All India Judicial Service - A Debate
I. Basic Constitutional Provisions relating to Subordinate
Judiciary
Chapter VI of Part VI of the Constitution of India deals
with subordinate courts. Clause (1) of Article 233 says that “appointments of
persons to be, and the posting and promotion of, district judges in any State
shall be made by the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State.”
Article 234 says that appointments of persons other than
district judges to the judicial service of a State shall be made by the
Governor of the State in accordance with the rules made by him in that behalf
after consultation with the State Public Service Commission and with the High
Court exercising jurisdiction in relation to such State.
Article 235 vests control over the subordinate courts in the
High Court.
Article 236 is an interpretation clause. It defines the
expressions “district judge” and “judicial service” respectively. It is
sufficient to notice the definition of “district judge”. It includes “judge of
a city civil court, additional district judge, joint district judge, assistant
district judge, chief judge of a small cause court, chief presidency
magistrate, additional chief presidency magistrate, sessions judge, additional
sessions judge and assistant sessions judge”.
II. All – India Judicial Service
2. Article 309 of the Constitution which occurs in chapter 1
of Part XIV deals with the recruitment and conditions of service of persons
serving the Union or a State. It empowers the appropriate Legislature to
regulate the recruitment and conditions of service of persons appointed to
public services and post in connection with the affairs of the Union or of any
State.
The proviso however says that until the appropriate
Legislature shall make the rules, it shall be open to the President, in the
case of services under the Union, and to the Governor, in respect of the
services under the State, to make rules for the said purpose.
Article 311 contains three clauses. Clause (1) says that no
member of a civil service, whether of the Union or the State, shall be
dismissed or removed by an authority subordinate to that by which he was
appointed. Clauses (2) and (3) go together. Clause (2) provides for a
disciplinary inquiry to be held against a member of civil service before a
punishment is imposed upon him.
Article 312 deals with the All-India services. Prior to the
Constitution (Forty-second Amendment) Act, 1976, it did not specifically refer
to an All-India Judicial Service. It was however brought in along with Clauses
(3) and (4) by the Constitution Amendment Act.
As it stands today, Article 312 reads as thus:
“312. All-India services- (1) Notwithstanding anything in
[Chapter VI of Part VI or Part XI], if the Council of States has declared by
resolution supported by not less than two-thirds of the members present and
voting that it is necessary or expedient in the national interest so to do,
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, and, subject to the other provisions of this Chapter, regulate the
recruitment, and the conditions of service of persons appointed, to any such
service.
(2) The services known at the commencement of this
Constitution as the Indian Administrative Service and the Indian Police Service
shall be deemed to be services created by Parliament under this article.
(3) The all-India judicial service referred to in clause (1)
shall not include any post inferior to that of a district judge as defined in
article 236.
(4) The Law providing for the creation of the all-India
judicial service aforesaid may contain such provisions for the amendment of
Chapter VI of Part VI as may be necessary for giving effect to the provisions
of that law and no such law shall be deemed to be an amendment of this
Constitution for the purposes of Article 368.”
3. A reading of the afore-mentioned provision of the
Constitution yields the following features:-
(i) The subordinate courts/subordinate judiciary is a State
subject. The appointment of the members of the subordinate judiciary is to be
made by the Governor. However such appointment is to be made in the case of
district judge, in consultation with the High Court and in the case of other
posts, in consultation with the Public Service Commission and the High Court.
As matter of practice, selection of district judges is made by the High Court
on the basis of which, formal order of appointment is issued by the Governor.
In case of Munsiff/ Magistrates, the selection is made by the State Public
Service Commission and the concerned High Court acting together and orders of
appointment are issued by the Governor on the basis of such selection.
(ii) Though Clause (1) of Article 233 does not expressly say
that the appointment of district judges can be regulated by the rules made
under the proviso to Article 309, a conjoint reading of both the provisions
would show that rules can be made under the proviso to Article 309 with respect
to method of appointment of district judges also subject of course to the
provisions to the Constitution including Articles 233 and 160. As a matter of
fact, such rules have been made in several States.
