Report No. 116

Chapter IV

Positive Approach

4.1. As the control over the district courts and courts subordinate thereto has been vested by Article 235 in the High Court of the State, Judges of the High Court can be presumed to be well informed about the present position of the members of the subordinate judiciary manning district courts and courts subordinate thereto, the problems faced in recruitment, promotion and postings as well as a need for change if there be any. The Law Commission, in search of reliable and trust-worthy information, individually approached Chief Justice of each High Court and sitting Judges of all High Courts in the country requesting each one of them personally to acquaint the Commission about, inter alia, the necessity, the feasibility, the advisability of setting up all-India judicial service.

Further, as Bar has a vital role to play in moulding judiciary and, therefore, must have an important say in the matter of recruitment and conditions of service including promotional avenues as also efficiency, integrity and capability of the members manning the subordinate courts. Accordingly, the Commission addressed detailed letters to the President and Members of the All India Bar Council and Bar Council of each State. Coupled with this, the Commission also through the media invited everyone interested in the topic of setting up all-India judicial service to send their views and comments to the Commission. It is gratifying to note that there was widespread response to the enquiries of the Commission and, broadly speaking the emergent view favoured formation of all-India judicial service. While supporting the setting up of All-India judicial service, some reservations were expressed which may again be briefly dealt with. The most familiar and almost common to all responses were-

A. A lurking apprehension that the control conferred by Article 235 and exercised by the High Court over the subordinate judiciary is so pervasive that it insulates subordinate judiciary against executive interference and any whittling down of this control would corrode independence of subordinate judiciary;

B. The handicap arising from lack of knowledge of language of the State in which an outsider is posted when recruitment is on all-India basis;

C. Posting outside the State would be a disincentive to the middle level senior members of the Bar from accepting, direct recruitment as district judges which is in vogue in almost all the States of India; and

D. Recruitment from Hindi speaking belt will dominate the Service.

4.2. The Chief Justice of Calcutta High Court having noticed these apprehensions has supplied an effective answer and declared himself wholeheartedly in favour of setting up Indian Judicial Service. There was a broad measure of agreement with his views. As pointed out earlier, the apprehension about whittling down the control of the High Court over subordinate judiciary lacks legitimacy. It would remain intact and undisturbed. Lack of knowledge of local language has been dealt with earlier. Today it is even the declared policy of the Government of India concurred in by the Supreme Court of India and repeatedly recommended by the previous Law Commission that one-third of the Judges of each High Court should be from outside the jurisdiction.1

A policy decision has been taken that one-third of the total strength of Judges of each High Court shall be from outside the State in which the High Court is functioning. Divergence is in respect of methodology of implementation of this decision. It is by transfer or at the time of initial recruitment. Further, the policy that the Chief Justice of each High Court shall be from outside the State is not only accepted but is being implemented albeit in fits and patches. That apart, it is too late in the day to worry about some members of the Bar being disinclined to accept judgeship either at the level of district judge or at some other level on the sole ground that he or she may be posted outside the State. We have moved far away from the halcyon days when persons were appointed from the Bar to the State judiciary in one's own State. Possible domination of the service by the people from the Hindi speaking belt can be dismissed as mere figment of imagination.

1. Law Commission of India, Eightieth Report, Chapter 6, para. 6.21.

4.3. On the other hand, it is conceded that an all-India service affords greater attraction to young persons and this will to a considerable extent out weigh the supposed disadvantages. The prospects of the higher judicial service being formed on all-India basis is likely to attract lawyers whose appetite for study and movement to different parts of the country has not been dulled by possible prosperity at the Bar. There is still discernible residual idealism to render service for a noble cause. It is not unknown that exceptionally successful lawyers have accepted judgeship at the district judge level and High Court level.

4.4. Before briefly referring to reservations disclosed by some Judges of the High Courts, a classic adage about Indian judiciary be recalled. As a general rule, members of Judiciary in their individual and corporate capacity are averse to any change. Precedent-oriented legal system and the principle of stare decisis combine to provide not only a myopic vision but an inbuilt resistance to any change. With this background, let us refer to the strong opposition to the concept of all-India judicial service emanating from some of the Judges of the High Court. It was said that the formation of all-India judicial service will give a death blow to the State Subordinate. Judicial Service.

If officers of all-India judicial service will become Chief Judicial Magistrates and District and Sessions Judges over the State subordinate judicial service officers, the effect will be deva stating on the morale of the latter: Finding that they have no avenues for further promotion because there is a block created by the all-India judicial service officers, the lower judiciary will become restless, hopeless and may become corrupt. This apart, recruitment to the cadre of district judges directly from the Bar is to be stopped in case of formation of all-India judicial service'. The criticism, apart from being not well merited, is the outcome of lack of knowledge about how Indian Judicial Service will be formed, set up and manned.

The Service conceived in this report is one in which there will be direct recruitment through competitive examination, there will be substantial promotion from State subordinate judicial service cadres and there will be an opening for direct recruitment from senior and experienced members of the Bar. The best features of the present situation will be retained and the ugly dispensed with. One other Judge strongly expressed himself against setting up of the Service. According to him there is basic fallacy in equating judiciary with police or administrative officers where perhaps the principle of "catch them young" may be advantageous. But in the administration of justice, experience and knowledge of law and correct perspective is required.

The formation of Indian Judicial Service is the thin end of a political wedge by which the judicial service may be brought under political control and deprive the High Courts of the same. It will sound the death knell of an independent subordinate judiciary. Thus independent and cogent objections are grouped together. The first is 'catch them young' slogan is unsuited to a service where experience and knowledge of law and correct perspective is a must. Senior well placed members of the Bar are reluctant to accept judicial services a fact universally accepted. Service with poor or inadequate salary is hardly attractive to a lawyer who has started earning because he is aware that sky is the limit.

This is true of every layer of judicial service. If experienced lawyer is impervious to judicial service for social accountability, why not catch people young and give them intensive training. A short practice hardly trains effectively. If, on the other hand, as is contemplated herein, intensive pre-service training is given to the fresh young recruits, they will turn out to be better judges. There are countries in which practice at the Bar is not a pre-requisite or essential qualification to be eligible to become a Judge.1 Undoubtedly, in common law countries practice at the Bar is a must to be a judge at any level. But experience shows that practice for a very short period say for a period of two to three years at the Bar hardly imparts such training so as to make him a good judge.

Second and more formidable objection is that formation of Indian Judicial Service is the thin end of a political wedge by which judicial service may, by a covert operation, be brought under political control. Is the StAte Judicial Service exposed to this possibility? If the answer is in the negative, it would all the more be impossible to penetrate political interference at all-India level. However, one can guard against this threat effectively by retaining the effective control of the High Court and setting up National Judicial Service Commission which is an integral part of the scheme.

1. Judiciary in France by David Annoussamy, Vol. 8, (1981) JBCI 296.