Report No. 14
21. Notwithstanding these considerations we cannot ignore the economic and financial conditions of our country. We are at a most critical stage in our economic development. Our conditions demand that everyone should in the interests of the nation put forward his best effort for the lowest remuneration possible. These over-powering considerations make it inopportune to suggest any increase in the salaries of the Supreme Court Judges. But what we have said
22. Pensions of Judges in India and abroad.-
In the matter of pensions the Judges of the Supreme Court are governed by the Government of India (Federal Court) Order 1937 which has been amended from time to time. The rules for working out the pensions under this Order are somewhat complicated; but as far as we can gather, a puisne Judge of the Supreme Court who retires after a total service of seven years including service as a Judge of a High Court would receive a pension of about Rs. 844 per month.
A Judge who has served for about ten years including the period of his service in the High Court would receive Rs. 1,278 and for a total service of twelve years including the period of service in the High Court he would receive a pension of Rs. 1,567. The maximum pension that a puisne Judge of the Supreme Court could receive would appear to be roughly Rs. 2,000 a month after service for a period of at least twenty years. The length of service, requisite for the maximum pension is such that very few of the Judges would be eligible to earn it.
We might perhaps illustrate how the present rules of pension work with reference to some Judges who have retired. A Judge who retired as the Chief Justice of the Supreme Court after service as a Judge of a High Court and the Federal Court (with a total service of about 15 years) became entitled to a pension of Rs. 1,700 per mensem. Another Judge who retired after a total length of service of 101/2 years became entitled to a pension of a little less than Rs. 1,200. A third Judge of the Supreme Court who retired after a total service of 19 years which included five years as a Judge of the Supreme Court, became entitled to a pension of about Rs. 1,500 per mensem. The pension normally, earned would, on an average, come to about a third of the salary.
23. One may compare these pensions with those paid to the Justices of the Supreme Court of the United States and the Judges of the Supreme Court in the United Kingdom. In the United States the pensions equal their salaries if they have put in a service of ten years. In the United Kingdom the pension averages about half of the salary paid to them.
24. Meagre pensions (The consequences).-
The meagre pension to which Supreme Court Judges are entitled under the present pension rules has two consequences. It deters eminent members of the Bar from accepting Judgeships. The main inducement to a member of the Bar to sacrifice his large income and accept a Judgeship is apart from the high status and dignity of the office, the consideration that he would have more leisure and greater security in the matter of income even in his declining years.
A Judge of the Supreme Court is not entitled after retirement to plead or act in any Court or before any authority within the territory of India. He has to depend during the declining years of his life on his savings and the pension to which he is entitled as a retired judge. The meagre pension has thus also the undesirable consequence of driving some of the Judges who have retired to find some remunerative occupation which affects the dignity of the high judicial office they held.
25. Our recommendations.-
In our view a person whom the State has deemed fit to appoint a Judge of the Supreme Court and who has served in that capacity till the age of 65 should from any point of view be assured of a pension on a scale which will at least maintain him in a reasonable degree of comfort. We have earlier suggested that a person should be appointed at an early age to the Supreme Court so that he can have a tenure of office of at least ten years.
Unless he has been recruited directly from the Bar he would ordinarily have, when appointed, a service of at least five years as a Judge of the High Court. Considering all the circumstances we are of the view that the maximum pension of a puisne Judge of the Supreme Court should be fixed at least at Rs. 2,500 and of the Chief Justice at Rs. 3,000 for a service of 15 years including service, if any, as a Judge of a High Court. The rules will, of course, have to provide for proportionately lesser pension for shorter lengths of service. Such cases should, however, be rare if the recommendations we have made are accepted.
26. Leave privileges: Meagre leave allowances (Probable consequences).-
The rights in respect of leave of absence (including leave allowances) of the Judges of the Supreme Court are also governed by the provisions of the Government of India (Federal Court) Order, 1937. According to these rules the maximum leave that may be granted to a Judge of the Supreme Court during the whole period of service in the Supreme Court is one year out of which six months can be granted on medical certificate and six months on any other ground. But the leave allowance to which a judge is entitled is only at the rate of Rs. 1,110 per mensem.
