CHAPTER-4

INDEPENDENCE OF THE JUDICIARY:

A CONSTITUTIONAL RESPONSE

'*The place of Justice is a hallowed place, and therefore not

only the Bench, but also the foot space and precincts and
purpose thereof ought to be preserved without scandal and
corruption".

**On Judicature** by Francis Bacon

I. Introduction

Democracy, as envisaged in our Constitution proceeds on the

fundamental postulate that ultimately political sovereignty vests in the
people of the country. This sovereignty gains social reality and
dynamic viability only of the constitutional instrumentality submits
tacitly to the broad oversight of the sovereign people. ^ But the people
in general obviously cannot exercise monitoring, controlling,
disciplining and perform the like function. Therefore, need is for
checks and balances so that power vested anywhere may not go
haywire and may become amendable to the constitutional
fundamentals and answerable to those who are the ultimate masters
or donors of the power.2 The founding fathers of the Indian
Constitution, keeping democratic principles (transparency and
accountability) in view, demarcated and delineated powers of three
organs of the government with an understanding that each organ will
power perform its assigned role and will endeavour to bring life to the
goals enshrined in the Preamble. They also enshrined sufficient
provisions to make the three instrumentalities of government

' Arti Puri, The J u d g e s (Inquii-y) Bill, 2 0 0 6 vis-d-uis Accountability of Higher

J u d i c i a r y in India, M.D.U. Law Journal, 2 0 0 7 Volume XII, Part-II, p. 156.
^ V.R. Krishna Iyer, Judicial Accountability to the Community: A Democratic
Necessity, Economic and Political Weekly, J u l y 2 7 , 1 9 9 1 , Volume XXVI, No.30, p .
1808.

144
accountable for any act of omission or commission committed on their
part through transparent methods.3

India practices constitutional governance by rule of law. Be it

legislature, executive or judiciary; all are creatures of the Constitution
of India, 1950. In this democratic set up, the judiciary is an impartial
umpire that resolves disputes within the boundaries laid down by a
Written Constitution and distribution of constitutional powers
between different organs, namely, Parliament, State Legislatives and
Executive."^ An independent judiciary is expected by every citizen of
the country and is not only a fundamental right, but is also a part of
the basic structure of our Constitution.^

Independence of the judiciary is one of the basic structures of

the Indian Constitution and has also been recognised as a human
right by international conventions.^ In our Constitution, three wings of
Government are enshrined, and each of these three wings of
government has to work independently in spite of the fact that they
are inter connected with each other.^ Justice Krishan Iyer observed for
distinction that judiciary has to draw the line between individual
liberty and social control. The objective of justice is deeply enshrined
in the Preamble of the Constitution of India. In fact, judiciary does not
only dispense justice between one individual and the other or between
one group of people and the other, it also does justice in the
controversies arising between individuals and States, State's State. All
the above responsibilities can be discharged only when the country
has an authoritative, independent and impartial judiciary.^

3 Sunil Deshta, Crisis in Indian Judiciary; Need to Revamp, Orient Journal of Law
and Social Sciences, April, 2009, Volume. Ill, Issue 5 p. 17.
S.B., Sinha, Judicial Independence, Fiscal Autonomy a n d Accountability, Nyaya
Deep, J a n u a r y 2 0 0 6 , p. 2 1 .
Ibid.
Subhojit S a d h u , Judicial Accountability of the Indian J u d i c i a r y , Supreme Court
Journal, J u l y 2 0 0 7 , p.27.
Nidhi Bansal, Accountability a n d J u s t i c e Delivery System of Judiciary- An
Analysis, Kurukshetra Law Journal, 2 0 0 1 - 2 0 0 6 , p . 102.
Ibid.

145
 The independence and impartiality of the judiciary is one of the
hallmarks of the democratic system of the government. Only an
impartial and independent judiciary can protect the rights of the
individual and can provide equal justice without fear and favour. The
Constitution of India provides many privileges to maintain the
independence of judiciary.^ If the Preamble to our Constitution be
regarded as the reflection of the aspirations and spirit of the people,
then one thing that even a layman will not is that among the various
goals that the Constitution-makers intended to secure for the citizen"
JUSTICE-Social, Economic 86 Political" has been mentioned before the
r e s t . 10

II. Nature and Scope of Independence of Judiciary

The nature and concept of independence of judiciary is of

modern origin and accepted as a hall-mark of a liberal democratic
state". 11 Independence of judiciary means a fair and neutral judicial
system of a country, which can afford to take its decision without any
interference of executive or legislative branch of government. In other
words, judges should be independent and free from restrictions,
inducement, influence, pressures and threats direct or indirect from
executive or legislative. Not only this, judges must be independent and
free of their colleagues and superiors in discharge of their judicial
functions. 12 The term 'independence' has neither been defined in the
Constitution of India nor in the General Clause Act. Hence, for a
proper comprehension of the meaning of the term 'independence' it is
necessary, first to examine its dictionary meaning and then its legal

'' H.M., Seervai Constitutional Law of India, 147(1991).

'0 Preamble to the Constitution says- "We, the People of India having solemnly
resolved to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought ;
EQUALITY of. ;
FRATERNITY. ;
" The concept of I n d e p e n d e n c e of J u d i c i a r y is child of democracy more so
constitutional democracy.
'^ Sunil Deshta, I n d e p e n d e n c e a n d Accountability of J u d i c i a r y in India: Problems
a n d Solutions, Orient Journal of Law and Social Science, March 2 0 0 9 , Volume III,
Issue 4, p. 49.

146
meaning. A dictionary meaning ascribes to it, "the state of being not
dependent on another persons or things for support or supplies". ^^ In
a literal sense, independence means absence of external control or
support. 1"^ In other words, it signifies something that it is not
dependent on or controlled by any other agency or authority. In legal
parlance, independence of judiciary mean the power of upholding
without fear or favour, the rule of law, personal freedom and liberty,
equality before law and impartial and effective judicial control over
administrative and executives actions of the government. ^5 Beijing
Statement of independence of the Judiciary (a statement resulting
from the cumulated views of thirty two Asian and Pacific Chief
Justices) defined in its report as a judiciary uninhibited by outside
influences which may jeopardize the neutrality of jurisdiction, which
may include, but is not limited to, influence from another organ of the
government (functional and collective independence) from the media
(person independence), or from the superior officers (internal
independence). 16 Substantive independence of the Judges refers to
as:-

A. Functional or decisional independence which means the

independence of judges to arrive at their decisions without
submitting to any inside or outside pressure;

B. Personal independence which means the judges are not

dependent on government in any way in which might influence
them in reaching at decision in particulars cases;

C. Collective independence which means institutional

administrative and financial independence of judiciary as a
whole vis-a-vis other branches of the government namely the
executives and the legislative ; and

13 See, Wabster's Third New International Dictionary of the English Language,

Volume II, Encyclopaedia Britanica Inn., London 1148(1966).
i4 See, Oxford Advanced Learner's Dictionary of C u r r e n t English, 4 3 2 - 4 3 3 (1987).
15 L.M., Singhvi, I n d e p e n d e n c e of J u s t i c e , Indian Bar Review, 1987, Volume 14, pp.
515-517.
ifi Supra n. 12 at 49.

147
 D. Internal independence which means independence of judges
from the judicial superiors and colleagues. It refers to, in other
words, independence of a judge or judicial officer from any kind
of order, indication or pressure from his judicial superiors and
colleagues in deciding cases.^'^

Therefore, independence of judiciary depends on some certain

conditions like mode of appointment of the judges, security of their
tenure in the office and adequate remuneration and privileges,
jurisdiction of courts over all issues of judicial nature, principles of
non-interference by other branches of government in judicial functions,
entitlement of judges to certain fundamental freedoms, posting,
promotion, transfer, immunities, disqualification, discipline and
removal and court administration. Satisfactory implementation of
these conditions enables the judiciary to perform its due role in the
society thus inviting public confidence in it.

The independence of judiciary is not to be determined in all its

ramifications as some apriori concept but it has to be determined
within the framework of the Constitution. The thrust is to ensure that
adjudication is untrammelled by external or controls and
independence of judiciary under the constitution is confined to the
adjudicatory functions of the courts or Tribunals and they are
insulated from executives control in that behalf. ^^

A notable feature of the Indian Constitution is that it accords a

dignified and crucial position to the judiciary in India. The existence of
a fearless and independence judiciary is thus founded in the
constitutional structure in India. ^^ In the celebrated decision of the
Supreme Court in S.P. Gupta v. Union of India,20 the court held that

" Id at 49-50.
^^ Sunil Deshta, a n d Kamal J e e t Kaur; Sooch, Philosophy of Judicial
Accountability: An Introspection, Civil and Military Law Journal, April-June
2 0 0 9 , pp. 5 4 - 5 5 .
'^ K.C., J e n a , J u d i c i a l Independence a n d Accountability, A Critique, Indian Bar
Review, (4) 2 0 1 2 , Volume XXXIX, p. 12.
^0 1982(2) s e c 8 3 1 .

148
"the concept of independence of the judiciary is a notable concept
which inspires the constitutional scheme and constitutes the
foundation on which the edifice of our democratic polity rests. If there
is one principle which runs through the entire fabric of Constitution, it
is the principle of the rule of law under the Constitution; it is the
judiciary which is entrusted with the task of keeping every organ of the
state within the limits of the law thereby making the rule of law
meaningful and effective".

III. Necessity for Independence of Judiciary

In democratic countries, the judiciary is given a place of great

significance. Primarily, the courts constitute a dispute- resolving
mechanism. The primary function of the court is to settle disputes
and dispense justice between one citizen and another. But courts also
resolve disputes between one citizen and another. But courts also
resolve disputes between the citizen and the state and the various
organs of the state itself.21 The need or necessity of independent
judiciary is deeply rooted in the conception of Written Constitution.22
Because the Written Constitution is considered basic law of land and
requires some authority to interpret it. In absence of such authority,
the Constitution would create disorder than order in the society.
Hence, independence of judiciary is not only necessary but important.
In many countries with Written Constitution, there prevails the
doctrine of judicial review. It means that the Constitution is supreme
law of the land and any law inconsistent therewith is void. The courts
perform the role of expounding the provisions of the Constitution and
exercise power of declaring any law or administrative action which
may be inconsistent with the constitution as unconstitutional and
hence void. This judicial function stems from a feeling that a system
based on a Written Constitution can hardly be effective in practice

2' M.P. Jain, Indian Constitutional Law, 1553 (2008).

22 The very existence of Written Constitution requires an independent authority to
interpret it. Hence independent judiciary is necessary under the scheme of
Written Constitution.

149
without an authoritative, independent and impartial arbiter of
constitutional issues and also that it is necessary to restrain
governmental organs from exercising powers which may not be
sanctioned by the Constitution.23

The architects of the Indian Constitution were conscious of the

very significant and special role assigned to the judiciary in the
scheme of the Constitution. It was envisaged as the organ for
protecting the rights of the citizens, guaranteed under the
Constitution.2^^ There was the recognition that Judges, particularly the
judges of the superior courts, who have been given the power of
judicial review of administrative and legislative actions, should
function without fear or favour and that the judiciary should remain
totally independent and fully insulated from any external
interference.25 The judges of the superior courts have been confessed
with the power and jurisdiction to review both the executive actions
and the legislative actions of the state on the touchstone of the
constitutional provisions and relevant statutory provisions.26 The
Judiciary plays the imperative role of interpreting and applying the
law and adjudicating upon the controversies between one citizen and
another and between a citizen and the state.

