PIL for establishment of Indian Judicial Services on the lines of IAS

PFA PIL for establishment of Indian Judicial Services on the lines of IAS. Delhi High Court will hear the matter on 08.11.2016. Pl go through Synopsis, Ground and Prayer.

IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT PETITION (C) NO … OF 2016

(IN THE MATTER OF PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

Ashwini Kumar Upadhyay …Petitioner-in-Person

Verses

Union of India ...Respondent



INDEX
S.No. PARTICULARS       PAGES
1. Urgent Application A
2. Notice of Motion       B
3. Memo of Parties C
4. Synopsis and List of Dates D-J
5. Writ Petition with Affidavit 1-49
6. Annexure-1: 50
Letter of Law Commission’s Chairman
to Union Law Minister 27.11.1986
7. Annexure-2:     51-56
Inaugural Address by the CJI 24.10.2009
(National Mission for Delivery of Justice & Legal
Reform towards Timely Delivery of Justice to All)
8. Annexure-3:     57-58
Resolution dated 25.10.2009, Presented by
Law Minister to the Chief Justice of India
9.     Annexure-4:    59-62
Joint views of Sri MN Venkatachaliah & Sri JS Verma, Ex. Chief Justices of India 06.08.2012
10. Annexure-5:     63-78
Parliament Standing Committee Report No-64
11. Annexure-6:     79-86
Petitioner’s Representation dated 20.06.2016
12. Annexure-7: 87
Order of Hon’ble High Court dated 11.07.2016




Ashwini Kumar Upadhyay
   (Petitioner-in-Person)
Advocate En. No-D/1119/12
15, New Lawyers Chambers
Supreme Court, New Delhi-1
G-284, Govindpuram, Gzb-13
08800278866, 09911966667

IN THE HIGH COURT OF DELHI AT NEW DELHI
   WRIT PETITION (C) NO…….. OF 2016
(IN THE MATTER OF PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner-in-Person
Verses
Union of India ...Respondent


URGENT APPLICATION
To,
The Registrar,
High Court of Delhi at New Delhi,
Sir,
Kindly treat the accompanying application as an urgent one in accordance with the High Court Rules and Orders.
Petitioner is filing this writ petition under Article 226 of the Constitution of India. Matter is urgent in larger public interest as prayed.






           Ashwini Kumar Upadhyay
   (Petitioner-in-Person)
          Advocate En. No-D/1119/12
  15, New Lawyers Chambers
  Supreme Court, New Delhi-1
G-284, Govindpuram, Gzb-13
#08800278866, 09911966667


   IN THE HIGH COURT OF DELHI AT NEW DELHI
    WRIT PETITION (C) NO…….. OF 2016
   (IN THE MATTER OF PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner-in-Person
Verses
Union of India ...Respondent
NOTICE OF MOTION
To,
The Standing Council
Union of India,
High Court of Delhi, New Delhi,
Sir,
Please find enclosed herewith 03 copies of above mentioned Writ Petition, which is being filed today before this Hon’ble Court and likely to be listed before the Hon’ble Court on____________ or any other date fixed by the registry.
It’s for your information and necessary action.




     
 Ashwini Kumar Upadhyay
   (Petitioner-in-Person)
          Advocate En. No-D/1119/12
  15, New Lawyers Chambers
  Supreme Court, New Delhi-1
G-284, Govindpuram, Gzb-13
#08800278866, 09911966667


    IN THE HIGH COURT OF DELHI AT NEW DELHI
    WRIT PETITION (C) NO…….. OF 2016
   (IN THE MATTER OF PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner-in-Person
Verses
Union of India ...Respondent


MEMO OF PARTIES
Ashwini Kumar Upadhyay
S/o Sh. Suresh Chandra Upadhyay
Office: 15, M.C. Setalvad Chambers Block
Supreme Court of India, New Delhi-110001
Residence: G-284, Govindpuram, Ghaziabad-201013 …Petitioner-in-Person
Verses
Union of India
Through the Secretary,
Ministry of Law and Justice (Legal Affairs)
Shastri Bhawan, New Delhi-110001 Respondent














Ashwini Kumar Upadhyay
   (Petitioner-in-Person)
          Advocate En. No-D/1119/12
  15, New Lawyers Chambers
  Supreme Court, New Delhi-1
G-284, Govindpuram, Gzb-13
#08800278866, 09911966667


