Report No. 14
31. Though we have called attention to this matter in connection with the High Court judiciary, the same observations apply to the attitude of the executive towards the subordinate judiciary and even the Supreme Court.
32. Cause of the attitude.-
The causes of this attitude of the executive towards the judiciary lie perhaps in the conditions which have supervened after the enactment of the Constitution. Applications by the citizen to enforce his fundamental rights and other applications to the High Courts by the citizen under Article 226 of the Constitution against arbitrary administrative option have given frequent occasion to the judiciary to pronounce upon the validity of legislative action and the correctness of executive conduct.
This, in its turn, seems to have created an erroneous impression in the minds of some members of the legislatures and the executive that the judiciary is sitting in judgment as it were on the propriety of legislation and trying to put obstacles in the way of executive action, designed to help the country in its onward march. Such an impression is based on a misconception of the function of the judiciary under the Constitution and the power of judicial review which is enjoined upon it. It becomes the duty of the judiciary whenever the legislature or the executive has travelled beyond the scope of its power to say so and prevent their unconstitutional action.
33. The true role of judiciary.-
The Supreme Court of India has found it necessary to refer to the attitude thus adopted towards Courts of law. The Chief Justice of India observed:1
"Our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution If, then, the Courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the "fundamental-rights" as to which this Court has been assigned the role of a sentinel on the 'qui vive'. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that courts in the new set up are out to seek clashes with the legislature in our country."
1. State of Madras v. V.G. Row, AIR 1952 SC 199.
Similar trends have manifested themselves in the United States but they have not been allowed to go unchecked. Referring to such ill-informed criticism the President of the American Bar Association observed:1
1. By Charles S. Rhyne on Defending our Courts The Duty of the Legal Profession-American Bar Association Journal, Feb. 1958-as reported in The Lawyer-May 1958 pp. 64-65.
"Our system of Government is no stronger than our courts, and our courts are no stronger than the strength of the public's confidence in them.
"The American people have not hesitated to rebuke powerful and popular presidents who struck out against the courts and especially the Supreme Court of the United States, and our people are not likely to be swayed by the hysterics of the lunatic. But there is danger indeed when the courts are assailed by sensible and well-intentioned citizens who have let their disagreement with individual decisions lead them into irresponsible criticism of the courts as an instrument of government."
It is well to stress again that our court system is not above censure. No organ of government is. None of our institutions are perfect. As Mr. Justice David Brewer of the Supreme Court said in 1898:
"It is a mistake to suppose that the Supreme Court is either honoured or helped by being spoken of as beyond criticism.
But there is a vast difference between criticism stemming from constructive analysis of particular decisions and the uninformed, misleading statements and insults which are currently being hurled."
"The stake of the public at large in this matter is tremendous. A respected and strong judiciary and a respected and strong Bar are essential to maintain our system of freedom under law."
34. General realisation of the role of the judiciary necessary.-
It appears to us that these aspects of the matter need to be impressed upon the members of the legislatures and the executive at the Union level and in the States. It is necessary for all to realise that the role assigned to the judiciary under the Constitution is an essential one and that the high ideals, the attainment of which is aimed at by our Constitution, social and economic justice, equality, freedom and dignity of the individual, will be impossible of achievement unless the judiciary fearlessly discharges its duties in every complaint of excess of power by the legislatures or the executive, brought to its notice. A proper realization of these aspects at the highest level can alone bring about a change in the attitude towards the judiciary.
We trust that what we stated will be appreciated and measures taken in all directions so that the judiciary-superior as well as subordinate-may enjoy the dignity and the respect to which it is justly entitled and which alone can be an incentive to a proper discharge of their duties.
35. Judicial salaries (Complaints of inadequacy).-
There is undoubtedly a feeling among the members of the Bar that the present salary of High Court Judges are too low to attract the members of the Bar in the front rank to judgeships. This has been stated by a substantial body of opinion to be the cause of the fall in the standards of the High Court judiciary. The salary of a High Court Judge was fixed at Rs. 4,000 about a hundred years ago when the value of money was far higher than at present. Notwithstanding the fall in the value of money and the heavy rise in taxation, the salary of judges was reduced by the Constitution to Rs. 3,500. A leading member of the Bombay Bar pleading for an increase in the Judge's salary to Rs. 6,000 stated as follows:
"They (the Judges) deal with questions of public and private importance which may involve also large sums of money. It may be mentioned that the work done by a judge requires a technical equipment of the highest kind and the five hours of work in the court requires very great concentration. It is impossible the expect a counsel who makes an income of twelve to fifteen thousand rupees a month to accept the post of Rs. 3,500 with a pension of about Rs. 1,200 on retirement when he is sixty. It must not be forgotten that an income is not earned merely for the earner but also for his family as also for making a provision both for himself and for his family in the future.