It is a function of the courts to uphold the rule of law and to

ensure that the government runs according to the law. In a country
with a Written Constitution, courts have the additional function of
safeguarding the supremacy of the Constitution by interpreting and
applying its provisions and keeping all authorities within the
constitutional framework. For the maintenance of the rule of law and
fair judicial administration, an independent judiciary is of utmost
importance. Thus, independent judiciary plays an important role in
controlling the arbitrary acts of the administration. If the arbitrary act

^3 Ibid.
^'^ S a i s a n a Bhat, Right to Information v. I n d e p e n d e n c e of t h e Judiciary; A Relook,
Indian Bar Review, (4) 2012, Volume XXXIX, p. 188.
^5 Ibid.
^6 / d o t 187.

150
of the administration causes injury to any person, it provides relief to
them. Independence of judiciary is the sine qua non of democracy.
Only an impartial and independent Judiciary can stand as a bulwark
for the protection of the rights of the individual. The Judiciary is the
protector of the rights of the Constitution and, as such, it may have to
strike down executive, administrative and legislative acts of the Centre
and the State. For Rule of Law to prevail, judicial independence is of
prime necessity.^7 Being the highest court in the land, it is very
necessary that the Supreme Court is allowed to work in an
atmosphere of independence of action and judgement and is insulated
from all kinds of pressure, political or otherwise.

The members of the Constituent Assembly were very much

concerned with the question of independence of the Judiciary and,
accordingly, made several provisions to ensure this end. The Supreme
Court has itself laid emphasis on the independence of the judiciary'
from time to time.^s As the court has observed recently in Thalwal;^^
'*The constitutional scheme aim at securing an independent
Judiciary which is bulwark of democracy".

In a democratic country governed by rule of law, the judiciary is

given a prider of place primarily a dispute resolving mechanism to
settle the disputes and dispense justice between citizen interse or the
citizen the State and its instrumentalities.30 The Indian Constitution,
unlike the Constitution of USA, expressly conferred power of judicial
review by Article 32 on the Supreme Court of India and Article 226
and 227 by the State High Courts. In 9 * November, 1948, Dr.
Ambedkar declared in the Constituent Assembly that Article 32 is the
"soul" and "Conscience" of the Constitution implying thereby that the
rights given to the citizens remain nebulous without judicial remedy

^7 Supra n. 22 at 284.
^8 Ibid.
^9 A.C. Thalwal v. High Court of Himachal P r a d e s h , (2000) 7 SCC 19; AIR 2 0 0 0 SC
2732.
30 G.M. Manoher Rao, & G.B, Reddy J u d i c i a r y in India Constitutional Perspectives
271 (2009).

151
which Article 32 does give remedy. Judicial review is sine qua non for
the constitutional governance by the organs of the State and its
instrumentalities. Therefore, while establishing the Supreme Court of
India and the State High Court, in other words the Higher Judiciary,
the founding fathers have taken care to create independent judiciary,
which is the sentinel quivive for vibrant democratic governance.^i

Only an impartial and independent judiciary can stand as a bull

work for the protection of the rights of the citizens and mete out even
handed justice without fear or favour. The judiciary is the protector of
the Constitution and guardian of the rights of the citizens. Therefore,
it may even strike down the Executive, Administrative actions or
Legislative Acts as unconstitutional. For rule of law to prevail judicial
independence is of absolute necessity.32

The basic need for the independence of the judiciary rests

upon the following points

(i) To check the functioning of the Organs

Judiciary acts as a watch dog by ensuring that all the organs of

the state function within their respective area and according to the
provisions of the Constitution. Judiciary acts as a guardian of the
Constitution and also aid in securing the doctrine of separation of
power.

(ii) Interpreting the Provisions of the Constitution

It was well known to the framers of the Constitution that in

future the ambiguity will arise with the provisions of the Constitution
so they ensured that the judiciary must be independent and self-
competent to interpret the provision of the Constitution in such a way
as to clear the ambiguity but such an interpretation must be unbiased
i.e. free from any pressure from any organs like executive. If the
judiciary is not independent, the other organs may pressurize the

31 Ibid.
32 Id at 272.

152
judiciary to interpret the provision of the Constitution according to
them. Judiciary is given the job to interpret the Constitution
according to the constitutional philosophy and the constitutional
norms.

(iii) Disputes Referred to the Judiciary

It is expected of the judiciary to deliver judicial justice and not

partial or committed justice. By committed justice we mean to say
that when a judge emphasized on a particular aspect while giving
justice and not considering all the aspects involved in a particular
situation. Similarly judiciary must act in an unbiased manner.

IV. Institutional Independence

Before the advent of democracy, sovereign powers encompassing

Legislative, Executive and Judicial functions, were exercised by a
single authority. With the advent of democracy which implies
governance with the consent of the governed, the need for Written
Constitution was felt. The Constitution of India is modelled extensively
on the Western Legal traditions reflected in the Constitutions of the
British, American and French nations. The wisdom and intellectual
forsightedness of the founding fathers of our Constitution under the
chairmanship of Dr. B.R. Ambedkar is evident from the fact that
models they chose were of those Nations where, in the words of the
great Statesman and the miost outstanding President of U.S.A
Abraham Lincoln, the Rule of the People, by the People, for the People
were the most enduring and enlighting^^ achievement of the State and
where human rights and Rule of Law had evolved as sacrosanct
instruments of Nation Building.3"*

The Judiciary is one of the important pillars of democracy. It

has more onerous responsible than two other important estates, the
Executive and the Legislative. In fact it is the judiciary and the
institute of judiciary that helps the orderly functioning of

33 Supra n. 30 at 15.
34 IdatXU.

153
parliamentary democracy and the exercise of powers by the various
wing of administrative machinery.35 Under the scheme of the
Constitution, we are provided with three tier judicial system.36

It is true that the quality of justice depends upon the

independence enjoyed by the judiciary. It is very necessary that the
court should be allowed to perform its function in a n atmosphere of
independence and it should be free from all kinds of political
pressures. Judicial independence is not a matter of compromise, it is
the soul and inner strength of the judiciary, which helps it in
safeguarding the Fundamental Rights and civil liberties of the people/
against executive actions and encroachment by other powerful groups
only a n impartial and independent judiciary can protect the rights of
the individual and provide equal justice without fear or favour.
Therefore, founding fathers of the Constitution added a provision in
Part-IV of the Constitution which directs the State to make all out
efforts to keep judiciary out of politics.37 This directive warns the
government for the future, because the independence of the judiciary
means the independence of the judges also. Thus, the judges should
make them accountable and ensure that their actions are transparent
and within the parameters set by the Constitution.38 Independent
judiciary is a tributary of the doctrine of separation of powers for co-
operation as well as co-ordination, in particular amongst and between
the organs of the Government.3^ The Constitution of India h a s made
several provisions to ensure independence of the judiciary. These
provisions include:-

35 Rajnish Kumar Srivastava, & R.B., Srivastava, Judiciary in Constitution,

Independence and Accountability, International Referred Research Journal, July
2011, Vol. Ill, p.7.
^^ The entire scheme of judicial system in India is contained in Articles 124-147,
Articles 214-232 and Articles 233-237. These Articles deals with Supreme Court,
High Court and Subordinate Courts, respectively.
•^^ Article 50 reads that the State shall take steps to separate the judiciary from the
Executive in the public services of the State.
38 Supra n. 19 at 55.
39 Supra n.20 at. 10.

154
(i) Judicial Appointments

Independence and impartiality of judiciary is the hallmark of

democratic set-up of the government. Independence of judiciary starts
from appointment of judges. The appointment of the judges is the
prime and fore-most link in the chain of judicial reform. As Justice
Bhagwati has stated that a right appointment would go a long way
towards securing the right kind of judges who would invest the
judicial process with significance and meaning, for the deprived and
exploited sections of humanity. To enable the Supreme Court and
High courts to discharge their functions impartially, with fear of
favour, the Constitution contains provisions to safeguard their
Executive after consultation with those competent to advice on the
subject.'^o Article 124 deals with the appointment of Judges to the
Supreme Court and Article 217 regarding appointment of Judges to
High Courts. The fasciculus's of Article 124 to 147 in Chapter IV of
Part V under the caption "Union Judiciary" deals with the
establishment and constitution of Supreme Court, the appointment of
judges and their powers rights, jurisdiction and service conditions,
etc., whilst Article 214 to 231 in Chapter V of the Part VI under the
caption " The High court's in the states" deals with the constitution of
High Court, the jurisdiction, the appointment and conditions of the
office of a Judge of a High Court, his powers, rights, service
conditions, including transfer from one High Court to another etc.^i
The power to appoint a judge to the Supreme Court or to a High Court
vests in the President.^^2

The power of appointment of judges of the Supreme Court is to

be found in clause (2) of Article 124 and this clause provides that
every Judge of the Supreme Court shall be appointed by the President
after consultation with such of the Judges of the Supreme Court and

40 Supra n. 12 at .51.
41 See, The Constitution of India, Articles 124 to 147 and Articles 214 to 231
respectively.
4^ See, Article 124(2) and 217(1) of the Constitution of India respectively.

155
the High Courts in the states as the President may deem necessary for
the purpose, provided that in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of India shall always be
consulted. It is obvious on a plain reading of clause (2) of Article 124
that it is the President, which in effect and substance means the
Central Government, which is empowered by the Constitution to
appoint Judges of the Supreme Court. Also Article 217, clause (1)
vests the powers of appointment of Judges of High Courts in the
Central Government, but such power is exercisable only "after
consultation with the Chief Justice of India, the Governor of the State
and the Chief Justice of the High Court". It is clear on a plain reading
of these two Articles that the Chief Justice of India, the Chief Justice
of the High Court and such other Judges of the High Court and of
Supreme Court as the Central Government may deem it necessary to
consult, are merely constitutional functionaries having a consultative
role and the power of appointment resides solely and exclusively in
the Central Government. It is not an unfettered power in the sense
that the Central Government cannot act arbitrarily without consulting
the constitutional functionaries specified in the two Articles but it can
act only after consulting them and the consultation must be full and
effective consultation.

Prof. Shibban Lai Saksena of the members of Constituent

Assembly had suggested that appointment of Judges should be
confirmed by 2/3'^'i majority of the Parliament."^^ This proposition was
rejected by the House because it would compromise the independence
of judiciary and would leave the fate of the judge in the hands of the
executive and legislators. This set the tone for independence of
Judiciary in our country.

The next question that arises for consideration is as to where be

the power to appoint Judges of the High Courts and the Supreme

^ Constituent Assembly Debate on 24 May, 1949.

156
Court located? Who has the final voice in the appointment of Judges
of High Courts and the Supreme Court?

Every Judge of the Supreme Court shall be appointed by the

President by warrant under his hand and seal after consultation with
such of the Judges of the Supreme Court and of the High Courts in
the States as the President may deem necessary.

The bone of contention in this particular section is the word

'consultation', that whether 'consultation' means concurrence or
merely communication.

