Report No. 14
101. Recommendation by Medical Board of High Court not necessary.-
It was suggested that in order to ensure that a member of a subordinate judiciary continued to be physically and mentally fit, his continuance in service till fifty-eight should be made subject to a recommendation by the High Court to that effect or to a certificate by a medical board certifying his physical fitness. It would not, we think, be practicable for the High Court to make recommendations with regard to the mental and physical health of every individual judicial officer in the State. Nor should we permit a judicial officer to be placed at the mercy of a medical board in the matter of his continuance in service. The higher retirement age will be one of the usual conditions of service of judicial officers. The State will, however, have its normal power to compulsorily retire an officer before his superannuation age for proper reasons on the recommendation of the High Court.
102. No further extension or employment under the State.-
It is necessary, however, to emphasize that on the attainment of the age of fifty-eight years a judicial officer should not be granted any extension or given further employment under the State unless of course he is elevated to the High Court Bench. In several States, retired judicial officers are employed as members of various quasi-judicial tribunals. We are of the view that such a practice tends to encourage a retiring judicial officer to look for the patronage of the executive authorities.
We therefore recommend that all posts for which a person of the status of a district judge may be needed should be included in the cadre of District Judges and the normal requirement of such posts should be taken into consideration in fixing the strength of the cadre. Such a course has, we understand, already been adopted in the States of Andhra Pradesh and Madras.
103. Corruption (Civil judiciary free from).-
Our country-wide inquires have left within us a feeling of deep satisfaction that our civil judiciary is by and large free from corruption. Judicial officers have no doubt on occasions strayed from the straight and narrow path; but such instances serve only to emphasise the reputation fOr integrity enjoyed by the judiciary as a whole. We must, however, make it clear that this cannot be said of the criminal judiciary in States where the judiciary has not been separated from the executive.
104. Need of rigid code of life for judicial officers.-
The life of a judge, whether on the Bench or otherwise, is a difficult one. He is called upon to adjudicate on contending claims, sift truth from falsehood, uphold lawful causes and reject the rest; and in doing his duty, he even arouses hostility. He has to tread a wary path in order to leave no room for any litigant to apprehend prejudice or to court favour. Not only has he to be impartial but he has to conduct himself in a manner so that everyone can feel that he is impartial. The stern necessity for so ordering his conduct invades even his private and social life.
He cannot move freely among people for risk of being misunderstood and laying himself open to a suspicion that he has been influenced in his decisions, A judge has to earn for himself an unassailable reputation for independence, fearlessness, strict impartiality and honesty, so that the public can resort to him with confidence for the just solution of their disputes. Thus the grave responsibility that rests upon him in holding the scales of justice even between party and party-and quite often one of the parties is the State itself-affects his entire manner of life.
Danger of temptation.- A judicial officer enjoys large discretionary powers in the performance of his duties. Although he is bound by the law and the rules, he can still, if so minded, use his discretion dishonestly to the prejudice of a party. A civil judge, with an unlimited pecuniary jurisdiction or a magistrate armed with wide powers under the Criminal Procedure Code can cause great harm to parties by a misuse of his discretion. It is true that wrong orders can be detected by the superior courts and set right either suo moto or on being moved by the affected party.
But, nevertheless an improper advantage would be gained by one party or an unjustified prejudice suffered by another before the matter can be remedies. It is not surprising, therefore, that litigants should often attempt to throw temptations in the way of the judicial officers. These temptations might take the shape of illegal gratification in money or in kind or some other forms or they may seek to influence the judge by an appeal to considerations of friendship, caste or religion. A steadfast sense of duty and all innate integrity are needed in a judicial officer to be able to keep himself unaffected by such temptations and influences.
105. Need for improving conditions of service.-
The danger that a judicial officer may be moved by such circumstances has increased considerably in recent years. We have referred elsewhere to the incompatibility of the remuneration and the conditions of service of the judicial officers with their status and their responsibility in the context of conditions of life today. We have referred to their difficulties in obtaining residential accommodation and in commanding even ordinary comforts essential for the satisfactory discharge of their official duties.
