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Report No. 116

Preliminary Steps for The Constitution of Service

5.2. While accepting that the independence of the Judiciary is a cardinal feature of our Constitution and therefore the framers of the Constitution took adequate and effective steps for insulating judiciary from outside pressures and interference, yet in the matter of judiciary subordinate to the High Court, it was not given effective protection in Part VI, Chapter VI, of the Constitution which deals with subordinate courts. The assumption underlying the sketchy provisions is that the High Court would stand as a bulwark against any attempts at undermining the independence of subordinate judiciary.

In fact the flesh and blood have been infused into the skeleton provisions of Articles 233, 234, 235 and 236 by numerous decisions of the Supreme Court of India. One view was that even a provision with regard to setting up Indian Judicial Service with all its ramifications should have found its place in Part VI, Chapter VI, of the Constitution. Be that as it may time has now come to take all effective and concrete steps towards setting up Indian Judicial Service.

Article 233 provides 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 233(2) provides that a person not already in service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. Article 234 provides 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 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.

Both these articles will have to be suitably amended to provide for setting up of Indian Judicial Service. Article 234 will have to be amended for removal of State Public Service Commission even in the matter of appointment to State Judicial Service. Let it be recalled that the amendment would be by an ordinary law as Article 312(4) ensures that the law providing for the creation of an all-India judicial service as per the resolution of the Rajya Sabha may contain such provisions for the amendment of Chapter VI, 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 the Constitution for the purposes of Article 368.

Articles 233 and 234 would need suitable amendments to provide for setting up of Indian Judicial Service, its initial constitution, further recruitment and a body charged with a duty to take steps for future recruitment to the Service. Article 233 will have to be amended to confer power on the President to appoint members of Indian Judicial Service on the recommendation of National Judicial Service Commission. Article 234 will have to be amended for the purpose first indicated herein above.



Formation of an All India Judicial Service Back




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