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Report No. 14

5. The Supreme Court

1. The role of the Supreme Court.-

At the inauguration of the Supreme Court in 1950 it was pointed out, that it had the widest and the most varied jurisdiction among the highest Courts in the Commonwealth and Anglo-Saxon countries. Apart from the width and variety of its functions, it was required to exercise under Article 32 of the Constitution a jurisdiction, which \A as altogether new to our country. It was called upon to stand as a protector of the fundamental rights of the citizen against executive and legislative action. The importance of the Court as the upholder of the rule of law and as the bulwark of the citizen's rights in a democratic constitution containing a bill of rights was emphasised by Chief Justice Kania at its inaugural sitting in the following words:

"Under the Constitution of India, the Supreme Court is established to safeguard the fundamental rights and liberties of the people. An independent Supreme Court as shown by the working of such Courts in other democratic countries will have far-reaching influence on the constitutional history and progress of the Union of India."1

1.Proceedings at the inaugural sitting of the Supreme Court of India on January 28, 1950; 1950 SCR 7.

2. Guardian of fundamental rights.-

For the adequate discharge of its great and novel responsibilities the Court has repeatedly set before itself great ideals. Patanjali Sastry J. (as he then was) while rejecting the contention that a citizen should, before approaching the Supreme Court under Article 32, first approach a High Court under Article 226 in respect of the infringement of his fundamental rights, observed as follows:-

"This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibilities so laid upon it, refuse to entertain applications seeking protection against the infringements of such rights."1

1. Ramesh Thappar v. State of Madras, 1950 SCR 594 (597).

The same learned Judge as Chief Justice in a later case dealing with constitutionality of a statute said:

"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."1 Similar pronouncements in other cases and its numerous judgments declaring the invalidity of legislation and executive action testify to the great traditions which the Court has laid at the threshold of its career.

1. State of Madras v. V.G. Row, 1952 SCR 597 (605).

3. Importance of proper personnel.-

In recognition of the role which the Supreme Court has to play as the highest judicial tribunal of the country, as the Court of last resort in civil and criminal matters and as the protector of the rights and liberties of the citizen, the Constitution provides adequate safeguards to 14.34 Fourteenth Report ensure its being manned by an independent and efficient judiciary. Such a judiciary is a sine qua non under any system of government because of the inter­relation between the quality and the independence of the judge and the proper administration of justice. Its importance is far greater under a democratic constitution where the Court has frequently to determine the legality of the action of legislative bodies and executive authorities as between the State and the citizen.

4. Appointment and removal of Judges.-

Realising the importance of safeguarding the independence of the judiciary, the Constitution has provided that a Judge of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India and after consultation with such of the other Judges of the Supreme Court and the High Courts as he may deem necessary. He holds office till he attains the age of 65 years and is irremovable except on the presentation of an address by each House of Parliament passed by a specified majority on the ground of proved misbehaviour or incapacity. Thus has the Constitution endeavoured to put judges of the Supreme Court above executive control.

5. Proper selection imperative.-

It is obvious that the selection of the judges constituting a Court of such pivotal importance to the progress of the nation must be a responsibility to be exercised with great care. The Constitution of the Court must command the confidence not only of the people but also the Judiciary and the Bar as a whole, sitting as it does in appeal on matters decided by the High Courts in the several States. The Court must consist of judges who taken as a body are, as lawyers and men of vision, superior to the body of judges manning the High Courts. Such a result can be achieved and maintained only by the exercise of courage, vision and imagination in the selection of judges made with an eye solely to their efficiency and capacity.

6. Regional and communal influences (Executive interference) (Best talent not mobilised).-

Can we say that such a course has been followed. It is widely felt that communal and regional considerations have prevailed in making the selection of the Judges. The idea seems to have gained ground that the component States of India should have, as it were, representation on the Court. Though we call _ourselves a secular State, ideas of communal representation, which were viciously planted in our body politic by the British, have not entirely lost their influence. What perhaps is still more to be regretted is the general impression, that now and again, executive influence exerted from the highest quarters, has been responsible for some appointments to the Bench.