     IN THE HIGH COURT OF DELHI AT NEW DELHI
    WRIT PETITION (C) NO ………. OF 2016
   (IN THE MATTER OF PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner-in-Person
Verses
Union of India & Another ...Respondent
SYNOPSIS
The proposal of introducing an Indian Judicial Service (IJS) on the lines of Indian Administrative Service (IAS) is not new. Law Commission of India has thrice- in its first, eighth and 116th Report called for IJS. The Apex Court has endorsed the creation of IJS. [AIJA vs UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555]. Parliamentary Standing Committee in its 64th Report on Law and Justice recommended to establish IJS and directed the Union Government to take appropriate steps in this regard. The first National Judicial Pay Commission and National Advisory Council to the Union Government have endorsed the IJS. On 25.10.2009, Union Government presented a Resolution before Hon’ble Chief Justice of India in this regard. Over and above, Article 312 explicitly provides for the creation of IJS. However, in spite of all these, Government gives lame excuses and sleeping over the matter. As of now, while most government department has ‘All India Service’ recruits, the Judiciary is the only setup that does not have a national level selection process to attract the best prospective Advocates.
The available judges are unable to clear the huge backlog of over 30 million cases. In the absence of IJS, it is very difficult to maintain the required judge strength in District Courts and High Courts. IJS would have its own distinct advantages if Article 312 is implemented in consonance with Article 16 of the Constitution. Primarily, the recruitment of judge’s right from the entry level would be handled by an independent agency - National Judicial Service Commission (NJSC) through an open competition thereby ensuring fair, transparent and credible selection process, similarly like IAS, IPS, IFS are selected through the UPSC. IJS would naturally attract the best prospective Advocates to judiciary, who otherwise prefer immediate remunerative employment in public and private sector. Recruitment by NJSC and comprehensive training in National Judicial Academy (NJA) would not only ensure equal and uniform service conditions besides providing them with a wider field to prove their mettle but also secure fair trial and speedy justice to citizens in spirit of the Article 21. Uniformity and transparency in selection process will improve the quality of judges in High Courts, as 50% of the Judges may be taken from IJS. In this process, only the Judges of proven competence will preside over the benches and it will minimize the scope of aberration, arbitrariness and nepotism in judiciary.
It is well accepted by thinkers, philosophers, academicians and jurists that if the fundamental right of fair trial and speedy justice is to be secured in spirit of the Article 21 and equal opportunity to be provided to all the citizens in spirit of the Article 16; Indian Judicial Service must be established in spirit of the Article 312. The Quality of justice dispensation will positively improve right from the District Courts to the Apex Court by initiating the IJS. In a democratic setup, intrinsic and embed faith in adjudicatory system is of seminal and pivotal concern. Unnecessary delay gradually declines the citizenry faith in judicial system. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become causality. Fair trial and speedy justice keeps the people’s faith engrained and establishes the sustained stability. Access to speedy justice is deeply rooted in the concept of democracy and regarded as a basic human right. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. Myriad facts and situations, bearing testimony to the denial of the fundamental right of fair trial and speedy justice to the accused persons and failure on the part of prosecuting agencies have persuaded the Apex Court to devise solutions, which go to the extent of almost enacting by judicial verdict - the bars of limitation.
Judicially engrafted bars of limitation, no doubt meant to provide a solution to the long delay problem but it gives rise to greater problem like scuttling a trial without adjudication, stultifying excess to justice and giving easy exit from the portals of justice. If the period of deprivation pending trials becomes unduly long, fundamental right of fair trial and speedy justice would receive a jolt.  The Apex Court has advanced a step further and said-“The provision of speedy justice is an obligation of the State, otherwise the operation of the legal system would not promote justice, which is assured in Preamble of the Constitution”. Parliament enacted the All India Service Act 1951, for creating certain All-India Services in addition to IAS/IPS. The 1951 Act was amended in 1963 to create 3 more All-India Services (engineering, forestry and medicine) however, IJS has not been yet established in spite of constitutional provision and despite the Apex Court strongly expressed its views in favour of IJS (in 2nd Judges Case) to ensure uniformity of standards in matter of judicial service, status, emoluments etc. Only such a meritocratic service with open competitive examination and comprehensive training to trainee judges would be able to secure fundamental right of fair trial and speedy justice to citizens in spirit of the Article 21 that is why Government must establish the IJS without further delay.
LIST OF DATES
03.01.1977: AIJS was inserted into Article 312 by the Constitution (Forty-second Amendment) Act 1976. Purpose of the amendment was to ensure uniformity of standards throughout the India in matter of judicial service, status, emoluments etc. and to attract the best talent in judiciary so that the fundamental right of fair trial and speedy justice made available to all the citizens.
27.11.1986: Law Commission of India submitted its 116th report titled “Formation of All India Judicial Service” to the Union Government, explaining the importance and need of IJS.
24.10.2009: In his inaugural address, in a Conference “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays”, Hon’ble Chief Justice of India endorsed the IJS in presence of Hon’ble Judges of the Supreme Court and Chief Justices of the High Courts, Union Law Minister, Attorney General and Solicitor General of India, Union Home Secretary, Union Law Secretary, Prominent Jurists and Members of the Bar.
25.10.2009: Union Law Minister presented a resolution to establish IJS and the Conference “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” unanimously adopted it.
06.08.2012: Three distinguished Judges, Justice V.R. Krishna Iyer, Justice J.S. Verma and Justice M.N. Venkatachaliah endorsed the constitution of IJS under the Article 312.
09.12.2013: Department related Parliamentary Standing Committee on Personnel Public Grievances Law and Justice presented its 64th Report to the Rajya Sabha and endorsed the IJS. It was tabled in Loksabha on same day.
19.05.2014: Hon’ble 41st CJI Justice R.M. Lodha, on the eve of assuming charge, reiterated the need of IJS and said as thus: “Setting up of All India Judicial Service, being planned by the government on the lines of the IAS and IPS for recruiting judges for subordinate courts, should be given serious thought. National consensus is lacking as some states have raised reservations on the framework of the Indian Judicial Service. Those states should also be brought on board”.
20.06.2016: Petitioner submitted written representation to the Union Law Minister and copy marked to Hon’ble Prime Minister to establish IJS under the Article 312 in consonance with Article 16 of the Constitution.
11.07.2016: This Hon’ble Court disposed of petitioner’s writ petition leaving it open to Government to consider petitioner’s representation and take decision in accordance with law.
05.11.2016: Establishment of IJS under the Article 312 is not only necessary to provide equal opportunity to all prospective Advocates in spirit of the Article 16 but also essential to secure fundamental right of fair trial and speedy justice to all the citizens in spirit of Article 21. IJS has not been established in spite of constitutional provision and despite the Apex Court strongly endorsed it. IJS is essential to ensure uniformity of standards in matter of judicial service, status, emoluments etc. However, Executive has failed to establish the IJS under the Article 312 in consonance with Article 16 of the Constitution, hence this petition in larger public interest and in interest of justice.
IN THE HIGH COURT OF DELHI AT NEW DELHI
    WRIT PETITION (C) NO...... OF 2016
   (PUBLIC INTEREST LITIGATION UNDER THE ARTICLE 226)
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner-in-Person
Verses
Union of India ...Respondent
ISSUE A WRIT, ORDER OR DIRECTION OR A WRIT IN THE NATURE OF MANDAMUS OR SUCH OTHER WRIT, ORDER OR DIRECTION AS MAY BE NECESSARY; DIRECTING THE RESPONDENT TO ESTABLISH ALL INDIA JUDICIAL SERVICE UNDER THE ARTICLE 312 IN CONSONANCE WITH ARTICLE 16 OF THE CONSTITUTION OF INDIA
To,
THE HON’BLE CHIEF JUSTICE
AND LORDSHIP’S COMPANION JUSTICES
OF THE HON’BLE HIGH COURT OF DELHI
HUMBLE PETITION OF ABOVE-NAMED PETITIONER
THE MOST RESPECTFULLY SHOWETH AS UNDER:
That petition is not guided by self-gain or for gain of any other individual person, institution or body. There is no motive other than the larger public interest in filing this petition. Petitioner has no personal interest or individual gain, private motive or oblique reasons in filing this PIL. It is bona-fide with sole purpose of larger public interest.
That the source of averments made in this petition is personal knowledge and information collected from various sources, including newspapers, websites and Law Commission Reports. Petitioner is filing this PIL to establish Indian Judicial Services under the Article 312 in consonance with Article 16, as it is essential to attract best talent in judiciary to secure fundamental right of fair trial and speedy justice in spirit of the Article 21.
That present petition is for the benefit of poor, disabled, economically weaker section and socially-economically down trodden people. As they are incapable of accessing this Hon’ble Court themselves, petitioner is filing this PIL to secure fair trial and speedy justice in spirit of Article 21 and to provide equal opportunity in spirit of the Article 16.
That the Union Government is likely to be affected by the orders sought in this petition, which has been impleaded as Respondent. Petitioner submits that to its knowledge, no other persons, bodies, institutions are likely to be affected by the order sought in this petition.
That petitioner is an Advocate, practicing before this Hon’ble Court and Supreme Court and a social-political worker, contributing his best to the development of the EWS and BPL people. Petitioner has been worked with social activist Sh. Anna Hazare and actively participated in ‘India Against Corruption’ movement. Petitioner has been Founder Member of AAP, now working as Spokesperson for BJP but filing this petition in his personal capacity. Petitioner believes that creation of IJS under Article 312 is essential to secure fundamental right of fair trial and speedy justice in spirit of Article 21 and to provide equal opportunity in spirit of the Article 16. Petitioner has means to pay the cost if any, imposed by the Court, and on an undertaking to the Court in that respect.
That on 03.01.1977, AIJS was inserted into Article 312 by the Constitution (Forty-second Amendment) Act 1976. Purpose of the amendment was to ensure uniformity of standards throughout the India in matter of judicial service, status, emoluments etc. and to attract the best talent in judiciary so that the fundamental right of fair trial and speedy justice made available to all the citizens.
That the first Law Commission of India, headed by prominent jurist Sh. M.C. Setalvad, with the benefit of the opinion of the then CJI Justice K.N. Wanchoo and Justice M.C. Chagla and eminent jurist Sh. Nani Palkhivala among others, had made a strong recommendation for the constitution of IJS on the lines of IAS. The felt need for IJS has been increased several fold in the last six decades since that recommendation.  Subsequently the Article 312 was amended in 1976 to specifically provide for creation of IJS but unfortunately, it is still a dream due to non-seriousness of the consecutive Union Governments.  Three Chief Justices’ conferences in 1961, 1963 and 1965 favoured this recommendation.  In 1972, the then Chief Justice of India again endorsed the creation of IJS.  Hon’ble Supreme Court considered this issue and endorsed the creation of Indian Judicial Service without further delay. [AIJA vs UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555].
That on 27.11.1986, Law Commission submitted its 116th report titled “Formation of All India Judicial Service” to the Union Government, explaining the importance and need of IJS. Commission examined the entire issue in detail, and recommended the formation of IJS in accordance with the Article 312.  Copy of letter of Law Commission to Union Law Minister of is annexed as Annexure-1. ( Page 50 )
That on 24.10.2009, in his inaugural address, in a Conference “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” Hon’ble CJI endorsed the IJS in presence of Hon’ble Judges of the Supreme Court and High Courts, Union Law Minister, Attorney General and Solicitor General, Union Home Secretary, Union Law Secretary, Prominent Jurists and Members of the Bar. Copy of the Inaugural Address by Hon’ble CJI is annexed as Annexure-2. (Page 51-56 )
That on 25.10.2009, Union Law Minister presented a resolution to establish the IJS as thus: “Commend for consideration the establishment of All India Judicial Service through an open competitive examination ensuring the best possible selection”. The entire Conference “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” unanimously adopted it. Copy of Resolution presented by Union Law Minister is annexed as Annexure-3. (P.57-58)
That on 06.08.2012, three distinguished Judges, Justice V.R. Krishna Iyer, Justice J.S. Verma and Justice M.N. Venkatachaliah endorsed the constitution of IJS under Article 312, and jointly expressed their views as thus: “We agree with the urgent need to constitute the All India Judicial Service envisaged by Article 312 of the Constitution of India, at par with the other All India Services like the IAS, to attract the best available talent at the threshold for the subordinate judiciary, which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Courts. The general reluctance of competent lawyers to join the Bench even at the higher levels adds an additional urgency to the problem. AIJS will, in due course of time, also help to improve the quality of the High Courts. The modalities for creating the AIJS to achieve its avowed purpose, and the necessary constitutional changes and the legal frame-work can be worked out after acceptance of the proposal in principle”. Copy of Joint views of Justice Venkatchaliah and Justice J.S. Verma endorsed by Justice V.R. Krishna Iyer is annexed as Annexure-4. (Page 59-62)
That on 09.12.2013, Department related Parliamentary Standing Committee on Personnel Public Grievances Law and Justice presented its 64th Report to the Rajya Sabha. Report was laid on the table of Loksabha on 09.12.2013 itself. Para 50 of the Report is thus: “All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that AIJS may be created without further delay to attract best talent to the subordinate judiciary from where 33% of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of Government of India may be made applicable in the All India Judicial Service also”. Copy of Parliament Standing Committee Report-64 is annexed as Annexure-5.(P.63-78)
That on 19.05.2014, Justice R.M. Lodha, the then Hon’ble CJI, on the eve of assuming charge, reiterated the need of IJS as thus: “Setting up of All India Judicial Service, being planned by the government on the lines of the IAS and IPS for recruiting judges for subordinate courts, should be given serious thought. National consensus is lacking as some states have raised reservations on the framework of the Indian Judicial Service. Those states should also be brought on board”.
That 20.06.2016, petitioner submitted representation to the Union Minister of Law & Justice and copy to Hon’ble Prime Minister of India to establish IJS. Copy of the Representation is annexed as Annexure-6.(Page79-86)
That on 11.07.2016, this Hon’ble Court disposed of petitioner’s Writ Petition (Civil) 5854 of 2016, directing the Government to consider petitioner’s representation and take decision in accordance with law. But, Government is not taking appropriate steps in this regard. Copy of Order of this Hon’ble Court is annexed as Annexure-7. (Page 87)
That the proposal of introducing IJS on the lines of IAS/IPS is not new. Law Commission has thrice- in its 1st, 8th and 116th Report called for IJS. The Apex Court has endorsed the creation of IJS. [AIJA vs UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555]. Parliamentary Standing Committee in its 64th Report on Law and Justice recommended to establish IJS and directed the Government to take appropriate steps in this regard. The first National Judicial Pay Commission and National Advisory Council to the Union Government have endorsed the IJS. On 25.10.2009, Union Government presented a Resolution before Hon’ble Chief Justice of India in this regard. Over and above, Article 312 explicitly provides for the creation of IJS. However, in spite of all these, Government gives lame excuses and sleeping over the matter. As of now, while most government department has ‘All India Service’ recruits, the Judiciary is the only setup that does not have a national level selection process to attract the best prospective Advocates.
That available judges are unable to clear the huge backlog of over 30 million cases. In the absence of IJS, it is very difficult to maintain the required judge strength in District Courts and High Courts. IJS would have its own distinct advantages if Article 312 is implemented in consonance with Article 16 of the Constitution. Primarily, the recruitment of judge’s right from the entry level would be handled by an independent agency - National Judicial Service Commission (NJSC) through an open competition thereby ensuring fair, transparent and credible selection process, similarly like IAS, IPS, IFS are selected through the UPSC. IJS would naturally attract the best prospective Advocates to judiciary, who otherwise prefer immediate remunerative employment in public and private sector. Recruitment by NJSC and comprehensive training in National Judicial Academy (NJA) would not only ensure equal and uniform service conditions besides providing them with a wider field to prove their mettle but also secure fair trial and speedy justice to citizens in spirit of the Article 21. Uniformity and transparency in selection process will improve the quality of judges in High Courts, as 50% of the Judges may be taken from IJS. In this process, only the Judges of proven competence will preside over the benches and it will minimize the scope of aberration, arbitrariness and nepotism in judiciary.
That it is well accepted by thinkers, philosophers, academicians and jurists that if the fundamental right of fair trial and speedy justice is to be secured in spirit of the Article 21 and equal opportunity to be provided to all the citizens in spirit of the Article 16; Indian Judicial Service must be established in spirit of the Article 312. The Quality of justice dispensation will positively improve right from the District Courts to the Apex Court by initiating the IJS. In a democratic setup, intrinsic and embed faith in adjudicatory system is of seminal and pivotal concern. Unnecessary delay gradually declines the citizenry faith in judicial system. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become causality. Fair trial and speedy justice keeps the people’s faith engrained and establishes the sustained stability. Access to speedy justice is deeply rooted in the concept of democracy and regarded as a basic human right. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. Myriad facts and situations, bearing testimony to the denial of the fundamental right of fair trial and speedy justice to the accused persons and failure on the part of prosecuting agencies have persuaded the Apex Court to devise solutions, which go to the extent of almost enacting by judicial verdict - the bars of limitation.
That judicially engrafted bars of limitation, no doubt meant to provide a solution to the long delay problem but it gives rise to greater problem like scuttling a trial without adjudication, stultifying excess to justice and giving easy exit from the portals of justice. If the period of deprivation pending trials becomes unduly long, fundamental right of fair trial and speedy justice would receive a jolt.  The Apex Court has advanced a step further and said-“The provision of speedy justice is an obligation of the State, otherwise the operation of the legal system would not promote justice, which is assured in Preamble of the Constitution”. Parliament enacted the All India Service Act 1951, for creating certain All-India Services in addition to IAS/IPS. The 1951 Act was amended in 1963 to create 3 more All-India Services (engineering, forestry and medicine) however, IJS has not been yet established in spite of constitutional provision and despite the Apex Court strongly expressed its views in favour of IJS (in 2nd Judges Case) to ensure uniformity of standards in matter of judicial service, status, emoluments etc. Only such a meritocratic service with open competitive examination and comprehensive training to trainee judges would be able to secure fundamental right of fair trial and speedy justice to citizens in spirit of the Article 21 that is why Government must establish the IJS without further delay.
That establishment of IJS under the Article 312 is not only necessary to attract the best talent to judiciary and to provide equal opportunity to all prospective Advocates in spirit of the Article 16 but also essential to secure fundamental right of fair trial and speedy justice to all the citizens in spirit of the Article 21. IJS has not been established in spite of constitutional provision and despite the Apex Court strongly expressed its views in favour of IJS. It is necessary to ensure uniformity of standards in matter of judicial service, status, emoluments etc. However, Executive has failed to establish the IJS under the Article 312 in consonance with Article 16 of the Constitution that is why petitioner is again filing this writ petition in larger public interest and in interest of justice. Article 312 of the Constitution provides for the creation of an IJS common to the Union and the States.  Union government through the President’s address to the Parliament, gave a commitment to make dispensation of justice simpler, quicker and more effective, and to double the number of courts and judges in the subordinate judiciary in a phased manner. A Resolution was also presented by Union Law Minister in this regard on 25.10.2009 and entire conference unanimously adopted the resolution, however, government is continue sitting on this matter on national and public interest.
That it is the constitutional obligation of the  Government of India to establish the All India Judicial Service as per decision of Hon’ble Supreme Court of India in the All India Judges Case (AIR 1992 SC 165). After considering all the facts, the Apex Court very categorically endorsed the AIJS as thus: “We are of the view that the Law Commission's recommendation should not have been dropped lightly. There is considerable force and merit in the view expressed by the Law Commission. An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary. The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us. Since the setting up of such a service might require amendment of the relevant Articles of the Constitution of the Service Rules operating in the different States and Union Territories, we do not intend to give any particular direction on this score particularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible. It is in the interest of the health of the judiciary throughout the country that this should be done.”
That on proposal of constituting IJS, the Government of India submitted a status report dated 10.02.1997 to the Apex Court as thus: “The Supreme Court of India in the Writ Petition (Civil) No.1022 of 1989 between All India Judges Association Versus Union of India in its judgment dated 10th April, 1995 has given the direction to Union of India to take immediate measures for the implementation of the direction, to achieve the objective of setting up of All India Judicial Service. Since a Resolution will have to be moved in the Rajya Sabha in this regard, the Government has sought the views of the State Governments/High Courts in the matter. So far we have received comments from 23 States. Comments are still awaited from Governments of Meghalaya and Bihar. The State Governments of Goa, U.P., Mizoram, Punjab, Kerala, Tripura, Sikkim and Orissa agree with the setting up of an All India Judicial Service. The Governments of Himachal Pradesh, Haryana, Tamil Nadu, Madhya Pradesh, Maharashtra, West Bengal, Assam and Rajasthan have given a conditional approval to the proposal. The State Governments of Arunachal Pradesh, Nagaland, Karnataka, Gujarat, Jammu & Kashmir, Manipur and Andhra Pradesh have not favoured the setting up of an All India Judicial Service. Of the 18 High Courts, we have received the views - comments of 16 High Courts. Views of the Calcutta High Court and the High Court of Jammu & Kashmir are awaited. The High Courts of Allahabad, Patna, Guwahati and Rajasthan have favoured the setting up of an All India Judicial Service. The High Courts of Orissa, Sikkim, Andhra Pradesh and Kerala have given their conditional approval to the proposal. The High Courts of Mumbai, Karnataka, Gujarat, Delhi and Madhya Pradesh have no views to offer in this regard in the light of Supreme Court judgment. The High Court of Himachal Pradesh, Punjab and Madras have not favoured the setting up of an All India Judicial Service. In the light of the recommendation of the Law Commission of India, direction of the Supreme Court and views/comments of the State Governments/High Courts, the question of setting up All India Judicial Service through a resolution of the Rajya Sabha and an enactment of Parliament under Article 312 of the Constitution is under consideration.”
That in order to assist the Government, the Law Commission wanted to ascertain the views of the High Courts and State Governments as to the qualifications and method of recruitment to IJS. Commission circulated the question as thus: “The States Reorganization Commission has observed that creation of All India Service would be a major compelling necessity for the Nation and it has suggested that a proportion of the Higher Judiciary should be recruited by competitive examination at All India Level so as to attract the best of our young graduates to the Judicial Service. Commission has in its 14th Report emphasized the need to establish the IJS. The Apex Court has unequivocally stated that it is in the interest of the health of the judiciary throughout the country that an IJS should be constituted. The Court has, however, left the matter to the Government to undertake quickly appropriate exercise in that regard. ‘Please set out the qualifications and method of recruitment to IJS’?
That petitioner suggests as thus: (i) The AIJS could be constituted only in the cadre of District Judges as per the provisions of Article 312(3) of the Constitution. The District Judges directly recruited and promoted should constitute the IJS. (ii) The selection for direct recruitment should be by National Judicial Service Commission/UPSC and promotees by the respective High Courts. (iii) The qualification for direct recruitment to IJS should be in conformity with that prescribed under Article 233(2) of the Constitution - i.e., Advocate/Pleader who has got not less than 7 years Bar practice. (iv) Service Judges also should be allowed to compete for recruitment to IJS, by appropriately amending Article 233(2) of the Constitution. (v) Not exceeding 50% of the posts in the cadre of District Judges in every State should be ear-marked for direct recruitment. (vi) The age limit for recruitment to IJS should be between 30 and 40 years. (vii) The procedure for selection shall be by written examination followed by viva voce. (viii) Appointment: National Judicial Service Commission/UPSC, after selecting the candidates for direct recruitment to the cadre of District Judges, must allocate to the States/UTs, the candidates equal to the vacancies that are surrendered by them. The High Court thereupon will recommend those names to the Governor for appointment as per Article 233 of the Constitution. (ix) Training: Prescribed training is only after appointment. (x) Seniority: All India Seniority is as per the ranking in the select list. (xi) Inter-se Seniority in the State/UT: The inter-se seniority between direct recruits and promotees shall be determined according to the date of allotment and date of promotion. (xii) Such direct recruits must thus be annexed to the respective State Judicial Service within the three-tier system. (xiii) Court Language: The recording of the deposition in all Courts should be in two languages - (a) State language (to be recorded by the Court Officer); and (b) English (by the Presiding Officer). Petitioner is of the opinion that, if the IJS is constituted in the above stated manner, the apprehension of the High Courts, the Service Judges and the Governments could be minimized, if not totally eliminated.
That Union government announced its commitment to policy of zero tolerance against corruption, terrorism and criminalization and to strengthen the criminal justice system for it’s effective implementation. It is well settled that right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution of India. This right is applicable not only to the actual proceedings in Courts but also includes, within its sweep the preceding police investigation as well. The right to speedy trial extends equally to all criminal prosecutions and not confined to particular cases. Undoubtedly, our judge, population ratio is too low, and we need many more trial courts.  However, as many Jurists have pointed out, mere increase in the number of Judges without improvement in their competence is of no benefit.  The quality of justice administered critically depends on the process of the Judges recruitment. Clearly, there is a compelling case to create a highly competent, meritocratic All India Judicial Service.  Judges can be recruited at a young age, very much similar to officers like IAS and IPS.  Provisions can be made for adequate experience in trial Courts below district level as part of mandatory training or by repealing Article 312(3) of the Constitution of India and providing for posting of All India Judicial Services officials below the district level for 3-4 years.
That creation of AIJS is a low-cost, high-impact reform long overdue.  There are many other steps required to make the justice system workable. However, improving the quality of judges, enhancing the prestige and dignity of judicial service, and promoting competition for recruitment is a relatively simple measure around which there is impressive consensus.  It is time to create IJS, after 05 decades, the 1st recommendation by the LCI, and after 04 decades, the 42nd Constitutional Amendment. Failure of the justice system specially the criminal justice system has several disastrous implications in society. As Gladstone observed - the proper function of a government is to make it easy for the people to do good and difficult for them to do evil. The only sanction to ensure good conduct and to prevent bad behavior in society is swift punishment. In the absence of the State’s capacity to enforce the rule of law and to mete out justice, rule of law has all but collapsed. Even in civil matters, the sanctity of contracts and agreements has lost its relevance because of the courts incapacity to adjudicate in a time bound manner. Equality before law and Equal protect of the Law, though constitutionally guaranteed, has remained a notional concept on paper. In reality, the vast masses of the poor and illiterate people are relegated to the margins of society in the absence of effective justice system.
That extra-legal mechanism for redress of the grievances and for providing rough and ready justice have sprung up all over the country. The foremost cause for increasing criminalization of society and politics is the failure of the criminal justice system. An efficient judiciary is the very essence of civilization. However, our judiciary, by its very nature, has become ponderous, excruciatingly slow and inefficient. Imposition of an alien system, with archaic and dilatory procedures, proved to be extremely damaging to our governance and society. As Nani Palkhiwala observed once, the progress of a civil suit in our courts of law is the closest thing to eternity we can experience. Our laws and their interpretation and adjudication led to enormous misery for the litigants and forced people to look for extra-legal alternatives. Any one, who is even remotely exposed to the problem of land grabbing in our cities, or a house owner who finds it virtually impossible to evict a tenant after due notice even for self-occupation; can easily understand how the justice system failed. Election Commission estimates that more than 30% legislators have criminal records against them. Even if heroic and successful efforts are made to disqualify all these persons with criminal record from contesting, the problem will continue to grow unless justice administration improves dramatically.
That failure of justice system means that no entrepreneur businessperson or even ordinary citizen could rely on law courts to enforce contracts and agreements. The undermining of the sanctity of contracts and agreements has had a very debilitating impact on investment production and economic growth. The failure of the criminal justice system has led to the near break down of public order in many pockets of the country. This, coupled with the many inadequacies of functioning of the police has led to a crisis of governability in India. The arbitrary and unaccountable functioning of the police has led to complete alienation of many citizens from the state. Added to this, the complete politicization of the police force led to highly partisan crime investigation. Elected governments have been habitually abusing their powers to drop serious criminal charges against their supporters and to foist false cases against their opponents. The broad nexus between the politician, criminals and policemen has come to stay, vitiating the governance process and undermining social stability and harmony. Alarming situation in our country calls for fair trial and speedy justice in accordance with the Article 21 of the Constitution of India. Establishment of IJS is practical and effective and it is in consonance with the basic structure of the Constitution of India.
That in Brij Mohan Lal v Union of India (2012) 6 SCC 502, (Para 137), Hon’ble Supreme Court of India very categorically observed as thus: “Article 21 takes in its sweep the right to expeditious and fair trial. Even Article 39A of the Constitution recognizes the right of citizens to equal justice and free legal aid. It is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duties of the Government, more particularly, when such rights are accepted as basic and fundamental”. Hon’ble Supreme Court further observed (Para 145) as thus: “The State cannot be permitted to advance an argument of financial constraints in such matters. The policy of the state has to be in the larger public interest and free from arbitrariness. Ad hocism and uncertainty are the twin factors, which are bound to adversely affect any state policy and its result. The state cannot, in an ad hoc manner, create new systems while simultaneously giving up or demolishing the existing systems when the latter have even statistically shown achievement of results.
