How many Indians remember B.N. Rau? He was an eminent jurist, and served as a Judge of the Calcutta High Court from 1939. He was also a judicial ‘lateral entrant’.
B.N. Rau was a member of the International Court of Justice Bench at The Hague, and the first from India. Earlier, he was also the constitutional adviser to the Constituent Assembly of India. He was the most important person after B.R. Ambedkar in drafting the Constitution of India. The draft Constitution that was debated in the Constituent Assembly, later amended to become the Constitution of India, was his brainchild. The Drafting Committee of the Constituent Assembly had accepted his draft virtually without any change.
But, B.N. Rau was not an advocate, or member of the judicial services. He was a civil servant. He entered the Indian Civil Services in 1910, and served with distinction until his elevation to the high court.
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He was also closely involved in drafting key provisions of the Government of India Act, 1935, which later became the template of the Constitution of India.
B.N. Rau was also a prolific author and wrote on many aspects of law and jurisprudence.
He was not the only civil servant to serve in the high court. There were many like him, the majority being Englishmen. Justice Donald Falshaw, from the civil service batch of 1928, became the Chief Justice of the Punjab High Court in 1966, and Justice William Broome, civil service batch of 1932, retired as the senior-most puisne judge of the Allahabad High Court.
It was possible in those times for civil servants to choose to officiate on the judicial side. Many officers did that. They were eminently qualified to do that, both by virtue of their training as presiding officers of revenue courts, as well as of the criminal courts. As such, they were well versed with the provisions of the Criminal Procedure Code (CrPC), and the Civil Procedure Code (CPC).
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However, after the Indian Independence Act, 1947, and promulgation of the Constitution of India, the practice simply disappeared. With the Supreme Court of India becoming the key figure in appointments to the constitutional courts, the influential advocate chambers and established law firms soon appropriated the entire judiciary. Today, the highest judiciary has become an institution ‘of the Bar, by the Bar, and for the Bar’. Even though a provision exists in the Constitution [Article 124 (3) (c)] to appoint eminent jurists to the higher judiciary, not a single such appointment has ever been made.
It is in this background that we ought to examine the whole issue of Indian Judicial Services. In an era when we are discussing lateral entry into even the IAS and other all-India and central services, I find no justification for reviving this old proposal. If anything needs to be done, it is streamlining the appointment to the courts through a transparent procedure, including and not limited to an examination.
Such an examination, or procedure, should also include the members of the IAS and other services, if they fulfil the qualifications. All IAS and civil services have greater experience of dealing with, operationalising, and enforcing law; doing legislative drafting; and implementing constitutional provisions. They also come through probably the most gruelling examination in the world that tests their intelligence and diligence. They should be allowed to take this exam, along with members of the lower judiciary and the Bar. Let the best go to the Bench.
This is something that I have been advocating in the context of the lateral entry to bureaucracy as well. The way lateral entry is being done right now may not stand the test of transparency, and may not attract the best and the brightest as the positions are contractual. There ought to be another examination for regular appointments to a Central Superior Service (such a service used to exist in British India from 1924, and comprised of all-India services and central services).
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To be eligible, the candidates should possess either 16 years of service in any of Class I services of the Union, or at a certain level in the states, or the person should have served in certain designated capacities at a senior level in the private sector. This would eliminate the inherent bias in the Central Staffing Scheme. The induction should be at the joint secretary level. At the same time, all officers eligible to take this test should also be eligible to take the examination for appointment to the higher constitutional courts, if they possess a law qualification.
This system would not only streamline the lateral entry system in the highest echelons of the Union, but would also allow the judiciary to be taken out of isolation and given the best talent available. It is high time that the Judiciary ceased to be a closed cosy club (CCC).
The author is the additional chief secretary, Rajasthan and former secretary of the Rajasthan Cricket Association. Views are personal.
The author is not aware of the fact that before independence there were no separation of Judiciary from Executive amd the then Code of criminal Procedure permitted the appointment of ICS Officers as Magistrates. Back then there were no separate judicial service and judges were appointed from either existing ICS or directly from Bar. After the enactment of Constitution, the State is required to observe separation of Judiciary from Executive. Moreover Unlike IAS, IPS, the Judiciary is quite specific and Only people having knowledge of Law can be appointed as Judges. The Author is not aware of the fact that the HJS Exam is almost similar to lateral entry through which Candidates from Bar can be appointed as judges. The author even though being an Additional Chief Secretary is completely ignorant of some basics notion of our constitution and Judiciary.
