Tag: All India Judicial Service

Custodial Violence Unacceptable In Civilized Society

In a latest, learned, laudable and landmark judgment titled Pravat Chandra Mohanty vs The State Of Odisha & Anr. in Criminal Appeal No. 125 of 2021 (arising out of SLP (Crl.) No. 6174/2020) with Criminal Appeal No. 126 of 2021 (arising out of SLP (Crl.) No. 6224/2020) delivered on February 11, 2021, a two Judge Bench of the Apex Court comprising of Justice Ashok Bhushan and Justice Ajay Rastogi refused the plea seeking compounding of offences of two police officers accused in a custodial violence case. It must be mentioned here that though considering their age, the sentence was reduced, the Bench enhanced the compensation to Rs 3.5 lacs each in addition to compensation awarded by the High Court to be paid to the legal heirs of the deceased. The Apex Court rightly underscored that custodial violence is unacceptable in civilized society. So there has to be zero tolerance for it. We thus see that the Apex Court rejects the plea of police officers seeking compounding in view of settlement. 

To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Ashok Bhushan for himself and Justice Ajay Rastogi after granting leave in para 1 wherein it is put forth that, “These two appeals by the accused have been filed against the common judgment of the Orissa High Court dated 09.11.2020 dismissing the Criminal Appeal Nos. 207 and 210 of 1988 filed by the appellants. Both the appellants being the accused in Lal Bagh P.S.Case No.273 of 1985 were tried in Sessions Trial No.246 of 1985 for the offences punishable under Sections 304, 342, 323, 294, 201 167, 477-A, 471 read with Section 34 of the IPC. Learned Sessions Judge convicted the accused Pratap Kumar Choudhury under Section 304 (Part II) IPC to undergo R.I. for eight years and accused Pravat Chandra Mohanty under Section 304 (Part II) to undergo R.I. for five years. Both the accused were further sentenced under Section 471 IPC read with Section 466 IPC to undergo R.I. for three years and R.I. for three months under Section 342 IPC and R.I. for one month under Section 323 IPC by judgment dated 29.08.1988.”
To put things in perspective, the Bench then states in para 3 that, “Aggrieved by the judgment of the trial court the appellants, Pravat Chandra Mohanty (hereinafter referred to as “Mohanty”) filed Criminal Appeal No.207 of 1988 and Pratap Kumar Choudhury (hereinafter referred to as “Choudhury”) filed Criminal Appeal No.210 of 1988 before the Orissa High Court. The High Court decided both the appeals by its judgment and order dated 09.11.2020 partly allowing the appeals. The conviction of both the appellants under Section 304 (Part II) IPC read with Section 34 IPC and Section 342/34 IPC was set aside and their conviction under Sections 323/34 IPC and 471/34 IPC was upheld. The High Court convicted both the appellants under Section 324/34 IPC. Simple imprisonment for one month was imposed under Section 323/34 IPC. Simple imprisonment for three months for the offence under Section 471/34 IPC and simple imprisonment for one year for the offence under Section 324/34 IPC were imposed by the High Court. All the sentences were to run concurrently. Aggrieved by the above judgment these appeals have been filed.”
Be it noted, it is then envisaged in para 14 that, “The High Court in its judgment has noticed the prosecution case in paragraph 2 of the judgment. Paragraph 2 of the High Court judgment is as follows: “2. The prosecution case, as per the first information report (Ext.1) lodged by Kusia Nayak (P.W.1) on 05.05.1985 (Sunday) at 11 a.m. before the D.S.P., City, Cuttack(S) is that the informant was staying in a rented house of one Bishnu Mohanty of Rajabagicha, Cuttack. On 02.05.1985 he had been to Nayagarh in connection with the marriage of his nephew and returned home to Cuttack in the morning hours of 04.05.1985. After arrival, he was informed by his wife Kanchan Dei (P.W.18) that there was quarrel between their Basti residents Sura and Bainshi on Friday. He went to the market and returned at about 4 p.m. when his wife told him that Pramod Naik, Benu Naik and Guna Naik were abusing her in filthy language and telling her to drive out her family members as they had no houses and no holding numbers. The informant was also told by his wife that 4 Thana Babu of Purighat police station had called him to go to the police station. After sometime, Kasinath Naik (hereafter ‘the deceased’) also told the informant that the constable had come and told him in that respect. Accordingly, both the informant and the deceased decided to go to Purighat police station. In the evening hours, when both of them reached at Purighat police station, one police officer having mustache told the deceased that on the next time, he would cause fracture of the hands and legs of the son of the deceased by assaulting him as the later had filed a case against him before the Legal Aid. The deceased remained silent. The said police officer also used slang language against the deceased and told that he belonged to Alisha Bazar, Cuttack and he would not allow the family of the deceased to stay at Cuttack and no lawyer could do anything to him. The deceased replied to the said police officer that on being assaulted, his wife and son had filed the case before the Legal Aid and he did not know anything in that respect.
