MPSC 2021 Prelims Paper-I · Question 74 of 100

Correct — option (4), Neither (a) nor (b). The question prints only two statements, (a) and (b), and both of them are wrong, which is why the option denying both is the answer. Take statement (a) first. Article 233(1) of the Constitution provides that appointments of persons to be district judges in a State, and their posting and promotion, shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to that State. The appointing authority is therefore the Governor, not the Chief Justice of the High Court. The High Court's role is real and substantial — the Governor must consult it, and for a candidate coming from the Bar rather than from the judicial service Article 233(2) requires that the High Court recommend him, besides requiring at least seven years' practice as an advocate or pleader — but consultation and recommendation are not appointment. The statement puts the whole power in the hands of an authority that in fact holds only a part of it. Statement (b) fails even more plainly. No provision of the Constitution gives the Chief Minister any authority over a district judge, and the design of Chapter VI of Part VI is precisely to keep the political executive out of the working life of the subordinate judiciary. Article 235 vests in the High Court the control over district courts and the courts subordinate to them, including the posting, promotion and grant of leave of members of the judicial service holding posts inferior to that of district judge, and the courts have read that control as the guarantee of the independence of the subordinate judiciary. Where the executive does appear, at the stage of appointment under Article 233 and of the framing of rules under Article 234, it appears as the Governor acting on the advice of the council of ministers as a whole and after consulting the High Court and, for the lower judicial service, the State Public Service Commission — never as an individual minister exercising a personal power to move a judge. So statement (a) names the wrong authority for a real power and statement (b) invents a power that does not exist. The option to select is the one that rejects both. It is worth noting the shape of the question, because it recurs: this is one of the seven questions in this paper that print only two statements, and a two-statement stem always carries an option denying both, which is a genuine answer and not a formality.

• (1)Only (a) — This accepts statement (a), that a district judge is appointed by the Chief Justice of the High Court. The Constitution says otherwise: under Article 233(1) the appointment, posting and promotion of district judges are made by the Governor of the State in consultation with the High Court. The distinction between the appointing authority and the consulted authority matters, and it is tested repeatedly. It is easy to see why the statement attracts candidates — the High Court's opinion carries decisive weight in practice, and for direct recruits from the Bar the High Court's recommendation is a constitutional precondition — but the formal act of appointment is the Governor's. Note also that the statement names the Chief Justice personally, whereas Article 233 speaks of the High Court as an institution; consultation is with the court, not with an individual judge, which is a second reason the statement is inaccurate.
• (2)Only (b) — This accepts statement (b), that the Chief Minister may transfer a district judge. No such authority exists anywhere in the Constitution. The control over district courts and the courts subordinate to them is vested by Article 235 in the High Court, and that control is the mechanism by which the independence of the subordinate judiciary is secured; the executive's role is confined to the appointment stage under Article 233 and the rule-making stage under Article 234, and even there it is the Governor who acts, after consulting the High Court and, for the lower judicial service, the State Public Service Commission. A Chief Minister with power to move a judge from one station to another would be able to reward and punish judges deciding cases involving his own government, which is exactly the mischief the constitutional scheme was designed to prevent, and Article 50 among the Directive Principles states the underlying policy of separating the judiciary from the executive.
• (3)(a) and (b) — This accepts both statements, and both are wrong, so it compounds the two errors rather than correcting either. It is worth pausing on why a candidate might be drawn to it. Both statements sound administratively plausible: somebody must appoint district judges and somebody must move them between stations, and the two names offered — the Chief Justice of the High Court and the Chief Minister — are the senior figures of the judiciary and of the executive in a State. The constitutional answer is that these two functions are deliberately split in an unexpected way. Appointment is an executive act performed by the Governor but conditioned on consulting the court, while control over the working of the district courts, including postings and transfers within the subordinate judiciary, belongs to the High Court and not to the executive at all. Neither function sits where this option places it.

The subordinate judiciary is governed by Chapter VI of Part VI of the Constitution, Articles 233 to 237. Article 233 provides that appointments of persons to be district judges, and their posting and promotion, are made by the Governor of the State in consultation with the High Court; a person not already in the service of the Union or the State is eligible only if he has been an advocate or pleader for at least seven years and is recommended by the High Court for appointment. Article 234 deals with recruitment to the judicial service below the rank of district judge, which is made by the Governor in accordance with rules framed after consultation with the State Public Service Commission and with the High Court. Article 235 vests in the High Court the control over district courts and courts subordinate to them, including the posting and promotion of, and the grant of leave to, members of the judicial service holding posts inferior to that of district judge — the provision on which the independence of the subordinate judiciary rests. Article 236 defines 'district judge' widely, to include the judge of a city civil court, an additional district judge, a joint district judge, an assistant district judge, the chief judge of a small cause court, a sessions judge, an additional sessions judge and an assistant sessions judge. Article 237 allows the Governor to extend these provisions to any class of magistrates. Behind the whole chapter stands Article 50, a Directive Principle requiring the State to take steps to separate the judiciary from the executive in the public services. Proposals for an All India Judicial Service under Article 312, which would require a resolution of the Rajya Sabha supported by a special majority, have been discussed for decades without being carried into effect.

