Report No. 118

4.7. The expression 'Munsif' has historical overtones. It is in a way of Indian origin though it is shown to be of Persian vocabulary. It was spelt as 'Moonsiff' and its connotation was 'equitable, just, a decider of what is just, an arbitrator, a Judge'. Under the British regime, the term was applied to a native civil judge of the first or the lowest rank.1 It appears that another designation was coined during the regime of Shershah. For administration of justice, Shershah divided his empire into administrative units called Sarkars, which again was sub-divided into Paraganas.

He divided administration of justice into two branches, civil and criminal. Shiqdar was invested with power to dispense with criminal cases and Munsif was invested with powers to try civil cases. Shiqdar-i-Shiqd'ara'n was responsible for the administration of criminal justice in each Sarkar. Similarly, on the civil side. Munsif-i-Munsifan was in charge of administration of civil justice in each Sarkar. The novel feature of the administration was that Munsif-iMunsifan was a circuit judge and had to go round in course of administration of justice.

This probably provides the genesis of the present day cry for taking justice to the door-step of the people. The recruitment of Munsif was not confined to Ulemas or Faqish (Lego: Theologians).2 It appears at some point of time in the development of the institution of Munsif, the holder of the office was not a full-time regular, salaried employee. The whole cadre consisted of honorary judges and received no remuneration for discharging their judicial functions.

In later years, upon an apprehension that the system of honorary judges is susceptible to corruption or is niggardly or negligent in performance of duty in the absence of regular compensation, the salaried system came into vogue. The institution of Munsif made access to justice easy and within reach because, in the absence of it, people may have to travel upto the Headquarters of the district and the journey in those days was slow, tardy and inconvenient. It also helped in relieving congestion at the Sarkar level as small and petty disputes were disposed of by the Munsifs.3

Then came the designations Sadar Diwani Adalat and Sadar Fouzdari Adalat. However, the designation of Munsif continues to be accepted in some States till today.

1. William H. Morley The Administration of Justice in British India, Reprint, 1976, p. 354.

2. Waheed Hussain Administration of Justice During Muslim Rule in India.

3. M.P. Jain Outlines of Indian Legal History, pp. 219-221

4.8. The word 'subordinate' in the judicial hierarchy sounds incongruous. To be precise, when any matter is before a court of competent jurisdiction even at the grass-root level, it handles the matter un-influenced by any extraneous or irrelevant consideration and wholly free from any outside pressure including pressure from upper layers of service. To illustrate, even the district judge, though an administrative superior of a civil judge (Junior Division) cannot interfere when the proceedings are before the Civil Judge except when he hears any appeal or revision.

If he interferes when the court of Civil Judge is seized of the matter, a charge of contempt may as well be made against him. In the Administrative hierarchy, a superior officer can give direction to the inferior officer even with regard, to matters which are being dealt with by him. This is the basic difference between a hierarchy of officers in the Executive and the hierarchy of officers in the judiciary.

Therefore, the word, 'subordinate' which implies a sort of subordination of one to the other which may inhere or give rise to an inference of something akin to command obedience relationship has to be avoided, as far as possible. Undoubtedly, we are conscious of the fact that even the Constitution uses the expression 'subordinate courts'.

The court structure being pyramidic and hierarchical in character may tolerably be described in relation to a superior as subordinate court. But, as far as the designation of judicial officer is concerned, every attempt must be made to avoid that word. Therefore, it would be proper to devise a uniform designation for the entry cadre.

4.9. A tabulation of the structure of courts at the State level extensively set out hereinbefore would show that the entry cadre has more or less been designated as 'Munsif /District Munsif' on the civil side and 'Magistrate or Magistrate First Class on the criminal side'. By and large, in smaller towns and courts with inadequate or lower institutions, the Presiding Judge is both a 'Munsif' for civil matters and a 'Magistrate' for dealing with criminal matters.

