14. PRINCIPLES GOVERNING THE PAY STRUCTURE OF
THE SUBORDINATE JUDICIARY

14.1 One of the terms of our reference requires us "to evolve the principles which should govern structure of pay and other emoluments of judicial officers belonging to the subordinate judiciary all over the country".

14.2 Hitherto, in our country pay and other service conditions of judicial officers in almost all the States have been linked to the corresponding executive officers of the State or the Central Services. That is perhaps due to the fact that the linkage between the service conditions of the judiciary and that of the administrative executives was a historical accident. The erstwhile rulers constituted only one service, namely, the Indian Civil Service for the judicial as well as administrative service, and it was from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Indeed, initially there was no clear demarcation between the judicial and executive services and the same officers used to perform judicial as well as executive functions. This logical consequence in terms of the service conditions was inevitable. But with the promulgation of the Constitution and the separation of the State power distributed among the three branches of the Government, the continuation of the linkage became inconsistent with the constitutional principles.

14.3 Although these were obvious realities, no effort was made to place the judicial officers in a separate category while determining their remuneration. The Supreme Court ultimately had to step in to correct the anomalous position by pointing out the importance of the judiciary and its functions. The Supreme Court in its landmark judgment in ALL INDIA JUDGES ASSOCIATION v. UNION OF INDIA AND OTHERS1 observed thus :

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1. AIR 1993 SC 2493=1993 4 SCC 288.

"The judicial service is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the ministers, the legislators and the judges and not the members of their staff who implement or assist in implementing their decisions. The Council of Ministers or the political executive is different from the Secretarial staff or the administrative executives which carries out the decisions of the political executive. Similarly the legislators are different from the legislative staff. So also the Judges from the Judicial staff.

The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. The distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary and no price is too heavy to secure it. To keep the Judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself."

14.4 The Apex Court has categorically observed that the linkage between the service conditions of the judiciary and that of administrative executives is not proper and should be discontinued since the judiciary is above the administrative executive. It was observed that "parity in status can only be between the judges and the political executive and not between judges and administrative executives."

14.5 In view of these significant observations of the Supreme Court, the need to evolve the principles which should govern the pay structure of subordinate judicial officers has become imperative.

14.6 The practice of paying, or remunerating individuals for their labour is not new. According to DAVID A. HUME2, it dates back at least to the time of Christ. Reference to payment for labour is made in the Holy Bible, the Gospel according to Matthew 20:1-2: "For the Kingdom of heaven is like a landowner who went out in early morning to hire men to work in his vineyard. He agreed to pay them a denarius for the day and sent them into his vineyard."

14.7 Over the years, social scientists, especially the economists, have been trying to work out different methods of determining the salary structure for different categories of employees. They have invented various and varied theories. However, no single theory is acceptable or determinative to those who are involved in settling salary disputes or determining pay structure.

14.8 Generally, the pay structures are based on decisions about internal relativities and external comparisons but they must also take into account of pay progression policy.

 

 


2. "Reward Management" , Chapter 5, pages 72 to74 by David A. Hume.

 

14.9 Internal relativity decisions are usually formed through processes of job evaluation. This normally excludes personal factors, and the relative size of jobs is measured on the basis of what has to be done to achieve a standard and acceptable level of job performance. In an individual job range structure, this provides the reference point for the rate within the range, which should be paid to a fully competent person. In a conventional graded structure, the same assumption is made for all the jobs grouped into the grade although in practice their relative size may differ.

14.10 External comparisons are made through market rate surveys, and decisions on external relativities follow the organisation’s policy on how its pay levels should relate to market rates – its market stance.

14.11 Market stance policy depends on the organisation’s views as to whether it should pay above the market, match the market or pay less than the market. These will be influenced by such factors as the level of people the organisation wants to attract and retain.

14.12 But it may be noted as Helen Murlis3 said that all people do not work for money alone. There are in fact many determinants of the decision to work for, and stay with, in a particular department or employer. Throwing money for recruitment and retention may be worst possible strategy because this only deals with one aspect of what is generally a complex problem. Some employees generally weigh up a number of tangible and intangible factors when looking at what employers have on offer. Some of them look for personal recognition and the desire to go on learning and developing as a career goes through different stages. Others may prefer to work for an employer who is caring and supporting as well as challenging and successful.

