national judicial service-thania

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NATIONAL JUDICIAL SERVICE NEED OF THE HOUR

Subject: Teaching Methods and Research Methodology

Submitted To: Dr. Vijender Kumar

Submitted By: Ann Thania Alex

Roll No. 2009-10

LL.M 2009 Semester I

NALSAR University of Law, Justice City, Hyderabad


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TABLE OF CONTENTS

Acknowledgement i

Table of Cases ii

Table of Statutes iii

Table of Abbreviations iv

Chapters

1. Introduction to Indian Judiciary..1-2

2. Threats to the Subordinate Judiciary...3-7

2.1 .Back-Logging of Cases.3-4

2.2. Lack of Equipped Judicial officers.4-5

2.3 Lack of Infrastructure..5-6

2.4 Corruption...6-7

3 Members of the Judiciary Vs Society..8-9

4 National Judicial Service Need of the Hour..10-11

5 National Judicial Service - A Longstanding Dream12-14

6 Framework of National Judicial Service...15

7 Analysis and Criticism..16-17

8 Conclusion and Suggestions.18

Bibliography v-vi


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ACKNOWLEDGEMENT

I express my heartiest gratitude towards our respected teacher and guide Prof. Vijender

Kumar, for sparing valuable time and discussing the issues relating to formatting. I would also

like to thank the help and support of the Librarian and staff of the NALSAR University.

Ann Thania Alex

Roll No. 2009-10

LL.M 1st year (1st Semester)

i


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TABLE OF CASES

1. All India Judges Association v. Union of India 14, 17.

2. C. RavichandranIyerv. Justice A.M. Bhattacharjee 6.

3. O.P. Bhandariv.Indian Tourism Development Corporation Limited 7.

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TABLE OF STATUTES

1. The Constitution of India, 1950 1, 3, 12, 13, 15, 16, 18.

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TABLE OF ABBREVIATIONS

1. AIJS : All India Judicial Service.

2. AIR : All India Reporter.3. Art. : Article.

4. Edn. : Edition.

5. Etc. : Etcetera.

6. IAS : Indian Administrative Service.

7. Ibid. : Ibidem.

8. Ltd. : Limited.

9. / : Or.

10. Ors. : Others.

11. P. : Page.

12. PP. : Pages.

13. % : Percent.

14. SC : Supreme Court.

15. SCC : Supreme Court Cases.

16. Supra. : Above.

17. UPA : United Progressive Alliance.

18. V. : Versus.

19.Vs. : Versus.

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CHAPTER - I

INTRODUCTION TO THE INDIAN JUDICIAL SYSTEM

True Administration of justice is the finest pillar of good governance-

George Washington.

Indian Judiciary which is the icon of integrity of the largest democracy of the world has

always been a matter of pride to people of India. For years, it has been the stalwart of justice.

The judges of our country have contributed to the annals of world judicial history through their

jurisprudential wisdom and interpretation of different fields of law.

The Indian legal system could be considered as a three tier mechanism constituted under

the Constitution of India1. They are the: -

(1) Supreme Court which is the apex court of the country.

(2) High Courts established in each state to regulate the judicial system and matters of

adjudication at the state level and

(3) Subordinate Courts which forms the bedrock of the judicial system.

The Subordinate Courts consists of the District and Session Courts which are vested with

both original and appellate jurisdictions and other courts of specific original civil and criminal

jurisdictions like munsiff courts, magistrate courts and sub courts. Though the system atsubordinate level may sound trivial, the same constitutes the root of our judicial system2.

Notwithstanding the fact that the higher judiciary has assumed more respect and status

over the years, the plight and practices prevalent in the lower judiciary has not been

commendable. Thus, unless and until a sweeping change is brought in the lower judicial system,

the judiciary of the country could not be considered to be the optimised blend of legal

knowledge, integrity and ethos.

For achieving this purpose, it is necessary to analyse the requisites that are lacking in the

lower cadres of judicial administration. The threats to which the lower judiciary may surrender

1 Part V. Chapter IV, Part VI. Chapter V and VI of the Constitution of India respectively deals with the Union

Judiciary, High Courts and Subordinate Courts.2 AR. Lakshmanan, Subordinate Judiciary - The Root of our Judicial System, VOICE OF JUSTICE, 2006 edn.,

pp.60-67.

