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Report No. 116

C. Control of High Court

The third ground of objection was founded on an erroneous belief that upon the setting up of the Indian Judicial Service, the control of the High Court over district courts and courts subordinate thereto would be impaired or weakened and thereby independence of the judiciary which is already severely curtailed would suffer further erosion. The control of the High Court over district courts and courts subordinate thereto has become all pervasive. The provisions contained in Chapter VI, Part VI, of the Constitution are aimed at insulating the subordinate judiciary and even the officers and servants of the court from the influence of the executive. The fasciculus of Articles 233-237-under the heading. "Subordinate Courts" were designed to save the subordinate judiciary from interference from the executive.

The expression "control", as used in Article 235, gave rise to a spate of litigation between the State executives and High Courts which was resolved by the Supreme Court keeping in view the high purpose of the particular provisions. The scope, the content and the width of the control is expanding from judgment to judgment of the Supreme Court. The expression, "control" received its flesh, bone and blood from various judgments of the Supreme Court. The Court held that the scope and ambit of control vested in the High Courts under Article 235 covers the entire spectrum of administrative control and is not contained merely to general superintendence or to arranging the day-to-day work of the subordinate courts.

Thus, the control envisaged by Article 235 comprehends control over the conduct and discipline of district judges;1 their future promotions and confirmations2; dispute regarding their seniority;3 their transfers;4 the placing of their services at the disposal of the Government for an ex-cadre post;5 considering their fitness for being retained in service and recommending their discharge from service;6 exercise of complete disciplinary jurisdiction over them including initiation of disciplinary enquiries;7 and their premature retirement.8 In a later decision, the court held that the members of the subordinate judiciary are not only under the control of the High Court but also under the care and custody of the High Court.

The exclusion of executive interference in subordinate judiciary, i.e.,, grass-root justice, can prove a teasing illusion if the control over them is vested in two masters, namely, the High Court and the Government, the latter being otherwise stronger. Any interpretation of administrative jurisdiction of the High Court over its subordinate limbs must be aglow with the thought that separation of the executive from the judiciary is a cardinal principle of the constitution.9 All these decisions were summarised by the court while interpreting Article 222 of the Constitution which enables the President to transfer a judge of the High Court from one High Court to any other High Court.

The majority, even while conceding that the power to transfer a High Court Judge vests in the President and is hedged in with the only condition that the power can be exercised in consultation with the Chief Justice of India, held that even if the opinion of the Chief Justice of India may not be binding on the President, it is entitled to a great weight and is normally to be accepted by the Government because the independence of the judiciary is a fighting faith of our founding document10. Unquestionably, these decisions spell out the all pervasiveness of the control of the High Court over the subordinate judiciary, simultaneously almost totally excluding executive interference in any overt or covert manner. The fundamental principle on which these constitutional provisions, as interpreted by the Supreme Court in its decisions, rest, cannot be allowed to be violated or diluted directly or indirectly while framing a scheme for setting up Indian Judicial Service.

Members of the Indian Judicial Service will be allocated to States. When posted in the States, they will be subject to Article 235 save and except in the matter of initial recruitment. In the matter of discipline, suspension, etc., the control of the High Court would remain unimpaired with this difference that while at present it recommends various things such as promotion or disciplinary action to the Governor, it would be recommending the same to the National Judicial Service Commission which, in turn would make necessary recommendation to the President, of India but the President of India will act in the same manner as at present it is done by the Governor having regard to the almost binding character of the recommendations of the High Court.

Therefore, the apprehension that setting up of Indian Judicial Service would impair the control of the High Court and, therefore, corrode, independence of the judiciary is more imaginary than real. On the contrary, when a National Judicial Service Commission is being recommended as part of this very report with power to deal with problems of Indian Judicial Service, it is legitimate to believe that the independence of subordinate judiciary would be further strengthened. Having examined all the three limbs of the opposition independently on merits, the Commission remains unconvinced that any one or all of them would militate against the setting up of Indian Judicial Service if it is otherwise needed and helpful in improving and strengthening the administration of justice.