The fact that a Judge of the Supreme Court enjoys long vacations may be a good ground for limiting the maximum period of leave which he may obtain during his tenure of office. It is difficult, however, to understand the meagre quantum of leave allowance granted to him. One should have thought that if a Judge became entitled to leave, his leave allowances for the period to which he is so entitled would equal his salary. He is, it appears, at a disadvantage in this matter as compared to the High Court Judge who is entitled to leave on an allowance equal to his salary during the first month of his leave and an allowance of Rs. 2,200 per month thereafter. In case of a High Court Judge leave on half allowances works out at Rs. 1,100 per mensem.
It also appears that the Judges of the Supreme Court are, in the matter of leave allowances, in a worse position than covenanted civil servants. A covenanted civil servant drawing a pay of Rs. 3,000 or Rs. 4,000 is entitled to leave on full average pay for the first four months of his leave. The great disparity between the salary and the leave allowances admissible to a Judge of the Supreme Court would undoubtedly have-a tendency to induce them to continue to work even when they feel the need for a short rest and are not in a position to give their best to their work. This would obviously affect adversely the quality and volume of their judicial work. It is unnecessary to emphasise the desirability of avoiding consequences of this character.
27. Increase suggested.-
We are, therefore, of the view that the leave allowances of a Judge of the Supreme Court should be at least as liberal as those of a Judge of the High Court.
It may be pointed out that in the United Kingdom there are no leave regulations governing the Judges of the High Court and the Court of Appeal who constitute the Supreme Court of Judicature in England. Judges who are not well enough, to perform their functions or who need rest take themselves away from work for a certain number of days and this period counts as a period during which they have been performing their duties. Evidently it is left to the good sense of the judges to decide when they should keep away from work. Such trust is not abused and we understand that absence from work occurs only when it is really necessary.
28. Employment after retirement under the State (Chamber practice).-
The question of a Judge of the Supreme Court taking up further employment under a State or the Union after retirement formed the subject of a considerable body of evidence recorded before us. As we have noticed the only bar imposed on a Judge of the Supreme Court who has retired is that he shall not thereafter plead or act in any Court or before any authority. In the result some Supreme Court Judges have, after retirement, set up chamber practice while some others have found employment in important positions under the Government. We have grave doubts whether starting chamber practice after retirement is consistent with the dignity of these retired judges and consonant with the high traditions which retired judges observe in other countries.
29. Ban on employment necessary.-
But there can be no doubt that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement. The Government is a party in a large number of causes in the highest Court and the average citizen may well get the impression, that a Judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a Judge in cases in which Government is a party. We are clearly of the view that the practice has a tendency to affect the independence of the Judges and should be discontinued.
The Constitution has thought it fit to impose a ban on further employment either by the Union or a State of the Chairman of the Union Public Service Commission and the Comptroller and Auditor-General of India after they have ceased to hold office. Restrictions of a similar nature have also been imposed on the Chairman and Members of the State Public Service Commissions. In our view, it is even more necessary to safeguard the independence of the Supreme Court Judges by enacting a similar provision barring further employment in their case, excepting of course their employment as Judges of the Supreme Court in the manner provided by Article 128 of the Constitution.
30. Jurisdiction of the Supreme Court (Under Article 136 of the Widest amplitude).-
We now turn to consider the jurisdiction of the Supreme Court, the manner of its exercise and the state of the Court's file. By Article 136 jurisdiction of the widest amplitude has been conferred on the Supreme Court entitling it in its discretion to grant special leave to appeal from any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. The pronouncement of the Supreme
Court in Dhakeswari Cotton Mills v. Commissioner of Income Tax, West Bengal, AIR 1955 SC 65 (69), per Mahajan, C.J. explains the extent of this jurisdiction in the following words:
"It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in Article 136. It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this Article is that it is the duty of the Court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive."
This extensive discretionary jurisdiction conferred on the Supreme Court has, on the whole, been a most salutary provision which has led to the correction of grave injustice in many cases.
31. Exercise in criminal matters.-
The exercise of the powers of the Supreme Court under Article 136 in criminal matters, however, requires consideration.