(iii) The control over the subordinate courts is vested in
the High Court. The expression “control” has been construed in a highly
expansive manner by the Supreme Court to take in posting, transfer,
disciplinary matters and all other conditions of service.
(iv) If the Council of States (Rajya Sabha) declares by
resolution supported by not less than two-third of members present and voting
that it is necessary or expedient in the national interest to do so, Parliament
may by law provide for creation of an All-India Judicial Service (AIJS) common
to the Union and the States and also to regulate the recruitment and conditions
of service of persons appointed to such All-India service.
4. So far no such All-India Judicial Service has been
constituted though this matter has been receiving the attention of several
concerned bodies and organizations for the last few decades. It would be
appropriate to refer to the several suggestions made in this behalf.
III. Suggestions of the 1st Law Commission
5. The first Law Commission recommended in its fourteenth
report (volume 1, Chapter IX, Para 59, page 184) the creation of an AIJS. It
opined that such a course is necessary in the interest of efficiency of the
subordinate judiciary. This proposal was considered in the Law Ministers’
Conference held in the year 1960 where strong opinions were expressed for and
against the said proposal. The proposal was accordingly shelved. It appears
that the Chief Justices Conferences held in 1961, 1963 and 1965 favoured the
said recommendation but when the views of the State Governments and the High
Courts were sought, there was a difference of opinion. More than half of the
States and High Courts opposed to the proposal.
IV. Later Recommendations of the Law Commission
6. In August 1969, the Government requested the then Chief
Justice of India to offer his views on the said proposal. The learned Chief
Justice opined that the proposal was not feasible in the face of the then
obtaining provisions of the Constitution. In March 1972, however, the learned
Chief Justice while suggesting to the Government to improve the conditions of
service of subordinate judiciary, also suggested examination of the question of
having an AIJS.
7. The 8th Law Commission while examining the problem of
arrears in trial courts, recommended formation of an AIJS. (77th Report Chapter
IX Para 9.6, page 32)
8. Even after the amendment of Article 312 by the
forty-second amendment, expressly providing for the formation of an AIJS, the
opposition to this idea from several High Courts and State Governments has not
abated.
9. This matter was again considered by the Law Commission in
its 116th report (submitted in November, 1986). The report dealt with three
objections, generally put forward against said proposal, namely :-
(a) inadequate knowledge of regional language would corrode
judicial efficiency both with regard to understanding and appreciating parole
evidence pronouncing judgments;
(b) promotional avenues of the members of the State
judiciary would be severely curtailed causing heart burning to those who have
already entered the service and manning of the State judicial service would be
adversely effected; and
(c) erosion of control of the High Court over subordinate
judiciary would impair independence of the judiciary.
10. The Law Commission considered each of the above
objections at length and rejected them as unsubstantial. It held that a member
of the All-India Judicial Service 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.
With respect to the second objection, the Commission
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.
Similarly, it was held with respect to the third objection,
that the control of the High Court will in no manner be diminished or curtailed
because on allotment to a State, the allottees (members of AIJS) would become
members of the State Judicial Service for all practical purposes with the
difference that “while at present it (High Court) recommends various things
such as promotion or disciplinary action to the Governor, it would be
recommending the same to the National Judicial Service Commission which, in
turn, would make necessary recommendation to the President of India but the
President of India 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.”
Besides rejecting the third criticism, the Law Commission
also emphasized the desirability of such an All-India Judicial Service in the
interest of efficiency. It made elaborate recommendations with respect to the
method of recruitment, holding of examinations, scales of pay, initial pay,
seniority, probation, training and so on. (It also recommended by a separate
report creation of a National Judicial Service Commission).
V. Recommendations of the National Judicial Pay Commission
(i) The AIJS should
be constituted only in the cadre of District Judges as per provisions of
Article 312 (3) of the Constitution. The District Judges directly recruited and
promoted should constitute the AIJS.
(ii) The selection for direct recruitment should be by the
National Judicial Commission / UPSC and the promotees by the respective High
Courts.
