The Constitution provides for three tier Judicial System of Courts. The Ground Floor is given to the District Courts. The High Courts occupy the First Floor. The Top-Floor is allotted to the Top Court – The Supreme Court. The importance of the Ground Floor cannot be undermined. Infact, it provides the foundation. If the foundation is strong, the strength will automatically flow up-wards. The District Judiciary plays an important role. The first interface of the people is at the level of District Judiciary. Even otherwise, the first contact is always with the entry point. The entry point is the first access to the Courts. Therefore, the first access should be like the Indian Coffee House. Within reach. Yet good and effective service. Without hiccups and road blocks. No handicaps.
The trust and the confidence of the people in the District Judiciary is the sine qua non of our Judicial System. This is our first concern. I have been a student of Constitution Law since 1964 when I joined my law classes (57 years). One of the serious concern has been the District Judiciary. My specific reference is to Article 235 of the Constitution. It speaks of control of High Courts over District Courts and Courts Subordinate thereto. It also says – ‘any post Inferior to the post of District Judge’. The Courts subordinate to the District Courts and posts inferior to the post of District Judge. The control of the High Court is a separate issue. The District Judiciary is one unit, a wholesome unit. The District Judiciary is divided into two parts. The District Courts and the Courts Subordinate thereto. The Judges of the Subordinate Courts hold posts Inferior to the post of District Judge. These two expressions : Subordinate Courts and Inferior Posts are not happy expressions. It is true that within the District Courts, there is a hierarchy of Courts. At each level, the Court exercises statutory jurisdiction vested in it. In exercise of its jurisdiction, each Court is independent and is not subordinate or inferior to any other Court. There cannot be any interference so far as the exercise of jurisdiction is concerned. The order/judgment of each Court is subject to the statutory right of appeal. The appellate Courts can interfere with the orders / judgments if they are not found to be in accordance with law. The appellate jurisdiction does not render it to be a Subordinate Court. In the hierarchy, each Court stands at its own level. In short, the appellate Court can only consider the order/judgment which comes on appeal before it. The appellate Court, therefore, cannot interfere in the exercise of its jurisdiction unless the matter is on appeal before it. All Courts are independent. No Court can claim jurisdiction of any kind over another Court. These issues are regulated by statutory provisions and not merely on the basis of the hierarchy of Courts. Accordingly, the expressions subordinate Courts and inferior posts militate against the exercise of independent jurisdiction of its own. These expressions are not in consonance with the dignity of the Court. They need to be avoided. In fact, there is no material available in the Constituent Assembly Debates as to why these expressions were specifically used. It seems, they were not subjected to meaningful debate and discussion.
It is relevant to refer to the circular dated August 11, 2021 of High Court of Himachal Pradesh, Shimla in this context :
It has been resolved by the High Court of Himachal Pradesh that hereinafter, all the Courts in the State other than the High Court shall be referred to as “District Courts”. Furthermore, these Courts shall not be referred to as Subordinate Courts. They shall hereinafter be referred to as “Trial Court”.
This resolution of the HP High Court seems to be well considered and deliberated. There would be no Subordinate Courts. They would be hereinafter referred to as “Trial Court”. It is submitted that this change does not in any manner violate Article 235 of the Constitution. As already said, the CA Debates nowhere indicate, why the two expressions were used. Therefore, this change is in consonance with the independence of the District Judiciary. It also is in conformity with the spirit of the institution of Indian Judiciary. The fact of the matter is that Article 235 needs to be recast as advocated by Professor Upendra Baxi in his recent article : Undoing Judicial Feudalism in Indian Express of August 23, 2021. HP High Court deserves an applaud for uplifting the District Judiciary from subordination. The esteem of the District Judiciary is no less important. I have a feeling that if other High Courts could also follow and adopt the same change, it would be a healthy change. It would add to the dignity of the District Judiciary. The role of the District Judiciary after seven decades of the Indian Constitution has certainly assumed new height. It is also a partner in achieving the vision and the values of the Indian Constitution. The sooner we realise, the better it would be.
Dr. Balram K Gupta
Director (Academics), CJA