Early pronouncements.- In one of the earliest cases1 which came before it, the Court in dealing with the scope of its jurisdiction under Article 136, seemed to have laid down principles analogous to those followed by the Privy Council in regard to the granting of special leave to appeal in these matters. Fazal Ali J., said in that case:
1. Pritam Singh v. State, 1950 SCR 453 (458, 459).
"The Privy Council have tried to lay down from time to time certain principles for granting special leave in criminal cases, which were reviewed by the Federal Court in Kapildeo v. King, AIR 1950 FC 80. It is sufficient for our purpose to say that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which sometimes weighed with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave.
Generally, speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against."
Though the Court prescribed in the beginning of its career these strict tests for the grant of special leave in criminal cases, it seems in its later decisions to have gone far in the direction of liberalising the grounds on which it would grant leave in these matters. The extent of the Court's interference with the dispensation of criminal justice by the Courts below will appear from some of its later decisions.
Large interference.- In Mahesh Prasad v. State of Uttar Pradesh, AIR 1955 SC 70. a railway servant was convicted under section 161, Indian Penal Code and sentenced to one year and nine months' rigorous imprisonment and a fine of Rs. 200. The conviction and sentence were upheld by the Sessions Judge. A criminal revision petition to the High Court failed. On appeal by special leave granted under Article 136 the Supreme Court in dealing with the matter observed:1 " this is an appeal on special leave and nothing so seriously wrong with the findings of fact have been shown, which call for interference by this Court." Nevertheless the Court reduced the sentence of imprisonment to the period already undergone.
1. P. 71.
In another case1 special leave was granted and was expressly restricted to the question of sentence only. Having heard the appeal the Court however observed2 as follows:
"It is not possible for us to interfere for the simple reason that it was competent to the High Court to go into the question of sentence and it was well within the power of the High Court to enhance the sentence as it did."
In yet another cases 3 the Supreme Court reduced the sentence in a case of a conviction for forgery and criminal breach of trust by a public servant. While holding that there was no reason "to interfere with the concurrent findings of fact thus arrived at by both the Courts"4 it still thought that the sentence was excessive and reduced it. These are only examples of similar interference by the Court in many other matters.
1. Bissu Mahgoo v. State of Uttar Pradesh, AIR 1954 SC 714.
2. P. 719.
3. Mangleshwari Prasad v. State of Bihar, AIR 1954 SC 715.
4. P. 715.
33. The consequences.-
The manner in which jurisdiction under Article 136 has been exercised in criminal matters in recent cases has, it appears from the views expressed to us, created a feeling in the litigant public and in the profession that most of the criminal matters disposed of by the High Court in appeal or in revision can be brought before the Supreme Court under Article 136 with a reasonably good chance of obtaining at least a reduction of the sentence. Normally, the award of a proper sentence is a matter of judicial discretion and unless the exercise of this discretion has resulted in a miscarriage of justice, interference with the sentence by the Supreme Court under Article 136 would be anomalous.
34. Increase in appeals by leave.-
Nothing, perhaps, reflects more clearly the manner in which the Supreme Court has acted in granting special leave in criminal matters than the figures of admission of appeals on the file of the Court. It appears that out of 794 criminal appeals held during the years 1950 to 1956 as many as 548 were appeals instituted on special leave (vide Table III) . It is not surprising, that notwithstanding the restricted right of appeal granted under Article 134 the Supreme Court is being looked upon more and more as a final court of criminal appeal.
The way in which the Court has exercised its jurisdiction under Article 136 in criminal matters has caused, misgivings in the minds of some members of the Court itself. In a minority judgment, Venkatarama Aiyar J.,1 observed as follows:
1. Aher Raja Khema v. State of Saurashtra, AIR 1956 SC 217 (226).
"It is obvious that the intention of the Constitution in providing for an appeal on facts under Article 134(1) (a) and (b) was to exclude it under Article 136 and it strongly supports the conclusion reached in AIR 1950 SC, 169 that like the Privy Council this Court would not function as a further court of appeal on facts in criminal cases."
