Report No. 14
21. Suggested designations.-
In view of the more or less uniform functions performed by the judicial officers so variously designated, it would, we think, be advisable to aim at a uniformity of designation. There is, however, a fundamental difference in the general scheme of distribution of judicial business between the lower grade of officers (munsifs) on the one hand, and the higher grade of officers (subordinate judges) on the other. The first has limited pecuniary jurisdiction while the second, generally speaking, has unlimited pecuniary jurisdiction.
We would, therefore, suggest that the State Judicial Service Class II should consist of civil judges who should be designated as civil judges of the senior and junior divisions. Officers corresponding to munsifs would be designated as civil judges (junior division) and those corresponding to subordinate judges would be designated as civil judges (senior division).
22. United cadre of civil and criminal judiciary.-
In Bombay, Madras and Andhra Pradesh and some other States, the two cadres of civil and criminal judiciary have been integrated and an officer of the status of a munsif is posted as a judicial magistrate or as a sub divisional magistrate. With the enforcement of the separation of the judiciary from the executive, a similar integration of the cadres of civil and criminal judiciary can be brought about in other States also. It will thus be possible to integrate the entire judiciary, civil and criminal, into a single cadre. "Whenever magisterial powers are conferred on a judicial officer of the status of a civil judge (junior division), he should be designated as magistrate, and if he combines both the functions of a civil judge and magisterial functions, his designation would be that of a Civil Judge (Junior Division) and a Magistrate.
23. Methods of recruitment.-
Examining next the methods of recruitment now in vogue in the different States, one finds broadly speaking, two patterns. Some States employ the method of a competitive examination open to law graduates without the requirement of experience at the bar while others insist upon a certain number of years' experience at the bar and select their recruits not by a competitive test but by a system of selection made by the Public Service Commission and the representative of the High Court.
24. By competitive examinations.-
In Uttar Pradesh, West Bengal, Bihar, Rajasthan and Assam, the munsifs are recruited by a competitive examination conducted by the Public Service Commission. A viva voce test forms part of the examination. A judge of the High Court or a representative deputed by it, is associated with the Commission in the conduct of the viva voce test. A list of the successful candidates arranged in the order of merit based on the result of the examination is forwarded to the Government. The Government then proceeds to make appointments from the list, giving effect to the quotas reserved for the backward communities and the Scheduled Castes.
25. By interviews.-
In the States of Andhra Pradesh, Bombay, Kerala, Madhya Pradesh, Madras and Orissa no examination is held. The candidates are interviewed by the members of the Public Service Commission and a High Court Judge or a representative of the High Court. The selection of the candidates is made on the basis of such an interview.
26. The role of the Service Commissions.-
It becomes necessary at this stage to advert to the comments made by a number of witnesses who appeared before us on the role of the Public Service Commission in the selection of the subordinate judiciary and the manner in which its functions are discharged. We have noticed that in all the States, the Public Service Commission does play a part in the selection either as the body conducting the examination which generally includes a viva voce test or as participating in the interviews which result in the selection of the candidates.
Indeed, Article 234 of the Constitution provides that in recruiting persons other than district judges to the judicial service, the Governor has to act inter alia "in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court " It appears to us that the matter has to be approached from two points of view. It has to be considered whether the Public Service Commissions in the various States are bodies appropriate to be entrusted with the task of selecting the subordinate judiciary; and whether these duties are being satisfactorily discharged by them.
27. Not always satisfactory (Inferior Personnel) (Communal considerations).-
Having regard-to the•important part played by the Public Service Commission in the selection of the subordinate judiciary, we took care to examine as far as possible the Chairmen and some of the members of the Public Service Commissions in the various States. We are constrained to state that the personnel of these Public Service Commissions in some of the States was not such as could inspire confidence, from the points of view of either efficiency or of impartiality. There appears to be little doubt that in some of the States appointments to these Commissions are made not on considerations of merit but on grounds of party and political affiliations.
The evidence given by members of the Public Service Commissions in some of the States does create the feeling that they do not deserve to be in the responsible posts they occupy. In some of the southern States, the impartiality of the Commissions in making selections to the judicial service was seriously questioned. Some of the State Governments there have, in order to rectify what they call "social inequalities", framed rules designed to give opportunities of representation to certain communities in the Public Services in the State.
It appears that in these States, the Commissions are, in addition to conducting examinations for candidates to judicial office, required to go further and regulate the communal representation in order to smoothen out the "social inequalities". It is not surprising that Commissions when entrusted with such a task should come in for adverse criticisms and charges of partiality. No doubt, the members of the Commissions who gave evidence before us indignantly repudiated such suggestions and asserted that communal consideration played no part in the recommendations for appointments made by them.
