Judicial reforms: All India Judicial Service, the Law Commission and the road ahead

Detail

1. All India Judicial Service (AIJS): what it is

• All India Judicial Service (AIJS): a proposed national service for district judges.
• Judges would be chosen through one all-India merit exam, like the IAS and IPS.

• They would then be posted to the states.

• Today's system: each state recruits its own judges.

• Art. 233: the Governor appoints district judges in consultation with the High Court.
• Art. 234: other judicial officers are appointed under rules made with the State Public Service Commission and the High Court.
• Art. 235: the High Court controls subordinate courts, including postings, promotions and discipline.
• Art. 236: defines "district judge". Art. 237: lets these rules apply to magistrates as well.

2. Art. 312: how an AIJS can be created

• The 42nd Amendment (1976) added the judicial service to Art. 312, which deals with all-India services.
• Procedure:

Step	What happens	Majority needed
1	The Rajya Sabha passes a resolution saying the service is needed "in the national interest"	Two-thirds of members present and voting (special majority)
2	Parliament passes a law creating the service	Simple majority in each House (an ordinary law)
3	The law may change Chapter VI of Part VI (Arts. 233-237) to fit the new service (Art. 312(4))	It is not treated as a constitutional amendment under Art. 368

• Limit, Art. 312(3): the AIJS cannot include any post below district judge. Civil judges and magistrates stay with the states.
• The Rajya Sabha has this role because it represents the states. A national service reduces state powers, so the states' House must agree first.
• Recommended by:
• Law Commission, 14th Report (1958), on reform of judicial administration
• Law Commission, 116th Report (1986), on forming an AIJS
• Supreme Court, All India Judges Association v. Union of India (1992), which asked the government to consider an AIJS

3. Official status of the AIJS

• November 2012: the Committee of Secretaries approved a full proposal for an AIJS [2].
• April 2013: the Conference of Chief Ministers and Chief Justices of High Courts said the issue needed more discussion [2].
• States and High Courts disagree about the AIJS, so the Union government says there is no consensus on it yet [2].
• Government's view: a well-designed AIJS would strengthen justice delivery. It would bring in fresh legal talent through all-India merit selection. It would also give fair representation to marginalised and deprived sections [2].

4. AIJS: arguments for and against

For	Against
Brings in young, bright talent through a national exam	Conflicts with Arts. 233-235, which give control to the states and High Courts. Some see this as a blow to federalism
Sets one national standard of training and quality	District courts work in the local language. Judges must also know local laws and customs
Adds social diversity through reservation [2]	State judicial officers fear fewer promotion chances to the district-judge level
Fills vacancies faster with a regular, predictable recruitment cycle	States and High Courts remain divided [2]

5. Law Commission of India

• Law Commission: an expert body that studies laws and recommends reforms to the Union government.
• It is non-statutory, meaning no Act of Parliament creates it.
• It is set up by an executive order of the Union government for a three-year term.
• It is advisory only. The government does not have to accept its reports, so many are never implemented.

• Some argue it should be given statutory status (made a body under a law) to make it permanent and more independent.

• History:

• 1834: the first Law Commission was set up under the Charter Act of 1833 and chaired by Lord Macaulay. Its draft became the Indian Penal Code (IPC), enacted in 1860.

• 1955: the first Law Commission after independence was chaired by M.C. Setalvad, India's first Attorney-General.

• The 22nd Law Commission's term was extended to 31 August 2024 [4].

• The 23rd Law Commission started on 1 September 2024 for three years, up to August 2027 [3].
• Chairperson: Justice (Retd.) Dinesh Maheshwari [3]
• Members include: Prof. D.P. Verma and Advocate Hitesh Jain [3]

6. Key Law Commission reports

Report	Year	Subject and main idea
14th	1958	Reform of judicial administration; supported an AIJS
114th	1986	Gram Nyayalaya (village-level courts) to bring justice closer to people
116th	1986	Forming an All India Judicial Service
120th	1987	Judge strength: more judges for each million people (it suggested 50 judges per million)
186th	2003	Environmental courts (specialist courts for environmental cases)
229th	2009	Supreme Court benches: regional benches for appeals, with a Constitution bench in Delhi
245th	2014	Arrears: how to measure and clear pending cases and how many judges are needed
262nd	2015	Death penalty: abolish it except for terrorism cases
273rd	2017	Torture: a law against custodial torture
279th	2023	Sedition: "Usage of the Law of Sedition", submitted on 17 April 2023 [5]

• Note on sedition: the Bharatiya Nyaya Sanhita (BNS), 2023, replaced the IPC on 1 July 2024. It dropped the word "sedition" (old IPC Section 124A). Section 152 of the BNS now punishes acts that endanger India's sovereignty, unity and integrity.

