ഷെട്ടി കമ്മീഷന്‍ റിപ്പോര്‍ട്ട് 6

VI. METHODS OF TRAINING

(1) Scope of Lecture-cum-Discussion in a Training Programme :
It is good teaching method; but is not enough. Participative learning techniques should be employed wherever possible. In any case lecture-discussion should not be extended beyond one-fifth of the entire training.
A work book may be prepared by the faculty in advance for each subject detailing the study plan, essential reading, exercises to be done, portions left for self-study and expected outcomes.
The knowledge component of training can largely be taught through lecture and questions followed by written tests and group discussions.
(2) Scope for some part of Syllabus left for self-study:
If information giving is the object of a given module, it may be left for self-study. Even then discussion in groups of such topics may be helpful for enhancing the understanding of the subject/information.
(3) Scope of Independent Research and Writing (Projects):
Yes, project work for research and writing on issues relevant to judicial learning is good method provided proper guidance is available from the Faculty and the project report is presented and discussed in group meetings involving sitting judges. It can be evaluated for 15 to 20 per cent of the credit for each subject. The selection of project topics may be made in consultation with trainees. Some projects may be assigned to groups of trainees when they involve more investigation and analysis.
Projects are effective only in residential courses. Case comments, dissertations on socio-legal topics and critiquing of articles by eminent jurists published in legal periodicals etc. are research/writing exercises which can make learning real and practical.
Some Respondents suggested 25% of total credit in given subjects to independent research and writing
(4) Scope of Simulation Exercises in Skills Education :
Mock trials, moot courts, negotiation and mediation exercises as well as conciliation and arbitration of different types of disputes under simulated conditions must be assigned to each trainee. The entire process may be video-taped, played back in the presence of experts and other trainees and critiqued for understanding the strengths and weaknesses of each training in the use of such techniques. Similarly video clippings of actual proceedings by leading lawyers/judges may be presented for comparison to the trainees.
It was suggested that these practice exercises should not be basis for grading the over all performance of trainees. In fact trainees should be allowed to evaluate and grade themselves giving supporting reasons for their assessment.
These techniques of training should occupy one-third of the total time of training and one-third of credits of the course.
(5) Scope for Small Group Discussion and Workshops :
Appropriate method for giving deeper insights on topics of current relevance, issues of science and technology, controversial questions of law & policy, emerging areas of law related knowledges requiring inter-disciplinary skills. Every subject and every topic should accommodate as many seminar and workshop exercises wherever possible, in the company of one or two experts on the subject to act as discussants. It may be also advisable to invite trainees themselves to act as moderators of such seminars/workshops.
(6) Scope of Law Clinics (Legal Aid Clinics) in Academies :
Given the increasing importance of Lok Adalats and ADRs, it will help bring at least some aspects of judicial work in the academy premises if legal aid clinics are set up on a regular basis.
Law clinics can also serve a variety of other learning goals depending upon its structure, contacts with NGOs and resources.
(7) Periodic Examinations to Enhance Learning :
The respondents did say that periodic examinations, not of the conventional type only, can be a regular feature of training course. In fact, the course can start with one examination (written and oral) which will give a profile of the group and weaknesses of individual trainees. If such initial test is linked with the series of tests culminating in the final assessment, it gives an idea of the total learning curve of individual trainee and the impact of the training. The entire data must be computerized, transparent and to be explained to the trainee by the Faculty concerned.
Some persons felt such periodic examinations will be a distraction to learning and should be avoided. Too many examinations and too much importance on them may undermine the efficiency and objects of training. Examination is to remain a measure of learning from which the trainee himself could improve the pace and level of learning.
(8) Training Methods for Short-term Refresher Courses:
Seminars, group discussions, lectures, group assignments (projects) are to be used imaginatively. Field experiences wherever possible should be provided by visits in groups.
Video-tapes, correspondence and tele-conferencing are other strategies for conducting continuing education.
(9) Examination of Refresher Course Participants :
Yes, suitable examination to evaluate the extent of learning in continuing education courses is also desirable. It can be "take home", "open-book" examinations besides group discussion and written assignments.
However, refresher courses should not aim to find the shortcomings of judges which may affect his career prospects.
(10) Use of Crash Courses for Training Existing Staff :
Respondents were equally divided on the potential of crash courses and that too correspondence to train the 15,000 existing judicial officers. They felt at best it may give some knowledge based education but not true training.
Conclusion :
A tremendous pool of ideas and comments emerged out of the survey conducted through the Questionnaire. Because some questions were asked differently in more than one place, some aspects of judicial education and training have come in for repeated discussion in the body of the analysis. However, the conclusions are clear and emphatic and are supported by an overwhelming number of respondents who are sitting and retired judges of the country. The fact that a large number of judicial officers' associations have taken active interest in the survey and have enriched the findings reflect the dominant faith of the judiciary in the principle of reform through training.
A brief summary of the propositions which reflect judicial thinking on the subject and which are adopted in formulating the recommendations of the report in subsequent chapters is reproduced below :
(i) There is a felt need for judicial education and training at all levels of the judicial hierarchy. What is obtaining at present is thoroughly unsatisfactory both in contents and methods. The objects have to be clear, the methods have to be scientific, inter-active and participatory, the faculty ought to be carefully chosen, trained and retained for longer periods and a system of evaluation of learning needs to be developed through objective, transparent criteria.
(ii) Realising the imperative need and critical importance of training in shaping judicial behaviour, the scheme should be given the priority it deserves through a variety of norms, standards and procedures. The object is to convey the message to the judicial officers that their career advancement will be regulated by the performances at the training and conduct afterwards. Those whose performance in training is unsatisfactory will have to repeat the training course at great risk to the service benefits. Only by motivating the officers and by giving attention to augmenting the strengths and removing the weaknesses through individualised training, can the system expect to impact in the desired directions.
(iii) Judicial education is to be conceived differently from judicial training though they have the same goals, but different objects. Clarity in articulating the objects of different types of courses will help improve the methods adopted in training and in maximising the benefits to the trainees. This is where educational psychology, principles of adult learning and inter-play of interactive, participatory methods contribute to the evolution of scientifically organized training schemes. Training, after all, is influencing behaviour of an individual and it is a complex process of motivation, building up on existing knowledges, imparting varied skills and techniques and suggesting alternative approaches in problem solving and management.

(iv) Induction courses of one year's duration at the basic level (ie. Munsiffs and Magistrates and perhaps of six month's duration at higher levels ie., Civil Judges and District Judges) and Refresher Courses of duration varying between one week to six weeks depending upon the nature of the subject of training are recommended in the proposed academies. Besides short-term, week-end seminars, workshops and conferences are recommended for orientation and sensitization purposes on themes found to be appropriate from time to time by higher judiciary.
(v) In Induction Courses there are serious problems arising out of the uneven and sometimes extremely inadequate knowledge, language skills and motivation levels of the trainees. If the recruitment process is not tightened to ensure that only persons with the expected minimum standards alone get selected, there has to be remedial courses organized for the weaker candidates at great expense and possibly greater inconvenience to the system itself. This is a matter which the High Courts will have to address if the new training initiative has to achieve maximum results.
(vi) Training at periodic intervals aimed at updating knowledge, imparting specialized skills and equipping to take higher judicial responsibilities is necessary in judiciary more than ever before. However, if they are not carefully planned and competently executed, they would not yield the desired results. Today there is very little happening in existing institutions in this direction.
(vii) There is need for a judicial academy in the jurisdiction of each High Court for one or more States. Equally, there should be a national academy with specialised functions such as curriculum development, training the trainers, standardising training methods, materials and evaluation techniques, evolving norms and themes for short-term refresher courses and long-term distance education training, co-ordinating common tasks of State level academies etc. The reaction to the proposal for four regional training institutions was mixed. Many felt it to be unnecessary at least at the present moment.
(viii) There was general support to the proposal to give independent status and autonomy to the judicial academies. The Governing Board should be presided by the Chief Justice himself and should have representation not only from the judiciary but also the academia, government and other stake holders. The organizational status can be that of a society registered under the Society's Registration Act on the model of the National Judicial Academy, Bhopal, as it would give the necessary flexibility and status to perform its tasks responsibly.
(ix) The Faculty of judicial academies should consist of a core permanent group which represents relevant disciplines including Law and a large visiting/guest teachers invited from judiciary, practising profession and technical experts from other disciplines. Naturally, the majority of teachers/trainers should come from the judiciary; however, they should be carefully chosen based on knowledge, reputation, ability to communicate and aptitude to train. The Faculty should be paid as well as High Court Judges or Senior Professors of IITs or IIMs. If they have not been teaching earlier, they should be given an orientation training before giving training responsibilities in the Academy.
(x) Every respondent to the questionnaire insisted on detailed and insightful training on the use of computers in judicial work. They felt that as much time required for the purpose should be found in the training period for this purpose.
(xi) Induction training for fresh recruits and refresher courses for officers in service will form the major activity of the judicial academies. However, they should undertake research on current problems facing the judiciary and expose the officers to the causes and concerns for the ills of judicial administration. In this regard judicial academies should build networks with other institutions of higher learning within the country and outside.
(xii) It will be desirable for the academies to evolve and conduct appropriate courses for the staff of the judicial establishment with a view to increase efficiency and productivity.
(xiii) On the content of the training courses, there were lots of useful suggestions. There is agreement that it should not be repeating law subjects studied in the college though procedural subjects require a more detailed functional analysis during training. Imparting skills of judicial work and inculcating values of the judicial system should occupy more time and space in the curriculum. The approach should be inter-disciplinary and reflecting the working environment the officer experiences in the court setting. In this regard, training the future trainers should be the first priority.
The curriculum should have a core absolute content and a variable, need-based content which must be constantly revised on the basis of experiences gained during training exercises. There should be a balance between theory-based courses and skill-based components of training.
The proposal to have six months initial training followed by three months' field study, followed again by another three months' round-up learning in the academy (for induction training) is generally welcomed by most people.
(xiv) The Academies can borrow many organizing strategies from the L.B.S. Academy of Administration for civil services at Mussorie. Judicial Academies should aim at higher and higher levels of excellence in education and training with a potential to be declared Universities in course of time. There should be performance audit internally and by external experts from time to time.
(xv) While there is large agreement on organized, scientific and purposeful training for the new recruits to different judicial cadres in the subordinate judiciary, there is not much consensus on how to go about training the officers who are already part of the system. Use of crash courses, distance education techniques and selective introduction of institutionalised programmes have been suggested. The point that this problem requires special attention and possibly special type of courses was well-taken.
Based on the above perspectives, comments and suggestions of the judicial fraternity, the next few chapters have given some shape to the organization of the academies, the development of the courses and the adoption of suitable strategies for optimum levels of achievement of goals of judicial training.











13.8 DEVELOPING A CURRICULUM FOR JUDICIAL
EDUCATION AND TRAINING
13.8.1 Based on the curricula of the existing training programmes in some States and on the recommendations of the Law Commission of India, the working paper circulated with the Questionnaire did propose a broad scheme of the curricular structure for induction training of judicial officers at the primary level. While the responses received were generally supportive of the proposal, there were some insightful comments on inclusion and exclusion of certain papers or modules in such papers. In this chapter the curriculum is further revised on the basis of comments received and in the light of the near consensus reached in the National Level Consultative Committee where the subjects were thoroughly discussed and further clarified and recommended by pedagogic techniques.
13.8.2 It is worth clarifying the function of a curriculum in a training setting of responsible officers who have had basic education in law and some exposure to the system of administration of justice. It must give them additional learning relevant to the work situation and should not be blind repetition of the courses studied (even if not properly) in the law college. The objects of studying each additional units of learning must be justified in the curriculum statement as that would give them directions for self-study and to choose materials for themselves. The objects preferably must separately give the knowledge content and the skills content of the prescribed course/module. As the demand on judicial capabilities changes, the curriculum planning should be a continuous process of revision and reform preferably in consultation with officers being trained. This means that the curriculum presented is just for the initial year only and must undergo close scrutiny by the trainers and experts at the end of each year. It is important that this process is made compulsory in every training academy lest the content should become obsolete and irrelevant to the changing needs and demands.
In this regard, it is also important to distinguish the goals from the objects of training. Goals are acquisition of greater efficiency and improved quality of administration of justice. This is the cumulative result of a variety of factors in the judicial establishment including training. On the other hand, objects are related to a specific course/module in a given set of environment and circumstances and with reference to the particular category of officers undergoing training. Specifying objects with clarity is not an easy task. This comes with experience both in judicial administration and in judicial training. This is where the trainers require training and continued interaction with the players in the judicial, educational, behavioural and management spheres. In fact, the objects determine the pedagogic methods to be employed and the study materials and examination system to be adopted. If objects are clearly articulated and communicated, the success of the course is partly assured.
13.8.3 In the context of the above and based on lessons from the field of adult learning and educational psychology, the trainers will have to develop their own skills and strategies. Judges are, of course, the best persons to train other judges; but if they were to do so effectively they themselves have to assimilate developments in educational psychology and learn pedagogic skills appropriate to adult learning. This is why it is said that all judges, however experienced, cannot become effective trainers and the academies will be well advised to make careful selection of their faculty based on carefully chosen criteria including demonstrated aptitude for teaching/learning.
13.8.4 No training can be successful if there is no guarantee of some minimum levels of knowledge on the part of the trainees. Minor gaps and deficiencies on the part of some individuals can be sorted out by remedial coaching; but if the basic minimum as expected in the recruitment rules are lacking and the language skills are weak, the training can run into problems. Today, according to experience collected, there are recruits who are extremely weak in their understanding of legal procedures and evidence and who cannot communicate effectively in any language, much less in English. This explains the disappointing impact of training in shaping judicial conduct and the reasons why training is taken in some cases as a mere formality both by the trainees and even by some trainers. A sense of helplessness leads to compromises thereby devaluing training itself.
To resolve this problem, two alternatives were proposed in the questionnaire both of which seem to have not found favour with the judges. The first option was a short-term rigorous pre-selection education for weaker candidates at the instance of the High Court by some law teaching institutions. The other option was to give remedial coaching after provisional selection in the academy with extended period of training. The respondents were of the view that both these approaches will result in discrimination and consequent complexes in the officers. Their solution is that under no circumstance shall candidates who do not have the expected levels of legal knowledge and language skills should ever be recruited even if there are reserved vacancies to be left unfilled. While it is a problem for the respective High Courts and Governments to resolve, today it does pose insurmountable problems to training institutions.
13.8.5 There is unanimity in the view that the training curriculum should carry a heavy well-thought-out segment of hands-on training in judicial work (placement with a senior judge) and a fairly thorough programme of computer education. Both these suggestions are well taken and have to be reflected in the curriculum evolved. There is a large body of support in keeping placement training between the two segments of institutional training; the first six months mainly to update knowledge of laws and related subjects and to prepare for placement and the last two months to clarify field experiences, imbibe judicial ethics, learn management of judicial administration and to polish the acquired capacities in conduct of trial and in writing of judgments.
13.8.6 Broad themes of the Curriculum for Induction Training :
The scheme of education and training for newly recruited officers (munsiffs/magistrates) spread over a period of one year will have six major themes around which several specific courses (subjects) will be organized. The six broad themes are :
Major Themes around which courses are structured for Induction Training of all categories of Judicial Officers :
(i) Law, Society and Justice;
(ii) Rule of Law, Judicial Process and Constitutional Government;
(iii) Procedural Laws and Administration of Justice;
(iv) Technology, Modernisation and Management of Change;
(v) Judicial Ethics and Accountability;
(vi) Select Problems in Society and Role of Judiciary in the Context of Development.
The six themes are not of uniform value or weightage. Obviously, about half the time and attention of the entire course has to be assigned to the third theme, namely, Procedural Laws and Administration of Justice. As such, the number of subjects around that theme are more as compared to all other themes many of which can be taught in just one or two subject titles.
The subjects listed below around the six major themes of study carry in terms of number of credits the recommended weightages for each subject/course in the total curriculum. Local adjustments are possible within the over-all curriculum. After all, the writing out of the Teaching Plans including the drafting of the syllabus, reading materials, examination scheme and teaching methods for each subject is the responsibility of individual teachers in charge of training in each training institution. The design that is so developed by individual trainers in different subjects is always to be reviewed and revised before every new training scheme is launched. Curriculum planning and development is, after all, a continuing process and in the context of developments in Law and Society, the syllabus of a training institution can never be the same for more than a year. Based on the experiences of a training scheme just concluded and on the changed demands for training, a conscientious trainer will revise the curriculum for the entire course and the syllabus for each subject before embarking on another scheme of training. Therefore the scheme proposed here can only be taken as tentative and recommendatory in character to be constantly improved upon every year based on needs and experiences.
It is also to be remembered that the curriculum proposed here covers only the taught portion of the training in the Academy and does not include the practical learning component of the training based on field placement. It is important to evolve such strategies wherein the field placement gets integrated with class room learning in such a way that the two reinforce each other giving the trainee the requisite knowledge and skills coupled with the confidence and professionalism necessary for judicial officers. The strategy proposed in this regard is to have an initial Academy-based teaching for six months, a well-organized field placement for four months and a winding up programme in the Academy for the last two months.