That in Hussainara Khatoon (1) v State of Bihar (1980) 1 SCC 81, Hon’ble Supreme Court has observed as thus: “Speedy trail is implicit in the broad sweep and content of Article 21 of the Constitution”.  Subsequently, in a series of judgments, the Apex Court has held that a “reasonably” expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. The Apex Court made it clear that the guarantee of the speedy trial is intended to avoid oppression and prevent delay by imposing on the court and the prosecution and obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. Firstly, it protects the accuse against oppressive pre-trial imprisonment, secondly, it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost or memories deemed by the passage of time, thus, impairing the ability of the accuse to defend him or herself. Stated another way, the purpose of both the criminal procedure rules governing speedy trials and the constitutional provisions, in particular, Article 21 of the Constitution is to relieve an accuse of the anxiety associated with a suspended prosecution and provide reasonably prompt administration of justice.
That in Rajinder Singh v Prem Mai (2007) 11 SCC 37, the Apex Court said- “People in India are fast losing faith in judiciary because of the inordinate delay in disposal of the cases. The authorities concern should do the needful in the matter urgently to ensure speedy disposal of cases if people’s faith in the judiciary is to remain”. (Page 11)
That in Imtiyaz Ahamad v State of UP (2012) 2 SCC 688, the Apex Court said (Para 25): “Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man’s access to justice. A person’s access to justice is guaranteed fundamental. Denial of this right undermines public confidence in the justice delivery system and incentivizes people to look for shortcuts and other for a whether they feel that justice will be done quicker. This weakens justice delivery system and poses a threat to the rule of law. Access to justice is an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving individual’s access to Courts or guaranteeing representation. It must be defined in terms of insuring legal judicial outcomes are just and inequitable.” The Court further (Para 28) said: “The judges should deliver the judgment immediately upon the closure of argument. It is almost of as much importance that the court of first instance should decide promptly as that it should decide right. It should be noted that everything, which tends to prolonged or delay litigation between individuals, or between individual and state or corporation, is a great advantage for that litigant who has the longer purse. The man whose rights are involved in the decision of the legal proceeding is much prejudiced in a fight through the courts. If his opponent is able, by reason of his means, to prolonged the litigation and keep him for years out of what really belongs to him. Dispatch in the decision making process by court is one of the great expectation of the common man from the judiciary. Delay in disposal would destroy the confidence, and do incalculable damage to the society. People would had long been exploited in the small transaction of the daily life come to believe that Courts cannot vindicate their legal rights against fraud overreaching and the law in the larger sense cannot fulfill its primary function to protect them and their families in their homes, at their work place and on public streets.”
That in subordinate courts, there is inordinate delays and varying levels of efficiency. It is high time that IJS is created under the Article 312. Only such a meritocratic service with a competitive recruitment, and comprehensive training and assured standards of probity and efficiency would be able to ensure fair trial and justice to citizens.
That civil and criminal procedure code, and law of evidence have to be revised to meet the requirements of modern judicial administration. The principles underlying the procedural law are valid even today but in actual practice, several procedures have become cumbersome, dilatory and often counter-productive. There should be time limits prescribed for adjudication. The stays and endless adjournments should be firmly curbed. The right to get justice within two year in a criminal case and three years in a civil case should be constitutionally guaranteed and procedural laws should be amended accordingly.
That only one appeal should be permitted in civil cases. The appeal should be heard and verdict delivered within 6 months in a criminal case and within 12 months in a civil case. All stays should be prohibited except in exceptional circumstance for reasons specifically recorded in writing and no stay should exceed 30 days. The time limits for adjudication should be strictly adhered to even in cases involving stay orders. The Supreme Court jurisdiction should be limited only to matters involving interpretation of the Constitution or disputes between two States or Union and States and it should function only as a Constitutional Court. Appellate powers of High Courts should be severely restricted in order to reduce the load and to ensure sanctity and authority of the High Courts.
That matters relating to taxation, labour disputes and disciplinary action against employees should be beyond the purview of ordinary law courts. They should be entrusted to the special tribunals with no provision for appeal to High Courts except on grounds of interpretation of the Constitution. The writ jurisdiction should be strictly focused on right to life, liberty and equality before law.
That the crime investigation, riot control, intelligence gathering, and security of state properties and protection of important citizens – all in a single police force has had a devastating effect on criminal justice system. The police forces have become inefficient and increasingly partisan. As the government of the day, have complete powers over the crime investigation machinery as well as the legal authority to drop criminal charges against the accused, crime investigation has become a play thing of partisan politics. It is therefore vital to create an independent wing of police force fully in charge of crime investigation and functioning under the direct control of independent prosecutors appointed as constitutional functionaries. The criminal courts should hold the prosecutors and the crime investigation police force accountable to them in their overall functioning. Only when crime investigation is thus insulated from the vagaries of politics can there be any fairness and justice to ordinary citizens. Equally important, only when crime investigation machinery is accountable to judiciary can the obnoxious and inhuman practice of torture, third degree and extra judicial executions in fake encounters be stopped.
That there is an unease and disquiet about character, competence and commitment to public service of several judges, particularly in the subordinate judiciary. If these challenges are not recognized and far-reaching judicial reforms are not initiated with a great sense of urgency and devotion, the judiciary may also fall in public esteem endangering the whole civil society and adversely affecting the public good. The judiciary should recognize that it is an organ of State with the sole objective of serving the public in a fair, efficient and accountable manner. Its loyalty should only be for public good and speedy justice and not to the convenience of advocates or politicians or bureaucrats. We have been singularly fortunate that several outstanding judges over the decades have ensured that judiciary can function in an independent and fearless manner. The time has now come when concerted efforts should be made to make judiciary efficient and effective without usurping the functions of the other organs of state. What is needed is a substantial increase in the number of judges in subordinate courts at the local level giving access to the ordinary people.
That the Courts in India cannot be faulted for the failure of justice system. In fact, the judges are bearing an enormous burden with inadequate resources and manpower. There are only about 11 judges in India per million populations, which is among the lowest ratios in the world. In contrast, the OECD countries have 113 judges per million population on an average. A country like Germany, with only about 80 million population, has nearly 35,000 judges of all varieties put together, almost three times the number we have in India with over a billion population. Law Commission in its report on manpower planning (1987) pointed out that the Indian judge – population ratio was 10.05 per million people as against 50.09 in the UK, 57.07 in Australia, 75.02 in Canada and 107 in the US. The sanctioned strength of judges in India is only 13,000, as against the requirement of 75,000 judicial officers. Out of this, many posts are vacant. The statistics relating to pendency of cases in various courts are revealing that with the exception of the Supreme Court, where the pendency is decreasing in recent years, courts at all other levels are overburdened with case load. Some cases have been pending for over 15 years. The situation in subordinate courts is unfortunate. Executive must implement the Resolution dated 25.10.2009 in letter and spirit without further delay.
That the litmus test of any justice system is the access provided to average citizens, facing simple, day-to-day disputes. Unless suitable mechanisms are evolved the justice system cannot enforce rule of law. Access to justice system is dependent on several factors including number of judges. As we have seen, our judges: population ratio is less than one-tenth of that in many advanced democratic societies. Even this limited number is skewed, as trial courts are particularly depleted. Access to justice system is also dependent on Physical proximity. In a vast country with high degree of poverty, illiteracy or semi literacy, and ignorance, a law court, to be accessible, should be physically close to people. The poor in India are among the most immobile people in the world. A large proportion of our rural people would never have stirred out of their village or a group of villages constituting a revenue circle for a whole life-time, with the exception of a once-in-a-life pilgrimage to a place of worship, or seasonal group migration in search of wage labour. In such circumstances, a court in a big town or taluka is much too remote and inaccessible to most people. Therefore, many civil wrongs, disputes and torts remain unaddressed through the formal system of justice. Mobile Courts are used in many Country and deserves similar implementation in our country also.
That access to justice system is also dependent on Procedures. The more formal and rigid the procedures adopted by a court, the more inaccessible it is to most semi-literate and poor people. Written submissions, necessity of skilled lawyer’s intervention even for simple cases, compulsion of legal representation, need for legal language or justification in different stages of the process, the level of complexity involved in the service of process or summons or notification of final judgment, lack of effective mechanism for speedy enforcement of court decree or order – all these make the judicial process remote, incomprehensible and inaccessible. Access to justice system is dependent on language also. Only about 3 percent of Indians can understand English well. The use of English as the language of the courts, coupled with unintelligible laws and procedures, has made the justice system beyond the reach of most people. Petitioner suggests that recording of Court proceedings should be done in two languages – State Language and as well as in English also. In some countries, disposal of a commercial dispute takes only a few weeks. For instance, it takes 35 days for adjudication in Singapore, 90 days in Norway and 60 days in Japan. Delayed justice deters a large number of people from approaching the courts for simple disputes or minor offences.
That access to justice system is dependent on Costs also. Delays, procedural complexity and use of alien language escalate the costs of litigation enormously for most people, deterring them from seeking intervention of courts. This prohibitive cost is particularly detrimental to judicial redressal in simple cases of torts, commercial disputes, or civil or criminal wrongs. Access to justice system is dependent on perjury also. The more remote a judicial system is, the more difficult it is to get reliable evidence. Witnesses far removed from their natural surroundings often tend to lie under oath, as there is no peer pressure to speak the truth. Many witnesses in fact go to great extents to avoid being summoned before a court. A system of false witness perjuring himself or herself for a price has been established as a profession in most of our courts. Perjury laws are violated with impunity, as there is no social sanction against lying under oath. Access to justice system is dependent on fairness too. The degree of perceived fairness of justice system determines its accessibility and acceptance. Given the deficiencies listed above, an ever-increasing number of the poor and illiterate are wary of approaching the Courts. Several measures have been taken worldwide to ensure fair trial and speedy justice to citizens. Executive should take appropriate steps to implement them in our country.
That in the United States of America, small claim Courts, better known as people's courts with limited jurisdiction at municipal, city, or regional level are usually confined to civil suits involving relatively small amounts of money and to minor violations of law. For instance, cases involving minor traffic violations are heard in these trial courts. The procedures are simple with very little formality, and those involved in litigation normally present their cases to a judge, magistrate or court commissioner. The maximum amount involved in a suit in these courts varies from state to state, ranging from $1000 to $15,000, but limited to $5000 in most states. In most States the parties can be represented by a lawyer if they so wish. In a few States, including California, Nebraska and Michigan, parties come to appear on their own. About 100 million cases go through these courts annually. In the UK, lay and unpaid Justices of the Peace (JPs) handle over 90% of all criminal cases and many civil cases. As Lord Phillips of Sudbury states (The observer, 02.12.2002), local justice, presided over by Justices of the Peace (JPs) dates back well beyond 1361 AD, when the first Justices of the Peace  Act was passed, and even today a Justices of the Peace is placed much higher than an Member of Parliament in official rankings. Petitions feels that India urgently needs judicial reform to tackle the alarming situation.
That World Bank report (May-2000) points out: “The litmus test of any civil justice system is whether it provides the average citizen, facing simple everyday legal disputes with mechanisms through which he or she is able to secure redress. Considerable progress has been made in England and Wales, and in many other countries, in providing access to civil courts to those involved in such disputes. Adaptations to traditional litigation procedures seem largely to have succeeded in allowing laypersons to present their cases in a satisfactory and competent manner. If greater access to justice is the objective, the key is to design a civil justice system that provides costs and procedures that are realistic and proportionate to the issue in dispute. Calls from legal purists for an unrealistic level of legal refinement should be ignored, as they will restrict access to the courts to the wealthy. For most lay litigants, the alternative to cut-price solutions is not Rolls Royce Justice: it is no access to justice at all.” Petitioner respectfully submits that there is urgent need for significant increase in the number of trial courts at the lower level, with the adoption of simple, informal procedures for adjudication. Besides establishing the IJS in accordance with Article 312, the honorary second-class magistrates system, which operated successfully working in many countries may be adopted in India also.
That the quality of justice administered depends on the quality of those who administer it.  Quality of judges is clearly of paramount importance. Unlike the executive branch of government, the judiciary is completely independent and invulnerable to the vagaries of politics and partisan pulls. The High Court has complete control over the conduct and functioning of subordinate courts. In addition, there are established procedures for elevation to High Court and Supreme Court.  Therefore, once recruitment practices are sound, there are incentives for better performance and effective monitoring at least until a judge is elevated to the High Court. Selection process and the training for Indian Judicial Service may be similar to the Indian Administrative Services in the executive branch. Take for instance the IAS and IPS. There is fierce competition for entry into these elite services. Annually, thousands of bright youngsters compete in a grueling examination. There is central recruitment to meet all the States’ requirements. The selection procedure is very transparent and highly meritocratic, giving due allowance to affirmative action policies. Unquestionably, highly competent, intelligent and well-qualified youngsters join the Civil Services and they are put through a two-year comprehensive training at National Academy of Administration and one year training at the field level.
That if the Executive ensures that there is a meritocratic recruitment through a transparent nation-wide competitive examination and if Indian Judicial Service officers are accorded the prestige, respect, salary and perks that Indian Administrative Services officers enjoy, then the best law graduates can be tapped for the Judiciary. The prospects of elevation to High Court and Supreme Court ensure high quality performance in district and other subordinate courts. The current procedures to enforce accountability in higher judiciary are unsatisfactory, but that problem needs to be dealt with separately. At the very least, establishment of Indian Judicial Services for judiciary would ensure a high level of competence and skills in our justice administration. Article 312 of the Constitution provides for the creation of Indian Judicial Service and Hon’ble Supreme Court has endorsed it in a catena of decisions thus it is obligation of the Government to establish IJS without further delay.  In the absence of sensitive and citizen-friendly mechanisms, people are forced to swallow injustice. Often their lives are shattered, and poverty is perpetuated with little hope of climbing out of the deep hole of misery and injustice.  In this climate, a market-demand is created for those who can apply coercion and violence to deliver “rough and ready justice” for a price.
That judicial backlog and accessibility to justice for a common man are interconnected problems. Huge numbers of cases are pending in the courts, which are just lingering along and not reaching their logical conclusion. Most of these cases are trivial matters such as property disputes, theft, slap incidents, etc. There are many reasons for this menace. Some of them are: Lack of Judicial infrastructure i.e. lack of district courts, lack of staff etc. More investment is needed in judiciary, which should be government top priority. Creation of a large number of Nyaya Panchayats and Nyaya Samitis in rural and urban areas both as mandated by the Nyaya Panchayat Act, 2009 should be done on larger scale. Central Government and State Government is also a big stakeholder in the judicial arena. They should withdraw most of the unneeded and petty cases and look for out of court settlement. Judicial backlog is also due to Archaic laws and few outdated sections of Criminal Procedure Code, Civil Procedure Code and Laws of Evidences. These laws should be permanently be amended and left behind moreover judicial practices that are time consuming should be given up. It is need of the time to not only reform the recruitment system but court proceeding too. Judges need to be stricter and should ensure that the court time is not wasted.
That the retirement age of the Judges of High Court and Supreme Court should be increased. This will also ensure more experience in the judiciary. Petitioner feels that retirement age of the High Court Judges should be 65 years and retirement age of the Supreme Court Judges should be 70 years. All the Courts including High Court and the Supreme Court must function at least 6 Hours a day (10am to 5pm including one hour lunch duration) and 250 days in a year i.e. 1500 hours every year. The collegiums system has come in for a lot of criticism because it lacks objectivity and transparency. As a solution, the executive sought to bring in the National Judicial Appointments Commission, which the Hon’ble Supreme Court has struck down. However, the cure does not lie in restoring the balance in favour of the executive, but in putting in place a system that is objective and transparent. Thus, the All-India Judicial Service assumes significance. This old demand has always been shelved because of vested interests masquerading as judicial independence hence such a model is well functioning in many countries. After striking down NJC, when Constitution Bench asked for suggestions, petitioner suggested that names of prospective Advocates should be recommended by Full Court meeting of the High Court and approved by Full Court meeting of the Apex Court.
That National Judicial Service Commission, a body like the UPSC needs to be established, to conduct examination for the recruitment of Judges. IJS officers could start their careers as Additional District Judges after 3-4 years comprehensive training at National Judicial Academy and eventually rise up to become the High Court and Supreme Court Judges. As against nebulous accountability and lack of transparency in the functioning of the judiciary, the IJS can be governed by a well-laid system of discipline and service accountability like the Indian Administrative Services. Executive should have no control over such matters. IJS will make the judiciary more accountable and professional. Prior to the collegiums, politicians could quietly sneak in their candidates. An important objection to IJS by the Politicians is local language requirements. This is a feeble argument. When IAS officers can be allotted State cadres and adjust to local requirements, why can’t IJS officers? Every organ of the State including the judiciary needs to be accountable to the public. People need to know how judges are appointed, what criteria they have been evaluated on. Many judges appointed by the collegiums or by political intervention may have been brilliant, yet their recruitment process is questionable. Judiciary should reflect social reality and the country’s diversity.
That in June 2014, the All India Judges Association (AIJA) passed a resolution seeking creation of IJS to reduce discrepancies in subordinate judiciary. The executive body of the AIJA, an association comprising 15,000-odd subordinate court judges from across the country as its members, unanimously endorsed that in order to maintain the dignity of lower judiciary, IJS needs to be created which is also very much provided under the provisions of the Constitution. Its noteworthy to mention here that at the outset, it was the first Law Commission of India, which in its 14th report recommended the creation of an IJS. It opined that such a course is necessary in the interest of efficiency of the subordinate judiciary. Then the 8th Law Commission while examining the problem of arrears in trial courts, too, endorsed the IJS in its 77th report. Thereafter, the 11th Law Commission in its 116th report (1986) explicitly dealt with the issue threadbare. It held that a member of the IJS would be required to learn one more language over and above his mother tongue and once he is allotted to a State keeping in view the said fact, no problems would arise on the ground of language. Reference was made to members of IAS in this behalf. It further observed that in as much as according to the present rules in force in various States, about 50% (if not, more) vacancies in the cadre of District Judges are reserved to be filled by promotion from the lower cadres and because the members of AIJS will be allocated only against the vacancies to be filled by direct recruitment, the promotional prospects of judicial officers (below District Judge level) will, in no way, be affected.
That the control of the High Court will, in no manner, be diminished or curtailed because on allotment to a State, the members of IJS would become members of the State Judicial Service for all practical purposes with the difference that while at present, High Court recommends various things such as promotion or disciplinary action to the Governor, it would be recommending the same to the NJSC, which, in turn, would make necessary recommendation to the President but the President will act in the same manner as at present it is done by the Governor, having regard to the almost binding character of the recommendation of the High Court.
That the first-ever National Judicial Pay Commission (NJPC), headed by Justice Jagannatha Shetty, a former Judge of the Supreme Court, which submitted its report in November, 1999 recommended constitution of All India Judicial Service in the cadre of District Judges as per provisions of Article 312(3) of the Constitution of India. The NJPC mooted that the District Judges, directly recruited and promoted, should constitute the IJS. Seniority of All India Judicial Service will be on All India basis and as per the ranking in the select list. The inter-se seniority between direct recruits and promotees will be determined according to the date of allotment of promotion. Such direct recruit must thus be annexed to the respective State Judicial Service within the three- tier system. As far as question of different state languages used in subordinate courts of different states is concerned, Commission proposed the best remedy, and recommended that recording of deposition in courts, should be in two languages - one in State language to be recorded by a Court officer and the other in English by the Presiding officer. Moreover, as in every state, the eligibility conditions and criteria for selection of District Judges is almost the same, there is no question why these cannot be integrated to form a unified national cadre. There are few obstacles in the path of constituting an IJS on the lines of IAS, but these can be easily tackled after completing certain modalities and establishing NJSC like the UPSC as a central and nodal body for making selection through AIJS.
That critics of IJS may say that a district judge coming from a different linguistic region will face the problem of language in assessing and tackling critical legal and other issues of facts, which will affect the quality of justice. Language may be a problem but that should not be an argument for straightaway rejecting the idea. Young recruits can easily learn the local language and adapt themselves to local conditions unlike older people. Nor should the finances involved in the formation of such a judicial service pose any problem. In fact, the amounts collected as court fees, at least, should be spent for this purpose instead of being utilized as a source of general revenue of the States. Figures from the Law Ministry show that income generated from court fees is more than the expenditure incurred on the administration of justice. Government should take appropriate steps to establish IJS and to bring about uniformity in designation of judicial officers in both civil side and criminal side. Proper accommodation and a working library at the residence of each judicial officer have to provided.
That petitioner’s full name is Ashwini Kumar Upadhyay, Contact-8800278866, aku.adv@gmail.com, PAN-AAVPU7330G, ADHAR-659982174779.
That petitioner has not filed any other petition except WP (C) 5854/2016, either in this Hon’ble Court or in any other High Court in India seeking same and similar directions as prayed in the present writ petition.
That there is no requirement for moving concerned government authority for relief sought in the present writ petition. There is no other efficacious, economic and alternative remedy available to the petitioner except for approaching this Hon’ble Court by way of this petition.
That the facts constituting cause of action accrued on 14-04-2014 and every subsequent date when Hon’ble Prime Minister Sh. Modi said that “if voted to power, he will set up Special Courts to try the tainted MPs and MLAs and send the guilty behind bars within one year”, but not taken appropriate steps in this regard.
That in absence of IJS under the Article 312, neither the fundamental right of fair trial and speedy justice in spirit of the Article 21 nor equal opportunity in spirit of Article 16 can be secured to citizens, thus causes injury.
That there is no civil, criminal or revenue litigation, involving petitioner, which has or could have a legal nexus, with the issue involved in this petition. This PIL is totally bona-fide with the sole purpose of larger public interest and in interest of justice.
GROUNDS
That petitioner begs to file the present writ petition inter-alia on the following grounds.
BECAUSE the prevailing system of the appointment of judges neither attracts the best talent to Judiciary nor provides equal opportunity to all prospective Advocates in spirit of Article 16 of the Constitution.
BECAUSE the prevailing system of the appointment of judges has been failed to secure fundamental right of fair trial and speedy justice to all the citizens in spirit of Article 21 of the Constitution.
Because in a catena of decisions, Hon’ble Supreme Court has endorsed the establishment of All India Judicial Service in accordance with Article 312 of the Constitution.
BECAUSE the IJS on the lines of IAS, a National Judicial Service Commission like the UPSC and uniform and comprehensive training to all the trainee judges at National Judicial Academy is not only necessary to secure fundamental right of fair trial and speedy Justice but also essential to promote unity and integrity of the nation.
BECAUSE Article 312 inter-alia provides: “The Parliament may by Law provide All India Services including an All India Judicial Service” and it is the duty of the State to implement Article 312 in consonance with Article 16 of the Constitution of India without further delay.
BECAUSE citizens are losing their faith due to very long pendency in Courts and the way, our judicial system is working, specially the subordinate courts. There is danger to the very idea of the Rule of Law, Equality before the Law and Equal protection of the Laws.
BECAUSE the poison of nepotism prevailing in the judicial appointment needs to be stemmed at the earliest to regain the confidence of citizens, particularly the trust of the best prospective Advocates, willing to join the judiciary.
BECAUSE many countries have achieved very good results by conducting common written examination and providing uniform training to all the trainee Judges thus deserves similar implementation in our country too.
BECAUSE unless equality and uniformity is made foremost guiding factor in judicial appointment process, nepotism and inequality will emerge more strongly and nation as a whole would suffer irreparably and social and economic differences would be more wider.
BECAUSE the fundamental right of fair trial and speedy justice in spirit of the Article 21 and Preamble of the Constitution would be meaningful, only when all the Judges will be selected through common written examination followed by viva voice, and a uniform and comprehensive training would be imparted to all the trainee judges at National Judicial Academy.
BECASUE the proposal of introducing an Indian Judicial Service (IJS) on the lines of Indian Administrative Service (IAS) is not new. Many Commissions, Expert Committees, Eminent Jurists and Prominent Judges; from the learned first Attorney General of India to former Chief Justice of India, reiterated the importance and urgent need of the All India Judicial Service. Law Commission of India has thrice- in its first, eighth and 116th Report called for IJS. The Apex Court has endorsed the creation of IJS. [AIJA vs UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555]. Parliamentary Standing Committee in its 64th Report on Law and Justice recommended to establish IJS and directed the Union Government to take appropriate steps in this regard. The first National Judicial Pay Commission and National Advisory Council to the Union Government have endorsed the IJS. On 25.10.2009, Union Government presented a Resolution before Hon’ble Chief Justice of India in this regard. Over and above, Article 312 explicitly provides for the creation of IJS. However, in spite of all these, Government gives lame excuses and sleeping over the matter. As of now, while most government department has ‘All India Service’ recruits, the Judiciary is the only setup that does not have a national level selection process to attract the best prospective Advocates.
PRAYER
For the reasons stated above, it is the most respectfully prayed that this Hon’ble Court may be pleased to:
issue a writ, order or direction or a writ in the nature of mandamus or such other writ, order or direction as may be necessary; directing the Respondent to establish All India Judicial Service under Article 312 read with Article 16, in spirit of Resolution dated 25.10.2009, presented by the Union Law Minister to Hon’ble Chief Justice of India;
issue a writ, order or direction or a writ in the nature of mandamus or such other writ, order or direction as may be necessary; directing Respondent to provide appropriate manpower and infrastructure to reduce the pendency of cases to 3 years in spirit of Resolution dated 25.10.2009, presented by Union Law Minister to Hon’ble CJI;
issue a writ, order or direction or a writ in the nature of mandamus or such other writ, order or direction as may be necessary; directing the Respondent to implement the Resolution dated 25.10.2009 in letter and spirit on priority
issue such other writ, order or direction, as this Hon’ble Court may deem fit to secure fair trial and speedy justice in spirit of the Article 21 and to provide equal opportunity to prospective Advocates in judge’s appointment in spirit of the Article 16 and allow cost of petition to petitioner.
Ashwini Kumar Upadhyay
   (Petitioner-in-Person)
          Advocate En. No-D/1119/12
  15, New Lawyers Chambers
  Supreme Court, New Delhi-1
IN THE HIGH COURT OF DELHI AT NEW DELHI
     WRIT PETITION (C) NO ……… OF 2016
(PUBLIC INTEREST LITIGATION UNDER THE ARTICLE 226)
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner-in-Person
Verses
Union of India ...Respondents
AFFIDAVIT
I Ashwini Kumar Upadhyay aged 42 years, S/o Sh. Suresh Chandra Upadhyay, Office at 15, New Lawyers Chambers, Supreme Court of India, New Delhi-110001, R/o G-284, Govindpuram, Ghaziabad-201013, at present at New Delhi, do hereby solemnly affirm and declare as under:
That I am the sole petitioner above named. I am well acquainted with facts and circumstances of the case and as such, I am competent to swear this affidavit.
That I have filed the present writ petition as Public Interest Litigation. There is no personal gain, private motive or oblique reasons in filing this petition. This writ petition is totally bona-fide with the sole purpose of larger public interest and in the interest of justice.
That I have gone through the Delhi High Court (Public Interest Litigation) Rules, 2010 and do hereby affirm that the present Public Interest Litigation is in conformity thereof.
I have no personal interest in the litigation and neither myself nor any body in whom I am interested, would in any manner benefit from the relief sought in the present litigation save as a member of the General Public. This writ petition is not guided by self-gain or gain of any person, institution, body and there is no motive other than the larger Public Interest in filing this writ petition.
I have done whatsoever enquiry / investigation, which was in my power to do, to collect all data / material which was available and which was relevant for this Court to entertain the present petition. I further confirm that I have not concealed in the present petition any data / material / information which may have enabled this Court to form an opinion whether to entertain this petition or not and / or whether to grant any relief or not.
That I have read and understood the contents of accompanying synopsis and list of dates pages ( D-J ) and writ petition paras (1- 59) pages (1-47 ) and total pages    (1-88 ) which are true and correct to my personal knowledge and belief. Annexure filed along with this writ petition are true copies of their respective originals.
That the averments made in this affidavit are true and correct to my personal knowledge and belief. No part of this Affidavit is false nor has anything material been concealed there from.


