Report No. 116
Infrastructure for Holding Examination
5.8. The next aspect which must engage our attention is about the body to be charged with a duty not only to hold the examination but to be wholly responsible for all the aspects of effectively implementing the scheme of introducing and managing the service. Union Public Service Commission, having the expertise to hold examinations for various all-India services, was, according to some persons, quite competent to undertake this task. One view was that the examination for recruitment to Indian Judicial Service must not be separately held but it must be a part of the examination to be held for recruitment to IAS and allied services with some special subjects in law.
Judicial service has a speciality of its own. It is not a service, it is a way of life. It has been conceded on all hands that those who have served the judiciary are pre-eminently suited to participate in the process of recruitment to judiciary. Even though Article 234 of the Constitution provides that recruitment to judicial service of a State other than the cadre of district judge shall be made by the Governor after consultation with the Public Service Commission and the High Court exercising jurisdiction in relation to such State, it has been judicially noticed that even where the power to recommend persons for recruitment to State Judicial Service vests in the Public Service Commission, usually at the time of selecting candidates for State Judicial Service, the Public Service Commission invites a sitting or retired Judge of the High Court as an expert and the advice given by such expert High Court Judge who also participates in the viva voce test is generally accepted.
However, cases are not unknown where this advice is sometimes ignored. The Supreme Court frowned upon this departure by observing that such practice is undesirable and does not commend to the Supreme Court.1 The court recommended that when selections to the judicial service are being made, a sitting judge of the High Court to be nominated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting judge comes as an expert who by reason of the fact that he is a sitting High Court judge knows the quality and character of the candidates appearing for the interview, the advice given by him should ordinarily be accepted unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission.
The Supreme Court gave a direction to the Public Service Commissions in every State that the finest talent should be recruited to the judicial service and that can be secured only by having a real expert (sitting judge of the High Court) whose advice constitutes a determinative factor in the selective process.2 In the matter of selection of members of the Bar to be appointed as district judges, the High Court has a preponderant voice as required by Article 233. It need not be recalled that Article 217 accords the place of preeminence to the Chief Justice of the High Court and the Chief Justice of India in the matter of selection of High Court Judges.
Finally, in the matter of appointment of a judge of the Supreme Court, the power is conferred on the President to appoint a person as a Judge of the Supreme Court after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary and that in the matter of appointment of any Judge of the Supreme Court except Chief Justice of India, the latter shall always be consulted. (See Article 124 of the Constitution). It cannot, therefore, be gainsaid that in the matter of appointment to judicial service, personnel manning the judiciary at various levels have not only a decisive voice but they are considered pre-eminently suitable for this task.
Once, therefore the function to hold competitive examination for direct recruitment to Indian Judicial Service is handed over to Union Public Service Commission, this pre-eminence would be displaced or abrogated. Only non-judicial personnel would be recommending persons for recruitment to judiciary which would run counter to the spirit of the Constitution (Articles 124, 217, 233 and 235). Therefore, it is absolutely indispensable that a body composed of judges, lawyers and legal academics should be charged with a duty to conduct examinations to hold viva voce test for recruitment to Indian Judicial Service.
Such a body, when formed, can be charged with a duty to look after the management of the service also. It is, therefore, recommended that National Judicial Service Commission should conduct the examination. For holding the examination, the National Judicial Service Commission shall draw up a syllabus. While leaving the prescription of the detailed syllabi to such a body of experts composing the National Judicial Service Commission, broadly it must be stated that the same should include papers on-
(a) Constitution of India;
(b) sociology of law and inter-disciplinary correlations;
(c) procedure-civil and criminal;
(d) legal aid;
(e) goals of justice system, conciliation; methodology and expeditious resolution of disputes, and participatory justice;
(f) Judicial discretion, sentencing process, interim orders; costs; and
(g) modern court management techniques and inter-relation with jail, bails. Bar, social activists and legal educational institutions. This list is illustrative and not exhaustive. Those who qualify at the written test by obtaining 60% of the total marks would be eligible for being called for viva voce test which shall be of 100 marks. On the combined result of the written test and the viva voce test, a merit list must be drawn up.
1. Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417.
2. Ibid., p. 457