Break-up of Subject Titles organizing the Curriculum around the six major Themes
Sl. No.
THEMES
SUBJECTS / COURSES
WEIGHTAGE / CREDITS



(Assuming Total Credits for the entire training is 100 of which 50% is available for taught courses in the Academy and 50% for field training).
1.
LAW, SOCIETY AND JUSTICE
a) Law and Social Justice
Three (3)
b) Law, Political Economy and Development.
Three (3)
2.
RULE OF LAW, JUDICIAL PROCESS CONSTITUTIONAL AND GOVERNMENT
a) Principles of Legislation, Interpretation of statutes and scope of Judicial Review.
Three (3)
b) Judicial Process : Role and Functions of a Judge in Adversarial Adjudication.
Two(2)
3.
PROCEDURAL LAWS AND ADMINISTRATION OF JUSTICE
a) Civil Proceedings : C.P.C., Minor Acts, Rules of Court and Evidence.
Six (6)
b) Criminal Proceedings : Cr.P.C., Special Laws, Rules of Court and Evidence.
Six (6)
c) Special Jurisdictions and Tribunals.
Three (3)
d) Judgment Writing, Contempt Powers and Management of Trials.
Three (3)
e) Legal Aid, Alternate Dispute Resolution Methods and Court Administration.
Six (6)
4.
5.
TECHNOLOGY, MODERNISATION AND MANAGEMENT OF CHANGE
a) Computer use in Legal Research and Judicial work.
Three (3)
b) Judicial Management of Technology for Efficiency and Productivity.
Three (3)
JUDICIAL ETHICS AND ACCOUNTABILITY
a) Code of Conduct and its Enforcement.
Two (2)
b) Judicial Supervision and Accountability.
Two (2)
6.
SELECT PROBLEMS IN SOCIETY AND
ROLE OF JUDICIARY
IN THE CONTEXT OF DEVELOPMENT
Series of Seminars and Projects around selected Problems.
Five (5)

TOTAL :
Fifty (50)
13.8.6(1) Law, Society and Justice :
Being a law graduate, every trainee would have some perspective of the role of law in society and the potential of law as an instrument of social justice and development. However, it is unlikely that he had occasion to appreciate the role of law in directing change, regulating economic forces and apportioning the fruits of development. The changes which basic legal concepts like property, contracts, torts, crime, family have undergone while interacting with economic and social policies need to be studied in context to give the young judge the macro-level understanding of the office he is to occupy. It is not just settlement of some disputes but, in the process, he is structuring a just social order where disputes are avoided as far as possible.
The 54th Report of the Law Commission wanted judicial officers to develop a healthy understanding of certain social science subjects (Economics, Political Science, History, Sociology, Psychology) in relation to law and legal policies.
The new Five Year Integrated LL.B. Course is supposed to give the above insights to the new generation of lawyers as the curriculum does teach the above subjects. But the social sciences learning is elementary and the integrated analysis with law, if at all instructed as expected, could only open up the curiosity of the law student. In judicial education it can be taken further with a view to project the functional interaction between law and society. How much of it to be imparted in initial judicial education and in what form depends on the assessment of the training needs by the trainers in specific contexts. Nevertheless, the following two courses appear to be necessary :
13.8.6(1) (a) Law and Social Justice :
The object of this course can be to give a critical understanding of Indian society as it evolved through several centuries and how it influenced the shaping of law and legal institutions. It is to be a blend of history, sociology, culture and economics. In short it is to be a socio-economic history of legal system. How justice is perceived and administered at different times? How Common Law and customary law impacted the shape of events? What were the factors which united the society during the Freedom Movement? In all these how lawyers and judges advanced one set of values as distinguished from another and with what techniques? The lessons of history and culture in legal discourses can give meaningful suggestions to the young officer for being a conscientious player in legal development as well as social development through law.
The content of the course could include perceptions and practices in law making and delivery of justice during the colonial period, the implications of non-separation of judiciary from executive, the evolution of the concept of independence of judiciary, the crystallization of the role of the legal profession, the attempts at constitutional reforms during the colonial regime, the values of the Independence Movement and their reflections in legal battles, the Constitution making process vis-à-vis judicial process as projected in the Constituent Assembly debates etc. It could also include case studies of legislative, executive and judicial attempts in delivery of social justice (like untouchability offences, land reform, labour law, child justice, gender justice etc.).
The methods of teaching the course include lecture-discussion (25 per cent), individual/group projects or syndicate studies on research and reporting through seminars (25 per cent), field visits and workshops (25 per cent) and written examination with inter-disciplinary questions on law-society relationships (25 per cent).
The topics of case studies and projects will keep changing year after year with a mix of old and new problems/issues where legal initiatives have succeeded/failed in delivery of social justice. The thrust here is more on social development through law and the role of legal institutions/instruments in social engineering in order to appreciate the limits and limitations of the judicial process. It may also help to appreciate techniques of conflict management in society and the need for law to be responsive and pro-active in the dispute resolution process.
The process of learning here is deductive (reasoning from observed facts) rather than inductive (logical reasoning from a general law). It is experience rather than logic and black letter law. The young officer will learn the distinction between proof in law and proof in social sciences. It would enable him to understand the complexity of social reality even while facts and evidence are presented in isolated fashion in court proceedings. He would begin appreciating the impact of judicial decisions in society and the need to appreciate the reasons for disillusionment with law and legal processes.
13.8.6(1) (b) Law, Political Economy and Development :
This is the second course in the Law, Society and Justice Unit of the judicial training curriculum. While the first course emphasised the socio-cultural dimensions of law and administration, this course would focus on the political and economic dimensions of law in society. Every subordinate judge is now increasingly called upon to administer justice around issues which pertain to economic relationships and distributive justice. With the law of contracts and torts assuming critical importance in the new economic regime, judges can potentially do a great deal to advance the cause of justice in complex market relationships. This requires understanding of the elements of political economy, the relationship between the State and the Market and the role of Human Rights in disciplining unequal and unfair deals. Given the prospects of ambiguous policies in legislation in the market regime, the trial judges may have to be creative in their choice of remedies and activist in resolution of disputes keeping the intention of legislature and needs of society in mind. This is a matter of value orientation, judicial balancing of competing interests and capacity to appreciate complex economic transactions through market practices. The young judge cannot be expected to have this perspective and analytical skill which a course like the one proposed should give him at the induction stage itself.
Giving the example of revolutionary changes taking place in the concept and status of 'property' in modern societies, the Law Commission (54th Report) had canvassed broad-based social science education to judges. Law and Development was an independent course which the Gajendragadkar Commission wanted in judicial training. Sociology of Law was recommended by the Desai Commission. Today administration of justice is indeed difficult without an understanding of the complex role law is playing in development and social change. With economic liberalisation and globalisation and in the context of a dominant role for the World Trade Organization in resolution of economic disputes, national legal systems have to play a pro-active and creative role in structuring legal remedies for economic development and social justice. Any discerning observer can appreciate this new role in the emerging areas of law such as intellectual property law, natural resources law, energy law, environment law, laws regarding financial markets and international trade, consumer protection law etc. No law college anywhere in the country ever taught these laws so far. Nor is it likely that the younger generation of lawyers have had occasion to practice in these areas. At the same time no one can deny the fact that trial judges in future will be increasingly involved in these matters for which the jurisprudence and tools of the past are inadequate instruments. Hence the need for providing a foundation on economic laws including economic offences in the context of India's economy getting integrated with the world economy.
This course again will depend on non-law subjects and materials mainly from economics to develop its content and concerns.
13.8.6(2) Rule of Law, Judicial Process and Constitutional Government :
Constitutional governance under rule of law demands from the judiciary exacting standards of judicial behaviour for which the judges have to be trained both in skills and attitudes. The culture of human rights and a healthy suspicion in respect of exercise of public power by State and its agencies are indispensable attributes of judicial mind. While making independent judgment, judges have to strive for certainty in law and reasonableness in its application. In short, the tasks of a judge in a constitutional democracy governed by rule of law and human rights are indeed challenging and formidable. More than knowledge of law what is required is impeccable integrity and a cultivated discipline conducive to restrained conduct and dignified behaviour. While this is the product of learning and socialisation with judicial fraternity its elements can be imbibed in training. Towards this end, the following two courses are recommended

13.8.6(2) (a) Principles of Legislation, Interpretation of Statutes and Scope of Judicial Review :
Rule of law requires judges to understand and respect the intention of the legislature while interpreting statutes. A law cannot be understood except in terms of its purpose, the mischief intended to be avoided and the goals expected to be advanced. In gathering this information, every judge inevitably is drawn into policy debates, history of the legislation, diverse view points in society and the limitations of law in social control ordering. Statutes are after all, collection of words and phrases, most of which are amenable to diverse interpretations. The science of legislation (principal and subordinate; supreme and delegated) and the art of legislative drafting conceals an agenda of social engineering which judges have to unfathom through known principles and procedures. These principles are not uniform in respect of all legislations. The extent to which the principles can be used in understanding the law also varies depending upon the issues in question and how far they are obvious in the words and phrases of the statute. Certain rules of interpretation have been developed in Common Law and incorporated in judicial practice all over the world. Even though trial judges are not always confronted with these issues in their daily functions, yet it is important that they are aware of them and how and where they can involve them in judicial work.
Equally important is the controversial yet significant function of judicial review of administrative action and legislation. The principle that every law and executive action should be in conformity with the Basic Law - the Constitution - is part of Indian jurisprudence and perhaps a basic feature of Indian Constitution. The judicial power involved in judicial review is sensitive and is exercised by the High Courts and the Supreme Court. It is a technique for protecting Fundamental Rights against State action maintaining rule of law through avoidance of arbitrariness in Government. While exercising judicial review, courts are likely to deal with policies and inevitably declare the constitutionality of actions of the other two wings of Government. In this process frictions arise and judicial power gets increasingly challenged. It is to the credit of India's democracy that judiciary had its way in working out the constitutional scheme through checks and balances. In doing so, the role of the judiciary has become crucial and delicate. Every member of the judicial establishment even if not exercising judicial review, ought to realise the nature and significance of this doctrine, the manner of its exercise in the Indian context and the responsibilities it imposes on judiciary as a whole. As such, this subject should form a component of the course designed to acquaint the trainee to the larger role of judiciary in democratic governance.
There are interesting discourses on all three aspects in several judgments of Indian and foreign courts which may be imaginatively edited and presented for teaching and discussion. A purely theoretical approach with text book materials is inadequate for the purpose of attaining the objects intended to be achieved by teaching the subject. It is important that the trainees understand the undemocratic nature of judicial process and the need for care and caution in the application of judicial review against democratic decision-making processes. This is a task indeed far more challenging than any other judicial function in a democracy. Judicial restraint and judicial activism will have to be understood in proper context lest the judge should fall in the trap of either obstructing policy or enunciating policy both of which do not bring credit to the judiciary.
13.8.6(2)(b) Judicial Process : Role of a Judge in Adversarial Adjudication
Understanding the nature, scope and limitations of the judicial process is part of the training of a judge. Judicial process in an adversarial setting structured by written rules of procedure and evidence pre-supposes a fair, independent judge endowed with a lot of patience and common sense even during trying circumstances. There are different actors playing different roles in the court and the judge is supposed to regulate the show according to the rules of the game. In the process he is to be not only fair and impartial, but seen to be so by the parties whose lives and liberties are at stake. There are active and activist judges as there are restrained and passive judges. Judicial methods are varied and complex accommodating judges of all types and providing dynamism to the judicial process without compromising the integrity of the process itself. Thus, by understanding judicial process, both in theory and practice, the trainee will learn the elements which go in the making of a good judge. This subject should aim to give the trainee maximum of knowledge and skills, attitudes and approaches which can be a resource in judging. Biographical notes of judges can be useful material for study and reflection.
Judicial discretion is a source of judicial power which can add dignity and authority to the court while serving the cause of justice. At the same time, improper use of discretionary powers can undermine the integrity and respect attached to judicial office without which judges cannot function effectively. It is therefore important that this course gives instruction on the use and abuse of judicial discretion particularly in relation to dealing with interim applications and orders. Preparation for hearing of a case can help a great deal in court during trial.
Managing examination and cross-examination of witnesses in a professional manner is both an art and a science which can be cultivated by a conscientious judge. To be a master of the proceedings in court, the judge ought to know when to intervene and when not, where to stop the lawyer and how to achieve intended results without jeopardising the reputation for fairness and avoiding conflicts with arguing counsel.
There are differing views on whether a judge is to be only an umpire or can assume the role of an active player in adversarial trial proceedings. The law seems to provide scope for both the roles within parameters (see for example Order X CPC, 313 CrPC, examination of court witnesses). To be able to learn and practice such roles, the trainee judge has to study a whole lot of theory of judicial roles and interrogate assumptions and strategies in diverse circumstances. While this course will provide the occasion for such an exercise, he should be able to put to test such knowledges while on placement training as an understudy with experienced judges. In short, the teaching of this subject is partly in the classroom setting and partly in the field situation.
13.8.6(3) Procedural Laws and Administration of Justice :
This theme comprises the core topics usually given in all judicial training programmes. In many training programmes they form the total content of the course excepting, of course, the field-based apprenticeship training. What is recommended here is a radically different approach in the teaching of procedural laws and their organization and integration in the total curriculum for training. The lecture-discussion type of teaching of topics straight away lifted from the C.P.C., Cr.P.C. and Evidence Act do not convey anything more than what the trainee already got either from the law college or from the profession or from both. As such, a good trainer might consider giving a functional and integrated design in the entire teaching of procedural laws. There can be many models for such a design and each one has its own plus and minus points. For example, one may adopt a style of teaching the entire criminal procedure and evidence by taking the trainees through a step-by-step journey from occurrence of crime in society to its final disposition in courts taking, wherever necessary, bye-lanes and diversions to explain the course of different criminal cases in different situations. The pre-trial processes, trial and appellate procedures, interlocutory stages, constitutional court interventions, administrative and supervisory interventions, impact of actions of extra-legal authorities etc. can all be presented in vivid detail to the best advantage of every trainee judge who is already informed of the basic rules.
The theme around Procedural Laws which constitute 50 per cent of the total taught subjects in the Academy (25 credits) can be organized in five different courses such as Civil Proceedings, Criminal Proceedings, Special Jurisdictions, Judgement Writing and Court Craft, Legal Aid and ADR. The content and scope of these five courses under the rubric "Procedural Laws" are explained below :

13.8.6(3) (a) Civil Proceedings :
The course should give an over view of the judicial system with special focus on civil courts, their structure, jurisdiction and functions. Naturally it is necessary to expose the trainee to various types of disputes ordinarily reaching the civil judicature and the laws (contract, tort, family law, property law etc.) governing them. Of course, the style of treatment of substantive laws will be different in view of their knowledge of these laws.
The second module relates to a number of procedural issues whereby the filing and admission of suits are controlled by the Court Fees Act, Suits Valuation Act, Stamp Act, Limitation Act, Specific Relief Act etc. Discussion on different type of suits seeking different kinds of reliefs will enable the trainees to get acquainted with the nature of work he is likely to be confronted with immediately on assuming office.
Management of pre-trial procedures should receive adequate attention. Examination of parties and pleadings and framing of issues are important tasks where knowledge and skills have to be developed by case studies and practice exercises. Emphasis shall be made for prevention of misuse of discretionary powers, particularly in granting ex-parte interim orders. Broad principles of law of evidence on problems which may arise during a trial. Relying on rules and principles available in CPC which allow an activist Judge to become a "settlement judge" too. Use of Commissions in gathering evidence, resolving questions of relevance and admissibility, and appreciation of evidence applying principle of preponderance of probabilities call for deep study and reflection with reference to specific fact situations. Case files containing recorded evidence should be used to train these aspects of judicial matters.
There are occasions which demand interpretation of contracts and statutes for which the judge should be trained so that established norms and practices are not deviated from when dealing with such issues. Issues on evidence and proof in civil proceedings are too many and are varied. The trainer should be able to select such materials from actual practice which are capable of showing the trainee the consequences of alternative courses of action in given fact situations. A mechanical, status-quoist approach is unwelcome; at the same time, a radical, non-conformist approach is also not favoured for trial judges. To the extent the class room can demonstrate how the slightest error of judgment of facts and procedural norms can lead to unforeseen consequences in the outcome of proceedings, the course can be instructive and meaningful to the trainees.
The structure of modules and the methods of teaching the proceedings in a civil court should not be merely statute-based on already known principles and procedures. The question of why those principles are prescribed and how those principles can be dynamic in operation have to be addressed in teaching. Importance of procedure in the judging process has to be appreciated while at the same time realising that procedure, after all, is a tool for finding truth and being fair to both parties to the dispute. The judge should know why criminal proceedings are differently structured as compared to civil or constitutional proceedings. He must also appreciate the rationale behind modifications effected in civil proceedings by special laws to achieve goals which ordinary civil courts are unable to accomplish.
One of the problems in teaching with materials based on past decisions is the tendency to perpetuate the same approaches and methods which may not be conducive to the changed circumstances. While precedents have their value in the system, it can lead to miscarriage of justice as well if the limitations are not appreciated and risks are not taken to break the ice in appropriate cases. As many trial decisions may be final, it is important that the trial judge understands the scope for creative and positive approaches wherever justice demands such cause of action irrespective of precedents to the contrary. It is a challenge to the trainers to inculcate such a spirit in their students.