MPSC examines the judiciary at three levels — the Supreme Court, the High Courts and the subordinate courts — and the subordinate judiciary is asked more often than candidates expect, because it involves a division of powers between the Governor, the High Court and the State Public Service Commission that is easy to state and easy to muddle. The Commission's habitual device is to move a function from one of these authorities to another and see whether the candidate notices, which is exactly what both statements in this question do. Two-statement questions of this kind also test something else: the willingness to reject everything. Candidates who have decided in advance that at least one statement in any list must be true will not seriously consider the option denying both, and will pick whichever statement seems less objectionable. The discipline is to judge each statement against the constitutional text on its own, and then to accept whatever verdict the pair produces. For a Maharashtra candidate the topic has a further use: questions on the State judiciary, on the High Court at Bombay and its benches, and on the district courts often draw on the same chapter of the Constitution.

• Article 233(1): appointments of persons to be district judges, and their posting and promotion, are made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to that State — the Governor appoints, the High Court is consulted.
• Article 233(2): a candidate who is not already in the service of the Union or the State is eligible for appointment as a district judge only if he has been an advocate or pleader for at least seven years and is recommended by the High Court.
• Article 234: recruitment to the judicial service below the rank of district judge is made by the Governor in accordance with rules framed after consultation with the State Public Service Commission and the High Court.
• Article 235 vests control over district courts and courts subordinate to them in the High Court, including the posting and promotion of and the grant of leave to members of the judicial service below the rank of district judge; no Chief Minister or other individual minister has any such authority.
• Article 50, a Directive Principle, requires the State to take steps to separate the judiciary from the executive in the public services, which is the policy underlying the whole of this chapter.

• Confusing the appointing authority with the consulted authority: district judges are appointed by the Governor in consultation with the High Court, not by the Chief Justice of the High Court
• Giving an individual minister a power over the judiciary, when the Constitution vests control over the district and subordinate courts in the High Court under Article 235
• Assuming that at least one statement in a two-statement question must be true, and so never seriously considering the option that denies both
• Mixing up Article 233, which covers district judges, with Article 234, which covers recruitment to the judicial service below that rank and brings in the State Public Service Commission

The judiciary is a standing topic in MPSC's polity section, and the subordinate courts are asked through the division of functions among the Governor, the High Court and the State Public Service Commission, through the eligibility conditions for direct recruitment from the Bar, and through the definition of 'district judge' in Article 236, which is broader than candidates expect. The Commission frequently uses two-statement and three-statement formats here, with one statement altering the appointing authority and another inventing a power for the political executive. Expect related questions on the appointment and transfer of High Court judges, on the collegium, on the qualifications for a High Court judge, and on the writ jurisdiction. A candidate who can recite which authority appoints, which is consulted and which controls, for each level of the judicial hierarchy, has most of this area covered.

No directly related past PYQ was found.

• practice — not a real PYQ

  Under Article 233 of the Constitution, an advocate is eligible for direct appointment as a district judge if he has practised as an advocate or pleader for not less than

  • (a)five years
  • (b)seven years
  • (c)ten years
  • (d)twelve years

  Answer(b) Seven years — Article 233(2) provides that a person not already in the service of the Union or of the State is eligible to be appointed a district judge only if he has been an advocate or a pleader for not less than seven years and is recommended by the High Court for appointment. Ten years is the period of practice required of an advocate for appointment as a judge of a High Court under Article 217, and the two figures are frequently confused. The appointment itself, in either case, is made by the executive — by the Governor for a district judge and by the President for a High Court judge.

• practice — not a real PYQ

  The control over district courts and the courts subordinate to them, including the posting and promotion of and the grant of leave to members of the judicial service below the rank of district judge, is vested in

  • (a)the Governor of the State
  • (b)the State Public Service Commission
  • (c)the High Court
  • (d)the Department of Law and Judiciary of the State Government

  Answer(c) The High Court — Article 235 places this control in the High Court, and it is the provision on which the independence of the subordinate judiciary rests, since it keeps the day-to-day service conditions of judges out of the hands of the political executive. The Governor appears at the stage of appointment under Articles 233 and 234, and the State Public Service Commission is consulted on the rules for recruitment to the judicial service below the rank of district judge, but neither exercises control over the working of the courts thereafter.