Threats of Independence of Judiciary
It would not be out of place for me to say a few words about the threats to the independence of our judiciary on this occasion. I propose to enlist before you some of the ills that are afflicting our judiciary and posing great danger to its independence.
The first and foremost disincentive that has stifled the growth of a strong and independent judiciary has been the ridiculously low emoluments that are being paid to the members of the higher judiciary, namely, the High Courts and the Supreme Court, because inadequate judicial emoluments have a two pronged adverse effect, (a) of threatening the independence of the present incumbents by financial anxiety by making it difficult for them to maintain a way of life suited to the gravity of the duties they have to discharge and keeping them under a constant feeling of being in want and (b) of preventing, to use Lord Denning's words, 'the finest characters and the best legal brains' from getting attracted to the Bench. It is well known that the pre-Constitution salaries of the higher judiciary were actually reduced when the Constitution was drawn up and brought into force but even such reduced salaries have, since 1950, remained static till today. Successive Law Ministers at the Centre (— and among whom there was one who had resigned his office as a permanent Judge of a High Court in July 1966 stating publicly that because of the rising cost of living a Judge could not maintain his position and status on salaries fixed 16 years earlier and it was not desirable that a Judge should remain in office with a sense of resentment that he was not being fairly treated by the State —) have done nothing substantial in the matter beyond paying lip sympathy to the cause of the independence of Judiciary. One of them had actually displayed the most shocking attitude because when apprised of the fact that even Bank chaprasis were getting more than some of the members of the lower judiciary he is reported to have retorted that it was for them to make a choice whether to become Judges or Bank Chaprasis. Another seems to have made the abolition of court-fees as a single point programme of his career which incidentally seems to have floundered on the rock of strong opposition from the States. Much is made of the fact that in recent years certain benefits by way of allowances, perks and a rent-free furnished residence together with the telephone facility have been granted but all such benefits are marginal and the total emoluments receivable by the higher judiciary have been tendered abominably low in the context of spiralling prices, heavy taxation and run-away inflation, Inclusive of all allowances the Chief Justice of India and a puisne Judge of the Supreme Court receive, subject to tax deductions, total monthly emoluments of Rs. 7675/- and Rs. 6475/- respectively while the corresponding figures for the Chief Justice and a puisne Judge of a High Court respectively are Rs. 6475/- and Rs. 5675/-. According to a recent statement made by the Hon'ble Finance Minister on the floor, of Parliament the' purchasing power of the rupee has dwindled to 17.89 paise, say 18 paise and this shows that the State is utilising the services of the cream of the intellectuals in the society for Rs. 1301.50, Rs. 1165.50, Rupees 1165.50 and Rs. 1021.50 per month respectively in terms of real worth of money. No wonder quite a number among us have to depend upon overdraft facility to make deposits under the C. D. S. in March every year. May I also venture to say that not even the most average legal brain will be attracted to the Bench.
