Report No. 118

Chapter III

Competence/jurisdiction to Deal with Subordinate Courts

3.1. Can the Law Commission of India set up by the Government of India deal with the question of subordinate courts/subordinate judiciary which are at present handled by the States? Can a Parliamentary legislation be enacted to restructure subordinate judiciary/subordinate courts even without recourse to Articles 247, 249 or Article 252 of the Constitution?

3.2. Prior to the Constitution (Forty-second Amendment) Act, 1976, entry 3 in list I.- State List, read as under:-

"3. Administration of Justice; constitution and organisation of all courts except the Supreme Court and High Courts; officers and servants of the High Courts; procedure in Rent and Revenue Courts; fees taken in all courts except the Supreme Court."

By section 57 of the Constitution (Forty-second Amendment) Act, 1976, this entry was recast by deletion of the words: "Administration of justice: constitution and organisation of all courts except the Supreme Court and the High Courts." Simultaneously, entry 11A was inserted in list II.- Concurrent List which reads as under:-

"11A. Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts."

3.3. The States enjoyed the power to set up subordinate courts and prescribe by rules the conditions of service including eligibility criteria for recruitment to subordinate judiciary. Every State had a statute for setting up subordinate courts with their designations as have broadly been indicated in the earlier portion of this report and the nomenclature of the court coincided with the designation of the various cadres in subordinate judiciary. This power was enjoyed by the States under unamended entry 3 of the State List.

This situation had its genesis in a decision taken in the 'conference of the Premiers of the provinces in 1946 chaired by the then Home Minister, late Sardar Vallabhbhai Patel.1 This conference resolved that subordinate judicial service should be organised by the Government of Provinces and it was not considered necessary to organize the same on an all-India level on the model comparable to administrative services which were to be formed on all-India basis, replacing the then Secretary of State's services.

Article 312 conferred power on the Parliament by law to provide for the creation of one or more all-India services if the Council-of-States has so declared by a resolution, supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest to do so. On such a resolution being adopted with the requisite majority and the Parliament consequently enacting a legislation to that effect, a service on an all-India basis common to Union and the States could be set up.

The legislation must provide for regulating the recruitment and the conditions of service of persons appointed to any such service. A doubt was felt whether, in view of entry 3 in the State List, the Council of States can adopt a resolution and the Parliament can pass a legislation for setting up of an all-India Judicial Service. There was a body of public opinion that the time has come to re-structure the judicial service on an all-India basis at least from the level of a District Judge.

Therefore, while making the necessary amendment in entry 3 of the State List with corresponding entry in the Concurrent List, an amendment was also made by section 45 of the same Amendment Act to insert the words "including an all-India judicial service" in Article 312 after the words, "all-India service" and before 'common to the Union and the States'.

The cumulative effect of these amendments have unquestioningly conferred power on the Parliament to enact a legislation for setting up an all-India judicial service provided a resolution with the requisite majority is adopted by the Parliament and within the constraints of Article 312(3). The Law Commission has already submitted a comprehensive report in this behalf recommending constitution of Indian Judicial Service.2 Therefore, the desks are now clear for the Parliament to take appropriate action for setting up a judicial service on all-India basis.

1. LCI, 116th Report, para. 2.2

2. LCI, 116th Report.

3.4. Once it is considered desirable and necessary to set up judicial service at the level of District Judge which was hitherto part of the State Judicial Service, on all-India basis, it became a compelling necessity to provide sources of recruitment to the same. Amongst various sources for recruitment to that service recommended by the Law Commission, one source is subordinate judicial service in the State.

Now, if Indian Judicial Service, being judicial service organised on an all-India level, is also to be manned by persons promoted from the subordinate State judicial service, it becomes a compelling necessity to organise State Judicial Service in such a manner as to provide an equal opportunity to everyone in each State to compete for a berth in Indian Judicial Service.

It would be impossible to recommend persons from subordinate judicial service for being promoted to Indian Judicial Service if the subordinate judicial service at the State level is not re-organised on a pattern common to all States simultaneously retaining it as a State Service. It would be impossible to ask each State to undertake enactment of a common legislation.

Therefore, it is necessary to have a uniform legislation with uniform designations replacing the present ones and common to all States in respect of posts and cadres in subordinate judicial service which should be styled 'State Judicial Service'. This designation in relation to Indian Judicial Service will demarcate the functions and spheres of both the services.

For bringing about a common pattern of State Judicial Service, it is inevitable that legislation must be enacted by the Parliament and this is no more difficult or open to question in view of entry 11A of Concurrent List. It is accordingly recommended that Parliament should enact a legislation dealing broadly with subordinate courts in States, the designation of courts and cadres of services in State Judicial Service and in Union territories which would also provide a common denominator for further promotion of the members of such State Judicial Service to Indian Judicial Service.

3.5. The Law Commission has recommended a legislation for setting up Indian Judicial Service in its report.1 That very legislation can provide a chapter in respect of subordinate judiciary. Let it be made clear that even when the subordinate judicial service at State level is being set up under a law to be enacted by Parliament, the service would nonetheless remain a State Service and the responsibility to man the same would be of the States and the expenditure on the establishment of State Judicial Service will undoubtedly be borne on the Consolidated Fund of each State. There is no dearth of power in the Parliament to enact such a legislation.

1. LCI, 116th Report.