In S.P. Gupta v. Union of India,^"* the Supreme Court held that

'consultation is a mere suggestion not concurrence and is not binding
on the President.' Their reasons were as follows:-

(i) They followed the judgement in Sankar Chand Sheth.

(ii) They said that Chief Justice of India is also a man with the
flaws and failings of a common man, hence making his view
bindings on the President and the executives may be dangerous
idea.

(iii) They referred the Constituent Assembly Debates where Dr.

Ambedkar strongly opposed the idea.

But now in Supreme Court Advocates on record v. Union of

India,'^^ ^he judgement in S.P. Gupta's Case is now reversed that the
court has held that the opinion of the Chief Justice shall be binding
on the President as he is more competent than other constitutional
machineries to accrue the merit of a candidate.

The judges of the Supreme Court and High Courts have been
given the security of the tenure. Once appointed, they continue to
remain in office till they reach the age of retirement which is 65 years
in the case of judges of Supreme Court (Article 124(2)) and 62 years in
the case of judges of High Courts (Article 217 (1)).

44 AIR 1982 SC 149.

45 (1993) 4 s e c 441.

157
 In the words of the bench in All India Judges Association v.
Union of India,46 "They are not employees of the State holding office
during the pleasure of President/Governor of the State, as the case
may be".

In the words of Prof. K.T. Shah in Constituent Assembly-

"They should not, in any way be exposed to any apprehension of

being thrown out of their work by official or executive displeasure.
They should not be exposed to the risk of having to secure their
livelihood by either resuming their ordinary practice at the bar, or
taking u p some other occupation which may not be compatible with a
judicial mentality, or which may not be in tune with their prefect
independence and integrity."

Therefore, also the subordinate courts fall with in control of

High Court of the State under the Article 235 of the Constitution, and
the appointment of judges of these courts is made by the Governor of
the State in consultation with the High Court, exercising jurisdiction
in relation to the State, the constitutional text. However, this
procedure underwent a change after the three pronouncements of the
Supreme Court, which need to be considered for a fuller and more
incisive understanding of the present scenario and its effect on the
selection and appointment of judges.'*'^

A. The First Judge's Case

In 1982 in S.P. Gupta v. Union of India,48 a Bench of five

judges of the Supreme Court considered the method of appointment of
judges of the Supreme Court and High Court. Both Articles 124 (2) in
relation to Supreme Court Judge and Article 217 (1) in relation to
High Court Judge require an appointment by the President (Which
means the Executive) after "consultation" amongst other functionaries
mentioned in the articles of the Chief Justice of India. The expression

46 AIR 1993 SC 2 4 9 3 .
47 Supra n. 12 at 52.
48 AIR 1982 SC 149.

158
"consultation" does not in ordinary parlance mean "concurrence". The
Constituent Assembly Debates show that when it was suggested by
some of the members that expression should be concurrence and not
consultation, it was not agreed. The court in present case held that
the ultimate power of appointment resided with the Central
Government and that was in accordance with the constitutional
practices prevailing in other democratic countries U.K., Canada, and
Newzealand. The Majority of the court speaking through Justice
Bhagwati said:

**This is of course, not an ideal system of appointment of

Judge, but the reason why the power of appointment of judges is
left to the Executive is responsible to the Legislature and through
the LfCgislature, it is accountable to the people who are
consumers of justice. The power of appointment of judges is not
entrusted to the Chief Justice of India or to the Chief-Justice of
High Court because they do not have any accountability to the
people and even if any wrong or improper appointment is made,
they are not liable to account to anyone for such appointment".

B. The Second Judges's Case

Ten years later in 1993, the Supreme Court in the case of

Supreme Court's Advocates on Record Association v. Union of
India"49 constituted a larger bench of nine judges to consider the
correctness of the First Judge's case, which had held the Chief Justice
of India did not have primacy of his opinion. By a majority, overruling
the First Judge's case, it was held that Chief Justice of India was best
equipped to access the worth of a judge and because it was also
necessary to eliminate political influence on judiciary. The majority in
the Second Judge's case dismissed the view of the First Judge's case
as:

"as easily exploded myth, a bubble which vanishes on a

mere touch. Accountability of the Executive to the people in

49 AIR 1994 SC 268.

159
matter of appointments of superior judges has been assumed, and
it does not have any real basis. There is no occasion to discuss
the merits of any individual appointment in the Legislature on
account of the restriction imposed by Article 121 and 2 1 1 of the
Constitution. Experience has shown that it also does not form a
past of the manifesto of any political party, and is not a matter
which is, or can be debated during the election campaign. These
is thus no manner in which the assumed accountability of the
executives in the matter of appointment of the executive in the
matter of appointment of an individual judge can be raised, or
has been raised to any time. On the other hand, the Chief Justice
of India and the Chief Justice of the High Court, being
responsible for the functioning of the courts, have to face the
consequences of any unsuitable appointment which gives rise to
criticism levelled by the ever vigilant Bar. That controversy is
raised primarily in the courts. Similarly, the Judges of Supreme
court and the High Courts, whose participation is involved with
the Chief Justice in the functioning of the courts and whose
opinion is take into account in the selection process, bear the
consequences and become accountable".

C. The Third Judges Case

The Second Judge' case left an area of uncertainty as regards

the collectively opinion of the Chief Justice and his senior colleagues.
It presumed that he Chief Justice would consult his senior colleagues
and that generally his recommendation would be acceptable and not
controversial.

However during eight months of Chief Justice Punchhi's

tenure as the Chief Justice of India, a number of recommendations
for the appointments were found controversial and maintained that
Law Ministry was not entitled to enquiry into the extent of the Chief
Justice' consultations. It was even feared that a Bench of Supreme
Court constituted by the Chief Justice could issue a mandamus on

160
the Government to appoint a judge recommended by him. In these
circumstances, the Central Government decided in July, 1998 to
make reference to the Supreme Court under Article 143 (1) seeking
the opinion of the Supreme Court.so The Court opinioned that the
Chief Justice must make a recommendation to appoint the Judge of
the Supreme Court in consultation with four senior most puisne
Judges of the Supreme Court, and in so far as the appointment to the
High Court was concerned, the recommendation must be in
consultation with senior most puisne Judges of Supreme Court.
Moreover it stated that if the Chief Justice of India makes a
recommendation without any complying with the norms and
requirements of the consultation process, it would not be binding on
the Government of India.^i

D. Effect of Second and Third Judge's Case

The judgements in Second and Third Judge's cases have altered
the provisions of the Constitution for appointment of judges. They are
a tour de force under the veil of securing independence of judiciary.
The clear intention of the Constitution makers reflected in the
Constituent Assembly Debates of not making the Chief Justice of
India the final appointing authority is disregarded.^2
Sir Robin Cooke writing on the Second Judge's case in an
Article significantly entitled "Making the Angels weep" could not help
expressing his amazement in polite language at the interpretation
given by the Supreme Court. He States:-
"The majority of the Court may have gone too far, if their
conclusions be view as an interpretation of the Constitution
intended to be binding in law.... However, vulnerable in detail, it
will surely always be seen as a dramatic event in the international
history of jurisprudence".53

50 (1998) 7 s e c 739.
51 Ibid.
5^ Cyrus Das a n d K. C h a n d r a . J u d g e s a n d Judicial Accountability, 118 (2004).
53 J u s t i c e Robin Cook, Making the Angels Weep, Law and Justice Volume 1, p. 109.

161
 Writing in the same vein on the Third Judge's case, in another
Article "Where Angels fear to tread", he says that
"It sounds more like a promulgation of policy than an
exercise in juridical reasoning. The reasoning is noticeably
limited All in all the opinion of the Supreme Court in the
Third Judge's case must be the most remarkable rulings ever
issued by a Supreme Court in the common law world".^'^
The Supreme Court h a s frequently asserted that all power
under the Constitution is limited and subject to judicial review. The
same limitation, however is not applicable to the newly acquired
power of the Chief Justice of India and the collegiums, the court in
Second Judge's case having declared that no judicial review can be
entertained by any person aggrieved by the Chief Justice's action e.g.
by a Judge who is transferred from one High Court to another by the
collegiums. 55

Involvement of the executive, or politicians if you may like to call

that, which is the foundation of these Judgements, is not necessarily
a bad thing unless the executive of the day seeks to pack the judiciary
with judges who are loyal to its values and quality of judges is
scarified. As Justice Michael Kirby has observed:
"If these abuses are avoided by the observance of
convention, the right of the elected representative of the people
to appoint the judges from those senior, qualified lawyers whose
general values they hope will be in tune with their own is a means
which defends the judicial institution from uniform or
monochrome social values. Under the system copied from
England, it is legislators in government should have the final say
in matter of appointment and in removing judges from office for
proved incapacity or misconduct."^^

^•^ Justice Robin Cook, Supreme But Not Infallible -Essays in Honour of the
Supreme Court of India", Oxford 2000, p. 97.
55 Supra n. 52 at 120.
56 /da( 121.

162
E. National Judicial C o m m i s s i o n

The Constitution ( 6 7 * Amendment) Bill, 1990 proposed the

formation of a National Judicial C o m m i s s i o n for the a p p o i n t m e n t of
S u p r e m e Court High C o u r t s J u d g e s a n d for the transfer of j u d g e s
from the High Court. The object w a s to prevent a n y a r b i t r a r i n e s s in
a p p o i n t m e n t s a n d transfers. The judicial commission w a s b a s e d on
t h e r e c o m m e n d a t i o n s in the 121th Law Commission Report. It consist
of t h e Chief J u s t i c e of India, two senior S u p r e m e Court J u d g e s , Chief
J u s t i c e a n d two j u d g e s of the High Court where in a p p o i n t m e n t s were
to be m a d e . This Bill w a s never p a s s e d .

The proposal for a National Judicial C o m m i s s i o n h a s been

resurrected by t h e Constitution (98*^ A m e n d m e n t ) Bill, 2 0 0 3 a n d
once again contemplates the formation of a National Judicial
Commission. It proposes to introduce a New C h a p t e r consisting of j u s t
one Article in the Constitution and also proposes to make
consequential a m e n d m e n t s to other Article in the Constitution. The
National Judicial C o m m i s s i o n , if formed will consist of t h e following
p e r s o n s :-

(a) the Chief J u s t i c e of India, who shall be the Chairperson of t h e

Commission.

(b) two other J u d g e s of the S u p r e m e Court next to the Chief J u s t i c e

of India in seniority.

(c) one Union Minister- in -charge in Law a n d J u s t i c e ;

(d) one e m i n e n t citizen to be n o m i n a t e d b}^ the President of India in

consultation with the Prime Minister for a period of three years.

The Commission is to draw u p a Code of Ethics for the J u d g e s

of the S u p r e m e Court, the Chief J u s t i c e s a n d the J u d g e s of the High
C o u r t s a n d can inquire into c a s e s of their m i s c o n d u c t or deviant
behaviour a n d advise the Chief J u s t i c e of India or the Chief J u s t i c e of
the High Court concerned appropriately.

163
 The composition of the National Judicial Commission is serious
flawed. The Commission does not refer to consultation with the Chief
Justices of the High Court or senior High Court Judges in cases where
appointment has to be made to the respective courts. This Bill may
also not see the light of the day because of the lack of a majority in
Parliament by the ruling Government. It is rumoured that opposition
does not accept the Bill in its present form. Therefore, the method of
appointments to the Supreme Court and High Courts is likely to
continue as per the two decisions^^ referred to earlier.