However, the evidence of experienced lawyers and some of the judges clearly established that the impression in the public mind was that the Commissions did discharge among other functions that of redressing communal inequality in the State Judicial Service. Indeed, a Chief Justice of one of these States seemed to think that it is legitimate that when selection is made to judicial office, the State should take account of the alleged communal inequality and that selections made by the Public Service Commission on the basis of remedying such inequality, should not be complained of.
In our view, it would be a contravention of the constitutional provisions to impose upon the Public Service Commissions a task of this kind. Under Article 320 of the Constitution, the duty of the Public Service Commission lies in conducting examinations for appointments to the services of the Union and of the State. The Constitution nowhere provides that it is to be the duty of the Commissions to go further and to give effect to a policy of the Government in regard to safeguarding the interests of communities in the Public Services. It is not surprising that public confidence in some parts of the country in these Commissions should have been undermined by their having been led to accept as a part of their duties the regulation, as it were, of communal representation in the judicial service.
28. Communal representation (Constitutional propriety doubtful) (Unsatisfactory selection).-
This is perhaps not an inappropriate place to refer to the application of what can only be described as the vicious doctrine of communal representation in the judicial services of the State. The Constitution provides broadly in Article 16 for equality of opportunity for all citizens in matters relating to appointment to any office under the State. It makes an exception to the rule to enable provision being made by the State "for the reservation of appointments or posts in favour of any backward class of citizens not adequately represented in the services under the States".
There is thus no warrant for splitting up the judicial cadre or the vacancies-to be filled in the judicial cadre into quotas for specified communities. It is obvious that such a practice would result in destroying the efficiency of the judicial service. Yet, we found, at least in one southern State, certain general notifications in force which had the effect of allocating quotas in the judicial service to the different communities in the State, presumably according to the proportion of their population. This seems to have resulted in the fantastic position of the entire population of the State, excepting one community which had a percentage of 4 in the population, being regarded as backward communities.
The result of a selection made to the judicial office was that candidates belonging to the so-called backward communities far inferior to those of other committees were appointed to the posts in preference to superior candidates. We cannot too strongly deprecate these practices which, apart from being unconstitutional, have tended to destroy the efficiency of the judicial service. A competitive test, or indeed any other test, will have no meaning if it is to be worked in combination with a system of what may be called selective communal representation.
29. Legitimate reservation-Its limits.-
Whatever the method of selection adopted, the only reservations which can be legitimately made are those in favour of backward classes mentioned in Article 16(4) of the Constitution and even in their case, the reserved seats should be filled by persons selected in the order of merit from among those who have been subjected to the test.
30. Role of the High Court in selections (Judge to have a preponderating voice).-
A troublesome question which has given rise, in more than one State, to some friction between the Public Service Commissions and the High Courts is the part which the High Court, represented by a judge of the Court or a representative deputed by it, should play in the selection of judicial officers. It is at the viva voce test stage that the judge or the representative of the High Court is called in to assist the Commission. A High Court judge participating in these tests is really in the position of a technical expert who should have a preponderating voice in the selection of the judicial personnel. His importance in this respect is recognised by some members of the Public Service Commission.
Indeed a member of the Union Public Service Commission who had for a long period been a member of the State Public Service Commission stated that "an interview is not a proper method of selecting persons for the judiciary" In his view, it should be for the High Court to select the judicial officers. In a number of States, the dominant position of the High Court judge advising the Commission in the selection of judicial personnel has been recognised and most of the nominees recommended by the judge are accepted by his colleagues of the Commission participating in the test. In some States, however, the position has been different.
It appears that the total number of marks allotted to a viva voce test is divided in such a manner that the High Court judge's view of the candidate's ability on the basis of the marks given to that candidate could be over-ridden by the members of the Commission participating in the test whose share of the total marks would be larger. In the result, the judge's view of the eligibility of the candidate does not prevail. It is, therefore, not surprising that in these circumstances the High Court judges in some of the States have refused to participate in conducting the test.
As has been stated "this method appeared to have been abandoned, because, as is generally believed the role of the Judge was reduced to that of a supernumerary spectator and the High Court naturally declined to accept such a position."1 One may in this connection draw attention to a provision in the Madhya Pradesh Judicial Service Recruitment Rules, 1955, which is as follows:
1. Report of the Committee on the Separation of the Judiciary from the Executive, Madras, 1946 p. 52, para. 147.
"21(2). The Governor may, if he thinks fit, appoint a Judge of the High Court to be present at the interview. This judge so appointed shall advise the Commission on all points on which the Commission may require his advice, but he shall not be responsible for selection of the candidates."
