13. Judicial Training & Education - Status, Needs, Organization & Strategies

13.4 SUBORDINATE JUDICIARY: A PROFILE AND A PROGNOSIS

13.4.1 Prior to the Constitution of India, the position of the subordinate judiciary like appointments, posting and promotion were not exclusively in the hands of the High Courts.

At the Conference of the Judges of the Federal Court and of the Chief Justices of the Provincial High Courts, the position of the subordinate judiciary in relation to the provincial Executive was considered and it was regarded as essential that the members of that service should not be exposed to the extraneous influence of the members of the party in power. It was recommended that provision be made placing exclusively in the hands of the High Courts the power of appointment and dismissal, posting, promotion and grant of leave in respect of the entire subordinate judiciary including the District Judges1.

The above views have been given effect in the recommendations made by the Drafting Committee of the Constitution with certain modifications, and ultimately, a new chapter as Chapter VI of Part VI under the title "Subordinate Courts" has been incorporated in the Constitution.

13.4.2 This Chapter VI of Part VI contains a group of Articles 233 to 237.

Article 233 which is the first Article in this Chapter provides for appointment of District Judges.

The expression "District Judges" has been defined under Article 236(a).

Article 234 provides for recruitment of persons other than District Judges.


1. The framing of India's Constitution by B. Shiva Rao, Select Documents, Vol. IV, p. 186.

Article 235 provides that the control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State shall be vested in the High Court.

Under Article 236(b), the expression "Judicial Service" has been defined to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

13.4.3 Judicial service postulates the hierarchy of Courts with the District Judge as the head and other judicial officers under him discharging only judicial functions2.

13.4.4 Judicial service is a career service with pyramidic structure of Courts. At the lowest rung, there are judges called Civil Judges (Junior Division). Next higher grade is Civil Judges (Senior Division) and still higher is the cadre of Additional Judge and District Judges. Likewise, on the criminal side, there are Magistrates at the lowest level; Chief Judicial Magistrates/Chief Metropolitan Magistrates/Assistant Sessions Judges at the middle cadre and above them Sessions Judges/Additional Sessions Judges.

Over and above all these, is the High Court which is the highest Court in the State, set up under Article 214 of the Constitution.

13.4.5 We have adopted the adversary system which is commonly followed by other Commonwealth countries. But it is unfortunate that we have not made any improvements either in the structure of Courts or training the judicial officers to meet the growing challenges in the administration of justice. We have no doubt made considerable progress in science and technology but the machinery of justice remains with antiquated tools and outmoded laws and procedures.

 


2. State of Maharashtra v. Labour Law Practitioners' Association, AIR 1998 SC 1233.

13.4.6 Adverting about the grave conditions prevailing in the subordinate Courts, the 14th Report of the Law Commission observed3:

"Under the Constitution, administration of justice and the constitution and the organisation of Courts other than the High Courts are the responsibility of the State administration. The facts revealed indicate on the one hand a gross neglect by the State administration of their duty in establishing the necessary number of Courts and on the other, a complete failure on the part of the State to carry out its obligations to provide trained and proper judicial personnel for presiding over the Courts. The States in question cannot even urge financial stringency as an excuse for, the figures reveal that these States have been making substantial gains out of the revenue earned by them by way of Court fees. It is a matter for serious consideration whether in order to prevent what appears to be virtually a breakdown in the system of judicial administration the Central Government should not, by an amendment of the Constitution, be given a greater measure of control over some aspects of judicial administration in the States".

When these observations were made, the field of Legislation on administration of justice and organisation of all Courts, except the Supreme Court and High Courts, were exclusively in the State List under Entry 3, List II of the Seventh Schedule. That was indeed the reason why the Law Commission made the aforesaid observation by recommending an amendment to the Constitution to enable the Central Government to take greater measure of control over some aspects of judicial administration in the States.


3. P. 158, Vol. I of Fourteenth Report on Reform of Judicial Administration, 1958.

13.4.7 But the position today is different. By 42nd Amendment Act, 1976, which came into force on January 3, 1977, a part of the Entry 3 of List II in Seventh Schedule was omitted and by Clause (c) of Section 57 of the 42nd Amendment, Entry 11-A was inserted into List III - Concurrent List.

Entry 11-A so inserted in List III reads thus :

"11A. Administration of justice; constitution and organisation of all courts, except the Supreme Court and High Courts".

This transposition of entry confers equal powers on the Central Government to take adequate measure of control to make the much needed improvement in the administration of justice, constitution and organisation of all Courts. But the Central Government has done little in this regard in spite of the power being given to them.

13.4.8 It may be noted that like in the United States , we do not have dual system of judiciary - Federal Judiciary and State Judiciary. The Federal Judiciary deals with a the cases arising under Federal Laws while the State Judiciary deals with the State Laws. We have adopted single judicial system as State Subordinate Judiciary. The State Subordinate Judiciary is the only forum in which all cases arising under the Central and State enactments are examined and tried. In fact, there are more than hundred Central Legislations in addition to the Indian Penal Code with which the State Subordinate Courts are involved in enforcing. That being the position, we fail to see why Central Government should not come forward to share the responsibility of administration of justice in every State.