DEPONENT
(Ashwini Kumar Upadhyay)


VERIFICATION
I, the Deponent do hereby verify that the contents of above affidavit are true and correct to my personal knowledge and belief. No part of it is false nor has anything material been concealed there from.
I solemnly affirm today i.e. Saturday, the 5th day of November 2016 at New Delhi.

DEPONENT
(Ashwini Kumar Upadhyay)


D.O.No.F.2(6)/85.LC
November 27. 1986
Shri Ashok Kumar Sen,
Minister of Law & Justice,
Government of India,
Shastri Bhawan, New Delhi
Dear Minister for Law & Justice,
I have great pleasure in forwarding to you One Hundred Sixteenth Report of the Law Commission on the topic: “Formation of an All India Judicial Service” (Item No 9 of the terms of reference) in the context of studying judicial reforms.
As desired in your letter dated February 17, 1986 by which you conveyed to the Law Commission, the decision of the Government to entrust the work of recommending judicial reforms to the present Law Commission to accord top priority to the same, the Law Commission rescheduled its plan of action. The first report dealt with rural litigation, the second report dealt with restructuring courts in relation to tax laws. This report deals with formation of an All India Judicial Service. Immediately after this report, the Law Commission hopes to forward the report recommending a comprehensive scheme for the training of judicial officers (Item No 5).
I was given to understand that the Government of India is very keen to usher in basic judicial reforms. The reports already submitted and the one, which is in the pipeline, would give the government of India enough material for enacting comprehensive legislation to usher in judicial reforms.
I hope that the report will be expeditiously placed before the parliament and printed and circulated so that concrete follow-up action can be taken soon.
With Regards
Your sincerely.
(Sd.) D.A. Desai

