Report No. 118

Chapter V

Views and Comments

5.1. The real debate focussed on the question about the role of Public Service Commissions in the mailer of selection of Personnel for subordinate judiciary. Intervention of any agency other than the judiciary in the matter of selection of personnel for recruitment to judiciary at any level has not only been frowned upon and disapproved, but has been held to be a threat to the independence of the judiciary.

Even though therefore positive role was assigned to the State Public Service Commissions in the matter of selection of personnel for entry at grass-root level in subordinate judiciary, our experience has been that in practice, it has been found to be undesirable. This view is not recently formed with reference to recent occurrences in this behalf.

Way back in 1958, the first Law Commission examined the question of reforms in subordinate judiciary. Examining the role of Public Service Commission in the matter of selection of personnel for manning posts in subordinate judiciary, it reached a none too flattering conclusion in respect of the role of the State Public Service Commission in this behalf. Let it be extracted:

"Having regard to the important part played by the Public Service Commissions in the selection of the subordinate judiciary, we took care to examine, as far as possible, the Chairman and some of the members of the Public Service Commissions in the various States. We are constrained to State that the personnel of these Public Service Commissions in some of the States was not such as could inspire confidence from the points of view of either efficiency or of impartiality.

There appears to be little doubt that in some of the States, appointments to these Commissions are made not on considerations of merit but on grounds of party and political affiliations. The evidence given by members of the Public Service Commissions in some of the States thus create the feeling that they do not, deserve to be in responsible posts they occupy. In some of the southern States, the impartiality of the Commissions in making selections to the judicial service was seriously questioned."1

1. LCI, 14th Report, Vol. I, Chapter 9, para. 27.

5.2. The situation, as has been the general trend in all Public Services, must have further deteriorated. However, this must not be left to a mere inference. The High Courts of Orissa, Jammu and Kashmir and Andhra Pradesh have expressed a firm opinion that recruitment to subordinate judiciary should be taken out from the purview of the State Public Service Commission and instead, it must be entrusted to the High Courts which would work out the modus vivendi for selecting proper personnel.

Of course, some judges in some High Courts have opined in favour of retention of the Public Service Commission in the matter of selection. A few of the Judges of the High Courts indicated a preference in favour of an independent body to be styled as 'Judicial Services Commission' to undertake this task.

5.3. Whether minimum practice at the Bar should be a pre-requisite for entry into judicial service even at the lowest level has become a subject-matter of lively debate and strong opinions are expressed one way or the other. This again is not, of recent origin. Even about three decades back, the Law Commission took note of a view expressed by the then Chairman of the Bihar Public Service Commission that during the 3-5 years of practice at the mofussifl Bar, the young man deteriorates more or less completely. The Law Commission also took note of the opinion of the Civil Justice Committee in this behalf. It reads as under:-

"The rule in force in certain Provinces requiring the candidates to have practice at the Bar for a period of three years or more, furnishes no guarantee that the candidates have acquired any really useful experience."1

Even then, some Judges who responded to the queries of the Commission have expressed preference for retention of minimum practice at the Bar as a prerequisite for entry into judicial service. It is time to dis-abuse our mind on this point because the Law Commission has reached an affirmative conclusion that this minimum practice at the Bar hardly qualifies the person to be a better judge. The Law Commission has given cogent reasons for reaching this conclusion and the same need not be repeated here.2

1. LCI, 14th Report, Vol. I, Chapter 9, para. 27.

2. LCI, 17th Report.

5.4. By and large, there was otherwise near unanimity in the matter of standardising subordinate judiciary at State level.

Uniform standards for entry into judicial service at the State level would be conducive to making State Judicial Service a reliable forum for recruitment to Indian Judicial Service, and it is an incongruity that while the Code of Civil Procedure and the Code of Criminal Procedure uniformly apply throughout the length and breadth of the country, those Civil Judges and Judicial Magistrates implementing the laws common to all States would differ in nomenclatures, status, designations, emoluments and other conditions of service. This is hardly conducive to a national standard, national integration and a national service.