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3. "Reward Management", Third Edn., by Michael Armstrong and Helen Murlis.

14.13 During the British period, Attchison Commission (1886-87) and the Royal (Islington) Commission (1912-15) were constituted to determine the pay structure of Civil Servants. They have followed certain principles. The Royal (Islington) Commission in particular formulated the following principle:

"Government should pay so much and so much only to their employees as is necessary to obtain recruits of the right stamp and maintain them in such degree of comfort and dignity as will shield them from temptation and keep them efficient for the term of their service."

14.14 This principle was accepted even by the Royal (Lee) Commission constituted in 1923 for Superior Services in India .

14.15 However, the Royal (Priestly) Commission (1953-55) on Civil Services in the United Kingdom made a significant departure in formulating certain principles. Instead of leaving the question of pay fixation entirely to the market conditions, that Commission introduced the concept of "fairness" both to the employees as well as to the tax payers. It observed that:

"Civil service pay should be settled in the light of explicit principles that will commend themselves as fair both to the staff concerned and to the community as a whole."

14.16 But according to A.P. Williams4, the ‘fairness’ in pay structure is the most commonly used - and most commonly abused - term in this area. He goes on to state: "Fairness, like beauty, is only too often in the eye of the beholder; but it would be too cynical to maintain that its use in this context is really a disguised

form of envy. When Elliot Jaques (1961), in his book Equitable Payment advanced

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4. "Just Reward?" The Truth about Executive Pay by A.P. Williams, 1994 Edn., Chapter 4.

the idea of the ‘felt-fair Principle’, and referred to an unrecognised system of norms for fair payment related to individual’s unconscious feeling of the need for a match between the level of work and the capacity of the individual to do it. He was in one sense only restating the problem, but in another he was appealing to a widely (if not universally) shared set of values as to what was socially acceptable."

14.17 In our country, the practice of setting up of Commissions, at regular intervals, on an average of 10 years, for determining and / or revising pay and allowances of Central Government employees has been generally followed.

14.18 We may begin with the principles followed by the successive Central Pay Commissions for determining pay structure of different categories of Central Government employees. Such determination has been hitherto extended to judicial officers as well.

14.19 But before referring to the principles enumerated by the Central Pay Commission, it will be useful to refer to some of the International Resolutions and Instruments recommending adequate salaries and pensions for judges.

14.20 The idea of a minimum salary for judges has been recognised in a number of International Instruments. Article 11 of the Basic Principles of the Independence of the Judiciary, which was adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, provides that:

"The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law."

14.21 A more recent document is the Draft Universal Declaration on the Independence of the Judiciary, which the United Nations Commission on Human Rights invited Governments to take into account when implementing the U.N. Basic Principles (Resolution 1989/32), Article 18(b) provides that :

" The salaries and pensions of judges shall be adequate, commensurate with the status, dignity and responsibility of their office, and shall be periodically reviewed to overcome or minimise the effect of inflation."

14.22 We may now turn to the principles followed by the Central Pay Commissions for reviewing or restructuring the pay structures of Central Government employees.

First Central Pay Commission (1946-47) :

14.23 The First Central Pay Commission innovated the principle of "living wage" to Government employees. It observed that "the test formulated by the Islington Commission is only to be liberally interpreted to suit the conditions of the present day and to be qualified by the condition that in no case should be a man’s pay be less than a living wage." Amplifying the concept of "living wage", it stated that the Government which sponsored the minimum wage legislation for private industry must be willing to give the benefit of that principle to its own employees. In other words, that Commission was of opinion that the salary of the lowest paid employee should not be less than the minimum wage. While considering the question of maximum salary, the Commission agreed with the view that the State should compete with private enterprise in respect of prize posts; but expressed their inability to agree that the salaries of public servants could be reduced below the standard remuneration available to similarly situated employees in the private sector. The Commission recommended the principle that, as a matter of social policy, the lowest paid should not fall below the "living wage" (meaning thereby the minimum wage) and the top salaries should also as a matter of social policy be kept down to the extent possible without jeopardising the essential requirements of recruitment and efficiency.

 

 

Second Central Pay Commission (1957-59) :

14.24 The Second Central Pay Commission reiterated the principle that the pay structure and the conditions of service of Government employees should be so designed as to ensure recruitment of persons with requisite qualifications and ability at all levels and to maintain their efficiency. It went on to state that, after determining the minimum and the maximum salaries on a combination of both economic and social considerations, the intermediate salaries should be fixed on sound and equitable relativities.

