The State Judiciary

Mr. P.N. Parashar, H.J.S.

High Court, Allahabad

The Significance of Judiciary in Democracy

Law and liberty are the universally recognized basic hallmarks of a free society. It is commonly felt that without ‘Law’ there could be no ‘Order’ and without ‘Order’ there could be no ‘Peace’ and without ‘peace’ no ‘Prosperity’. Law is, therefore, an instrument for maintaining order and peace, for providing progress and prosperity and for securing justice, which is essential for ensuring human dignity and liberty. St. Augustine, in the City of God IV/IV has rightly observed that “States without justice are but robber’s band enlarged” and according to Hume, “Justice is the bond of society and without it no association of human individual could subsist.: Justice in a social order, therefore, should guarantee the basic dignity and fundamental freedoms necessary for human existence and proper development of society.

In the present era, the democratic system is suited to each society as it is under this system that maximum efforts can be made for securing collective welfare of the members of society and also for maintaining and safeguarding their individual dignity and liberty by applying the sound principles of 'Rule of Law’. Thus, an effective and independent judicial system is sine qua non for sustaining the democratic system and for upholding the ‘Rule of Law’. According to Chief Justice Warren Burger:

“In a democratic society the court system plays an essential role in seeing that neither ‘license’ nor ‘tyranny’ becomes ‘dominant’.

It is, therefore, said that judiciary is the last basic of democracy and it is its ‘life blood’.

It is true that the superior courts viz. the Supreme Court and High Courts play a vital role in imposing checks on the arbitrariness of the executive and in interpreting the Laws, but the role of the sub-ordinate courts also cannot be neglected or minimized because it is the subordinate courts which deal with grass root problems, bear the first brunt of the people and the millions come directly in their contact. Thus, it may well be said that if the judiciary is the lifeblood of democracy, the subordinate judiciary is the lifeblood of judiciary itself. It is the backbone of the entire fabric of the judicial system.

History and Growth of Subordinate Judiciary

During the days of Hindu & Muslim rulers the administration of justice was done according to the ‘Dharma’ or the code of ethics and there were no set rules for the recruitment and working of the courts, though the system worked well. There were ‘King's Courts’ and popular courts also. In the beginning the East India Company had no judicial powers. However, on request from the Company in 1661, the British Crown authorized the Governor and Council in each factory to judge all person living within the jurisdiction of the company. But the position of judicial administration was uncertain and confusing and the judicial power remained concentrated in Governor and the Council.

After assuming direct management of Diwani in 1772, Warren Hastings organized civil judiciary for the provinces. Indians were kept at the lowest level and were excluded from the administration of criminal justice. They were allowed a share in civil judicial administration only. Zamindars, who were empowered to decide cases on civil side, were to decide cases up to amount of Rs. 10/- only. By Reg. NO. XL of 1793 Munsifs were empowered to decide cases of the amount up to Rs. 50/-. In 1803, Sadar Amins were appointed and they were given pecuniary jurisdiction up to Rs. 100/-. By Reg. No. V of 1831, the pecuniary jurisdiction of Munsif extended up to Rs. 300/- and that of Sadar Amin from Rs. 1,000/- to 5,000/-. Under the system of 1793, no remuneration was given to Munsifs and semi-officials like ‘Tehsildars’ and ‘Sejawals’ were employed on the post of Munsifs.

By the Charter of 1726, corporations were created in three presidency towns and Mayor’s courts were established for deciding civil disputes. The criminal cases were tried by ‘Justices of Peace’ on the pattern of England. These Courts started drawing authority from the Crown instead of from the Company.

The institution of ‘District Judge’ was created in 1780. They were called the Superintendents of Diwani Adalats. The District Judge was to be the Civil Judge for his realm and was responsible for administration of justice to every one who lived in his area. He was to control and supervise the conduct of all other subordinate agencies of judicial administration in his jurisdiction. By Reg. No. III of 1793, the District Judges were empowered to take cognizance of civil suits of any nature. Till 1807, no specific rules were made for regulating the qualification of District Judicial Officers.