Encl: A Report
NATIONAL CONSULTATION FOR STRENGTHENING THE JUDICIARY
TOWARDS REDUCING PENDENCY AND DELAYS
    (New Delhi – October 24-25, 2009)
Inaugural address by Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India
Dr. M. Veerappa Moily (Union Minister for Law and Justice)
Dr. N.R. Madhava Menon,
Sh. Goolam E. Vahanvati (Attorney General for India)
Sh. Gopal Subramanium (Solicitor General of India)
Sh. Gopal Krishna Pillai (Union Home Secretary)
Sh. T.K. Vishwanathan (Law Secretary)
Esteemed colleagues from the respective High Courts,
Members of the Bar and Ladies and Gentlemen,
I am grateful to all of you for making it convenient to attend this two-day national level consultation. The speakers before me have already outlined some of the key concerns, which should shape our collective response to the unacceptably high levels of pendency before our Courts. It is common knowledge that the root causes for the high pendency levels are the chronic shortage of judicial officers as well as inadequate budgetary allocations. While the erstwhile colonial government may have deliberately under-staffed and under-funded the judicial branch, the problem of a low ‘judge to population’ ratio has unfortunately persisted till the present times. I am not here to engage in a blame-game but I am simply stating a problem for which we are collectively responsible.
In recent years, the disposal rates of judicial officers have actually been improving with each passing year but the rate of institution of fresh proceedings is far higher. This is but natural in a society where millions of individuals are gradually emerging from the clutches of poverty, illiteracy and status-based discrimination. With a more egalitarian socio-economic order, more and more people will gain the capacity and the confidence to approach the judicial system. In this sense, we must recognise that a strong and efficient judicial system is not only a pre-requisite for enabling social justice but also a public service which will be increasingly demanded by more citizens. While the existing pendency figures may be a cause for worry by themselves, we must prepare for a far bigger ‘docket explosion’ in the future. The onus is on us to improve access to justice for those sections of society who were excluded in the past. Hence, our agenda for judicial reforms should not only focus on reducing the existing pendency and arrears, but it should also account for the incremental challenges that await us in the years to come.
The comparison between judicial statistics from different States also shows that the litigation rates in various States do not bear a consistent correlation with their respective population. This means that in some States, a larger proportion of the population has been approaching the Courts as compared to that of other States. What is especially worrying is the immense disparity between the number of civil and criminal cases instituted in backward and insurgency-hit areas. A perusal of the pendency figures indicates that while there are more civil cases filed in developed areas, the reliance on the civil justice system is shockingly low in States such as Bihar, Jharkhand, Chattisgarh, Jammu and Kashmir as well as the North-Eastern 3 States. This disturbing trend could have two explanations – one, that the number of courts if grossly inadequate, and secondly, that ordinary citizens are consciously not bringing their civil disputes before the judicial system. If the second of these explanations holds good, then it indeed calls for targeted interventions.
Since I am a representative of the judicial system, I must account for some of the aspects that call for urgent action. These issues can be broadly grouped under three categories, namely those of:
1. Manpower Planning
2. Physical Infrastructure &
3. Procedural Innovations.
While I am qualified to speak about issues such as judicial appointments and the filling up of vacancies, it is better to leave the technical issues to those who are in the know. We must keep an open mind in addressing these issues. In order to make effective interventions, there might be a need to depart from some well-established practices and opt for radical changes in our judicial system. While the judiciary enjoys an exalted status in the opinion of the public, there must also be a willingness to change with the times.
Manpower Planning
The first and foremost requirement is that of progressively increasing the number of judges, especially at the subordinate level. As per the available statistics, as of June 30, 2009 there were 2,783 (Two Thousand Seven Hundred and Eighty Three) vacancies out of 16,946 (Sixteen Thousand Nine Hundred and Forty Six) sanctioned posts in the subordinate judiciary. There are numerous reasons for so many vacancies – the main reason being the numerous lucrative career options that are open to law graduates. It is also perceived in many quarters that it is only those who are unable to build a practice of their own, who appear for the judicial services examinations. There must be some pro-active measures to mitigate this perception. The prevailing system for recruiting judicial officers needs to be overhauled in order to attract the best available talent. Apart from improving pay-scales and service-conditions, there must also be a commensurate improvement of prospects for career-advancement.
However, it has been argued in some quarters that the recruitment process in most States is itself quite lengthy and cumbersome, thereby leading to the piling up of vacancies. It must be highlighted here that an elaborate selection process is necessary to ensure that only competent and suitable persons join the judiciary. The recruitment process is coordinated by the respective High Courts and the State Public Service Commissions who are responsible for conducting the written examinations and interviews. Hence, there are always bound to be some vacancies on account of the time needed to conduct a thorough evaluation of the candidates, but nevertheless efforts must be made to keep the vacancies within proper limits.
There is, of course, scope for improving the examination-process by incorporating problem-based questions that test the candidates’ analytical and communication skills rather than those of rote-memorisation. Some High Courts have also taken the initiative of organising pre-appointment training for selected candidates in order to equip them with necessary skills such as research, judgment-writing and case-management. In this regard, we must wholeheartedly support the activities of the National Judicial Academy (NJA) and the various State Judicial Academies that organise periodic training programmes for serving judicial officers. It is only through constant upgradation of knowledge, that our judicial officers will be able to tackle the challenges before them.
Another proposal for improving the quality of subordinate courts is the creation of an All India Judicial Service (AIJS). This would entail the formation of an All-India cadre for officers appointed at the rank of Additional District Judge (ADJ). The recruitment would be through a national-level examination and it is suggested that upto 25% of the officers in each State could be drawn from this All-India cadre. However, this proposal has faced some criticism since there are apprehensions that individuals belonging to one State may face language problems when they are posted to another state. This can be addressed by factoring in the candidate’s language skills while deciding on the location of their assignment. The main objective is to ensure a degree of uniformity in the examination process.
An important measure taken for expanding the subordinate judiciary is that of the Gram Nyalayas Act. It envisages the creation of courts at the level of Intermediate Panchayats or a group of contiguous Gram Panchayats. These village-level courts would be manned by judicial officers of a rank equivalent to a Civil Judge (Junior Division) or a Judicial Magistrate First Class (JMFC) and they will be known as ‘Nyaya-Adhikaris’. It has been estimated that nearly 4,000 judicial officers will be needed in order to implement this scheme. I must also lay stress on the fact that these officers will be chosen through the regular judicial services examination conducted by the respective State governments. There is tremendous potential in the Gram Nyayalayas scheme since the intention is to reduce the costs that are borne by litigants in approaching courts located at district-centres. The underlying philosophy is of course to bring justice to the doorsteps of rural citizens. The Central Government has already assured financial assistance to the State Governments for the purpose of establishing the ‘Gram Nyayalayas’.
Coming to the High Courts, I must reiterate here that there has been an upward revision in the sanctioned strength of several High Courts in recent years. The Central Government has promptly approved of the requests for increasing the number of judges at the High-Court level. However, there exists a disparity in the proportion between the number of High Court judges and the respective population of different States. This is so because the rate of institution, disposal and pendency of cases is also taken into account for deciding the strength of the judges. While the service-conditions for High Court judges have seen a substantial improvement, we still need to dwell on how to attract qualified persons to a career in the higher judiciary. One strategy is, of course, that of selecting more persons from the subordinate judiciary.
As far as appointments to the Supreme Court are concerned, I must say that we are bound by the procedure in accordance with the Constitution Bench decisions given by our predecessors in 1993 and 1998. The proper forum for suggesting changes to the appointments process is the Union Parliament. It would of course not be proper for me to enter the debate at this stage.
Physical infrastructure
A vast majority of our Magistrates and Civil Judges work with very poor infrastructural facilities. Even the District and Sessions Judges face numerous obstacles in their daily routine on account of poor maintenance of court complexes. While the progressive expansion of the judiciary through measures such as the Gram Nyalayas Act should be supported, there is also a compelling need to ensure the proper maintenance of the existing courts. This calls for consistent financial commitments from the respective State governments. Independent studies have shown that the budgetary allocations for the judiciary form a very small portion of the aggregate public expenditure. Some commentators have suggested that the picture will drastically improve even if a large portion of the Court-fees that is collected at different levels is re-invested into the judicial system. It must be recognised that expenditure directed at the judicial system will help in preventing the long-term costs associated with protracted litigation as well as the intangible costs that are incurred by society on account of unresolved disputes.
Apart from financial commitments, the judiciary has also been making attempts to streamline its own administration. One such measure is a comprehensive system for compiling reliable statistics on the institution, disposal and pendency of cases at all levels. The National Informatics Centre (NIC) has implemented a computerised system for compiling this data from the Supreme Court and the various High Courts which are also responsible for collecting data from the subordinate courts lying in their respective territorial jurisdictions. These statistics are compiled on a monthly, quarterly and annual basis with a clear indication of various subject categories. The availability of accurate and reliable judicial statistics is of course a necessity to implement the proposed ‘National Arrears Grid’. It is important for judges, administrative staff as well as policy-makers to study the statistics at length for identifying the root causes behind pendency in particular areas.
Of particular note, is the implementation of the E-Courts project under which thousands of judicial officers have been equipped with computer facilities. Information Technology (IT) tools are being progressively used in the administration of justice – especially for purposes such as notification of cause-lists as well as the publication of orders and judgments on court websites. Efforts are underway to devise comprehensive programmes which will help advocates, litigants and the general public to easily track the progress of ongoing cases. The National Judicial Academy (NJA) at Bhopal has been developing a ‘Case Signalling System’ for this purpose which will also generate reliable empirical data on the problematic stages in the proceeding of each case.
In order to implement these technological solutions, the judiciary must of course hire the software and hardware professionals who have the relevant expertise. The efficiency of the judges can be greatly enhanced if they are ably supported by the administrative staff which looks after numerous routine functions such as filing, correction of records, listing and eventual processing of decisions. With the increased use of IT facilities, the performance of these functions can also be made more smooth and litigantfriendly. In the larger scheme of things, due emphasis must be placed on recruitment methods and service-conditions of the various personnel who work in the judicial system.
Procedural Innovations
While expanding the size of the judicial system is an important objective, I must also highlight the importance of pursuing several other strategies to streamline the administration of justice. All of you are conversant with the benefits of resorting to Alternative Dispute Resolution (ADR) methods, especially since civil judges are now empowered to refer disputes for resolution through Permanent Lok Adalats, Mediation and Negotiated settlements. Most of the High Courts and numerous District Courts have established ‘Mediation’ centres for the twin purpose of resolving disputes as well as training judicial officers and lawyers in these methods. For many categories of cases filed before the courts – such as those relating to traffic offences and petty property disputes, methods such as conciliation and negotiation are far more appropriate than the traditional model of adversarial litigation.
While the Legal Services Authorities have been increasingly organising Lok Adalats for many categories of disputes, it is also important to inform the general public about the utility of these methods. On account of incomplete information about the various options, an aggrieved party often chooses to proceed with lengthy-adversarial litigation instead of choosing more conciliatory methods. Even the Code of Criminal Procedure was amended in 2006 to include provisions for ‘plea-bargaining’ but public awareness about the same is quite limited. It goes without saying that all of us need to think about and promote solutions that need not always be ‘Courtcentric’.
The Union Law Minister as well as the Attorney General and the Solicitor General have repeatedly stressed on reducing the volume of litigation that involves the government as a party. This is indeed a welcome trend. They have already spoken at length on how to strengthen administrative remedies under the various statutes and on how to streamline the representation of the governments’ interests before the courts. It goes without saying that judges should not be asked to second-guess and examine administrative actions as a matter of routine. Judicial interference should be confined to patent acts of illegality and unreasonableness. The Law Officers and Standing Counsel who represent the various Ministries, Departments, Authorities and Public Sector Undertakings (PSUs) must also work to promote conciliatory methods for the purpose of addressing the grievances of citizens, public employees as well as disputes among government agencies themselves.
There are many other issues which deserve our collective attention and I hope that all of you will utilise the working sessions scheduled for today and tomorrow to chalk out some concrete and decisive resolutions. I would like to conclude by thanking the Department of Justice as well as the Indian Law Institute for taking on the responsibility of organising this national-level consultation.
Thank You!








































NATIONAL CONSULTATION FOR STRENGTHENING THE JUDICIARY
TOWARDS REDUCING PENDENCY AND DELAYS
(24-25 OCTOBER 2009)
  RESOLUTION DATED 25TH OCTOBER 2009
The Participants,
Reiterating the Constitutional promise to deliver equal justice under law to all citizens and to provide access to justice to all, particularly the weaker sections of society
Noting that the President of India in her address to the Joint session of Parliament delivered on June 3 rd 2009 had emphasized the need for a roadmap for judicial reforms
Noting that the Prime Minister of India in his address to the Conference of Chief Ministers and Chief Justices on August 16th 2009 described the huge arrears and case backlogs as the prime source of concern in relation to the Indian legal system
Recalling the consensus of all those present, including the Honourable Chief Justice of India, the Honourable Union Minister for Law and Justice, the Honourable Attorney General of India and the Learned Solicitor General of India and others that the pendency and delays in the courts calls for urgent and immediate action
Reaffirming the commitment of those present including the Justices of the Supreme Court of India and other members of the Judiciary, Judicial officers, Law officers, Members of the Bar, representatives of the Union Ministry of Law & Justice and members of the public to dedicate themselves to reduce the pendency of cases from 15 years to 3 years and to work together to implement the various steps required to ensure expeditious, quality and inclusive justice
Taking Note of the Vision Document presented by the Honourable Union Minister of Law and Justice to the Honourable Chief Justice of India
Adopt the Vision Statement and Action Plan as a public commitment for redesigning the justice delivery system to reduce pendency and delays
Urge all constituents to recognise their special role and responsibility to implement the Action Plan
Decide that to implement the Action Plan the National Arrears Grid and the Special Purpose vehicle be incorporated no later than 26th November 2009, Law Day
Recommend the High Court’s make available all the data for the National Grid by 30th November 2009
Also decide that the implementation of the Action Plan should focus on human resource development, infrastructure development and procedural reforms
Commit to comprehensive human resource development in all sectors including judges lawyers, law officers, prosecutors and court staff in an inclusive manner
Further commit to efficient and optimum utilization of existing infrastructure and improvements and additions to physical and technological infrastructure
Also commit to specific implementation of procedural reforms at all levels in a time bound manner including curtailment of adjournments, introducing a system of continuous hearing in civil cases and criminal trials and expediting execution proceedings by removing unnecessary delays
Acknowledge the initiative undertaken by the Government of India to frame a National Litigation Policy by 31st December 2009 with a view to ensure conduct of responsible litigation by the Central Government and urges every State Government to evolve similar policies
Welcome and Applaud the idea of an SPV as an autonomous and flexible means to provide infrastructural, managerial, technological and manpower services to the Judiciary and the singular contribution of Dr. Sam Pitroda in the conceptualisation of the SPV and the implementation of its programs
Bearing in mind that all such changes should focus on inclusive growth reaching all levels of society and acknowledging the need to create an Indian model
Request the Central Government to make available adequate and committed resources to implement and support the Action Plan
Recognize the need for mediation and other methods of dispute resolution as an organized mainstream justice delivery mechanism
Further recognize the principle behind judicial appointments should be delivery of quality and expeditious justice and public service
Commend for consideration the establishment of a All India Judicial Service through an open competitive examination ensuring the best possible selection
Welcome the suggestion of the Honourable Chief Justice of India for a notional increase in the sanctioned strength of judges by 25 % in order to enable the judiciary to make advance selection for appointment as soon as the vacancy arises
Also recognise the need for appointment of ad hoc judges at all levels of the judiciary on a temporary basis from amongst retired judges and members of the bar
Recommend the creation of a National Pool of Judicial Officers from retired judges to enable persons from the pool to be appointed as HC judges in various states
Recommend assigning special judges to deal with all pending criminal cases where the term is less than 3 years
Welcome and Applaud the leadership given the by the Chief Justice of India, Judges of the Supreme Court and Chief Justices of the various High Courts and their colleagues, Bar Councils of India and Bar Associations for their positive role in initiating and furthering a meaningful dialogue to further the objectives of the vision document