Probably for the reasons mentioned above, we found that in the States of Assam, Uttar Pradesh and West Bengal, the Registrar of the High Court or the Law Secretary of the State is associated with the Commission at these viva voce tests. The participation of an official of that status in the selection would naturally have the effect of making the technical assistance, needed for the selection of the judicial personnel of not much value. We hold the definite view that so long as these viva voce tests or interviews form part of the method of selection, a High Court judge of experience should be invited to participate in the conduct of these tests and have a preponderating voice in their result. It will have to be realized that in participating in these tests, the judge will not be discharging the duties of his office but will be lending his assistance as an honoured technical adviser in the making of the selection.
31. Competitive test preferred.-
Earlier, we have referred to the two broad patterns on which the method of recruitment has proceeded. We have also indicated, in our opening remarks, our general preference for a competitive test as a sound method of selection. It is true that the method of selection by interviews by the High Court has given satisfaction in some States like Bombay but we have also heard complaints about the working of this system in some States.
32. Limitations of the interview method.-
A number of witnesses have emphasised the importance of leaving the selection of the judicial cadre entirely to the High Court. It has been said that the selection by the High Court on whom the responsibility for the administration of justice in the State rests would be the ideal method of making these selections. While fully accepting the position of the High Court vis-a-vis the administration of justice in the State, we feel a difficulty in accepting the method of selection by High Court judges at interviews as a satisfactory method for the selection of judicial personnel.
A large number of the candidates for these services would be junior lawyers practising in the mofussil whose work the High Court Judge would have no opportunity of knowing or assessing. In regard to these candidates, therefore, the High Court will have to rely largely on reports of their competence and suitability from subordinate judicial officers. Further, a High Court judge or judges interviewing a candidate for fifteen minutes or half an hour would hardly be in a position to arrive at a satisfactory conclusion as to his fitness though they may be assisted by reports from the subordinate judiciary.
A great deal of diversity of opinion exists as to the effectiveness of these interviews as tests of fitness. It, not infrequently, happens that a candidate with some personality and good manners is able to impress the interviewing judge or judges when a man of real merit who is self-conscious and diffident fails to impress them. There is moreover the element, however small of the possibility of personal influences being brought to bear on the interviewing judge or judges.
33. Written competition test suggested.-
Having regard to all these considerations, we think, that by far the best method is that of a written examination which would help to eliminate a large number of candidates. Such of those who survive the written tests can be called for an interview which may form, part of the test. A competitive examination has for long been an accepted method of testing ability for various occupations in life and there is no reason why it should not measure a candidate's ability for judicial office.
34. views of the Rankin Committee.-
It may be mentioned that the Civil Justice Committee were also of the opinion "that a modified form of competition among the nominated candidates should be one of the elements in the selection of munsiffs "1 They made this recommendation "with the less hesitation as persistent complaints were made that recent nominations in several provinces have not been made from the best material available. It seems that if competition in some form is introduced, criticism of this kind will be disarmed".2
1 Report, p. 183, para. 9.
2. Ibid., para. 10.
35. Nature of the written examination (Practical test recommended).-
We shall consider next the important question of the nature of the written examination to be held. We have already dealt in part with the question of the field for recruitment to these services and expressed our preference for recruitment from among persons who have had experience at the Bar for a period of three to five years. It is obvious that subjecting candidates who have already taken a law degree and spent some years at the Bar to a written examination in legal subjects in the ordinary manner will not result in a satisfactory selection. The young man who has spent some time at the Bar can hardly be expected to devote time and attention to text books and law reports and answer question papers of the type usually set at law examinations.
Even if he prepares himself for such a test, it would only enable the young lawyer with a good memory to score better in the examination and not bring to the fore the young man with a real aptitude for legal and judicial work. What we therefore suggest is a test of a practical nature. To quote the Civil Justice Committee,1 "an examination should be held to test the candidate's practical acquaintance with law and procedure with special reference to his ability to draft pleadings, appreciate evidence and write judgments. A simple method would be to give the candidate records of some decided cases.
He should then be required to draft the issues and write the judgment, discussing the law including the case-law applicable to the facts". The candidate may be provided with bare Acts and law reports so that he may not be forced to rely on his memory and have ample opportunity of verifying the law. The emphasis will not be so much on a knowledge of the law as on its application with the aid of books, to a given set of facts. It may be pointed out that examinations of this nature are being held in the State of Uttar Pradesh for recruitment to the higher judicial service.