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itself are also worth mentioning. The proposals and efforts for creation of a National Judicial

Service should be examined at this backdrop.

In this project, the author attempts to look into the fall outs and flaws inherent and

administered on the system. Following this, efforts are made to understand the circumstances

which demand the establishing of a National Judicial Service and the efforts which are being

carried out to implement the same.

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CHAPTER II

THREATS TO THE SUBORDINATE JUDICIARY

2.1. Back-logging of Cases:

This has been one of the major factors setting black marks on the performance of the

lower judiciary over the years. A recent addressing of President Pratibha Patil, as is given below

represents the national concern over the matter.

One of the major issues confronting the judiciary is the huge backlog of cases.

Cases have taken inordinately long time to come to conclusion and litigants have

not been able to lead normal life unsure of the verdict in their case.

Backlogging results in delayed justice which can be equalised to denied justice. It

prevents the economic and social justice guaranteed to members of the society, by way of the

preamble of the Constitution and also the duty of the state to grant speedy justice by way of Art.

39A of the Constitution. This does not mean that speedy disposal of the cases should be the sole

intention of the judiciary. What matters is the judicious and wise disposal of the pending matters.

Otherwise, it may result to the realisation of the sayingjustice hurried is justice buried.

The former Prime Minister of the country also expressed his views while addressing the

Conference of Chief Justices where he referred to maintaining of accountability by the judiciary

to ensure the speedy disposal of large number of cases pending. In 2005, there were 2.78 crore

cases pending in the lower courts. In effect, more than 80% of the backlog happens in the

subordinate judiciary3. As former Chief Justice of India M.N. Venkatachaliah pointed out

recently, the disillusionment with the judicial system has led to a dangerous increase in Jan

Adalats or kangaroo courts in many parts of the country. According to the CJIs report, the

arrears increased in the high courts from 27.5 lakh cases in 1999 to 36.5 lakh cases in 2006. In

the subordinate courts, the arrears increased over the same seven-year period from 2 crore

3Maheshwari, An Over View of Delay in Judicial System, available at

http://www.maheshwariandco.com/articles/DELAY%20IN%20JUDICIAL%20SYSTEM.pdf last viewed on

September 21, 2009.

3
http://www.maheshwariandco.com/articles/DELAY%20IN%20JUDICIAL%20SYSTEM.pdfhttp://www.maheshwariandco.com/articles/DELAY%20IN%20JUDICIAL%20SYSTEM.pdfhttp://www.maheshwariandco.com/articles/DELAY%20IN%20JUDICIAL%20SYSTEM.pdf


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cases to 2.48 crore case.Thus, the arrears grew by 33% in the high courts while they grew by24% in the subordinate courts4.

This problem could be attributed to (a) insufficient number of judges (b) insufficient

number of efficient judges (c) insufficient number of supporting staff or (d) insufficiency

inherent in the system, like lack of infrastructure etc. Former Chief Justice Dr. A.S. Anand

referred to acute shortage of courts as the single largest factor for accumulation of arrears in

subordinate courts. Hence forth, 502 crores were allocated for setting up of fast track courts all

across the country, wherein short term training programme has been arranged5.

Thus, it should be analysed as to the existence of backlogging irrespective of the

induction of fast track courts and other mechanisms into the system. In other words, our query

should start from the concern as to whether the system is so tabooed that even the different

measures adopted for preventing backlogging has not resulted in success.

2.2. Lack of Equipped Judicial Officers:

The effectiveness of any system would depend upon the quality which would be

exhibited by the members of the said system. The same had been currently found lacking among

the subordinate courts of our country. The development of new fields and practices in law should

be available at the judges end for the safe disposal of the cases. In effect the lack of judicial

education which prevents the judges from applying prudent discretion in a case, which can result

in backlogging also should be dealt with a feeling of urgency, so that the litigators and justice to

them would not stand to lose.