JOINT VIEWS OF SRI MN VENKATACHALIAH AND SRI JS VERMA,
FORMER CHIEF JUSTICES OF INDIA
ENDORSED BY SRI VR KRISHNA IYER, FORMER JUDGE, SUPREME COURT OF INDIA
Note re: NJC 06.08.2012
The ‘Foundation for Democratic Reforms’ headed by Dr. Jayaprakash Narayan has prepared a document containing suggestions for the needed judicial reforms for effective preservation of the ‘Rule of Law’ in our democratic polity. It has been sent to us seeking our views in this behalf.
We have perused the document and given our most anxious consideration to its contents relating to a matter of utmost significance to our polity. The main issues therein are:
(i)creation of an All India Judicial Service;
(ii) Appointment of judges to the Supreme Court;
(iii) Appointment of judges to the High Courts; and
(iv) Removal of errant judges of the superior courts.
We have also considered the various options suggested as the remedial measures for the improvement of the existing system.
As desired, we express our views on the issues, here after:
Background
The Background Paper is comprehensive and indicates the perspective in which the issues require to be considered. We express and place on record our appreciation of the Background Paper.
I--All India Judicial Service
We agree with the urgent need to constitute the All India Judicial Service envisaged by Article 312 of the Constitution of India, at par with the other All India services like the I.A.S. to attract the best available talent at the threshold for the subordinate judiciary, which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Court. The general reluctance of competent lawyers to join the Bench even at the higher levels adds an additional urgency to the problem. AIJS will, in due course of time, also help to improve the quality of the High Courts.
The modalities for creating the AIJS to achieve its avowed purpose, and the necessary constitutional changes and the legal frame-work can be worked out after acceptance of the proposal in principle.
II--Appointment of the Judges in the Supreme Court
The current perception is of a felt need for constitution of a National Judicial Commission for making the appointments of judges in the higher judiciary. Recent experience impels us to agree with this perception. Thus, the only issue is of its composition for which several options are suggested in the Background Paper. We give our views on the composition of the NJC, after some general remarks equally applicable to the appointments, both in the Supreme Court and the High Courts.
In our view, the composition of the NJC should be such that neither the judiciary, nor the executive gets the impression of having the veto power, to develop the spirit of accommodation for the other point of view. The constitutional purpose of the process is joint and participatory to find the most suitable candidate for appointment. It will better serve the purpose if the opinion of each organ which is better equipped in the particular field is given the due weight e.g. judiciary’s opinion regarding the legal acumen, executive’s opinion relating to antecedents/character of the candidate and other relevant criteria.
It is also important that a doubtful person be not considered for appointment, and those considered have impeccable credentials. For this reason, if no consensus can be reached or the members of the NJC are evenly divided in their opinion, it is safer to drop the proposal from further consideration.
In our considered view, the composition of the NJC for making the appointments should be, as under:
For the Supreme Court
1. The Vice President of India …..Chairman
2. The Prime Minister of India or his Nominee Union Minister …..Member
3. The Chief Justice of India …..Member
4. The Two senior most Puisne Judges of the Supreme Court …..Member
There have been suggestions to enlarge the NJC and have two or more members nominated by the President. However, it may be desirable to constitute the NJC with all ex-officio members comprising the Vice-President as the Chair, and representatives of the Government and Judiciary to ensure accountability by virtue of their office. In the absence of any defined yardsticks for selection of members of NJC (in addition to exofficio members), such a nomination of additional members may pose problems and raise questions of bias.
Instead, it may be desirable to have a wider consultation with participation of other eminent citizens and jurists, and a wide search to identify the eligible pool of candidates from judges as well as jurists; and then to have the list publicly displayed to elicit comments, if any, regarding the antecedents of the candidates or suggestion of any other suitable names. Wide publicity to the process of identification of suitable candidates and views of experts as well as lay persons can be solicited in this manner without addition of another body whose composition may be problematic. This whole process of wider consultation should be faithfully documented. In particular, the NJC should recommend appointment of judges based on the principle of unanimity and consensus. In other words, if even one or two members express valid reservations about the suitability of any candidate, such a candidate should not be considered for appointment. Only persons with unimpeachable integrity, blemishless record, and unquestioned competence should be recommended for appointment.
The Chief Justice of India should consult the five senior most judges of the Supreme Court, and any other judge/judges of the Supreme Court who had earlier worked in the High Court from which the new judge is to be drawn.
In the case of direct appointment from the Bar, or of a jurist, a wider consultation with those not likely contenders may become necessary.
The NJC must ensure a wide consultation by ascertaining the views of all those likely to contribute in this behalf. However, the composition of the NJC must be confined only to constitutional functionaries.
It is imperative that all consultations made by the NJC are documented to form part of the record, and the same is shared with all members before the final decision.


III--For the Appointment to the High Courts
The composition of the NJC could be as under:
1. The Chief Justice of India ….Chairman
2. The Chief Justice of the High Court ….Member
3. The Chief Minister of the State concerned …..Member
The Chief Justice of India must consult the judge/judges of the Supreme Court coming from the concerned High Court. The Chief Justice of the High Court must consult the five senior most judges of his High Court. All consultations must be documented and should form part of the record shared with all members before making the decision.
The general remarks/principles as in the case of the Supreme Court appointments are to apply mutatis mutandis for the High Courts.
IV--Removal of Errant Judges
Past experience has revealed the futility of the existing procedure for removal of any such judge, even after authentic evidence of his/her proved misbehaviour. Judicial accountability being a facet of judicial independence, lack of an effective mechanism to enforce judicial accountability of the errant in the higher judiciary has eroded its credibility considerably. This poses a grave danger to the polity.
We are in general agreement with the composition of the National Oversight Committee (NOC), the Scrutiny Panels and the Investigation Committee/Panels etc. as per the reported provisions of the Judicial Standards and Accountability Bill, 2010. (See details at P. 24 of 57 in Part A of the above document)
However, there is one aspect that needs specific provision. As soon as the concerned authority gives an adverse finding of misbehaviour by an errant judge, the Chief Justice of the Court must deny to him/her any judicial and administrative functions; and if the errant is the Chief Justice of the Court who fails/refuses to proceed on leave, the President of India should invoke the power under Article 223 of the Constitution and appoint an Acting Chief Justice to replace him/her.
Minor punishments (other than removal) like censure etc. should not be in the public domain as it would erode and undermine individual and institutional credibility. That should remain private between the Chief Justice and the concerned judge to correct but not to denigrate the errant. The need for serious action must invariably be followed only by removal.
The process of removal of Judges of Higher Courts through impeachment under Article 124(4) has proved to be both cumbersome and unsatisfactory. Therefore, if there is political consensus, it may be desirable to amend the process of removal of judges. In such a case, based on the findings of the Oversight Committee envisaged under The Judicial Standards and Accountability Bill, the NJC will be empowered to recommend removal of a Judge on the ground of proved misbehaviour or incapacity.
Conclusion
Finally, it is instructive to recall Dr. Rajendra Prasad’s words of wisdom in the Constituent Assembly about the working of the Indian Constitution. He then said: “…the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who work it…”. Amartya Sen echoed the same sentiment in ‘The Idea of Justice’, saying: “…The success of democracy is not merely a matter of having the most perfect institutional structure that we can think of. It depends inescapably on our actual behaviour patterns and the working of political and social interactions. There is no chance of resting the matter in ‘safe’ hands of purely institutional virtuosity”.
To begin with, this method has to be tried. If in its working also defects surface, steps to cure those defects will have to be taken, as we endeavour now according to the felt need.
N.B. It is imperative that the chairperson and members of the above Committees perform this public duty without receiving any salary/remuneration, other than the facilities/infrastructure needed strictly for the performance of this duty. This must be expressly stated in the scheme drawn for the purpose.
These are our views in this matter.
M.N. Venkatachaliah & J.S. Verma
   Former Chief Justices of India












 PARLIAMENT OF INDIA
RAJYA SABHA
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
Rajya Sabha Secretariat, New Delhi
December, 2013/ Agrahayana 1935 (Saka)
     REPORT NO. 64    
SIXTY-FOURTH REPORT
The Judicial Appointments Commission Bill, 2013
(Presented to the Rajya Sabha on 9th December, 2013)
(Laid on the Table of Lok Sabha on 9th December, 2013)


ACRONYM
AIJA- ALL INDIA JUDICIAL SERVICE
AIR- ALL INDIA RECORD
ARC- SECOND ADMINISTRATIVE REFORMS COMMISSION
JAC- JUDICIAL APPOINTMENTS COMMISSION


C O N T E N T S
1. COMPOSITION OF THE COMMITTEE
2. INTRODUCTION
3. REPORT
A. OVERVIEW
B. NEED FOR JUDICIAL APPOINTMENTS COMMISSION
C. PROVISIONS OF THE BILL AND SUGGESTIONS RECEIVED FROM STAKEHOLDERS
D. COMMITTEE'S RECOMMENDATIONS/OBSERVATIONS
4. RECOMMENDATIONS AT A GLANCE
























COMPOSITION OF THE COMMITTEE  
(Constituted on 31st August, 2013)
1. Shri Shantaram Naik  - Chairman
RAJYA SABHA
2. Ms. Anu Aga
3. Shri Ram Jethmalani
4. Shri Sanjiv Kumar
5. Shri Parimal Nathwani
6. Shri Ram Vilas Paswan
7. Shri Sukhendu Sekhar Roy
8. Shri Ramchandra Prasad Singh
9. Dr. Abhishek Manu Singhvi
10. Shri Bhupender Yadav
LOK SABHA
11. Maulana Badruddin Ajmal
12. Shri T. R. Baalu
13. Shri E.T. Mohammed Basheer
14. Shri N.S.V. Chitthan
15. Shri P.C. Gaddigoudar
16. Shri D.B. Chandre Gowda
17. Shri Shailendra Kumar
18. Shri Jitender Singh Malik
19. Shri Arjun Meghwal
20. Shri Pinaki Misra
21. Shri Abhijit Mukherjee
22. Shri S.S. Ramasubbu
23. Shri S. Semmalai
24. Shri S.D. "Shariq"
25. Smt. Meena Singh
26. Shri Vijay Bahadur Singh
27. Dr. Prabha Kishore Taviad
28. Shri Suresh Kashinath Taware
29. Shri Madhusudan Yadav
SECRETARIAT
Shri Alok Kumar Chaterjee, Joint Secretary
Shri K.P. Singh, Director
Shri Ashok K. Sahoo, Joint Director
Smt. Niangkhannem Guite, Assistant Director
Smt. Catherine John L., Assistant Director
INTRODUCTION
I, the Chairman of the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, having been authorised by the Committee on its behalf, do hereby present the Sixty-fourth Report of the Committee on the Judicial Appointments Commission Bill, 2013 (Annexure-I). The Bill seeks for establishment of the Judicial Appointments Commission for appointments of Judges and transfer of Judges in the higher Judiciary.
2. In pursuance of the Rules relating to the Department-related Parliamentary Standing Committees, Hon’ble Chairman, Rajya Sabha referred the Bill, as introduced in the Rajya Sabha on the 29th August, 2013 and pending therein, to this Committee on the 9th September, 2013 for examination and report within three months.
3. Keeping in view the importance of the Bill, the Committee issued a Press communiqué to solicit views/suggestions from desirous individuals/organisations on various provisions of the Bill. In response thereto the Committee received numerous submissions out of which 32 memoranda containing suggestions from various organizations/ individuals / experts relevant to the issues dealt in the Judicial Appointments Commission Bill, 2013 were forwarded to the Department of Justice for their comments and placed before the Committee for its consideration (AnnexureIII).
4. The Committee heard the presentation of the Secretary, Department of Justice, Ministry of Law and Justice on the provisions of the Bill in its meeting held on the 20th September, 2013. During its Study Visit to Chennai, Mumbai and Jaipur from the 3 rd to the 10th October, 2013 the Committee interacted with the representatives of State Governments, High Courts Bar Associations, Retired Judges, NGOs and other stakeholders on the Bill. The Committee also heard the views of Attorney General of India and Secretary, Department of Legal Affairs, Ministry of Law and Justice on the 22nd October, 2013.
4.1 In its sittings held on the 13th and the 20th November, 2013, the Committee recorded oral evidence of legal luminaries such as Shri Fali S. Nariman, Ex. M.P., Rajya Sabha and Senior Advocate (Supreme Court), Shri Ashok H. Desai, Former Attorney-General of India, Shri P.P.Rao, Senior Advocate (Supreme Court), the Bar Council of India, various experts in the legal fraternity and other stakeholders on the subject matter of the Bill. List of individuals/organizations who deposed before the Committee are appended as Annexure-IV.
5. While considering the Bill, the Committee took note of the following documents/information placed before it :-
(i) Background note on the Bill submitted by the Department of Justice, Ministry of Law and Justice; (ii) Supreme Court judgment in first judges, Second judges & Third Judges cases (iii) Views/suggestions contained in the memoranda received from various organisations/institutions/individuals/experts on the provisions of the Bill and the comments of the Department of Justice, Ministry of Law and Justice thereon; (iv) Views expressed during the oral evidence tendered before the Committee by the stakeholders such as Legal luminaries and Bar Councils/Associations; (v) Replies of Stakeholders to the questionnaire of the Committee on the Bill; (vi) Replies of the Department of Justice as well as stakeholders to the questionnaire of the Committee on the Bill; and (vii) Other research material/ documents related to the Bill.
6. The Committee adopted the Report in its meeting held on the 27th November, 2013. 7. For the facility of reference and convenience, the observations and recommendations of the Committee have been printed in bold letters in the body of the Report. New Delhi; SHANTARAM NAIK 27th November,2013 Chairman, Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice
REPORT
The Judicial Appointments Commission Bill, 2013 seeks to set up a six member body under the Chairmanship of Chief Justice of India for the purpose of recommending names of individuals having outstanding legal acumen and impeccable integrity and credibility to the post of Judges of Supreme Court and the High Courts, to the President of India. It also recommends transfer of judges of one High Court to another to the President of India.
2. The appointment of judges to the Supreme Court and the High Courts, as per the provisions of the Constitution as it existed when Constitution was adopted, was made by the President of India in accordance with the provisions of Articles 124(2) and 217(1) of Constitution of India, respectively. Transfer of Judges from one High Court to another is done by the President of India in accordance with provision of Article 222(1) of the Constitution of India.
A. Overview
3. The appointment of Judges of the Supreme Court and the High Courts and transfer of judges from one High Court to another is primarily an act of the Executive as the President acts in accordance with the advice tendered by the Council of Ministers under Article 74(1) of Constitution of India. But constitutional obligation is cast upon the President of India under Articles 124(2), 217(1) and 222(1) to consult the Chief Justice of India/Chief Justice of High Court concerned for appointment and transfer of judges of higher judiciary. It is evident from the constitutional provisions that the appointment/transfer of judges of higher judiciary is a joint venture of the Executive and the Judiciary in participative and 9 consultative way to protect independence of judiciary which is a "Basic Structure" of the Constitution. Independence and impartibility of judiciary could only be subserved by appointing individuals of outstanding legal calibre and impeccable integrity and credibility with correct consideration to the Bench of higher judiciary.
4. Provisions of Articles 124(2), 217(1) and 222(1) have been interpreted by judiciary from time to time under Article 141 of Constitution. In the S.P. Gupta and Ors Vs Union of India 1982, 2 SCR 365 (AIR 1982 SC, 149), the majority comprising Hon’ble Justices P.N. Bhagwati, Fazal Ali, J Desai, Venkataramiah took the following views:- a) that opinion of Chief Justice of India does not have primacy in the matter of appointments of judges of Supreme Court and High Courts; b) the primacy is with the Union Government of India, which is to take decision after consulting all constitutional functionaries and the Union Government is not bound to act in accordance with the opinion of all constitutional functionaries; and c) the Executive should have primacy since it is accountable to people while the Judiciary has no such accountability.
5. The Judiciary had a consultative role in the appointment of judges of higher judiciary till a nine-judge Bench of the Supreme Court overruled the majority view of the S.P. Gupta case (First Judges Case) in the Advocate on Records Vs Union Of India case (Second Judges Case) in 1993. The majority comprising Hon’ble Justices J.S. Verma, Yojeshwary Dayal, G.N. Roy, A.S. Anand and S.P. Bharucha held as under:- 10 a) Articles 124(2) and 217(1) of Constitution of India impose a mandate in the highest functionaries drawn from the Executive and the Judiciary to perform the constitutional obligation of making appointment of judges to the Supreme Court and the High Courts collectively in consultation with each other; b) in the event of disagreement in the process of consultation, view point of judiciary being primal has to be preferred; c) the Executive can appoint judges only if that is in conformity with the opinion of the Chief Justice of India; d) the opinion of the Chief Justice of India is determinative for transfer of judges of High Courts.
6. Since 1993 the recommendations of the Chief Justice of India for appointment and transfer of judges to higher judiciary became binding upon the Executive which amounted to concurrence with the opinion of the judiciary, the aid and advice tendered by the Council of Ministers to the President of India under Article 74(1) of Constitution got circumscribed by judicial interpretation of Articles 124 (2), 217(1) and 222(1) on the Second Judges Case. It made the judiciary the de facto appointing authority of themselves which was not the intention of Constitution framers as gathered from the Constituent Assembly Debates.
7. The framers of Constitution of India had given absolute discretion neither to the Executive nor to the Judiciary in the participatory and consultative process for appointment of judges to Supreme Court and High Courts. The Constituent Assembly after due deliberations, preferred the word ‘consultation’ to ‘concurrence’ in the process of appointment of judges knowing fully that appointment of Judges was the sole discretion of the Executive (The Crown) under Government of India Act, 1935.
8. The term ‘collegium’ has not been used in the Constitution of India by framers of Constitution. However, the Judiciary through its power of interpretation of Constitution under Article 141 has expanded the term ‘the Chief Justice of India’ occurring in Articles 124 (2), 217 (1) and 222(1) to mean a collegium of select Judges which was three in Second Judges Case(1993) and further extended to five in the Third Judge Cases(1998). In effect, the opinion of the Chief Justice of India really means the views of Chief Justice taken in consultation with his four senior-most colleagues.
9. The Executive made a Presidential reference under Article 143 (1) of Constitution in 1998 where the nine –Judge Bench again confirmed that the opinion of the collegium of Judges have primacy in appointment and transfer of Judges of higher judiciary. In the light of the opinion preferred by the Supreme Court, a detailed Memorandum of Procedure for the purpose of appointment and transfer of Judges of higher Judiciary was prepared by the Department of Justice, Ministry of Law and Justice.
10. While giving advisory opinion to the President of India in 1998, the Judiciary kept a condition before the then Government that the apex Court would tender the opinion if law laid down in Second Judges Case is considered binding upon the Government and the opinion to be tendered by them would also be binding upon the Government of India. The then Attorney General had accepted the condition of the Judiciary on behalf of Government of India and as a result of which the primacy of opinion of collegium of Judges in the appointment and transfer of Judges to the higher Judiciary has the validity of law of land till now.
B. Need for Judicial Appointments Commission
11. The Constitution (One Hundred and Twentieth Amendment) Bill, 2013, provides for setting up of Judicial Appointments Commission by inserting Article 124(A) to Constitution of India and also amending Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed Commission are provided in the Judicial Appointments Commission Bill, 2013 which is under examination of this Committee. The proposed legislation is an ordinary legislation and amendable by simple majority.
12. The Commission proposed under both the Bills has to take the place of current collegium of senior-most judges of Supreme Court including Chief Justice of India. As mentioned in the Statement of Objects and Reasons to the Bill, the Judicial Appointments Commission Bill would broad-base the appointment process with equal participation of the judiciary and the executive and make it participatory so as to ensure greater transparency and objectivity in the appointments to higher judiciary. The proposed Commission has the presence of persons of eminence from civil society which is an improvement including nonconstitutional functionaries in the appointment process of judges to higher judiciary.
13. The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding Executive entirely in the collaborative and consultative exercise for appointment of judges to Bench of higher judiciary. Because of its inherent deficiencies in the collegium, as many as approximately 275 posts of judges in various High Courts are lying vacant, which has direct bearing upon justice delivery system and thereby affecting the institutional credibility of judiciary. Arrears in courts are attributed to the large number of vacancies in the Benches of High Courts amongst other reasons. Even Late Justice J.S. Verma, who was one of the authors of Second Judges Case on a later reflection has observed that: “…my 1993 judgment has been both misunderstood and misused. Therefore some kind of rethink is required ….my judgment says that the appointment process of High Court and Supreme Court judges is basically a joint or participatory exercise between the executive and the judiciary both taking part in it”.
14. Two other distinguished jurists of the country, Justice M.N. Venkatachaliah and Justice B.R. Krishna Iyer including Late Justice Verma have suggested creation of National Judicial Commission for transparent appointment procedure to the higher judiciary.
15. Some of the Jurists who appeared before the Committee stated that the proposed Commission has representation from Executive through the Minister of Law & Justice. This will amount to interference of Executive in the appointment of judges and thereby will affect the independence of judiciary. They were of the view that the present system would have worked well had the aspects of transparency and accountability been taken care of. They also had the apprehension that the proposed Bill may not be able to sustain the test of judicial scrutiny.
16. The Committee also came across with the suggestions where some of the witnesses had expressed that the collegium was not transparent and accountability was not inbuilt. Now, through the proposed Commission, assessment of legal acumen would be done by the members of the Commission from judiciary, while members of the Commission from executive will assess antecedent/character of the candidate for appointment to the Bench of higher judiciary. It is expected that the broad base of appointment process will ensure greater transparency and objectivity in the appointments of Higher Judiciary.
17. The Committee acknowledged the recommendation of the Second Administrative Reforms Commission (ARC) in its Fourth Report titled ‘Ethics in Governance’ for establishment of National Judicial Commission.
18. Law Commission in its Two-hundred and Fourteenth Report (2008) has observed that the Indian Constitution provides a beautiful picture of check and balances under Articles 124(2) and 217(1) for the appointment of Judges of the Supreme Court and High Courts where both the Executive and Judiciary have been given an equal and balanced role. This balance has been upset by the Second Judges Case and the original balance of power needs to be restored.
19. Eminent jurists such as Shri M.N. Venkatachaliah and J.S. Verma, Chief Justices of India (Retired), Justice Ravindaran, Supreme Court Judge(Retired) and Professor Madan Gopal have expressed concern at the quality and the system of appointments made to High Courts under the present collegium system where lobbying is rampant and most eligible are often ignored. They have strongly advocated for setting up of Judicial Appointments Commission to select eligible and meritorious candidate for appointment of High Court Judges.
20. The National Commission to Review the Working of the Indian Constitution (2002) recommended on the issue of appointment, transfer and removal of Judges of higher courts as under:- “It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making  such recommendations. The Commission proposes the composition of the Collegium which gives due importance to and provides for the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of Judges. This Commission, accordingly, recommends the establishment of a National Judicial Commission under the Constitution.”
21. The Attorney General for India, in 2010 was of the view that the Memorandum of Procedure for appointment of Chief Justice and Judges of Supreme Court and High Courts do not reflect the correct position in the law and requires to be revised. According to him, the Executive is also a consultee and if appointment can only be made as a result of consensus between all the consultees then a negative opinion from the Executive cannot be ignored or overridden. Another negative opinion can come from any consultee and not from the Executive alone. The entire text of opinion of Attorney General is at Annexure-IV.
22. The same Attorney General of India who appeared before the Committee on the Bill was of the opinion:-  that appointment of judges of higher judiciary is a part of Basic Structure of Constitution and the structure of Constitution as it was at the time of its enactment in 1950 has to be considered from the point view of Basic Structure doctrine of Constitution. Judicial pronouncement in 1993 has altered the Basic structure of Constitution by interpreting the word 'consultation' to mean the 'concurrence' within the meaning of Articles 124(2) and 217(1) of Constitution.
The present collegium which has been evolved through judicial decisions in 90s has received criticism especially from retired Chief Justices and judges for failing to attract outstanding people in legal fraternity to the Bench of higher judiciary thereby affecting independence of judiciary which is one of the Basic Structures of Constitution.
As to the aspect of sustainability of the Bill he averred that Parliament may in its wisdom keep structure and function of Judicial Appointments Commission under a new Schedule to the Constitution to make it difficult for the Government to alter its composition through ordinary legislation in future.
23. None of the democratic countries in the world has the mechanism where Judges are appointing themselves. However, evidence of the mechanism of Commission having presence of Executive therein is found in the United Kingdom, South Africa, Russia, Canada, Sri Lanka, Japan etc.
C. Provisions of the Bill and suggestions received from stakeholders
24. In the course of examination of the Bill, the Committee came across the various suggestions from the witnesses and also from those who submitted their views in writing. The Committee went through the suggestions made by stakeholders before it. Some of the important suggestions which drew the attention of the Committee on the provisions of the Bill are enumerated in the succeeding paragraphs.
Structure of JAC
25. The composition of Judicial Appointments Commission as provided in the Bill (Clause 3) is as under:-
Chief Justice of India - Chairperson - Ex-officio;
Two senior most Judges of Supreme Court next to Chief Justice of India - Member - Ex-officio;  Union Minister in-charge of Law and Justice - Member Ex-officio; and
Two eminent persons to be nominated by a Committee comprising the Prime Minister, Chief Justice of India and Leader of Opposition in the House of People - Members.
26. The Secretary to Government of India in the Department of Justice would be the convener to the Commission.
27. Two eminent persons shall be nominated for a period of three years without being re-nominated.
28. The important suggestions on the composition of Judicial Appointments Commission are as under:-
Structure and functions of Judicial Appointments Commission needs to be protected under Article 368 of the Constitution of India to safeguard independence of judiciary which is a Basic Structure of Constitution;
The area of eminence for the Eminent members in the Judicial Appointments Commission to be specified in the Bill;
Consensus in the Commission may be near impossible always. To avoid the tie in the Commission, composition of the Commission may be increased to seven with Hon’ble Vice President of India as Chairman;
Bar is one of the stake holders for appointment to higher judiciary needs representation in the composition of the Commission;
Retired Chief Vigilance Commissioner should be made the exofficio member of the Commission;  Registrar-General, Supreme Court of India may be convener of the Commission instead of the Secretary, Department of Justice, Ministry of Law and Justice; and
Attorney-General for India may be a member of the Commission in place of Minister of Law and Justice.