The increase in the salary of judges, which I have suggested, namely, Rs. 6,000, still involves a very substantial sacrifice from a counsel in his practice. But the sacrifice would be made at the figure I have suggested provided the pension was not less than at least fifty per cent of the salary. The force of all that I have stated before, was brought home to the British Government as regards the Judges in England and as I have stated in my evidence, the revised scales of pay show that both parties in a Welfare State recognise the necessity of paying the judges a substantial salary and a pension."
The witness stated that out of the monthly salary of Rs. 3,500 a High Court Judge after payment of taxes (income-tax and super-tax), insurance, house rent and expenses for maintenance of a car, which are unavoidable items of expenditure, gets a net income of about Rs. 14,000 per year, that is, a little less than Rs. 1,200 per month to meet all the other expenses of the upkeep of a family, education of the children and a host of other miscellaneous items of expenses.
This view was endorsed by an experienced Chief Justice who thought that the judge's salary was "wholly unattractive. Not only is the amount far smaller than what the practitioner can easily earn at the Bar, but it is also inadequate for maintaining a decent standard of living and discharging one's obligations to one's children as regards their education and marriage". During the Constituent Assembly Debates, it was admitted by Dr. Ambedkar that the terms and conditions of a Judge's service were unattractive.
36. Not inadequate except in Calcutta and Bombay.-
We have endeavoured to find out in the course of our inquires the volume of practice of leading lawyers in various parts of the country in the changed conditions now prevailing. It appears that excepting in the principal towns of Calcutta and Bombay, the income of the leading members of the Bar other than those who by their reputation and status have established an inter-State or an all-India practice, does not exceed in a substantial measure the sum of Rs. 3,500. If that is the position in most of the States, we do not think that a case has been made out for recommending an increase of the High Court Judge's salary, though as we shall point out later, their pensions and leave conditions require to be altered.
37. A possible solution (Appointment at an earlier age).-
How then is the problem of recruitment of judges from the Bar to be dealt with in places like Calcutta and Bombay? It is obviously not practicable that High Court Judges in some States should have higher salaries than in other States. We think that a solution can be found in selecting Judges from the rising juniors of the Bar.
38. Judgeships offered too late.-
We have been informed that difficulties arise in recruiting High Court Judges from the Bar because judgeships are offered to promising members of the Bar at a very late stage of their career. We have no doubt that if a rising lawyer whose practice is growing and who is likely in a few years to attain the status of a senior or a leader at the Bar, is offered a judgeship at an early stage of his career, he would accept it. We have at the moment instances of selections of persons at an early age to the Benches of the Calcutta and Bombay High Courts who have turned out to be able and even distinguished judges.
We were not surprised at instances brought to our notice of leading members of the Bar in different States who had been offered judgeships at a late stage and at ages which would not give them a sufficient number of years on the Benches to earn their full pension and who had declined them. It was generally agreed that if these members of the Bar had been offered judgeships at an earlier age they would have accepted them.
39. Youth not a disqualification.-
We have been told that a view prevails among the appointing authorities that a member of the Bar is too immature to be appointed a judge unless he has reached the age of about 55. Such a view is, in our opinion, unsound. It is unnecessary to emphasize that in our country, as well as in various other countries, many youthful judges have proved to be a great success. We are of the view that efforts should be made in all the States and particularly in the States of West Bengal and Bombay to induce members of the Bar to accept seats on the Bench round about the age of 45. Normally, a member of the Bar in good practice at that age is but a rising junior and it would not be difficult to induce him to accept a judgeship with the prospect of earning a full pension.
40. Necessity for maintaining standards in making appointments.-
It may also be mentioned that apart from what we have stated, recruitment to the High Court Bench from the Bar would not, notwithstanding the disparity of income at the Bar and the Bench, present such difficulties if certain standards are preserved in inviting members of the Bar to join the Bench. We have been told that in at least one High Court, the cause for a number of refusals by members of the Bar in good practice to accept judgeships had been the indiscriminate manner in which some junior members of the Bar were invited to become judges to the neglect of the senior or leading members.
In a normally worked High Court, the senior practitioner would regard it an honour to be invited to become a judge and would naturally feel slighted if his juniors are invited in preference to him and he is invited to join the Bench later. Invitations to juniors in preference to seniors came perhaps to be made by reason of the failure of the Chief Justice of the High Court to realise the importance of the convention or it may be by reason of the Chief Justice's recommendation not being approved by the executive. Whatever be the case, such a practice must be deprecated. Not only does it lead to difficulties in recruitment but it destroys respect for the bench at the Bar and co-operation between them.