While one may not agree with the soundness of the reasoning that the provisions of Article 134(1) (a) and (b) have the effect of excluding from Article 136 the power of the Court to grant special leave to appeal on facts, there is no doubt that the way in which jurisdiction has been exercised under Article 136 by the Supreme Court has considerably shaken the prestige of the High Courts as the highest courts of criminal appeal in the States.
Effect on prestige of the High Courts.- It cannot be gainsaid that the intention of Constitution-makers was not to turn the Supreme Court into a general court of criminal appeal as is shown by the limited jurisdiction conferred on the Supreme Court under Article 134. That Article has taken care to specifically provide that further power to entertain appeals in criminal matters may be conferred on the Supreme Court by Parliamentary legislation. A Chief Justice of a High Court has put this point of view with great force:
"The finality which formerly used to attach to the decisions of High Courts has practically disappeared and this has to some extent unfavourably affected the prestige of the High Court Judiciary. Formerly, appeals to the Privy Council, especially in criminal matters, were so few that for all practical purposes the State High Court was the final Court of Justice, but the present tendency of the Supreme Court seems to be to convert itself into a revising Court of appeal and almost every case decided by the High Court is taken up to the Supreme Court.
The cost also is not prohibitive, and even if the High Court refused to grant leave the Supreme Court has been granting special leave under Article 136 of the Constitution very liberally. The prestige of the High Court has, therefore, been reduced to that of the Court of a District and Sessions Judge during the pre-Independence days."
36. Jurisdiction valuable (Restraint in exercise necessary).-
At the same time there is no doubt that in some cases the exercise of jurisdiction by the Supreme Court under Article 136 has prevented grave miscarriage of justice, even in cases the decision of which turned entirely on facts. It could not, therefore, be suggested that the powers conferred on the Supreme Court under Article 136 cannot be beneficially exercised even in criminal matters. Indeed, the Supreme Court would be failing in its duty, if it did not act under Article 136 in case of serious miscarriage of justice even though such miscarriage had arisen in cases decided entirely on facts.
Nevertheless, in exercising this jurisdiction the Supreme Court has, in our view, constantly to bear in mind that the Constitution has, except in cases provided for by Article 134, made the High Courts of the States the final courts of appeal in criminal matters, and that their interference under Article 136 should not extend to matters of discretion like the award of sentences, the grant of bail and the like but should be restricted to cases of grave and real miscarriage of justice. No one can appreciate in a greater degree the importance of preserving the dignity and prestige of the High Courts as the highest tribunals of the States than the Supreme Court itself.
37. Large number of appeals in labour matters.-
Another feature of the recent exercise of the Supreme Court's jurisdiction under Article 136 is the large number of cases in which the Court had to grant special leave to appeal against decisions of various labour tribunals. As will appear from the Table at the end of the Chapter, the number of applications for special leave, in labour matters has been progressively on the increase. In 1956, as many as 257 special leave applications against decisions of labour tribunals were granted and up to the 31st of October, 1957, 148 such applications were allowed.
38. The consequences (Delays) (Insufficient assistance to the Court).-
The situation created by these large number of appeals admitted in labour matters causes concern in two respects. It has the natural effect of clogging the work of the Supreme Court. Notwithstanding the recent increase in its strength, it is not surprising that the disposal by the Court is not equal to the rising institutions with which it is faced. The graver aspect, however, of the matter is that labour matters are being thrust upon a Court which has not the means or materials for adequately informing itself about the different aspects, of the questions which arise in these appeals and therefore finds it difficult to do adequate justice. In many of these cases, the Supreme Court has not even the assistance of a properly written judgment such as it would have in appeals from the High Courts. Equally grave are the delays caused by these appeals in the disposal of industrial matters which essentially need speedy disposal.
39. Reasons for their increase (Alternative remedy necessary for litigant).-
Though the Court has made repeated efforts to deal with these matters expeditiously, there are naturally a large number of pending appeals in labour matters on its file. These matters have in a sense been forced upon the Court, inasmuch as, the Court could not refuse to entertain appeals against decisions which appeared to be arbitrary and capricious and made in disregard of well-accepted principles of law or natural justice. It will be noticed that the large number of applications for special leave in these matters made to the Supreme Court synchronised with the abolition of the labour appellate tribunal. The new labour legislation constitutes tribunals against the decisions of which no appeal lies.