The importance of judicial education has been reiterated by Dr. Justice A.R. Lakshmanan

while delivering a speech at the School of Judicial Administration and Rajasthan Judicial

Academy on 9th April 2005, that Judicial education has become a principal tool to promote

accountability to the judiciary6. In the words of Paul M. Lee, Judicial education is one of the

most effective and perhaps an indispensable means for enhancing free administration of

4 Judiciary Equally to Blame for Backlog available at http://egovindia.wordpress.com/category/courts-in-india/

last viewed on September 21, 2009.5500 Fast Track Courts set up since April: Jaitley, August 11, 2001 available at

http://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April

Jaitley/articleshow/141266380.cms last viewed on September 21, 2009.6 AR. Lakshmanan, Subordinate Judiciary - The Root of our Judicial System, VOICE OF JUSTICE, 2006 edn.,

pp.60-67.

4
http://egovindia.wordpress.com/category/courts-in-india/http://egovindia.wordpress.com/category/courts-in-india/http://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April%20Jaitley/articleshow/141266380.cmshttp://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April%20Jaitley/articleshow/141266380.cmshttp://egovindia.wordpress.com/category/courts-in-india/http://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April%20Jaitley/articleshow/141266380.cmshttp://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April%20Jaitley/articleshow/141266380.cms


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justice7. The lack of proper legal education is actually placing the poor litigants and the judges

in a mud pool from which salvation could be attained only if a mechanism is brought in to

address the issue.

The factors which have resulted in this crisis may be (a) lack of a system to ensure

uniform admissions to subordinate judiciary all over the country (b) different criterion for

appointment and promotion to judiciary as practiced in different parts of the country (c) non

existence of a system to provide proper training and orientation to the lower court judges.

Though National Judicial Academy was constituted as per the recommendations of the 54 th Law

Commission Report, its working and efficiency would reach maximum utilisation only if the

benefits reach even the lowest cadre of the judiciary which provides the basis for the prudence of

the High Court and Supreme Court judges.

2.3. Lack of Infrastructure:

Another chaos experienced by the judicature of the country is the lack of adequate

infrastructure and facilities available at its disposal for the smooth running of the institution. This

would also include the lack of sufficient number of judges and staff and such other reasons. In

2002, the Supreme Court had directed the Centre that the judge-population ratio be raised to 50

per million in a phased manner. Indefensibly, successive governments have not done enough to

address this issue; in the Tenth plan, the judiciary was allocated a mere 0.078 % of the total

expenditure, a small crumb more than the 0.071 % assigned in the Ninth Plan.Even in this 21st

century, there are small courts in the country which renders justice from inadequate locations and

conditions. Another situation is regarding the allowances given to judicial personnel which were

not satisfactory until the same had been reviewed by the recent Pay Commission8. All these are

the out product of extreme bureaucratism which exists in our country along with inadequacy of

funds allocated during budget sessions and governmental disorganisation. All this would prompt

one to think in favour of a dissociation of judiciary from the executive to a greater extent than

what is presently existent in our country. This dream would materialise only if the different

wings of the government acknowledge the sanctity of the justice delivering process. The

7 Ibid.8SC seeks response on three-fold salary hike for trial judges available at http://www.indianexpress.com/news/sc-

seeks-response-on-threefold-salary-hike-for-trial-judges/495131/last viewed on September 21, 2009.

5
http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/


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practices followed by other country across the world would help one to analyse the pros and cons

as existent in the system.

2.4. Corruption:

Corruption among members of the bench would undermine the justice delivering process

in the country. Justice is at the hands of the judiciary and if the justices cannot be trusted

wholeheartedly, then democracy may even result in a chaotic anarchy. The society looks upon to

have trusted officers of integrity who acts befittingly. Thus it is the duty of the subordinate

judiciary to keep up to the judicial ethos and live a disciplined life. Judicial corruption not only

knocks judges of perceived pedestals, but also erodes the respect for law. Irrespective of the

existing laws prevalent in the country, the weeds and chaffs from the judicial set up could not be

removed. If this is not possible even with judges with Supreme Court and High Courts of the

country, it could be easily stated that the mechanism existing for regulating the acts of the

subordinate judiciary is mostly inadequate. The opinions as suggested by the Supreme Court of

India in the following two cases are worth noticing.

