Report No. 116
Formation of an All-India Judicial Service
Chapter I
Introductory
1.1. The Government of India accorded high priority to the introduction of basic reforms in the administration of justice as prevailing in the country. Accordingly, the Law Commission was requested to submit comprehensive proposals on various aspects relevant to judicial reforms. One of the terms of reference in the context of studying judicial reforms assigned to the Law Commission was term No. 9: "Formation of an All-India Judicial Service". The assignment was received by the Law Commission on 17th February, 1986, accompanied by a request to accord top priority to the terms and submit separate recommendations relating to each term of reference as expeditiously as possible.
The anxiety for speed is well appreciated. Whenever an inquiry was made about the steps Government proposed to take for introducing comprehensive and basic reforms in the administration of justice, the official spokesman, on behalf of the Government, stated that this work was assigned to the Law Commission and that the Law Commission is dealing with it as a top priority matter.
Even apart from this, the present state of justice delivery system which has been examined by the present Law Commission in depth in its One Hundred Fourteenth Report submitted to the Government of India on August 12, 1986, the Law Commission found it imperative to draw up strategies for judicial reforms and to deal with distinct areas requiring elaborate focussed analysis. But all these areas though distinct are also related: when implemented, the cumulative result, it is hoped, would be that the justice delivery system which is moribund may revive, become resilient and access to justice comes within the easy reach of the poorest and the system becomes result-oriented, informal and de-professionalised.
1.2. The Law Commission is convinced that court system, in final analysis, is nothing but a mechanism for resolving disputes arising in a society. Indian social scene presents a grim picture of society ultra rural to most advanced industrialised one. There are intermediate layers. Commonsense dictates that mechanism for solving highly complex disputes would be counter-productive for resolving simple petty disputes arising in rural areas. However, the monolithic British legal system introduced in colonial days operates today without any perceptible change for all layers of society. To illustrate, a dispute in metropolitan area involving complex legal formalities and complicated facts may need a highly developed justice delivery system but the same would be wholly unsuited for speedily solving simple disputes arising in rural areas without waste of time, money and energy.
As a first step it collected data to ascertain, the nature of disputes in rural, semi-urban, urban and metropolitan areas. According priority to the needs of the rural population for a simple mechanism for resolution of their small and petty disputes, it prepared a working paper for reviving Gram Nyayalaya providing a de-professionalised, less formal forum for resolution of simple disputes arising in rural areas. As that was the first attempt of the present Law Commission to tackle the difficult question, an attempt was made to develop a national debate so that views and comments from all vitally affected interests could be gathered so as to be able to present a comprehensive report meeting all points of view.
A number of workshops were held throughout the, length and breadth of the country in collaboration with local academics. Bar Associations, Universities and Law Colleges. Taking advantage of the opportunity presented by intensive discussions in workshops, the Law Commission also invited a debate on aspects inter-connected with restructuring grass-roots judiciary. One such aspect was formation of all-India judiciary.
1.3. The control over district courts and courts subordinate thereto has been vested in the High Court of the State. The scope, the content, the ambit and the width of the control have been the subject-matter of numerous judicial decisions. The control has become all pervasive. Accordingly, it was felt that the Chief Justice of India, and the Judges of the Supreme Court of India, the Chief Justice and Judges of each High Court would be well informed and well equipped to assist the Commission in formulating a scheme for setting up all-India judicial service. To encompass a broad spectrum of considered opinion relevant to the subject, the Commission addressed individual and personal letters to each Chief Justice and each sitting Judge of each High Court functioning in the country.
A detailed letter was also addressed to the Chief Justice of India. A copy of the terms of reference in the context of studying judicial reforms was annexed to each such letter. Each Judge was requested to give his detailed comments and suggestions with regard to all or any of the terms of reference but specifically inviting attention to term No. 9 which specifies formation of all-India judicial service. It is heartening to note that even though, extremely busy with their day-to-day work, a number of Judges from various High Courts responded to the letter of the Commission. There was elaborate discussion with the Chief Justice of India, some of the Chief Justices of the High Courts and some Judges of the High Courts. It is sad that this compliment cannot be extended to the Judges of the Supreme Court of India.
The Commission had discussions with the officers in the Department of Justice. Ministry of Law and Justice, Government of India. They also submitted the information collected by them in this behalf from State Governments, Union Territory Administrations as well as the resolutions of the conferences of the Chief Justices held in the past. The opinion of the Chief Justices of the High Courts were also summarised and submitted to the Commission. The Commission was also invited to hold a dialogue at the Indian Law Institute where all the members of the Governing Council were present along with select invitees. The discussions provided new ways of exploration of the many dimensions of the problem. The Commission is especially appreciative of the initiative taken in this regard by Dr. Upendra Baxi, Director (Hony.) of Research of the Indian Law Institute.