Third Central Pay Commission (1972-73) :

14.25 Third Central Pay Commission proceeded on the premise, inter alia, that the pay structure, if it is to be sound, should satisfy the tests of "inclusiveness", "comprehensibility" and "adequacy" and should, at the same time, be fairly simple and rational. Beyond the minimum subsistence level, the adequacy or otherwise of the salary structure should be judged by the level of salaries obtaining in alternative occupations. In the intermediate ranges, the Commission emphasised that a limit should be set by what the economy can afford and the upper range limit should be on considerations of social acceptability. While observing that the Government should formulate a set of principles of wage fixation as suited to its needs, it also remarked that the true test to be adopted should be whether the Government service is attracting and retaining the persons it needs and whether such persons are reasonably satisfied with the pay and other benefits taken together.

Fourth Central Pay Commission (1983-86) :

14.26 The Fourth Central Pay Commission was, however, guided by a number of factors for determining the pay structure, viz., social status regard to which the public employment carries in society, the authority of the post, security of tenure and the welfare measures adopted by the Government for the benefit of its employees. Motivation for employees, efficient performance and comparability were also considered by the Commission. The Commission gave greater importance to the capacity of the State to pay its employee. The Commission observed that the pay structure must be fair from the point of view of employees as well as the people they serve.

Fifth Central Pay Commission (1994-97) :

14.27 The Fifth Central Pay Commission was specifically asked to evolve the principles which should govern the structure of emoluments and other conditions of service. So, the Commission had to survey the principles adopted by the antecedent Commissions and accepted some of the general principles including the three characteristics of a sound pay structure, namely, inclusiveness, comprehensibility and adequacy. The well-accepted principle of supply and demand consideration as emphasised by Islington Commission was also reiterated. However, it emphasised on professionalism in Government service and the Government should have less such people with better payment. It observed that there should be transparency in pay packages and the need for merging of various allowances into a simple allowance. The Commission also laid emphasis on the principle "equal pay for equal work", "fair compensation", "productivity" and "model employer". Besides, the Commission has considered certain other criteria like the intrinsic value of a job, delinking pay from position in the hierarchy, interest of isolated posts, justice to lowest and highest paid functionaries, liberal reimbursement of actual expenses and full compensation for entering into the public service. The Commission, however, has emphasized the capacity of Government to pay and kept it as the uppermost factor.

14.28 From the aforesaid, what could be deduced is that for the purpose of determining salary structure, some of the following factors viz., the market forces of demand and supply, cost of living, ability to pay, the prevailing pay structure in the society, equal pay for equal work, the role and image of organisation and the expected performance of the employees are taken into consideration.

14.29 These principles set out by the successive Pay Commissions are commonly used for determining the appropriate pay scales of Industrial workers and Government employees. But when we take up the judges’ salary structure, those principles are neither sufficient nor all of them are relevant.

 

14.30 This is what the 14th Report of the Law Commission at p. 163 had to state:

"In the matter of scales of pay and remuneration, the judiciary compares unfavourably with the executive branches of the Government. It is true that, generally speaking, the scales of pay of the judicial officers and the corresponding executive officers are identical in many of the States. However, it has to be remembered that the executive officers are, by and large, recruited at a much younger age than the judicial officers. The entrant to the judicial service is required to be a graduate in law and in most of the States it is also necessary that he should have practised for a certain number of years at the Bar. On the other hand, for recruitment to the executive branches of Government service, a degree in arts or science is, generally speaking, sufficient. In the result, a person entering the judicial service does so when he is about 26 or 27 years of age and at a time when his contemporaries who have entered the executive service of the Government have already acquired a certain seniority in the service and have come to draw a higher salary. It will thus be seen that a person joining the judicial service starts with a lower remuneration than what he would have received if he had entered the executive service for a few years earlier. It has also to be noted that owing to the lesser proportion of superior posts in the judicial service, promotions come less quickly to the judicial officers, and a person who has entered the service as a munsiff, assuming that he is fit and fully qualified, takes much longer time to become a district judge than would an equally competent deputy collector to reach the position of a collector. Again the judicial officer, having started at a later age, has a shorter span of service than the executive officer and this affects his pension and other retirement benefits."

