Report No. 14
41. Age limit for entry-maximum thirty.-
The age limit up to which candidates are recruited to this service varies in different States from twenty seven to thirty five, it being as high as forty in the case of ministerial servants. A person should be able to complete three years' practice at the Bar when he has reached the age of twenty six or twenty seven years. The maximum age limit therefore for entry into the judicial service may well be fixed at thirty years. On the basis that the existing rules, regarding the age of superannuation remain unaltered, he will have the opportunity of being in service for a period of at least twenty five years. It appears to us unnecessary to fix a minimum age, at which a candidate would become eligible for admission to the service.
41. Training essential.-
The mere selection of a suitable person by the application of the tests we have described does not obviously complete the process of bringing into the service the competent judicial officer that is needed. The law graduate, notwithstanding his experience of a few years at the Bar, will still require a course of training before he can be entrusted with the work of a judicial officer. Dealing with this aspect of the matter, the Civil Justice Committee observed as follows:-
"It seems to us that it is most undesirable that young munsif should have to learn from his munsarim or reader from whose domination, he generally finds it difficult to shake himself free. We would therefore recommend that a training course for this class of officers should be held at headquarter stations for a period of, say, three months preferably during the vacation and instructions should be given by a retired officer from the provincial civil service."1
1. Report, p. 187, para. 19.
At the present day, the importance of training seems to be even greater than it was thirty years ago. Not only has the volume and variety of the work increased but the pace at which a munsif has to perform his duties has quickened. Unless a young officer is given the proper training, he is likely to acquire by reason of his inexperience, un-businesslike habits which he may find it difficult to shed later on and which may prevent him from becoming an efficient judge. A certain amount of training in the administrative work of a court is also essential to a fresh entrant into the service from the Bar, if he is not to be at the mercy of his office clerks.
43. Length of training.-
The length of the period of training given to the recruits at present varies from State to State. In Bihar and West Bengal, a two-year period of training is provided. In the other States like Andhra Pradesh, Madhya Pradesh and Madras, where the recruitment is from persons who have had experience at the Bar, the period of training is six months. The State of Uttar Pradesh provides for a training from four to six weeks only. In Bombay and Rajasthan, there is no provision at all for any training. In some of the States, however, the period of training prescribed has, in practice, turned out to be merely a theoretical requirement. In Uttar Pradesh and in West Bengal, in spite of the relevant orders providing for periods of training, it has in many cases, been dispensed with on account of the shortage of officers and the immediate need for filling vacancies which had arisen.
44. Period and nature of training.-
The pattern of training is, broadly speaking, the same in the States where training is contemplated as an essential part of a judicial officer's career. Detailed and comprehensive schemes for training have been worked out in Bihar, Madras, West Bengal and Madhya Pradesh. They are designed to enable the probationer to familiarize himself with (a) actual trial work, civil and criminal; (b) revenue work; (c) conduct of cases; and (d) administrative work. The trainees are put in charge of a senior district and sessions judge whose duty is to guide them during the period of training and report on their work.
45. Training in Madras.-
As we are recommending recruitment from persons who have spent a minimum of three years at the Bar, it will be convenient to examine the method of training adopted in Madras where recruitment is made from members of the Bar and to suggest changes wherever we consider such changes necessary.
46. Revenue training.-
In that State, generally the recruit is given training for three months in the revenue department and for an equal period, in the judicial department. He is first trained in one or the other of the two departments depending upon considerations of administrative convenience. But it is learnt that an attempt is being made to give the revenue training first. We set out the manner in which he is put through this training. The probationer is attached to a Karnam for three weeks and to a village headman for one week so that he may have knowledge of their day-to-day work with particular reference to the maintenance of village accounts.
For the next three weeks, he gets training in survey work and the maintenance of land records and other documents like field maps and village maps. He is then attached to a Firka revenue inspector for a week and to a minor irrigation overseer for two weeks. His remaining period of training in the revenue department is spent in the taluk office where he studies various land records and understands the general background of the maintenance of Government accounts.
Its importance.- The importance of training in revenue work cannot be over emphasized. A fresh recruit to the service cannot satisfactorily discharge his duties in disposing of civil and criminal matters without an adequate knowledge and appreciation of rural conditions. A large part of the munsif's work consists in dealing with land disputes and a knowledge of revenue matters is indispensable to the satisfactory disposal of these matters.
47. Police training.-
The revenue training is followed by a short training of about two weeks with a circle inspector of police when the recruit gets an opportunity to study the general working of the police department with special reference to the investigation and prosecution of cases. He acquires a knowledge of the regulations under which action has to be taken in the event of a disturbance of law and order. In a later chapter, we refer to an argument that separation of the judiciary from the executive should not be effected because the separated magistracy is unaware of the difficulties of the police in investigation, and in making evidence available against the accused and is prone to exact too high a standard of proof.
