Report No. 118

Chapter IV

Re-Organisation of Subordinate Judiciary

4.1. In the matter of re-organisation of subordinate judiciary, the Law Commission is not writing on a clean slate. Attempts made in the past to deal with this may be traced back to the report of the Joint Parliamentary Committee dealing with the question as to the necessity for securing the independence of the subordinate judiciary. The relevant observation maybe extracted1:-

"This subject is not mentioned in the White Paper, but there are aspects of it which seem to us of such importance that we think it right to state our opinion upon them. The Federal and High Court Judges will be appointed by the Crown and their independence is secure; but appointments to the subordinate Judiciary, must necessarily be made by authorities in India who will also exercise a certain measure of control over the Judges after appointment, specially in the matter of promotion and posting.

We have been greatly impressed by the mischiefs which have resulted elsewhere from a system under which promotion from grade to grade in a judicial hierarchy is in the hands of a Minister exposed to pressure from members of a popularly elected Legislature. Nothing is more likely to sap the independence of a magistrate than the knowledge that his career depends upon the favour of a Minister It is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges."

1. Joint Committee on Indian Constitutional Reforms Report, (1933-34), Vol. I, p. 201, para. 337,

4.2. This approach found its echo in the Government of India Act, 1935, which has more or less been a model for the founding fathers of the Constitution. Section 254 of the Act provided for appointment, posting and promotion of persons to be appointed as district judges. They were to be made by the Governors of the Provinces exercising their individual judgment in consultation with the High Court. Sub-section 2 of section 254 provides for direct recruitment from the Bar to the cadre of district judge.

It can be safely stated that Articles 233(1) and (2) is in peri materia with sections 251(1) and (2) with only minor and consequential changes. Similarly, section 255 is in peri materia with Article 234 of the Constitution. Further, Article 235 re-enacts section 255(3) with certain minor variations except that Article 235 vests control over district courts also in the High Court while section 255(3) limits the control to posting and promotion and grant of leave in respect of persons belonging to the subordinate civil judicial service holding any post inferior to the post of district judge.

4.3. The Constitution, keeping in view the intendment of Article 50, namely, the obligation of the State to separate the Executive from the Judiciary, enacted provisions contained in Chapter VI, Part VI of the Constitution which have been designed to secure the independence of the subordinate, judiciary from the Executive, so that they may be free from any extraneous influence in the discharge of their judicial duties.

The control vested in the High Court over the district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a state has by numerous decisions of the Supreme Court been made all enveloping, insulating the subordinate judiciary from any extraneous outside influence or interference including from executive.

The all-pervasiveness of the control has been extensively set out by the Law Commission.1 This effective control has to be retained and cannot be tinkered with in larger public interest and in the interest of independence of judiciary which has been held to be a cardinal feature of our Constitution.2

1. LCI, 116th Report.

2. Shamsher Singh v. State of Punjab, (1974) 2 SCC 831.

4.4. The First Law Commission undertook a review of judicial administration in all its aspects with a view to suggesting ways and means for improving it and making it speedy and less expensive. While dealing with the subordinate judiciary, it recommended setting up of an all-India Judicial Service. In its view, a District and Sessions Judge is the highest authority in the district and is responsible for its judicial administration in all its aspects. Normally, only one in ten persons recruited as Munsif can aspire to reach this selection post.1

In view of the recommendation of the Law Commission, the post of the District Judge including those posts which are comprehended in the expression 'District Judge' as set out in Article 236 would stand included in the Indian Judicial Service. Therefore, the State Judicial Service will comprise posts and cadres below the cadre of district judge as understood in Article 236. It recommended for such posts, uniform designation and a written test to be conducted by the State Service Commission for recruitment. It does appear unavoidable that with a view to reorganising the State Judicial Service, uniform designations will have to be devised.

1. LCI, 14th Report, Vol. I, Chapter 9, para. 66.

4.5. As the situation now stands, certain States as for example Maharashtra, has divided its State Judicial Service into what is designated as Senior Branch and Junior Branch. Some to the States like Rajasthan have sub-divided the State Judicial Service into lower service and higher judicial service. In this behalf, the recommendation of the First Law Commission, even after a lapse of three decades, holds good and it would be proper to adopt it.

The State Judicial Service should be styled as State Judicial Service Class I and Class II. After uniform designations are devised, it would be necessary to determine holders of which particular post would be comprehended in Class II and which in Class I. Suffice it to say that the views of the First Law Commission that the district judge should belong to the State Judicial Service Class I would no more be valid in view of the recommendation for formation of Indian Judicial Service.1

Any other approach would introduce an inconsistency between the two reports which must at any cost be avoided. Therefore, it is recommended that the State Judicial Service below the rank of a district judge should be organized into State Judicial Service Class I and Class II.

1. LCI, 116th Report.

4.6. The recommendation of the First Law Commission 'that looking to the uniform functions performed by the judicial officers though variously designated, it would be advisable to aim at uniformity of designations' holds good. The historical background of various designations have lost not only the validity but even the relevance. It is necessary even with a view to infuse a sense of dignity in the holders of posts in lower ranks to provide such designations as would avoid the word 'subordinate' or the designation 'Munsif'.