Report No. 121

Annexure I

D.O. No. 44(1)/86-L.C.

Chairman
Law Commission,
Government of India,
Shastri Bhawan,
New Delhi.

10th December, 1986.

Dear Justice,

The Law Commission is at present examining twin problems, viz.-

(i) Difficulty in recruitment at all levels in judiciary: and

(ii) Approach and criteria, apart from the statutory rules governing the same.

To facilitate the empirical research and scientific analysis, I have to request you kindly to send the following information as expeditiously as possible and not later than the end of this month.

I. The recruitment to the lowest cadre of judicial hierarchy is generally done by the Public Service Commission of the State:-

(1) Does it get adequate response by way of applications from the market in relation to the vacancies notified?

(2) Is it in a position to recruit reasonably good candidates and is the zone of selection sufficiently large to reject the unwanted?

(3) If the response is not adequate, the causes for the same.

II. In your State, there a provision for direct recruitment at the middle level of judiciary say District Judges? If there is such a provision, kindly give the information about:-

(1) the quota;

(2) the proportion;

(3) the period of recruitment;

(4) adequacy of response; and

(5) fitness of the candidates who are available. If some difficulty is experienced in this behalf, kindly state separately the causes for the same.

III. (1) In the matter of recruitment from the Bar to the High Court, is it your experience that the really able and efficient lawyers, who have established a reasonably good practice are not willing to accept Judgeship in the High Court?

(2) Whether the recent attempt on revising the emoluments and conditions of service of the High Court Judges would provide sufficient attraction to join judiciary?

IV. Before recommending candidates for appointment as High Court Judges what relevant considerations have been taken into account such as:-

(i) income aspect;

(ii) standing at the Bar;

(iii) caste;

(iv) reservation principle, or any other consideration which has a bearing on the decision to select and recommend a candidate?

V. More specifically, I would like to know whether the power to transfer as conferred by Article 222 of the Constitution and as interpreted by the Supreme Court in the Union of India v. Sankakhand Sheth, AIR 1977 SC 2328 and in S.P. Gupta v. Union of India, AIR 1982 SC 149, have, to some extent, a dampening effect on the members of the Bar from accepting Judgeship.

In other words, have you come across a concrete case where a Member of the Bar was willing to accept Judgeship, but declined to do so on the sole ground that he is liable to be transferred without his consent. If there is no objection, the information may be illustrated with a concrete case. An additional information necessary in this behalf is whether the production of Income-tax Assessment Order is insisted upon.

VI. (1) In your opinion, whether the present strength of your High Court is adequate to deal with the inflow of cases and in course of time to reduce the backlog?

(2) Is the strength fixed in relation to the-

(i) institution of cases; or

(ii) the population basis; or

(iii) the area of the State?

(3) Is the strength being reviewed and if so, at what interval?

(4) When was it last reviewed?

VII. (1) In pursuance of Article 224, has your High Court ever appointed any additional judges to deal with the increased business of the court or the arrears?

(2) What is the average lapse of time in additional judges getting confirmed? It may be specified if any additional judge of your High Court was not confirmed?

VIII. It is conceded on all hands that there is enormous and inordinate delay in filling in the vacancies in the High Court:

(1) What, according to you, are the causes of delay?

(2) At what end the delay occurs?

(3) Do you promptly move making recommendations in the face of anticipated vacancies in the course of the next year?

(4) I would request you kindly to trace the movement of your recommendation after it leaves your office and via Chief Minister/Governor of the State the Chief Justice of India.

(5) Are any personal discussions arranged between you and the Chief Minister to sort out the differences?

(6) Are they found to be helpful?

(7) Do you receive names for appointment from the Chief Minister?

(8) Have you come across cases where the recommendation made by you was approved by the Chief Minister and the Governor of the State as also cleared by the Chief Justice of India and yet, the Union Government did not appoint him? I would request you to give specific instances with names.

IX. The delay in filling in the vacancies is likely to reduce the out-turn of cases. Would you kindly give me in a tabulated form the delay in filling in each vacancy commencing from 1-1-1980 till today and its impact on the backlog of the cases and piping up of arrears.

X. After giving the information, as best as you can, I would request you with your nature experience as Judge and Chief Justice of your High Court to suggest solutions so as to make the system more resilient, flexible and result-oriented.

With regards,

Yours sincerely,
(D.A. Desai)

To

Chief Justices of all High Courts.