Report No. 14
9. Subordinate Judiciary
1. Competent judicial officers necessary.-
As has been said repeatedly elsewhere, the problem of efficient judicial administration, whether at the level of the superior courts or the subordinate courts, is largely the problem of finding capable and competent judges and judicial officers. Delays in the disposal of cases and the accumulation of arrears are in a great measure due to the inability of the judicial officers to arrange their work methodically and to appreciate and apply the provisions of the Procedural Codes.
If judicial officers do not realize, for example, the importance of what has been laid down in rules 1 and 2 of Order X and fail to ascertain, before the commencement of the hearing, the facts which are admitted and denied by either party and the real issues in a suit, it is not surprising that the hearing takes, perhaps, twice or thrice as long as it would have taken, if the rules laid down in the Code had been properly followed. The court hears the suit from day-to-day, or over a number of hearings spread, sometimes, over several months, without a firm grip on the points which really arise for decision and is entirely at the mercy of the legal practitioners appearing before it, some of whom also are often not alive to the real points to which evidence and arguments should be directed.
2. Problem of reform one of personnel.-
Indeed, it was said that nine out of every ten of the difficulties brought to our notice in connection with the operation of our system of Courts had their origin in the inefficiency or inexperience or the inadequacy of the judicial personnel. However well-framed the substantive law and carefully designed the procedural law, the proper application and working of these laws lies largely in the hands of the officers presiding over the courts. Even if these laws were perfect, we would need adequately trained and capable judicial officers to apply and administer them. Without such personnel, administration of justice can never be satisfactory.
3. views of the Rankin Committee.-
Similar views were expressed by the Civil Justice Committee who summed up the position in these words:1
"Witnesses of eminence who speak with authority have in emphatic terms expressed their opinion before us that delay in the proceedings of civil courts in India is to a considerable extent due to want of any proper system in training the Judges."
1. Report, p. 181, para. 1.
4. Problem more acute.-
As we shall point out later, the problem has since grown in dimensions, because there is unmistakable testimony that the standards of the judicial officers recruited from the bar and other sources have, during recent years, fallen in a substantial degree for various reasons. That has been almost the unanimous view expressed by the witnesses before us. It is thus obvious that no scheme of reform of judicial administration will be effective or worth-while, unless the basic problem of providing trained and capable judicial personnel is satisfactorily solved.
Before we can suggest adequate measures for raising the level of judiciary, we have to examine the causes which have led to the decline in its efficiency.
5. Causes of decline: Diversion of talent to fields other than law.-
We have, in dealing with the question of the decline of standards at the Bar, dealt at some length with the causes which have led to that situation. The Bar at the lower and the higher levels has been the principal recruiting ground for judicial officers. It is not surprising therefore, that a fall in the efficiency of the Bar has necessarily brought about in its wake a decline in the efficiency of the judiciary. We have described elsewhere how the opening of various other opportunities of employment leading to a sure income have led away young students to various all-India services and other occupations and has depleted the Bar of the talent which formerly used to flow into it.
We have suggested measures which we hope will lead to bringing back to the profession of law an adequate proportion of our able young graduates and also measures for giving them a training in law which will turn them into efficient members of the Bar. The adoption of those measures should result in improving the caliber of the recruits to the lower as well as the higher judiciary and thus help to remove one of the causes of the decline in its efficiency.
6. Expansion in recruitment.-
A very important circumstance which had led to inexperienced judicial officers being placed in charge of important duties is the very large number of recruits which has to be taken every year. Increase in the volume of both civil and criminal work and the increase in the personnel necessitated by the separation of the judiciary from the executive have added considerably to the volume of recruitment. The evidence before us shows that a large proportion of those available to fill the increased number of posts are far below the required standards. The result has been the enforced recruitment of persons without the adequate equipment or capacity.
The Chairman of the Bihar Public Service Commission stated that while in a particular year as many as seventy-five persons had to be recruited as munsifs, he could find only twenty-five persons who were really suitable and a large number of persons not really qualified had to be recommended because of the needs of the service. A senior Chief Justice stated that the experience in his State of the competitive examinations held at the State level for recruitment to the judiciary had been most discouraging.
He observed: "Hardly does any junior lawyer actually practising in the courts offer himself as a candidate, nor does any fresh law graduate of any promise. The great majority of those who apply are persons who took a law degree years ago but have since been employed in some minor post under the Government such as posts in the Co-operative or Jute Department and who have never been inside a Court of Law. The marks they obtain are truly miserable and the only reason why any selection is made from amongst them at all is that no men of a better class can be found."