A study in contrast with other countries where judicial salaries have been raised from time to time would show how far. Indian Judges have been left behind in this age of inflation. Since we have adopted Anglo-Saxon model of administration of justice here, it will be interesting to note how the judicial salaries were revised in United Kingdom. In England in 1954 judicial salaries were increased from £ 5,000 to £ 8,000 per annum; in 1965 they were again revised to £ 10,000, £ 11,500, £ 14,500 respectively for puisne Judges, for Lord Justice of Appeal and Lords of Appeals in Ordinary and for the Lord Chancellor. These have further undergone upward revisions and today the Chief Justice is entitled to £ 60,000 a year and Judges of the Court of Appeal £ 55,000 a year. In Ireland the rise was from £ 3,700 in 1960 to £ 30,497 at present. In the years 1950, 1960, 1970, 1980 and at present even a small country like Mauritius paid to its Chief Justice Rs. 21,000 (per ,annum, Rs. 41,200, Rs. 41,200, Rs. 1,14,000 and Rs. 1,19,500 respectively, while it paid to other Judges over the same years Rs. 17,000, Rs. 34,000, Rs. 36,000, Rs. 93000 and Rupees 1,03,920. Singapore has progressively revised the rate from $ 1,790 a month in 1950 to $ 3,175 (1960), $ 3,900 (1970), $ 15,625 (1980) and $ 22,300 at present to the Chief Justice, while during the same period other Judges were paid $ 1,440 (1950); $ 2,600 (1960), $ 2,950 (1970), $ 12,650 (1980) and at present $ 16,200, (these include allowances). In. Sweden the increase from 1950 to the present day was seven times the original salary and in Jordan ten times. Sudan has nearly quadrupled the salary in the past 10 years. From what I have said above one, could reasonably infer that the Indian Judges have lagged far behind in the matter of their emoluments in the context of ever increasing cost index, heavy taxation and run-away inflation. No one suggests that 100% neutralisation of the fall in rupee-value could be made, but surely substantial upward revision is long over due. Otherwise at the current rate of judicial emoluments indicated above recruitment from the Bar may have to reach below average material.
Another ill that is posing danger to the independence of the judiciary has been the concept of 'committed judiciary' which got articulated in the theory which was propounded by" late Shri Mohan Kumar Mangalam in Parliament on 2nd May, 1973 in the matter of making appointments to the higher judiciary (both at the Supreme Court and High Court level) the theory that the Government of the day has the prerogative as well as the duty to appoint such persons as Judges whose social and political philosophy and outlook will be in tune with the Government's philosophy. In a democratic set up the necessity to have a strong and independent judiciary free from political pressures cannot be over emphasised, Our Constitution envisages a scheme that contemplates the installation, both at lower as well as the higher levels, of a well-trained nonpolitical judiciary whose independence has been elaborately safeguarded by the several provisions contained in it. The Law Commission under the Chairmanship of Justice H. R. Khanna in its Eightieth Report on 'The Method of Appointment of Judges' has also referred to this aspect and has made the specific recommendation to the effect that while affiliation in the remote past with a political party should not constitute a bar in itself, no one should be appointed as a Judge unless for a period of not less than seven years, he has snapped all affiliations with political parties and unless during that period he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice, bias or leanings. True, the recommendation is in respect of appointments to the Supreme Court but in my view the same reasons and factors that weighed with the Law Commission to make the recommendation in the context of Supreme Court appointments would hold good and be valid in the case of High Court appointments. Leaving aside the aspect of the period, the spirit and essence of the recommendation is that you must have Judges who will not permit their political prejudice, bias or leanings to influence or affect their judicial functions in any manner.
Notwithstanding all this, in actual practice the theory enunciated by late Shri Mohan Kumaramangalam not merely holds the field but is followed with vengeance; otherwise elevation to the Bench of persons who had publicly admired the last Emergency and had eulogized its socalled benefits or of those who displayed extra-loyalty/affinity, in face of other equally, good and better persons, cannot be explained. Prerogative as well as duty to appoint persons with leanings in tune with Government's philosophy implies exclusion of others with non-conforming leanings, however suitable or deserving they might be for the appointment. In other words, all that is required to snuff out a sound recommendation is to dub the re-commendee with nonconforming leanings and you are all aware how I. B. reports or C. B. I. reports come in handy in this behalf. What really needs to be ensured is that judicial work remains free from political prejudice, bias or leanings. Further, a more distressing feature about the implementation of the theory is that when any particular recommendation reaches the portals of the Government delegations either in support or in opposition wait on the authorities concerned and are entertained. Moreover, recent experience of having Judges with a political background has been disturbing and furnishes justifiable grounds for raising the fundamental question whether the country should have politicians as Judges. At any rate this dubious principle should never be invoked for elevating persons to the Bench by way of rewards for performances favourable to whatever party be in power, for, the country needs Judges who are detached from party and attached to work. May I suggest in all humility that the thesis of late Shri Mohan Kumaramangalam, the validity whereof has been rendered doubtful, be given a decent burial.