It is further stated in the first information report that the said police officer having mustache gave a kick to the deceased and again used slang language and also gave two blows on the hands of the informant and also kicked him. Then said police officer having mustache further assaulted the 5 deceased who cried aloud and in that process, he sustained bleeding injuries on his body. The informant was asked to wait in one room of the police station and the deceased was taken to the other side verandah of the police station and was assaulted. Though the informant was not able to see the assault but he could hear the cries of the deceased. Then the police officer called the informant outside and after he came out, he saw the appellant Pravat Mohanty assaulting the deceased by means of a stick and the deceased was crying aloud. The informant gave water to the deceased on being told by the police officer but the deceased was having no strength to walk and he was just crawling. The deceased came near the informant and he was having bleeding injuries on his hands and necks and the legs were swollen. The deceased was telling that he would not survive and would die. When the deceased sought permission to attend the call of nature, the police officer having mustache and appellant Pravat Mohanty further assaulted him. When the deceased again requested to attend the call of nature, with permission of the police officer, the informant took him for such purpose and after they returned, the appellant Pravat Mohanty asked the deceased as to why he was limping. The deceased was given bread to eat but when he refused, appellant Pravat Mohanty compelled him to take bread and further assaulted him 6 on his knee. Getting indication from the constable, the informant concealed the bread and told the police officer that the deceased had already taken the bread. The said police officer brought liquor in a bottle and poured it in the mouth of the deceased as well as the informant and then sprinkled liquor over them and went outside of the police station. Sura Naik (P.W.13) who belonged to the Basti of the informant came to the police station and talked with one Mishra Babu secretly but on seeing the deceased and the informant, he went away. Then appellant Pravat Mohanty again assaulted the deceased and asked him to sit in a vehicle to go to the hospital. At that time, it was 11 to 12 O’ clock in the night. The appellant Pravat Mohanty, a driver and a constable lifted the deceased and placed him inside the vehicle and he was crying that he would not survive. When the informant expressed his eagerness to accompany the deceased to the hospital, he was told that there was no necessity to accompany the deceased even though the deceased was calling the informant to accompany him. After the deceased was taken away from the police station, one constable chained the left leg of the informant to a table of the police station and in the morning hours, the informant was untied as per the instruction of the appellant Pravat Mohanty. One sweeper was called to the police station and he was asked to clean the blood and stool of 7 the deceased which was lying at different places inside the police station. At that time the informant came to know that the deceased had died in the hospital last night. The widow of the deceased had also come to the police station crying but she was not allowed to stay there by the Havildar. It is mentioned in the first information report that the police officer having mustache was a fair and tall person. 
On receipt of such first information report, Purighat/ Lalbag P.S. Case No.273 of 1985 was registered under sections 302, 342, 323, 294, 201 read with section 34 of the Indian Penal Code on 05.05.1985 at 11 a.m. against appellant Pravat Mohanty and the other police officer of Purighat police station having mustache.”