In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee9, the Supreme Court

suggested an in house method which is non-transparent, time consuming and

uncertain. The need for an alternative method of getting rid of judges of doubtfulintegrity is being felt acutely, it is possible to root out corruption in the Judiciary

if a provision is made in the Constitution for premature retirement of public

servants in public interest on the ground of doubtful integrity regardless of thelength of service put in. The power to retire will have to be in the hands of the

Judiciary itself to maintain its independence. In the case of the subordinate

judiciary, this can be done by amending the service rules.

The view expressed by the Supreme Court in O.P. Bhandari vs Indian TourismDevelopment Corporation Ltd. and Others10suggests that such a provision will

be valid. Getting rid of a black sheep alone is not enough. The resultant vacanciesmust be filled up by the most deserving young men and women by amending the

rules of recruitment at the entry point. Five national Universities are functioning

in Bangalore, Hyderabad, Bhopal, Kolkata and Jodhpur. In addition, there are anumber of law schools with five-year degree courses attracting equally bright

students. They are all imparting legal education of a high quality and their

products are a class apart. To tone up the quality of justice at the level ofsubordinate judiciary, it is necessary to induct fresh law graduates who have done

well in the five-year degree course as Civil Judges/Magistrates straightaway after

9 (1995) 5 SCC 457.10 AIR 1994 SC 1294.

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giving intensive training for at least one or two years at the National judicial

Academy, Bhopal. In addition, if a provision is made for fast track promotions at

reasonable intervals, depending upon their overall performance, merit andintegrity as in the case of All India Services11.

It should be kept in mind that corruption is in the highest order among the lower

courts of the country due to the (1) fallacy in appointment and promotion (2) lack of an

effective body to regulate the appointments and functioning of the lower courts etc. Thus

this problem could be brought in grasp only if the mechanisms are strengthened.

Notwithstanding the above mentioned, in many a situations, the judges cannot be bluntly

alleged with cases of corruption. Happenings may be the tumultuous result of inherent

defects in the system and the diminished esteem attributed to the members of the lower

judiciary. All these decisions and suggestions would lead one to discussions about anational level effort to curb the problem.

Thus, in effect, it should be kept in mind that if the judiciary of the country is to

prosper, works should start from the bottom level. It is so because, the lower court judges

of today may be holding the highest offices of justice on a future day.

CHAPTER III

MEMBERS OF THE JUDICIARY VS SOCIETY

In order to effectuate the revamping of the judiciary into a better institution championing

dignity, it is essential to understand as to what the society expects from the judiciary. Judiciary is

the only wing of the government which is comfortably accessible to all the laymen of the

country. To put it otherwise, in many matters concerning existing policies of the government, it

echoes the public acceptance or resentment against the same. It is the societys support which

gave the impetus for the judges to work in the lines of judicial activism. The Bench is the last

bulwark of individual freedom.

11 Bala Nikit, Setbacks in Indian Judiciary available at http://www.indlawnews.com/display.aspx?4586last viewed

on September 12, 2009.

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The society expects the judiciary to protect them from the random attacks caused by

unconstitutional acts of legislature and executive. The people of India, by enacting the

Constitution have given the power to the judiciary to interpret the Constitution in furtherance of

justice. They look out for a fair play from the side of the bench, which would thereby enhance

their standards of life in the society. All these points out to one conclusion. That is the society

believes that the judiciary would protect the rule of law system in the country, without

undermining their trust in the system.

Thus, any indication as to the misuse or non use of the judicial powers would result in

pubic upheaval against the status and independence of judges. Maintaining the integrity of judges

can be guaranteed only by protecting the rights which is constitutionally vested with them.

Likewise, owing to the above said reasons, the public is deeply concerned about the

appointments and promotions given to the officers in the judicial cadres. As Justice V.R. Krishna

Iyer pointed out, The path of justice is a public process and the public are deeply interested in

the grounds on which and the organs by which judicial appointments are made12.

This has become a tough task during the recent days due to the excessive intervention of

the other two wings of the government and their reluctance to grant more esteem and powers to

the higher judiciary towards appointing, training and regulating the entire judiciary of the

country. This was one of the reasons which prompted the legal minds of our country to work for

the establishment of a National Judicial Commission. Though the idea is not exactly in par with

setting up of a National Judicial Service, the same could be considered as a good precursor.