Gujarat and Maharashtra have changed the designations of the entry cadre to Civil Judge (Junior Division) on the civil side and 'Judicial Magistrate First Class' on the criminal side. The entry cadre, howsoever designated, is manned by fresh recruits from the market except where someone is posted by transfer. Accordingly, keeping in view the lack of experience in the matter of decision making process and allied subjects, it is considered advisable to give them jurisdiction over less controversial, small and petty matters measured by the yardstick of pecuniary jurisdiction on the civil side and the gravity of offence on the criminal side.

Ordinarily, this jurisdiction on the civil side extends up to the value of the subject-matter being Rs. 20,000 and offences punishable with a sentence of three years and line on the criminal side.

4.10. The next cadre which also provides a promotional avenue to the members of the entry cadre is variously designated as Civil Judge (Senior Division) in Maharashtra and Gujarat and subordinate judge or senior sub-judge in almost all other States. At this level, the holder of the post is dealing with civil matters without any ceiling on pecuniary jurisdiction. In other words, the holder of the post has unlimited jurisdiction in the matter of pecuniary valuation of the subject-matter in dispute.

This post is sometimes combined with the post of Chief Judicial Magistrate who has powers higher than the judicial Magistrate. First Class in that he can try cases punishable with imprisonment for seven years and fine. When the holders of this post are posted in metropolitan areas, they are designated as Metropolitan Magistrates and when they are posted in small causes court, they are called Judges of the Small Causes Court.

It is not necessary in this report to deal with the functional designations which are comprehended in the expression District Judges, such as Judge. City Civil Court, Chief Metropolitan Magistrate. Chief Judge, Small Causes Court, etc. In fact, the designations must be more or less functional in the sense that the designation would indicate the functions of the holders of the post.

Again, some designations are already provided by the two procedural Statutes, viz., the Code of Civil Procedure and the Code of Criminal Procedure. With a view, therefore, to reorganise the State Judicial Service with uniform designations, it is suggested that the law providing for re-organisation of State Judicial Service should include and incorporate the following designations:

On the civil side, the entry cadre must he designated as Civil Judge (Junior Division) with pecuniary jurisdiction up to the ceiling of Rs. 25,000. The holder of a similar post on the criminal side must have the designation of Judicial Magistrate First Class as envisaged by section 6 of the Code of Criminal Procedure. The members of this cadre when posted in district towns or areas where institutions both on the civil side and criminal side arc fairly heavy, they may be designated as Civil Judge (Junior Division) exclusively and Judicial Magistrate First Class exclusively though the holders of these posts must belong to a common cadre and must be placed in State Judicial Service Class II.

4.11. The next promotional stage must cater to the needs of courts with unlimited pecuniary jurisdiction as well as jurisdiction to entertain suits against Government of Union or the State. The holders of these posts must be designated as Civil Judge (J.D.) having no ceiling on their pecuniary jurisdiction. This cadre must also include the cadre of Chief Judicial Magistrate.

The holders of the post can, depending upon the institution, have both the designation or where the institution does not permit one person to handle inflow of work on both sides, he can be exclusively posted as Civil Judge, Senior Division, or Chief Judicial Magistrate, as the case may be. The designation 'Chief Judicial Magistrate' is adopted from section 12 of the Code of Criminal Procedure.

4.12. In some States, there are officers designated as subordinate judges or civil judges of the rank higher than that of the Munsif. All these, of course, may be re-designated as herein indicated and the holders of these posts may be admitted to the common cadre.

4.13. There are two Statutes in operation providing for setting up of courts for dealing with small pecuniary disputes in big commercial towns prescribing a procedure of a summary nature. They are the Provincial Small Causes Courts and the Presidency Town Small Causes Courts. Judges of the Provincial Small Causes Court may have their functional designation as Small Causes Court Judge, but they must belong to the same cadre to which a Civil Judge (Senior Division) belongs.

Similarly, the Judges of the Presidency Small Causes Courts must be put on par with Metropolitan Magistrates and even though they will retain their functional designations as prescribed by the various Statutes, they will form one cadre. Every cadre in the State Judicial Service except the grass-root cadre of Civil Judge (Junior Divisions/Judicial Magistrate First Class will belong to the Stale Judicial Service Class 1.