For the first time Government of India framed rules for the recruitment of Munsifs on 4.8.1840. However, these rules could not be implemented due to practical difficulties and ultimately on 19.4.1885 by circular no. 4 final rules for the examination of candidates for the office of ‘Munsif’ and ‘Pleader’ in Bengal Presidency were promulgated. The rules regulating the recruitment, jurisdiction and other matters differed in the three Presidencies of Bengal, Madras and Calcutta.

Till 1861, there existed a dual system of administration of justice. The Crown’s courts functioned in the Presidency Towns and were amenable to the Legislative authority of British Parliament. In Moffussil areas, Company’s courts functioned but had no jurisdiction over Europeans. After 1861, steps were taken to amalgamate the two parallel systems and to introduce an uniform system of law.

By Indian High Courts Act 1861 the Crown was empowered to establish by Letters Patent three High Courts at Madras, Bombay and Fort Williams. Each one of these High Courts consisted of a Chief Justice and not more than 15 Judges of whom not less than one third were members of the Indian Civil Service. In 1866, the fourth High Court was established by Letters Patent at Allahabad. In 1866 a High Court was established in Punjab on the lines of Allahabad and in 1915 at Patna and another at Lahore in 1919.

Under the Government of India Act 1935, specific provisions were made for the appointment of District Judges and for Subordinate Civil Judicial Service in the State. Section 254 and 255 of the Act regulated such appointments.

Section 254

Appointments of persons shall be, and the posting and promotion of District Judges in any province shall be made by the Governor of the province and High Court shall be consulted before recommendation as to the making of any such appointments is submitted to the Government.

A person already in service of His Majesty shall only be eligible to be appointed a District Judge if he has been for not less than five years a barrister, a member of the faculty fo Advocates in Scotland, or a pleader and is recommended by the High Court for appointment.

In this and next succeeding section the expression ‘District Judge’ includes Additional District Judge, Chief Justice of a Small Causes Court, Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge.

Section 255

The Governor of each province shall, after consultation with the Provincial Public Service Commission and with the High Court, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate Civil Judicial Service of a province.

In this expression ‘Subordinate Civil Judicial Service’ means a service consisting exclusively of persons intended to fill Civil Judicial Posts inferior to that of District Judge.

The Constitution of India

Under the Constitution of India, appointment of District Judges is regulated by Art. 233 and appointment of sub-ordinate Judges is regulated by Article 234 and 236. The provisions of Government of India Act 1935 have been incorporated in these articles with some modifications.

Elevation of the District Judge to High Court

By the year 1915, the Judicial Services of the State subordinate to the Allahabad High Court had fully established its glorious reputation of honesty, integrity and legal acumen of its luminaries. The Government of India Act 1915, laid down the following sources from which the appointment of High Court Judges could be made: -

a) Barristers with one-third reservation for them.

b) I.C.S. District Judges, with one-third reservation for them and

c) Vakils of High Courts of not less than 10 years standing or Civil Judges of not less than 5 years standing.

When the Oudh Chief Court was constituted under the Oudh Courts Act, it was provided in the enactment that at least one out of the total number of five Judges shall be from the members of the Judicial Service of the State and at least two shall be the members of the Indian Civil Service who have worked as District Judges for at least three years.

The Government of India Act, 1935 did away with the system of reservation. But the sources from which High Court Judges could be appointed continued to remain the same as contemplated by the Government of India Act 1915. In the absence of reservation, number of the Judges on the High Court Bench drawn from the State Judicial Service rose from 2 in the year 1935 to 7 in the year 1954.

Under the Constitution of India, there is no reservation of any category as was done in the past. Article 217 deals with the appointment of a Judge of High Court. Clause (2) of Article 217 provides as follows: -

2. A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

a) Has for at least ten years held a judicial office in the territory of India; or

b) Has for at least ten years been an Advocate of a High Court… or of two or more such Courts in succession.