Thus, unless the appointment and performance of the appointed judges is not upto the

expectations of the prudent society, the same would result in distrust in the system. At the wake

of this century, where the criticisms aimed at the higher and subordinate judiciary has increased

manifold, there is less time for action, so that the societys trust in the system could be

maintained.

12 V.R. Krishna Iyer, A National Judicial Commission - A Command for Reforms, RANDOM REFLECTIONS,

2004 Edition.

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CHAPTER IV

NATIONAL JUDICIAL SERVICE NEED OF THE HOUR

The problems of lack of infrastructure, equipped officers, delay in disposal and

corruption along with other associated problems like inconvenience in accessibility etc made the

think tanks of the country to ponder over the not so good plight of the judiciary of the country.

The necessity of coming up with a National Judicial Service could be deciphered from the

following observations

Justice Rajindra Sachar recently wrote, of course, the negative aspects of

arrears and long delays .have cast a shadow on the present legal system whilethe patronage of political bosses has largely vanished, the patronage of the robed

bosses has not improved the quality of the judges selected. In short, there is a case

for a National Judicial Commission beyond coterie13.

13 Though the National Judicial Commission was a bit more different concept, lines of similarity could be drawn

between the two.

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Another dimension for need of Judicial Commission is that as Francis

Bacon said place of justice is a hallowed place; and therefore not only the bench

but the foot pace and precincts and surprise thereof right to be preserved withoutscandal and corruption..14

Proposals for creation of a National Judicial Service or an All India Judicial Service werenecessitated by these challenges. Likewise, such a mechanism of National Judicial Service will

protect the vast number of fine judges and weed out the unworthy minority.

The States Reorganisation Commission has observed that creation of All India

Service would be a major compelling necessity for the Nation and it hassuggested that a proportion of the Higher Judiciary should be recruited by

competitive examination at All India Level so as to attract the best of our young

graduates to the Judicial Service.

Once the modalities and procedures of such a body are scrupulous and solemn becoming

of high purpose, there is no need to fear that judicial independence will be jeopardised or

intimidatory tactics will vitiate the instrumentality into an oppressive organ.

CHAPTER V

NATIONAL JUDICIAL SERVICE A LONGSTANDING DREAM

The concept of a National Judicial Service would moot the idea of setting up of a national

commission towards the selection of a uniform judiciary all over the country, thus promoting the

central state relation bond. The provisions in Chapter VI of Part VI of the Constitution deals with

the subordinate courts over the country and the control which the High Court can exercise over

the lower courts. The idea of All India Judicial Service was introduced by the insertion of Art.

312(3) and (4)15 into the Constitution through the 42nd amendment. The below given features

were identified with the said provision.

14 V.R. Krishna Iyer,A National Judicial Commission - A Command for Reforms, RANDOM REFLECTIONS,

2004 Edition.151 Article 312(3)&(4) of the Constitution on All India Judicial Services reads as follows: - Article 312(3) reads (3)

The all India judicial service referred to in clause ( 1 ) shall not include any post inferior to that of a district judge

as defined in article 236. (4) The law providing for the creation of the all India judicial service aforesaid may

contain such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving effect to the

provisions of that law and no such law shall be deemed to be an amendment of this Constitution for the purposes of

article 368.

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1. The subordinate courts or subordinate judiciary is a State subject. The

appointment of the members of the subordinate judiciary is to be made by the Governor.

However such appointment is to be made in the case of district judge, in consultationwith the High Court and in the case of other posts, in consultation with the Public Service

Commission and the High Court. As matter of practice, selection of district judges is

made by the High Court on the basis of which, formal order of appointment is issued bythe Governor. In case of Munsiff or Magistrates, the selection is made by the State

Public Service Commission and the concerned High Court acting together and orders of

appointment are issued by the Governor on the basis of such selection.