7. Selection on communal and regional grounds.-
Further, it would appear that in several States, particularly in the southern States, a fairly large number of appointments have been made to the subordinate judiciary on communal and regional grounds, with the idea of giving representation to certain communities or regions in these services. The selection for these reasons of men of inferior ability in preference to more qualified persons has resulted in further lowering of the standards of those who were selected from a depleted field of selection not able to provide a sufficient number of suitable men.
8. Inadequate remuneration.-
In the matter of scales of pay and remuneration, the judiciary compares unfavourably with the executive branches of the Government. It is true that, generally speaking, the scales of pay of the judicial officers and the corresponding executive officers are identical in many of the States. However, it has to be remembered that the executive officers are, by and large, recruited at a much younger age than the judicial officers. The entrant to the judicial service is required to be a graduate in law and in most of the States it is also necessary that he should have practised for a certain number of years at the Bar.
On the other hand, for recruitment to the executive branches of Government service, a degree in arts or science is, generally speaking, sufficient. In the result, a person entering the judicial service does so when he is about twenty-six or twenty-seven years of age and at a time when his contemporaries who have entered the executive service of the Government have already acquired a certain seniority in the service and have come to draw a higher salary. It will thus be seen that a person joining the judicial service starts with a lower remuneration than what he would have received if he had entered the executive service a few years earlier.
It has also to be noted that owing to the lesser proportion of superior posts in the judicial service promotions come less quickly to the judicial officers, and a person who has entered the service as a munsif, assuming that he is fit and fully qualified, takes much longer time to become a district judge than would an equally competent deputy collector to reach the position of a collector. Again the judicial officer, having started at a later age has a shorter span of service than the executive officer and this affects his pension and other retirement benefits.
9. Difference of status between the judicial and the executive officer.-
An important factor which detracts from the attractiveness of the judicial service is the inferiority of the status of the judicial officer compared with that of the executive officer. Our attention was drawn to this fact by an experienced Chief Justice in the following words:
"One reason why meritorious young men or young practitioners of some standing keep away from the judicial service is the comparative inferiority of the status of district judicial officers vis-a-vis officers of the district executive. Formerly, the district judge like the district magistrate, used to be a member of the Indian Civil Service and his position in the district was superior to that of the district magistrate. Under the present system, the district magistrate is a member of the Indian Administrative Service which is a service of an all-India character, while the district judge is a member of the higher judicial service which is a State service.
The difference in the category of the cadres to which they belong is reflected in the status they occupy in relation to each other and in the estimation of the public. Vis-a-vis the district magistrate, the district judge feels small and is treated as a person of little consequence. Nor can the district judge attain the sense of independence which he might have acquired, if he had not been under the administrative control of the State Government in regard to his service."
10. Extension of field of selection: All-India competitive examination from fresh law graduates.-
If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable persons. A radical measure suggested to us was to recruit the judicial service entirely by a competitive test or examination. It was suggested that the higher judiciary could be drawn from such competitive tests at the all-India level and the lower judiciary can be recruited by similar tests held at State level. Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at there Bar should be done away with.
Such a scheme, it was urged, would result in bringing into the subordinate judiciary capable young men who now prefer to obtain immediate remunerative employment in the executive branch of Government and in private commercial firms. The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the State.
11. Bar not a suitable recruiting ground (Recruitment of failures).-
In support of these ideas, it was pointed out that the requirement of a three to five or six years' practice at the Bar insisted upon in most of the States for entrance to the judicial service serves no useful purpose. It is difficult, if not impossible, under the conditions at present prevailing in the legal profession for a person to have any experience or training worth the name in the period of three to five years which he is supposed to spend in practising at the Bar. The average practitioners at the Bar cannot in that short period have any worth while idea of work or practice at the Bar.
It is only the exceptional young man, favourably situated and having the advantage of a senior member of the Bar interested in him, who gathers any experience at all at the Bar in so short a period of time. Such an exceptional person would naturally not care to be a competitor for entrance into the subordinate judicial service. Those who do strive to get into the judicial service after three to five years at the Bar are the disappointed persons who have failed to make a living in the profession and have no hopes of prospering in it. The disadvantage of recruiting from persons who had been failures at the Bar was pointed out by the Chairman of the Bihar Public Service Commission:
"I have come to the conclusion that during the three to five years of practice at the mofussil Bar the young man deteriorates more or less completely."