41. Personality of the Chief Justice.-
The personality of the Chief Justice plays a great part in the proper recruitment to the Bench from the High Court Bar. It is known that even in Calcutta and Bombay, Chief Justices who inspire respect at the Bar have been able to induce members of the Bar to accept seats on the Beach at a sacrifice.
42. Age of retirement (To sixty-five).-
It would be convenient, before we discuss the questions of pension and leave conditions of the High Court Judges, to discuss the question of the age of their retirement. A very large body of opinion has maintained that the age of retirement should be raised. Some have advocated it being raised to sixty-two or sixty-three while a large volume of opinion is in favour of its being raised to sixty-five. It has been pointed out that apart from the Judges of the High Court appointed to the Supreme Court many High Court Judges have, after retirement, been appointed to the membership or the chairmanship of various tribunals and have functioned efficiently till the age of sixty-five.
The information gathered by us shows that a large number of retired judges of the High Courts have been in Government employment of some kind, or other after retirement. The recent constitutional change which permits retired judges to practise in the Supreme Court has resulted in a fair number of them setting up practice in the Supreme Court. The figures of the last census show that the average expectation of life for males in this country has risen during the years 1931-1951 from 26.91 to 32.45 years. The rise would necessarily be much higher in the well-to-do classes of the population.
In recognition of this, one of the States has recently raised the age of retirement of its Government servants generally from fifty-five to fifty-eight years. No doubt, we have been told of a few cases in which the High Court Judges have not been able to reach even the age of 60 years with their physical or mental capacity, unimpaired. These, however, are exceptions. We think that we are justified in concluding that the average and the normal High Court Judge would be able to discharge his duties efficiently even if the age-limit is raised to sixty-five years.
It will be remembered that there is no age-limit for the retirement of High Court Judges in other countries and where the age limits exist they are higher than sixty-five years. So great is the importance attached to a judge's ripe experience that Justices of foreign countries who have visited India have often expressed surprise at the age-limit of retirement which prevails in our country. These considerations lead us to recommend that the age limit of High Court Judges be raised to sixty-five years.
43. Recruitment to the Supreme Court.-
It may be said that the raising of the age of retirement to sixty-five would by levelling the age of retirement of High Court judges with that of Supreme Court Judges make it difficult to recruit to the Supreme Court Bench, judges of the High Court who have retired or are about to retire at the age of about sixty as has hitherto been done.
We have already indicated elsewhere that the appointment of High Court Judges at a late age to the Supreme Court is not necessarily an advantage. If judges are selected at a younger age from the High Court for the Supreme Court we shall have among other things succeeded in having in the Supreme Court, judges with long tenures.
Possible difficulties and their solution.- No doubt, the higher age of retirement in the Supreme Court which gave a five years longer tenure of office than in the High Court was an inducement to High Court Judges to accept a seat on the Supreme Court Bench. It may happen that if there were the same age of retirement for both Courts, there not being any very substantial difference in the salary of the judges of the two Courts, a Judge of the High Court may well prefer to continue to be where he is which would probably be his home town with a family house and family connections.
This may happen notwithstanding the fact that the judgeship of the Supreme Court carries a greater status as the judgeship of the highest Court in the land. In order that no difficulty may be experienced in obtaining adequate personnel for the Supreme Court, it should be either a condition of service or a well established convention that it would be the duty of a Judge appointed to the High Court to accept the office of a Supreme Court judge, if and when he is called upon to do so. We do not see any difficulty in laying down such a condition of service or establishing such a convention.
44. Prevention of canvassing.-
The course we have suggested will have the important additional advantage of preventing unseemly canvassing or "candidateship" for being appointed to the Supreme Court. It may be mentioned that such practices as have been mentioned in a passage already quoted in connection with appointments to the High Court do prevail, through not happily to the same extent in the case of Supreme Court judgeships.
45. Higher retirement age to apply only to judges appointed in future.-
We have given anxious consideration to the question whether the higher age of retirement should be made applicable to the judges who are now in office. It appears to us that it would be inappropriate to apply it to the existing judges as it would be varying the terms and conditions on which they accepted their appointments. Such privileges as they would have, on their retirement such as the right to practice and to accept employment under Government will have to remain unaffected.
46. Pensions inadequate.-
We have already indicated that it is essential that in the matter of pensions of High Court Judges the State should take a much more liberal attitude. A member of the Bar who has served for twelve years as a Judge of the High Court becomes entitled to the maximum pension, of Reform of Judicial Administration 14.77 Rs. 16,000 per annum which amounts to Rs. 1,3331/3 per month. The pension would, of course, be subject to the usual taxes. It is extremely unlikely that a member of the Bar who has qualified for a full pension by accepting office at an early age would have saved enough out of his earnings at the Bar to be able to supplement his pension.
It has already been pointed out that there is very little prospect of the judge being able to save anything substantial from his salary during the tenure of his office. It is not surprising that with pensions so low, the large majority of retired judges are driven to employment or practice at the Bar after retirement.
