Context:  This article is based on an Editorial “A non-starter: On the suggestion for an All-India Judicial Service (AIJS)” Which was published in the Hindu. Recently, the Indian President suggested the creation of an All-India Judicial Service (AIJS), that will help diversify the judiciary through a merit-based process for recruitment. 

What are the constitutional provisions concerning the creation of the AIJS?

• Power lies with the Parliament: As per Article 312 of the Indian Constitution, Parliament has the power to create a new All India Service, if the Council of States passes a resolution declaring that it is required in the interest of the nation.
• Article 312 of the Constitution: Article 312, amended by the 42nd Amendment, provides for the creation of an AIJS.
• Procedure of Creation: The creation of an AIJS requires a resolution adopted by the Council of States with a majority of two-thirds members present and voting and a parliamentary law. 

What are the arguments in favor of creating the AIJS?

• Uniformity in Laws: It would improve the consistency and uniformity in the application of laws across states.
• Qualified Fresh Legal Talent: It would widen the talent pool and enable the merit-based selection of the best candidates nationally to the higher judiciary.
• Diverse Reach: Facilitates coordination and smoother inter-state transfer of judicial officers.
• Strengthening of Organization: Develops a strong, independent judiciary cadre focused on legal aspects from the start, unlike direct recruitment where judges often lack administrative experience.
• Efficiency Improvement: It could improve efficiency through specialization as judges gain exposure to wider case mixes rather than local limitations.

What are the arguments against creation of the AIJS?

• Impact on Decentralization: It could dilute the decentralized localized representation and contextualization in judicial functioning and rulings.
• Dilution of Administrative Control of the Judiciary: It could raise judicial independence issues if postings are controlled by the executive, not the judiciary itself.
• Non-Uniformity of Administration in State Judiciary: It would be complex to transit administratively, requiring navigation of quotas, tenure policies, pay parity, etc. which differ across states.
• Language Barrier: It would remove opportunities for local language preference in the selection of judges as candidates must qualify in centralized exams conducted in select official languages.
• Asperity: It could lead to the overrepresentation of regions where centralized exam coaching/preparation infrastructure is more mature.
• Hamper the Diversity in Judiciary Representation: The current system of recruitment of district judges is more conducive to ensuring diversity, as there is scope for both reservation and a clear understanding of local practices and conditions. 
• Differences from the All India Services: Unlike the civil service, judges are not assisted by an experienced lower bureaucracy in decision-making, and they are required to be well-versed in the issues involved in judicial functioning.
• Uncertainty on Career Progression: Given that the number of district judges elevated to the High Courts is much lower than those from the Bar, it may also render AIJS unattractive.

Conclusion

Like a coin, AIJS also has its two faces in terms of pros and cons. Before the implementation of AIJS by the Parliament, there is a need to build consensus among various associated stakeholders. And in the meantime, there is a need to implement a few direct solutions to address the problems of the judiciary.