Sambhav-2023

Answer 1

Approach:

• Start your answer by giving a brief about appointment process of judges of SC and HC.
• Discuss the advantages of All-India Judicial Service (AIJS).
• Discuss the issues with the All-India Judicial Service (AIJS).
• Conclude suitably.

Introduction

Articles 124 (2) and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts. The appointments are made by the President, who is required to hold consultations with “such of the judges of the Supreme Court and of the High Courts” as he may think is needed.

But the Constitution does not lay down any process for making these appointments. Due to this system, there is a huge vacancy in the judicial system which has caused a rise in the pendency of cases. To tackle this problem the All-India Judicial Service (AIJS) is an apt answer. Hence, there is a need to implement the 42^nd Constitutional amendment in 1976 whole-heartedly.

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Advantages of AIJS:

• Addressing Judges to Population Ratio: India has the shortage of judges in the judiciary which leads to arrears of work. Thus, AIJS envisages bridge the underlying gap in judicial vacancies.
• Higher Representation of Marginalized Sections of Society: According to the Government, the AIJS to be an ideal solution for equal representation of the marginalized and deprived sections of society.
• Attracting Talent Pool: The government believes that if such a service comes up, it would help create a pool of talented people who could later become a part of the higher judiciary.
• Bottoms-Up Approach: The bottom-up approach in the recruitment would also address issues like corruption and nepotism in the lower judiciary. It will improve the quality of justice dispensation in the lower levels of society.
• Ease of Doing Business: The government has targeted the reform of lower judiciary in its effort to improve India’s Ease of Doing Business ranking, as efficient dispute resolution is one of the key indices in determining the rank.

Challenges Associated With AIJS:

• Dichotomy Between Articles 233 and 312: As per Article 233, recruitment to subordinate judiciary is the prerogative of the State.
  • Due to this, many states and high courts have opposed the idea on the ground that it would go against federalism.
• Language Barrier: Since cases in lower courts are argued in local languages, there have been apprehensions as to how a person from north India can hold hearings in a southern state. Thus, another fundamental concern regarding AIJS is the language barrier.
• Constitutional Limitation: Clause 3 of Article 312 places a restriction that AIJS shall not include a post inferior to that of a district judge. Thus, appointment of the subordinate judiciary through AIJS may face a constitutional barrier.
• Dilution of Administrative Control of High Court: Creation of AIJS would lead to an erosion of control of the High Courts over the subordinate judiciary, which might affect the judiciary’s independence.

Conclusion

The insurmountable number of pending cases calls for the establishment of a recruitment system that recruits efficient judges in large numbers for speedy dispensation of cases. However, before AIJS gets into the legislative framework, there is a need to build consensus and take a decisive step towards the AIJS.

Answer 2

Approach:

• Start your answer by giving a brief about Tribunals.
• Discuss the constitutional provisions related to the Tribunals.
• Discuss the advantages and issues with the Tribunals.
• Conclude suitably.

Introduction

Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes. It performs a number of functions like adjudicating disputes, determining rights between contesting parties, making an administrative decision, reviewing an existing administrative decision and so forth.

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Constitutional Provisions Related to Tribunals:

Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by the 42^nd Amendment Act, of 1976:

• Article 323-A deals with Administrative Tribunals.
• Article 323-B deals with tribunals for other matters.

Articles 323 A and 323 B differ in the following three aspects:

• While Article 323 A contemplates the establishment of tribunals for public service matters only, Article 323 B contemplates the establishment of tribunals for certain other matters.
• While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence.
• Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of the hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.

Advantages Associated with the Tribunals:

• Speedy Trials: The tribunals are much quicker than that of the Courts in hearing and deciding the cases. A related advantage of the tribunal system is the certainty that it will be heard on a specified date, and it will decide a case within a specific period of time. In most of cases, the provisions of law by which the tribunal is set up provide that the dispute or case must be settled within a specified time.
• Low Cost: To make a tribunal functional the expenditure incurred by the Government is comparatively less and parties too, have to bear the minimum of expenditure. Thus, tribunals are much cheaper way of deciding cases than taking recourse to the regular procedure of the court.
• Informality: Tribunals conform to an informal procedure. The strict rules relating to the evidence, pleading and procedure, which apply in the Courts, are not binding in the tribunal’s proceedings. They observe principles of natural justice and fair play.
• Flexibility: The tribunals are not bound to follow the strict rules of precedent. So, in every case a Tribunal has the chance to correct its previous decision or if the previous decision was correct the tribunal can take the view. But it is customary practice that as the tribunals are inferior to the Courts, they follow the precedent of the Courts.

Issues with the Tribunals:

• Lack of Independence: According to the Vidhi Centre for Legal Policy report (Reforming the Tribunals Framework in India) the lack of independence is one of the key issues plaguing tribunals in India. At the outset, the system of appointment through selection committees severely affects the independence of tribunals.
• Problem of Non-Uniformity: Added to this is the problem of non-uniformity across tribunals with respect to service conditions, tenure of members, varying nodal ministries in charge of different tribunals. These factors contribute significantly to malfunctioning in the managing and administration of tribunals.
• Institutional Issues: Executive interference in the functioning of tribunals is often seen in provision of finances, infrastructure, personnel and other resources required for day-to-day functioning of the tribunals.
• Ignoring Recommendations: Recommendations of names by the selection committees led by sitting Supreme Court judges to fill up the vacancies have been largely ignored by the government.
• Denying the Right of the People to Access Justice: The Court pointed out that with tribunals defunct and High Courts having no jurisdiction over the areas of law wielded by tribunals, litigants have nowhere to go for justice.

Conclusion

The Tribunals with the pursuit of the principles of natural justice and expert knowledge has helped in making justice accessible to every section of society. If some defects of the tribunals are reformed then they would do a great service by timely decisions and easy accessibility.