F. The National Judicial Appointments Commission Bill, 2 0 1 4

The National Judicial Appointments Commission Bill, 2 0 1 4

was introduced in the Lok Shabha on August 11, 2014 by the Minister
of Law and justice, Mr. Ravi Shankar Prasad. The Bill has been
introduced in conjunction with the Constitutional (121^^ Amendment)
BILL, 2014 which establishes the National Judicial Appointments
Commission (NJAC). The bill provides for the procedure to be followed
by the NJAC for recommending persons for appointment as Chief
Justice of India and other Judges of the Supreme Court (SC), and
Chief Justice and other judges of High Courts (HC).

(a) Reference to Commission for filling up of Vacancies

When a vacancy arises in the SC or HCs, the Central

Government will make a reference to the NJAC. Existing vacancies will
be notified to the NJAC within thirty days of the Act entering into
force. When a vacancy arises due to the completion of term, a
reference will be made to the NJAC, six months in advance. For
vacancies due to death or resignation, a reference must be made to
the NJAC within thirty days of its occurrence.

57 S.P. G u p t a V. Union of India, AIR 1982 SC 149. & S u p r e m e Court Advocates-on-

Record Association vs. Union of India, AIR 1994 SC 2 6 8 .

164
(b) Procedure for S e l e c t i o n of S u p r e m e Court J u d g e s

I. Chief J u s t i c e of India:- The NJAC shall r e c o m m e n d the

senior m o s t j u d g e of the S u p r e m e Court for a p p o i n t m e n t
a s Chief J u s t i c e of India. This is provided h e is considered
fit to hold the office.

II. Supreme Court Judges:- The NJAC shall recommend

n a m e s of p e r s o n s on the b a s i s of their ability, merit a n d
other criteria specified in t h e regulations.

III. Veto Power of Members:- The NJAC shall not

r e c o m m e n d a p e r s o n for a p p o i n t m e n t if a n y two of its
m e m b e r s do not agree to s u c h r e c o m m e n d a t i o n s .

(c) Procedure for S e l e c t i o n of High Court J u d g e s

I. Chief Justice of High Courts:-The NJAC is to

r e c o m m e n d a j u d g e of a High Court to be the Chief
J u s t i c e of a High Court on t h e b a s i s of seniority a c r o s s
High Court J u d g e s . The ability, merit a n d other criteria of
suitability a s specified in t h e regulations would also be
considered.

II. A p p o i n t m e n t of o t h e r High Court Judges:-

(i) N o m i n a t i o n s : Nominations shall be s o u g h t from

Chief J u s t i c e of t h e concerned High Court for
a p p o i n t m e n t s of High Court J u d g e s .

(ii) Eliciting Views: The Commission shall n o m i n a t e

n a m e s for a p p o i n t m e n t of High Court a n d forward
s u c h n a m e s to the Chief J u s t i c e of the concerned
High C o u r t s for his views.

(Hi) In both c a s e s , the Chief J u s t i c e of the High Court

shall c o n s u l t two senior m o s t j u d g e s of t h a t High
Court and any other j u d g e and advocates as
specified in the regulations.

165
 (iv) Views of the Governor and Chief Minister: The
NJAC shall elicit the views of the Governor and
Chief Minister of the State before making
recommendations.

(v) Veto Power of Members: The NJAC shall not

recommend a person for appointment if any two
members of the commission do not agree to such
recommendations.

III. Transfer of Chief Justices and High Court Judges:- The

NJAC is to make recommendations for transfer of Chief
Justices and other Judges of the High Courts. The
procedure to be followed will be specified in the
regulations.

(d) Power of the President to Require Reconsideration

The President may require the National Judicial Appointments

Commission to reconsider the recommendations made by it. If the
NJAC makes a unanimous recommendation after such
reconsideration, the President shall make the appointment
accordingly.

(ii) Promotions

The instrument of consultation h a s great bearing in case of

promotion. The term consultation h a s been defined differently by
different authors. Some say^^ that consultation means effective one
and other say^^ that it is just to elicit or seek the opinion of the judges
or the Chief Justice. But if we see the constitution provision the word
'may' h a s been used. The word 'may' means may or may not. In case

58 In Sankal Chand Sheth's Case, it was held that the world 'consultation' meant
full and effective consultation, but does not mean mere formality. This was also
affirmed by Judges transfer case. The meaning of word 'consultation' in Article
124(2) is the same as the meaning of word 'consultation' in Article 222 of the
Constitution
59 D.D. Basu opined that the meaning of word 'consultation' indicates that
President is not bound to follow the recommendation. In the matter of
appointment of Chief Justice of India the last world will thus rest with Prime
Minister. It is mere formality.

166
of appointment of Chief Justice to the Supreme Court, the President
may or may not consult the Judges of Supreme Court and High
Courts. In the second place, the Constitution is silent and does not
provide criteria for Chief Justice.^opurther the word "may" signifies
that is not mandatory for the President to consult any one. Till 1973,
the senior most Judge of the Supreme Court was elevated to the post
of Chief Justice. But in 1973, this practice was suddenly and
unfortunately dispensed by the Government, ^i This action of the
Government was condemned from all quarters. The action of the
Government was considered as purely political one. The said attitude
of the Government depicts the intolerance of the Government on the
one hand and undermines the independence and impartiality of the
judiciary on the other. Thus, there is an imminent need to evolve some
formula in this regard so that independence of the judiciary may
remain intact. The Law Commission of India in its Eightieth Report
recommended that a Judicial Committee or National Commission or
high level panel consisting of persons known for their integrity,
independence and judicial background in the matter of appointments
be constituted. It is for these reasons the Supreme Court has taken
over the power of appointment of judges to the Supreme Court and
High Courts. The Chief Justice in consultation with two senior most
judges^2 (now four senior most judges)^3 may appoint the judges.

(iii) Qualifications

The next issue which has a direct bearing on the Independence

of judiciary is the quality of the person who are asked to serve in the
courts. The quality of the judges depends on the conditions necessary
for the appointment of judges. The framers of our Constitution
incorporated specific provisions in the Constitutions to make available

&o Supra n. 12 at 5 5 .
^' J u s t i c e A.N. Roy w a s appointed a s Chief J u s t i c e of India s u p e r s e d i n g three
Senior Colleagues namely, J u s t i c e Grover, J u s t i c e Hegde a n d J u s t i c e Shelat.
^^ S u p r e m e Court Advocates on Record v. Union of India, AIR 1994 SC 2 6 8 .
" In Re: Presidential Reference, AIR 1999 SC 1.

167
the talented persons to serve in the judiciary.^^^ To serve this end the
Constitution must contain the provisions to provide essential
qualifications to be a judge of the Supreme Court or the High Courts.
In the various countries, where judges to higher judiciary are elected
either through direct elections or by the legislatures, the
appointments and selections are made always on political
consideration. However, they have prescribed some minimum
qualifications; even then the quality which is required for higher
judiciary is not possible through these two modes.^^

The United States of America, all the judges are appointed by

the President and with the advice and consent of the Senate. The
Constitution prescribes no qualification for the judges. Hence the
President is free to appoint any one for whom senatorial confirmation
can be obtained.^^ In England, although the judiciary h a s not been
given high place due to the concept of sovereignty of Parliament b u t
even then they prescribe qualifications forjudges forjudge. The major
qualification there is that one must be a Barrister at law and must
have ten years standing at bar. The British Courts operate under
salutary principles and follow simple procedure. The Judges are in
general of a high order of ability, independence and integrity. They are
appointed for life and removable can be made only on joint address of
both of the Houses of Parliament and hence they act independtly and
impartiality. ^"7 In Australia, the judges of the Supreme and
intermediate courts are appointed from the practising legal profession.
The judges are appointed for life by the Governor-General-in-Council
and hold office during good behaviour.^s Jn Switzerland, the judges as
well as alternates are elected by both the Houses of the Federal
Assembly, meeting in a joint session for a period of six years. In actual

64 Supra n. 12 at 56.
65 Although the persons with some minimum legal qualifications and with some
minimum legal qualifications background are to be elected or chosen to the
courts.
66 S.R. Myneni, Legal Systems in the World, 149(2011).
67 /d at 101.
68 Id at 206-207.

168
practice they serve judges till they wish to hold to the judicial office.
The Constitution does not prescribe any judicial qualifications for the
judges. Any swiss citizen who is eligible for the National Council may
be appointed to the Federal Court. ^9

In Japan, all the judges except the Chief Judge shall be

appointed by the Cabinet. The Chief Justice is appointed by the
emperor on the advice of the Cabinet. In practice, however, the
Cabinet accept the recommendations of the Supreme Court in the
appointment and promotion of lower court judges and the advice of
nominating agencies and senior judges appointing justices to the
Supreme Court. Any person who is a citizen and eligible for election to
National Council may be appointed as a judge under Article 78 of the
Constitution of Japan. The election is purely on political basis.'^o

In China, Judiciary is elected by People's Congresses at different

levels. This seriously impairs independent character of judiciary. The
Constitutions does not lay down any set criterion for the appointment
of judges. In fact, only those comrades are elected as judges who are
trained communists and have full faith in Marxism and Maoism. They
are elected for a period of five years but they can be removed even
earlier if they fail to come up to the expectation of the party leaders.'^i

The framers of our Constitution had all things before them while
were deciding about the qualifications of the judges. The main motive
in their mind was to give opportunity to best talent to serve in the
judicial system of the country more particularly in the higher
judiciary. Under the scheme of our Constitution, the judiciary has
been given a place of great significance and it has to discharge so
many important functions. Therefore, the best quality of judges is not
only required but is a compulsive necessity. The founding fathers of
the Constitution, therefore, incorporated specific provisions in the
Constitution to make available the talented persons to serve in the

69 Id at 213.
70 Id at 2 2 8 .
71 Id at 295.

169
judiciary. Article 124(2) deals with appointments of Supreme Court
Judges and reads as follows72

"Every Judge of the Supreme Court shall be appointed by

the President by warrant under his hand and seal after
consultation with such of the Judges of the Supreme Court and of
the High Court's is the states as the President may deem
necessary for the purpose and shall hold office until he attains
the age of sixty-five years.

Provided that in the case of appointment of a Judge other than

the Chief Justice, the Chief Justice of India always be Consulted.

Provided further thaf^^

(a) a Judge may, by writing under his hand addressed to the

President, resign his office;

(b) a judge may be removed from his office in the manner provided
in clause (4).

Article 124(3) prescribes qualifications of a person who can be

appointed as a Judge of the Supreme Court and reads as follows:-'^'*

"A person shall not be qualified for appointment as a Judge

of the Supreme Court unless he is a citizen of India and

(a) has been for at least five years a Judge of a High Court or of
two or more such court in succession; or

(b) has been for at least ten years an advocate of a High Court
or of two or more such courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

The appointment has to be made by the President who issues a

warrant of appointment. In India, the President has to act accordingly
to the aid and advice of the Council of Ministers. Therefore, the

72 J a i n . M.P., Indian Constitutional Law, 192 (2008).

73 Narender Kumar, Constitutional Law of India, 4 8 5 & 4 8 8 (2004).
74 Id at 4 8 8 .

170
a p p o i n t m e n t by t h e President is not a n i n d e p e n d e n t decision left
entirely to the discretion of the President.