It is undoubtedly true, that the best talent among the Judges of the High Courts has not always found its way to the Supreme Court. This has prevented the Court from being looked upon by the subordinate Courts and the public generally with that respect and, indeed, reverence to which it is by its status entitled. It may not be inappropriate to call attention to the observations made by Chief Justice Kania at the time of the inauguration of the Supreme Court in regard to the standards to be observed in making appointments to the High Courts. They are in our view equally applicable to selections for the Supreme Court. He said:

"In order that the Supreme Court may have the full assistance in its work, the High Courts will have to be strong in their personnel. For some years before 1947, there was a policy to appoint members of different communities, in some proportion, in the services, including the High Courts. In theory, it appears to be now accepted that appointments will be only on merits. The policy, however, does not appear to have been completely abandoned. We hope that political considerations will not influence the appointments to High Courts. It is necessary that for the High Courts merit alone should be the basis for selection, if the High Courts have to remain strong and independent and enjoy the confidence of the people."1

1. Proceedings at the inaugural sitting of the Supreme Court of India on January 28, 1950; 1950 SCR 10.

7. Position in the U.S.A.-

One may turn in this connection to the way in which appointments to the Supreme Court of the United States have, so far as we know, been made. Geographical or sectional claims have not been a test governing the selection. Nor have the 48 States constituting the federation been looked upon as areas to be represented on the Supreme Court Bench. Attention may also be drawn to the elaborate procedure which is gone through before Judges are selected for the United States Supreme Court. It appears that even the representative institution of the Bar, the American Bar Association, is consulted. 1

1. American Bar Association Journal August, 1957, Vol. 43, pp. 685-688 and 761. American Bar Association Journal February, 1955, Vol. 41, pp. 125-128.

8. Field of selection (Jurists).-

The field for selection of Supreme Court Judges laid down by the Constitution is a very wide one. A person may be appointed a Judge of the Supreme Court, if he has been a Judge of a High Court for at least five years or if he has been an advocate of a High Court for at least ten years or if he is, in the opinion of the President, a distinguished jurist. One of the questions which aroused comment in the evidence given before us was the failure of the authorities to make the selection of a Supreme Court Judge from the two latter fields of selection. It was, however, generally recognised that we have not produced in our country academic lawyers and jurists of note who could, as in the United 'States, be honoured with seats on the Supreme Court Bench.

9. Exclusion of the Bar (Need for judicial experience).-

As to the Bar, their exclusion from the field of selection has, it appears, so far, been the result of the view of the appointing authorities that it will be somewhat hazardous to appoint to the Bench a person straight from the Bar without previous judicial experience. Indeed, the view has been expressed that restricting the field of selection to sitting or retired High Court Judges has, on the whole, worked satisfactorily and that there is, therefore, no need to take recruits from the Bar. A former Chief Justice of India has given expression to this view in the following words:

"The present method of selecting judges from the judges of the High Court, retired or about to retire has, by and large, worked satisfactorily so far. If the selection is properly made, this method is calculated to ensure some judicial experience and some capacity to form a sound and balanced judgment and to express it with clarity, the High Court being a good training as well as a testing ground for potential Supreme Court Judges. Selection from the Bar may not ensure these essential qualities and qualifications. I have known several distinguished members of the Bar who would have made thoroughly bad judges."

The need for previous judicial experience on the part of a Judge of the Supreme Court was also stressed by a former Judge of the Federal Court.

10. In our view, too great an emphasis seems to have been placed in the past on the need for judicial experience in the selection of Supreme Court Judges. Surely, if it was easy to knoW some distinguished members of the Bar who would have made thoroughly bad Judges it should be equally easy to recognise other distinguished members of the Bar who would have made extremely good Judges.

11. The position in the U.K. and the U.S.A. (American experience).-

The experience in England and the United States does not seem to bear out this view. In England, normally, the Lord Chancellor and the Lord Chief Justice occupy their high judicial offices without previous judicial experience. In the United States, a large number of the Justices of the Supreme Court have been chosen from persons who had never held judicial office. Recently in delivering the Owen J. Roberts Memorial Lectures at the University of Pennsylvania, Mr. Justice Frankfurter reviewed the career of 75 out of the 90 Judges who have so far sat on the Bench of the American Supreme Court in its history of 167 years.

In his analysis Justice Frankfurter did not include the careers of any of those appointed by either President Truman or President Eisenhower. He pointed out that out of these 75 Judges 28 had never had any judicial experience before their appointment to the Bench. Among the 28, he listed names of such eminence as Marshal, Story, Taney, Chase, Bradley, Fuller, Hughes, Brandeis and Stone. He pointed out, that out of the 16 Judges whom Justice Frankfurter considered to be the most eminent out of the 75, only six had prior judicial experience. He showed that a requirement of five years' judicial experience would have excluded 35 out of the 75 Judges.