13.8.6(3) (b) Criminal Proceedings :
The concept of a "fair trial" as expounded by the Cr.P.C. and Evidence Act and as refined by the provisions of the Indian Bill of Rights under the Constitution should form the primary module of this course. This can largely be taught through lecture and discussion with selective study of cases and Law Commission Reports.
Role and responsibilities of the Magistrate at the pre-trial stage during police processes of arrest, bail, remand and discharge deserve to be taught in great detail with the help of relevant statutory provisions and constitutional court decisions. Disposal of cases without trial and procedures to secure the presence of accused should inform the understanding of a judge's function. Framing of charges is another aspect in criminal proceeding which requires special attention in training.
The trial of criminal cases is the most crucial stage in the criminal proceedings with the collection of evidence and appreciation to determine the truth. Speedy disposal of staggering number of pending cases in which the judge should have positive influence, quickening examination and true examination of witnesses. Credibility of oral evidence in various and varied context and circumstances. Avoiding stereo-typed and ancient method of appreciation of evidence. Recent trend of Supreme Court decisions regarding appreciation of evidence in reaching conclusions on controverted facts. Display of learning methods of clinical education now invoked in some law teaching institutions which give the necessary skills through exercises and role plays in simulated conditions.The judicial academy has to make an inventory of clinical teaching methods now in vogue in developed countries and with the help of multi-media support systems introduce programmes which can impart sophisticated skills to their trainees.

Examination of accused under Section 313 of Cr.P.C. Preparing oneself fully with the case before arguments to shorten the lengthy arguments call for particular attention.
Judicious use of the doctrine of giving the benefit of doubt to the accused.
Sentencing constitutes an important function of the criminal court which requires special expertise and skills. Given the increasing irrelevance of conventional sentences and the limited options available, the sentencing judge has to perform a vital social function in a manner that makes criminal justice sustainable. Special focus in this regard should be on socio-economic crimes and atrocities against weaker sections.
There is great wisdom in bringing to the knowledge of the trainee judge little known topics like compounding, victim compensation, legal aid, maintenance, special procedures in dealing with mentally ill persons, awarding of costs etc.
The body of criminal law outside the Indian Penal Code is so vast and complex, that this course may have to develop several modules around some of those special laws focussing mainly on modifications in those laws in respect of procedure, evidence and disposition.
Again, the wide range of issues in forensic science, medical jurisprudence and recent developments in proof ought to receive adequate attention of the trainees.




8.6.3 (c) Special Jurisdictions and Institutions
Tribunalisation is a trend that is popular and pervasive in Indian justice system. While they participate in several ways with ordinary courts, they do differ from them substantially in procedures and dispositions. Administrative Law and Administrative Tribunals should form an important focus of this course, lest the officer should import techniques and approaches abandoned by the legislature into tribunals.
Dealing with children in judicial proceedings should be another module deserving close study and conscious effort to understand. It can include elements of juvenile court proceedings in respect of delinquent children. It must also address issues of rights of children in civil and administrative matters and how they are to be protected by modified procedures and reformed attitudes.
Another special jurisdiction warranting attention in judicial education is that relating to workers in labour and industrial courts. The skills and knowledge required for a presiding officer in a labour court are to be dynamic and informed by a variety of labour rights and economic policies. The procedures are seldom adversarial and assistance of lawyers not always available in such forums. If the presiding officer does not adapt himself to the philosophy of labour adjudication it can be disastrous to the economy and deleterious to industrial peace.
There are specialised judicial institutions now being set up for women. The Family Court is one such example. They are intended to be different from the usual run of civil courts and they have been empowered by statutes to deliver gender justice sometimes through affirmative action unique to such institutions. Special qualifications are often prescribed for presiding officers of these courts and tribunals. Apart from special institutions for women, there is a felt need for gender sensitization of judicial personnel in general to get rid of entrenched gender biases and discriminatory practices. Future judges have to be equipped to deal women's issues with sensitivity and commitment to equality and human dignity.
Finally, there are new jurisdictions being set up to protect the Scheduled Castes from atrocities perpetrated against them and to adjudicate grievances relating to violation of human rights. Special courts including human rights courts are now functioning in different States with vastly increased powers and special responsibilities. It is important that the young entrant to the judiciary is adequately informed of these special jurisdictions and the role they are expected to play in delivery of justice.
13.8.6.3 (d) Court-Craft and Management :
A full course on court-craft and management is warranted in judicial training for the future. Judicial function is no more confined to trial management and few administrative/accounting procedures but has become a complex part of modern governance. The National Judicial College of USA in association with the American Bar Association has brought out an instructive volume called "THE JUDGE'S BOOK" in 1994 which provides a range of topics which should find place in judicial training everywhere. Starting with a discussion on the qualities and life of a judge, the book highlights the essential elements of judging which includes (a) listening; (b) note-taking; (c) decision-making; (d) judicial management; (e) exercising judicial discretion and (f) court room control. The National Judicial Academy is well advised to bring out a comparable volume discussing the skills and attitudes which a judge in India should cultivate in order to be successful in the profession and to endear himself to the community.
No one is born with professional capacities and all the qualities and skills necessary can be cultivated with proper motivation and training. There was a time when people used to assume the role of judging only after becoming mature and experienced with a reputation for wisdom and integrity. Today young law graduates with little or no experience in life and in law get recruited and with few months' training are put on the job. In this context, it is all the more necessary that the trainees are given adequate training inputs to be informed of judicial qualities and skills and motivated to conform to normative standards expected of the profession. Hence the need for a full course on court-craft and judicial management.
To be able to understand one's court as an institution with strengths and weaknesses, the presiding officer has to have qualities of head and heart which any leader of an organization necessarily has to possess. Of course, a court is a unique institution; yet it does involve people and procedures, norms and standards not always compatible with each other. Added to that, the mounting arrears of cases and consequent delay in disposals tend to alienate the public and undermine confidence in the ability of the system to deliver justice. Looked at in this perspective the task of judicial management is far more complex and difficult than ever before.
The process by which an organization attains its organizational goals is what management is all about. Therefore, it is good to start with the goals of justice system in general and trial courts in particular. From this, the trainee can look at the existing methods of docket management, its relation to manpower utilisation, resources distribution, record system etc. The trainee should get a total view of the judicial establishment and a micro-view of each segment of the system. Management of information is an important aspect which must be given attention partly here and mostly in the next theme of technology and modernisation. Time management is another skill which should be learnt. The importance of timely and adequate supervision and monitoring of what happens in and around the court has to be inculcated in every trainee. Man management is another aspect worth reflecting on. Finally management of the actual trial in court requires different skills which need to be cultivated if the judge has to be a good professional person. All these and more can be learnt by appropriate modules in the Academy and later through observation and participation in the company of senior judges.
Court craft involves a bundle of skills and attitudes difficult to be listed exhaustively. Nonetheless, several aspects of the same can be taught by taking the young trainee to the unique environment in which a judge is placed in court and how experienced men react to situations of stress and conflict. Avoidance of gender bias and conveying a picture of integrity and responsiveness are necessary for effective court control. Attentiveness, quick and fair decision-making and firmness are attributes which need to be cultivated. And on each of these, there is theory to be studied and practice to be undertaken. In a plural society like India, the judge has to be sensitive to the interests of minorities and careful about the language in which communications are made.
Finally, judgement writing is an art and a science which should be learnt and perfected to the extent possible. Language and communication skills are essential in this regard. Note taking intelligently in the course of the trial and questions put to counsel during arguments are helpful tips in sharpening the thinking and organizing the thoughts for writing a reasoned judgment. Findings of fact are the essence of the exercise.
Exercise of contempt powers and management of public relations have become important in contemporary times and the judge will be well advised to know the patterns and limits of such aspects. In the course of the proceedings, a trial judge may have to manage a number of other professionals and it will be wise to acquire necessary knowledge about them and their functioning. These include the police and prosecuting departments, the jail and correctional staff, the Bar Councils and the media persons.



13.8.6(3) (e) Legal Aid, A.D.R. and Judicial Administration :
The changes in judicial proceedings brought about by the Legal Services Authority Act, the Arbitration and Conciliation Act and similar local legislations are of considerable significance. Increasingly alternate methods of dispute settlement are being invoked by parties which are to be encouraged and institutionalised by presiding officers of courts. If imaginatively integrated, ADRs can revolutionize administration of justice and help reduce arrears and delay, two major causes for popular dissatisfaction with the system. As such, judicial training should give adequate attention to ADRs and equip the judges to lend their weight on its popular use. Equally, the concept of legal aid cannot be reduced to giving a lawyer to represent the poor. It involves settlement through Lok Adalat, public legal education, public interest litigation, law reform and giving the system a human face. In all these aspects, the judge should have sympathy and understanding to be able to direct better access to the poor and marginalised sections of people.
Judicial administration involves a total knowledge of administrative, budgetting and accounting systems associated with courts on which presiding officers have responsibilities and functions to perform. It includes disciplinary powers over staff and accountability to superior courts. The law relating to service matters has to be acquainted with by the judge. Administration is different from management and the judge should know the distinctions and their implications.
13.8.6(4) Technology, Modernisation and Change :
Two courses of 3 credits each are included under the theme of technology and modernisation. The challenge of the next millenium arises from science and technology. To the extent institutions of governance can absorb and respond to the technological revolution, to that extent, it can do great public good. If they do not, they can as well retard progress and inhibit human and social development. Judiciary is no exception to this emerging truth.
It is distressing to find that judiciary continues to be the one major institution in society untouched by the three revolutions of modern times, namely, technological, communication and management related changes. The most obvious example is the non-use of computers in judicial work. Procedures are archaic and they are made worse by outmoded administrative and management systems. Perhaps a beginning can be made with the training of future judicial officers. Two courses in this regard are recommended at the induction stage.
It is to be noted that the First National Judicial Pay Commission has accepted the recommendations of The Indian Institute of Management, Bangalore for large scale induction of Information Technology in judicial proceedings, its use in managing legal information systems, case flows, and networking.
13.8.6.4 (a) COMPUTERS IN JUDICIAL WORK :
It is not necessary any more to make out a case for the induction of computers and information technology in judiciary and in administration of justice. Substantial time during training in the Academy should be given for familiarity in computer use not just as a word processor but in legal research using the internet and in case and docket management using appropriate softwares. The potential of video technology in expediting trials may be demonstrated so that the trainees are aware of it even if it is impractical in the immediate future.
All project reports in different courses at the training must be prepared by individual trainees in his or her personal computers. This would give them at the end of training period complete confidence in its use and would pursuade them to prefer dictating to the computer rather than using stenographers and intermediaries who are, any way, increasingly becoming scarce in judicial administration.


13.8.6(4) (b) Science and Technology in Judiciary :
Apart from computers and information technology, there are emerging areas where judicial work interfaces with different facets of science and technology which constantly change life on earth. Issues for which there are no precedents and are not susceptible to conventional styles of adjudication are being brought before courts and tribunals for resolution. Intellectual Property disputes, environmental disputes and disputes arising from bio-technology are illustrative of this emerging scenario. It will be suicidal to let future judges assume positions of power without even elementary knowledge on technology and technology-related laws which are increasingly becoming common place in society. Environmental litigation is already very much part of judicial
work and mere knowledge of environmental laws does not help in dispute settlement. Of course, no lawyer or judge can become an expert on these branches of knowledge; what is expected of them is an informed understanding of the impact of science on life and, wherever possible, an ability to become critical consumers of scientific knowledges without which dispensation of justice in certain disputes will be difficult and dangerous.
The law of evidence is likely to undergo radical changes with standardization of new technologies. The judge will be handicapped if he is unable to appreciate the probative value of new standards and concepts of evidence. The entire technology of DNA printing is an accepted method of proof today in contested parentage and similar disputes. Genetics and reproductive technologies are throwing new light on several questions of fact in which ordinary inferences are no more acceptable. It looks as though the 21st century will herald radical changes in our understanding of human behaviour through inventions in biological sciences rather than in social sciences. Naturally, law, concerned with human behaviour, has to mend fences with biology and bio-technology in more significant ways than hitherto before.
There are many more areas of law and medicine which can be suggested as possible candidates for inclusion in the syllabus of this course. Suffice it to say that a progressive training institution will keep its agenda open and continuously upgrade its instruction materials and methods with a view to train what may be called the scientific man with judicial acumen.
13.8.6(5) Judicial Ethics and Accountability :
Two short courses each of 2 credits only are recommended to cover this theme in the training curriculum. Given the fact that complaints against individual judges are increasing and standards of accountability are diluting, it is imperative for judiciary to make an honest effort to put its house in order. The lower courts are institutions in contact with the common people all the time and they administer justice to the vast majority of litigant public. As such, the conduct of judges in subordinate courts is constantly exposed to public scrutiny and assessment. This makes it imperative for trial judges to be more and more professional in their approaches and transparent in their dealings. The code of ethics is not just the Judges' Service Conduct Rules or immunity provisions. It involves goals to which judges have to aspire for, individually and collectively to command public allegiance and judicial majesty.
The method of implementing judicial discipline and correcting erring judges should be fair and known to each and every member of the judiciary. Keeping the ultimate value of independence of judiciary and the need for protecting legitimate rights and privileges of judges, the course should aim at not only inculcating the principles of judicial ethics but also in enhancing the sense of satisfaction of judging which every professional should normally get.
Supervision of subordinate courts is an important task which does not receive today the attention it deserves. It is not necessarily personal supervision which tend to disrupt judicial work and consume lot of time and resources. It is possible through appropriate standards, periodical work auditing procedures, surprise checks, occasional meetings and friendly pursuasion to extract higher productivity and greater efficiency from individual judicial officers. It is important that while entering service and periodically thereafter, judges receive instruction on accountability systems and procedures so that they become catalysts in their professional development. It may not be possible to get accountability through conventional methods of showing displeasure or demonstrative authority for causing harm. It is important that internal mechanisms of correction and discipline are strong in the judiciary. Peer-group justice can be of help, but only to a limited extent in the present circumstances. Prevention is better than cure and this is possible if the problem is always kept in focus in judicial conferences and collective efforts are initiated to correct and reform.
13.8.6(6) Select Problems in Society and Role of Judiciary:
This is an omnibus course which should help to round up the year-long training, relating judicial role to larger issues in society. Though courts are concerned only with disputes brought before it, judges as conscience-keepers of society responsible for justice and rule of law, ought to have a balanced view of events seeking change in established values and practices. Not all problems in society seek legal solutions; those that do, may not find solutions within the strict framework of established law. However, they do come back again and again in different forms and shapes compelling the legal community to respond with new tools and fresh strategies. This is a grey area of jurisprudence in which policy and law get inextricably mixed up challenging the judicial process for solutions.
Courts cannot deny remedies when there is injustice and violation of rights. Compensation for violation of fundamental rights is an example of such judicial response, despite the fact that it is not written into the Constitution and the laws. The history of Common Law is a vivid illustration of judicial initiatives in promoting legal developments.
The prospects of innovative and creative use of law by lower courts becomes clear from Municipal Council, Ratlam vs. Vardhichand1. The Magistrate invoked the powers under section 133 Cr.P.C. and gave directions to the Municipality which were not only upheld but applauded by the Supreme Court. The court added that judicial process is not to be confined to adjudicatory functions but to be adapted to affirmative actions to make remedies effective. Social justice delivery is not merely the duty of superior courts though they do have extensive powers in this regard. Subordinate courts can do a great deal if they are informed, equipped and motivated. This course should provide the technology and educate them of the appropriate use of judicial process outside the strict adjudication function for which the Procedure Codes have endowed them with powers. Ensuring tort consciousness on municipal authorities by reminding them of their statutory functions is a job which lower courts can well attempt. Chapter XIV of the Indian Penal Code deals with public health offences. What often surfaces in courts as nuisance cases are really community problems particularly of the poor and downtrodden. It is in this context the induction training should impart training on how to use judicial power imaginatively and responsibly to the solutions for which they are intended.
The idea of having a course like this is to enable the trainee judges to have a retrospect of judicial history in social and legal developments. It will serve several purposes in training the judicial mind. It will give him an understanding of the positive and negative roles which courts played in the past in shaping human destiny. It will give him a sense of pride in belonging to a profession which is critical in directing and moderating change for public good. It can also educate the young judge about the limits of law and the need for caution and restraint while dealing with larger issues of life and development.