Past Achievements of the Services

The subordinate judiciary in the State of U.P. has earned a great name. Its achievements have been recognized and appreciated by the eminent Judges and the high dignitaries. Pt. Jawahar Lal Nehru after his release from Jail in the year 1942 spoke very highly about independence of judiciary and appreciated independent working of the subordinate courts.

Chief Justice Grimwood Mears, inaugurating the fourth session of the U.P. Judicial Officers Association 1924, acknowledged on behalf of the High Courts, the ability displayed by the subordinate judiciary and of the “esteem in which the Judges of the High Court held the members of the subordinate judiciary”. Chief Justice Sir Shah Mohammad Sulaiman, a few years later, said that the Provincial Judicial Service can take pride in the fact that those of its members who came up to the High Court have proved to be brilliant Judges of great experience, learning and ability.

The provincial service has produced eminent and distinguished Judges, who for years adorned the Bench with luster and commanded respect for their clear thinking, lucid expression and sound judgment.

Sir Tej Bahadur Sapru, as member of the Executive Council of Viceroy, in the Civil Justice Committee report, said about the subordinate Judge having reached a high standard of efficiency. The subordinate judiciary in Uttar Pradesh has produced eminent Judges of High Court whose names continue to be remembered with profound respect till date.

It is a matter of historic significance that Justice Mahmood who was the first Indian to be elevated to the Bench of the Allahabad High Court was a Service Judge. He was appointed as District Judge Grade III in 1879 and remained as District Judge, Rae-Bareli. One of the cases decided by him went up to the Privy Council and their lordships were greatly impressed by the scholarly, through and excellently written judgment and they wrote to the Secretary of State for India that his abilities should not be wasted in the District Court. Accordingly he was given an officiating chance on the High Court Bench in 1882 and he remained a High Court Judge till 1892 with some gaps. He is remembered for his judicial independence and for enunciating principles of natural justice.

The second Indian to be elevated to the Bench of Allahabad High Court was also a Service Judge, Sir Promoda Charan Banerji. He was appointed as a Munsif in 1872 and from there rose to the High Court in 1893, where he sat for 30 years i.e. up to 1923. He was one of the ablest Judges of the High Court and was an All India Authority on Law of Mortgage and Hindu Law.

Sir Lal Gopal Mukherji was another Service Judge and after officiating as an Additional Judge he was made permanent Judge in High Court in 1926. He was also appointed the Chief Justice in 1932. He was endowed with an enobling personality and his patience on the Bench was admirable.

In the recent times, the names of Hon. Mr. Justice A.P. Srivastava, Hon. Mr. Justice Brij Mohan Lal, Hon. Mr. Justice J.M.L. Sinha, Hon. Mr. Justice K.N. Goel, Hon. Mr. Justice B.D. Agarwal and Hon. Mr. Justice Jagmohan Lal are well known. Such Judges of the Service are known for their learning, high intellect and wide knowledge. They have adorned the high offices and have contributed a lot in the annals of judicial history.

Some of the Service Judges have adorned the august office of Judge of Supreme Court. Hon. Mr. Justice Palekar, Hon. Mr. Justice Singhal were the earlier Judges of the Supreme Court who belonged to the subordinate judiciary. At present, Hon’ble Mr. Justice Ahmedi and Hon’ble Justice Fatima Bibi in the Supreme Court of India are the Judges who originally hail from the State Judicial Services.

The Present Structure

In Uttar Pradesh at present we have State Judicial Services known as Nyayik Sewa and Higher Judicial Services. Recruitment of Subordinate Civil Judiciary in the State is governed by U.P. Nyayik Sewa Niyamawali 1951. The Judicial Officers of U.P. were recruited under U.P. Judicial Officers Service Rules 1960. So far as Higher Judicial Service is concerned, recruitment, seniority and promotion etc. of the members of Higher Judicial Services were governed by U.P. Higher Judicial Services Rules 1953. These rules were subsequently modified and now the Higher Judicial Service is regulated by U.P. Higher Judicial Service 1975. On the point of seniority, there have been very important pronouncements, which have explained the ambit of the provisions of these rules. The latest pronouncement was in the case of O.P. Garg vs. State of U.P. 1991 (2) SLR 550 SC. The decision of Hon’ble Supreme Court on the issue of seniority is to be implemented by the Hon’ble High Court.

