Report No. 118

1.5. The nomenclature of the courts as well as the designations of the incumbents in charge of courts specify their functions referable to the various provisions of the statutes prescribing civil and criminal procedure providing for setting up of courts. To illustrate, section 6 of the Code of Criminal Procedure, 1973 provides that besides the High Courts and the courts constituted under any law other than the Code of Criminal Procedure, there shall be in every State, the criminal courts of the following classes:-

(i) Courts of Sessions;

(ii) Judicial Magistrates of the First Class and in any Metropolitan area, Metropolitan Magistrates;

(iii) Judicial Magistrates of the Second Class;

(iv) Executive Magistrates.

Similarly, section 3 of the Code of Civil Procedure, 1908, envisages the setting up of a district court, as principal civil court of original jurisdiction subordinate to the High Court. Every State has enacted its own law for setting up courts subordinate to the district court and variously described as hereinbefore indicated. Ordinarily, the district court has jurisdiction over a district demarcated as a unit of administration in every State also known as revenue district, but cases are not unknown where there can be one district court having jurisdiction over two revenue districts.

In fact, every State is divided into districts as units of administration and each district is divided into taluks/tehsils and each taluk/ tehsil comprises certain villages contiguously situated. These are but administrative units. The court structure more or less corresponds with these administrative units except in urban areas. Ordinarily, a court described as a court of Munsif /District Munsif-cum-Magistrate or Civil Judge (J.D./Judicial Magistrate is set up at a taluk/tehsil level but given the quantum of institution of causes and cases, such a court may have jurisdiction over more than one taluk/tehsil.

Similarly, depending upon the workload, a district court may have jurisdiction over more than one district. Small Causes Court are set up under either the Provincial Small Causes Courts Act at district level or under the Presidency Town Small Causes Court Act in Presidency/Metropolitan Towns. This is the infrastructure of the courts set up in India.

1.6. Terms of reference in relation to studying judicial reforms assigned to the Law Commission requires it to examine:-

"4. The method of appointments to subordinate courts/subordinate judiciary".

The Law Commission had drawn up its schedule of work keeping in view the continuity and interlinking of its reports. With a view to provide for decentralisation of the system of administration of justice, the Law Commission recommended restructuring of courts at grass-roots level in its report (114th Report of the Law Commission) recommending 'Gram Nyayalaya'. The participatory forum for administration of justice therein recommended would need re-structuring subordinate judiciary having an impact on subordinate courts, that again can be described as grass-root court.

The next vertical stage is that of a district court presided over by a District Judge. The Law Commission was required to study, examine and opine on the question of formation of an all-India judicial service. Accordingly, as a next step, that exercise was undertaken and a detailed report (116th Report of the Law Commission) has been submitted to the Government, recommending formation, constitution and setting up of All-India Judicial Service.

It would immediately appear that there would still be subordinate courts manned by subordinate judiciary between the "Gram-Nyayalaya" and the District Judge. The all-India judicial service recommended by the Law Commission in view of the constraints imposed by Article 312 could be set up at the level of the District Judge, as the expression is understood in Article 236 of the Constitution. The All-India Judicial Service which has been styled in that report as 'Indian Judicial Service' would be manned by personnel recruited from three independent sources.

One such source is the State Judicial Service. Therefore, with a view to scientific structuring of Indian Judicial Service, it is inevitable that the State Judicial Service must be restructured where the promotion to an all-India service is at a national level, all units coming within the zone of consideration for promotion must be more or evenly placed.

The additional compelling reason for examining the method of appointment to subordinate courts/subordinate judiciary is that it is going to provide feed-back for 40% of posts in Indian Judicial Service. The Indian Judicial Service is to be structured on an all-India level. If the feed-back is to come from the States by way of promotions to Indian Judicial Service, it is inevitable that the arena of selection must be brought on a common denominator.

Accordingly, apart from the fact that the Government of India in the terms of reference drawn up by it desired that the Law Commission should examine the method of appointments to subordinate courts/subordinate judiciary as part of a package for judicial reforms which includes setting up of Indian Judicial Service, a close look at the present structure of subordinate judiciary in various States is unavoidable so as to bring it on a common denominator so that it can provide a feed-back for promotion to Indian Judicial Service from amongst, by and large, equals. That is the raison d'etre of the present report.