1. AIR 1980 S.C. 1622 .

By its very nature, this course can only be taught as a Seminar in which the topics for research and presentation shall be left to the choice of the trainees themselves. Besides using methods of empirical research, the trainee will struggle to innovate solutions keeping in mind the limitations of the legal and judicial processes. He may have to make ethical decisions and assume value premises in writing reports which reflect the extent of moderation and restraint he might have learnt during the training. In defending his opinion during presentation, he will learn to respect others' views, how to be responsible even when you are critical and how to cultivate intellectual honesty.
The Seminar paper and its defense will provide a useful tool to the trainer to assess the extent of learning and to instruct the person concerned of his strengths and weaknesses as a person and as a judge. Good papers can be polished and published which will encourage judges to think creatively and act responsibly in professional work. Respect for scholarship and motivation to learn and unlearn continuously throughout life have to become part of a conscientious and competent judge.
The Seminar should form the beginning of the continuing education programme of every judge graduating from the judicial academies.
13.8.7 Syllabi, Teaching Plans and Reading Materials
It is tempting for a teacher to prepare the detailed syllabus for each of the fourteen courses in the Induction Training curriculum and impose it uniformly on those assigned to teach those subjects in the Academies. This is precisely what is happening in many centres of higher education today. The result is non-involvement and indifference on the part of teachers actually teaching the subjects who may have different ideas sometimes far superior to those prescribed. It tends to inhibit creativity and innovation. It arrests the growth of curriculum development and tends to maintain items which are out of date. A good and enterprising trainer has to have the freedom to design the syllabus of the subject he teaches and select the materials to be used for teaching/learning and conduct the teaching through methods which he considers appropriate. The broad curricular goals and the subjects to be included in it must be sufficient to give him the intended results to be achieved by training. Similarly the specific objects identified for each subject should convey to him his responsibilities vis-à-vis those subjects in the total scheme of things. Of course, he needs to interact with others teaching other parts of the curriculum to achieve co-ordination and integration. He should subject his course design, teaching plans and study materials for critical scrutiny by the entire faculty and other experts. Once such an exercise is done, it should be left to him to do the best he is capable of in accomplishing the objects of the course in the training programme.
There are ready made syllabii available for all the courses in the literature produced by judicial training academies from around the world. They may be consulted, but not copied blindly. Individual teachers might commit mistakes; it is better that they are corrected by themselves rather than prevent them from venturing this essential step by producing a syllabus authored by somebody outside without his participation. It is therefore expected of teachers in judicial academies to design the syllabii themselves in the light of the objects and scope explained in the earlier paragraphs of this chapter.
Another practice which should be institutionalised in the Academy is to get every teacher prepare a teaching plan at the commencement of each course every year for each subject. The teaching plan should contain (a) an introduction of the subject and its importance; (b) the specific objects to be achieved by studying it in the total training programme in terms of knowledges and skills; (c) the content of the subject to be studied organized into specific modules supported by essential and recommended reading materials for each module; (d) the period of time apportioned for each module; and (e) the method of teaching and assessment proposed. A teacher making such a plan for the whole subject will necessarily has to do his home work well and convey his scheme clearly to the trainees in advance. He will have a responsibility to adhere to the plan as well. Students will know in advance what is in store each week, prepare for each session and can monitor the progress of teaching/learning course-wise. It will help organize the plan of study by each trainee and promote self study for the really enterprising amongst them.
The reading materials may either be put together or referred to with appropriate citations so that the trainees can reach them easily in the Library. The discussions in the class room will be more focussed and analytical. The quality and quantity of learning will be discernibly superior if the teaching plan system is honestly implemented.
If each State Academy were to evolve such syllabii around the six major themes identified for induction training, it could be compared and refined by the National Judicial Academy for consideration of the trainers in the succeeding year.
13.8.8 Practical Training through Field Placement
As per the curriculum proposed here, four months of training for every fresh recruit to judicial service, is to be spent in the field under supervision. At present there is no uniform pattern in this regard. Admittedly, this is the segment which gives the trainee hands on experience which shapes his attitudes, imparts the skills and endows the confidence more than any other component of training. However, to achieve the intended results, the practical training through field placement has to be carefully prepared on an individualised basis and imaginatively implemented under supervision. This involves enormous organizational and monitoring work which demands all the ingenuity and enterprise of the faculty in charge of training.
Since individualised schedule and supervision has to be arranged, it is advisable to have 10 trainees only under each teacher. The teachers involved have to get together and draw up the various components of training which are common to all and those specific items relevant to identified groups of individuals. The pattern followed in the LBS Academy of Administration, Mussorie for training of IAS Probationers can provide some useful tips in the designing of the programme using maximum available resources and opportunities for learning.
It is desirable to identify specific goals of learning while in placement with police department, jail administration, district administration and with senior judges or administrators in the court system. It is important to be selective in identifying the personnel in these departments to whom the trainees are deputed as they can make or mar the programme. They should appreciate the scheme and the goals to be achieved and should be willing to share the responsibilities for instruction and guidance. The placement training scheme for senior students adopted by the National Law School of India, Bangalore may be revealing and instructive in this regard.
Occasional workshops at periodical intervals during the field placement will help to clarify doubts, assess the progress of learning, correct distortions, if any, and strengthen the programme mid-course appropriately. It also helps to integrate field experience with what is learnt in class room and to reflect on the gulf between theory and practice. Further, it enables trainees to learn from each others' experience and to moderate perceptions of law and life. Self-study can be encouraged by workshops and group exercises with limited guidance from the Faculty.
A good strategy for developing successful individualised field placement schedule is to consult the candidate concerned and accommodate his suggestions to the extent possible. Documenting the experiences systematically which are examined by the superior periodically is a good strategy to augment the learning experience.
The final two months of training at the Academy is a crucial period to consolidate and internalise all the learning to which a trainee is exposed both in class room and in the field. The Seminar courses proposed during the period and the projects he writes at that time are bound to be productive and instructive.
A final point recommended here is to consider advising those who do not make the grade to continue in the Academy for another course of training. Perhaps, a fourth of each batch may need to have retraining if the quality is to be controlled and standards are to be improved.






13.9 IN-SERVICE TRAINING AND CONTINUING EDUCATION
Orientation Courses :
13.9.1 Apart from induction training of fresh recruits, there are two other training tasks which judicial academies have to perform. Firstly, a crash programme of orientation and sensitization programmes to the officers already in position at the primary and intermediate cadres has to be mounted with a view to fill up the gaps in their knowledge and skills as envisaged by the new curriculum. These can be attempted by week-end workshops, distance education techniques and special short-term courses focussing on knowledge, skills and attitudes. Computer literacy and management skills can be imparted through appropriate modules in these localised orientation training programmes selectively organized depending on local needs and resources. It is important that these courses are available to everyone of the existing cadres during the next two years or so.
The orientation courses are to be tailored to local needs and, as such, are not amenable to one standardized format. The judicial training institutions should look into the recommended new curriculum for Munsiffs/Magistrates and compare it with the training the existing officers had when they were inducted into service to find out the focus and content of orientation courses. There are instances where officers have been appointed without any substantial training whatsoever. It is necessary to remedy this deficiency as early as possible; otherwise its adverse consequences will be felt for long time in the service. In view of their job experience even though for a limited period, it may be possible to condense the syllabus, collapse the courses, adopt easier training methodologies and avoid field placement training in these orientation programmes. At least part of such training may be given through study materials supplied while at work and occasional seminars held in different districts around such materials. It is desirable, however, to frame appropriate syllabii spelling out the specific objects of each programme and proposing a teaching/study plan to be accomplished within a reasonable time-frame.
The orientation courses may be slowly tapered out over the next few years depending on the progress made in imparting the basic training to everyone of the subordinate judges with less than, say, five years of work experience. Hopefully in about 2 to 5 years depending on the size of the workforce and availability of resources, everyone of the officers in the Munsiff/Magistrate cadre would have received the basic training recommended under the new curriculum.
Continuing Education for Judges :
13.9.2 The in-service training courses for officers with 5 or more years of experience and for senior judges of the District Judiciary may be brought under the scheme of Continuing Education. This is the second important task which judicial academies have to undertake to give the judiciary the competence and quality it badly needs today. There is no profession today which can perform its tasks competently unless the knowledge and skills of its members are continuously upgraded by collective and individual efforts. The explosion in knowledge in recent times has made it impossible for individual practitioners to keep abreast of professional developments by individual efforts alone. The need for multi-disciplinary approaches and skills for rendering superior quality services and to meet the higher demands of consumers of services have made organized, systematic continuing education imperative for lawyers and judges. In many Western countries certain credits in such courses at periodic intervals is a condition precedent for continuing in the practice of the profession. There are institutions imparting such training under professional supervision. In India, there are no such institutions as yet; some refresher courses and seminars are occasionally organized on optional basis which are more in the nature of social get-togethers rather than serious educational exercises. In this context, the task before the Academies is challenging and complex given the ego problems arising out of judicial hierarchies and the absence of any compulsion from the judicial establishment.

Objectives : Short-term and Long-term :
13.9.3 Identifying, articulating, explaining and justifying the short-term and long-term changes that the courses aim to bring about is the first step in developing continuing education programmes. Almost everybody within the judiciary and outside will agree that judges need continuing education for increased efficiency and better sensitivity to changing needs and demands. But unless the needs can be articulated at the micro-level with respect to specific problems, it is not possible to induce change at the organizational or individual level. This is the primary task of every trainer attempting to induce change in desired directions.
How does one determine the desired directions? This is the task of the organization and of legislative/judicial policy planners. For example, expediting judicial proceedings and reducing delays and arrears in the system is a desired goal. This can be achieved by a variety of ways such as changes in the laws and procedures, re-structuring of institutions, eliminating the causes which induce people to seek or cause delays, and training the decision makers and administrators to adopt particular patterns of behaviour promotive of expedition. While the first three are systemic and organizational goals, the last one is the training goal.
The training goals are achieved by a series of sustained efforts on different fronts. Some of them are achievable in the short-term while others can come about incrementally and fully achieved only in the long run. This depends on a variety of environmental factors all of which are not susceptible to control by the change agents like the trainers and administrators. As such, every trainer has to adopt a step-by-step approach in order to ensure success for inducing change through training. As is explained elsewhere in this report, no reform in laws and structures can by themselves achieve the desired goals unless the man operating the system lends his weight towards change. Ultimately, in the justice system also it is the human element which can bring about the desired change to the desired degree. Hence the critical importance of training and re-training of judges on a continuing basis. It is the recognition of this fundamental truth which justifies investment and effort in continuing education of judicial personnel.
Assessing Learner Needs :
If elimination of delay is the goal and behavioural and attitudinal changes in judicial officers are instrumental for the same, the trainer will have to identify why judges behave as they do and what can motivate them to behave differently and how. This is what is called assessment of learner needs. What information and what type of skills can help the learners learn most within available time and resources? A needs assessment should always be the first step in any educational planning. In most training programmes, the needs assessment exercise is a combination of two factors, namely, (a) learners' expectations from the training and (b) the trainers' assumptions on what the learner should gain from the training.
There are several ways in which the above two factors can be addressed in order to get a clear picture of learner needs. The trainers' own personal experience with similar activities would help to identify some real or perceived needs. Informal conversations with the learner group or a survey through questionnaires or interviews with learners in advance of developing the course is an appropriate strategy to gather or verify learner needs. The trainer can seek feedback from specialists within the judiciary or outside which can form a great resource in identification of learner needs. Past evaluations of training programmes are also instructive in this regard. Of course, the judicial policies and organizational goals which Chief Justices' Conferences or judicial officers' association meetings or law commission recommendations might have articulated, could give ideas on the need expectations of the system from the learners (judges).

Developing Learning Objectives :
13.9.4 Armed with information on learner needs, the next step for the trainer to take is to write out what he expects the learner to achieve from the training. What information he should get, how much of it he is to retain, what type of skills he should acquire, what existing practices or attitudes he should give up etc. must be spelt out and explained while writing out the learning objectives. Though preparing learning objectives is essential for all systems of education, in the case of adults involved in continuing education, such a step is essential if the training has to have any impact on them.
Unfortunately some of the training courses which attempt this strategy have confused system goals with learning objectives. Statement of goals which the judicial system should aspire for is not statement of learning objectives. Therefore, merely saying that the course is intended to upgrade knowledge or improve skills is not a statement of learning objectives. They are more of the nature of goals rather than specific targets aimed at in a 3 or 5 day continuing education course. Merely stating that the course aims at "Gender Sensitization" or "Sentencing Practices" etc. is also not conveying learning objectives. Learning objectives are the reactions and responses which the trainer expects from the learners. These responses can be of different kinds and at different levels all of which should be clarified in the statement of objectives. For example, if information-giving is an objective of the course, the statement should clarify whether it is intended to enlarge knowledge in particular areas, enhance understanding and comprehension of specific tasks, ensure long-term retention etc. The idea is to explain to the learner the significance of the information imparted and to convey to him as to what cognitive level of learning it is aiming at. Newspaper reading also gives information; but we seldom retain all that we read. In adult education, information intended for application and comprehension will have to be organized in such manner as to enable retention and repeated recall. Hence the need for stipulating the cognitive level of learning in clarifying objectives when information giving is an objective.
13.9.5 Similarly, another type of learning objective is change of attitudes which operates at the affective level of learning. It is a more challenging task in training. Attitude is a state of mind which reflects the value disposition and degree of commitment of the learner. In adult education, there are techniques available to influence these aspects of the character of the learner. Depending on learning objectives, they may be employed in pedagogy and motivation. They have to be identified and explained as objectives of the proposed training.
13.9.6 A third type of learning objective is at the level of behaviour. Ultimately every training expects behavioural change for which the trainer has to know the trainees, understand the milieu in which they operate and develop programmes in such a way as to strengthen the performance by playing on emotional and environmental factors. The statement of objectives should convey to the learner what behavioural changes are expected at the end of the training.
The stipulation of learning objectives should naturally evolve out of the learners' needs assessment. The objectives should be written out with clarity and specificity so that every learner understands what is offered and what it aims at. This will also help in evaluating the progress of learning and to adopt the training accordingly.
It is recommended that in the statement of objectives, the trainer avoids the use of terms such as "understand", "know" which are expressions difficult to verify or evaluate. On the other hand, if the statement of objectives were to say - "As a consequence of learning this module of the course, the learner will be able to conduct (verify, revise, negotiate, mediate, analyze, list, solve, construct, demonstrate, decide etc. etc.) sentence hearing in the spirit of the statutory parameters" - it is possible to measure learning and improve training strategies.
13.9.7 The National Judicial College, USA came out with a useful Practical Guide for Effective Presentation Strategies for Judicial Educators. It is an excellent summary of some preparatory steps which trainers have to undertake to maximise the usefulness and impact of training programmes. In writing this chapter of the report, consultation with the above publication has been useful and is acknowledged. (Alayne Casteel and Gordon I. Zimmerman, Faculty Course Development Guide, Reno, Nevada, 1997).
The above publication gives a checklist to assist the development of learning objectives. It includes :
(a) Are the objectives relevant to learner needs?
(b) Are the objectives consistent with the expertise of the instructor or instructors available in the institution?
(c) Are they stated in behavioural terms? i.e. in terms of what the learner should be able to do at the end of training or at the end of learning particular modules of the course?
(d) Are the objectives written in clear, unambigous and understandable language so that every learner, whatever his background, understands the same thing in the same sense?
(e) Are the objectives achievable (entirely or predominantly) given the available resources and support services, programme duration, size of the group etc.?
(f) Are the objectives stated in such a manner as to enable evaluation of learning outcomes?
It seems wherever trainers in Academies undertake so much of preparatory work in developing their programmes, it is bound to make a difference in the quality of training given and the impact it is likely to achieve in terms of training objectives.
Preparing Course Content and Structure :
13.9.8 In continuing education, generally, curriculum for induction training has to be excluded. It is, however, not possible to give uniform course content and structure for this type of training. But for promoted Civil Judges (Sr. Divn.) and District & Sessions Judges, the subjects which are relevant in their day-to-day administration of justice, must be identified. It may be stated that the coverage of all topics uniformly at the training in continuing education is not always necessary. Some topics may require more time and attention, while others can be left for self study and quick review. What is important is to accommodate some amount of flexibility in time and coverage, keeping the priority of the subjects appropriate to the needs of the Officers participating in a particular course. This course will have to be selected by the Academy concerned. However, we may broadly indicate the subjects, such as :
1. Law relating to Land Acquisition
i) Scope of enquiry
a) In reference regarding valuation
b) In reference regarding title.
ii) Principles governing award of compensation.
2. Principles to be followed in awarding compensation in Motor Vehicle Accident Claims and Liability of Insurer - Extent of such liability.
3. Appellate Court Powers
a) Civil Appeals
b) Criminal Appeals
4. Art of writing Judgement in an appeal.
5. Updating knowledge of case law.
6. Sessions Trials:
i) Appreciation of evidence
ii) Statutory presumptions in
a) Rape trials and problems in equal justice
b) Dowry death cases
c) Cases under Prevention of Corruption Act.
7. Law relating to Infringement of Trade Mark / Copy right - Passing of actions, etc.,
8. Technique on conciliation in the Marriage Disputes in Family Courts.
9. Gender Justice:
i) Women Equality and Law
ii) Domestic Violence Litigation
iii) Discrimination and Harassment of women at work place.
iv) Sex equality at the Bar and in the Courts.
In the recommended curriculum for Induction Training, each subject has been given specific number of credits to indicate the weightage assigned in terms of time, resources and importance. Similarly within a subject credits may be assigned to different modules to indicate the time and attention required to be devoted in the training. This depends on needs and objectives of the course concerned.
The structure in which topics are arranged and the style in which issues are framed can contribute a great deal in facilitating discussion in a focussed manner. The time and occasion in which interactive learning methods are employed also add to the maximisation of learning pace and opportunities. These are considered to be minor details and are often taken for granted in the usual course of business. However experience tells that more attention and detailed preparation in all these aspects contribute to better learning and greater success in training.
Methods in Refresher Courses :
13.9.9 The method that is usually employed in most of these courses is the Lecture-cum-Discussion. Lecture, no doubt, is useful provided the lecturer comes with adequate preparation and knows well the end-result to be achieved at the end of the session. No teaching even in one session can entirely be through lecture alone. Too much of continuous lecturing will severely limit the learning outcomes. There is no way of assessing how much the learner is learning in a straight lecture. As such, audience participation is invoked through questioning from either side. If the lecture is supported by visual aids like charts, slides and other visual demonstrations, the impact will be greater as attention will be focussed and sustained. Sometimes activities in the class where trainees are asked to take sides on a controversial proposition generate enthusiasm and participation. Sometimes distribution of a hand-out seeking written responses interrupting lecture can do some good in facilitating learning. Of course, use of black-boards, flip charts etc. are necessary even in lectures. Body language, conversational mode, eye contact, time management, pre-views and summaries of topic presented, humour and illustrations, repetitions and modulation of voice are all useful tips in improved lecture method of teaching.
Using transparencies with an overhead projector is a good practice provided the classroom has good facilities to give a clear view to all members of the group. Transparencies can be used to convey the lecture outline, facts of a case being studied, to raise issues for discussion, to present alternate responses, to suggest check list or guidelines and help review of the material.
Use of black-boards and flip charts is particularly beneficial in participatory learning. The instructor can write down in telegraphic language all the responses from the trainees to a question emphasising those which the instructor considers important. Of course, the writing should be clearly visible to everyone in the class.