(iii) The qualification for direct recruitment to AIJS
should be in conformity with that prescribed under Article 233(2) of the
Constitution.
(iv) Service Judges also should be allowed to compete for
recruitment of AIJS, by appropriately amending Article 233(2) of the
Constitution.
(v) Not exceeding 25% of the posts in the cadre of District
Judges in every State should be earmarked for direct recruitment.
(vi) The age limit for recruitment to AIJS should be between
35 years to 45 years.
(vii) The procedure for selection shall be by written
examination followed by viva voce.
(viii) Appointment : The National Judicial 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 : The prescribed training is only after the
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. Such direct recruits must thus
be annexed to the respective State Judicial Service within the three-tier
system.
VI. Some relevant considerations
12. The National Commission to Review the Working of the
Constitution is of the opinion that while examining the idea of All-India
Judicial Service the following factors may also have to be kept in view:-
(a) Whether the creation of AIJS would lead to further
erosion of the powers of the States whose powers under the present dispensation
are not many?
By virtue of several
entries in the Union List (which provide for the Union taking over certain
subjects within the State List in case the Parliament declares it to be
expedient in public interest) and as a result of the 42nd Amendment to the
Constitution, the powers of the States have already been adversely affected.
Is it advisable to diminish them further by taking away the
power of selection from the High Courts and by vesting it in a Central body?
(b) The provisions of Article 312 of the Constitution as
amended by the Constitution (Forty-second Amendment) Act have really created a
problem.
According to clause (3) of the said Article, such service
shall not include any post inferior to that of a “district judge” as defined in
Article 236.
Now if the idea is to induct bright and young persons to the
service from the age group 24 to 30, such persons have to be posted soon after
selection and training as district judges. District judges not only try serious
criminal cases like murder and dacoity but also exercise appellate jurisdiction
in both criminal and civil matters. They also exercise original jurisdiction in
certain civil matters. Would it be advisable to entrust the direct recruits of
the said age group with such vast powers and would they be able to take upon
such task?
However if the idea is (as recommended by the first National
Judicial Pay Commission) that the direct recruits are to be drawn from the age
group 35 to 45 would there be any improvement over the present position? This
is because age group 35 to 45 means that they are all practicing lawyers. If a
practicing lawyer does not make good in his profession by the time he reaches
the said age group, it means that he is no good. In other words, a practicing
lawyer who has made good by the said age in the profession would not like to
join the AIJS and face the prospect of being posted to some other State and
subject to transfer from time to time. That is the reason why many competent
people are not coming forward to join the service, and if the service is made
an All-India service, with the attending possibility of being allocated to any
other State in India, and then again transfers within that State, would they
not be all the more reluctant to join such a service?
(c) There is yet another circumstance.
If you select persons between the age group 24 to 30 or 24
to 32 and post them as district judges, they would be ripe for being considered
for appointment to the High Court within about 10 to 15 years. (It may be
remembered that in every High Court a particular quota is reserved to be filled
from among the members of the subordinate judiciary. (The quota so reserved
varies today from 40% to 50%.) This means that a member of AIJS would be ripe
for being considered for appointment to the High Court even before he may have
reached the age of 40. Desirability of such possibility should also have to be
kept in mind, particularly in view of the fact that the nature of the work at
the level of the High Court is of a varied character involving fields not dealt
with by District Judges in the subordinate courts.
(d) Would it be advisable to amend Article 312 again by
removing clause (3)?
In such a case, it will be possible to recruit young and
bright persons between the age group 24- 30 to AIJS and to post them as
Munsiff/magistrate to start with and then they would go up the ladder in course
of time. But this course would mean that even the selection and appointment of
music/magistrates would also be removed from the purview of the State and would
stand transferred to a Central body. The desirability of this course is also a
matter to be kept in mind. It may also have to be considered whether such a
course would really mean any improvement over the existing situation or would
it be merely a re-incarnation of the existing system with a slight modification
i.e., selection and appointment (and allocation) by a central body rather than
by the High Court/Public Service Commission/Sate Government?
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