The powers and jurisdiction of the civil courts in U.P. are regulated by Civil Procedure Code and Bengal, Agra and Assam Civil Courts Act 1887. Now after the U.P. Civil Laws Amendment Act 1991, ordinary pecuniary jurisdiction of Munsif has been raised up Rs. 10,000/- in place of Rs. 5,000/- Special Jurisdiction has been raised up to Rs. 25,000/- in place of 10,000/-. The Civil Judges have got unlimited pecuniary jurisdiction and they are empowered to hear suits of any valuation. By the U.P. Act XVII of 1991, which has amended the Bengal, Agra and Assam Civil Courts Act 1887, the appellate powers of the District Judge have now been raised. Now the District Judge is entitled to hear appeals up to the valuation of Rs. 1.00 Lac. In the criminal areas, the powers and jurisdiction of the district Courts have been defined by the provisions of Criminal Procedure Code and other local and special Acts.

Figures of pending Civil and Criminal cases of the District Courts in U.P. as on 1.1.1990.

Civil Cases                                5,59,937

Criminal Cases                        12,76,691

Total Number of Cases            18,36,628

Supervision and Control of Subordinate Judiciary

The members of subordinate judiciary are directly under the control and supervision of High Court. The supervisory control is to be exercised by the High Court under Article 227 and Article 235 of the Constitution. This control includes posting, promotions and grant of leave and also includes disciplinary control. The officers of State Judiciary are subject to the directions contained in the U.P. Government Servants Conduct Rules 1956. The High Court of Allahabad has also issued circular letters from time to time giving directions to the officers of subordinate judiciary for regulating their conduct and propriety.

Challenges before the State Judiciary

The subordinate judiciary is the base of our judicial system and any failure of this system may be attributed to this lower rung of the judiciary, as the common man comes in direct contact with the subordinate courts and gathers the first impression of the system of justice from those courts. Preceding the enactment of Government of India Act 1935, a joint committee made the following observations: -

“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 Superior Judges”.

The subordinate judiciary in these days has to face lot of challenges seriously threatening its independence. The problems of subordinate judiciary do not confine to ill-equipped court rooms and chambers, ill-managed offices, lack of library facilities, lack of modern means, the housing and conveyance problems, the poor service conditions, unsatisfactory pay scales, promotions, elevations and the like but also include their dignity and security. In addition, there is rising flood of cases, the ‘plight of arrears’ and ‘delay in disposal’. The atmosphere in the courts is surcharged with tension and the Judges of these courts do not feel ‘safe’ and ‘independent’.

The episode of assaults on the judicial officers from Nadiad in Gujarat to Ghaziabad in U.P. tell the tales of misery, agony, insecurity and indignity of the officers of district judiciary. The Hon’ble Supreme Court of India, while deciding the famous Nadiad case has observed as follows: -

“The dignity of the court is essential for protecting and vindicating the rights of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with.”

In another case, M.B. Sanghi, Advocate Vs. The High Court of Punjab and Haryana, Civil Appeal (Contempt) No. 144 of 1987 J.T. 1991 (3) S.C. 318, the Hon’ble Supreme Court ahs observed that ‘the independence of judiciary is of vital importance to a free society’. Hon’ble Justice Ahmedi has further observed’, “it is high time that we realize that the much cherished judicial independence has to be protected not only from the Executive or the Legislature but also from those who are an integral part of the system.” In this case, Mr. Sanghi an Advocate abused and made scurrilous attack on the subordinate Judge and was sentenced with a fine of rupees one thousand in the contempt matter by the Punjab and Haryana High Court. The Supreme Court did not accept the apology tendered by him and upheld the conviction.