Yet another strong disincentive that has dampened the growth of a robust and independent judiciary is the latest policy decision of the Government of India to have Chief Justices of all the State High Courts from outsiders also to have l/3rd of the puisne Judges in every State High Court from outside the State, which has the effect of keeping the sword of transfer hanging on the heads of the High Court Judges. This policy decision, the constitutional validity whereof is yet to be tested, has deterred many a competent advocate from accepting judgeship on the High Court Bench. I know of at least one instance from Bombay where the advocate concerned whose recommendation bad already been forwarded to the Government of India and the Chief Justice of India, on coming to know of this policy decision, actually wrote a letter to the Chief Justice of India withdrawing his willingness and consent to be considered for the post. I am aware that a demand for transferring some Judges from their own High Courts has been persistently. voiced and it is conceivable that in given cases transfers may become necessary but even in such cases the real question is who should transfer them and how the power of transfer under Article 222 (1) of the Constitution should be exercised. In my opinion with a view to preserve the independence of the judiciary the power should virtually rest with a Committee of Judges presided over by the Chief Justice of India and all transfers must be insulated against the Executive's interference. In this context it would be pertinent to mention that in the Judges' case (AIR 1982 SC 149) the Supreme Court has struck a warning that even in the case of policy transfers some mechanism or modality of procedure which would ensure complete insulation against the Executive's interference must be evolved before implementing the policy and even the then Hon'ble Minister for Law Shri Shiv Shanker repeatedly gave an assurance on the floor of Parliament that the whole mechanism in regard to transfer of High Court Judges would be controlled by the Supreme Court. It was, therefore, expected that proper guidelines with adequate safeguards would be incorporated in the mechanism that was to be adopted. You are aware that the Government of India have published certain guidelines but it is not known whether the said guidelines were framed with the concurrence or approval of the Chief Justice of India or he was merely 'consulted' in the constitutional sense of the matter. Moreover, a bare reading of these guidelines leaves much to be desired; for instance, neither the policy nor the guidelines indicate that the personal difficulties of the Judges and the Chief Justices involved in the proposed transfers would be taken into consideration. —What is worse is that neither the warning of the Supreme Court has been heeded nor the assurance of the Law Minister implemented while framing the guidelines inasmuch as questions as to which particular Judge should be transferred and to which High Court have not been left to the discretion of the Chief Justice of India but that discretion still vests in the Executive with the result that notwithstanding the adoption of the aforesaid policy the possibility of using the power of transfer with oblique motive or for oblique purpose has not been ruled out — a serious danger in a federal policy that has been pointed out by the Supreme Court in its judgment. In fact, the guidelines leave ample scope to the Government, to pick and choose in effecting the transfers, as is clear from the manner in which the policy has been partly implemented so far. For instance, a Chief Justice who was criticised and received disapprobation from the Supreme Court for not having discharged his constitutional functions properly and against whom a litigation is pending in his High Court still continues to hold his post, whereas Judges holding No. 3 or No. 5 positions in seniority in their own High Courts have been transferred as Chief Justices to the other High Courts without their immediate seniors being consulted in the matter. The truth of the matter is that the Government will have no interest left in the policy if the entire discretion in the matter of exercising the power is transferred to the Chief Justice or the Supreme Court.