There will always, Mr. Justice Frankfurter concluded, be very few men at any time fit to transact the unique business that now comes before the Supreme Court. The country is entitled to the services of these men without requiring them to satisfy the three irrelevant tests of judicial service, regional representation or political apprertticeship.1

1. Manchester Guardian Weekly-March 2, 1957, p. 2.

Difficulties of recruiting from the Bar.- The importance of recruiting the Bench of the Supreme Court partly from the Bar appears recently to have received some attention. The Home Minister stated in Parliament that attempts made to secure the appointment of distinguished advocates to the Supreme Court had not succeeded. He went on to point out that successful lawyers earn a considerable amount, and if you want suitable and competent, impartial and able Judges, to man the Supreme Court, then their salaries should have some relation to the earnings of the successful lawyers.1

1. Lok Sabha Debates, dated 20th August, 1956, Vol. VII, col. 3826.

12. Selection of younger men.-

It is true that the earnings of the leaders of the Bar bear no proportion to the salaries paid to the Judges. The Supreme Court Judge in our country has also to retire at sixty-five on a very meagre pension. These facts, however, should not, in our view, prevent the Supreme Court Bench from being enriched by recruitment from distinguished members of the Bar, if care is taken to invite them to the Bench at an age when they would have a fairly long tenure on the Bench.

13. Preference for age (Need for experience over-stated).-

Even in exercising a choice from the High Court Judges, the practice appears generally to have been to select Judges who have only a short time left on the High Court Bench. It has frequently been observed, that both, in the selection to the Bench of the Supreme Court as well as to that of the High Court, age and a certain amount of maturity are essential. It appears to us that this view not unoften favours experience at the expense of ability. We have known of very distinguished Judges and Chief Justices who were called upon to occupy their offices at a fairly young age when they were but rising junior members of the Bar.

There is no reason why younger Judges of the High Courts who have shown marked ability should not be appointed to the Supreme Court Bench. It has been well recognised that seniority is not a consideration in making appointments to what have been called selection posts in Government service. More weighty considerations arise in making appointments to the Supreme Court Bench and we feel, that in making selections from the Benches of the High Court prompt and unhesitating recognition should be given to merit and ability, regardless of considerations of seniority and experience. It must not be forgotten, that youth carries a freshness and vigour of mind which have their advantages as much as maturity and experience flowing from age.

14. Longer tenure necessary for judges.-

The selection, mainly of persons who have retired or are about to retire from the High Court Bench as Judges of the Supreme Court, has resulted in those chosen having a very short tenure on the Bench. In our view, it is undesirable that a person who would have a short tenure of office should be chosen as a Judge of the Court. It is imperative in the interests of the stability of the judicial administration of the country that a Judge of the Supreme Court should b? able to have a tenure of office of at least ten years.

To frequent a change of personnel has its disadvantages in a Court whose decisions lay down the law of the land and are binding on all the Courts in India. Certainty in the law and a continuity in the approach to some basic questions are fundamental requisites and these tend to be impaired if judicial personnel is subject to frequent changes. These objectives can best be achieved, in our opinion, by selecting the Supreme Court Judge at an age when he would have a term of at least ten years on the Bench.

15. Raising age of retirement.-

Another method of ensuring longer tenure for Judges appointed to the Supreme Court would be the raising of the age of retirement to seventy years. Such a course, it may be urged, would have the two­fold advantage of combining a longer tenure on the Bench with the selection of Judges of maturity and experience. The question of the raising of the age of retirement of the Supreme Court Judges arises also in connection with the raising of the age of retirement of High Court Judges, which, we are recommending should be raised to sixty-five.

It is true that in the United States a Judge of the Supreme Court holds office during good behaviour which means that he can continue to occupy the office for life It is open to him to retire or resign on attaining the age of seventy years. The position in the United Kingdom is similar. In substance, in these countries there is no fixed retiring age for the Judges of the superior Courts.