Article 2 1 7 deals with the a p p o i n t m e n t of High Court J u d g e s

a n d r e a d s a s follows:-^^

**Bvery J u d g e of a High Court shall be a p p o i n t e d by t h e

President by warrant under h i s hand and seal after c o n s u l t a t i o n
w i t h t h e Chief J u s t i c e of India, t h e Governor of t h e S t a t e , and in
a c a s e of a p p o i n t m e n t of a J u d g e o t h e r t h a n t h e Chief J u s t i c e , he
m a y c o n s u l t e v e n t h e Chief J u s t i c e of t h e High Court c o n c e r n e d .

Provided t h a t ^6

(a) a J u d g e may, by writing u n d e r his h a n d a d d r e s s e d to the

President, resign his office;

(b) a J u d g e m a y be removed from his office by the President in the

m a n n e r provided in clause (4) of Article 124 for t h e removal of a
judge of the S u p r e m e Court;

(c) the office of a J u d g e shall be vacated, by his being appointed by

the President of India to be a j u d g e of t h e S u p r e m e Court or by
his being transferred by the President to any other High Court
with in the territory of India.

The qualification of a High C o u r t j u d g e is set o u t in Article

217(2) which read a s u n d e r : '^'^

A person shall n o t be qualifled for a p p o i n t m e n t a s a J u d g e

of a High Court u n l e s s he is a c i t i z e n of India and-

(a) h a s for at least ten years held a judicial office in the territory of
India; or

(b) h a s for at least ten y e a r s been a n advocate of a High Court or of

two or more s u c h c o u r t s in succession;

75 J.N., Pandey, Constitutional Law of India, 502 (2003).

76 Supra n. 73 at 573.
77 Kailash Rai, The Constitutional Law of India, 553 (2011).

171
 It is an ironical that a distinguished jurist can be appointed to
the Supreme Court but no to the High Court.

(iv) Salaries and Allowances

"Those who control the purse strings will always have some
capacity to the influence the actions of those who are dependent upon
the content of the purse... There can no doubt that executive
government control over judicial salary fixation is always at least an
incipient threat to judicial independence."'^^

The Government of India Order, 1937, fixed the salaries of

Chief Justice of Federal Court and to other Judges Rs. 7 0 0 0 / - and
5500/- respectively. On January 28, 1950 when Supreme Court of
India occupied the seat of Federal Court with greatly enlarged
jurisdiction.'^5 However, the salary of the Chief Justice was fixed to Rs.
5000/- and that of other Judges Rs. 4000/- plus^o other perks.si The
salaries of Chief Justice of High Court and other judges were fixed at
Rs. 4 0 0 0 / - and Rs. 3500/- respectively, while fixing salary the other
factors like high cost of living and taxation were ignored.

The salaries and allowances of the judges is also a factor which

makes the judges independent as their salaries and allowances are
fixed and are not subject to a vote of the legislature. They are charged
on the Consolidated Fund of India in case of Supreme Court Judges
and the Consolidated Fund of State in the case of High Court Judges.
Their emoluments cannot be altered to their disadvantage (Article 125
(2) except in the event of grave financial emergency.

The condition of service of judges while in office cannot be

varied during the tenure nor can their salaries be reduced. Until their
salaries are determined by or under a law made by the Parliament,

^8 Report of the Remuneration Tribunal of Common Wealth of Australia, 1997, p.

33.
79 Supra n. 12 at 57.
80 The Commission of India, F o u r t e e n t h Report, Volume. 1. Reform of Judicial
Administration, 1958, p. 40; See also Article 125(2) of Constitution of India.
81 It included free furnished residence, vehicle a n d other extra accessories
necessary for decent s t a n d a r d of living.

172
their remuneration for or allowances are as specified in Schedule II to
Constitution of India.82 Selection to the Higher Judicial Service in
terms of Article 233 of the Constitution of India is also conducted by
the High Court.83

Article 112 (3) (d) (i) of the Constitution required that budget
shall contain a provision for payment of salaries and allowances and
pensions to Judges of the Supreme Court and Article 202 (3) (d) deals
with the salaries and allowances of High Court. In so far as the
judiciary at grass root level is concerned, the budget is prepared by
various unit heads, Consolidated at the State Level and presented to
the State Legislature.

In 1986, the salaries were increased by a Constitutional

Amendment. The Chief Justice and other Judges of Supreme Court
were to be paid Rs. 10,000/- and Rs. 9 0 0 0 / - and the Chief Justice of
the High Courts and other Judges Rs. 9 0 0 0 / - and Rs. 8 0 0 0 / -
respectively. In 1998, they were raised to the present salaries. The
Chief Justice of India gets a salary of Rs. 33000/- and other Judges of
the Supreme Court gets Rs. 30,000/- respectively, whereas the Chief
Justice of High Courts are paid Rs. 30,000/- and other Judges Rs.
26000/-84

Even taking into consideration the perquisites attached to the

office of judge, judicial salaries have become unrewarding and
unattractive to lawyers in good practice, leaving aside lawyers in top
practice. In the past, lawyers in India as in the United Kingdom in
good practice took judgeship as a career and as a matter of honour
even though rewards at the bar were higher. Today, judicial salaries,
apart from becoming unreal with the passage of time, do not stand

82 Article 125 and 221 of the Constitution of India.

83 State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447; (1966) I SCR
771.
84 Supra n. 12 at 57.

173
comparison with the average earnings at the Bar, resulting in fewer
and fewer competent lawyers from the bar taking judgeship.^5

First All India Judges case,86 the Supreme Court said, "the
efficient functioning of the Rule of Law under the aegis, of which our
democratic society can thrive, requires an efficient, strong and
enlightened judiciary. And to have it that way, the nation has to pay a
price".

Though the Chief Justice of India in the case of Supreme Court,

and the Chief Justice of High Court have absolute powers in the
matter of conditions of service of officers and servants and expenses of
the courts. But, it any rules made by the Chief Justice relate to
salaries, allowances, leave or pensions, they require approval of the
President or the Governor, as the case may be under Article 146(2)
and 229(2) of Constitution of India respectively. These two are the
provisions which clinching indicate that the financial autonomy of
Indian judiciary is subject to executive control though in the
preparation of budget to meet the court expenses or in the
establishment of new courts, the judiciary is consulted.

It is ironical that today fledging graduates passing out of the

National Law schools are offered salaries between Rs. 50,000/- and
Rs. 100,000/- by law firms and corporate Houses, whilst the salaries
of judges remain in the vicinity of Rs. 30,000/-. Some retired judges,
as arbitrators, earn fees which far exceed their previous judicial
salaries. Such a disparity between judicial salaries and rewards at the
Bar and elsewhere in the legal profession not only tends to detract
talent from coming to the Bench but also creates in sitting judges a
feeling that their work is not properly appreciated and rewarded. Low
salaries have a direct impact on the efficiency of the higher judiciary,
including the disposal of cases. It is little realized by even the legal
profession that what is at stake is the functioning of an independent,

85 Ibid.
86 (1992) I s e c 109.

174
incorruptible and efficient judiciary.87 The Bill introduced in the Lok
Sabha proposing to triple the salaries and perks of the Judges of the
Supreme Court and the High Court from September 1, 2008. The
Chief Justice of India will get Rs. 1,00 Lakh, other judges of the
Supreme Court and Chief Justices of High Courts will draw Rs.
90,000/- plus dearness allowances thereon. The Judges of High
Courts will get Rs. 80,000/- plus dearness allowances. The
Sumptuary and furnishing allowances of the Judges have been
doubled. This will to a great extent maintain in the independence of
judiciary. This is also essential for the quality and cheap justice as it
is said that if you want cheap justice you must have costly judges.^^

(v) Security of Tenure

Although the Constitution of India does not provide for life

tenure, the existing provision of 65 years in effect amounts to nearly
the same. A retiring age of 65, by Indian standards, is very high
considering the average span of life in India and also the average
fitness of persons for work in old age. Moreover, a retired judge,
according to Article 128, may be reappointed a judge by the Chief
Justice of India, with the consent of the President.^^ -phg Judges of the
Supreme Court retires at the age of 65 years whereas the age of
retirement of High Court Judges is fixed at 62 years. Formerly, the age
of retirement of a High Court Judge was 60 years.^o The independence
of the judiciary depends to a great extent on the security of tenure of
judges. If judge's tenure is uncertain it would be difficult for him to
perform his onerous duties of his august office without fear or favour.

Clause (2) of Article 124 provides that a Judge of the Supreme

Court shall hold office until he attains the age of 65 years. A Judge
may however, resign his office by writing under his hand addressed to
the President. Clause (2-A) of Article 124 provides that " the age of a

8^ Supra n. 12 at 57.
88 Id at 57-58.
89 J e e v a n Nair, a n d U.C J a i n , Judiciary in India, 127 (2011)
90 Supra n. 12 at 58.

175
Judge of the Supreme Court shall be determined by such authority
and in such manner as Parliament may law provide", ^i Article 217 (1)
provides that a Judge of the High Court holds office until he attains
the age of 62 years. However, a Judge may resign his office before
reaching the age of retirement, by writing under his hand addressed
to the President.52

As regards the determination of the age of a Judge of the

Supreme Court, Article 124 (2-A) confers power of the Parliament to
enact a law for the purpose, while Article 217(3) confers powers on the
President, in consultation with the Chief Justice of India, to determine
any question as to the age of a Judge of a High Court. It may be stated
that Articles 124(2-A) and 217(3) have to be read harmoniously. Once
the issue of the date of birth of a Judge, while a Judge of a High
Court, is settled by the President under Article 217(3), it should not
again be questioned on the elevation of the Judge, as a Judge of the
Supreme Court.^3

(vi) Removal of Judges

In India, both the Supreme Court and High Court Judges are
appointed by the President under Article 124 and 217, and they
enjoyed a fixed tenure and are removable under Articles 124(4) and
217 on proved misbehaviour or incapacity after an impeachment
motion passed by each house supported by a stipulated majority.
Their tenure and different process of removal are also in tune with
their independent function.^^ in England, the judges are appointed by
the Lord Chancellor; they hold office during good behaviour and can
be removed by the Crown when both the Houses present an address.^^
In United States of America, the judges are removed by impeachment

91 Supra n. 7 3 at 4 8 8 .
9^ Ibid, 5 7 1 . Clause (a) of Proviso to Clause (1) of Article 217.
93 Id at 4 8 8 .
94 Supra n. 12 at 58.
95 Supra n. 66 at 101.

176
proceedings.56 The grounds for moving impeachment motion are,
'treason', iDribery', or 'other high crimes' and 'misdemeanours'.

In India a judge may be removed from his office by an order of

President. The President can pass or order only when it has been
addressed to the both Houses of Parliament in the same session. The
address must be supported by a majority of the total membership of
that House and also by a majority of not less than two third of the
members of that house present and voting. The Constitution
prescribes the procedures for investigating and proof of the
misbehaviour incapacity of a Judge of the Supreme Court or of a High
Court and for the presentation of an address by Parliament to the
President.97

The Judges Inquiry Act, 1968 prescribes procedure for

removal of Judge of the Supreme Court or High Court which can be
initiated only if a notice of motion for presenting an address to
President praying for his removal, signed by not less than 100
members of the House of the people or 50 members of the Council of
States is given to the Speaker or Chairmen.^s The Speaker or
Chairman is empowered to either admit or refuse to admit the motion,
"after consulting such persons, if any: as he thinks fit and after
considering such materials, if any as may be available to him". If the
Speaker or Chairman admits the motion, he may constitute a
Committee of three members of whom one shall be from among the
Chief Justice and other Judges of the Supreme Court, one from the
Chief Justice of the High Court's and a distinguished jurist.^^ The
high powered Committee shall investigate and frame charges against
the judge.