The HJS examination which allows advocates of 35 years of age with 7 years practice to appear in the exam and the same time, depriving the judicial officers of the same duration of service from it.. is alike the system of lateral entry in IAS! If anything needs to be improved further, then this exam should be made open to all law grads of 35 years old and 7 years or practice or service experience to avail a chance to jump into HJS!
Why not agree with you but then his direct quota should also become 100% other than 25 % present system
Why not agree with you but then this direct quota should also become 100% other than 25 % present system
Despite nearly unanimous negative opinion of other commentators on the idea proposed by the writer here, I see merit in it.
First of all I want to thank Sanjay for educating us about Justice B N Rau. Many among us aren’t aware that he was behind drafting GoI act 1935 and consequently our constitution.
I believe that in our effort to isolate judiciary to achieve fairness we have created this silo in this important branch of our government. Now this silo has acquired life. It’s not just an isolated branch of the government, it’s a now trying to encroach in the space of other two branches. We have ended up with incompetent, unethical, political and mediocre judiciary.
There is another relevant aspect I want to address here,. In selecting judges, CBI chiefs or the chiefs of other national institutions through selection committees, our practice of assigning equal vote to parties other than the government which represents will of the people, is plain wrong. Vetting a candidate by all cannot be mixed with selecting the candidate. Our current (and even proposed) selection process gives rise to the conflict what Indira Gandhi called “committed Judiciary”.
Committed or not, judiciary has to be in sync with changing times. We don’t want commissars in judiciary but we also don’t want “ideologically committed” judiciary.
Vijay Rajvaidya
India Currents, Inc.
Andher Nagri, Chaupat Raja. The entire system is rotten. Lying, distortion and other forms of intellectual dishonesty are endemic among IAS officers, advocates and Judges (including HC and SC Judges) honourable exceptions apart. What we have, unfortunately, may be described as “win-at-any-cost-culture”. The root cause of the problem is “rat-race” at all levels of the machinery. This is the crux of my experience of more than 30 years. Despite two favourable Judgments of SC dated 30.8.1988 and 29.1.2014, I am on the road for the last more than 30 years. Black robes, white lies. Small men, big egos. Justice is the means by which established injustices are sanctioned. For details: Moral Re-Armament Centre (Honesty-Purity-Unselfishness-Love). Vijay Kumar Agarwal, Ex-IAS. Mobile: 9560172716. Phone: 011-22485508
Before 1947 there were any number of Indian ICS officers who were judges of various High Courts. I remember Justices Bhandari, Khosla and Dulat of the Punjab High Court.
They joined the judiciary as Sessions Judges.
The bureaucracy and the judiciary are as compatible as oil and water. Not a great idea. The precedent of the ICS is outdated; those were simpler times. Nowadays even judges of the apex court sometimes struggle with the complexity of the issues that come before them. Take the tangle of telecom for example. The “ lateral entry “ the judiciary perhaps needs a little more of is inducting people of the caliber of Justice Fali Nariman and Justice Indu Malhotra into the apex court directly from the Bar.
Justice Rohinton Nariman, I am sure he would not mind his worthy father being elevated …
Separation of judiciary is the key factor under article 50 which needs to be understood properly. This instant thought should be replaced by exceeding the retirement age of Indian judges.
Original thought. Will be good to move honest career IAS officers into judiciary for their last 5 to 10 years and induct more laterally through UGC (not Niti Aayog). Would be a good balance on both sides.
I want efficient private courts
After go through this article again burEcatic anarchy is easily accessible….Without any doubt author and other members who recognize india is a democratic system but civil servants are still feel themselves king without crowns..Or simply still they want to work in dictatorship manner…Lateral entry gives hope for the system which is collapsing because of redtapism
Australia’s mid level managers are more efficient than indian Babu’s …..And judiciary is all about lateral entry mr author whether it’s HJS OR HIGH COURT JUDGE OR DIRECT SUPREME COURT JUDGE…WHY are you paining for lateral entry in indian bureaucracy?????