Use of video-tapes can present difficult issues in perspective if the group is prepared in advance and necessary instructions in what to do while viewing are given to the trainees. Sometimes the video presentation may need to be stopped for a while to have a brief point raised which otherwise may escape their attention. Every video-presentation must be followed by a discussion on the information carried, messages conveyed and follow-up action required.
The Seminar or Group Discussion methods are appropriate for participatory learning in situations where the problems are complex and experiences are as important as perceptions and information. The moderator has an important role here as he can give an overview of the topic, identify key questions arising out of presentations and elicit alternate responses. If the group is large it can have "break-out" groups in which learners will get greater opportunities for participation. Break-out groups, after an hours' discussion on an issue, can assemble again in seminar/conference and report back. Good seminar leaders apprehend problems of group dynamics and do necessary ground work for maintaining enthusiasm and momentum.
The Panel Discussion by experts is effective to cover vast information on controversial issues and to engage the audience to interrogate received notions and to rethink on assumptions and conjectures. By intelligent and imaginative moderation, the teacher can apportion the time, emphasise the issues, complement the presentations, maintain the attention of the audience and co-ordinate the process for achieving the learning objectives. The Panelists should exchange thoughts with the moderator before the discussion takes place in order to sharpen the focus of the proceedings and to evoke participant interests. The moderator must get the questions from audience quickly and put it sharply to save time and to share the learning widely.


The "role playing" technique is another device which promotes interactive learning among adults. When there are different stake holders as in a court room, the role playing device can simulate an environment in which actors are forced to demonstrate their capacities in comprehension and application. Roles can be reversed and action repeated to give exposure to other dimensions. When challenged by other players, they are made to think of strategies and ethics along with knowledge and attitudes.
Evaluation :
13.9.10 Course evaluation is to be an integral part of every continuing education programme. As far as possible, each subject should be separately evaluated. Evaluation can be oral or written or both. Evaluation is done by gathering trainee reactions to each topic, each speaker, general organization and reading materials supplied. On each item participants may be asked to give their rating in a seven point scale ranging from 1 to 7 or from poor to excellent. Besides, they may be asked to give their specific remarks as and when necessary.
Faculty members can also do the same exercise with necessary changes in the evaluation schedule. An evaluation by trainee judges after few weeks of the programme giving reflections on the course in the context of their professional work will bring out some ideas for improving the course for the future.
Course evaluation is primarily intended to assess the extent of learning. Secondly it serves to know the strengths and weaknesses of the course in order to improve future programmes. Thirdly it gives seriousness to the entire exercise and helps trainers and trainees to improve themselves in their tasks.


Continuing education courses are in a sense more difficult to organize purposefully because of the nature of participation and the range of issues they are expected to address. Nevertheless, that is the only strategy to equip the judiciary to respond to the needs of justice and to the legitimate demands of the public. Judicial Academies will get popular support to the extent they can fulfil this objective.
13.9.11 Preparing Training Designs : A Sample on Gender Justice
Gender Justice and Court Procedures :
An issue on which continuing education is widely recommended for judges at all levels is "Gender Bias in Courts". To design a series of training programmes in this regard, we need to know (a) actual training needs on the topic; (b) what the training can and should achieve (object); (c) the training design and structure; (d) the training methods and materials; and (e) the assessment or evaluation of training to give feed back on learning.
The subject can be dealt with in courses ranging between one day's duration to one month's duration. Ordinarily, a topic like this for in-service training cannot expect to have time of anything more than a week-end ie., about 2½ days beginning from a Friday afternoon and ending by Sunday evening. Serving judges of a given State may be sponsored by the High Court to participate in the Refresher Course of 2½ days' duration. Let us assume that 25 judges of the same cadre are nominated 6 to 8 weeks ahead of the commencement of the course. The question is what are the activities you, as a trainer, are going to propose in the time available in order to achieve a change in gender-based discrimination in courts and tribunals? What steps you will undertake to design an appropriate programme?

13.9.12 Consider the following sample design, critique it with a view to improving upon it and re-design for your purpose.
TITLE OF REFRESHER COURSE
CONTINUING EDUCATION WORKSHOP ON "GENDER BIAS
IN THE COURTS"
PARTICIPATION :
District and Additional District Judges nominated by the High Court - Limited to twenty five participants - Residential.
VENUE AND DURATION :
2½ days - Week-end - At Judicial Academy
SCOPE AND OBJECTIVES :
Judges are obliged by the Constitution, the laws and oath of office to avoid gender bias not only in their own decision-making but also in court interactions on which they preside. Despite this obligation and occasional outcry from feminist groups and the media, there is a substantial body of evidence indicating continued sex-based discrimination in courts vitiating the commitment for equal justice under law. Much of it is the product of received myths and misconceptions, discriminatory laws and customs and the prevailing notions of cultural stereotypes in society.
There is some data available today on the nature and extent of gender-based problems in our courts and how individual judges have been trying to eliminate gender bias in courts with varying degrees of success. This course is intended to examine such data with a view to evolve capacities, strategies and attitudes in presiding officers of courts to eliminate them from judicial processes.
The course is specifically designed to enable participants -
(a) to identify instances of gender bias in court proceedings which are often not noticed or if noticed, not considered to be warranting judicial attention;
(b) to effectively intervene and rule on gender issues arising in court proceedings;
(c) to write judgments avoiding gender bias; and
(d) to promote practices conducive to equal justice in court administration and trial.
PROGRAMME DESCRIPTION
Day One 2 PM - 2.30 PM Session I
(Friday afternoon)
- Introduction of faculty and participants.
- Discussion on methodology - Roles and Responsibilities for the successful conduct of the workshop.
2.30 PM - 3.30 PM Session II
Lecture - Discussion on "Women, Equality and Law"
Faculty : A law professor familiar with issues of equality debate and an expert in laws relating to women.




Reading Materials :
i) Select constitutional and statutory provisions on Gender Justice.
ii) Excerpts from select reports and studies on the subject.
Note : This is a perspective session aimed at refreshing the information of judges on the problems of inequality women face in society and in the judicial system (Based on selected empirical data listed in reading materials). The session will also acquaint the judges of what the legal responses have been and how they have fallen short of the standard of commitment to equal justice (Based on relevant statutory provisions, judicial decisions and expert committee findings included in reading materials).
The lecture will be limited to half the time of the session and will be interspersed with visual material with the help of OHP or slide projector.
The synopsis of the lecture raising the issues will be circulated to participants in advance and participants will be encouraged to react, thus making the very first session interactive, though in a limited way.
The discussion is likely to spill over to the coffee break giving a momentum to the workshop and an active environment for the sessions to follow.
3.30 PM - 4.00 PM Break for Refreshments
4.00 PM - 7.00 PM Session III
Topic : Domestic Violence Litigation and Gender Justice Issues
Faculty : Two pre-selected participants of whom one is a woman, a judge of the High Court having reputation for sensitivity to women's rights and the trainer of the Academy in charge of the course.
Reading Materials :
(1) Edited cases relating to dowry death.
(2) Selected excerpts from case files relating to divorce and separation
(3) Research studies and Law Commission Reports; relevant portions only
(4) Excerpts from Sakshi study on Judicial Survey of Attitudes (1996).
Teaching Methods :
- Short presentations on the problems and issues;
- Moot Court/Role playing;
- Break-out meetings in small groups analyzing select issues and reporting back;
- Summing up by the trainer-moderator.
Note : This session has four objectives -
(1) for participants to reflect on perceived injustices in law and procedure relating to domestic violence;
(2) provide perspectives on possible alternate courses of action open to the court which can be more equitable in domestic relations situations;
(3) enable the participants to appreciate evidence with a gender perspective; and
(4) understand the importance of being sensitive in taking depositions, issuing interim orders, giving adjournments, writing judgments and invoking services of other professionals (social work, medicine, forensic experts) in domestic violence cases.
Participants will be encouraged to write down their impressions on the two sessions held in the afternoon and turn in their comments on the following day which will form part of the evaluation.
Day Two 9.30 AM - 12.30 PM Session IV
Saturday
Topic : Rape Trials and Problems in Equal Justice
Faculty : A Prosecutor with expertise in conducting rape trials and a Defense lawyer preferably a woman; a High Court Judge who has written opinions in rape appeals and a woman activist familiar with issues of gender justice in sexual violence cases.
Reading Materials :
(1) Edited case files of rape cases where injustice is perceived by women's groups.
(2) Excerpts of Law Commission Reports and Parliamentary Debates on amendment of rape law.
(3) Selected articles, research studies and media reports on health and psychological problems associated with rape.
(4) Statistics on incidence of rape, conviction rates etc.
Teaching Methods :
The session will begin with a short video-clipping on the trauma of rape victims and medical opinions on the problems arising therefrom.
It will then be followed by short presentations on the experience of prosecutors and defense lawyers in conducting rape trials.
The discussion will then be initiated by the social activist focussing on what women expect from the courts, prosecutors and defense attorneys. The trainer who moderates the discussion will seek division of the house on controversial issues with a view to involve the judges at an affective level. He would also provide comparative perspectives from other jurisdictions with the help of charts and transparencies.
The High Court judge will then reflect on why and where appellate courts intervene in trial court judgments and what High Court expects the trial court to do in respect of gender equality in rape and related sexual violence. The participants will be encouraged to question the interpretations taken by the appellate courts.
Expected outcomes of the Session :
This session is bound to be lively involving almost every participant. At the end of the three hour-long session participants will get -
(a) ability to appreciate the grievances often aired by women's groups in respect of rape trials;
(b) perspectives on the need to have a wider knowledge base to be able to conduct rape trials fairly and equitably;
(c) willingness to correct tendency to underestimate the injury to the victim and to bestow misplaced sympathy to offenders;
(d) opportunity to sharpen skills for better appreciation and interpretation of evidence including expert testimony; and
(e) confidence to control court interactions which tend to prejudice the victim.
12.30 PM - 2.00 PM Lunch Break

2.00 PM - 5.30 PM Session V
Topic : Marriage Disputes and the Matrimonial (Family) Court
Faculty : A Senior Family Court Judge, a Family Counsellor (Conciliator) attached to the Family Court and two pre-selected participants with experience in matrimonial jurisdiction.
Reading Materials :
(1) Edited case file materials on divorce, maintenance and child custody cases.
(2) Excerpts of Law Commission Reports, Research studies and socio-legal reports on matrimonial litigations highlighting gender justice issues.
Teaching Methods :
Session to begin with a 30 minute Moot Court of arguments in a trial case - Trainer to present the facts in advance and introduce the two participants who will represent the parties. The Family Court Judge to preside - After judgment, participants to raise questions and offer comments for 30 minutes.
The Family Court Judge is then to give a presentation on how the Family Court is different from an ordinary civil court in the matter of gender justice. Participants to offer comments on how far conciliation/counselling can be a necessary part of all matrimonial cases and what are the skills and attitudes necessary therefor.
The last one hour of the session will be small group conciliation/counselling exercises on assigned matrimonial petitions in which the participants will play roles and record their experiences in the exercise.
Expected Outcomes :
Besides acquainting the judges on the peculiar problems experienced by women in matrimonial proceedings, this session will (a) expose the participants to the skills necessary to deal sensitively on matrimonial disputes; (b) help identify usual prejudices associated with dealing such litigation; (c) promote understanding of the dynamics of inter-personal relations in marriage which should help in negotiating mediated settlements; (d) provide ideas from behavioural sciences on how to deal with child custody matters while being fair and just to the woman involved.
As on the previous day, participants will be asked to write down their specific comments on a proforma circulated in respect of what they learnt or failed to learn in the two sessions. The proforma will be so prepared as to probe the extent of gender sensitization of the respondents in respect of a criminal proceeding as well as a civil proceeding (rape and divorce/custody).
Day Three 9.30 AM - 12.30 PM Session VI
Sunday
Topic : Discrimination and Harassment of Women at Work Place
Faculty : A woman trade unionist, a member of the Women's Commission, a High Court Judge experienced in labour disputes and a woman journalist reporting on women's issues.
Reading Materials :
(1) Selected judgments on sexual harassment at work place and on Equal Remuneration Act.
(2) Reports on discrimination in employment.
Teaching Methods :
The session will start with a little quiz on participants' perspectives and beliefs on discrimination and harassment of women at work place. Using the flip chart the trainer will consolidate the responses in the class in such a way as to project the range of gender-based prejudices and problems.
This will be followed by a Panel Discussion amongst the faculty, each highlighting one or other dimension of the problem. The moderator will focus attention of the group on major biases and injustices raised keeping in focus the role of the judge in moderating or aggravating the impact of such biases on womens' right to equal treatment and dignity.
The final part of the session will be devoted to small group interactions on writing out a code of judicial conduct in reducing gender-based inequalities in dealing with employment-related disputes and in court administration.
Note : At the end of this session, participants will have (a) clearer understanding of who and where women experience discrimination in work places, (b) acquire minimum skills to be able to correct the imbalances when such disputes come before them and (c) help provide a more gender-friendly atmosphere in the courts.
12.30 PM - 2.00 PM Lunch Break
2.00 PM - 3.30 PM Session VII
Topic : Sex Equality at the Bar and in the Courts
Faculty : Chairman of the Bar Council/Bar Association, representative of the Women's Bar, and two participants of whom one to be a woman.
Teaching Methods :
The Session will largely be based on brief presentations by the Faculty. However, the initial few minutes will be devoted in ascertaining the perceptions of participants on what they consider to be the state of affairs at the bar and in court proceedings. The participants will be asked to write in a piece of paper three instances which in their belief can be discriminatory of women in the bar room, court offices and in court transactions including trial.


Expected outcomes :
Besides sensitizing the judges on the problem in their own midst, the session will help in drawing up a judicial code of conduct to create a more gender-neutral atmosphere not only to women lawyers and judges, but also women litigants, women witnesses and women employees of courts. Judges will begin to realize the need to adopt gender-neutral language, avoid sexist remarks, renounce double standards wherever they exist and to respect women's dignity particularly of those belonging to minority sections of the population.
3.30 PM - 4.00 PM Break for Refreshments
4.00 PM - 5.00 PM Session VIII
Evaluation and Valediction
Points to Consider :
There can be many variations of the above design depending upon the specific needs of participants, time available for training and resources which the Academy commands. The point to be noted is that a well-thought-out training design is a pre-requisite for the success of in-service training. Such design should necessarily be based on a needs assessment on which specific objectives to be achieved by each session/module should be spelt out clearly. Participants should be involved as much as possible for which the training methods should be varied and interesting. Lectures ought to be kept to the minimum and each session should be co-taught by a balanced mix of experts carefully chosen and adequately briefed on the expected outcomes of their respective sessions.
Too much of reading materials even if distributed will not be read. As such, careful selection and proper editing should be done well in advance. For a course of 2½ days' duration, it is prudent to contain the reading materials to about 100 neatly typed A-4 size pages. The reading materials should be supplied in bold print with titles and sub-titles and, wherever possible, with short catch notes/summary of points. Additional reading materials may be listed after every module/topic and such materials may be kept in reserve in the library for participants to browse through. Some participants are likely to take special interest in topics of their choice and would be wanting to learn more on their return to their respective stations. Certainly they would be wanting to consult as many materials as are available on a given proposition as and when the issue confronts them in the course of their professional work. The reference list given in the reading materials will be the initial resource to fall back upon.
As far as possible at least a small number of participants must be invariably asked to read the materials in advance and to react in each session so that those who have not read the materials will also be benefitted. It is a good strategy to force participants to bring the materials in class and consult relevant pages occasionally during the session.
Evaluation in a prepared proforma at the end of each day will be more beneficial rather than be content with a general evaluation at the end of the course.
If the course were to be repeated, few of those judges who were participants in the earlier course may be invited as faculty for the succeeding course.
There may be an opinion that what is presented here for a 2½ day course is rather too heavy and taxing to the ordinarily overworked judges who expect some relief and relaxation in a week-end retreat. It is important that continuing education to succeed must endeavour to remove such impressions which have been created all around from the way they are conducted at present. These are costly exercises and the benefits should outweigh the costs if they have to be sustained with public support. As such, it is desirable to make it tight involving the participants in some or other useful activity all the time available. By corresponding with participants well before their arrival at the academy, they should be prepared to put in their effort and time totally for their own benefit.