14.31 In the Review Judgment in All India Judges’ Association Case (AIR 1993 SC 2493) the Supreme Court observed at p. 2501:

"The judicial service is not service in the sense of ‘employment’. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature."

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"The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.

"The distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself."

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"As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter."

14.32 The Supreme Court has also observed in the said review judgment that while fixing the pay scales of the judicial officers, the consideration of the capacity of the Government to pay would be irrelevant.

14.33 So, this much is clear that there cannot be a linkage between the pay scales of judicial officers with the pay scales of the executives. However, since we have a graded system of judicial service, the salary level of the High Court Judges is an important factor to be reckoned to maintain the relativities across the State judiciary. It is a vital factor to be borne in mind while judging the appropriateness of any particular level of salary to the Judges of the Subordinate Courts.

14.34 The Supreme Court in the above-said case has also observed that there is a wide variance in the pay structure prevailing in various States and Union Territories for the same nature of work performed by judicial officers. It was further observed that judicial officers should not be remunerated differently since they perform similar nature of the work.

14.35 It is, therefore, imperative for the Commission to determine uniform pay scales for similar grades of Judges in every State and UT. This principle is also based on "Equal Pay for Equal Work" which has been enshrined under Article 39(d) of the Directive Principles of State Policy in our Constitution. The said Article proclaims ‘equal pay for equal work’ for both men and women under common employer.

14.36 In this context, it may be useful to refer to the definition of the expression "same work or work of similar nature" contained in Clause (h) of Section 2 of the Equal Remuneration Act, 1976. This Act was enacted to give effect to the provisions of Article 39(d) of the Constitution and the obligation created by ‘The Convention Concerning Equal Remuneration for Men and Women Workers’ for work of equal value (generally referred to as ‘Equal Remuneration Convention 1951’) adopted on June 29, 1951, to which India was a signatory. Article 2 of the Convention obliged the signatory States to effectuate the said rule by all means including the machinery of law. The said Act is applicable to such establishments and employments as may be notified by the Central Government under Section 1(3) of the Act. Though the said Act is mainly directed against discrimination against women, yet the relevance of the said definition cannot be ignored for our purpose.

14.37 The definition in Section 2(h) reads:

"2(h). ‘Same work or work of a similar nature’ means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the difference if any between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment."

14.38 This definition lays emphasis on the similarity of skill, effort and responsibility when performed under similar terms and conditions of employment.

14.39 Adroitly, the persons discharging similar if not identical functions bearing similar responsibilities should get equal pay on the binding principle of ‘Equal Pay for Equal Work’. This is a Constitutional goal and fundamental right guaranteed to the citizens of this country.

14.40 The State shall not say that the Employer being different in State to State cannot apply the Rule of equal pay for equal work. But as already explained by the Apex Court , the Judicial Officers cannot be regarded as civil servants of the State. They perform judicial functions of the State in every State.

14.41 For the purpose of giving equal pay or uniform pay, it is necessary to provide uniform jurisdiction to Judicial Officers in every State/UT.

14.42 In six of the States, namely, West Bengal, Maharashtra, Tamil Nadu, Delhi , Himachal Pradesh and Jammu & Kashmir, the original pecuniary jurisdiction of the District / Civil Judges are not uniform. The reason is that the respective High Courts have retained the ordinary original jurisdiction.

14.43 There have been twelve Commissions and Committees in the past between 1924 and 1990 suggesting for abolition of the ordinary original civil jurisdiction of the High Courts. All these reports have been considered and summarised by Malimath Arrears Committee Report - 1989-1990. The Malimath Committee Report has traced the history of vesting of such original jurisdiction in such High Courts and emphasised the need to abolish it at the earliest. But unfortunately, all these High Courts are still continuing their ordinary original civil jurisdiction.

14.44 The following High Courts have such jurisdiction to entertain and try suits and proceedings of civil nature limited to pecuniary and territorial jurisdictions as follows:

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Sl. Name of the Pecuniary Territorial

No. High Court Jurisdiction Jurisdiction

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1. High Court of Suits & proceedings of Calcutta City area

Calcutta Civil nature where the in Calcutta Municipal

value exceeds Rs.One lakh. Corporation.