The copies of charges along with the grounds on these charges

are sent to the judge concerned so that he may get detailed

90 Id at 149.
"J^ Supra n. 12 at 58.
"8 See, Section 3(2) of J u d g e s (Inquiry) Act, 1968.
"0 Ibid.

177
information of all the allegations against him. After this, he is given 'a
reasonable opportunity of presenting a written statement of defence',
within such times as may be specified in this behalf by the
Committee. 100 where the reports of the committee contain the findings
that the judge is guilty of any misbehaviour or suffers from any
physical or mental incapacity, then the motion is taken up for
consideration by the house together with the report of the
committee. 101 It is in this situation and in this manner that the
parliamentary part of the process of the removal of a judge
commences, requiring the House to consider the motion for removal of
the judge. 102

The impeachment power has been used sparingly since the

creation of judiciary. The experience with the removal process in
Justice V. Ramaswami's caseio^ has shown clear fallibility in the
constitutional frame work. A time has shown that the judicial system
is not beyond re-approach. Aspersions have been cast and charges
have been levelled. The current constitutional framework has proved
to be totally inadequate to deal with removal of judges. Failure of
impeaching proceedings against V. Ramaswami suggests that there
must be disciplinary action against erring judges besides punitive
transfers. In case of judges of Supreme Court there cannot be
transfers.

Recently, the Chief-Justice of India is a recommendation to the

Union Government asked for initiation of 'impeachment proceedings'
against Soumitra Sen, after a peer Committee of the Supreme Court
found him found him guilty on charges of grave misconduct. The Chief
Justice of India has revived a dead debate concerning the Indian
Judiciary. The present initiative by the Chief-Justice of India became
inevitable as the indicated judge had refused to put in his papers.

100 Id, Section 4(4).

101 Supra n. 12 at 59.
102 See, Section 6, sub-section 1-3, The J u d g e s Inquiry Act, 1969.
103 (1991) 3 SCR 189.

178
thus not abiding by post conventions in this regard. Now the ball is in
the court of executive government, who would have to take future
action with respect to setting cumbersome and marathon process of
impeaching in motion Justice Sen being the first person
recommended for impeachment by a Chief Justice does not mean that
the judiciary is immune from corruption and other vicious practices.
The aforesaid incident has occurred at a time when a case being
popularly referred as '^cash-at-Judge's door scam'' of Chandigarh is
also hitting the news headlines. The matter has once again brought to
limelight the presence of unholy nexus existing between certain
members of legal fraternity and judiciary. If a clerk of senior law
officer is found delivering a packet containing lakhs of rupees at the
door of the official residence of a High Court Judge, surely it sends
disturbing signals among the members of the Society, who may form
their own perceptions about the deplorable incident. The Chief Justice
of India has already permitted CBI, which is investigating the case, to
question the two Judges of the Punjab and Haryana High Court in
this regard, whose names cropped up during investigations. 1°"^

Even reports of misuse of official position by a former Chief

Justice of India Y.K. Sabharwal came some time back. Thus one thing
that cannot be denied is that public confidence over judiciary has
indeed has indeed been shaken by occurrence of these unfortunate
incidents. Concerns regarding the lack of accountability of the
judiciary have been expressed also by judges. Justice J.S. Verma, a
former Chief Justice of India has said "here is no point in saying that
there is no corruption accepts it. No One is going to say it, much less
accept it. One cannot go on sweeping it under the carpet and not expect
it to show up. It is showing up now". Justice Verma further stated
that in a court of 20 judges two by default are corrupt. This means
that in the absence of any open accountability mechanisms within the
Indian judiciary that litigant as of now faces a 10 per cent chance for

104 Supra n. 12 at 59.

179
a case to decide by an officer who is unfit to be a judge. It implies that
the justice quotient of the Indian judiciary is only 90 per cent.
Accountability of the Judiciary is fundamental to its independence.
Keeping erring judges on bench is against the independence and
dignity of judiciary itself, hence, there is a need to provide effective
framework in the Constitution itself. Impracticability of impeachment
and immunity from prosecution on charges of corruption without the
consent of the Chief Justice of India make it necessary to devise a
mechanism to ensure accountability of Judges. In an atmosphere of
all pervasive/corruption in the country, it is necessary that corrupt
members of the judiciary be dealt with firmly to save the institution
who credibility is relatively very high.ios The National Commission to
Review the Working of Constitution in the year 2002,
recommended, inter alia, setting up of a National Judicial
Commission as well as a Peer Committee comprising of three senior
most judges of the Apex Court to examine complaints of deviant
behaviour of all kinds and complaints of misbehaviour and incapacity
against judges of the Supreme Court and High Courts. The UPA
Government adopted a statutory route by tabling the Judges (Inquiry)
Bill, 2 0 0 6 which provided for the setting u p of a National Judicial
Council to deal with incidental matters. The Bill, which did not find
adequate support from judiciary for various reasons, is still awaiting
passage in Parliament. i06 Thereafter, The Judicial Standard and
Accountability Bill, 2 0 1 0 was introduced in the Lok Shabha to
replace the previous the Judges Inquiry Act, 1968. It will be headed
by a former Chief Justice of India, where the public can lodge
complaints against erring judges, including the Chief Justice of India
and the Chief Justices of the High Courts. The five-member
Committee will be appointed by the President. Here the President is
bound to accept PM's recommendations. Now if this recommendation
is done by a there member Committee two from government and one

105 Id at 59-60.
106 Ibid.

180
recommended by the leader of the opposition, then the minority
dissent will also be addressed. On receiving a complaint, the
Committee will forward it to a system of scrutiny panels, which will
have the powers of a civil court. If the Charges are serious, the
Committee can request the judge concerned to resign. If the judge
does not do so, the oversight Committee will forward to case to the
President with an advisory for his removal. The Bill mandates that the
judges should not have any close association with the individual
members of the bar.i07 Official sources said judges would also be
required to declare their assets and file an annual return of assets
and liabilities. All these details will be p u t u p on the websites of the
Supreme Court and High Courts. The enactment of the Bill will
address the growing concerns regarding the need to ensure greater
accountability of the higher judiciary by bringing in more
transparency, and will further strengthen the credibility and
independence of the judiciary, lo^

(vii) Transfer of Judges

Article 222(1) empowers the President after consultation with

Chief Justice of India transfer a judge from one High Court to
another. 10^ The Constitution makes provisions for granting
compensatory allowances when a judge is transferred from one High
Court to another. The power of transfer of a judge is vested with the
President is not absolute. He takes into consideration two things:
(i) public interest (ii) effective consultation with Chief Justice of India.

The question of transfer of a Judge from one High Court to

another h a s raised controversies from time to time. During the
emergency of 1975, 16 High Court Judge were transferred from one
High Court to another. It was widely believed that the Government did
so as to punitive measure to punish those Judges who had dared to

107 See, The Judicial Standard and Accountability Bill, 2010.

108 http://Iegalservicesindia.com/article/judicial-accountability-in-india-538-l
html, as on 9»h Dec. 2011.
109 Supra n.l2 at .60.

181
give judgements against it.ii^ There has been a lot of debate on
whether judges should be transferred from one High Court to another.
There is a great deal that can be said in favour of policy based on
transfers because such a system would promote uniformity in
judgements and also no judge would develop routes in his/her home
state.iii It is essential; however, that a uniform policy should be
followed and it should be made clear to the Judge concerned at the
inception of service that h e / s h e would be liable to transfer at the end
of the prescribed period(say 3/5) years). What should be avoided is
ad-hocism in the application of the policy giving rise to resentment to
the transferee judges.

The transfer of Judges from one High Court to another may be

necessary and, if only it can be regulated by policies and norms which
are reasonably transparent, the execution of which is just and
predictable, there may not be serious objection to the concept.
Unfortunately, the law declared by the majority in the Second Judges
cases has not won the confidence of potential victims of the policy viz;
the present and prospective Judges of the High Courts.

The Judge made law is as under:

A. "The opinion of the Chief Justice of India has not mere primacy,
but it is determinative in the matter of transfers of High Court
Judges/ Chief Justices.

B. Consent of transferred judges/ Chief Justice is not required for

either the first or any subsequent transfer from one High Court
to another.

C. Any transfer made on the recommendation of the Chief Justice

of India is not to be deemed to be punitive, and such transfer is
not justifiable on any ground.

110 Supra n. 22 at 380.

111 Supra n.l2 at 60-61.

182
D. In making all appointments and transfers, the norms indicated
must be followed. However, the same do not confer any
justifiable right in any one". 112

Transfer has become a convenient way of shifting judges from

their own High Courts to other High Courts, in the event of complaints
against them or on account of their close relatives practicing in the
same High Court. Of late, consent is obtained from the candidate
concerned before appointment for his transfer to another High Court
soon after his appointment. As there is no transparency in exercising
the power of transfer, there is ample scope for misunderstanding the
reason for transferring a particular Judge. It is time to review the
transfer policy. Transfer can never be a solution to tackle judges of
doubtful integrity. There should be a mechanism by which such
judges who do not enjoy good reputation could be prematurely retired
from the service after an objective assessment of each case by a
Judicial Committee of the Supreme Court chaired by the Chief Justice
of India or by the National Judicial Commission. This, no doubt,
requires an amendment to the Constitution.

(viii) Power to Punish for its Contempt (Article 129, 215)

The constitutional scheme of India is based upon the idea of

Rule of Law. This implies that everyone, both in their individual and
collective capacities, are under law's supremacy, and the judiciary is
an institution that is given the power and responsibility by it. The
rationale behind Contempt of court is that courts must have the
power to secure obedience to their judgements, in order to serve this
purpose of administering justice. ^^3 The purpose of punishing
Contempt of Court is not to protect the dignity of the court, but of the
process of justice itself, ii'*

"^ Ibid see; 1993 (4) SCC 4 4 1 at 710.; AIR 1994 SC 2 6 8 .

"3 C.J Miller, C o n t e m p t of Court, Oxford University Press, Oxford, 112 (2006).
"4 Attorney General v. Times Newspapers, (1973) 3 WLF 2 9 8 .