16. Not favoured.-

Having given our careful consideration to this question, we do not feel justified in recommending the raising of the age-limit of retirement. The duties of a Judge of the Supreme Court are very onerous and the conditions as to the expectation of life and the age up to which persons can retain unimpaired their mental capacities are in our country very different from those obtaining in the United States of America and the United Kingdom. It is true that we do find retired Judges of the High Court and the Supreme Court in full possession of their mental vigour. But we have to consider the matter not upon an individual basis but on what happens in the vast majority of cases and on an average. It seems to us that the raising of the age limit of retirement of the Supreme Court Judges beyond sixty-five will be an experiment fraught with hazards.

17. Tenure of Chief Justice.-

What has been observed earlier in regard to the need for a longer tenure for the Judges applied with much greater force to the Chief Justice of India. Since the foundation of the Court, a period of eight years, there has been a rapid succession of Chief Justices of India. They have been as many as five in number. In contrast, it may be noted that during the entire history of the American Supreme Court covering a period of over one hundred and sixty years there have been as few as fourteen Chief Justices. The practice in the United States appears to be usually to appoint a person from outside the Court as a Chief Justice.

A continuity in the office of the Chief Justice of India appears to us to be essential in the interests of judicial administration throughout the country. His importance in the scheme of judicial administration outlined in our Constitution cannot be over-emphasized. On him rests the tone and tradition of the highest Court of the land, the law laid down by which, is the law of the country and which sits in appeal over the decisions of the highest Court of each State. Apart from his onerous duties as the Chief Justice of the Supreme Court, he carries in a measure responsibility for the satisfactory administration of justice in the whole of India. He has, or should have a preponderating voice in the selection of the personnel of the High Courts all over the country.

As the head of the judiciary he would lay down the principles and practices to be followed in the administration of justice all over the country. It is obvious that a person with these manifold duties and functions would require some time to familiarise himself with them. He needs to go round the country to be in touch with the Bar and the judicial personnel, acquaintance with whom is essential to enable him to discharge his duties. In the quick succession to the office at present in vogue, a Chief Justice who has succeeded in familiarising himself with his many tasks becomes liable to retire before he can have time to put into force the principles and policies which he considers beneficial. Only a Chief Justice who has a tenure of five to seven years can render that necessary and useful service which is expected of the Chief Justice of India.

18. Method of appointment.-

This leads us to a related point upon which we have bestowed anxious consideration. It has been the practice till now for the senior most puisne Judge to be promoted to be the Chief Justice on the occurrence of a vacancy. It would appear that such a promotion has become almost a matter of course. We have referred to the high and important duties which the Chief Justice of India is called upon to perform. It is obvious that succession to an office of this character cannot be regulated by mere seniority.

For the performance of the duties of Chief Justice of India, there is needed, not only a judge of ability and experience, but also a competent administrator capable of handling complex matters that may arise from time to time, a shrewd judge of men and personalities and above all, a person of sturdy independence and towering personality who would, on the occasion arising, be a watch-dog of the independence of the judiciary. It is well-accepted that the qualifications needed for a successful Chief Justice are very different from the qualifications which go to make an erudite and able judge.

The considerations which must, therefore, prevail in making the selection to this office must be basically different from those that would govern the appointment of other judges of the Supreme Court. In our view, therefore, the filling of a vacancy in the office of the Chief Justice of India should be approached with paramount regard to the considerations we have mentioned above. It may be that the senior most puisne Judge fulfils these requirements. If so, there could be no objection to his being appointed to fill the office. But very often that will not be so. It is, therefore, necessary to set a healthy convention that appointment to the office of the Chief Justice rests on special considerations and does not as a matter of course go to the senior-most puisne Judge.

If such a convention were established, it would be no reflection on the senior-most puisne Judge if he be not appointed to the office of the Chief Justice. We are in another place suggesting, that such a convention should be established even in the case of appointment of Chief Justice of the High Court. Once such a convention is established, it will be the duty of those responsible for the appointment, to choose a suitable person for that high office, if necessary, from among persons outside the Court. Chief Justices of High Courts, puisne Judges of High Courts of outstanding merit and distinguished senior members of the Bar should provide an ample recruiting ground.

19. Salaries of judges in India.-

Under the Government of India (Federal Court) Order, 1937, the salaries of the Chief Justice of the Federal Court and a Judge of the Federal Court were fixed at Rs. 7,000 and Rs. 5,500 respectively. The Constitution which created the Supreme Court to take the place of the Federal Court and gave a greatly enlarged jurisdiction to it, however, fixed the salary of the Chief Justice of the Supreme Court at Rs. 5,000 and that of a Judge at Rs. 4,000. In addition to this salary, the Chief Justice and Judges have been granted the amenity of a free furnished residence. These lower salaries were fixed notwithstanding the increasing cost of living and the rising rate of taxation.

