The NDA government, which lacks the numbers in the Rajya Sabha, is trying to convince parties to support its move to set up an all-India judicial service (AIJS), contending that it will help promote federal governance.
Besides the hurdle it faces in getting the nod of the Upper House, the government is also aware that some of the high courts are opposed to the idea of AIJS to recruit judges for lower courts and the issue can be challenged legally.
A proposal to set up the service has been hanging fire since 1960 due to difference of opinion between the states and the judiciary.
Law Minister Ravi Shankar Prasad raised the issue of AIJS at the meeting of the consultative committee attached to ministry on March 30.
Prasad heads the consultative committee on Law and Justice which also has nine members representing both the Lok Sabha and the Rajya Sabha.
He has now written to the members of the committee seeking their views on AIJS.
“Creation of AIJS will help strengthen the federal governance by not only attracting some of the best talents in the country, but also by bringing to the states judicial officers from other parts of the country having different cultural and linguistic background.
“It will also facilitate inclusion in judiciary of competent persons belonging to underprivileged and marginalised communities,” the minister has written.
He said AIJS will enable better application of laws and procedures across the country and the harmonised procedures would, in turn, help in promoting better judicial governance.
But one of the members of the consultative committee, Majid Memon of NCP, is not convinced.
“The subordinate judicial officers are mainly concerned with trial work. Requirement of knowledge of local language is indeed indispensable for a judicial officer.
“Perfunctory or workable knowledge of the local language which would suffice for officers in administrative services will not be sufficient for a judicial officer,” he wrote back to Prasad.
He said the courts have to form their opinion about the truth of a matter on the basis of what the witnesses say and any lack of expertise to understand the language of the witness would affect the appreciation of evidence by the judge.
The Narendra Modi government has given a fresh push to the long-pending proposal to set up the new service to have a separate cadre for lower judiciary in the country.
There is also a divergence of opinion among state governments and respective high courts on the constitution of the AIJS.
One of the problems cited is that since several states, using their powers under Code of Criminal Procedure (CrPC) and Code of Civil Procedure (CPC), have declared that the local language would be used in lower courts even for writing orders, a person, say selected from Tamil Nadu, may find it difficult to hold proceedings in states like Uttar Pradesh and Bihar.
The issue was first discussed in 1960 but the plan has not taken off due to persisting differences.
Article 312 of the Constitution states that 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”.
It can be done provided the Rajya Sabha passes a resolution — supported by not less than two-thirds of the members present and voting– that it is necessary or expedient in national interest to do so.