On an average, every judicial academy should offer at least one hundred residential continuing education programmes of short and long duration (week-end courses and week-long courses) every year catering to at least 500 to 600 judges. If the facilities and resources immediately available are not adequate for the task, academies may consider the strategy adopted by the Gujarat High Court under Hon'ble Chief Justice B.N. Kirpal's initiative. It is called mobile academy for training of judicial officers under which the trainers will reach out to each locality rather than asking the trainees to come to the headquarters. Every week-end the team moved to district and tehsil towns where the judges of the locality assembled to receive continuing education packages.
Nothing short of a crash, massive, organized effort can achieve the objectives of preparing the judiciary for the urgent tasks awaiting attention.
13.9.13 Training the Staff of Courts :
Another major activity, judicial academies should undertake to improve efficiency and productivity is the training (induction and in-service) to be given to senior members of the ministerial staff of courts. Without their willing and competent support services, judges would not be able to accomplish the goals of judicial education and training. Today no worthwhile training is available to them and they operate by and large in the same way as they were doing their job in pre-Independence days. Added to such archaic methods, corruption and indiscipline have crept in making the judicial system the most slow, increasingly costly and unnecessarily complex wing of the Government. The judicial establishment even today is untouched by the management information revolutions which have overtaken many sectors of life and governance.


It is to be noted that with the expert inputs from the management people, this Commission is making recommendations to transform the judicial establishment computer-friendly and management-driven to achieve results in the next few years. As part of this package, training of court staff is likely to come out strongly for early implementation. This report, therefore, has not discussed on the training of non-judicial personnel of the court system excepting to say that it should evolve simultaneously with the training of judges.






















13.10 ORGANISATION OF ACADEMIES FOR EXCELLENCE IN JUDICIAL EDUCATION
13.10.1 Though individuals are responsible in building institutions, it is the structure, character and traditions of institutions which can sustain and improve standards of performance long after the promoters have disappeared from the scene. The goals set, the traditions built, the work culture developed, the extent of academic freedom provided and the type of core team of trainers initially assembled will largely determine the potential of the Academy to deliver and deliver it well. As such, great deal of attention has to be bestowed in selecting the Faculty and giving necessary autonomy to the Academy. It cannot be kept as an appendage of the High Courts almost entirely dominated by judges who may not have the time or interest to look after the efficient working of the Academy. Teaching is different from judging and the two should not be mixed up if teaching and research have to be competitively superior and the institution has to assume a character and status of its own.
Organization :
13.10.2 The organization may assume one of different models. It can be created under an independent statute in which case it will not only enjoy the required autonomy but also can, if desired, shape up into a university which can award degrees in judicial administration or court management. The Judicial Academy in Bangladesh is established under a statute of that country's Parliament. Another model is that adopted by the National Judicial Academy in India which is formed as a registered society with limited membership mostly of judges and officials of the Government of India which provides the funds. A third model is what prevails in many of the States under which through an Executive Order, an academy is established under the joint control of the High Court and the Department of Law of the State Government. The money comes from either the High Court budget or grant from the Law Department. A variation of this model is the Directorate of Training sponsored as a unit under the direct control of the High Court.
Each model has its own advantages and disadvantages. A uniform model is perhaps not practical even if desirable. Whatever the organization, a State academy can function effectively only if some basic principles are adhered to. These include :
(a) The State Academy must have a highly qualified, well motivated full-time Director who will have the status and remuneration equivalent to that of a Chief Justice of a High Court and a tenure of not less than five years;
(b) The Academy must have a core faculty of at least five professors with salaries and perquisites equivalent to that of High Court Judge, six Associate Professors with salaries and perquisites equivalent to that of a District Judge and few Lecturers/Tutors with status equivalent to that of CJM/Civil Judge. The visiting (Guest) Faculty will be invited as required. If the staff is drawn on deputation from the Judiciary, they must serve the Academy for a minimum period of five years. The ideal situation will be that half the faculty (all ranks) may be recruited from the judiciary and the other half from legal academics, legal practitioners and social scientists with pronounced interest in the legal system and having pedagogic abilities.
(c) The Academy should have an independent Board of Governors with Chief Justice of the High Court as Chairman and members drawn from the High Court, District Courts, Government and the Bar. While Judicial /Legal members can constitute two-thirds of the Board, one-third can come from other categories.
(d) The Academy should have an independent budget approved by the Board of Governors. On a rough estimate, the annual budget of a State Academy for optimum efficiency will be in the range of 3 crores of rupees. It is important that the administrative staff should be kept to the minimum. For a Faculty of 15 to 20 persons in an academy, the support staff including Registrar, Librarian and Finance Officer may well be kept below 30 persons. The strategy is to pool vehicles, stenographers and research persons and getting work organized through mechanised communication systems and contracted out security, cleaning and messenger services. The culture of Government departments and other judicial establishments is not conducive to promotion of academic excellence.
(e) Academic autonomy is the key to academic excellence. If competent staff are put in place, they may be given the power to design and execute the courses under exacting standards of accountability. If the faculty is kept on contract terms, those who are unable to deliver may be able to be discharged after due notice. Let it not be an extension of Government service where security is guaranteed for every one including those who work and those who do not. A Committee of the Board of Governors should periodically evaluate teacher performance in a transparent manner according to criteria agreed to earlier. If the work is found unsatisfactory the teacher may be reduced in rank or his remuneration be reduced, if discharge is considered unnecessary.
A new work culture which is exacting, business-like, and performance-oriented if not generated in the Academies, it will end up like mediocre, self-serving white elephants of the kind we have plenty in this country. The practice of sending people out from parent departments to training institutions when they are unproductive or otherwise not desired in service is to be totally abandoned if training is to become serious exercise directed towards efficiency and excellence.




Structure and Co-ordination
10.3 The organization of a State Academy can by and large participate the following model if it should have the potential to develop into a centre for excellence in judicial education and training.











THE CHIEF JUSTICE
(Chairman, Board of Governors)

Staff Selection Committee
BOARD OF GOVERNORS
(15 persons of whom 4 including the
C.J. from High Court, 2 senior most
District Judges, 2 Government nominees of whom one to be the Law Secretary, Chairman of the Bar Council, the Advocate General of the State, the Dean of the Law Faculty of one of the Universities in the State and 4 from among the staff of the Academy including the 2 Directors. The Director (A) to be ex-officio Secretary of the Board)
Faculty Evaluation Committee
DIRECTOR 'A' (Administration & Finance)

DIRECTOR 'B'
(Academic Affairs)
Committee on Grievances
STAFF COUNCIL
(All academic staff to be members) Directors 'A' and
'B' to preside alternately the
Council which is the executive body of the Academy.
Committee on Finance
Committee on Training
Committee on Research & Development


An organization simple, transparent and participatory like the one suggested above can keep the functioning informed and co-ordinated. It provides a structure which is democratic and at the same time leaves operational freedom to every group and individual in assigned spheres of the collective enterprise.
Though the Directors are executive officers of the organization they are accountable to the Staff Council. Being an academic institution it makes sense in making all academic staff irrespective of the ranks they hold to be members of the Staff Council. There is no need for administrative members to be members in the Staff Council as their representation can always be had through Director (A). In cases of complaints, the Grievances Committee can always probe and recommend necessary corrective action. Unnecessary hierarchy of posts and positions in academic institutions concentrating the decision making power tends to destroy institutional integrity, promote factional interests and undermine the capacity of the institution for academic excellence. Similarly avoidable external controls on routine matters even if they come from superior judges are unwelcome for institutional development and faculty performance. Such supervision can be streamlined through the Board meetings, appointment of investigating committees wherever necessary and evaluating performance critically demanding accountability from each and every individual in the staff of the Academy.
Budget
13.10.4 The annual budget of the Academy for running expenses is expected to be of the order of rupees three crores to begin with. This may increase in the course of time with expanded activities and inflation. In any case, by 2010 the annual budget is unlikely to exceed rupees five crores if staff appointments are strictly controlled and prudent financial management introduced. A tentative break-up of major items of expenditure assuming the budget to be rupees three crores, is given below :
1. Salaries (Academic Staff)
Directors Rs.30,000 p.m., Professors Rs.25,000 p.m., Associate Professors Rs.20,000 p.m. and Assistant Professors (Lecturers) Rs.15,000 p.m. and Guest Faculty @ Rs.10,000 p.m. - Total of 20 persons of all ranks will come to Rs. 60 lakhs annually.
2. Salaries (Administrative Staff) ... Rs. 40 lakhs per year
3. Library and Equipments ... Rs. 100 lakhs per year
4. Maintenance, Utilities and Services ... Rs. 50 lakhs per year
5. Guest House, Hostels and Miscellaneous... Rs. 50 lakhs per year
Of course, the above is too sketchy a budget and adjustments may have to be made within it or some excess (in any case not to exceed Rs. 5 crores even after 5 years of operation) will have to be provided for unforeseen expenses. This is estimated on the assumption that the Academy will have the Campus built, furnished and provided with minimum equipment. It is also assumed that the full complement of the faculty in terms of staff will be about 20 full-time academic personnel, 30 administrative personnel and 10 to 15 visiting/guest faculty.
If the Academy takes up extra training or research projects it will be fully financed by the sponsors which will bring in a certain percentage of institutional fee also to the Academy. Any growth in activities should be on the basis of self-generated funds for which specific guidelines may be evolved by the Board of Governors.
It may be noted that the budget of the judicial academy is recommended to be balanced as follows :
(a) Salaries - one-third
(b) Library & Equipments - one-third and
(c) Maintenance & Consummable items - one-third


If this proportion is not acceptable, the Staff Council should make out a case why it should be varied from and in what proportions. Financial discipline self-imposed and self-supervised can bring in better results in a small organization than the style found in large offices under the Government. It may also be noted that the staff are reasonably well paid according to current market rates and the differences in salaries between different ranks are not very substantial. It should also be possible for an Assistant Professor to rise to the level of Professor in about 10 to 12 years provided his performance is commendable. For a Professor the incentive is in terms of recognition/awards, consultancy work from outside under pre-arranged conditions and fully paid research projects for which he can employ separate staff provided the time devoted by him to the project is within permissible limits.
National Judicial Academy and State Academies :
13.10.5 It was the dominant opinion of judges in the country that a National Academy and State-level Academies are to be the best organizational arrangement for judicial education and training. Though regional academies were not favoured, it was suggested that smaller States in any region may jointly set-up and manage one common academy. Thus constituted, India may have one National Judicial Academy and about 15 to 18 State-level Academies. The total cost of running such a network of training centres for judges and court staff will be in the range of 75 crores of rupees per year which is not a huge cost in the context of the size of the country and the benefits it provides for more efficient administration of justice. Even with cost escalation it will not exceed Rs.100 crores per year which perhaps the Central Government may fully take care of under Plan funds.
The National Judicial Academy is reportedly developing an impressive physical structure in a 100 acre campus in Bhopal costing over Rs.50 crores. Once ready by the end of this year, its academic activities will be launched hopefully in an equally impressive manner in terms of the quality of training offered. As it is totally independent and managed by a Governing Board with Chief Justice and judges of the apex court one can certainly expect it to be setting up standards for the State Academies to follow.

Training the Trainers :
13.10.6 One of the priority tasks for the NJA is to train about 100 trainers to manage the State Academies in the next couple of years. In this task the NJA may seek advice or assistance of some of the best run judicial academies of some of the developed countries. The National Judicial College in the United States is one such leading centre for consultation. There may be something to learn from the way the National Law School of India University (NLSIU), Bangalore, developed its curriculum and teaching methods and shot into prominence as a centre for excellence in legal education in less than ten years. Fortunately the Chief Justice of India and a number of judges of the Supreme Court and High Courts are associated with the management of NLSIU which should facilitate exchange of ideas and experiences for appropriate development of the NJA.
The structure of academic activities of the LBS National Academy of Administration at Mussorie and the SVP National Police Academy at Hyderabad will provide additional inputs in structuring the curriculum and training methods at the NJA. Again, the methods employed in IIMs and IITs would provide useful tips for better productivity and excellence.
The NJA in turn, has to perform a catalytic role in upgrading the existing State Academies and in establishing such institutions in States where there are none at present. Till such time States are able to launch such institutions, NJA may have to cater to the needs for training of judicial officers of such States which may be organized by the NJA in the respective States themselves. The strategy is a national projection of the "Academy on Wheels" initiated sometime ago by the Gujarat High Court for subordinate judges in the State who could not be spared for long periods to undergo training in institutions outside their headquarters.

* * * * *










14. PRINCIPLES GOVERNING THE PAY STRUCTURE
OF THE SUBORDINATE JUDICIARY
14.1 One of the terms of our reference requires us "to evolve the principles which should govern structure of pay and other emoluments of judicial officers belonging to the subordinate judiciary all over the country".
14.2 Hitherto, in our country pay and other service conditions of judicial officers in almost all the States have been linked to the corresponding executive officers of the State or the Central Services. That is perhaps due to the fact that the linkage between the service conditions of the judiciary and that of the administrative executives was a historical accident. The erstwhile rulers constituted only one service, namely, the Indian Civil Service for the judicial as well as administrative service, and it was from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Indeed, initially there was no clear demarcation between the judicial and executive services and the same officers used to perform judicial as well as executive functions. This logical consequence in terms of the service conditions was inevitable. But with the promulgation of the Constitution and the separation of the State power distributed among the three branches of the Government, the continuation of the linkage became inconsistent with the constitutional principles.
14.3 Although these were obvious realities, no effort was made to place the judicial officers in a separate category while determining their remuneration. The Supreme Court ultimately had to step in to correct the anomalous position by pointing out the importance of the judiciary and its functions. The Supreme Court in its landmark judgment in ALL INDIA JUDGES ASSOCIATION v. UNION OF INDIA AND OTHERS1 observed thus :
____________________________________________________________
1. AIR 1993 SC 2493=1993 4 SCC 288.
"The judicial service is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the ministers, the legislators and the judges and not the members of their staff who implement or assist in implementing their decisions. The Council of Ministers or the political executive is different from the Secretarial staff or the administrative executives which carries out the decisions of the political executive. Similarly the legislators are different from the legislative staff. So also the Judges from the Judicial staff.
The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. The distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary and no price is too heavy to secure it. To keep the Judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself."
14.4 The Apex Court has categorically observed that the linkage between the service conditions of the judiciary and that of administrative executives is not proper and should be discontinued since the judiciary is above the administrative executive. It was observed that "parity in status can only be between the judges and the political executive and not between judges and administrative executives."
14.5 In view of these significant observations of the Supreme Court, the need to evolve the principles which should govern the pay structure of subordinate judicial officers has become imperative.
14.6 The practice of paying, or remunerating individuals for their labour is not new. According to DAVID A. HUME2, it dates back at least to the time of Christ. Reference to payment for labour is made in the Holy Bible, the Gospel according to Matthew 20:1-2: "For the Kingdom of heaven is like a landowner who went out in early morning to hire men to work in his vineyard. He agreed to pay them a denarius for the day and sent them into his vineyard."
14.7 Over the years, social scientists, especially the economists, have been trying to work out different methods of determining the salary structure for different categories of employees. They have invented various and varied theories. However, no single theory is acceptable or determinative to those who are involved in settling salary disputes or determining pay structure.
14.8 Generally, the pay structures are based on decisions about internal relativities and external comparisons but they must also take into account of pay progression policy.



2. "Reward Management" , Chapter 5, pages 72 to74 by David A. Hume.