20. Abroad.-

We may in this connection look at the position in the United States and the United Kingdom. The salary of the Chief Justice of the Supreme Court of the United States of America was raised from $ 20,000 to $ 25,500 by an Act passed on the 31st July, 1946. The salaries of the Justices of the Court were also raised from $ 14,500 to $ 25,000 by the same Act. In the United Kingdom also the salaries of the Lord Chancellor, the Lord Chief Justice and other Judges were raised in 1953.

It appears to us that the importance of the judicial office, its high place in the development of the nation land the nature of the work of the superior judiciary have not been sufficiently appreciated in our country. It is pertinent in this connection to quote the observations made by the Prime Minister of England, Sir Winston Churchill when introducing in the House of Commons a Bill for raising the remuneration of the Judges. He stated:-

"In a period where everybody feels the pressure of taxation and prices, when Members of the House of Commons are quite naturally conscious of their own difficulties, and the whole country is gripped in the pincers of rearmament and the Welfare State; when our overseas balance, though greatly improved, is far from being finally established, anything in the nature of an increase in the salary and wages requires doubly accentuated scrutiny. Nevertheless, while under no pressure of any kind from the High Court Judges, we have felt it our duty to take this important step for reasons which I ask the House to allow me to place before them.1

1. Parliamentary Debates (Hansard) House of Commons Debates dated 23-3-1954, Vol. 525, col. 1057.

* * * *

It is 120 years since the salaries of the Judges were fixed. During that time, they have shrunk through taxation and the fall in the purchasing power of money to less than one-sixth of what they were originally. We are not proposing to restore them to their former level, but only to replace about one-fifteenth of their previous income. We are, therefore, acting in moderation. Stability is very important in the salaries of Judges. It is not likely that another 120 years will pass without some alteration, but there should at any rate be a fairly long period, perhaps, a generation before what we now decide be altered, except by tax reduction, so that those discharging these high functions, who have their whole lives to live within strict and rigid limits, should have a reasonable basis on which to work."1

1. Ibid., cols. 1060-61.

He based his proposal for an increase on the need of guarding the independence of the judiciary from the executive in the following words:-

"The principle of complete independence of the judiciary from the executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the free world. The Judge has not only to do justice between man and man. He also-and this is one of the most important functions considered incomprehensible in some large parts of the world-has to do justice between the citizens and the State. He has to ensure that the administration conforms with the law, and to adjudicate upon the legality of the exercise by the executive of its powers.

"Perhaps, only those who have led the life of a Judge can know the lonely responsibility which rests upon him. In criminal cases and in some civil cases, he may have the assistance of a jury, but it is on his own shoulders that even in these cases the heaviest burden lies. In other cases in which the honour and fortune of citizens are at stake, he has the sole responsibility of decision, and a heavy one it must be.

"The service rendered by judges demands the highest qualities of learning, training and character. These qualities are not to be measured in terms of pounds, shillings and pence according to the quantity of work done. A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct."1

1. Parliamentary Debates (Hansard) House of Commons Debates dated 23-3-1954, Vol. 525, cols. 1061-62.

Finally he observed:

"The Bench must be the dominant attraction to the legal profession, yet it rather hangs in the balance now and heavily will our society pay if it cannot command the finest characters and the best legal brains which we can produce; and heavily will our country pay in an epoch where our relative material power has diminished, we do not sustain those institutions for which we are renowned."1

1. Ibid., cols. 1063-64.

In making his proposals, the Prime Minister pointed out that though the Judges' salaries had been increased by £ 3,000 a year, yet the actual benefit to the recipient would be £ 734 a year, the difference being accounted for by tax deductions.

We have reproduced at some length this vivid description couched in inimitable language of the true role of the judge and the way of life which his duties impose upon him as these have in recent years tended to be increasingly overlooked in our country.

Much of what was said by the Prime Minister applied to the remuneration paid to our Supreme Court and High Court judiciary. Their remuneration was fixed at a time when the value of money was much higher. It was actually reduced at a time when with much heavier taxation and the rise in prices the actual amounts received and their purchasing power had shrunk to a small proportion of what they were originally.

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