The basic responsibility to ensure full security and dignity of the district courts lies with the High Court, which is vested with the supervisory control over such courts by virtue of Article 227 and 235 of the Constitution. As observed by the Hon’ble Supreme Court of India, in Delhi Judicial Service Association Vs. State of Gujarat and others W.P. No. 517 of 1989. “The High Court has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of stream of justice in the courts without any interference or attack from any quarter.”

Some Suggestions:

1) It is true that no public institution can survive in a democratic set up unless it retains public confidence. Judiciary is no exception to it. It, therefore, becomes the primary responsibility of the members of the District judiciary to plan their working and behaviour inside and outside the court room so as to enable them to hold the public expectations of fair, impartial and speedy justice from them. Not only introspection but learning of the codes of ethics is necessary for them.

2) For ensuring efficiency in the administration of justice, it is no doubt the duty of the judiciary to maintain a high level of integrity, efficiency and industry but it is equally imperative on the part of the Government and the High Court to see that all possible steps are taken to make it contented and efficient. The departmental proceedings should be expedited and the matters of confirmation and promotion should not be held up. The Judges of District judiciary feel frustrated when they are not given their due in the area of elevations. Under article 217 of the Constitution, two equal sources of recruitment have been recognized, but the quota of Service Judges is not even up to 50%, of the total strength. Seniority need not be the dominant consideration, and even a junior possessed of merit ought not to be ignored. Elevation must not be postponed till the incumbent has reached the age of super annulations or has even retired. He needs to have a longer tenure in the High Court than ordinarily available at present. The practice in this behalf needs being drastically revised.

3) The Government and the High Court should ensure better service conditions, satisfactory pay scales and other conditions to the Judges. They should also be ensured their dignity and security so that they discharge their duty freely and fearlessly.

4) To reduce the work load, to ensure quick disposal of cases, and to remove stagnation in the service cadres the strength of the court at the district level should be increased in proportion to the pendency of cases. The Law Commission of India in its 120^th report submitted in 1988, has prepared a blue print on ‘man-power planning’ in judiciary according to which at present 50 judges per million of India’s population is the necessity of today. In R.L. Gupta Vs. Union of India and others, AIR 1985, Supreme Court Page 668, the Hon’ble Supreme Court of India has suggested that the strength of the District Judiciary should be increased by 30%.

5) Though the Judges and judicial officers of the District Courts follow the same procedure and discharge the same responsibilities, they are treated differently in different states. The nomenclature of the courts and the categories of the courts are not uniform. In the matter of pay and other conditions, too, there are dissimilarities. It is perhaps because the judiciary remained State subject and the state Government had the responsibility to establish and organize the courts. However after the 42^nd amendment in the India Constitution, the subject ‘Administration of Justice’ ‘Constitution and Organization of all the courts except the Supreme Court,’ has been taken out the State List by deleting Entry 3 of the State List of the Seventh Schedule and by adding new Entry 11 (A) to List III (Concurrent List). Section 45 of the said Amendment Act, specifically provides for the creation of All India Judicial Service but Central Legislation is awaited on the subject for the last fifteen years and despite the recommendations of the Law Commission and Resolutions of the Conferences and the comments of the Committees nothing has been done so fare, the improve the lot of the State Judiciary. The Central Legislation to bring uniformity in the pay scale of Judges and to improve their service conditions is urgently needed.

6) In the District Courts the modern techniques like computers, microfilming, electric typewriters, photocopiers and other scientific devices have not been introduced. We lack modern management in court offices and scientific skill to effectuate speedy justice. All these are dire necessities of the day. We should adopt innovative techniques and unconventional approaches. Judges of these courts require not only moral training of temper but also scientific outlook and planning. These things should be included in their training programmes.

We therefore, need urgent steps to overhaul the entire fabric of judicial administration at the District level by introducing structural changes bases on modernized management and scientific techniques and modalities and also require Judges to develop moral and scientific temperament based on devotion and dedication as well as planning and methodology.