183
 Contempt of Court can refer to both civil and criminal contempt.
Civil contempt refers to any "wilful disobedience of any judgement,
decree, direction, writ or other process of the court"A^^ It is punishable
with imprisonment or fine. The rationale behind civil contempt is to
compel compliance with court orders.i^^ Criminal contem.pt is any
behaviour with scandalises the court, prejudices the due course of a
judicial proceeding or interfere or tends to interfere with the
administration ofjustice.^^'^

Contempt of Court finds a place in the Indian Constitution

under Article 19(2), Article 129 and Article 215. According to Article
19(2) of the Constitution, "contempt of Court' is one of the grounds on
which the State can legislate to place reasonable restrictions on
freedom of speech. The primary legislations dealing with contempt is
the Contempt of Courts Act, 1971. The Act says that fair and
accurate reporting of any judicial proceedings shall not constitute
contempt, lis The Act also precludes fair criticism of judicial acts from
being held as contumacious, ii^ Innocent publications', that is,
potential information that would prejudice the trial, though the person
publishing it did not know or have the reason to believe that
proceedings were pending, are also not punished under this Act. 120
After the Contempt of Courts (Amendment) Act, 2006, 'truth' has
been added as a defence.^^i

Article 129 of the Constitution of India says that the Supreme

Court shall be a 'court of record'. Article 215 grants a similar status to
the High Courts, While the term 'Court of Record' has not been
defined in the constitution itself, it is well recognised in the judicial
world 122 to mean a court whose acts and judicial proceedings are

115 Section 2(b), Contempt of Court Act, 1971.

116 D.D. B a s u , Commentary on the Constitution of India, 5 6 1 8 (2012).
1" Section 2(c), Contempt of Court Act, 1971.
118 Section 4, Contempt of Court Act, 1971.
"9 Section 5, Contempt of Court Act, 1971.
120 Section 3, contempt of Court Act, 1971.
121 Section 13, Contempt of C o u r t s Act, 1971.
122 Supra n. 116 at 5 6 1 5 .

184
enrolled for perpetual memorial and testimony, and the court also has
the power of summarily punishing contempt of itself. 123 This means
that the constitutionally granted power to punish for contempt of itself
cannot be subject to any legislation.

The implication of this is that the contempt power of the

Supreme Court under Article 129 and the High Courts under Article
215 cannot be denuded, restricted or limitedi24 by ^^g Contempt of
Court Act, 1971. In Supreme Court Bar Association^^^ Case, it was
held that the Parliament may still prescribe the procedural aspects for
contempt of court to be applicable to the High Courts and the
Supreme Court. This would imply that section 12(1) of the Contempt
of Court Act, which prescribes a maximum punishment as a fine of
Rs. 5000/- a n d / o r imprisonment for a term of 6 months shall be
applicable. The Contempt of Court Act does not prohibit an individual
to make a complaint against the presiding officer of the subordinate
courts, if it is made in good faith and for public interest. The
subordinate courts are bound to follow the orders of the High Court. If
they act contrary, then they can be charged for the contempt of
court. 126 Section 10 to 16 of the Act provide for the matters and
classes of persons or authorities and procedure for contempt
proceedings, respectively. Section 10 of the Contempt of Court Act,
1971 takes into its ambit all the courts and tribunals, all the quasi-
judicial authorities under the superintendent of the High Court under
Article 227, including the arbitrators appointed through courts, gram-
panchayats and Nyaya-panchayats. Section 16 brings to its ambit or
jurisdiction the judges, magistrates and any other persons acting
judicially, if the case is of malfeasance and misfeasance, they can be
held liable for the contempt of their own court in the same manner as
any other individual is held liable by the provisions of this Act.

123 Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176;
Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.
124 In Re; Ajay Kumar Pandey, AIR 1997 SC 2 6 0 .
125 Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.
126 Section 1 1 , Contempt of Court Act, 1971.

185
(ix) Prohibition on Practice after Retirement (Articles, 124 (7),
220)

The Constitution debars the Judges of the Supreme Court from

pleading or appearing before any court or tribunal or judicial
authority in India after retirement. ^27 js^ retired Judge of the High
Court is also prohibited from practising before a court where he had
been a Judge. A High Court Judge, however, can after retirement,
practice in the Supreme Court or in a High Court in which he had not
been a Judge, i^s However, Article 124(7) does not create a bar or
disqualification for a Judge of the Supreme Court to offer his
candidature for membership or to become a Member of Parliament. 129
Article 220 imposes a restriction on a Judge of High Court practising
after being a permanent Judge. It provides that a person who has held
office as a permanent judge of a High Court shall not plead or act in
any court or before any authority in India except the Supreme Court
and other High Courts. It may be noted that the bar against practice,
applies only to a permanent judge of a High Court. It does not say of
Additional Judge, who can practise in any court including the High
Court to which they belonged. Some would be the case of an acting
Judge. 130 This is done to maintain the sanctity and independence of
judicial institutions in the country. In order to secure complete
independence, the retired judges should be debarred from all post-
retirement allurements. The Law Commission has also criticised the
prevailing practice of re-employing the retired judges. It is clearly
undesirable that Supreme Court Judges should look forward to other
government employment after their retirement. The solution of the
problem appears to lie in increasing the age of retirement of a
Supreme Court Judge from 65 to 70 years to make liberal pension
provisions for the retired Judges, to put a legal ban on a Supreme
Court Judge accepting an employment under any government after

'" Article 124(7) of Constitution of the India.

1^8 Article 220 of Constitution of the India.
'^9 Ananga D.S. Deo v. Ranga Nath Mishra, AIR 2 0 0 1 Orissa 24.
130 Supra n. 73 at 574.

186
retirement, and to use his judicial talent in an honorary, and not in a
salaried, capacity.i^i On the other hand, the Law Commission
adversely commented on the practice of the High Court Judges setting
up practice after their retirement, as it greatly detracted from the
dignity of the High Courts and the administration of Justice generally.
Therefore, the Law Commission suggested that the retirement age of
the High Court judges be extended from 60to 65 years and a total ban
imposed on a retired High Court Judges resuming practice in any
court. 132 fiiQ Commission's recommendation was partially accepted;
the age of retirement of a High Court Judge was raised from 60 to 62,
but ban on his practice after retirement was not imposed. ^33

(x) Condition of Service

The another important point which require attention for

independence of judiciary is the conditions of service. The conditions
of service have direct concern with the day to day functioning of the
judge as well as the security in its diverse dimensions after retirement.
For free and impartial decision on the part of judge the conditions and
terms of service in accordance with one has to discharge his judicial
functions has direct bearing. By conditions of service here we mean
those terms and conditions within which a judge has to act during
and after his service as a judge. For our present purpose the
conditions of service have been provided under Judges Conditions of
Service Act. In this regard, for Supreme Court Judges, there is The
Supreme Court Judges (Conditions of Service) Act, 1958 as
amended in 2009 and for the High Court Judges, The High Court
Judges (Conditions of Service) Act, 1954 as amended in 2009.
These two enactments lay down conditions of service in addition to
conditions provided under the Constitution. The studies of the various
provisions of the enactments make us to understand that the judges

131 Supra n. 72 at 2 8 6 - 2 8 7 .
132 XIV REPORT, 88.
133 Supra n. 72 at 379.

187
are provided with the various benefits during their services and after
retirement from the services.

A. Position of Supreme Court Judges

The Supreme Court Judges (Conditions of Service) Act,

1958 as amended in 2009 provides following benefits to the judges of
the Supreme Court.

(a) Provisions Regarding Leave

Under the provisions of the Act the judges of the Supreme Court
are entitled to various kinds of leaves. The first kind of leave is
ordinary in nature and is granted on full allowances. i34The second
kind of leave is granted on half allowances^^s as per rules pertaining
to leave. Further, a Judge can avail third kind of leave but this is
subject to the conditions. This is granted on the basis of partly half
and partly full allowances, ^^e Apart from the three kinds of ordinary
leaves a Judge has been provided with special kind of leave to meet
unforeseen incidents and circumstances. However, by its very nature
the special kind of leave^^T JS not due to the credit of a judge but is
sanctioned to meet situations which are beyond the reach of person
concerned. In case of illness one can take medical leave. But this leave
in no case may exceed six months. If there is any accident case and
judge is not able to attend the court and discharge his official duties
in such a cases there is provision for special disability leave, ^^s fhe
last kind of leave which a judge can avail is extra-ordinary leave. This
leave will be granted without pay and benefit of allowances. 1^9 The
provisions of this Act lay down that the competent authority must
maintain the proper record of leave of each and every judge, i^o

134 Section 3(1) (a) of The S u p r e m e Court J u d g e s (Conditions of Service) Act, 1958.
135 Ibid, Section 3(1) (b).
136 Id, Section 3(1) (c).
137 Id, Section 6.
138 Id, Section 7.
139 Id, Section 8.
140 Id, Section 12.

188
(b) Provisions Regarding Pension

The Judges (Condition of service) Act, 1958 also provide

pensions benefit to the judges of Supreme Court. For this purpose
judges are divided into three categories. In the first category falls the
judge who has either directly entered to the Supreme Court or from
any of the High Courts. His case for pension will be governed by the
provisions of this Acti^^i and as per the amount of pension specified in
the Schedule to the Supreme Court judges (condition of service) Act,
1958 as amended in 2009. Section 13 of this Act lay down that
subject to the provisions of this Act, a pension shall be payable in
accordance with the provisions of Part-1 of the schedule to a judge of
the Supreme Court on his retirement if, but only if-

I. Committedi42

II. he has a t t a i n e d t h e age of sixty-five years: or

III. his r e t i r e m e n t is medically certified to be necessitated by

ill health.

Section 13-A lay down that "subject to the provision of this Act, a
period of ten years shall be added to the service of a Judge for the
purpose of his pension, who qualified for appointment as such judge
under sub-clause (b) of clause (3) of article 124 of the Constitution. "^'^^
In the second category comes those judges who have held any
post and central civil services rules were applicable to him. In this
case the judge will get the pension benefit under the ordinary rules of
pension as contained in Central Civil Service Rules, i'*'* But his services
a judge will be taken into consideration for calculating the total
service period only for the purpose of pension.

In the third category falls that judge who were in service and
were holding any civil pensionable post. But were not governed by the

141 Id, Section 13.

i« Omitted by Act 46 of 2 0 0 5 w.e.f 1.4.2004.
143 Inserted by Act 4 6 of 2 0 0 5 . w.e.f. 1.4.2005.
144 Ibid, Section 14, sub-section (1-2).

189
Central Civil Services Rules. He will get the pension benefit according
to the ordinary rules of pension for which he was eligible while holding
a civil pensionable post. Again in this case his services as a judge will
be considered only to calculate the service period and for pension
purposes. Further, the amount of pension etc. will be calculated in
accordance with the schedule-I of the Supreme Court Judges
(Condition of Service) Act, 1958 as amended in 2009.145 The
notable point regarding pension of Supreme Court Judges is that if
one is lacking this benefit due to requirement of minimum qualifying
services then the President can add three months period to the credit
of the judge to make job pensionable. I'^s Further, every judge shall be
entitled to subscribe to the General Provident Fund (Central Services)
to which he was subscribing before his appointment as a Judge.i"*"^
Further, save as may be otherwise expressly provided in the
competent relevant rules relating to the grant of extraordinary
pensions to grant and gratuities, the authority competent to grant
pension to a Judge. Judge under the provisions of the Act, shall be
President, i'^^

(c) Provisions Regarding other Conditions of Service

The Act as amended in the year 2009 provides, housing facility,

conveyance and sumptuary allowance, gratuity and family pension
and after retirement medical facility to the judges of Supreme Court.
The new provision, confer facilities for sent free houses and other
conditions of service to the judges of Supreme Court.

Section 23(1) lay down that

Every Judge shall be entitled without payment of rent to the use

of an official residence in accordance with such rules as may, from
time to time, be made in this behalf. In addition, where a Judge does
not avail himself of the use of an official residence, he may be paid

J« Id, Sections 16, 17, 18, 19.