2. If the Council of States (Rajya Sabha) declares by resolution supported by not less

than two-third of members present and voting that it is necessary or expedient in the

national interest to do so, Parliament may by law provide for creation of an All-IndiaJudicial Service common to the Union and the States and also to regulate the recruitment

and conditions of service of persons appointed to such All-India service. This proviso is

made notwithstanding the provisions contained in chapter VI of Part VI of the

Constitution. However, the All-India judicial service cannot include any post inferior tothat of district judge16. The law made by Parliament providing for creation of AIJS as

contemplated by Clause (3) of Art. 312 may contain such provisions for the amendmentof chapter VI of Part VI, as may be necessary to give effect to the provisions of that

clause but no such law shall be deemed to be an amendment of the Constitution within

the meaning of Art. 36817.

First recommendation was made on this regard by the 14th report of the First Law

Commission18. The Commission found that the formulation of an All India Judicial Service is

necessary in the interest of the subordinate judiciary. Following the Law Ministers Conference in

1960 wherein arguments for and against this proposal was taken into account, the matter

remained in the shelf. Though the Chief Justices Conference in 1961, 1963 and 1965 assented

towards the same, there were difference of opinions between different state governments and

High Courts. Again the same was suggested in March 1972 by the then Chief Justice of India as

a way to improve the quality of the subordinate judiciary. Further the 8 th Law Commission19

recommended the formation of an AIJS while rendering its 77 th report20 after examining the

162 Art. 236 of the Constitution of India.173 NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION A Consultation

Paper on All India Judicial Service available at http://lawmin.nic.in/ncrwc/finalreport.htm last viewed on

September 12, 2009.18 The First Law Commission was headed by Justice M.C. Setalvad.19Established in 1977, under the chairmanship of Justice H.R. Khanna who was later replaced by Justice P.V.

Deekshit.20 1978.

11
http://lawmin.nic.in/ncrwc/finalreport.htmhttp://lawmin.nic.in/ncrwc/finalreport.htm


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problem of arrears in the Court. However, while the same matter came for consideration in its

116th report21, three valid objections were raised against the same namely22:-

(a) inadequate knowledge of regional language would corrode judicial

efficiencyboth with regard to understanding and appreciating parole evidence pronouncing

judgments;

(b) promotional avenues of the members of the State judiciary would be

severely curtailed causing heart burning to those who have already entered the

service and manning of the State judicial service would be adversely effected; and

(c) erosion of control of the High Court over subordinate judiciary would

impair independence of the judiciary.

However, these objections were rejected as unsubstantial. The Commission compared the

status of an officer under AIJS to that of an IAS officer and thereby the judicial officers should

learn another language in addition to the language with which he or she is conversant. As regards

the second objection, the Commission held that as per the rules existing in different states, about

50% of the vacant seats are made available for personnel with promotional prospects and

therefore direct recruitment would be applicable only to the remaining seats. As regards the third

objection, it was held that if an AIJS comes into picture, the only difference would be that

instead of reporting promotion or disciplinary action to the Governor (as is done now) everything

would be intimated by the High Court to the National Judicial Commission. Besides the Law

Commission also described about the desirability of coming up with AIJS in terms of method of

recruitment, holding of examinations, scales of pay, initial pay, seniority, probation, training etc.

Green signal to the formation of an All India Judicial Service was also given by the

Supreme Court in theAll India Judges Case23 wherein the Supreme Court granted certain reliefs

to the subordinate judiciary for improving their service conditions. The Supreme Court also

directed that the service conditions of the subordinate judiciary should be uniform in all States

and Union Territories. The Court held that the feasibility of the implementation of the

21116th Law Commission Report was rendered under the chairmanship of Justice D.A. Desai in 1986.22Forum for Judicial Appointments, November 1986, available at lawcommissionofindia.nic.in/101-

169/Report118.pdflast viewed on September 11, 2009.

23All India Judges Association v. Union of India, AIR 1992 SC 165.

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recommendations of the Law Commission may be examined expeditiously and implemented as

early as possible. It is in the interest of the health of the judiciary throughout the country that

this should be done.

However, in spite of the above mentioned, National Judicial Service continues to be a

dream for reasons best known to the bureaucracy.