The fact that our civil judiciary has acquitted itself so well and has gained a reputation for honesty and integrity should not shut our eyes to the urgent need of improvement in their service and other conditions. It is vital that the States should place the judicial officers as a class above the possible reach of temptations of any kind. We are not suggesting that the pay and emoluments of the officers should be raised to such a degree that any temptations would have no attraction for the judicial officer.
That would be impossible under any circumstances. What we do suggest is, that due consideration of the importance of the work done by them should be had in fixing their remuneration and other conditions of service. We have already indicated elsewhere the extent to which the State can go in this respect without incurring very heavy financial burden. We are of the view that action on the lines suggested should be taken without delay.
106. Strong action to be taken.-
At the same time, we would insist upon very severe action being taken against officers, who have been found guilty of having abused their position to gain pecuniary or other benefits. In cases where the dishonesty of a judicial officer has, after proper inquiry, been established, there can be no other method of dealing with him than that of dismissal.
107. Need for scrutiny at time of promotion.-
The High Court has large powers of superintendence and control over the judiciary and in exercise of those powers, it should be vigilant to see that judicial officers whose honesty is not beyond suspicion are not placed in positions of greater responsibility. The integrity of an officer should generally be taken into consideration at the time when he is promoted to a higher post. This can be done effectively only if the officer's reputation and honesty in the discharge of his duties are periodically examined by the High Court. Too often this aspect of an officer's duties is not paid sufficient attention. In a matter of such vital importance, the High Court should not omit to form a considered and deliberate view.
108. Anti-corruption committees (Not favoured).-
It was suggested to us that anti-corruption committees consisting of the district judge and some members of the Bar may be appointed in each district to investigate into cases of alleged corruption of judicial officers. It is difficult to give serious consideration to such a suggestion. If the members of the Bar are constituted judges of the judiciary, the respect and confidence which the judiciary inspire among the public will be gravely undermined. Such a measure would also tend to affect their independence. A strong Bar is perhaps the best shield that one can have against a dishonest judge. But the Bar cannot be utilized in weighing allegations of dishonesty against a judge.
109. Criminal judiciary-lack of supervision and tradition (To be brought under the High Court).-
The criminal judiciary in States where the judiciary has not been separated from the executive, however, does not enjoy the same reputation for impartiality as the civil judiciary does. We are inclined to feel that this is largely due to the lack of effective supervision and arises from the dual control of the executive and the judiciary over these magistrates. On the administrative side, these officers are under the direct control of the State Government. On the judicial side, they come under the control of an independent judiciary, in that, appeals and revisions from their judgments lie to the Courts of Session or the High Court.
The administrative supervision exercised by the State Government through its officers over the work of these magistrates, would not appear to serve to bring to notice defects in the working of the machinery due to the dishonesty of the officers. The High Court is perhaps in a better position to form a judgment in this respect but it is powerless to take such administrative steps which would control or correct the officer. If dishonesty is to be rooted out from this branch of the judiciary it is vital that it be immediately brought under the administrative control of the High Court. There is also in some States an absence of the tradition of impartiality and integrity in the criminal judiciary as has been the general characteristic of the civil judiciary. Perhaps, the blending of the two into a single cadre as recommended by us, may help to spread the tradition over the combined cadre.
110. Corruption: specific recommendations not necessary.-
We do not think it necessary to make any particular recommendations for the purpose of dealing with corruption in the judiciary. It will be for the High Court in each State to devise appropriate measure having regard to the circumstances prevailing in the State.
It is necessary to examine some of the provisions of the Constitution relating to the recruitment and control of the subordinate judiciary.
111. Constitutional provisions.-
Article 233 provides that appointments of persons to be district judges shall be made by the Governor in consultation with the High Court. A person from the Bar in order to be eligible to be appointed a district judge has to be an advocate or a pleader of not less than seven years standing and recommended by the High Court. Article 234 provides that the appointments of persons other than district judges to the judicial service are to be made by the Governor in accordance with rules made by him in that behalf, after consultation with the State Public Service Commission and the High Court.
Article 235 which relates to the control of the High Court over the subordinate courts provides, first that the High Court is to have control over all the courts subordinate to it including the district courts, and, secondly that such control is to include the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to that of a district judge.