In retrospect, the Bench then points out in para 15 that, “The prosecution in the trial has examined 39 witnesses, i.e., PW.1 to PW.39. PW.1, Kusia Naik, being informant, eye-witness and injured witness and PW.39 Gaganbehari Mohanty, being the IO. No witness was examined for the defence. A large number of Exhibits running Ext.1 to Ext.67/1 were produced by the prosecution. Ext.A to Ext.J were also admitted into the evidence by defence. MO.I to MO.VII were material objects. After marshalling evidence on record, the learned trial judge while holding conviction under Section 304 (Part-II) read with Section 34 IPC recorded its conclusion in paragraph 74 which is to the following effect: 
“74. It is thus found that there is nexus between death of the deceased and the act of the accused persons in subjecting him to long detention throughout the night and in mercilessly beating him. Therefore, it is clear that such death was caused by the act of the accused persons. They did it in furtherance of their common intention. The facts of the case disclose that there might not be an intention to cause such bodily injury as was likely to cause death. But the facts disclose that the accused persons knew that their act would be likely to cause death. Hence, it is found that the accused persons also committed an offence punishable u/s 304(Part-II) I.P.C. read with section 34 IPC.”
In hindsight, it is quite clearly stated in para 18 that, “Both the appellants have been convicted under Section 371/34 IPC by the courts below, finding offence of forging and fabrication of record to be proved. The reason for fabricating the false story that deceased, Kasinath Naik came to Police Station to lodge an FIR about the assault on him at 9 p.m. was only with a view to save the accused, with intent to explain injuries caused on the body of deceased which he received during his stay in the Police Station. As noted above, the conviction of the appellants under Section 371/34 IPC has not been challenged before us. The defence taken by the appellants has miserably failed. The High Court after re-appraising the evidence on record including the oral and documentary evidence has come to the conclusion that ante-mortem injuries noticed on the person of the deceased as per postmortem report were caused in Purighat Police Station during his stay from 7.30 p.m. till post midnight on 4/5.05.1985 and the evidence of the scientific officer and chemical report also corroborates the assault at the police station and the appellants were author of those injuries. The trial court has also held in its judgment after marshalling the entire evidence that injuries were caused to the deceased, Kasinath Naik in the Police Station, Purighat by both the accused. The High Court on reappraisal of the evidence came to the same finding.”
It cannot be glossed over that it is then observed in para 19 that, “We have carefully perused the judgment of the trial court as well as the High Court and have adverted to the marshalling of oral evidence by both the Courts below as well as analysis of the documentary evidence on record where evidence of PW.1, who was the informant and eye-witness has rightly been believed by the trial court and the High court to the fact that both deceased and informant arrived at Police Station after 7.30 p.m. and they were mercilessly beaten by Choudhury and Mohanty. In spite of Varandah of the Police Station washed in the morning by the sweeper, the scientific officer, who visited the police station found the blood stains in the Varandah.”
It also cannot be glossed over that it is then stated in para 20 that, “The evidence of PW.1 could not have been discarded merely because he was an agnate of the deceased. In the long cross-examination, PW.1 could not be shaken and his evidence of account given of beating of the deceased by the Police Officers, i.e., Choudhury and Mohanty is to be believed and relied on.”
It is highly commendable to note that the Bench then without mincing any words goes forth to observe in para 36 that, “Present is a case where the offence was committed by the in-charge of the Police Station, Purighat, as well as the Senior Inspector, posted at the same Police Station. The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society.”
More pertinently, the Bench then while referring to a relevant case law adds in para 37 stating that, “We may refer to the judgment of this Court in Yashwant and others vs. State of Maharashtra, (2019) 18 SCC 571, where this Court laid down that when the police is violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. Following was laid down in paragraph 34: – 
“34. As the police in this case are the violators of law, who had the primary responsibility to protect and uphold law, thereby mandating the punishment for such violation to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. It may not be out of context to remind that the motto of Maharashtra State Police is “Sadrakshnaya Khalanighrahanaya” (Sanskrit: “To protect good and to punish evil”), which needs to be respected. Those, who are called upon to administer the criminal law, must bear, in mind, that they have a duty not merely to the individual accused before them, but also to the State and to the community at large. Such incidents involving police usually tend to deplete the confidence in our criminal justice system much more than those incidents involving private individuals. We must additionally factor this aspect while imposing an appropriate punishment on the accused herein.””
