Report No. 116

Chapter III

Attempts to Create All-India Judicial Service and Views Thereon

3.1. The first Law Commission specifically charged with a duty to recommend judicial reforms favoured the creation of an all-India judicial service. Law Commission recommended that in the interest of efficiency of the subordinate judiciary, it is necessary that an all-India service called the Indian Judicial Service should be established.1 This recommendation of the Law Commission was considered in the Law Ministers Conference held in 1960. There has always been a vociferous support and fierce opposition to the concept of an all-India Judicial service from the States and the High Courts. The proposal was then considered not practical and the recommendation was shelved.

On the other hand, the periodical conferences of the Chief Justices of various High Courts convened by the Chief Justice of India in 1961, 1963 and 1965 favoured the acceptance of the recommendation and implen-ientation thereof. In the last mentioned conference, a firm suggestion was made to the Government to take early steps to set up Indian Judicial Service. Again, the views of the State Governments after consultation with the respective High Courts were solicited. Seven States (Bihar, Haryana, Kerala, Orissa, Punjab, Rajasthan and Tamil Nadu) lent support to the proposal while 10 States, namely, Andhra Pradesh, Assam, Gujarat, Jammu & Kashmir, Himachal Pradesh, Maharashtra, Mysore, Nagaland, West Bengal and Uttar Pradesh disapproved the proposal.

Later on, three States, Kerala, Punjab and Tamil Nadu which had lent support to the proposal withdrew their support. Probably, this concerted opposition by more than half the number of States forming the Indian Union had a dampening effect on the decision of the Government of India to set up such a service. However, the concept of such a service remained hibernating at regular intervals. In August, 1969, the then Chief Justice of India was requested by the Government of India to offer his views on the proposal for setting up such a service.

He reiterated his view that the proposal was not feasible in the prevalent circumstances. As the situation in the State judicial services further deteriorated, both as to the availability of personnel and manner of recruitment as also efficiency, resulting in clogging of cases, the Chief Justice of India in March 1972 wrote to the Prime Minister suggesting some improvements in conditions of service of State judiciary. Demarcating the areas where improvement was called for, he pointed out specifically that simultaneously it may be useful to examine the question of having an all-India judicial service. He pointed out that even though it was not considered feasible in 1969, the question may again be examined. Nothing concrete appears to have emerged from this correspondence

1. Law Commission of India, Fourteenth Report, Vol. I, Chapter 9, para. 59.

3.2. The Eighth Law Commission, while examining the problem of 'Delay and arrears', in trial courts recommended formation of an all-India judicial service1. It was of the opinion that the suggestion to have an all-India judicial service of the same rank and same pay scales as the Indian Administrative Service should receive serious consideration. After taking note of the current school of thought and the fact that many States were strongly opposed to the creation of an all-India judicial service, it reiterated the recommendation of the first Law Commission that such a service would be able to attract talented young persons to man it. The recommendation lent support to the protagonists who favoured setting up of such a service.

The Government of India stated in Parliament that the States would be consulted in this behalf again as early as possible. The issue figured in the Consultative Committee meeting of the Ministry of Law, Justice and Company Affairs held on 17th August, 1978. The Minister stated that the question of constituting an all-India judicial service may be considered at a suitable time. The issue again figured in the meeting dated 4th July, 1979. Finally, in the Consultative Committee meeting held on November 2, 1980, a consensus emerged in favour of creating an all-India judicial service in principle subject to appropriate mechanism being drawn up keeping all aspects in view.

1. Law Commission of India, Seventy-Seventh Report, Chapter 9, para. 9.6

3.3. After the amendment of Article 312 by specific inclusion therein of all-India judicial service, steps were taken by the Central Government to elicit the views of the States in this behalf. The Chief Ministers of Kerala and Manipur had reservations about the proposal principally on the ground that if the control over the State Judiciary is transferred to the Union Government removing the control of the High Court as at present provided in Article 235, independence of the judiciary would be undermined and its efficiency would be impaired. Government of India clarified the position that it was not its intention to transfer the control over the State judiciary to the Union Government and the control of the High Court as at present provided in Article 235 over the subordinate judiciary would remain intact. The subject again cropped up at the time of the Ministers' conference in 1982.

The main theme of the conference was 'arrears in lower courts' in respect of which the Law Commission had already submitted its recommendations contained in its Seventy-seventh Report. A consensus emerged in the conference. Majority of the Law Ministers favoured the establishment of an all-India judicial service in principle as it was of the view that such a judiciary common to Union and the States would attract talented people to join the judiciary. The lone dissent came from the Law Minister of Tamil Nadu for the same reason for which earlier that State had opposed the proposal, namely, that the courts upto the level of District and Sessions Judge transact their business in the State language and that recruits on an All-India level would find it very difficult to acclimatize themselves with State language and in the process dispensation of justice would suffer.

Slowly but surely the States were veering round in favour of setting up Indian Judicial Service. Thirteen States and four Union territories favoured such setting up and eight States opposed it. The State of Kerala and the Union territory of Mizoram were non-committal. The stand taken by the State of Jammu and Kashmir was equivocal in that it was said on its behalf that as the Constitution of Jammu and Kashmir had its own provision for subordinate judiciary and having regard to the local conditions and a special local language, it was not in favour of establishment of Indian Judicial Service1.

1. Constitution of Jammu and kashmir Articles 109, 110, 111 and 113. Articles 109 to 113 have been bodily incorporated from Articles 233 to 237 of the Constitution of India.

3.4. Before the Law Commission can give shape and form to its views on the question of setting up of Indian Judicial Service, it is imperative that it gives full consideration to the views and comments of the States which have expressed their opposition to the proposal. The opposition of the States to the setting up of Indian Judicial Service is founded substantially on three grounds:-

(A) Inadequate knowledge of regional language would corrode judicial efficiency both with regard to understanding and appreciating parole evidence and pronouncing judgments;

(B) Promotional avenues of the members of the State judiciary would be severely curtailed causing heart-burning to those who have already entered service and manning of the State Judicial Service would be adversely affected; and

(C) Erosion of the control of the High Court over subordinate judiciary would impair independence of judiciary.