To preserve the independence of our higher judiciary it has become necessary, having regard to past experience and the conditions obtaining in the country, to insulate both the processes in regard' to making appointments and effecting transfers against executive interference. Both the processes should rest entirely with a Committee of Judges comprising 4 or 5 senior Supreme Court Judges and the Chief Justice of the concerned High Court, presided over by the Chief Justice of India having the exclusive power top- initiate the proposal for appointment or transfer and before the initiation of any proposal consultation with the Attorney-General and the concerned Advocate-General by the Committee, could also be stipulated, provided again these Law Officers are not regarded as any political or party appointees. Unless some machinery on these lines is adopted the concept of judicial independence of the higher judiciary under the present system is bound to become unreal. As it is a result of judicial interpretation of the related provisions of our Constitution the lower judiciary at the District level enjoys a greater immunity from executive interference in the matter of appointments and transfers than the higher judiciary at the High Court level, I wish the Supreme Court could have been as solicitous for the independence of the higher judiciary as it has been qua the subordinate or lower judiciary. By denying primacy to his opinion or advice in the matter of appointments the majority in the Judges' case (AIR 1982 SC 149) has unfortunately clipped the wings of the Chief Justice of India and placed in that situation with what force or authority can be effectively assert or insist on the acceptance of his advise by the Government ? In matters of transfer the guidelines as they are have a tendency to demoralise High Court Judges who may be driven to look up to the Government and Hob-nob with the law Minister for solution of their difficulties or problems — surely not an edifying activity for constitutional functionary of that status, to undertake. I have, therefore, made the suggestion that appointments as well as transfers should be entirely left to a Committee of Judges.
Friends, I would like to utilise this occasion to express my grave concern about certain dangerous trends that have of late become discernible endangering our democrary and Rule of Law. I have in mind the recent moves that have been and are being undertaken to set at naught the well considered judicial pronouncements of the highest Court of the land which are fraught with grave danger of striking at the roof of and eroding peoples faith in the Rule of Law, which is so essential to sustain our democracy. No one disputes the power of the Parliament or a State Legislature to bring in legislation with a view to get over a wrong or inconvenient decision of the Court in public interest but resorting to legislative acrobatics or executive gimmicks for benefiting a single individual or saving him from consequences of breaches of the common law of the land would cut across two cardinal principles of democrary — respect for the Rule of Law and equality before law. I know that the latest attempt to have the Anti-corruption law amended following a Supreme Court decision in the case of an ex-Chief Minister of a State, which has a familiar ring reminiscent of an earlier precedent (which attempt was then described as changing the rules of the game while the game was on), will be upper-most in your mind; but since same is being currently debated in the media, I would refrain from dwelling on it and I would like to refer to another instance having the same grave potentiality when executive powers were resorted to with a view to set at naught another Supreme Court judgment. On 28th July, 1978 the High Court of Punjab and Haryana convicted a Station House Officer attached to City Police Station, Sirsa under Section 323, I. P. C. for torturing and beating the complainant while in police custody and sentenced him to three months R. I. and a fine of Rs. 500/-. Surprisingly, though such conviction and sentence were recorded against him; he was not even placed under suspension. His appeal was dismissed by the Supreme Court on 6-5-1983 when his conviction and sentence, were confirmed. He did not surrender to custody but on the other hand managed to avoid the execution of the warrant that had been issued for his arrest. Meanwhile, he was promoted as a D. S. P. in the teeth of 'the conviction and sentence remaining in force against him. When at the instance of the complainant the Supreme Court called upon the State to explain why the concerned officer had not been arrested and why no action was taken against him, the Court was presented with a fait accompli of the Governor of Haryana having granted pardon to him, even in such a petty case where he was found guilty of a common law crime, under Article 161 of the Constitution on 1st of August, 1983. Now, apart from the question of propriety and or validity of the Governor's pardon, on which I would refrain from making any comments as the question is sub judice before the Court where that action has been challenged, it is surprising that after the officer was convicted by the High Court he was not even placed under suspension, as any other would have been, but was allowed to work, on his post and what is worse long before the pardon was granted to him and while his conviction was staring in the face he was given promotion to the higher post of D. S. P. Such gimmicks on the part of the State Government or its concerned officials deserve to be condemned and are bound to erode peoples' faith in the Rule of Law in a democratic set up.
Author Name: Hon’ble Justice V D Tulzapurkar