CHAPTER VI

FRAMEWORK OF NATIONAL JUDICIAL SERVICE

The First National Judicial Pay Commission headed by Justice Jagannatha Shetty had

invited the views and comments on the methodology of constituting an All India Judicial

Service. After considering the various views, the Commission submitted its report in 1999 which

contained the following recommendations, which could be considered as the basic framework of

the National Judicial Service:-

i. The AIJS should be constituted only in the cadre of District Judges as per

provisions of Art. 312 (3) of the Constitution. The District Judges directly

recruited and promoted should constitute the AIJS.ii. The selection for direct recruitment should be by the National Judicial

Commission or Union Public Service Commission and the promotees by the

respective High Courts.iii. The qualification for direct recruitment to AIJS should be in conformity

with that prescribed under Art. 233(2) of the Constitution.

iv. Service Judges also should be allowed to compete for recruitment of AIJS,

by appropriately amending Art. 233(2) of the Constitution.v. Not exceeding 25% of the posts in the cadre of District Judges in every

State should be earmarked for direct recruitment.

vi. The age limit for recruitment to AIJS should be between 35 years to 45years.

vii. The procedure for selection shall be by written examination followed by

viva voce.

viii. Appointment: The National Judicial Commission / UPSC, after selectingthe candidates for direct recruitment to the cadre of District Judges, must allocate

to the States / UTs, the candidates equal to the vacancies that are surrendered by

them. The High Court thereupon will recommend those names to the Governorfor appointment as per Art. 233 of the Constitution.

ix. Training: The prescribed training is only after the appointment.

x. Seniority: All India seniority is as per the ranking in the select list.

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xi. Inter-se Seniority in the State/UT: The inter-se seniority between direct

recruits and promotees shall be determined according to the date of allotment and

date of promotion. Such direct recruits must thus be annexed to the respectiveState Judicial Service within the three-tier system.

xii. Court Language: Recording of the deposition should be: (1) Regional

Language (to be recorded by the Court Officer); and (2) English (by the PresidingOfficer).

CHAPTER VII

ANALYSIS AND CRITICISM

It was already mentioned that National Judicial Service still remains as an orphaned

dream. For understanding the reasons for the same, an insight into the pros and cons claimed by

the stake holders and interested persons would be of benefit.

Presently the criticisms24leveled against the formulation of an AIJS are (1) It may lead to

the erosion of the powers of the state which do not have much of the powers under its

dispensation as of now (2) direct recruitment of eligible candidates to the post of district judges

may result in a situation where young and inexperienced hands may have to deal with the matters

of great importance and stake. (3) If such personnel are appointed as District Court Judges at a

very young age, there are greater chances of them reaching the High Courts and Supreme Court

prematurely, where they may have to deal with completely different matters when compared

with that of the District Courts, which will put such personnel into further misery and trouble.

Of the above mentioned criticisms, as per the findings of the Review Commission second

problem could be tackled by mandating the age limit of 35 for direct recruitment to the post of

District Judges. The Commission had also posed another suggestion regarding the feasibility of

removing Art. 312 (3) whereby recruitment and appointment of the whole subordinate judiciary

including the munsiffs and magistrates could be down by the National Judicial Service

Commission.These may be interpreted as the reasons for preventing the setting up of a National

Judicial Service. In spite of the criticisms, what that should be kept in mind is that, upon

stressing on the establishment of such a mechanism, the interest of the public is only getting

24 Laid down by the National Commission to Review the Working of the Constitution.

14


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reinforced. Thus the same could be considered as a facet of separation of powers which is the

hallmark of every federal system.

There are no two opinions that the judiciary has served the country well in

difficult times. It has produced judges of outstanding integrity and ability. The

people of India have confidence in the judiciary because it has functionedindependently and impartially25.

Likewise, by establishing an All India Judicial Services, uniformity of appointments,

qualifications, remunerations and standard of life could be guaranteed to the judicial fraternity.

Moreover, it also sufficiently increases the esteem of the profession. The observation made by

the Supreme Court in All India Judges Case26 is worth mentioning.

The Judicial Service is not service in the sense of employment. The Judges are

not employees. As members of judiciary, they exercise the sovereign judicialpower of the State. They are holders of public offices in the same way as the

Members of the Council of Ministers and the Members of the Legislature"and".........Under the Constitution, the judiciary is above the administrative

executive and any attempt to place it on par with the administrative executive has

to be discouraged.