Most pertinently, the Bench then underscores in para 40 that, “The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution. Although the High Court has awarded the compensation of Rs.3 Lakhs in favour of the legal representatives of the deceased. We are of the view that compensation awarded was not adequate.”
As it turned out, the Bench then holds aptly in para 43 that, “Looking to the facts that both the appellants are more than 75 years of age now, we are of the considered opinion that the ends of justice be served in reducing the sentence awarded for conviction under Section 324 IPC to six months instead of one year. Additionally the legal heirs of the deceased can be compensated by the compensation which has been offered and deposited by the appellant in this Court. Thus, sentence of one year is reduced to six months by awarding compensation of Rs.3.5 Lakhs each to the legal heir of the deceased in addition to the compensation awarded by the High Court. The compensation deposited in this Court shall be remitted to the trial court who may pay the same to the legal heirs of the deceased. The affidavit has been filed before us that the deceased had four sons, his wife is dead, the entire amount be disbursed equally to two sons who are alive and heirs of two deceased sons.”
Finally, it is then held in the last para 44 that, “In result, the appeals are partly allowed. The sentence awarded to the appellants under Section 324 IPC of one year is reduced to six months with enhancement of compensation to Rs.3.5 lacs each in addition to compensation awarded by the High Court to be paid to the legal heirs of the deceased. The compensation to the legal heirs be paid as directed above.” 
In conclusion, it is a brilliant, bold, blunt and balanced judgment which makes it absolutely clear that there has to be zero tolerance for custodial violence. Those men in uniform who still indulge in it are liable to pay heavily for it. This alone explains why the compensation to be paid to the legal heirs is enhanced from Rs 3 lakhs as awarded by the High Court to Rs 3.5 lakhs each even though considering their advanced age of 75 years their sentence awarded for conviction under Section 324 of IPC is reduced from 1 year to six months. Very rightly so!
Sanjeev Sirohi

To Constitute AIJS Would Be The Greatest Step Since Independence

Coming straight to the nub of the matter, let me begin penning down my forthright views by first and foremost expressing my utmost happiness to note that Centre has finally decided to get its act together and constitute the All India Judicial Service (AIJS) about which we have been hearing since ages! AIJS is the crying need of the hour and must be debated, discussed and deliberated fully so that all best features are included in it and all possible drawbacks are deleted before it is finally created. There can be no two opinions on it.

It delights me to no end to see that Prime Minister Narendra Modi while addressing a function to celebrate the completion of 50 years of the Delhi High Court on October 31, 2016 set the cat among the pigeons when he sought a debate on creating AIJS which has been hanging fire right since independence. It is most tragic to see that AIJS has always been mocked at by the ruling party in Centre. Even now if AIJS is constituted, it will be the greatest step since independence.
It needs no rocket scientist to figure out that how much our judicial system which is currently on the verge of collapsing due to a whooping number of pending cases will benefit if AIJS is created soon. While I fully support the creation of AIJS, I don’t support reservation in judiciary at all. I certainly would welcome the inclusion of people from the lower strata of society into the judicial system but only when they enter by their own merit and I know that they can do it on their own. They are no less than others in anyway.
Did Dr BR Ambedkar make a name for himself by coming up through reservation? Selection should only and only be on merit alone. There should be no other criteria for selection. No compromise should be made on merit under any circumstances, come what may!
While craving for the exclusive indulgence of my esteemed readers, let me inform you all that I am not at all against Dalits, oppressed, poor and people coming from lower strata of society entering AIJS. But that should not be at the cost of merit under any circumstances as most unfortunately we have been seeing in other services since last 70 years even though Dr Ambedkar had proposed reservations only for 10 years! In fact, I treat them just like others and very strongly feel that they too can do whatever they want just like others! Why should they be treated worse than disabled?