1. Ibid., p. 185, para. 8.
36. Service Commission to conduct examination (Appointment of examiners).-
A further important question for consideration is the authority to be entrusted with the holding of the examination. We have already noticed the provisions of Articles 234 and 320 of the Constitution which require consultation with the Public Service Commission in regard to appointments to the subordinate judiciary and which entrust the duty of holding the examinations generally to the Public Service Commissions. In view of these provisions, we think that the examinations can well be conducted by the Public Service Commissions provided, however, that its nature and scope are defined in rules framed with the concurrence of the High Court.
It would, we think, also be advisable to take the further precaution which is found in the rules prescribed in Uttar Pradesh and Bihar that the examiners should be selected in consultation with or with the concurrence of the High Court. Such a course will assure the selection of suitable and competent persons for the purpose of setting and valuing the papers at the examination.
37. Examiners from outside the State.-
Some very responsible witnesses before us gave expression to the complaint that examiners selected from inside the State were apt to be the subject of influence and pressure and that it would be desirable to make it a rule to select as far as possible examiners from outside the State. We have no means of judging the correctness of this complaint. It may, however, be judicious in order to obviate all suggestions of partiality, to have a fair proportion of examiners from outside the State.
38. Case for viva voce tests (The case against) (viva voce tests to continue) (No requirement of minimum marks).-
We have noticed above the divergence of views in regard to the utility of a viva voce test forming part of the examination. Speaking generally, it appears that members of the Public Service Commission attach great importance to it and such of them as we have examined have stated, that it has yielded very satisfactory results. On the other hand, there is the view expressed by members of the legal profession and of the judiciary, that these tests give only a superficial and imperfect idea of a candidate's merit. Not infrequently, the candidate with a certain amount of presence of mind and readiness of wit is able to show himself at advantage in these tests as compared with those possessing more substantial but less showy qualities.
There is also the view that these tests by reason of the intangible elements on which they are based make it easy for the play of patronage and nepotism. The possession of a personality is a matter of substantial importance in the making of an efficient judicial officer and that such tests have for long been an accepted part of such examinations. We recommend their continuance. However, in order that these tests may operate satisfactorily, it is necessary to provide that the marks allotted to them should not be disproportionate to the total number of marks in the examination.
As to what the actual proportion should be is a detail which must be left to be dealt with by the rules governing the examinations. Nor should a minimum requirement in the viva voce test be insisted upon. Instances are known of persons who have failed to obtain good marks in the viva voce tests having made very efficient and successful executive and judicial officers. We have already indicated the importance of associating a High Court judge in the holding of the viva voce test and giving him a preponderating voice in the result of the test.
39. Recruitment from ministerial services (No reservations for the ministerial staff).-
We have already indicated that recruitment for the lower subordinate judiciary should be made from among law graduates who have practised for 3 to 5 years at the Bar and whose age may not exceed 30 years. However, in the southern States such as Andhra Pradesh, Kerala, Madras and Mysore, a certain number of vacancies in the cadre of the lower judiciary is reserved for the ministerial services particularly of the courts. These ministerial servants are required, in order to be eligible, to possess a law degree. In three of the southern States it is also necessary that they should have passed the Bar Council examination. Being ministerial servants in courts or departments concerned with law, they have a certain amount of knowledge of the practical working of the law.
There is, however, a considerable body of opinion that this class of persons bred in the atmosphere of the offices of courts where unhealthy practices prevail should not be eligible for appointment to judicial office. On the other hand, opinion has been expressed by distinguished retired judges and others that judicial officers drawn from the ministerial services have in the course of time turned out to be distinguished members of the judiciary. It is unnecessary for us to express any definite view in regard to these rival opinions. The only question for our consideration is whether the reservation now being made in the southern States of a certain number of posts for the ministerial services should continue.
We are of the view, that it should not. Persons in the ministerial services who have been at the Bar for the minimum prescribed period and are within the age limit prescribed would continue to be eligible to compete at the examination for recruitment to the lower judicial service. A reservation is unnecessary to meet cases of this character. However, in order to make it possible for ministerial servants to be able to compete, a higher age limit as compared with that for direct recruits from the Bar has sometimes been prescribed. This is clearly undesirable. If the ministerial servants wish to compete in these examinations, it should be open to them to do so on the same conditions as other law graduates who have practised at the Bar.
40. Minimum qualification three years' practice.-
Having regard to the considerations mentioned above, we are of the view that three years practice at the Bar should be prescribed as one of the minimum qualifications of eligibility for entry into the lower judicial service (civil judge junior division) recruited at the State level.