The Civil Justice Committee1 also was of the opinion that:
"The rule in force in certain provinces requiring the candidates to have practised at the Bar for a period of three years or more furnishes no guarantee that the candidates have acquired any really useful experience."
1. Report, p. 183, para. 8.
In most cases, what is usually described as recruitment from the Bar is really recruitment from among the disappointed members of the Bar who have failed.
12. Unity of the country.-
Recruitment to the higher judiciary at the all-India level in the manner suggested would be a powerful unifying influence and serve" to counteract the existing growing regional tendencies. In this connection, attention may be drawn to the observations made by the States Reorganisation Commission in regard to the creation of the All-India Services as a major compelling necessity for the nation. The Commission observed:1
1. Report of the States Reorganisation Commission, p. 232, paras. 858-859.
"The raison d'etre of creating All India Services, individually or in groups, is that officers on whom the brunt of responsibility of administration will inevitably fall, may develop a wide and all-India outlook The present emphasis on regional languages in the Universities will inevitably lead to the growth of parochial attitude, which will only be corrected by a system of training which emphasises the all-India point of view."
13. The case of recruitment from the Bar.-
As against the views indicated above there was a very substantial body of opinion which still favoured the retention of the system of recruitment from the Bar. It was not unnatural that the majority of the practising lawyers who appeared before us as witnesses should express themselves in favour of the retention of this system. But we also had in its favour an expression of views from several members of the High Court judiciary. It was said that in some States, at any rate, the system of recruitment of the munsifs or lower grade subordinate judges from the Bar had worked satisfactorily. It was suggested that it was not so much the field of selection that was at fault.
The system had not yielded good results by reason of the unsatisfactory methods of selection from that field. The view was expressed that though a junior at the Bar of three to five years standing may not gather much practice, he would still be familiar with the way in which work is being done in a lawyer's office and the manner in which matters are conducted in the law courts. It was pointed out above all that a young man who had spent some years at the Bar would have rubbed shoulders with a variety of men, would hav.-gathered a knowledge of men and affairs and would have lived in a free atmosphere quite different from that in which a man who has locked himself up in service after graduation would have lived in.
14. Criticism of competitive examination.-
It was also urged that taking a distinction in a competitive examination was not necessarily a proper test of fitness for a judicial officer whose work requires, more than anything else, practical knowledge and experience and a capacity for understanding the minds and motives of the ordinary man. It was pointed out that in the practice of law, men who had taken Honours and earned high distinction at the University had frequently failed and men who had no such distinction in their academic career had risen to the top.
15. All India recruitment to the higher judicial service necessary.-
It has not been very easy for us to balance these considerations, but we are definitely of the view that a proportion of the higher judiciary should be recruited by competitive examination at the all-India level so as to attract the best of our young graduates to the judicial service. This measure will enlarge the field of selection and bring into the higher judicial service a leaven of brilliant young men who will set a higher tone and level to the subordinate judiciary as a whole. The personnel so recruited will be subjected to an intensive training. The rest of the higher judiciary should, in our view, be recruited in part directly from senior members of the Bar, and partly by promotion from the lower subordinate judiciary.
16. Lower subordinate judiciary: Recruitment from the Bar after practical test.-
As to the lower subordinate judiciary, we are of the view that we shall be able to recruit better personnel if the selection is made by a properly conducted competitive examination of a practical nature. The age limits should be so fixed as to enable persons at the Bar of about three to five years standing to compete.
We shall, in later parts of this chapter, deal with the details of the schemes we have formulated in regard to the field of recruitment and the method of recruitment to be adopted in each case.
Existing Designations And Methods of Recruitment to the Judicial Service
It is necessary at this stage to examine the existing organisation of the judicial service in our country.
17. The judicial services (Existing organisation).-
The designations and remunerations of judicial officers vary from State to State. Except in Madhya Pradesh, the State judicial service has been divided into two classes-the Higher or Superior Judicial Service and the Civil Service (Judicial Branch). In Madhya Pradesh alone all judicial officers in the subordinate judiciary constitute one service. The Higher or Superior Judicial Service comprises the posts of district and sessions judges, additional district and sessions judges, and other posts to which officers of the status of a district judge are generally appointed, such as the legal remembrancer, the Chief presidency magistrate, the Chief judge of the court of small causes.