Who is stopping Centre from imparting free coaching to Dalits and all those coming from lower strata of society? Why can’t more scholarship be given to them? Why can’t they be coached by top successful persons of the field for which they are trying? Why can’t they be allowed free expense for giving as many exams as they like? They can be helped in thousands of ways other than reservations. Why politicians favour only reservation as the best possible way? Did Tina Dabi who topped IAS thus becoming the first Dalit to become a topper did by availing reservation benefit? No, by her merit she made it to the top!
How long will this cancer of reservation be allowed to fester and harm the unity and integrity of our nation endlessly? What precedent are politicians and PM setting by always talking about reservations only and never talking about finishing them as Dr Ambedkar wanted them to finish after 10 years only?
Reservation is the worst form of tool and only spreads hatred in society. Also, once it is inserted in the system, it is never thrown out as we can see in our own country where Dr BR Ambedkar who is the founding father of our Constitution wanted reservation only for 10 years but what an unbeatable irony that 70 years later we still see no end of reservations rather many States have increased it beyond 50% which only draws the ire of Supreme Court. This should never happen in AIJS.
For my esteemed readers exclusive benefit, let me tell them that it has been widely reported in the media that the Centre is getting ready to set up All-India Judicial Service (AIJS) by March 2022, according to a proposal submitted by the law ministry to the Union Council of Ministers. This was reported in ‘The Economic Times’ newspaper dated 2 March 2020 with heading “All-India Judicial Service Likely by March 2022”. So it is not that this cannot be worked out in the near future! It was also pointed out in this newspaper that, “The ministry in its recent presentation to the sectoral group of secretaries informed that AIJS was one of its top priority matters. The reports of the 10 sectoral group of secretaries were reviewed by PM Modi and the Council of Ministers. The biggest challenge is to get all states and high courts on board.” 
Needless to say, we must applaud PM Modi’s courage and conviction to do what no PM has ever dared to do even though they too supported it – creation of AIJS. PM Modi has called for debate and discussion on creating AIJS but I very strongly feel that Law Commission has time and again recommended the creation of AIJS, former CJI too have recommended, Parliamentary Standing Committee also has recommended and National Judicial Pay Commission too has recommended then why so much of inordinate delay over it? It must be cleared soon now. After the Modi’s Cabinet clears the landmark proposal, the Union Public Service Commission (UPSC) will be entrusted with the AIJS examinations. The Delhi High Court asked the government in an earlier petition by Ashwini Kumar Upadhyay to decide on creating the IJS. It will again hear another petition by him for creating an IJS. 
Be it noted, the move for an AIJS didn’t curry much favour with the higher judiciary in the past. The Chief Justices Conferences in 1961, 1963 and 1965 favoured the creation of an AIJS, but the proposal had to be shelved after some states and high courts opposed it. What should have happened way back in 1960s that we don’t see happening even in 2016 and it is only now after PM Narendra Modi has spoken on its dire need from a public platform and that too while addressing a function of lawyers and judges to celebrate the completion of 50 years of the Delhi High Court that some bright ray of hope has finally emerged.
To put things in perspective, subsequently, the Constitution was amended in 1977 to provide for an AIJS. The proposal was again floated by the UPA government in 2012 when it got it vetted by a committee of secretaries and prepared a cabinet note. But the draft bill was shelved after fierce opposition from high court chief justices. In 1972, the then Chief Justice of India had again endorsed the creation of AIJS.
Enough is enough! Now not any more! No more endless wait for AIJS! If Centre is really serious to combat the more than three and a half crore cases pending in lower courts all across the country, it has just no other viable option left before it but to start the AIJS. Ad hoc measures like re-employing retired judicial officers won’t serve much in the longer turn even though it may provide some relief. It cannot be a permanent cure. Centre must realize this which it has failed to realize in last 70 years.
In the absence of AIJS, it is becoming increasingly difficult to maintain the required judge strength in district courts and high courts. The available judges are unable to clear the huge backlog of over 30 million cases. Inspite of all this, IJS not started till date and mere opposition by few States/High Courts gave a lame excuse to successive Union Governments to just sleep over the matter.