47. Increase recommended.-
In dealing with the question of pensions to the Supreme Court Judges we have referred to the liberal scales on which pensions are paid in the United States and in the United Kingdom. We shall advert at a later stage to the undesirability of permitting retired High Court Judge either to seek employment or to practise in the Supreme Court. In order that the retired High Court Judge may after retirement be able to live in comfort without having to seek other avenues of income we would recommend that the pension of the Chief Justice of a State High Court should be fixed at Rs. 2,000 and of a puisne Judge at Rs. 1,750 per month. In view of the longer tenure of office which we have recommended, the minimum period for earning the full pension may remain what it is at present, namely, twelve years.
The increase in the pension which we are recommending should, we think, make a substantial difference, particularly when we bear in mind that the judge will, if our recommendation is accepted, retire at the advanced age of sixty-five years. The additional financial commitment involved in the increase of the pension is in our view essential. It may also be pointed out that the increased cost to the State will not be substantial as the pension will be paid for a shorter period of years having regard to the increased age of retirement.
48. Leave privileges (Increase of leave allowances).-
In dealing with the rights in respect of leave of absence of the Supreme Court Judges we have recommended that they should be at least as liberal as those of the High Court Judges. The provisions with regard to leave admissible to High Court Judges are contained in Chapter II of the High Court Judges (Conditions of Service) Act, 1954. We do not propose to set out these provisions which are somewhat complicated nor do we propose to recommend any change in the amount of the leave to which they are entitled. We, however, understand that under the present conditions a High Court Judge becomes entitled to leave on full allowances for a period not exceeding one twenty fourth of the length of his actual service.
This is subject to certain restrictions as to the total length of leave he can avail of at any one time. Curiously enough, however, full allowances under the rules mean his full salary only for the first month of his leave and a sum of Rs. 2,200 per month during the remaining period of leave admissible to him on full allowances. It is difficult to appreciate the reason for the rule. It prevents a judge from accumulating his leave, for, if he accumulates it for three or six months, he would get his full salary only for the first month of the accumulated period and for the remainder, it may be Rs. 2,200 per month for a period; and for the last remaining period Rs. 1,100 per month as leave on half-allowances.
This leads, we are informed, to judges taking advantage of their leave privileges as soon as leave becomes due and being averse to allow it to accumulate. The dislocation of the work of the Court which such a practice would cause can be easily imagined. There is no reason why the rule as to half the leave being on full allowances and the remaining half on half allowances should not apply whatever the length of the period of leave to which a judge becomes entitled, so that he may get his full salary during the period to which he is entitled to full allowances and half his salary during the period to which he is entitled to leave on half allowances.
49. Practice after retirement.-
The recent change in Article 220 of the Constitution which has the effect-of permitting a retired judge of a High Court to practise in the Supreme Court and other High Courts has evoked considerable comment and disapproval. We had occasion to deal with the question of the undesirability of retired Supreme Court Judges being permitted to take employment under Government or to carry on chamber practice. Similar considerations apply with equal force to retired High Court Judges. As was observed by a leading counsel in Bombay in the course of the evidence given before us:
"To allow the judges to practise either in Courts or by way of giving advice is an extremely retrograde step gravely affecting the independence of the judges There are big clients appearing before you as a judge and you contemplate them as your future clients and the fact that you are shut out from going to Court or arguing has not prevented opinions being given charging Rs. 10,000 or Rs. 15,000 or even Rs 20,000. But if you give him substantial pension and make his tenure otherwise satisfactory, there is no temptation for him to practise. We must fairly recognise that democracy must pay the price and without independent judiciary democracy cannot survive Large business is not confined to any one State and secondly a judge should not look in his work to anything beyond doing his work as a judge."
We have already pointed out the undesirability of retired Supreme Court Judges practising by way of giving advice. The possibility of their being able to advise rich clients after their retirement may tend to affect their independence on the Bench. In any event, if judges are to be permitted to practise by giving advice after retirement, the public would be apt to think that in dealing with the cases of rich litigants whom they may hope after retirement to be asked to advise, the judges do not act impartially.
50. Bar to be reintroduced.-
The limited right to practise which is now conferred by the amended Article 220 has resulted in a number of Chief Justice and Judges of the High Courts practising in the Supreme Court. Any impartial observer will, we think, be convinced that this practice greatly detracts from the dignity of the Courts and the administration of justice generally. Not infrequently in the course of the arguments of a case, the retired judge or Chief Justice has either to comment upon or rely on a judgment to which he himself has been a party. With the raising of the age to sixty-five and the increased pensions we have recommended, it should not in our opinion cause any hardship to retired High Court judges if they are prevented from practising in any Court whatsoever.