The lower branch of the judicial service variously known as the State Civil Service (Judicial) or the State Judicial Service (Junior Branch) comprises the posts of munsifs and subordinate judges. In our view, it would be desirable to do away with the differences in nomenclature. We would recommend that the higher and the lower branches of the judicial service should be designate in all the States as State Judicial Service Class I and the State Judicial Service Class II.
18. Higher judicial service: General uniformity (Variations in U.P. and Rajasthan).-
There is, generally speaking, a uniformity of nomenclature in the designations of the posts included in the higher judicial service. However, in Uttar Pradesh and Rajasthan, additional district judges are designated "Civil and Sessions Judges" and in Bombay they are designated "Assistant Judges". In Uttar Pradesh and Rajasthan, "Civil and Sessions Judges" who are paid a much lower salary than district and sessions judges, try all criminal cases like a sessions judge and on the civil side, they hear all civil appeals which a district judge is normally competent to hear.
Thus these civil and sessions judges perform almost the same duties as the district and sessions judges except that they are not entrusted with the performance of administrative functions. The similarity of their functions with those of the district and sessions judges led the Uttar Pradesh Judicial Reforms Committee to recommend) the unification of the cadre of civil and sessions judges with that of the district and sessions judges.
Bombay.- In Bombay, assistant judges initially exercise the powers of an assistant sessions judge and after having gained some experience of criminal work they are invested with the powers of additional sessions judges. Their jurisdiction in civil appellate work and original appellate criminal work is the same as that of a district and sessions judge. They also possess original civil jurisdiction upto a pecuniary limit of Rs. 15,000 but, in practice, they do not do any original civil work.
19. State judicial service class I.-
Under the Code of Criminal Procedure, a court of session is constituted for every sessions division in charge of a sessions judge. Additional sessions judges and assistant sessions judges may also be appointed to exercise jurisdiction in one or more of such courts. The powers of assistant sessions judges are usually conferred on subordinate judges who belong to what, we propose, should the called the "State Judicial Service-Class II".
The expressions "District Judge", "Additional District Judge", "Assistant District Judge", "Sessions Judge", "Additional Sessions Judge", "Assistant Sessions Judge", "Judge of the City Civil Court", "the Chief Presidency Magistrate" have also been used in the Constitution.
In our view, it would be convenient to have in the higher judicial service proposed to be designated "State Judicial Service-Class I", only two main designations-namely, "District and Sessions Judge" and the "Additional District and Sessions Judge". Particular posts like those of the Chief presidency magistrate and others bearing special designations will be borne on the same cadre. As we have suggested elsewhere in this chapter, a uniform scale of pay for all the posts in the State Judicial Service Class I (higher judicial service), it would be desirable that, as far as practicable, all posts corresponding to the posts of additional district and sessions judges should be brought under the two designations we have mentioned.
The State Judicial Service Class I would, therefore, according to our recommendation, include all the posts of district judges, additional district judges and corresponding posts like those of the Legal Remembrancer and others usually filled by officers of the status of a district judge.
20. Class II (Munsifs and subordinate judges).-
The State Judicial Service-Class II (now given the nomenclature of the State Judicial Service Junior Branch or the like) will comprise two grades of officers. At present, we have first the munsifs whose pecuniary jurisdiction, generally speaking, extends in most States up to Rs. 5,000 and in some of the States like Bombay and Madhya Pradesh up to Rs. 10,000. Secondly, we have the higher grade of officers in this class, namely, subordinate judges who have, generally speaking, unlimited pecuniary jurisdiction. Though in a fair number of States, the designations of "Munsif" and the "Subordinate Judge" prevail, various other designations are in use in other States.
In Uttar Pradesh, subordinate judges are known simply as civil judges. In Bombay, munsifs are designated as civil judges (junior division) and subordinate judges as civil judges (senior division). In the Punjab, the designation of munsif is not used and officers of this grade are known as "subordinate judges-class 1 to 4". In Madhya Pradesh, the designations of "Subordinate Judge" and "Munsif" are not in vogue. All munsifs are known in that State as civil judges and above them come the additional district judges who on the civil side exercise unlimited original pecuniary jurisdiction and civil appellate powers, and on the criminal side exercise the powers of sessions judges.
1. Report, p. 23.