages of creating AIJS
- In line with IAS and IPS: The creation of AIJS will bring it in line with Indian Administrative Service and Indian Police Service.
Will make the selection process transparent: Unlike the present collegium system, the selection process of the Indian Judicial Service leads to transparency through a competitive examination with proper reservation.