We emphasize in that connection the need for a fairly full acquaintance with police methods of investigation and prosecution of cases as a part of the training of the judicial officer dispensing criminal justice. It may be that in that view, the period of training in police department may have to be longer than two weeks.
48. Judicial training.-
Then follows a period of training in the judicial department for a period of three months. During this period, the trainee is first asked to watch the proceedings in courts, civil and criminal, at the district headquarters and is then given the work of trying simple civil and criminal cases
49. Administrative training.-
The training in administrative work proceeds side by side with the training in the judicial work. The probationer is required to gain an intimate knowledge of the actual working of the different grades of courts and their offices. He has to acquire a thorough knowledge regarding the maintenance of the different registers, the preparation of statistical returns, the scrutiny of plaints and the checking of court-fees, the preparation of decrees and the system of distribution of processes. He has to familiarize himself with the working of various departments like Nazarat, accounts, copying department, record room and the like. He is also required to have a thorough knowledge of financial rules and to acquaint himself generally with administrative work and office routine. This departmental training is essentially of a practical character.
The period of training may not, however, necessarily proceed in the order described above and may be intermingled or proceed in two departments at the same time, depending upon the exigencies and convenience of the trainee as well as the departments concerned.
It may, in some cases, be necessary to send the trainee for training in some other department as well. This will have to depend on local conditions.
50. Period of training to be six months to one year.-
It is difficult to lay down definitely the period of training in all cases. It may, however, be observed that in view of our recommendation that recruitment of the judicial officers should be from the Bar, we consider a period of training ranging between six months and one year as sufficient. The period and the nature of the training may, however, be adjusted from time to time and in particular cases by the High Court by reason of variations in the local conditions and having regard to the background of the officers.
51. Not to be shortened or dispensed with (To be imparted by selected officers).-
We, however, wish to make it perfectly clear, that in no event should the training be dispensed with or its period reduced to less than six months. We would emphasize, that a training such as we have envisaged, is as essential to the making of a properly equipped judicial officer as the test of an examination to which he is to be subjected. We were informed, that even in States where a training is provided, there was a tendency on the part of the selected officers and their superior officers to regard it as unimportant and a matter of routine.
This is to be deprecated. The training should be entrusted in our view to a selected district judge who would make periodical reports to the High Court about the trainees in his charge and their progress. Any want of attention to a judicial officer at the vital stage when training is being imparted to him will result in greatly impairing the competence and efficiency of the lower judiciary which we are aiming to raise.
52. Creation of an all-India Judicial Service.-
We may next consider the constitution of the higher judiciary and their recruitment and training.
Earlier we have expressed our view that a proportion of the higher judiciary should be recruited by a competitive examination at the all-India level, so as to attract to the judiciary, capable young graduates fresh from the Universities. We shall now proceed to discuss the scheme in detail.
53. Recruitment to the higher judiciary (Percentage to be reserved for the Indian Judicial Service).-
We are concerned at this stage in considering recruitment to what we have earlier designated as the State Judicial Service Class I, which will comprise of posts of district judges, additional district judges and corresponding posts usually filled by officers of the status of a district judge. These posts are at present filled partly by promotion from the subordinate judicial service which we are designating as State Judicial Service Class II, and partly by direct recruitment from experienced members of the Bar. The proportion of direct recruits from the Bar to those promoted to these posts varies from State to State.
The highest percentage amounting to fifty per cent. is to be found in Bombay and Kerala. In Assam and Bihar, the direct recruits from the Bar average thirty-three and one third per cent. and in Uttar Pradesh the percentage is twenty-five. In other States, the percentage varies from twenty-five to fifty per cent. In order to bring into the higher judicial service a fair proportion of brilliant young men who will set a higher tone and level to the subordinate judiciary as a whole, we propose that forty per cent. of these posts should be filled by persons who would be recruited by a competitive examination held at the all-India level.
These selectees will be subjected to a training and occupy subordinate posts borne on the cadre of the State Judicial Service Class II for a period of years before they are brought to State Judicial Service Class I. This scheme will no doubt have the effect of reducing the percentage of direct recruitment from the Bar in some of the States and also reducing the number of posts which are now available to persons from the subordinate judicial service (state judicial service, Class II) for promotion to the higher judiciary. These reductions have to be faced and accepted as they are necessary in the interests of the efficiency of the higher judiciary and the judiciary as a whole.