Not unnaturally, therefore, in most cases of unjust or arbitrary decisions there are applications for special leave to the Supreme Court. The aggrieved party approaches the Supreme Court because the jurisdiction of the High Court under Article 226 is too narrow to afford him relief in these cases. Under Article 226, the High Court can only quash an order made by these tribunals but cannot make its own decision and substitute it for that of the tribunal. The High Court would, generally speaking, quash these orders only in cases of excess of "expression of dissenting views cannot fail to create confusion in the minds of the lawyers and the litigant public, encourage attempts to persuade the Supreme Court in later cases to go back upon its earlier expressed view and cause difficulties and embarrassment to the Supreme Court judiciary."1
1. S.C. Isaacs, Senior Advocate, Supreme Court in his replies to the Questionnaire.
On the other hand, the importance of dissenting judgments has been emphasised as being of great value in the development of law and to the legal profession. It is said that the minority view of today tends very often to be the view of the majority in the future. The expression of his views by the dissenting Judge tends to stimulate reasoning and build the law.
43. Early practice of the Court.-
In the early years, many dissenting judgments were delivered in the Supreme Court expressing in many cases different and conflicting views on legal principles. Even the Judges who concurred delivered separate judgments sometimes reaching the same conclusion on different grounds. It is true that these separate and conflicting expressions of views led on several occasions to a failure by subordinate courts and members of the profession to appreciate the law laid down by the Supreme Court. This in its turn tended to considerable uncertainty in the law laid down by the Court which under Article 141 is binding on all courts in India.
44. Present practice.-
Recently, however, the Court has favoured the practice of delivering a single judgment as the judgment of the Court in cases where all the Judges are agreed, and when there is a difference of opinion, a majority judgment expressing the views of the majority with one or more dissenting judgments. The highest tribunals of all Commonwealth countries deliver more than one judgment and even concurring Judges express their views in separate judgments though they may reach the same conclusion.
The same practice governs the Supreme Court of the United States. The Judicial Committee of the Privy Council delivers one judgment because of the peculiar nature of its jurisdiction. We are, therefore, of the view that the balance is clearly in favour of permitting separate and dissenting judgments wherever the Judges feel such a course to be necessary. Realising, however, the need and the importance of a clear definition of the law so that there may be no misapprehension as to the true legal principles on the part of the subordinate courts, the Court has already started the practice of delivering a single judgment of the Court in a large majority of the cases.
45. Advisory opinions.-
The need for clear advisory opinions under Article 143 is even greater than a clear definition of the law governing the land under Article 141. In dealing with a recent reference under Article 143 the Court delivered a majority opinion with dissenting opinion on one point only by one of the Judges. The Court has, it would appear, appreciated the desirability of clear answers to the questions put to it by the President under Article 143.
46. No change necessary.-
In our view no constitutional change is called for in the matter of separate and dissenting judgments and opinions by the Supreme Court. jurisdiction or an error of law apparent on the face of the record or a contravention of the principles of natural justice or the like. It is, therefore, imperative that the legislature should intervene and provide for an adequate right of appeal in these matters. Such, right of appeal could be provided either by constituting tribunals of appeal under the labour legislation itself or by conferring a right of appeal to the High Court in suitable cases.
We do not, however, mean to suggest that the special leave jurisdiction of the Supreme Court in such matters should be curtailed in any manner. We wish to emphasise, that even if the right of appeal to the High Court or any other tribunal is provided, the jurisdiction of the Supreme Court under Article 136 must continue unrestricted.
40. Criminal Appellate Jurisdiction (Suggested enlargement).-
We have not before us any substantial body of opinion calling for the enlargement of the jurisdiction of the Supreme Court under Article 134. A view has, however, been expressed by the Government of Madras that the limited right of appeal now conferred in cases of persons sentenced to death by clauses (a) and (b) of Article 134(1) should be enlarged and that in all cases in which the accused persons are sentenced to death, there should be a right of appeal to the Supreme Court, without the need of a certificate from the High Court. It was suggested that Parliamentary legislation to this effect under Article 134(2) should be undertaken.