13.4.9 It is estimated that the country has in its Twenty Five States and Seven Union Territories a cadre strength of over 12,000 judges in its Subordinate Judiciary. The required strength according to Law Commission estimates is said to be twice that number immediately and four times that number in the next five to ten years. On an average, about 1,500 to 2,000 judicial officers are to be added to the strength of the subordinate judiciary. A statement showing the cadre strength of the judges in the subordinate courts of different States and Union Territories as on 1997 is given below :

 

 

 

 

 

 

 

 

 

STATEMENT SHOWING THE CADRE STRENGTH OF JUDGES

IN THE SUBORDINATE COURTS

 

Sl.No.

State

Cadre I

Dist. Judges etc.

Cadre II

Civil Judges Sr.

Cadre II

Civil Judges Jr.

1.

Andhra Pradesh

117

122

433

2.

Assam

29

46

146

3.

Bihar

276

265

1042

4.

Goa

11

14

20

5.

Gujarat

67

264

290

6.

Haryana

63

---- 158*----

7.

Himachal Pradesh

28

12

58

8.

Jammu & Kashmir

33

42

51

9.

Karnataka

135

167

330

10.

Kerala

101

81

229

11.

Madhya Pradesh

277

229

444

12.

Maharashtra

270

254

717

13.

Manipur

4

6

11

14.

Meghalaya

2

3

3

15.

Mizoram

6

11

3

16.

Nagaland

9

8

5

17.

Orissa

62

113

261

18.

Punjab

60

---- 213* ----

19.

Rajasthan

248

144

315

20.

Sikkim

5

2

6

21.

Tamil Nadu

85

96

399

22.

Tripura

18

10

45

23.

Uttar Pradesh

650

519

660

24.

West Bengal

234

166

337

25.

Delhi

134

---- 218* ----

26.

Lakshadweep

1

-

2

27.

Pondicherry

4

5

10

28.

Andaman Nicobar

1

1

3

29.

Chandigarh

3

3

6

30.

Dadra & Nagar Haveli

1

1

-

31.

Daman & Diu

1

1

-

32.

Arunachal Pradesh

-

-

-

TOTAL :

2935

2585 589*

5856

 

Note : * break up not available.

13.4.10 According to a recent study, India has a little over 10 judges per million people whereas it is 243 in China and 150 and more in some of the developed countries of the West. The number of cases per million people is fairly high (1500) and the expenditure incurred on the judiciary by the Government is strikingly low (0.19 of the GNP). It is also stated that more than half the expenditure is recovered by the Government through court fee, stamp duty and similar fees. (Pistor and Phillip, Rule of Law and Legal Institutions in Asian Economic Development 1960-'95, Harvard University, quoted in NLSIU Report on History of District Courts in India, mimeograph 1998 at p.195).

13.4.11 At present excepting in 3 or 4 States, there is no scientific and systematic training programme available to the judicial officers either at induction or in later stages of their career. Wherever they exist, the emphasis is on lectures on topics of procedure and substantive law where the trainees take the course with very little impact on them. Thus, by and large, judicial career is evolved in the country through the method of trial and error at great cost to the litigants and under risk of unjustifiable delay and distortion in the delivery of justice.

13.4.12 A Prognosis : Subordinate Judiciary in the next Millennium

It is now clear and widely acknowledged that there is no alternative excepting to address the problems of the subordinate judiciary squarely if democracy is to survive and rule of law is to prevail in the trying years ahead.

There should be a radical change in the structure and status of the subordinate judiciary during the closing years of the century. Indeed, that is what the First National Judicial Pay Commission is attempting to achieve.

13.4.13 What will be the nature of the Subordinate Judiciary in 2000 AD or immediately thereafter? Indications are that there will be appreciable number of women and a large number of S.C., S.T. and Backward Class Members in judicial service at all levels and more particularly at the induction stage. If an All India Judicial Service is brought about at least at the level of District Judges, then it may provide better opportunities for appointment to High Courts. If the status and service conditions of subordinate judges are improved, the better talents may vie each other to enter judicial service. If new technologies and better management practices are made available, the capacity of an average judge to handle complex litigation will be greatly enhanced and the litigational time will be considerably reduced. A variety of Alternate Dispute Resolution Methods will be in place taking away a heavy chunk of disputes from courts and giving greater freedom to the judge to employ these strategies to manage his docket much more efficiently than to-day.

13.4.14 All these are welcome developments to the judges and the litigants. The problem arises in the diversity of work involved and the demand for greater professionalism in the process of judging and judicial administration. It is not only a question of acquiring varied knowledges and skills but also a matter of developing an attitude of mind and compatible behavioural patterns on the part of presiding officers.

This calls for intensive and extensive training of the kind that is neither conceived nor organized any where at present within the training institutions. An innovative and flexible curriculum which is constantly reviewed and developed is the need of the hour. Training has to be taken much more seriously by the trainers and the trainees for which structural reforms are necessary. A system of incentives and disincentives should elevate the status of training in the judiciary to the desired degree. Training should be made attractive and interesting by adoption of methods tested for adult education. Exercises and role plays should replace lectures and standard reading materials should be developed to make learning relevant and productive. In short, in the scheme of things in future, judicial training will have to be conceived and executed imaginatively if it has to influence judicial behaviour in a manner facilitative of change and efficiency.