Functions of JAC
29. The function of JAC is to recommend persons of outstanding calibre in legal profession with impeccable integrity for appointment as Chief Justice of India, Judges of Supreme Court, Chief Justices of High Courts and other Judges of High Courts to the President of India. It also recommends to President of India for transfer of Chief Justices of High Courts and other Judges of High Courts from one High Court to other High Court. The Commission will have to elicit views of Governor, Chief Minister and Chief Justice of High Court of that State for appointment of Judges of that High Court as provided in Clause 5 of the Bill.
30. The important suggestions on the function of Judicial Appointments Commission are as under :-
State level Judicial Commission on the lines of JAC may be provided in the Bill;
A body comprising Governor, Chief Minister, Leader of Opposition of Legislative Assembly, Chief Justice of High Court may be provided for consultation of names to be recommended to JAC for appointment of judges of that High Court; and
Fifty percent of High Court Judges may be reserved for judges of Subordinate Judiciary. Independent Secretariat
31. The Secretariat to the Commission will be constituted which will initiate the process of short-listing of candidates by rules and regulations under Clause 6 of the Bill.
32. Suggestions have been received to provide independence and permanent Secretariat to the Commission.
Filling-up of vacancies in Higher Judiciary
33. Clause 7 of the Bill provides time period within which intimation for filling up of vacancies caused by superannuation, resignation, death, etc. Two months' period for the Government to intimate to the Commission before occurrence of vacancy on account of superannuation and two months' period after the occurrence of resignation and death is provided in the Bill.
34. It was put forth before the Committee that the process of appointment should be initiated atleast six months before the occurrence of those vacancies arising due to superannuation while the process of initiation of filling up vacancies arising due to death or resignation of a judge, the process should be initiated seven days after its occurrence.
Procedure of Shortlisting of Candidates
35. Procedures for short-listing candidates for selection to the Bench of higher Judiciary mentioned under Clause 8(3) of the Bill is to be laid down through rules and regulations under Clauses 11 and 12 of the Bill.
36. Suggestions have been received to create a Statutory Search Committee of short-listing candidates for the consideration of JAC as members of JAC are high-profile persons having role in the selection of the candidate to the Bench of the higher Judiciary. It could be more practicable if Panel is prepared by the Search Committee for selection by the JAC.
Other Issues
37. Some important suggestions received by Committee on issues not directly connected to the provisions of the Bill are as under:-
Laying down of guidelines for transfer of judges should be made clear by the Commission;
Casting vote to the chairman of the Commission in the event of split in the Commission on the name of candidate for appointment to the Bench of higher judiciary;
All India Judicial Service as envisaged of Article 312 of Constitution should be made operational to attract best available talents for subordinate judiciary which is a recruiting ground for higher judiciary. Necessary legislation be enacted for the purpose.
2/3 judges are appointed to the High Courts from the Bar of High Court. Provisions may be made in the Bill for including the Members of Bar also in the consultation process for appointment of Judges;
Retirement age of High Courts and Supreme Court Judges to be increased from 65 to 68, respectively;
Rotation of the post of Chief Justice of India amongst Judges of Supreme Court;
Cooling off period of ten years for Judges for post-retirement appointment in Commissions and Tribunals;
Keep Judicial Appointments Commission within ambit of the Right of Information Act, 2005; and
Judicial Appointments Commission to recommend to the President of India for removal of judges and replace the cumbersome process of impeachment of judges.
Impeachment procedure of judges of higher judiciary is too cumbersome and impracticable. Removal of judges needs to be assigned to Judicial Appointments Committee for being recommended to the President of India. Necessary Constitutional amendment should be enacted.
D. COMMITTEE'S RECOMMENDATIONS/OBSERVATIONS
38. The Committee appreciates the attempt of Government to set up Judicial Appointments Commission in place of present collegium which has inherent deficiencies and problems of opacity and nonaccountability and reducing the Executive to a secondary position in the process of appointment of judges to the higher judiciary. It feels that the proposed Commission would ensure equal and active participation of both the Executive and the Judiciary in collaborative and participatory manner to find best and brightest persons with impeccable integrity to the Bench of higher Judiciary for the purpose of securing independent and impartial judiciary which is a Basic Structure of the Constitution, as per judicial pronouncement, whether one agrees or not.
39. The Committee joins the concern echoed by many stakeholders who appeared before the Committee pleading for giving protection of Article 368 of the Constitution to structure and functions of JAC so as to protect the Basic Structure of Constitution. The Committee, accordingly, recommends that structure and functions of the Commission should be mentioned in the Constitution itself. The Committee while endorsing their views, observes that constitutional status to the appointment and transfer of Judges by the Commission may be given to allay apprehension expressed by legal luminaries.
40. The Committee observes the Bill is not seeking to restore the pre-1993 position which the Government could have rightfully exercised. The Committee appreciates the attempt of Government to maintain a balance between the executive and the judiciary in regard to judicial appointments.
41. The Committee observes that the present Judicial Appointments Commission is broad based having representation from Judiciary, Executive and civil society which would facilitate wider consultation for assessing the suitability and integrity of the persons to be appointed as judges to Bench of higher judiciary. In that context, the Committee suggests that there should be three eminent persons in the Commission instead of two as provided for in the Bill and at least one out of the three Members should be from SC/ST/OBC/Women/minority preferably by rotation. The Committee also suggests that the fields of eminence may be specified in the Bill.
42. The Committee feels that the Judicial Appointments Commission would be overridden to handle appointment of eight hundred odd Judges of 24 High Courts in the country. The only  procedure prescribed in the case of appointment of High Court Judges is to elicit views of Governor and Chief Minister of concerned State and Chief Justice of concerned High Court in writing. It is not mentioned how shortlisting of candidates to the Bench of higher Judiciary would be done upon which the views of these three constitutional functionaries are to be sought.
43. The Committee notes that according to Clause 5 of the Bill the views of three constitutional functionaries of the State, namely, Governor, Chief Minister and Chief Justice of the concerned High Court would be solicited separately in writing. It implies that there will not be any consultation amongst the three constitutional functionaries of the State. The Committee feels that this process is time consuming and also limits the scope of consultation, amongst themselves.
44. Considering the responsibility of Judicial Appointments Commission to select 800 odd Judges of 24 High Courts in the country and also the fact that suitable involvement of the Constitutional and other functionaries at the State level in the process of appointment, Committee feels that in order to assist the Judicial Appointment Commission, Government may consider the feasibility and practicability of creation of State Level Commission at the earliest. The State Level Commission may be consisted of the Chief Minister of the State, Chief Justice of High Court and Leader of Opposition. The Committee hopes this would not only lessen the burden of Commission at apex level but will also provide for a more broad based appointment process.
 45. One of the responsibilities of Judicial Appointments Commission is transfer of judges of High Court from one to another. The initiative of the proposal of transfer is made by Chief Justice of India whose opinion in this regard is determinative. This has been reflected in the Memoranda of Procedure for appointment and transfer of Chief Justice and Judges of High Courts prepared by Department of Justice. The Committee desires that regulations may be made at the earliest by the Commission for transfer of the judges in supersession of Memoranda of Procedure for appointment and transfer of Chief Justice and Judges and of High Courts prepared by Department of Justice. The Committee also desires that the judge of High Court who is in-charge of administration should be invariably from outside of the State concerned.
46. The objective of the Bill is not only to ensure fairness and transparency in appointment of judges to the Bench of higher judiciary, but also to ensure timely filing up of vacancies in the judiciary. The Committee desires that the Judicial Appointments Commission should initiate process for appointment to judges of High Courts well in advance so that the vacancy is filled up in timebound manner so as to improve justice delivery system in order to gain confidence of the people.
47. The Committee notes that the Bill delegates its primary function to the Commission i.e., procedure for short-listing the candidates for their selection as High Court Judges. It implies that Parliament is delegating its legislating power to the Commission which should have been part of this Bill. The Committee feels that leaving vital thing to the regulations to be made by the Commission need not only to be reasonably restricted but also the Bill should specifically provide therefor. The Committee, therefore, suggests that the Government may consider that Clause 8(3) should lay down the broad parameters in respect of procedure for short listing the candidates for selection of Judges in the High Courts.
48. The earlier selection processes i.e. pre and post 1993, did not provide any opportunity to the aspiring eligible advocates to express their willingness to be the judge of the High Court. The Committee feels that Government may consider for a procedure whereby such opportunity is given through public notification etc. to the members of Bar. The Committee recommends that the eligible member of Bar should be given an opportunity to be considered for appointment of judge of High Court in an objective and transparent manner through advertisement as is the practice in the United Kingdom.
49. The Constitution (One Hundred and Twentieth Amendment) Bill is directly linked to this Bill, whereas the Judicial Standards and Accountability Bill is also linked to both the Bills. The Committee recommends to Government that all the three Bills may be taken into consideration at the earliest.
50. All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that AIJS may be created without further delay to attract best talent to the subordinate judiciary from where 33 percent of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of Government of India may be made applicable in the All India Judicial Service also.
51. The Committee recommends that suitable modifications, accordingly, may be made in the proposed Bill in the light of Committee's recommendations in the preceding paras.
RECOMMENDATIONS/OBSERVATIONS OF THE COMMITTEE AT A GLANCE
1. The Committee appreciates the attempt of Government to set up Judicial Appointments Commission in place of present collegium which has inherent deficiencies and problems of opacity and nonaccountability and reducing the Executive to a secondary position in the process of appointment of judges to the higher judiciary. It feels that the proposed Commission would ensure equal and active participation of both the Executive and the Judiciary in collaborative and participatory manner to find best and brightest persons with impeccable integrity to the Bench of higher Judiciary for the purpose of securing independent and impartial judiciary which is a Basic Structure of the Constitution, as per judicial pronouncement, whether one agrees or not. [Para 38]
2. The Committee joins the concern echoed by many stakeholders who appeared before the Committee pleading for giving protection of Article 368 of the Constitution to structure and functions of JAC so as to protect the Basic Structure of Constitution. The Committee, accordingly, recommends that structure and functions of the Commission should be mentioned in the Constitution itself. The Committee while endorsing their views, observes that constitutional status to the appointment and transfer of Judges by Commission may be given to allay apprehension expressed by legal luminaries. [Para 39]
3. The Committee observes the Bill is not seeking to restore the pre-1993 position which the Government could have rightfully exercised. The Committee appreciates the attempt of Government to  maintain a balance between the executive and the judiciary in regard to judicial appointments. [Para 40]
4. The Committee observes that the present Judicial Appointments Commission is broad based having representation from Judiciary, Executive and civil society which would facilitate wider consultation for assessing the suitability and integrity of the persons to be appointed as judges to Bench of higher judiciary. In that context, the Committee suggests that there should be three eminent persons in the Commission instead of two as provided for in the Bill and at least one out of the three Members should be from SC/ST/OBC/Women/minority preferably by rotation. The Committee also suggests that the fields of eminence may be specified in the Bill. [Para 41]
5. The Committee feels that the Judicial Appointments Commission would be overridden to handle appointment of eight hundred odd Judges of 24 High Courts in the country. The only procedure prescribed in the case of appointment of High Court Judges is to elicit views of Governor and Chief Minister of concerned State and Chief Justice of concerned High Court in writing. It is not mentioned how shortlisting of candidates to the Bench of higher Judiciary would be done upon which the views of these three constitutional functionaries are to be sought. [Para 42]
6. The Committee notes that according to Clause 5 of the Bill the views of three constitutional functionaries of the State, namely, Governor, Chief Minister and Chief Justice of the concerned High Court would be solicited separately in writing. It implies that there will not be any consultation amongst the three constitutional functionaries of the State. The Committee feels that this process is time consuming and also limits the scope of consultation, amongst themselves. [Para 43]
7. Considering the responsibility of Judicial Appointments Commission to select 800 odd Judges of 24 High Courts in the country and also the fact that suitable involvement of the Constitutional and other functionaries at the State level in the process of appointment, Committee feels that in order to assist the Judicial Appointment Commission, Government may consider the feasibility and practicability of creation of State Level Commission at the earliest. The State Level Commission may be consisted of the Chief Minister of the State, Chief Justice of High Court and Leader of Opposition. The Committee hopes this would not only lessen the burden of Commission at apex level but will also provide for a more broad based appointment process. [Para 44]
8. One of the responsibilities of Judicial Appointments Commission is transfer of judges of High Court from one to another. The initiative of the proposal of transfer is made by Chief Justice of India whose opinion in this regard is determinative. This has been reflected in the Memoranda of Procedure for appointment and transfer of Chief Justice and Judges of High Courts prepared by Department of Justice. The Committee desires that regulations may be made at the earliest by the Commission for transfer of the judges in supersession of Memoranda of Procedure for appointment and transfer of Chief Justice and Judges and of High Courts prepared by Department of Justice. The Committee also desires that the judge of High Court who is in-charge of administration should be invariably from outside of the State concerned. [Para 45]
9. The objective of the Bill is not only to ensure fairness and transparency in appointment of judges to the Bench of higher judiciary, but also to ensure timely filing up of vacancies in the judiciary. The Committee desires that the Judicial Appointments Commission should initiate process for appointment to judges of High Courts well in advance so that the vacancy is filled up in timebound manner so as to improve justice delivery system in order to gain confidence of the people. [Para 46]
10. The Committee notes that the Bill delegates its primary function to the Commission i.e., procedure for short-listing the candidates for their selection as High Court Judges. It implies that Parliament is delegating its legislating power to the Commission, which should have been part of this Bill. The Committee feels that leaving vital thing to the regulations to be made by the Commission need not only to be reasonably restricted but also the Bill should specifically provide therefor. The Committee, therefore, suggests that the Government may consider that Clause 8(3) should lay down the broad parameters in respect of procedure for short-listing the candidates for selection of Judges in the High Courts. [Para 47]
11. The earlier selection processes i.e. pre and post 1993, did not provide any opportunity to the aspiring eligible advocates to express their willingness to be the judge of the High Court. The Committee feels that Government may consider for a procedure whereby such opportunity is given through public notification etc. to the members of Bar. The Committee recommends that the eligible member of Bar should be given an opportunity to be considered for appointment of judge of High Court in an objective and transparent manner through advertisement as is the practice in the United Kingdom. [Para 48]
12. The Constitution (One Hundred and Twentieth Amendment) Bill is directly linked to this Bill, whereas the Judicial Standards and Accountability Bill is also linked to both the Bills. The Committee recommends to Government that all the three Bills may be taken into consideration at the earliest. [Para 49]
13. All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that AIJS may be created without further delay to attract best talent to the subordinate judiciary from where 33 percent of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of Government of India may be made applicable in the All India Judicial Service also. [Para 50]
14. The Committee recommends that suitable modifications, accordingly, may be made in the proposed Bill in the light of Committee's recommendations in the preceding paras. [Para 51]




