2. High Court of Suits & proceedings of Greater Bombay

Bombay Civil nature where the

value exceeds

Rs.Fifty Thousand.

3. High Court of Suits & proceedings of City of Madras .

Madras Civil nature where the

value exceeds Rs.One lakh.

4. High Court of Suits & proceedings of Union Territory .

Delhi Civil nature where the

value exceeds Rs.Five Lakhs.

5. High Court of Suits & proceedings of State of Jammu &

Jammu & Civil nature where the Kashmir .

Kashmir value exceeds Rs.Two lakh

and Fifty Thousand.

6. High Court of Suits & proceedings of State of Himachal

Himachal Civil nature where the Pradesh.

Pradesh value exceeds Rs.Two Lakhs.

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14.45 The Commission considers that it is now absolutely necessary to abolish the original civil jurisdiction of such High Courts to bring about complete uniformity of jurisdiction of the Civil Courts in all States and Union Territories.

14.46 It is on this premise that we have recommended uniform pay scales to Judicial Officers in every State and Union Territory.

14.47 There are other aspects which are to be borne in mind while determining the pay scales of judicial officers and for which full compensation must be provided. They are: (i) Pivotal Role of Subordinate Judiciary in our system of administration of justice; (ii) Essential Characteristics of Judicial Office; (iii) Special Qualifications required for Recruitment; (iv) Onerous Duties and Responsibilities of the Post; and (v) Personal sacrifice in terms of loneliness and general withdrawal from the community affairs.

14.48 We may now examine these aspects in turn:

(i) The Pivotal Role of Subordinate Judiciary :

14.49 In our judicial hierarchy, the subordinate judiciary is the backbone of the system. It is the foundation on which the judicial edifice of the country rests. These subordinate courts play a prominent role, although not an exclusive part in preserving law and order in society. They provide instrumentality for the trial of disputes between individuals and between individuals and States. They quite generally decide delicate issues between Government and private parties. In a large number of cases, they are the final Courts or the Courts of last resort since only a few judgments stand appealed.

14.50 It is in these Courts and not at the hands of the executive or legislature that our citizens feel the keen edge of the law. The dynamics of judicial processes and the factual determination of legal culpability are witnessed by the public only in these Courts5. It is by witnessing such processes, the public confidence and respect to the judiciary is enhanced.

(ii) Essential Characteristics of Judicial Office :

14.51 The person who occupies a judicial office must have manifold personality. It consists of among others, independence, courtesy, patience, dignity, open mindedness, impartiality, thoroughness and decisiveness. Above all, he must have

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5. "Judges and Jurors" by T. Vanderbelt C.J. of New Jersey.

social consciousness. Two of these need to be emphasised: (i) Impartiality and (ii) Independence. These are indispensable qualifications of the judge, without which, his character, courage, honesty, wisdom and learning are of little use or value to the litigants. These two essentials are inter-related. Indeed, the judge has to be independent to become impartial.

14.52 Our Constitution makers have ensured that the judiciary is independent of the executive and the legislature. The independence of the judiciary is a basic feature or structure of our Constitution6. There are two dimensions of judicial independence:- (i ) Individual Independence of a judge and (ii) Institutional or collective independence of the Court or Tribunal of which that judge is a member.

14.53 These two dimensions of judicial independence have been succinctly

explained by Lamer C.J. of the Canadian Supreme Court as follows7:

"The individual independence takes within its fold that the judge must be independent in mind so as to determine the cause in question for the purpose of balancing the contradicting views and to render impartial judgment uninfluenced by public clamour. He must be independent in the sense that he should be self-reliant and not submissive. He must be able to take decisions freely without being subject to bias or influence. He has to remain completely

 

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6. S.D. Gupta Vs. Union of India & Others (1981) Supp. SCC 87, 223.

Shri Kumar Padma Prasad Vs. Union of India (1992) 2 SCC 428 at 446, 456.

7. In the matter of reference from the Lt. Governor in the Council regarding remuneration of the judges of the Provincial Courts, decision dated 18 September 1997.

independent with nothing to influence or control him but God and his conscience. While individual independence attaches to individual judges, the institutional or collective independence attaches to the Court or Tribunal as an institutional entity."

The learned Judge then said at p. 58 & 59:

"The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal."