112 Difficulties of interpretation (Article 234).-
On an examination of these articles of the Constitution, certain difficulties of interpretation would seem to arise. Article 234 provides for the appointment of all judicial personnel other than district judges. It requires that the appointment shall be made by the Governor in accordance with the rules made in that behalf after consultation with the Public Service Commission and with the High Court.
The language of the article does not clearly indicate whether the consultation covers only the making of the rules in that behalf or whether it extends to a consideration of the suitability of the appointee. The Public Service Commission, has certain constitutional functions to discharge; it has also the right to be consulted on all matters relating to the methods of recruitment to the Civil Services and the principles to be followed in making appointments to Civil Services and on the suitability of candidates for such appointments.
It is not necessary for our purpose to examine the other rights and obligations of the Service Commission. Generally speaking, however, it has been the practice in the States where the Public Service Commission has been employed for the purpose of selecting judicial personnel, to associate the High Court or its representative at the time of making the selection. It is, however, possible to interpret Article 234, so as to exclude consultation with the High Court in the actual selection of the candidates.
113. Modification of Article 234.-
Having regard to the ultimate responsibility of the High Court for the judicial administration in the State and other considerations mentioned by us earlier, the principal responsibility for the selection of judicial officers should, in our view, rest with the High Court, though the assistance of the Public Service Commission in holding examinations and viva voce tests and other matters will be necessary. Article 234 may, therefore, need modification so as to provide that persons appointed to the subordinate judiciary may be persons recommended by the High Court as in clause (2) of Article 233.
114. Not necessary under certain circumstances.-
Such an amendment would, however, he unnecessary if the recommendations we have made in regard to the methods of the recruitment of the subordinate judiciary are accepted. In the scheme proposed by us the decisive factor is the competitive examination which will include a viva voce test. Under Article 234 as it stands at present rules could be made by the Governor in consultation with the Service Commission and the High Court providing for a competitive examination, the character of which will be laid down by the High Court. The rules can also provide for the association of a High Court Judge in the viva voce test with a prepondering voice in the selection of the judicial officer.
115. Conflict between Articles 233 and 235.-
There appears also to be a conflict between Articles 233 and 235. Taking the case of a person in the judicial service who is ripe for promotion to the next higher post as a district judge, the question arises whether such a promotion would come within the scope of Article 233 as the appointment of a person to be a district judge or whether it would fall within Article 235 which deals with "the posting and promotion of,-persons belonging to the judicial service of a State and holding any post inferior to the post of district judge".
In the first view, the appointment would be one which can be made only by the Governor of a State in consultation with the High Court; in the latter view, the High Court would be fully competent to make the appointment itself. The former view seems to have been taken by the executive in certain States. In fact, instances were brought to our notice of officers holding posts inferior to that of a district judge who were not recommended for promotion to be district judges by the High Court, but who nevertheless were appointed to be district judges by the State Government.
The danger inherent in such a state of things should be fairly obvious. The district judge holds a key position in the judicial structure of the district and is in a measure responsible for its efficient judicial administration. The High Court necessarily looks to the district judge for the carrying out in the district of its instructions in regard to courts and judicial administration. The High Court would therefore be considerably handicapped and even embarrassed in the discharge of its functions if its view of the competence of an officer is ignored. Further, if the promotion of a person belonging to the judicial service to hold the post of a district judge is not to depend in any manner upon the view of the High Court, the officer will naturally seek the patronage of the executive and the control of the High Court over the officer will suffer.
117. Promotion to be on the recommendation of the High Court.-
In our view as under Article 233(2), no member of the Bar who has the requisite length of practice is to be eligible to be appointed a district judge unless he is recommended by the High Court, the promotion of a subordinate judicial officer to the post of a district judge should also be made only on the recommendation of the High Court.
118. Posting of district judges.-
The position in regard to the posting and promotion of district judges is in no way different. The High Court has complete control over such posting and promotion in the case of officers inferior to district judges. But with regard to the postings and promotions of district and sessions judges, the High Court is required to be merely consulted by the State Government. Though generally the High Court's views are accepted, difficulties have arisen in such matters in some States and officers not approved by the High Court have been either posted to certain head-quarters or promoted by the State Government.