14.9 Internal relativity decisions are usually formed through processes of job evaluation. This normally excludes personal factors, and the relative size of jobs is measured on the basis of what has to be done to achieve a standard and acceptable level of job performance. In an individual job range structure, this provides the reference point for the rate within the range, which should be paid to a fully competent person. In a conventional graded structure, the same assumption is made for all the jobs grouped into the grade although in practice their relative size may differ.
14.10 External comparisons are made through market rate surveys, and decisions on external relativities follow the organisation’s policy on how its pay levels should relate to market rates – its market stance.
14.11 Market stance policy depends on the organisation’s views as to whether it should pay above the market, match the market or pay less than the market. These will be influenced by such factors as the level of people the organisation wants to attract and retain.
14.12 But it may be noted as Helen Murlis3 said that all people do not work for money alone. There are in fact many determinants of the decision to work for, and stay with, in a particular department or employer. Throwing money for recruitment and retention may be worst possible strategy because this only deals with one aspect of what is generally a complex problem. Some employees generally weigh up a number of tangible and intangible factors when looking at what employers have on offer. Some of them look for personal recognition and the desire to go on learning and developing as a career goes through different stages. Others may prefer to work for an employer who is caring and supporting as well as challenging and successful.
____________________________________________________________
3. "Reward Management", Third Edn., by Michael Armstrong and Helen Murlis.
14.13 During the British period, Attchison Commission (1886-87) and the Royal (Islington) Commission (1912-15) were constituted to determine the pay structure of Civil Servants. They have followed certain principles. The Royal (Islington) Commission in particular formulated the following principle:
"Government should pay so much and so much only to their employees as is necessary to obtain recruits of the right stamp and maintain them in such degree of comfort and dignity as will shield them from temptation and keep them efficient for the term of their service."
14.14 This principle was accepted even by the Royal (Lee) Commission constituted in 1923 for Superior Services in India.
14.15 However, the Royal (Priestly) Commission (1953-55) on Civil Services in the United Kingdom made a significant departure in formulating certain principles. Instead of leaving the question of pay fixation entirely to the market conditions, that Commission introduced the concept of "fairness" both to the employees as well as to the tax payers. It observed that:
"Civil service pay should be settled in the light of explicit principles that will commend themselves as fair both to the staff concerned and to the community as a whole."
14.16 But according to A.P. Williams4, the ‘fairness’ in pay structure is the most commonly used - and most commonly abused - term in this area. He goes on to state: "Fairness, like beauty, is only too often in the eye of the beholder; but it would be too cynical to maintain that its use in this context is really a disguised
form of envy. When Elliot Jaques (1961), in his book Equitable Payment advanced
____________________________________________________________
4. "Just Reward?" The Truth about Executive Pay by A.P. Williams, 1994 Edn., Chapter 4.
the idea of the ‘felt-fair Principle’, and referred to an unrecognised system of norms for fair payment related to individual’s unconscious feeling of the need for a match between the level of work and the capacity of the individual to do it. He was in one sense only restating the problem, but in another he was appealing to a widely (if not universally) shared set of values as to what was socially acceptable."
14.17 In our country, the practice of setting up of Commissions, at regular intervals, on an average of 10 years, for determining and / or revising pay and allowances of Central Government employees has been generally followed.
14.18 We may begin with the principles followed by the successive Central Pay Commissions for determining pay structure of different categories of Central Government employees. Such determination has been hitherto extended to judicial officers as well.
14.19 But before referring to the principles enumerated by the Central Pay Commission, it will be useful to refer to some of the International Resolutions and Instruments recommending adequate salaries and pensions for judges.
14.20 The idea of a minimum salary for judges has been recognised in a number of International Instruments. Article 11 of the Basic Principles of the Independence of the Judiciary, which was adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, provides that:
"The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law."
14.21 A more recent document is the Draft Universal Declaration on the Independence of the Judiciary, which the United Nations Commission on Human Rights invited Governments to take into account when implementing the U.N. Basic Principles (Resolution 1989/32), Article 18(b) provides that :
" The salaries and pensions of judges shall be adequate, commensurate with the status, dignity and responsibility of their office, and shall be periodically reviewed to overcome or minimise the effect of inflation."
14.22 We may now turn to the principles followed by the Central Pay Commissions for reviewing or restructuring the pay structures of Central Government employees.
First Central Pay Commission (1946-47) :
14.23 The First Central Pay Commission innovated the principle of "living wage" to Government employees. It observed that "the test formulated by the Islington Commission is only to be liberally interpreted to suit the conditions of the present day and to be qualified by the condition that in no case should be a man’s pay be less than a living wage." Amplifying the concept of "living wage", it stated that the Government which sponsored the minimum wage legislation for private industry must be willing to give the benefit of that principle to its own employees. In other words, that Commission was of opinion that the salary of the lowest paid employee should not be less than the minimum wage. While considering the question of maximum salary, the Commission agreed with the view that the State should compete with private enterprise in respect of prize posts; but expressed their inability to agree that the salaries of public servants could be reduced below the standard remuneration available to similarly situated employees in the private sector. The Commission recommended the principle that, as a matter of social policy, the lowest paid should not fall below the "living wage" (meaning thereby the minimum wage) and the top salaries should also as a matter of social policy be kept down to the extent possible without jeopardising the essential requirements of recruitment and efficiency.


Second Central Pay Commission (1957-59) :
14.24 The Second Central Pay Commission reiterated the principle that the pay structure and the conditions of service of Government employees should be so designed as to ensure recruitment of persons with requisite qualifications and ability at all levels and to maintain their efficiency. It went on to state that, after determining the minimum and the maximum salaries on a combination of both economic and social considerations, the intermediate salaries should be fixed on sound and equitable relativities.
Third Central Pay Commission (1972-73) :
14.25 Third Central Pay Commission proceeded on the premise, inter alia, that the pay structure, if it is to be sound, should satisfy the tests of "inclusiveness", "comprehensibility" and "adequacy" and should, at the same time, be fairly simple and rational. Beyond the minimum subsistence level, the adequacy or otherwise of the salary structure should be judged by the level of salaries obtaining in alternative occupations. In the intermediate ranges, the Commission emphasised that a limit should be set by what the economy can afford and the upper range limit should be on considerations of social acceptability. While observing that the Government should formulate a set of principles of wage fixation as suited to its needs, it also remarked that the true test to be adopted should be whether the Government service is attracting and retaining the persons it needs and whether such persons are reasonably satisfied with the pay and other benefits taken together.
Fourth Central Pay Commission (1983-86) :
14.26 The Fourth Central Pay Commission was, however, guided by a number of factors for determining the pay structure, viz., social status regard to which the public employment carries in society, the authority of the post, security of tenure and the welfare measures adopted by the Government for the benefit of its employees. Motivation for employees, efficient performance and comparability were also considered by the Commission. The Commission gave greater importance to the capacity of the State to pay its employee. The Commission observed that the pay structure must be fair from the point of view of employees as well as the people they serve.
Fifth Central Pay Commission (1994-97) :
14.27 The Fifth Central Pay Commission was specifically asked to evolve the principles which should govern the structure of emoluments and other conditions of service. So, the Commission had to survey the principles adopted by the antecedent Commissions and accepted some of the general principles including the three characteristics of a sound pay structure, namely, inclusiveness, comprehensibility and adequacy. The well-accepted principle of supply and demand consideration as emphasised by Islington Commission was also reiterated. However, it emphasised on professionalism in Government service and the Government should have less such people with better payment. It observed that there should be transparency in pay packages and the need for merging of various allowances into a simple allowance. The Commission also laid emphasis on the principle "equal pay for equal work", "fair compensation", "productivity" and "model employer". Besides, the Commission has considered certain other criteria like the intrinsic value of a job, delinking pay from position in the hierarchy, interest of isolated posts, justice to lowest and highest paid functionaries, liberal reimbursement of actual expenses and full compensation for entering into the public service. The Commission, however, has emphasized the capacity of Government to pay and kept it as the uppermost factor.
14.28 From the aforesaid, what could be deduced is that for the purpose of determining salary structure, some of the following factors viz., the market forces of demand and supply, cost of living, ability to pay, the prevailing pay structure in the society, equal pay for equal work, the role and image of organisation and the expected performance of the employees are taken into consideration.
14.29 These principles set out by the successive Pay Commissions are commonly used for determining the appropriate pay scales of Industrial workers and Government employees. But when we take up the judges’ salary structure, those principles are neither sufficient nor all of them are relevant.

14.30 This is what the 14th Report of the Law Commission at p. 163 had to state:
"In the matter of scales of pay and remuneration, the judiciary compares unfavourably with the executive branches of the Government. It is true that, generally speaking, the scales of pay of the judicial officers and the corresponding executive officers are identical in many of the States. However, it has to be remembered that the executive officers are, by and large, recruited at a much younger age than the judicial officers. The entrant to the judicial service is required to be a graduate in law and in most of the States it is also necessary that he should have practised for a certain number of years at the Bar. On the other hand, for recruitment to the executive branches of Government service, a degree in arts or science is, generally speaking, sufficient. In the result, a person entering the judicial service does so when he is about 26 or 27 years of age and at a time when his contemporaries who have entered the executive service of the Government have already acquired a certain seniority in the service and have come to draw a higher salary. It will thus be seen that a person joining the judicial service starts with a lower remuneration than what he would have received if he had entered the executive service for a few years earlier. It has also to be noted that owing to the lesser proportion of superior posts in the judicial service, promotions come less quickly to the judicial officers, and a person who has entered the service as a munsiff, assuming that he is fit and fully qualified, takes much longer time to become a district judge than would an equally competent deputy collector to reach the position of a collector. Again the judicial officer, having started at a later age, has a shorter span of service than the executive officer and this affects his pension and other retirement benefits."
14.31 In the Review Judgment in All India Judges’ Association Case (AIR 1993 SC 2493) the Supreme Court observed at p. 2501:
"The judicial service is not service in the sense of ‘employment’. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature."
xxx xxx xxx
"The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.
"The distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself."
xxx xxx xxx
"As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter."
14.32 The Supreme Court has also observed in the said review judgment that while fixing the pay scales of the judicial officers, the consideration of the capacity of the Government to pay would be irrelevant.
14.33 So, this much is clear that there cannot be a linkage between the pay scales of judicial officers with the pay scales of the executives. However, since we have a graded system of judicial service, the salary level of the High Court Judges is an important factor to be reckoned to maintain the relativities across the State judiciary. It is a vital factor to be borne in mind while judging the appropriateness of any particular level of salary to the Judges of the Subordinate Courts.
14.34 The Supreme Court in the above-said case has also observed that there is a wide variance in the pay structure prevailing in various States and Union Territories for the same nature of work performed by judicial officers. It was further observed that judicial officers should not be remunerated differently since they perform similar nature of the work.
14.35 It is, therefore, imperative for the Commission to determine uniform pay scales for similar grades of Judges in every State and UT. This principle is also based on "Equal Pay for Equal Work" which has been enshrined under Article 39(d) of the Directive Principles of State Policy in our Constitution. The said Article proclaims ‘equal pay for equal work’ for both men and women under common employer.
14.36 In this context, it may be useful to refer to the definition of the expression "same work or work of similar nature" contained in Clause (h) of Section 2 of the Equal Remuneration Act, 1976. This Act was enacted to give effect to the provisions of Article 39(d) of the Constitution and the obligation created by ‘The Convention Concerning Equal Remuneration for Men and Women Workers’ for work of equal value (generally referred to as ‘Equal Remuneration Convention 1951’) adopted on June 29, 1951, to which India was a signatory. Article 2 of the Convention obliged the signatory States to effectuate the said rule by all means including the machinery of law. The said Act is applicable to such establishments and employments as may be notified by the Central Government under Section 1(3) of the Act. Though the said Act is mainly directed against discrimination against women, yet the relevance of the said definition cannot be ignored for our purpose.
14.37 The definition in Section 2(h) reads:
"2(h). ‘Same work or work of a similar nature’ means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the difference if any between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment."
14.38 This definition lays emphasis on the similarity of skill, effort and responsibility when performed under similar terms and conditions of employment.
14.39 Adroitly, the persons discharging similar if not identical functions bearing similar responsibilities should get equal pay on the binding principle of ‘Equal Pay for Equal Work’. This is a Constitutional goal and fundamental right guaranteed to the citizens of this country.
14.40 The State shall not say that the Employer being different in State to State cannot apply the Rule of equal pay for equal work. But as already explained by the Apex Court, the Judicial Officers cannot be regarded as civil servants of the State. They perform judicial functions of the State in every State.
14.41 For the purpose of giving equal pay or uniform pay, it is necessary to provide uniform jurisdiction to Judicial Officers in every State/UT.
14.42 In six of the States, namely, West Bengal, Maharashtra, Tamil Nadu, Delhi, Himachal Pradesh and Jammu & Kashmir, the original pecuniary jurisdiction of the District / Civil Judges are not uniform. The reason is that the respective High Courts have retained the ordinary original jurisdiction.
14.43 There have been twelve Commissions and Committees in the past between 1924 and 1990 suggesting for abolition of the ordinary original civil jurisdiction of the High Courts. All these reports have been considered and summarised by Malimath Arrears Committee Report - 1989-1990. The Malimath Committee Report has traced the history of vesting of such original jurisdiction in such High Courts and emphasised the need to abolish it at the earliest. But unfortunately, all these High Courts are still continuing their ordinary original civil jurisdiction.
14.44 The following High Courts have such jurisdiction to entertain and try suits and proceedings of civil nature limited to pecuniary and territorial jurisdictions as follows:
____________________________________________________________
Sl. Name of the Pecuniary Territorial
No. High Court Jurisdiction Jurisdiction
____________________________________________________________
1. High Court of Suits & proceedings of Calcutta City area
Calcutta Civil nature where the in Calcutta Municipal
value exceeds Rs.One lakh. Corporation.
2. High Court of Suits & proceedings of Greater Bombay
Bombay Civil nature where the
value exceeds
Rs.Fifty Thousand.
3. High Court of Suits & proceedings of City of Madras.
Madras Civil nature where the
value exceeds Rs.One lakh.
4. High Court of Suits & proceedings of Union Territory.
Delhi Civil nature where the
value exceeds Rs.Five Lakhs.
5. High Court of Suits & proceedings of State of Jammu &
Jammu & Civil nature where the Kashmir.
Kashmir value exceeds Rs.Two lakh
and Fifty Thousand.
6. High Court of Suits & proceedings of State of Himachal
Himachal Civil nature where the Pradesh.
Pradesh value exceeds Rs.Two Lakhs.
____________________________________________________________
14.45 The Commission considers that it is now absolutely necessary to abolish the original civil jurisdiction of such High Courts to bring about complete uniformity of jurisdiction of the Civil Courts in all States and Union Territories.
14.46 It is on this premise that we have recommended uniform pay scales to Judicial Officers in every State and Union Territory.
14.47 There are other aspects which are to be borne in mind while determining the pay scales of judicial officers and for which full compensation must be provided. They are: (i) Pivotal Role of Subordinate Judiciary in our system of administration of justice; (ii) Essential Characteristics of Judicial Office; (iii) Special Qualifications required for Recruitment; (iv) Onerous Duties and Responsibilities of the Post; and (v) Personal sacrifice in terms of loneliness and general withdrawal from the community affairs.
14.48 We may now examine these aspects in turn:
(i) The Pivotal Role of Subordinate Judiciary :
14.49 In our judicial hierarchy, the subordinate judiciary is the backbone of the system. It is the foundation on which the judicial edifice of the country rests. These subordinate courts play a prominent role, although not an exclusive part in preserving law and order in society. They provide instrumentality for the trial of disputes between individuals and between individuals and States. They quite generally decide delicate issues between Government and private parties. In a large number of cases, they are the final Courts or the Courts of last resort since only a few judgments stand appealed.
14.50 It is in these Courts and not at the hands of the executive or legislature that our citizens feel the keen edge of the law. The dynamics of judicial processes and the factual determination of legal culpability are witnessed by the public only in these Courts5. It is by witnessing such processes, the public confidence and respect to the judiciary is enhanced.
(ii) Essential Characteristics of Judicial Office :
14.51 The person who occupies a judicial office must have manifold personality. It consists of among others, independence, courtesy, patience, dignity, open mindedness, impartiality, thoroughness and decisiveness. Above all, he must have
______________________________________________________________
5. "Judges and Jurors" by T. Vanderbelt C.J. of New Jersey.
social consciousness. Two of these need to be emphasised: (i) Impartiality and (ii) Independence. These are indispensable qualifications of the judge, without which, his character, courage, honesty, wisdom and learning are of little use or value to the litigants. These two essentials are inter-related. Indeed, the judge has to be independent to become impartial.
14.52 Our Constitution makers have ensured that the judiciary is independent of the executive and the legislature. The independence of the judiciary is a basic feature or structure of our Constitution6. There are two dimensions of judicial independence:- (i ) Individual Independence of a judge and (ii) Institutional or collective independence of the Court or Tribunal of which that judge is a member.
14.53 These two dimensions of judicial independence have been succinctly
explained by Lamer C.J. of the Canadian Supreme Court as follows7:
"The individual independence takes within its fold that the judge must be independent in mind so as to determine the cause in question for the purpose of balancing the contradicting views and to render impartial judgment uninfluenced by public clamour. He must be independent in the sense that he should be self-reliant and not submissive. He must be able to take decisions freely without being subject to bias or influence. He has to remain completely

______________________________________________________________
6. S.D. Gupta Vs. Union of India & Others (1981) Supp. SCC 87, 223.
Shri Kumar Padma Prasad Vs. Union of India (1992) 2 SCC 428 at 446, 456.
7. In the matter of reference from the Lt. Governor in the Council regarding remuneration of the judges of the Provincial Courts, decision dated 18 September 1997.
independent with nothing to influence or control him but God and his conscience. While individual independence attaches to individual judges, the institutional or collective independence attaches to the Court or Tribunal as an institutional entity."
The learned Judge then said at p. 58 & 59:
"The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal."
The learned Judge further observed:
"Individual independence was referred to as the "historical core" of judicial independence, and was defined as "the complete liberty of individual judges to hear and decide the cases that come before them" (p.69). It is necessary for the fair and just adjudication of individual disputes. By contrast, the institutional independence of the judiciary was said to arise out of the position of the courts as organs of and protectors "of the Constitution and the fundamental values embodied in it - rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important" (p.70). Institutional independence enables the courts to fulfill that second and distinctly constitutional role."
xxx xxx xxx
"I do not wish to overlook the fact that judicial independence also operates to insulate the courts from interference by parties to litigation and the public generally."
14.54 It is needless to state that the judges have to maintain individual independence and also institutional independence within the financial security provided to them. They cannot fall back on others for support even for themselves or for their family members. They cannot also engage themselves in any avocation or other occupation to supplement their income.
(iii) Special Qualifications required for Recruitment :
14.55 The Executive Officers are by and large recruited at much younger age than the judicial officers. The qualification for recruitment to the initial cadre of judicial service is a graduate in law followed by one year’s apprentice course for enrolling as an advocate and thereafter a certain number of years’ of practice at the Bar. The Supreme Court has stated that the minimum of such practice should be three years. But in actual practice, the advocates with standing of 4 to 7 years of practice are selected in most of the States. In the result, person entering judicial service does so when he is more than 27 to 30 years of age. It is at a time when his contemporaries who have entered the executive service of the Government with a degree in Arts or Science or with a post-graduate qualification, have already acquired a certain seniority in the service and have come to draw a higher salary. Secondly, the judicial officer having started at a later age has a shorter span of service than the executive officer and that would inevitably affect his career, his pension and other retirement benefits. The Law Commission in its 14th Report has highlighted this aspect to which we have already made a reference earlier.
(iv) Onerous Duties and Responsibilities :
14.56 In the 13th Century, Bracton wrote8 :
"Let not one, who is unwise and unlearned, ascend the judgment seat, which is, as it were, the throne of God . . . . And
_____________________________________________________________
8. Laws and Customs of England Vol. I, 9; Vol. II, 181;
Reproduced in "Judges And Jurors" by Vanderbelt C.J.
when a person is obliged to judge and to be a judge, let him take care of himself, lest by judging perversely and against the laws, through entreaties or for a price, for the advantage of a paltry temporary gain, he presumes to bring upon himself the sadness of external grief . . ."
"A judge ought not only to be wise, but powerful, according to the saying of Solomon. Avoid seeking to be a judge, unless thou art strong in virtue to break through iniquities, lest by chance thou shouldst fear the face of the powerful man, and cause scandal . . . ."
14.57 We have adopted a common law tradition with the adversary system. The lawyers plan the strategy and dig up evidence to present it in Courts. The lawyers of two sides battle it out to win the case for their client. But the goal of winning by both sides would be inconsistent with the quest for truth. The judge is the only person distinterested in the outcome of the case and sees to it that both sides obey the rules of the game. He has to determine the admissibility of the evidence or the non-admissibility of the evidence. He is a judge of both the law and the facts. He has to completely and effectively control the Court and conduct of the case. He has to bear it in mind that the sole object of the judicial machinery is to find out the nugget of truth from the conflicting versions. He cannot, therefore, sit quietly and see the manifest wrong done either by the party or by the Counsel. He cannot allow the wrong to be done by any party.
14.58 Ultimately, when one party loses, there would be deep strain, mistrust and hostility. The Judge must use every bit of his experience and, if possible, elicit any relevant additional facts so as to determine the truth behind what are often conflicting stories of witnesses and parties. In the process, the Judge is really battered.