Let me reveal here that in his PIL, Ashwini Upadhyay, who is also a BJP spokesperson contends fiercely that the establishment of IJS under the Article 312 of the Constitution of India, is not only necessary to provide equal opportunity to all prospective Advocates in spirit of Article 16 but also essential to secure fundamental right of fair trial and speedy justice to the citizens in spirit of Article 21. IJS has not been established in spite of constitutional provision and despite the Apex Court strongly endorsing it, he states in his petition. He further states that, 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. “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,” the petition reads.
Significantly, the Delhi High Court asked the government on July 11, 2016 to consider a lawyer’s representation seeking setting up of a All India Judicial Service on the lines of the Indian Administrative and Police Services. A Bench of Delhi High Court comprising of the then Chief Justice G Rohini and Justice Sangita Dhingra Sehgal asked the Ministry of Law and Justice to take a decision on the petitioner’s representation and inform him. In his plea, Ashwini Upadhyay said the step to set up the AIJS was “long overdue and has been hanging fire for ever five decades”. He also pointed out that, “Most government departments now had ‘All India Service’ recruits, the Judiciary does not have a national level selection process to attract the best possible talent”.
Before proceeding ahead, it would be imperative to quickly recapitulate the important events associated with AIJS. It will help us broadly in understanding this subject better. The list of important events are as follows: –
03-01-1977: AIJS inserted into Article 312 by the Constitution (Forty-second Amendment) Act 1976. The purpose of the constitutional amendment was to ensure uniformity in standard of selection and to attract the bright and young talent in judiciary so that fair trial and speedy justice made available to every citizen throughout the country.
27-11-1986: Law Commission submitted in its 116th report titled “Formation of All India Judicial Service” to the Union Law Minister and explained in details the importance and urgent need of All India Judicial Service.
10-4-1995: The Hon’ble Supreme Court in WP(C) 1022 of 1989, All India Judges Association v Union of India, directed the Union Government to take immediate measures for setting up the All India Judicial Service. The Union Government sought the views of the State Governments and High Courts on constituting the All-India Judicial Service before moving a resolution in Rajya Sabha.
10-2-1997: Union Government submitted a status report n constituting the All India Judicial Service in the Apex Court. Out of 25 states, 08 states endorsed AIJS, 08 states conditionally agreed upon AIJS, 07 states disagreed on AIJS and 02 states not responded. Out of 18 High Courts, 04 High Courts endorsed AIJS, 04 High Courts conditionally endorsed the AIJS, 03 High Courts disagreed with AIJS and 07 High Courts not responded on AIJS.
24-10-2009: Hon’ble Chief Justice of India endorsed the All India Judicial Service in his inaugural address in a conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” in Delhi. 
25-10-2009: Conference titled “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays” unanimously adopted the resolutions presented by Union Law Minister for establishment of All India Judicial Service and increase in the strength of judges by 25% to reduce the pendency of cases from 15 years to 3 years.
19-05-2014: Hon’ble 41st Chief Justice of India Sh. R.M. Lodha on the eve of assuming charge reiterated the need of the All India Judicial Service. He said: “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. A 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.”
It must be emphasized here that the Law Commission of India has four times – in its 1st, 8th, 77th and 116th reports called for Indian Judicial Service. The Apex Court has twice – first in 1991, then in All India Judges Case (1992) endorsed the creation of AIJS. It is imperative to ensure fair selection of incumbents and to attract bright and best law graduates to judiciary.
Be it noted, Centre too strongly felt that to prevent the fresh law graduates from rushing to the all enticing private and corporate sector, it is imperative that All India Judicial Service be started immediately and they too are made eligible just like we see in case of Civil Services. Presently, what we are seeing is that the best talent is wasting no time in jumping on the bandwagon of corporate and private sector who is ever ready to hire them at attractive prices. To stop this to a great extent, it is all the more imperative that AIJS be started immediately without any more delay!
Most significantly, it cannot fbe lightly dismissed that three most eminent Judges in the annals of the Apex Court – Justice VR Krishna Iyer, Justice JS Verma and Justice MN Venkatachaliah gave their joint views on the constitution of All India Judicial Service as follows: “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 level adds an additional urgency to the problem. AIJS will in due course of time, also help to improve the quality of the High Courts and the Supreme Court. The modalities for creating the AIJS to achieve its avowed purpose, and the necessary constitutional changes and the legal framework can be worked out after acceptance of the proposal in principle.” 