7. The road ahead: reform agenda

(a) Judges and courts

• Time-bound appointments and quick filling of vacancies at every level.
• Judicial infrastructure authority: a national body to plan and fund courtrooms, staff and IT.
• Court and case management: fixed timelines, fewer adjournments, and tracking of each case.

(b) Stopping cases at the source

• Judicial impact assessment: working out, before a new law is passed, how many cases it will add to courts.

• The Supreme Court asked for this in Rojer Mathew v. South Indian Bank (2019).

• National litigation policy: the government is the biggest litigant. A clear policy would cut needless appeals by ministries.

(c) Structure of courts and tribunals

• Regional benches of the Supreme Court, or a National Court of Appeal, as suggested in the 229th Report (2009).
• Tribunal rationalisation: merge overlapping tribunals and place them under an independent National Tribunals Commission, which would oversee appointments, funding and working. The Supreme Court has asked for this body. Tribunals themselves rest on Arts. 323A-B (42nd Amendment, 1976).

(d) Cheaper and faster justice for people

• Legal aid: free legal help for the poor under the Legal Services Authorities Act, 1987. Reform means stronger legal aid, better mediation and more use of Lok Adalats (people's courts that settle cases by compromise).
• e-Courts Phase III: digital records, virtual hearings and e-filing.
• Online Dispute Resolution (ODR): using technology to settle disputes outside the courts [7].
• 29 November 2021: NITI Aayog released "Designing the Future of Dispute Resolution: The ODR Policy Plan for India" [6][7].
• It was drafted by a committee formed in June 2020 under Justice A.K. Sikri [7].
• Structural steps: digital literacy, better digital infrastructure, and trained "neutrals" (people who settle disputes) [7].
• Behavioural steps: government departments and ministries should use ODR for their own disputes [7].
• Regulatory steps: ODR changes to the existing ADR laws, plus voluntary "light-touch" principles for ODR platforms, centres and neutrals [7].

(e) Criminal justice

• Bail law: a separate Bail Act to reduce undertrials (people in jail whose cases are not yet decided).
• Independent prosecution: prosecutors who are separate from the police.
• Police reform: better investigation and less political control.
• Forensic capacity: more forensic labs and experts.

• Under the new criminal laws in force from 1 July 2024, forensic evidence matters even more.

• These ideas follow the 2nd ARC's Fifth Report "Public Order" (2007). The 2nd ARC is the Second Administrative Reforms Commission.

(f) The constitutional goal

• Art. 39A (a Directive Principle added by the 42nd Amendment, 1976) asks the State to ensure equal justice and free legal aid. Justice should not be denied to anyone because of poverty or other handicaps.
• Every reform above serves this promise.

Prelims Hooks

• Art. 312(3): an AIJS cannot include any post below district judge. Civil judges and magistrates are outside it.
• Art. 312 needs a Rajya Sabha resolution passed by two-thirds of members present and voting. The Lok Sabha has no role in this resolution.
• A law creating the AIJS can change Arts. 233-237 without counting as an amendment under Art. 368.
• The 42nd Amendment (1976) added both the judicial service to Art. 312 and Art. 39A.
• Law Commission: created by executive order, not by a statute. It is advisory and serves a three-year term.
• First Law Commission (1834): chaired by Macaulay, and its work led to the IPC. First after independence (1955): chaired by M.C. Setalvad.
• 23rd Law Commission: started 1 September 2024 under Justice Dinesh Maheshwari [3].
• Report–subject pairs: 114th = Gram Nyayalaya; 116th = AIJS; 120th = judge strength; 186th = environmental courts; 229th = SC benches; 262nd = death penalty; 279th = sedition (2023) [5].
• Rojer Mathew (2019): linked to the call for a judicial impact assessment.
• NITI Aayog ODR Policy Plan (2021): prepared by a committee under Justice A.K. Sikri [7].

Mains Points

• AIJS and federalism: a national merit service promises talent, uniform standards and social inclusion [2]. But it weakens state and High Court control under Arts. 233-235 and creates language problems in district courts. It also hurts the promotion hopes of state officers. Middle path: an all-India exam with state cadres, local-language training, and a fixed share of posts for promoted state officers. No consensus exists yet [2].
• Law Commission reform: a purely advisory body set up by executive order sees many reports ignored. Statutory status, a permanent secretariat, and a duty on the government to table an action-taken report in Parliament would make it more effective.
• Pendency needs a system-wide answer:
• Supply side: more judges (120th Report), infrastructure, and case management.
• Demand side: a litigation policy and judicial impact assessment (Rojer Mathew).
• Diversion: Lok Adalats, mediation and ODR [6][7].

• Structure: regional benches (229th Report) and a National Tribunals Commission.

• Criminal justice and Art. 39A: a bail law, independent prosecution, police reform and forensic capacity can reduce undertrials. This follows the 2nd ARC's Fifth Report (2007) and turns the promise of equal justice into practice.