14.59 Particularly, now-a-days, the trial judges have no simple trials which their predecessors used to do. Instead, the present judges have complicated, both civil and criminal cases, involving dozens of issues. In each case, they have to examine a number of witnesses. They have to go through innumerable documents which are some times in the language with which they may not be familiar. Added to that, they are faced with conflicting views of different High Courts on the same or similar question.
14.60 The judges have to work continuously both on the Bench and off the Bench. They do not have a calm and detached atmosphere in the Court and they have to work in a charged atmosphere.
14.61 Adroitly, the Supreme Court observed9:
"It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly upto their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. . ."
14.62 In the All India Judges’ Association case10 the Supreme Court has recognised some of the distinct nature of duties of trial judges in the following observations:
"There is also no similarity in the nature of sedentary work done by the Judge and the members of the other services. The sedentary work is mainly of two types -mechanical and creative. Each case
_____________________________________________________________
9. K.P. Tiwari v. State of Madhya Pradesh AIR 1994 SC 1031 and 1032.
10. AIR 1993 SC 2493 and 2508.
coming before the Judge has its own peculiarities requiring application of the fresh mind and skill. The judge has constantly to be a creative artist. His work, therefore, requires constant thinking and display of talent. The exertions involved in the duties of the Judge cannot be compared with the duties of other services ......"
14.63 The Court has also quoted with approval the following passages from David Pannick’s book "Judges".
"The reasons which judges must give to justify their decisions can be gnawed over at their leisure by the teams of lawyers trained (and generously paid) to extract for the purpose of an appeal, every morsel of error . . . . The Judge has the burden of resolving, day after day and week after week, a long succession of issues, each one of which occupies the professor-critic for months and even years of specialized study."
xxx xxx xxx
"The judge has burdensome responsibilities to discharge. He has power over the lives and livelihood of all those litigants who enter his court . . . . . . His decisions may well affect the interests of individuals and groups who are not present or represented in court. If he is not careful, the judge may precipitate a civil war . . . or he may accelerate revolution . . . He may accidentally cause a peaceful but fundamental change in thepolitical complexion of the country."
"Judges today face tribulations, as well as trials, not contemplated by their predecessor . . . . . Parliament has recognised the pressures of the job by providing that before the Lord Chancellor recommends any one to the Queen for appointment to the Circuit Bench, the Lord Chancellor ‘shall take steps to satisfy himself that the person’s health is satisfactory’. . . . This seems essential in the light of the reminiscences of Lord Roskill as to the mental strain which the job can impose . . . . Lord Roskill added that, in his experience, ‘the work load is intolerable; seven days a week 14 hours a day’ . . . ."
xxx xxx xxx
"He (judge) is a symbol of that strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape."
"The qualities desired of a judge can be simply stated: ‘that if he be a good one and that he be thought to be so’. Such credentials are not easily acquired. The judge needs to have ‘the strength to put an end to injustice’ and ‘the faculties that are demanded of the historian and the philosopher and the prophet’."
14.64 In the usual cases there may not be much difficulty for the judges to come to any conclusion, either on facts or on law. But, the problem arises in the unusual cases. As Chief Judge, Learned Hand11 puts it:
"the customary law of English-speaking peoples stands, a structure indubitably made by the hands of generations of judges, each professing to be a pupil, yet each in fact a builder who has contributed his few bricks and his little mortar, often indeed under the delusion that he has added nothing. A judge must manage to

_____________________________________________________________
11. HAND, THE SPIRIT OF LIBERTY 130 (1953 edn.)

escape both horns of this dilemma; he must preserve his authority by cloaking himself in the majesty of an overshadowing past; but he must discover some composition with the dominant trends of his time - at all hazards he must maintain that tolerable continuity without which society dissolves, and men must begin again the weary path up from savagery."
(v) Personal sacrifices in terms of loneliness and general withdrawal from the community affairs :
14.65 There is an old saying that a judge shall live like a hermit and work like a horse. This may be an extreme term, but nonetheless it is accepted that a judge cannot lead a life like others.
14.66 It is well recognised that a judge shall not have extra-judicial activity, which may conflict with the judicial obligations. Even if there is any extra-judicial activity, it shall be conducted in such a way that it does not cast any reasonable doubt on his capacity to act as a judge or interfere with the performance of judicial functions.
14.67 The judge shall not have social relationship. He shall not act or permit his relative or others to give an impression that they are in a special position to influence him.
14.68 The judge shall not seek membership of any club or society or a company or any organisation. He shall not serve as a Director or a Trustee or non-legal or legal advisor of any company or organisation.
14.69 The judge shall not use or permit use of the prestige of his judicial office for any fund raising or membership solicitation.
14.70 The judge shall not make any public comment that is likely to impair his fairness in the trial. He should disqualify himself in the proceedings in which his impartiality is likely to be questioned.
14.71 The judge shall not have any transaction or continuing business relationship with a lawyer or other persons. Even his spouse or other family members who are residing with him shall not have such business relationship. They shall not even accept any gift or compliment from the public.
14.72 These are the judicial ethics which are not exhaustive but only illustrative.
14.73 The Commission has also to take into consideration that the judicial salaries in real terms have been considerably eroded by the application of tapering neutralisation formula for compensating the price increases, especially at higher levels.
14.74 Having regard to these, and other aspects, it is necessary to have an appropriately designed remuneration system which must serve as a key factor for recruitment, retention and motivation of judges to ensure proper administration of justice.
14.75 The Commission considers that a poorly designed remuneration system is likely to manifest itself in the recruitment of poor quality of judges which will inevitably lead to undesirable levels of judicial performance.
14.76 We are reminded of the observations made by the Chief Justice Marshall12:


_____________________________________________________________
12. Proceedings and Debates of the Virginia Convention of 1829-1830, 619 (1830).
(Reproduced in "Judges and Jurors" by Vanderbelt , Chief Justice, p.24).


". . . . . . . . No Sir. I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant, a corrupt, or a dependent judiciary."
14.77 The scale of pay and other emoluments to Judicial officers are to be evolved to avoid such a judiciary in our country.

* * * * *


15. EVOLUTION OF NEW PAY SCALES
GENERAL BACKGROUND :
15.1 Hitherto the salary of the Judicial Officers was linked with that of the administrative executive which we may say was a historical accident. There was only one service in the State viz., Indian Civil Service for recruiting candidates for the Judicial as well as the Administrative Service. This practice was prevalent in the pre-independence era. During those days, there was no clear demarcation between the judicial and executive services and the same officers used to perform both judicial and executive functions. But after the promulgation of the Constitution of India, the judiciary has been separated from the executive. Consequently, the continuation of the linkage between the service conditions of the Judicial Officers and those of the administrative executives would be anachronistic and inconsistent.
15.2 The Supreme Court has made this point beyond doubt in stating that1
"the judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators and the

1. (1993) 4 SCC 288 at 295.
judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the legislators and the Judges, and not between the Judges and the administrative executive."
15.3 The Supreme Court went on to state :
"36. We have already discussed the need to make a distinction between the political and the administrative executive and to appreciate that parity in status can only be between Judges and the political executive, and not between Judges and the administrative executive. Hence the earlier approach of comparison between the service conditions of the Judges and those of the administrative executive has to be abandoned and the service conditions of the Judges which are wrongly linked to those of the administrative executive have to be revised to meet the special needs of the judicial service. Further, since the work of the judicial officers throughout the country is of the same nature, the service conditions have to be uniform."
15.4 The Commission is thus required to determine the uniform pay scales to three cadres of the Judicial Service. Since it is a virgin field and not a trodden ground, the Commission engaged the Services of a professional body viz., the Indian Institute of Public Administration (IIPA), New Delhi as the Consultant for the purpose.
15.5 IIPA has a distinguished and experienced faculty in the fields of Economics, Financial Management including Public Finance; Human Resources Development and Behavioural Studies; Management Studies, Public Enterprises and Computer Applications, Public Policy, Planning and Environmental Studies; Social Welfare Administration and Administration of Justice; Rural Studies; and Urban Studies.
15.6 The Commission gave the following terms of reference to the IIPA:
1. To analyse the existing pay structre and conditions of service of the Judicial Officers in the States and Union Territories.
2. To examine and compare the pay structure and conditions of service of the Subordinate Judicial Service with those of Civil Servants.
3. To evolve broad principles which should form the basis of determining the pay structure and other emoluments for the Subordinate Judiciary in the country.
4. To suggest a rational pay structure and other emoluments for the members of Subordinate Judiciary of the States and Union Territories.
15.7 Mr. M.C. Gupta, Director of the IIPA and his designated team, viz., Mr. O.P. Minocha and Prof. S.S. Singh, have taken a special interest in the study.
15.8 They, with the assistance of the Commission prepared and circulated a Questionnaire seeking the views and opinions from Judges and other persons of different walks of life across the country in respect of the above aspects. They have carefully studied their responses.

15.9 They have studied the existing pay structure and remuneration policies of Judges in England, Australia, USA and Malaysia. They have prepared a very useful report which has been submitted to the Commission on 13th August 1998.
15.10 The Report of IIPA consists of 5 Chapters.
15.11 Chapter 1 deals with the importance of judicial system.
15.12 Chapter 2 deals with the general principles governing the determination of pay structure, the retirement / superannuation arrangements, and other aspects of compensation. The purpose of the Chapter is to highlight as to how the pay structure helps in attracting competent persons, maintaining their morale and motivation and to retain such competent members of judiciary. The approach taken by all the previous five Central Pay Commissions has been discussed in this Chapter.
15.13 Chapter 3 deals with the international experience of judicial remuneration.
15.14 Chapter 4 gives an account of the discussion held by the IIPA with the members and the office-bearers of the Judges' Associations of Andhra Pradesh, Kerala, Karnataka, Tamil Nadu, Uttar Pradesh, Delhi and others.
15.15 Chapter 5 deals with the approach taken by the IIPA to work out a rational pay structure.
15.16 The Report gives the personal profile of 200 Judges across the country whose views have been considered by the IIPA. The personal profile including their experience in judiciary, quantum of their work-load in terms of hours of work, their monthly expenditure and the criteria to determine the pay structure have been set out in six Tables. This is a very useful information giving the insight to the problem presented.

17.For immediate reference, those Tables are hereunder extracted :
TABLE- 1 : Personal Profile of the Respondents
Designation
Number
Percentage
District Judge / Additional District Judge
80
40.0
Civil Judge (Senior)
74
37.0
Civil Judge (Junior)
46
23.0
Total
200
100.0
15.18 Out of the total respondents, majority (79.5%) have joined the service after obtaining their Law Degrees. Further, 20% had possessed post graduate degrees in Law. The details are given in Table - 2.

TABLE - 2 : Educational Background of the Respondents
Educational Qualification
Number
Percentage
LL.B., B.A.
159
79.5
LL.M.
11
5.5
M.A., LL.M.
29
14.5
Ph.D.
1
0.5
Total
200
100.0

15.19 Analysis of the experience in services of the respondents reveals that about 28% of them have got an experience of 15-20 years and another 15.5% have got more than 20 years experience. The respondents are fairly distributed in respect of their experience. Taking cognizance of the distribution of respondents in experience, we can conclude that the views of the judges are quite representative in character. The details are given in Table - 3.

Table - 3 : Experience of the Respondents
Experience (years)
Number
Percentage
31
31
15.50
5 - 10
44
22.00
10 - 15
38
19.00
15 - 20
56
28.00
20 - 25
31
15.50
Total
200
100.0

15.20 Analysis of the quantum of work load reveals that about 61% of the Judges spent about 5-7 hours and another 7% even more than 7 hours in the Court room. About 78% of the Judges, it is found that they spend 2-5 hours in preparing cases. Further, most of the Judges are required to spend considerable time after court hours and during holidays (21%) and 7-9 hours (8.5%) per day. All this demonstrates that Judges are required to spend long hours per day in discharging their duties. The details are given in Table - 4.









TABLE - 4 : Quantum of Work-load in Terms of Hours of Work
Details
Number of hours
2 - 5
5 - 7
7 - 9
More than 7
NA
Rare
In the Court Room
64
(32%)
122
(61%)
14
(7%)
-
-
-
Preparation for hearing cases
156
(78%)
39
(19.5%)
3
(1.5%)
-
2
(1%)
-
After Court hours & during holidays
141
(70.5%)
42
(21%)
17
(8.5%)
-
-
-
Meetings & other official engagements
118
(59%)
1
(0.5%)
-
-
28
(14%)
53
(26.5%)
Total number of hours (on an average per day) which is required to keep updated with latest aspects of judicial profession
147
(73.5%)
25
(12.5%)
11
(5.5%)
16
(8%)
1
(0.5%)
-



15.21 In the context of expected standard of living all the j udges are required to spend a considerable amount on different items. About 16.5% of the judges are spending more than Rs.10,000/- per month and another 6.0% are spending more than Rs.12,000/- per month. However, majority of the judges (54%) are spending upto Rs.8,000/- per month on different items of their normal household activities. The details are given below :









Table - 5 : Monthly Expenditure Profile of Judges
Monthly Expenditure (Rs.)
Number
Percentage
2000 - 4000
11
5.50
4000 - 6000
42
21.00
6000 - 8000
55
27.50
8000 - 10000
47
23.50
10000 - 12000
33
16.50
12000 & above
12
6.00

15.22 IIPA had asked the judges (respondents) to indicate the criteria that could be adopted for determining the pay structure to the judicial officers. Most of the judges have indicated that the 'nature of work' followed by the 'quantum of work' involved and morale of the judicial officers are the most important factors. The details of the criteria with ranking to determine the pay structure to the judicial officers is given in Table - 6.










TABLE - 6 : Criteria with Ranking to determine the Pay Structure - details regarding
Criteria
Ranks
I
II
III
IV
V
VI
VII
VIII
Total
Equal pay for equal work
43
(21.5)
12
(6.0)
18
(9.0)
16
(8.0)
30
(15.0)
33
(16.5)
42
(21.0)
6
(3.0)
200
(100.0)
Model Employer
4
(2.0)
11
(5.5)
4
(2.0)
9
(4.5)
18
(9.0)
65
(32.5)
59
(29.5)
30
(15.0)
200
(100.0)
Social Responsibility
29
(14.5)
26
(13.0)
30
(15.0)
35
(17.5)
35
(17.5)
15
(7.5)
27
(13.5)
3
(1.5)
200
(100.0)
Capacity of the Govt. to pay
1
(0.5)
2
(1.0)
6
(3.0)
16
(8.0)
9
(4.5)
15
(7.5)
26
(13.0)
125
(62.5)
200
(100.0)
Nature of Work
75
(37.5)
35
(17.5)
24
(12.0)
42
(21.0)
15
(7.5)
4
(2.0)
3
(1.5)
2
(1.0)
200
(100.0)
Quantum of work involved
3
(1.5)
64
(32.0)
48
(24.0)
28
(14.0)
37
(18.5)
10
(5.0)
6
(3.0)
4
(2.0)
200
(100.0)
To retain the morale of judicial officers
38
(19.0)
53
(26.5)
35
(17.5)
21
(10.5)
21
(10.5)
19
(9.5)
9
(4.5)
4
(2.0)
200
(100.0)
Qualification
8
(4.0)
6
(3.0)
36
(18.0)
46
(23.0)
17
(8.5)
47
(23.5)
27
(13.5)
13
(6.5)
200
(100.0)