The learned Judge further observed:

"Individual independence was referred to as the "historical core" of judicial independence, and was defined as "the complete liberty of individual judges to hear and decide the cases that come before them" (p.69). It is necessary for the fair and just adjudication of individual disputes. By contrast, the institutional independence of the judiciary was said to arise out of the position of the courts as organs of and protectors "of the Constitution and the fundamental values embodied in it - rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important" (p.70). Institutional independence enables the courts to fulfill that second and distinctly constitutional role."

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"I do not wish to overlook the fact that judicial independence also operates to insulate the courts from interference by parties to litigation and the public generally."

14.54 It is needless to state that the judges have to maintain individual independence and also institutional independence within the financial security provided to them. They cannot fall back on others for support even for themselves or for their family members. They cannot also engage themselves in any avocation or other occupation to supplement their income.

(iii) Special Qualifications required for Recruitment :

14.55 The Executive Officers are by and large recruited at much younger age than the judicial officers. The qualification for recruitment to the initial cadre of judicial service is a graduate in law followed by one year’s apprentice course for enrolling as an advocate and thereafter a certain number of years’ of practice at the Bar. The Supreme Court has stated that the minimum of such practice should be three years. But in actual practice, the advocates with standing of 4 to 7 years of practice are selected in most of the States. In the result, person entering judicial service does so when he is more than 27 to 30 years of age. It is at a time when his contemporaries who have entered the executive service of the Government with a degree in Arts or Science or with a post-graduate qualification, have already acquired a certain seniority in the service and have come to draw a higher salary. Secondly, the judicial officer having started at a later age has a shorter span of service than the executive officer and that would inevitably affect his career, his pension and other retirement benefits. The Law Commission in its 14th Report has highlighted this aspect to which we have already made a reference earlier.

(iv) Onerous Duties and Responsibilities :

14.56 In the 13th Century, Bracton wrote8 :

"Let not one, who is unwise and unlearned, ascend the judgment seat, which is, as it were, the throne of God . . . . And

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8. Laws and Customs of England Vol. I, 9; Vol. II, 181;

Reproduced in "Judges And Jurors" by Vanderbelt C.J.

when a person is obliged to judge and to be a judge, let him take care of himself, lest by judging perversely and against the laws, through entreaties or for a price, for the advantage of a paltry temporary gain, he presumes to bring upon himself the sadness of external grief . . ."

"A judge ought not only to be wise, but powerful, according to the saying of Solomon. Avoid seeking to be a judge, unless thou art strong in virtue to break through iniquities, lest by chance thou shouldst fear the face of the powerful man, and cause scandal . . . ."

14.57 We have adopted a common law tradition with the adversary system. The lawyers plan the strategy and dig up evidence to present it in Courts. The lawyers of two sides battle it out to win the case for their client. But the goal of winning by both sides would be inconsistent with the quest for truth. The judge is the only person distinterested in the outcome of the case and sees to it that both sides obey the rules of the game. He has to determine the admissibility of the evidence or the non-admissibility of the evidence. He is a judge of both the law and the facts. He has to completely and effectively control the Court and conduct of the case. He has to bear it in mind that the sole object of the judicial machinery is to find out the nugget of truth from the conflicting versions. He cannot, therefore, sit quietly and see the manifest wrong done either by the party or by the Counsel. He cannot allow the wrong to be done by any party.

14.58 Ultimately, when one party loses, there would be deep strain, mistrust and hostility. The Judge must use every bit of his experience and, if possible, elicit any relevant additional facts so as to determine the truth behind what are often conflicting stories of witnesses and parties. In the process, the Judge is really battered.

 

 

14.59 Particularly, now-a-days, the trial judges have no simple trials which their predecessors used to do. Instead, the present judges have complicated, both civil and criminal cases, involving dozens of issues. In each case, they have to examine a number of witnesses. They have to go through innumerable documents which are some times in the language with which they may not be familiar. Added to that, they are faced with conflicting views of different High Courts on the same or similar question.

14.60 The judges have to work continuously both on the Bench and off the Bench. They do not have a calm and detached atmosphere in the Court and they have to work in a charged atmosphere.

14.61 Adroitly, the Supreme Court observed9:

"It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly upto their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. . ."