1. State of West Bengal v. Nipendra Nath Bagchi, AIR 1966 SC 447.

2. State of Assam v. Kuseswar Sakia, AIR 1970 SC 1616; Jogindar Nath v. Union of India, AIR 1975 SC 511.

3. State of Bihar v. Madan Mohan Prasad, (1976) 1 SCC 529.

4. State of Assam v. Ranga Muhammad, AIR 1967 SC 903.

5. State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647.

6. Ram Gopal Chaturvedi v. State of Madhya Pradesh, (1970) 1 SCR 472.

7. Punjab and Haryana High Court v. State of Haryana, AIR 1975 SC 613.

8. State of Haryana v. Inder Prakash Anand, (1976) 2 SCC 977.

9. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192.

10. Union of India v. Sankalchand H. Sheth, (1977) 4 SCC 193.

3.5. Next to the States, the views of the High Courts in the matter of formation of Indian Judicial Service would be of considerable importance. Amongst the High Courts which responded to the queries relevant to the question, six High Courts, that of Uttar Pradesh, Andhra Pradesh, Gujarat, Kerala, Bihar and Rajasthan favoured the formation of the Service. Barring Jammu & Kashmir High Court, rest of the High Courts in the country have either formally recorded their firm opposition to the proposal or have serious apprehensions about its feasibility and utility. Before undertaking an indepth examination of the views of the High Courts, it would be proper to examine their collective wisdom as expressed in the latest resolution adopted at the Conference of the Chief Justices convened by the Chief Justice of India in January 1985. The Resolution reads as under:-

"This Conference is of the opinion that the constitution of an all-India judicial service will lead to various practical difficulties and that, therefore, such a service should not be constituted. The erosion of the High Court's salutary control over the subordinate judiciary and its impact on judicial independence are two of the prime reasons why an all-India judicial service should not be constituted. It was, however, felt that it was not possible for the Conference to express more definite opinion on the proposal in the absence of a fuller Scheme."

This resolution was conveyed by the Chief Justice of India to the Government. Their reservation stems from the apprehended erosion of the control of the High Court over the subordinate judiciary exposing them to executive interference which would run counter to the substantive provisions of the Constitution as well as one of the cardinal features of the Constitution. The approach lacks justification as pointed our hereinbefore. Analytical evaluation of the views of High Courts opposing the formation of the Indian Judicial Service surfaces three broad grounds of objection. They are:

(1) erosion of the control of the High Court corroding judicial independence; (2) uncertainty of the level up to which posts should be included in Indian Judicial Service; and (3) inadequacy of the knowledge of the local language likely to lead to inefficiency in discharge of duty as judicial officer. Ignoring the usual tendency to oppose any change especially by members of judicial fraternity having a preference for so-called certainty and continuity of law, status quo and stare decisis, the legitimacy or otherwise of the aforementioned three objections may be examined to determine whether they have any validity. There is absolutely no justification for apprehending erosion of control of the High Court as has been succinctly pointed out. In fact, as will be pointed out later on in this report the formation of the Service is likely to strengthen independence of judiciary.

The objection founded on the possible misapprehension about the posts to be included in the Indian Judicial Service lacks validity because Explanation to Article 236 clearly defines what posts are included in the expression "District Judge" as used in Chapter VI, Part VI, of the Constitution. This provision, when read with Article 312(3), clearly spells out the level and nature of posts that can be included in Indian Judicial Service. There is absolutely no uncertainty about this aspect. One need not attach any importance to the vague apprehension of members of judicial service who generally manifest a tendency to oppose any change and, even though they complain about the present malaise in the administration of justice, they would be loathe to take any steps for improving the situation. It is thus clear that the Commission has not come across any valid and formidable objections both from the States and the High Courts in the States against formation of Indian Judicial Service.

Formation of an All India Judicial Service Back

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