PRESERVING THE JUDICIAL INDEPENDENCE BY AIJS: A DIFFICULT TASK?
Chandi Prasad Khamari
P.G Department of Law, Sambalpur University , Sambalpur, Odisha
One of the major issues which have received relatively little attention in context of the (All India Judicial Services) AIJS debate is that the issue of ensuring the judicial independence of District Judges who could also be a part of such a service within the future.
Currently, the independence of District Judges from the State Governments is guaranteed by the very fact that the High Courts play an important role within the appointment, transfer and removal of District Judges. Article 233 of the Constitution clearly states that the appointments of persons to the post of District Judges shall be made by the Governor of the State in consultation with the Supreme Court exercising jurisdiction over such State. The High Court’s typically set the question papers for the examinations and conduct the interviews of the candidates for the post of District Judge. In the case of State Of West Bengal v Nripendra Nath Bagchi, the Hon’ble Supreme Court had interpreted Article 235 of the Constitution to vest the facility to ‘control’ District Judges with the supervising Supreme Court. Since the independence of the judges of the Supreme Court is guaranteed by the Constitution, it follows that any institution, like District Courts which are subject to the control of Supreme Court judges, will enjoy an identical degree of independence from the State Governments.
If the Central Government will create All India Judicial Services then they must explain the way during which such a service is insulated from the influence of both the Central Government and government, right from the method of appointment to the method of removal. The 116th report of the Law Commission addressed this issue by suggesting that the“appointments, postingsand promotions’ to the AIJS be made by a proposed National Judicial Service Commission consisting of retired and sitting judges of the Supreme Courts, members of the bar council, and other legal fraternity including the academicians.One of the major challenges will be “Languages and Custom” because according to the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, the proceedings of the court should be conducted in the language prescribed by the State Government. Similarly, there is also a question of whether a candidate from the other state will be well-versed with the local customs of that state? Knowledge regarding the local custom is important for civil cases, especially matrimonial or testamentary or communal property cases where local customs can determine final outcomes.As stated by John Edward Acton“Power tends to corrupt, and absolute power corrupts absolutely” so by creating such a body, the independence of the judiciary will be vanished as because great man are almost always bad men. Therefore by designing such a Commission to make sure judicial independence isn’t a simple task. The National Judicial Appointments Commission (NJAC) created for the aim of appointments to the Supreme Court and High Courts was challenged in the case of Supreme Court Advocates-on-Record Association v Union of India,on the grounds that it lacked judicial independence and was struck down by the Supreme Court. In other words, the creation of a National Judicial Service Commission has the potential to stir the pot and therefore the government will need to tread carefully.
If the Central Government doesn’t favour the creation of a National Judicial Service Commission, it should conduct wide-ranging deliberations regarding an alternate institutional arrangement to conduct & regulate the AIJS and instill confidence within the bar, bench and citizens of India, in order that the AIJS would enjoy the very best standards of judicial independence from both the Central Government and State Governments. Only there’s a wide-ranging consensus on the form of the institutional arrangement to regulate the AIJS, should the Government of India proceed with its creation. So, it is time to recognize that the AIJS cannot be the answer to the above problems, especially when it is an unproven solution to unproven problems.
(The opinion expressed by the author in the in the article is of his own)