54. Selection by an all-India examination.-
We have already referred in more than one place to the poor intellectual calibre of the law graduates who eventually find their way into our judicial service through the avenue of the Bar. We have also mentioned how the cream of our young men are drawn away into the Union, the State and private services. The problem, therefore, is to tap, as it were, the source of recruitment at the right time and at the right level so that we will be able to attract a number of these brilliant University graduates to the judicial service.
It appears from the figures made available to us by the Union Public Service Commission that a substantial proportion of students offering themselves for the I.A.S. examination are interested in law and take optional papers in different branches of law. Though we have not been able to obtain complete figures, we have no doubt that a fair proportion of the candidates offering themselves at this examination are law graduates. Why should not then we seize the opportunity of recruiting some of them to the judicial service?
55. Service Judges v. Bar Judges.-
This brings us to the controversy of the merits of the service or professional judge as compared with the judge drawn from legal practitioners. In most of the Continental countries, the professional Judge holds the sway. The reverse is the position in the Anglo-Saxon countries. India has for a long time occupied an intermediate position, both in regard to the subordinate as well as the higher judiciary. Ours has been a tradition of the blend of these two types of judges.
56. Resemblance to the I.C.S. (Consequent opposition).-
The scheme which we suggest is in some respects similar to that under which Indian Civil Service officers were recruited to judicial posts after having entered the Service by a stiff competitive test. That similarity has evoked a great deal of criticism and opposition from the witnesses we examined as it was said that officers of the Indian Civil Service who went to the judiciary were by no means successful judges. A distinguished lawyer stated that "good I.C.S. Judges were extremely few and exceptions".
Apart from the comment on their work, the Indian Civil Service judges have left unpleasant memories behind them because of their association with our erstwhile British masters. It has been said of them that "We had to suffer them for most of them were British, and our masters. They defended the Empire on the Bench just as their executive counterparts defended it in the general administration."
57. Merits of the I.C.S. judges.-
Notwithstanding all that has been said against the civilian judges, one may not forget that some of them have been great judges, whose judgments are remembered and quoted with appreciation even to this day. Even after Independence, civilian Judges have occupied the responsible office of Chief Justice of some of the High Courts and have been considered suitable for appointment to the Bench o.-the Supreme Court.
58. Its defects avoided.-
Though a competitive examination will be the method of selection and the persons selected will have had no experience at the Bar, in our view, the scheme we propose takes care to avoid the disabilities from which the Indian Civil Service judges suffered. To begin with, he had very often no legal qualifications other than those which had been given to him as a part of his training. These officers served for a number of years in the executive which clearly gave them an executive bias.
Moreover, it was the general belief that the less able of them who were, as it were, found wanting on the executive side were taken up in the judiciary. We are, however, proposing to take only law graduates as recruits to the proposed service. Further, they will have no period of service in the executive as in the case of the civilian. In our scheme, they will, from the commencement, be earmarked for appointment to the judiciary so that they will be imbued, as it were, with a judicial bias.
59. Merits of training (Creation of an All-India Judicial Service recommended).-
The great advantage that the Indian civilian had, was the intensive and varies course of training which he had to undergo. At the time of his first entry into service, his training was confined to matters pertaining to the revenue and criminal administration alone, but when he was taken over to the judicial side, generally an equally intensive training in civil law was given to him for a period of not less than eighteen months. There can be no doubt that a similar intensive judicial training given to a judicial officer who possesses a law degree can be of the greatest value.
If a law graduate recruited by a competitive examination is subjected to a carefully devised scheme of training which would include the practical working of the courts, there is no reason why he should not make as successful a judicial officer as a person recruited After a few years' experience at the Bar. After all, experience at the Bar is only a manner of training and an equally satisfactory training may be given by the adoption of other methods. Indeed, it can be claimed that a planned and systematic training such as is contemplated by us for the judicial officer selected for the Indian Judicial Service may be more effective than the uncertain and spasmodic training which may be received during the course of a few years practice at the Bar.
These and the other considerations referred to earlier have led us to the conclusion that in the interests of the efficiency of the subordinate judiciary, it is necessary that an All-India service called the Indian Judicial Service should be established. This will need action being taken in the manner provided by Article 312 of the Constitution.
60. Method of recruitment: competitive examinations-standards.-
The personnel constituting the Service could be selected through a combined competitive examination relating to the Indian Administrative Service and other allied Services. Candidates competing for the Indian Judicial Service will have to be law graduates and will have to offer at least two optional papers in law. The standards insisted upon in their case will be the same as in the case of the Indian Administrative and the Indian Foreign Service. As to the age limit, having regard to the requirement that the candidate should be a law graduate, we are of the view they should be recruited from the age group of twenty-one to twenty-five years.