No less significant is the irrefutable fact that the First Law Commission of India, headed by learned MC Setalwad, with the benefit of the opinion of the then Chief Justices of India KN Wanchoo and Justice MC Chagla and eminent jurist Nani Palkhiwala among others, had made a strong recommendation for the constitution of an All-India Judicial Service, like the IAS and IPS. The felt need for such a service increased several fold in the last 57 years since that recommendation was made. 
It is worth noting that in its 77th Report presented by the Law Commission of India to the then Law Minister Shanti Bhushan, it was noted in Para 9.6: “At the same time, we are of the view that the suggestion to have an All India Judicial Service of the same rank and same pay-scales as the Indian Administrative Service should receive serious consideration. According to article 312, as now amended, Parliament may by law provide for the creation of one or more all-India services (including an all-India Judicial Service) common to the Union and the States. We are conscious of the fact that a school of thought and many States are strongly opposed to the creation of All India Judicial Service. The objection is mostly based upon the consideration that since the proceedings before the subordinate courts would be conducted in regional languages, members of the higher judicial service hailing from other States would not be in a position to efficiently discharge their functions. This difficulty can be obviated if, like recruits to the Indian Administrative Service, the recruits to the All India Judicial Service also undergo a training period of two years. During that period, they can acquire also familiarity with and mastery of the regional language of the State to which they are to be allocated after the completion of their training period. The requirement about practice at the bar may perhaps have to be waived for recruitment to All India Judicial Service, as they will be recruited at a comparatively younger age. It should, however, be essential that the competitors are graduates in law.” 
Para 9.6A of this very 77th Report further notes: “Another reason which should weigh in favour of the creation of the All India Judicial Service is the attraction that an All India Service holds for bright young graduates, including law graduates. The result is that many of them compete for and are selected for the Indian Administrative Service. If the All India Judicial Service is created with the same rank and pay scale as Indian Administrative Service, the Judicial Service would hold perhaps greater attraction for bright law graduates. The Judicial Service in such an event would not be denuded of talented young persons. The Law Commission presided over by Shri Setalvad also felt this difficulty and observed that an important factor which detracts from the attractiveness of the judicial service is the inferiority of the status of a judicial officer compared with that of the executive officer. The Law Commission in this connection referred to the following observations of an experienced Chief Justice: –
“One reason why meritorious young men or young practitioners of some standing keep away from the judicial service is the comparative inferiority of the status of district judicial officers vis-a vis officers of the district executive. Formerly, the district judge, like the district magistrate, used to be a member of the Indian Civil Service and its position in the District was superior to that of the District Magistrate. Under the present system, the district magistrate is a member of the Indian Administrative Service which is a service of an all-India character, while the district judge is a member of the higher judicial service which is a State service. The difference in the category of the cadres to which they belong is reflected in the status they occupy in relation to each other and in the estimation of the public vis-à-vis the district judge feels small and is treated as a person of little consequence. Nor can the district judge attain the sense of independence which he might have acquired, if he had not been under the administrative control of the State Government in regard to his service.”
It must also be brought out here that Parliament Standing Committee endorsed the AIJS in its 64th Report (Para – 50). The Report says: “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 All India Judicial Service 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 the Government may be made applicable in All India Judicial Service.” 
It is also worth pointing out that the first-ever National Judicial Pay Commission (NJPC), headed by Justice K Jagannatha Shetty who is a former Judge of the Supreme Court and who submitted its report in November, 1999 too recommended constitution of All India Judicial Service in the cadre of District Judges as per provision of Article 312(3) of the Constitution of India. The NJPC mooted that the District Judges, directly recruited and promoted, should constitute the AIJS. 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 promoters 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. At present, there are only three All India Services i.e. The Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFS). While the first two were inherited from British Raj, the IFS is the only All-India Service which was created after independence. It was constituted in 1966 under the All India Service Act, 1951 by the Government of India.
