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Report No. 116

Chapter II

Historical Background

2.1. By and large, 'the Government of India Act, 1935' has been accepted as a model while framing the Constitution for free India. Part IX dealt with the 'Judicature'. Chapter I in Part IX dealt with the Constitution and jurisdiction of the Federal Court and appointment of Judges to the Federal Court. The provisions contained in Chapter II, Part IX dealt with the constitution, jurisdiction, functions and duties of the High Courts in British India. Though Part IX dealt with the 'Judicature', services below the High Court did not find any place in that Part. Part X dealt with the services of the Crown in India. Sections 254, 255 and 256 under the sub-title 'special provisions as to Judicial Officers' in Chapter II, Part X dealt with subordinate judiciary. Section 254 provided for appointment of district judges and if is in pari materia with Article 233(1).

Section 254(2) is in pari materia with Article 233(2) with this difference that for being eligible to be appointed as a district judge from amongst senior and experienced members of the Bar, the minimum qualifying practice required was five years which has been enhanced to seven years under the Constitution. Section 254(3) is bodily reproduced in Article 236(a). Section 255 dealt with subordinate civil judiciary and section 256 dealt with subordinate criminal magistracy The framers of the Government of India Act, 1935, showed their disinclination to separate Executive from the Judiciary and the executive stranglehold of 'Criminal Magistracy was effectively maintained by the provisions contained in 256.

The Provincial Services Commission was given a role in the matter of selection of members of subordinate civil judicial service. Entry 2 in List II, Provincial Legislative List, conferred legislative and executive power on the State to prescribe, jurisdiction and powers of all courts except the Federal Court. The departure made in the Constitution in this behalf has insulated subordinate judiciary against outside interference. The High Court has been accorded a decisive voice in the matter of appointment to the cadre of district judges directly from the Bar and even in the matter of promotion from the subordinate rank to the cadre of district judge.

Even in the matter of recruitment to judicial service of a State below the district Judge, the power to select candidates was conferred on the State Public Service Commission as was provided in section 255 of the Government of India Act, 1935. Consultation with the High Court before making appointments was made obligatory. Article 235 made a specific departure in that the control over district court and court subordinate thereto was conferred on the High. Court. The control has become all pervasive as will be pointed out hereafter.

2.2. The services known as the Secretary of State's services namely, Indian Civil Service and the Indian Police Service were to lapse on the advent of freedom.1 The interim Government undertook an exercise to devise alternative models to replace those services. The question whether the judicial service should be organised on an all-India basis or should be left to be organised by each State, was examined in the conference of the Premiers of the Provinces in 1946 chaired by the then Home Minister, late Sardar Vallabhbhai Patel. This conference resolved that subordinate judicial service should be organised by the Governments of Provinces.

The conference was of the opinion that there was no necessity for organising subordinate judiciary on all-India level on the model comparable to administrative services which was to be formed on an all-India basis replacing the then existing civil services. Two factors appeared to have a bearing on the decision of the conference. Till the advent of independence, there was a quota for members of Indian Civil Service to be posted as District and Sessions Judges and who in turn got elevated to the High Court. This was a devious device to thwart total separation of Executive from Judiciary. Undoubtedly, when the Secretary of State's Services lapsed and wore replaced by IAS and IPS respectively, a spolicy decision was taken not to post any member of the IAS to man judicial posts, though those who were already fixed in service were not recalled.

This was the starting point in independent India of separating Executive from the Judiciary. It may be recalled that during the independence movement, separation of Executive from the Judiciary was the vital plank of nationalist demand which has found its reiteration in Article 50 of the Constitution. But apart from all this, probably the model found in the provisions contained in sections 254 to 256 relating to subordinate Judiciary with minor variations was found acceptable and hence reproduced in Part VI, Chapter VI of the Constitution.

1. Section 10, The Indian Independence Act, 1947.

2.3. Neither in the Draft Constitution prepared by the Constitution Adviser in 1947 nor in the one prepared by the Drafting Committee in 1948, there was any specific provision on the subject of subordinate judiciary.1 This omission was specifically noticed and mentioned by the Conference of the Judges of the Federal Court and the Chief Justices of High Courts held in March 1948. Their Memorandum observed:

"So long as the subordinate judiciary, including the district Judges, have to depend on the provincial executive for their appointment, posting, promotion, and leave, they cannot remain entirely free from the influence of members of the party in power and cannot be expected to act impartially and independently in the discharge of their duties. It is therefore recommended that provision be made placing exclusively in the hands of the High Courts the power of appointment and dismissal, posting, promotion and grant of leave in respect of the entire subordinate judiciary including the district judges."2

The Drafting Committee accepted these recommendations. The view expressed was that the two branches of justice, both civil and criminal, be assimilated and be placed equally under the control of the High Court.3 The matter remained there. The provision regarding the subordinate judiciary came up for discussion nearly nine months later on September 6, 1949. Dr. Ambedkar moved Articles 209(a) to 209(f). There was no provision for extending the control of the High Court over criminal Magistracy. Dr. Ambedkar conceded that there is nothing revolutionary in the articles moved by him. Even in the Act of 1935, appointment and control of the civil judiciary was vested in the High Court.

The language, as earlier pointed out, of section 254 may indicate that the power of appointment was conferred on the Governor to be used in his individual judgment and before so using the power, the High Court was to be consulted. The word 'control' was not there. After the advent of the Constitution, the word 'control' made all the difference as has been examined in detail a little later. There was hardly any debate worth the name on the relevant provisions. When Article 282, the precursor of Article 312, was debated, no attention was focussed on the question of judicial service being organised on an all-India level. The focus of attention was whether the Parliament can legislate for organising any service on all-India basis if, and only if, a resolution with requisite majority is adopted by the Rajya Sabha. Replying to the debate, Dr. Ambedkar pointed out that-

"Article 282 proceeds by laying down the proposition that the Centre will have the authority to recruit for services which are under the Centre and each State shall be free to make recruitment and lay down conditions of service for persons who are to be under the State service. We have, therefore by Article 282 provided complete jurisdiction. 282C to some extent takes away the autonomy given to the States by Article 282, and obviously if this autonomy is subsequently to be invaded, there must be some authority conferred upon the Centre to do so, and the only method of providing authority to the Centre to run into, so to say, Article 282 is to secure the consent of two-thirds of the members of the Upper Chamber. The Upper Chamber is the only body mentioned in Article 282.`Ex-hypothesi the Upper Chamber represents the States and therefore their resolution would be tantamount to an authority given by the States. That is the reason why these words are introduced in Article 282C".4

1. B. Shiva Rao The Framing of India's Constitution-A Study, p. 508.

2. Ibid.

3. Ibid.

4. The Constituent Assembly Debates, Vol. IXB, P. 1118.

2.4. Even though our Constitution is quasi-federal in character, duplication of services, one for the States and other for the Union, was clearly rejected. Even in the two premier administrative services, the IAS and the IPS, though organised on an all-India level, its members were allocated to the States. There was no allocation of any of its members to the Union. The States would depute from amongst the members allocated to them for rendering service to the Union as per the requirements of the latter.

Ordinarily, a service common to States and Union should be organised on an all-India level. Article 312 was enacted to make an enabling provision conferring power on the Parliament to set up all-India services. Broadly interpreted, if the pre-requisites set out in Article 312 are satisfied, Parliament by law could create an all-India service common to the Union and the States. It appears some doubt was felt whether the judicial service can be organised on an all-India level.

Formation of an All India Judicial Service Back

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