!•'<' Id, Section 15.
147 Id, Section 20.
148 Id, Section 2 1 .

190
every month an allowance equivalent to an amount of thirty percent
(30%) of the salary. 149

Further, every judge and the members of his family shall be

entitled to such facilities for medical treatment and for
accommodation in hospitals as may from time to time be
prescribed. 150 xhe medical treatment benefits will also be governed by
the central civil service (Rules) Class-I for the time being in force.i^i

Furthermore, the provisions confer conveyance and sumptuary

benefits to the judges of the Supreme Court. Section 23-A lad down
that every Judge shall be entitled to a staff car and (two) hundred
litres (fuel) per month or the actual consumption of fuel whichever is
less. In addition, section 23-B lay down that the Chief Justice and
each of the other Judge shall be entitled to a sumptuary allowance of
(twenty thousand) rupees per month and (fifteen thousand) rupees per
month, respectively.

In addition to these two benefits the judges of the Supreme

Court have also been given benefit of family pension and gratuity
allowance. For getting this benefit the qualifying services are two years
and six months for the purpose of family pension and the amount of
gratuity shall be calculated on the basis of (ten) days salary for (each
completed six months period) of service as a Judge.152 The matter will
be governed by the rules of Central Civil Service Class-I for the time
being in force. Therefore, the Constitution of India specifically protects
the salaries, allowances, leave benefits and other privileges and rights
of the judges of the High Courts and the Supreme Court. The relevant
provisions of the Constitution put restriction on the power of the
Parliament in this area.

149 Id, Section 2 3 (1) (lA).

150 Id, Section 23(2).
151 Id, Section 23(3).
15^ Section 16 A (2).

191
B. Position of High Court Judges

The High Court Judges (Conditions of Service) Act, 1954 as

amended in 2009 provides following benefits to the judges of the High
Courts.

(a) Provisions Regarding Leave

Under the provisions of the Act the judges of the High Courts
are entitled to various kinds of leave. The competent authority to grant
or reject or return or curtail the leave is the Governor of the State
concerned. 153

Section 13 lay down that the authority competent to grant or

refuse leave to a Judge or revoke or curtail leave granted to a Judge
shall be the Governor of the State in which the principal seat of the
High Court is situated, after consultation with the Chief Justice of
that High Court.

The first kind of leave which a Judge can avail is as other public
servant can enjoy. This kind of leave is granted on full allowances. 1^4
The leave is ordinary in nature. The second kind of leave is granted on
half allowances. 155 ^ s per rules pertaining to leave. Further, a Judge
can avail third kind of leave but this is subject to the conditions. This
is granted on the basis of partly half and partly full allowances. 156 in
addition to ordinary leaves Judges are entitled to extra-ordinary
leaves. 157 A Judge can enjoy this leave once during his service and
must not exceed six months. As this is extra-ordinary in nature,
therefore, for such leave period no salary and allowances are paid to a
Judge. For this purpose to avoid any kind of confusion the Act
provides that the Competent Authority shall maintain the proper
record of all kinds of leave. i58 in addition, if a Judge becomes ill and is

153 por details see, The High Court J u d g e s (Conditions of Service) Act, 1954 a s
a m e n d e d in 2009.
154 Ibid, Section 3 (a).
155 Id, Section 3(b).
156 Id, Section 3 (c).
157 Id, Section 8.
158 Id, S e c t i o n 4 ( 1 ) , (2).

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unable to attend his duties then the provision of the Act provides
medical leave benefit to the Judge. 1^9

(b) Provisions Regarding Pension

The Judges (Conditions of Service) Act, 1954 as an amended in

the year 2009 also provide pension benefit to the Judges of the High
Courts. Under the scheme of the Act there are three criteria for
ascertaining the services of a Judge for pension purposes. His case for
pension will be governed by the provisions of this Act and as per the
amount of pension specified in the Part-I of the First Schedule, i^o He
must have either completed twelve years of service or has attained the
age of sixty two years and in, the case of a Judge holding office on the
5 * day of October, 1963, sixty years or if there is any medical
justification in this regard. On the basis of all above mentioned facts a
Judge is eligible for pension benefit. In addition, if a person has not
entered directly and was a member of Indian Civil Servicei^i and
thereafter, has not opted for pension under the provisions of the
present enactment. In such circumstances the case for pension will be
governed by Central Civil Service Rules, Part-II of the First
Schedule. 1^2 On the other hand, Every Judge who is not a member of
the Indian Civil Service but has held any other pensionable Civil post
under the Union or a State, shall, on his retirement, be paid a pension
in an accordance with the scale and provisions in Part -III of the First
Schedule. 1^3 Further, it provided that every such Judge shall elect to
receive the pension pay able to him either under Part-1 of the First
Schedule, or, as the case may be, Pat-II or Part-Ill of the First
Schedule, and the pension payable to him shall be calculated
accordingly. Again, The President of India for special reasons direct
that any period not exceeding three months shall be added to the

15'' Id, Section 7.

160 Id, Section 14(a), (b), (c)
161 Id, Section 15.
162 7d Section 15(1) (a)
163 Id, Section 15 (1) (b).

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service for pension of a Judge. ^^^ Thus, the analytical study of the
various provisions regarding extra ordinary pension, i^s family pension
and gratuities, 166 Additional quantum of pension or family pension, i^^
conversion of sterling pension into rupees, i^^ commutation of
pension, 169 provident fund^^o are highlight the facts that in the
provisions of the enactment an attempt has been made to cover all
kinds of cases in favour of Judges. At last, under relevant rules of this
Act, the Authority is competent to grant of extra ordinary pensions
and gratuities to a Judges of the High Court. I'^i

(c) Provisions Regarding other Conditions of Service

The High Court Judges (conditions of service) Act, 1954 as

amended in the year 2009 provides housing facility, conveyance and
sumptuary allowances, post-retirement medical benefits to the Judges
of the High Courts. There is no denying the fact that it is the duty of
the State Government to provide housing facilities to Judges of the
High Court. i'72 T;he provision lay down that every Judge shall be
entitled without payment of rent to the use of an official residence in
accordance with such rules as may, from time to time, be
prescribed. i'73 In addition, where a Judge does not avail himself of the
use of an official residence, he may be paid every month an allowance
"equivalent to an amount of thirty percent (30%) of the salary, i'''*

The provisions of the Enactment further provide benefit of

conveyance allowance to the Judges of High Courts. The provision lay
down that every Judge shall be entitled to a staff car and two hundred
litres of fuel every month or the actual consumption of fuel every

164 Id, Section 16.

i&s Id, Section 17.
166 Id, Section 17(A).
167 Id, Section 17(B).
168 Id, Section 18.
is'J Id, Section 19.
170 Id, Section 20.
171 Id, Section 2 1 .
172 Id, Section 22. A (1), (2).
173 Inserted in Section 22A by Act of 3 5 of 1976, w.e.f. 1.10.1974.
174 S u b s t i t u t e d by Act 7 of 1999, w.e.f. 8.1.1999.

194
month or the actual consumption of fuel whichever is less.^^^ Further,
the Chief Justice and each of the other Judges of every High Court
shall be entitled to a sumptuary allowance of fifteen thousand
(15000/-) rupees per month and twelve thousand (12000/-) rupees
per month, respectively. ^'^^

Under the provisions of the enactment Judges of High Courts

are given some medical benefits even after retirement. The Principal
Act contained provisions in this regard. According to the provisions of
the Act, a retired Judge was entitled to medical treatment for himself
and his family. The relevant provision lay down that^'^'^

I. Every retired Judge shall, with effect from the date on which the
High Court Judges (Conditions of Service) Amendment Act,
1976, received the assent of the President be entitled for himself
and his family, to the same facilities as respects medical
treatment on the same conditions as a retired officer of the
Central Civil Services, Class-I and his family, are entitled under
any rules and orders of the Central Government for the time
being in force.

II. Notwithstanding anything in sub-section(l) but subject to such

conditions and restrictions as the Central Government may
impose a retired Judge of the High Court for a State my avail,
for himself and his family, any facilities for medical treatment
which the Government of that State may extend to him. This
specification of post-retirement medical facility has greatly
contributed to the dignity and honour of Judges of the High
Courts. Thus, these facilities are helpful for the independence of
the judiciary.

175 Id, Section 22-B.

176 Id, Section 22-C.
177 Id, Section 22-D.

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(xi) Establishment of Court

Apart from independence of judges the other factor which is

necessary for the independence of judiciary is the establishment of
court. By establishment of court we mean the administrative set-up of
the court. The Constitution of 1950 created for the first time in Indian
history a Supreme Court for the whole of India. The establishment of
this court with an all- India-jurisdiction is likely to accelerate the
development of a common law extending over every nook and corner of
the republic. Article 141 enjoins "that the law declared by the Supreme
Court shall be binding on all courts in India". It gives the opinions of
our Supreme Court a constitutional force. The judicial process can be
an effective weapon forging national integration.

The Constitutional of India contains specific provisions for

establishment of court. I'^s According the provisions of the
Constitution, there shall be officers, servants and other persons with
the courts for administrative work. The Constitution empowers the
Chief Justice of India to make appointments to the administrative
staff of the Supreme Court. Similarly, the Chief Justice of the various
High Courts have been empowered to make recruitment to the
establishment of the respective High Courts. Not only this,
appointments to lower judiciary are also made by the High Court. The
person so appointed are under the complete control of courts as for as
their services are concerned. At the same, the Constitution also
protects the salaries and allowances of the persons those who have
joined the administrative services of the court. Their salaries are to be
paid from the Consolidated Fund of India. For this purpose the courts
can take help of respective Public Service Commission for recruitment
purposes. But in such cases appointing authority is the Chief Justice
and the formal approval of the President of India. Thus, the provisions
of the Constitution provide for the effective and full control of the
Chief Justice over the administrative staff of the court. These

178 Id, Section 146 a n d 2 2 9 .

196
provisions of the Constitution apart from Judges Independence are
further in consonance with the philosophy of the independence of the
judiciary.

V. Sum-Up

The Independence of the judiciary as is clear from the above

discussion hold a prominent position as far as the institution of
judiciary is concerned. It is clear from the historical overview that
judicial independence has faced many obstacles in the past especially
in relation to the appointment and transfer of judges. Courts have
always tried to uphold the independence of judiciary and have always
said that the independence of the judiciary is a basic feature of the
Constitution. Courts have said to so because the independence of
judiciary is the pre-requisite for the smooth functioning of the
Constitution and for a realization of a democratic society based on the
rule of law. It must also mentioned that appointments by the
executive before independence were reasonably fair and well received.
If the constitutional authorities and the executives have the interest of
the judiciary at heart, there can be no difficulty in ensuring that best
possible persons are appointed to the high office of Supreme Court or
High Courts. Therefore, the method of appointments to the Supreme
Court and High Courts is likely to continue as per the two decisions
referred to earlier.

The comparative study of the constitutional provisions reveals

that the judicature is no less important than the other organ of the
State. It keeps every organ of the State or other constitutional and
non-constitutional bodies within their limits assigned to them and
prevent encroachment on the sphere of each other. Thus, it prevents
chaos and works for peace prosperity communal harmony and amity.
The study in hand also reveals that our Constitution contains certain
provisions which protect the independence of the judiciary.

197