It is high time and now as PM Modi has himself said that the setting up of AIJS must be debated, discussed and deliberated upon before finally transforming it into reality. But it must be done soon. It should have happened right at the time of independence but 74 years later we see it still has not materialized! No delay any longer!
It must be underscored that uniformity in standards for selection will definitely improve the quality of different High Courts and will minimize the scope of partiality, arbitrariness and aberrations in judicial selection and simultaneously the quality of dispensation of justice will improve considerably right from the top to the bottom, as it essentially hinges upon the quality of judges recruited. It is the larger public interest that will be served if AIJS is created and also the interest of fair trial and speedy justice. The recruitment of Judges right from the entry level should be handled by an independent agency just like UPSC and can be named National Judicial Service Commission (NJSC).
It would be the job of NJSC to ensure that only and only the best talent selected through open competition is selected into AIJS thereby ensuring fair and transparent selection process just like IAS, IPS and others are selected into Civil Services by UPSC. Also, there should be comprehensive training of 2-3 years after selection in AIJS to be undergone in National Judicial Academy as we see in Bhopal.
We see court cases not ending even after more than 50 years. This completely erodes and tears apart the otherwise irrevocable faith of people in getting justice from courts. In foreign countries like USA, UK and Canada cases are decided very soon. But in India it is exactly the opposite. This must change if we want to project the image of India as a global destination centre for investment. That can happen only when cases are decided in time. Fair, fast and uniform justice keeps the people’s faith ingrained in the system which is so important for the successful functioning of any democratic country. Access to fair, fast and uniform justice is deeply rooted in the concept of democracy and regarded as a basic human right. 
For cases to be decided in time, we need to have adequate number of judges which in turn is possible only if AIJS is started at the earliest. There is just no other viable option available and Centre must grab it with both hands and do the needful so that people at large benefit the most from it for whom justice is really meant. Only such a meritocratic service with open competitive examination and 2-3 years of comprehensive training to all the trainee judges and assured standards of probity and efficiency would be able to ensure “Fair Trial and Speedy Justice’ to citizens in spirit of the Article 21. Unnecessary delay gradually declines the citizenry faith in judicial system which is most dangerous. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become casualty. This will only usher in lawlessness which we can allow only at the cost of our own peril!
Needless to say, Opposition too must play its role well by cooperating in ensuring that the Bill for AIJS is passed with thumping majority in both Houses of Parliament. It must be noted that the Union Government cannot do anything unless the Council of States in this behalf passes a resolution to this effect, which is a mandatory requirement for creation of the same as also specified in Article 312. Centre must move a resolution in this regard without further delay. Delay of 70 years is quite a long delay by itself. Now no more alibis of any kind.
It is well accepted by thinkers, philosophers, academicians and jurists that if fair, fast and uniform justice is to be secured to all the citizens, and equality before the law and equal protection of the law has to be ensured, India needs the best talent in the judiciary. Needless to say, the quality of justice dispensation will ameliorate considerably right from subordinate courts to the Apex Court by initiating the AIJS and by establishing a NJSC like UPSC which is of seminal and pivotal concern. 
To sum it up: It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. This in turn is possible only if there are adequate Judges. Adequate judges can be made available only if they are recruited in large strength through AIJS just like we see in case of IAS, IPS, IFS and other Civil Services. This alone explains why I mince no words to state emphatically that, “To constitute AIJS would be the greatest step since independence”. It brooks no more delay anymore now! I am sure that PM Narendra Modi would take further necessary steps to ensure that AIJS is given the green signal and after getting it passed in Rajya Sabha with the cooperation of Opposition as we saw recently in case of GST is soon brought into action! It is the young generation especially those who have just graduated or are about to graduate in Law in any part of India that will benefit remarkably by leaps and bounds if PM Narendra Modi takes this landmark and momentous decision anytime soon! I only hope that it does not again turn out to be an endless wait for them also as we saw most unfortunately in the past! Let’s hope fervently that history will not repeat itself again!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh