Report No. 116
General Public Apprehensions
3.6. There exists a body of local public opinion that any change in the judicial set up of the country must be concurred in by the States and the High Courts as also members of the legal fraternity, otherwise the change would be still-born. In Parliamentary democracy, a broad acceptance of any proposal introducing fundamental changes in age old institution by the vital interests a affected by the change would certainly ensure a smooth transition, yet concurrence of the States or a majority of them is not an essential prerequisite. The composition of Rajya Sabha is founded on the principle of adequate equal representation to the States. A resolution of the Rajya Sabha supported by not less than two-thirds of the members present and voting would enable the Parliament to enact a legislation for setting up Indian Judicial Service.
The very adoption of such a resolution would imply concurrence of a large number of States. Therefore, in the face of such a resolution, one cannot prescribe concurrence of States outside the Rajya Sabha as an essential prerequisite for setting up of Indian Judicial Service. Further, the resolution of the Rajya Sabha backed by requisite majority would enable the Government to enact legislation for setting up Indian Judicial Service which legislation again would have to be passed both in the Lok Sabha and the Rajya Sabha. This Constitutional mechanism ensues concurrence by States expressed through their chosen representatives.
However, during the debate on the resolution for the creation of the all-India Services of forestry, engineering, medical and health services in Rajya Sabha in the year 1961, the then Home Minister, late Shri Lal Bahadur Shastri, expressed an opinion that one need not take a narrow technical view of the provision of the Constitution and that after the requisite resolution is passed, the views of the State Governments concerned should be ascertained relevant to the question of formation of all-India Services. This view even today holds the field.
Therefore, despite the constitutional provision, after the resolution of the Law Ministers' Conference, very recently the Government of India approached all the State Governments inviting their views and comments on the question of setting up Indian Judicial Service. The State Governments were informed that they must also obtain the views of the respective High Courts. Broadly stated the majority of the State Governments and the administration of the Union territories and several High Courts favour the creation of Indian Judicial Service.
3.7. Turning to the response of the associations of judicial officers, vehement condemnation came from Rajasthan Judicial Service Officers' Association. Its Executive Committee resolution may be reproduced here:-
"The fear that the Indian subordinate judiciary is feeling today is that if pick and choose method is adopted in the matter of absorption of existing strength of subordinate judiciary either by way of higher and lower judicial service or by way of length of services or by way of selection from the present strength, it will not only harm the interest of existing cadre of all States on the day of its formation but will be a life-long frustration in the mind of youngest member of the Service who had entered judicial service in any State with aspiration of better promotional avenues after undergoing tough competitive examination."
Usually, in every State there is direct recruitment at the level of district judge and it is at that level that the Indian Judicial Service is being formed. In some States, direct recruitment at the level of district judge is as high as 50 It is, therefore, not correct to say that the promotion prospects of the members of the 'subordinate judiciary would be seriously curtailed on the formation of Indian Judicial Service. As pointed out earlier, provision would also be made for allowing members of the subordinate judicial service, apart from getting promotion in their quota, to contest in the competitive examination.
The approach discloses the status quoist attitude. Apprehending that vociferous opposition, not founded on substantive grounds, would not carry conviction, the Association in the alternative suggested that the proposed service at the time of its initial constitution must absorb and include all cadres of subordinate State Judicial Service. In order to overcome the difficulty of integrating lower judicial service with higher judicial service, the Association suggested a dual seniority list-one for all-India service and one for State service. The suggestion is ill-conceived and betrays lack of knowledge of the constraints placed by Article 312(3) which prohibits inclusions of any post inferior in rank to that of a district judge, as explained in Article 236, in the all-India judicial service. The remedy suggested, therefore, is unconstitutional and cannot be accepted.
The all-India Judges Association favoured the creation of all-India Judicial service. Drawing sustenance from the views expressed by the Law Commission in its Fourteenth and Seventy-seventh Reports, it proceeded to state that all-India judicial service will foster national integration, improve the tone of judicial administration in the country, attract meritorious persons to the judicial service and create confidence in the judicial service officers. The Association is of the view that the promotion prospects, instead of being curtailed, are likely to be augmented by the setting up of Indian Judicial Service.
3.8. The officers of the Indian Administrative Service who responded to the query of the Commission suggested that there should be no separate Indian Judicial Service examination, but it should be a part of the normal Civil Service Examination conducted by U.P.S.C. and those who come at the top should be given an option either to opt for IAS or IJS. It was further suggested that intensive training be imparted to the recruits to LJS and during the period of training they should man posts at the lowest level in the hierarchy of judiciary. In their view, degree in law should not be a pre-requisite for contesting for a post in IJS. This will be consider at the appropriate place. Suffice to say that when the practice at the Bar is being dispensed with for entering into IJS, it would give a rude shock to many as an act of sacrilege if a degree in law is also dispensed with as a pre-requisite for competing at the examination to be held to recruit members of IJS.