Thus, to analyse the issue what is felt is that, it is the duty of the wings of the government

to promote a constructive interpretation and analysis of the situation to ensure that justice

delivery is not hampered by indigent factors which may loot away the pride of the judiciary. The

independence granted to judicial mechanisms all across the world should be taken into account.

At this demanding hour, it is in the right interest of justice to work towards re-organization of the

judicial regulatory mechanism.

25 H.R. Bhardwaj, Judicial Reforms, LAW, LAWYERS AND JUDGES.26All India Judges Association v. Union of India, AIR 1992 SC 165.

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CHAPTER VIII

CONCLUSION AND SUGGESTIONS

To conclude, the formation of a National Judicial Service is to be favoured for the

progress of justice delivery system in the country. The present UPA Government is deliberating

upon the formulation of a five year programme for improving the judicial system to ensure the

rendering of justice with minimum delay thereby to bring the National Judicial Service in lineswith the Indian Administrative Service.

In order to ensure the well functioning of the judiciary and the welfare of the judicial

officers, the following could be suggested.

a. All India Judicial Services should include even the lowermost tier of the subordinate

judiciary. Though this may lead to a condition where the state loses its power to an

extent, even then the same must be preferred for the future good of the country

(That is Art.312(3) and (4) must be removed).

b. A National Judicial Service Act must be enacted by the Parliament in order to maintain

the independence of the judiciary. It will also prevent repetitive attacks on the

Constitution in the name of amendments.

c. A strict periodical review must be conducted regarding the performance of judiciary.

d. Periodical training must be imparted to the officers of different tiers.

e. The appointment and promotional matters as coming under AIJS should be carried out in

a fair manner and in order to ensure that reviews may be conducted.

f. In many parts of the world, the laymen are given the right to approach a Judicial

Performance Commission or Judicial Ombudsman wherein they can complain against the

judicial officers if there had been situations of dissatisfaction about the judicial conduct.

Such a mechanism would improve the accountability of the judiciary. Creating such a

provision as part of the AIJS would favour the steady functioning of the judiciary.

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17


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BIBLIOGRAPHY

AR. Lakshmanan,Subordinate Judiciary - The Root of our Judicial System, VOICE OF

JUSTICE, 2006 Edition, Universal Publishing Co. Pvt. Ltd.

H.R. Bhardwaj, Judicial Reforms, LAW, LAWYERS AND JUDGES, Konark

Publishers Pvt. Ltd.

V.R. Krishna Iyer, A National Judicial Commission - A Command for Reforms,

RANDOM REFLECTIONS, 2004 Edition, Universal Law Publishing Co. Pvt. Ltd.

WEBSITES REFERRED

www. lawcommissionofindia.nic.in.

Bala Nikit, Setbacks in Indian Judiciary available at

http://www.indlawnews.com/display.aspx?4586.

NATIONAL COMMISSION TO REVIEW THE WORKING OF THE

CONSTITUTION A Consultation Paper on All India Judicial Service available at

http://lawmin.nic.in/ncrwc/finalreport.htm.

Maheshwari, An over View of Delay in Judicial System, available at

http://www.maheshwariandco.com/articles/DELAY%20IN%20JUDICIAL%20SYSTEM.pf.

Judiciary Equally to Blame for Backlog available at

http://egovindia.wordpress.com/category/courts-in-india/.

v
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500 Fast Track Courts set up since April: Jaitley, August 11, 2001 available at

http://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April.

Jaitley/articleshow/141266380.cms.

SC Seeks Response on Three-fold Salary Hike for Trial Judges, available at

http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-

judges/495131/.

vi
http://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April.%20Jaitley/articleshow/141266380.cmshttp://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April.%20Jaitley/articleshow/141266380.cmshttp://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April.%20Jaitley/articleshow/141266380.cmshttp://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April.%20Jaitley/articleshow/141266380.cmshttp://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April.%20Jaitley/articleshow/141266380.cmshttp://timesofindia.indiatimes.com/news/india/500-fast-track-courts-set-up-since-April.%20Jaitley/articleshow/141266380.cmshttp://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/http://www.indianexpress.com/news/sc-seeks-response-on-threefold-salary-hike-for-trial-judges/495131/

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