A senior Chief Justice told us that "Twice have district judges been transferred by the State Government to another post without any reference to the Court and while they were in the midst of heavy cases and such transfer has thrown on the Court the difficult task of finding peremptorily a successor". This, in our view, is most undesirable. The High Court would be the proper authority to decide whether a particular officer would be suitable for being posted to a particular place or promoted having regard to the capacity of the officer or the difficulties relating to judicial administration in that district. The State Government cannot be in a position to form a proper judgment on these matters. It is, therefore, necessary that the posting and promotion of district judges should be made on the recommendation of the High Court.
119. Constitutional amendment suggested.-
The entire control over the subordinate judiciary including the district judges must, in the interests of the efficiency of the administration of justice, be vested in the High Courts. We, therefore, recommend that suitable constitutional amendments be made for the purpose of giving the High Courts powers in regard to the posting and promotion of district judges such as they now possess in regard to the posting and promotion of inferior officers.
119A. Absence of proper facilities (Inadequate court accommodation.) (position in Bihar).-
The quality of the work of a Judge is in no small measure conditioned by the environment in which he is obliged to work. In a number of States we visited, there were bitter complaints from judicial officers and others about the appalling conditions of court houses and their surroundings. Our visits to the subordinate Courts in Allahabad in Uttar Pradesh and Alipore in Calcutta among others, left us in no doubt that the accounts given to us were fully justified. The condition of the rooms in which Judges hold their courts and/or have as their chambers may be truly described as miserable.
The space allotted to the ministerial staff and members of the Bar is so inadequate that overcrowding leads to uncleanliness, confusion and even disorder. Building constructed to suit the requirements of courts more than three-quarters of a century ago have for years been found insufficient and unsuitable for the greatly expanded needs of the Courts of today. It is not unusual to find three or four Courts being held in a building originally designed for one Court.
Many of the additional courts established in later years are held in very uncomfortable and inconvenient temporary sheds erected in the compound of the original court buildings or elsewhere. Apart from the lack of space, the unhealthy conditions of these old structures, the dark, dingy and ill-ventilated rooms, broken furniture and the general slovenliness within the premises make them almost unfit for human occupation. Many of the buildings dg not appear to have been cleaned or white-washed for years.
The rooms in which the judges are expected to retire for rest or work in the intervals between the sittings are no larger than small cubicle with space just enough for a table and a chair. Many courts are without adequate space for the members of the Bar, and without any space at all for the litigant public and the witnesses. We understood that in many places there are no facilities at all for the safe custody of the records of suits which lie in locked tin boxes piled up either in the office or in the court halls. The situation in some of the Bihar courts was thus described by the Chief Justice of the State:
"Most of the Additional Munsifs have separate chambers and at some stations like Sasaram the Subordinate Judges and Munsifs are holding courts in the building of the Bar Associations. At Darbhanga the Registrar system could not be introduced because the Civil Court building had not sufficient accommodation. My predecessor inspected the courts and offices at Jamshedpur last year and felt that there was immediate necessity for extension of the Civil Court building In my opinion, the question of the building projects in regard to office and residential accommodation is extremely urgent; otherwise the efficiency of the judicial officers will be affected and the administration of justice is bound to suffer."
120. Need for improvement.-
A court, whether it be that of a munsif or a magistrate or of a district judge, is to the citizen a temple of justice which he visits for the vindication of his rights and liberties. The court must therefore be housed in a place where it could conduct its proceedings with some dignity and so as to inspire respect. A court house need not be an imposing edifice but it should be so constructed and situated as to enable the judicial officer to perform his functions with dignity and in some comfort. This seems to be scarcely realised.
The need for providing suitable and adequate accommodation for courts, never in the fore-front of governmental planning, seems to be receding more and more into the background. Naturally, greater emphasis has to be laid upon expenditure on the directly productive aspects of the national economy. But that can be no justification for the niggardly and slum-like accommodation now vouchsafed to courts in some States.