Report No. 116

2.5. Swaran Singh Committee, 1976, dealt with the question of organising judicial service at an all-India level. Without expressing any opinion, it referred the problem of all-India Judicial service to the Government for their consideration and decision after consultation with the State Governments. Commenting on the proposal whether judicial service should be organized on an all-India level, the then Chairman of the Law Commission1 expressed in his personal opinion an apprehension that no lawyers with sufficient practice would like to face the prospects of transfer by applying for the posts of subordinate judges. It may be said that practising lawyers joining Indian Judicial Service would form a small fragment of it as per the scheme envisaged in this report.

1. Shri P.B. Gajendragadkar, Chairman, Law Commission, submitted his comments in his individual capacity.

2.6. Clause 45 of the Constitution (Forty-fourth Amendment) Bill, 1976, dealt with amendment to Article 312 by introducing the words 'including an all-India judicial service' after the words 'all-India service' and before the words 'common to the Union and the States.' Explaining the Objects and Reasons for the pro posed amendments accompanying the Bill, it was said:

"This clause seeks to amend Article 312 of the Constitution relating to all-India Service to provide for the creation of an all-India Judicial Service by a Parliamentary law. Such service shall not include any post inferior to that of a district judge."

It is rather difficult to make out any compelling necessity for the amendment. In fact, even without the amendment if the resolution was adopted by the Rajya Sabha with requisite majority. Parliament could have enacted a legislation for setting-up an all-India judicial service. That apart, it may as well be pointed out that no worthwhile debate appears to have taken place relevant to clause 45. The Constitution Amendment cannot be undertaken as a futile exercise. It is, therefore, legitimate to assume that what was considered unnecessary in 1946 after a lapse of three decades became a compelling necessity. And it does not require long argument or detailed analysis to reach the conclusion that a service organised on an all-India level attracting talent from the whole country would provide more competent service than the service organised at a State level.

2.7. As the service upto and inclusive of the level of district judge remained a State subject, every State enacted its own laws for recruitment to the service, conditions of service of the members thereof and allied subjects. These laws vary from State to State. In a separate report which is being submitted a short time later, a detailed examination has been undertaken to point out the inadequacy of the laws dealing with the State Judicial Service and as a consequence the present distressing situation.

2.8. The All-India Services Act, 1951, was enacted to regulate the recruitment and the conditions of service of persons appointed to the all-India services common to the Union and the States. At the commencement of the Act, there were already two services common to the Union and the States, namely, the Indian Administrative Service and the Indian Police Service. Section 2A was incorporated in the Act by the All-India Services (Amendment) Act, 1962, with effect from 6th September, 1963.

Since then a number of all-India services have been set up, such as (1) the Indian Service of Engineers (Irrigation, Power, Buildings and Roads); (2) the Indian Forest Service; (3) the Indian Medical and Health Service; (4) the Indian Revenue Service; (5) the Indian Audit and Accounts Service, etc. Formation of an all-India judicial service was equally within the contemplation of those charged with the duty to set up services common to Union and the States. However, till 1976 the earlier view that the judicial posts up to the level of a district judge should be dealt with by the State and the High Court in the respective States remained firmly implanted.

2.9. Article 312 of the Constitution of India provides for creation of one or more all-India services. It was amended by the Constitution (Forty-second Amendment) Act, 1976, to include an all-India judicial service. For convenience of reference, it may be extracted here:

"312. All-India services.-(1) Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do. Parliament may by law provide for the creation of one or more all-India services (including an all-India judicial service) common to the Union and the States, and subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed to any such service.

(2) The services known at the commencement of this Constitution as the Indian Administrative Service end the Indian Police Service shall be deemed to be services created by Parliament under this article.

(3) The all-India judicial service referred to in clause (1) shall not include any post inferior to that of a district judge as defined in Article 236.

(4) The law providing for the creation of the all-India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of 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 this Constitution for the purposes of Article 368."

Article 312 even in its unamended form would have enabled the Union Government to set up an all-India judicial service provided a resolution with the requisite majority to that effect was adopted by Rajya Sabha and pursuant to the same a legislation was enacted for that purpose. The amendment merely made explicit what was implicit in the unamended article. Having regard to the provisions contained in Chapter VI, Part VI, of the Constitution (Articles 233 to 237), it was provided in Article 312(4) that consequential changes or amendments in any of the aforementioned articles because of the enactment of a legislation setting up an all-India judicial service would not be deemed to be an amendment of the Constitution for the purposes of Article 368.

Article 312(3) restricts the power of the Parliament, while enacting a law for setting up of an all-India judicial service, not to include any post in it inferior to that of a district judge as defined in Article 236. Consequently, even if an all-India judicial service is to be set up, it cannot include any post inferior to that of a district judge as defined in Article 236. Such a service, when set up, would be common to the Union and the States including the Union territories, and would regulate the recruitment and conditions of service of persons appointed thereto.

If, therefore, Rajya Sabha adopts a resolution with requisite majority, it would enable the Parliament to enact a legislation for creation of an all-India judicial service common to the Union and the States. To that extent, the power vested, under entry 65 of the State List read with Articles 233 and 234, in the State Government would be effectively curtailed. If the requisite pre-conditions prescribed in Article 312 are satisfactorily carried out, there is no constitutional impediment to the formation and creation of an all-India judicial service which can be appropriately described as Indian Judicial Service.