To, 20.06.2016
Hon’ble Union Minister
Ministry of Law and Justice,
Government of India, New Delhi-110001
Subject: Creation of Indian Judicial Service (IJS) under Article 312 in consonance with the Article 16.
Dear Sir,
The proposal of introducing an Indian Judicial Service (IJS) on the lines of Indian Administrative Service (IAS) is not new. Law Commission of India has thrice- in its first, eighth and 116th Report called for IJS. The Apex Court has endorsed the creation of IJS. [AIJA vs UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555]. Parliamentary Standing Committee in its 64th Report on Law and Justice recommended to establish IJS and directed the Union Government to take appropriate steps in this regard. The first National Judicial Pay Commission and National Advisory Council to the Union Government have endorsed the IJS. On 25.10.2009, Union Government presented a Resolution before Hon’ble Chief Justice of India in this regard. Over and above, Article 312 explicitly provides for the creation of IJS. However, in spite of all these, Government gives lame excuses and sleeping over the matter. As of now, while most government department has ‘All India Service’ recruits, the Judiciary is the only setup that does not have a national level selection process to attract the best prospective Advocates.
The available judges are unable to clear the huge backlog of over 30 million cases. In the absence of IJS, it is very difficult to maintain the required judge strength in District Courts and High Courts. IJS would have its own distinct advantages if Article 312 is implemented in consonance with Article 16 of the Constitution. Primarily, the recruitment of judge’s right from the entry level would be handled by an independent agency - National Judicial Service Commission (NJSC) through an open competition thereby ensuring fair, transparent and credible selection process, similarly like IAS, IPS, IFS are selected through the UPSC. IJS would naturally attract the best prospective Advocates to judiciary, who otherwise prefer immediate remunerative employment in public and private sector. Recruitment by NJSC and comprehensive training in National Judicial Academy (NJA) would not only ensure equal and uniform service conditions besides providing them with a wider field to prove their mettle but also secure fair trial and speedy justice to citizens in spirit of the Article 21. Uniformity and transparency in selection process will improve the quality of judges in High Courts, as 50% of the Judges may be taken from IJS. In this process, only the Judges of proven competence will preside over the benches and it will minimize the scope of aberration, arbitrariness and nepotism in judiciary.
It is well accepted by thinkers, philosophers, academicians and jurists that if the fundamental right of fair trial and speedy justice is to be secured in spirit of the Article 21 and equal opportunity to be provided to all the citizens in spirit of the Article 16; Indian Judicial Service must be established in spirit of the Article 312. The Quality of justice dispensation will positively improve right from the District Courts to the Apex Court by initiating the IJS. In a democratic setup, intrinsic and embed faith in adjudicatory system is of seminal and pivotal concern. Unnecessary delay gradually declines the citizenry faith in judicial system. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become causality. Fair trial and speedy justice keeps the people’s faith engrained and establishes the sustained stability. Access to speedy justice is deeply rooted in the concept of democracy and regarded as a basic human right. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. Myriad facts and situations, bearing testimony to the denial of the fundamental right of fair trial and speedy justice to the accused persons and failure on the part of prosecuting agencies have persuaded the Apex Court to devise solutions, which go to the extent of almost enacting by judicial verdict - the bars of limitation.
Judicially engrafted bars of limitation, no doubt meant to provide a solution to the long delay problem but it gives rise to greater problem like scuttling a trial without adjudication, stultifying excess to justice and giving easy exit from the portals of justice. If the period of deprivation pending trials becomes unduly long, fundamental right of fair trial and speedy justice would receive a jolt.  The Apex Court has advanced a step further and said-“The provision of speedy justice is an obligation of the State, otherwise the operation of the legal system would not promote justice, which is assured in Preamble of the Constitution”. Parliament enacted the All India Service Act 1951, for creating certain All-India Services in addition to IAS/IPS. The 1951 Act was amended in 1963 to create 3 more All-India Services (engineering, forestry and medicine) however, IJS has not been yet established in spite of constitutional provision and despite the Apex Court strongly expressed its views in favour of IJS (in 2nd Judges Case) to ensure uniformity of standards in matter of judicial service, status, emoluments etc. Only such a meritocratic service with open competitive examination and comprehensive training to trainee judges would be able to secure fundamental right of fair trial and speedy justice to citizens in spirit of the Article 21 that is why Government must establish the IJS without further delay.
Dear Sir,
Indian Judicial Service should be established on priority in consonance with Article 16 of the Constitution:
BECAUSE the prevailing system of the appointment of judges neither attracts the best talent to Judiciary nor provides equal opportunity to all prospective Advocates in spirit of Article 16 of the Constitution.
BECAUSE the prevailing system of the appointment of judges has been failed to secure fundamental right of fair trial and speedy justice to all the citizens in spirit of Article 21 of the Constitution.
Because in a catena of decisions, Hon’ble Supreme Court has endorsed the establishment of All India Judicial Service in accordance with Article 312 of the Constitution.
BECAUSE the IJS on the lines of IAS, a National Judicial Service Commission like the UPSC and uniform and comprehensive training to all the trainee judges at National Judicial Academy is not only necessary to secure fundamental right of fair trial and speedy Justice but also essential to promote unity and integrity of the nation.
BECAUSE Article 312 inter-alia provides: “The Parliament may by Law provide All India Services including an All India Judicial Service” and it is the duty of the State to implement Article 312 in consonance with Article 16 of the Constitution of India without further delay.
BECAUSE citizens are losing their faith due to very long pendency in Courts and the way, our judicial system is working, specially the subordinate courts. There is danger to the very idea of the Rule of Law, Equality before the Law and Equal protection of the Laws.
BECAUSE the poison of nepotism prevailing in the judicial appointment needs to be stemmed at the earliest to regain the confidence of citizens, particularly the trust of the best prospective Advocates, willing to join the judiciary.
BECAUSE many countries have achieved very good results by conducting common written examination and providing uniform training to all the trainee Judges thus deserves similar implementation in our country too.
BECAUSE unless equality and uniformity is made foremost guiding factor in judicial appointment process, nepotism and inequality will emerge more strongly and nation as a whole would suffer irreparably and social and economic differences would be more wider.
BECAUSE the fundamental right of fair trial and speedy justice in spirit of the Article 21 and Preamble of the Constitution would be meaningful, only when all the Judges will be selected through common written examination followed by viva voice, and a uniform and comprehensive training would be imparted to all the trainee judges at National Judicial Academy.
BECASUE the proposal of introducing an Indian Judicial Service (IJS) on the lines of Indian Administrative Service (IAS) is not new. Many Commissions, Expert Committees, Eminent Jurists and Prominent Judges; from the learned first Attorney General of India to former Chief Justice of India, reiterated the importance and urgent need of the All India Judicial Service. Law Commission of India has thrice- in its first, eighth and 116th Report called for IJS. The Apex Court has endorsed the creation of IJS. [AIJA vs UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555]. Parliamentary Standing Committee in its 64th Report on Law and Justice recommended to establish IJS and directed the Union Government to take appropriate steps in this regard. The first National Judicial Pay Commission and National Advisory Council to the Union Government have endorsed the IJS. On 25.10.2009, Union Government presented a Resolution before Hon’ble Chief Justice of India in this regard. Over and above, Article 312 explicitly provides for the creation of IJS. However, in spite of all these, Government gives lame excuses and sleeping over the matter. As of now, while most government department has ‘All India Service’ recruits, the Judiciary is the only setup that does not have a national level selection process to attract the best prospective Advocates.
Dear Sir,
I request you to take appropriate steps to establish All India Judicial Service under the Article 312 in consonance with Article 16 of the Constitution and provide apposite manpower and infrastructure to reduce the pendency of cases to 3 years in spirit of the Resolution dated 25.10.2009, presented to Hon’ble Chief Justice of India.
I also request you to take appropriate steps to implement the Resolution dated 25.10.2009 in letter and spirit.
Thanks and Regards.


Ashwini Kumar Upadhyay
Office: Chamber-15, New Lawyer Chambers
Supreme Court of India, New Delhi-110001
Residence: G-284, Govindpuram, Ghaziabad-201013
# 08800278866, 09911966667, aku.adv@gmail.com
CC:
Hon’ble Prime Minister
Government of India,
New Delhi-110001
Hon’ble Union Minister
Ministry of Parliamentary Affairs
Government of India, New Delhi-110001
Hon’ble Union Finance Minister
Government of India,
New Delhi-110001






IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 5854/2016
ASHWINI KUMAR UPADHYAY ..... Petitioner
Through Petitioner in person.
versus
UNION OF INDIA & ANR ..... Respondents
Through Mr.Jasmeet Singh, CGSC and
Mr. Srivats Kaushal, Adv. for UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
O R D E R
11.07.2016
1. The present petition has been filed by the petitioners with the prayer to initiate All India Judicial Services Examination under the Article 312 in consonance with Article 14 and 16 of the Constitution of India on the ground that creation of All India Judicial Service will be of low cost, having considerable impact for appointment in judicial services.
2. Learned counsel for the petitioners has also taken us through relevant provision of the Constitution as well as the views taken by the Committee comprising of Justice M.N. Venkatachaliah, Justice J.S. Verma and Justice V.R. Krishna Iyer in relation to All India Judicial Services. Learned counsel has also taken us through the report of Rajya Sabha in relation to Judicial Appointments Commission, 2013.
3. Mr. Jasmeet Singh, Learned counsel for Union of India appeared on an advance notice and submits that the petitioner has already approached the Ministry of Law and Justice through representation raising similar prayers which is pending consideration.
4. Having regard to the fact that the petitioner has made a detailed representation and it is yet to be considered by the Ministry of Law and Justice, we are not inclined to entertain the present petition. Accordingly, the writ petition is disposed of leaving it open to the Ministry of Law and Justice/Respondent No.1 to consider the petitioner’s representation and take an appropriate decision in accordance with law.

CHIEF JUSTICE
SANGITA DHINGRA SEHGAL, J
JULY 11, 2016