Report No. 116
Apex Body to be in Overall Charge of Judicial Services
5.14. Judicial service is not a service so-called. It is a way of life. There used to be some kind of reverence for judges because the seat of justice was described as seat of God. And yet the judicial service did not have an apex body composed of experts to deal with it. Supreme Court of India has no superintendence over High Courts. Each High Court in its own State deals with its own problems. Local hue and colour paint the scenario. Its ugly features are that over a period, regionalism, parochialism and in some cases even narrow casteism reared their ugly head in judicial service causing loss of status, prestige and credibility of the service.
To arrest these tendencies, in 1982, the Ministry of Law and Justice is reported to have taken a policy decision that the Chief Justice in each High Court shall be from outside the jurisdiction. The policy is being implemented in fits and patches. This policy was said to be supported on the plea that it would advance national integration, arrest fissiparous and parochial tendencies and generally be conducive to the healthy growth of judicial service. The person coming from outside the jurisdiction would be free from local bias, local prejudice and local undesirable atmosphere.
Working of the Constitution for nearly three and a half decades has belied, albeit partially, some of the assumption underlying some provisions of the Constitution: to wef Article 233 which involves States Public Service Commission in the matter of recommending candidates to man posts in subordinate judiciary below the level of the district judge. It does not require a long argument to affirmatively assert that State Public Service Commissions generally have lost their credibility. Way back in 1958, the Law Commission observed that the evidence given by members of the Public Service Commissions in some of the States does create the feeling that they do not deserve to be in the responsible posts they occupy. In some of the southern States, 'the impartiality of the Commissions in making selections to the judicial service was seriously questioned.'1
Recently in Ashok Kumar Yadav,2 the High Court of Punjab and Haryana held that 'the Chairman and Members of the Haryana Public Service Commission have been appointed purely on the basis of political partisanship and caste considerations and that they did not satisfy the stringent test of being men of high integrity, calibre and qualifications. Undoubtedly, the Supreme Court did not approve of these remarks but, in the concluding para of its judgement, the Supreme Court observed that when the Public Service Commissions undertake the task to recommend candidates for judicial service, in every State a sitting judge of the High Court must be invited as an expert to judge the quality and character of each candidate appearing for the interview and 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 rot that has set in, as noticed in 1958, has further accentuated as transpires from the aforementioned observations. Therefore, a time has come to set up a body composed of experts in the judicial service to take over the functions of setting up, manning, running and dealing with judicial service from the grassroot to the top level. The Law Commission has in its time table plans for submit a detailed report in this behalf because, while examining the question of delay in disposal of cases from various angles, one defect that has come to its notice is the delay in making appointment of justices to the High Courts and Supreme Court of India.
The delay in making appointments varies from three years as in the case of Andhra Pradesh High Court to around one year on an average and around ten months in the Supreme Court of India. The delay in making appointments may be on account of complex multiple reasons but its fall out is that it acts as a brake in the disposal of causes and controversies in the courts as whole and piles up backlog of cases. This will be dealt with in detail in the proposed separate report.
Now that a judicial service at an all-India level is being proposed and recommended, it is necessary to set up a National Judicial Service Commission. Its raison d'etre, composition, powers, functions and duties will be set out-in detail in a separate report dealing with this aspect. Broadly it must be composed of a recently retired Chief Justice of the Supreme Court of India, one or two retired Justices of the Supreme Court, three to five retired Chief Justices of the High Courts, one to two retired Judges of the High Court, two outstanding members of the Bar, President of the Bar Council of India and two to three outstanding legal academics. The body shall be constituted by the President of India.
1. Law Commission of India, Fourteenth Report, Vol. I, Chapter IX, para. 27.
2. Ashok Kumar Yadav v. State of Haryana, (1985)4 SCC 417.
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