The Subordinate Courts

Article 234: the rest of the judicial service

Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to that State.

Two consultees, and the reason for each is different. The Public Service Commission brings the discipline of open competitive recruitment. The High Court brings the knowledge of what a judicial officer's work requires. Article 234 is the constitutional basis of the State judicial service examinations by which most Indian judges are recruited.

Article 235: control

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 and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in the article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service, or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

This is the most important article in the chapter and it should be learned almost word for word, because the word "control" is doing very heavy work.

Control includes the posting, promotion and grant of leave of officers below district judge, and it has been held to include the disciplinary control of the subordinate judiciary. It is vested in the High Court, not in the State Government, and not in the Public Service Commission.

The two savings matter as well. The officer keeps any right of appeal his service conditions give him, and the High Court must deal with him in accordance with those conditions. Control is not arbitrary power.

Read article 235 beside article 50, the Directive Principle that the State shall take steps to separate the judiciary from the executive in the public services of the State. Article 235 is the enforceable half of that idea: the subordinate judiciary is controlled by the judiciary.

Articles 229, 230, 232, 236 and 237

229: the officers and servants of a High Court are appointed by the Chief Justice of that Court or such other Judge or officer as he directs; their conditions of service are prescribed by rules made by the Chief Justice, subject to the Governor's approval where salaries, allowances, leave or pensions are concerned; and the administrative expenses of a High Court, including all salaries, allowances and pensions of its officers and servants, are charged upon the Consolidated Fund of the State, fees taken by the Court forming part of that Fund.

That is section 228 of the Government of India Act 1935, and the charged-expenditure rule is one of the financial guarantees of independence listed in the next chapter but two.

230: Parliament may by law extend the jurisdiction of a High Court to, or exclude it from, any Union territory.

232 was omitted by the Seventh Amendment.

236: interpretation. "District judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge. "Judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to it.

The definition of "judicial service" carries a rule inside it: the service is to consist exclusively of persons intended for judicial posts, which excludes a mixed cadre of executive and judicial officers. That is article 50 again, in the definitions.

237: the Governor may by public notification direct that the provisions of the Chapter and any rules made under them shall apply to any class or classes of magistrates in the State, with exceptions and modifications.

The ancestry of the district judiciary

Every office in this chapter has a history in Module I, and naming it is what makes the chapter interesting rather than administrative.

A worked example

An advocate of nine years' practice in Nagpur wants to become a district judge in 2000, and a law graduate wants to enter the judicial service.

The advocate. He is not in the service of the Union or the State, so article 233(2) applies: seven years at the Bar, which he has, and a recommendation of the High Court, which he must obtain. The appointment is then made by the Governor in consultation with the High Court under article 233(1).

The graduate. He is applying for a post other than district judge, so article 234 applies: appointment by the Governor in accordance with rules made after consultation with the State Public Service Commission and the High Court. In practice he sits the State judicial service examination those rules provide for.

Both, once appointed. If they hold posts inferior to district judge, their posting, promotion and leave, and their discipline, are under the control of the High Court by article 235, subject to their service conditions and to any right of appeal those conditions give.

What beginners get wrong

"The High Court appoints district judges." The Governor appoints, in consultation with the High Court; and a candidate from the Bar additionally needs the High Court's recommendation. The distinction between consultation and recommendation is the examinable point.

"Article 235 gives the High Court control over district judges too." Read the words: control over district courts and courts subordinate to them, including the posting, promotion and leave of persons holding posts inferior to the post of district judge. The control over the courts is general; the specified incidents relate to officers below district judge.

"The State Government controls the subordinate judiciary." Article 235 vests control in the High Court. That is the point of the article.

"Sessions judges are outside this chapter." Article 236 defines "district judge" to include a sessions judge, additional sessions judge and assistant sessions judge, among others.

Limits and criticism

Two criticisms are standard and both are fair.

The division of responsibility is untidy. Appointment is with the Governor, recruitment rules require two consultees, control is with the High Court, and the pay and service conditions are fixed by the State Government. An officer whose promotion is controlled by one authority and whose salary is determined by another is not in a simple position, and much litigation about the subordinate judiciary is about exactly where the line runs.

And the article 50 promise is incompletely kept. The separation of the judiciary from the executive was achieved for the criminal courts only when the Code of Criminal Procedure 1973 separated judicial magistrates from executive magistrates, twenty-three years after the Constitution, and the definition of "judicial service" in article 236 is what made a mixed cadre impossible thereafter.

What should be said in the student's favour, and in the Constitution's, is the comparison this book keeps returning to. In 1787 the judge of a district was the officer who collected its revenue and was answerable to the Board of Revenue. In 1950 the judge of a district is appointed on the recommendation or in consultation with a court, controlled by that court, paid out of a fund the legislature does not vote on, and removable only in accordance with rules he can appeal against. The distance between those two sentences is the distance Module I and Module III measure.

Quick revision

• 233(1): district judges appointed, posted and promoted by the Governor in consultation with the High Court. 233(2): a candidate from outside the service needs seven years as an advocate or pleader and the High Court's recommendation.
• 234: other judicial officers appointed by the Governor under rules made after consultation with the State Public Service Commission and the High Court.
• 235: control over district courts and courts subordinate thereto, including posting, promotion and leave of officers below district judge, is vested in the High Court, saving the officer's right of appeal and his service conditions.
• 229: High Court staff appointed by the Chief Justice; the Court's administrative expenses charged on the Consolidated Fund of the State.
• 236: "district judge" includes city civil court judges, sessions judges and others; "judicial service" consists exclusively of persons intended for judicial posts.
• 237: the Governor may apply the Chapter to classes of magistrates.
• Ancestry: zillah judge 1793; munsif and sadar ameen from the 1790s; sessions from the Courts of Circuit of 1790.

Test yourself

1. Who appoints a district judge, and what does a candidate from the Bar additionally need? The Governor of the State, in consultation with the High Court. A person not already in the service of the Union or the State needs at least seven years' practice as an advocate or pleader and a recommendation of the High Court.

2. What exactly does article 235 vest in the High Court? Control over district courts and courts subordinate to them, including the posting and promotion of, and the grant of leave to, persons in the judicial service of the State holding posts inferior to district judge, subject to any right of appeal under their service conditions and to those conditions themselves.

3. Who is consulted before rules are made under article 234, and why two consultees? The State Public Service Commission and the High Court. The Commission brings the discipline of open competitive recruitment and the High Court the knowledge of what judicial work requires.

4. Give the historical ancestor of the district judge, the civil judge and the sessions judge. The district judge descends from the zillah judge of Regulation V of 1793; the civil judge from the munsif and sadar ameen whose jurisdiction grew from the 1790s; and the sessions judge from the Courts of Circuit established by the Regulations of 3 December 1790.

5. How does article 236's definition of "judicial service" support article 50? By requiring that the service consist exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to it, which makes a cadre mixing executive and judicial officers impossible.