14.62 In the All India Judges’ Association case10 the Supreme Court has recognised some of the distinct nature of duties of trial judges in the following observations:

"There is also no similarity in the nature of sedentary work done by the Judge and the members of the other services. The sedentary work is mainly of two types -mechanical and creative. Each case

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9. K.P. Tiwari v. State of Madhya Pradesh AIR 1994 SC 1031 and 1032.

10. AIR 1993 SC 2493 and 2508.

coming before the Judge has its own peculiarities requiring application of the fresh mind and skill. The judge has constantly to be a creative artist. His work, therefore, requires constant thinking and display of talent. The exertions involved in the duties of the Judge cannot be compared with the duties of other services ......"

14.63 The Court has also quoted with approval the following passages from David Pannick’s book "Judges".

"The reasons which judges must give to justify their decisions can be gnawed over at their leisure by the teams of lawyers trained (and generously paid) to extract for the purpose of an appeal, every morsel of error . . . . The Judge has the burden of resolving, day after day and week after week, a long succession of issues, each one of which occupies the professor-critic for months and even years of specialized study."

xxx xxx xxx

"The judge has burdensome responsibilities to discharge. He has power over the lives and livelihood of all those litigants who enter his court . . . . . . His decisions may well affect the interests of individuals and groups who are not present or represented in court. If he is not careful, the judge may precipitate a civil war . . . or he may accelerate revolution . . . He may accidentally cause a peaceful but fundamental change in thepolitical complexion of the country."

"Judges today face tribulations, as well as trials, not contemplated by their predecessor . . . . . Parliament has recognised the pressures of the job by providing that before the Lord Chancellor recommends any one to the Queen for appointment to the Circuit Bench, the Lord Chancellor ‘shall take steps to satisfy himself that the person’s health is satisfactory’. . . . This seems essential in the light of the reminiscences of Lord Roskill as to the mental strain which the job can impose . . . . Lord Roskill added that, in his experience, ‘the work load is intolerable; seven days a week 14 hours a day’ . . . ."

xxx xxx xxx

"He (judge) is a symbol of that strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape."

"The qualities desired of a judge can be simply stated: ‘that if he be a good one and that he be thought to be so’. Such credentials are not easily acquired. The judge needs to have ‘the strength to put an end to injustice’ and ‘the faculties that are demanded of the historian and the philosopher and the prophet’."

14.64 In the usual cases there may not be much difficulty for the judges to come to any conclusion, either on facts or on law. But, the problem arises in the unusual cases. As Chief Judge, Learned Hand11 puts it:

"the customary law of English-speaking peoples stands, a structure indubitably made by the hands of generations of judges, each professing to be a pupil, yet each in fact a builder who has contributed his few bricks and his little mortar, often indeed under the delusion that he has added nothing. A judge must manage to

 

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11. HAND, THE SPIRIT OF LIBERTY 130 (1953 edn.)

 

escape both horns of this dilemma; he must preserve his authority by cloaking himself in the majesty of an overshadowing past; but he must discover some composition with the dominant trends of his time - at all hazards he must maintain that tolerable continuity without which society dissolves, and men must begin again the weary path up from savagery."

(v) Personal sacrifices in terms of loneliness and general withdrawal from the community affairs :

14.65 There is an old saying that a judge shall live like a hermit and work like a horse. This may be an extreme term, but nonetheless it is accepted that a judge cannot lead a life like others.

14.66 It is well recognised that a judge shall not have extra-judicial activity, which may conflict with the judicial obligations. Even if there is any extra-judicial activity, it shall be conducted in such a way that it does not cast any reasonable doubt on his capacity to act as a judge or interfere with the performance of judicial functions.

14.67 The judge shall not have social relationship. He shall not act or permit his relative or others to give an impression that they are in a special position to influence him.

14.68 The judge shall not seek membership of any club or society or a company or any organisation. He shall not serve as a Director or a Trustee or non-legal or legal advisor of any company or organisation.

14.69 The judge shall not use or permit use of the prestige of his judicial office for any fund raising or membership solicitation.

14.70 The judge shall not make any public comment that is likely to impair his fairness in the trial. He should disqualify himself in the proceedings in which his impartiality is likely to be questioned.

14.71 The judge shall not have any transaction or continuing business relationship with a lawyer or other persons. Even his spouse or other family members who are residing with him shall not have such business relationship. They shall not even accept any gift or compliment from the public.

14.72 These are the judicial ethics which are not exhaustive but only illustrative.

14.73 The Commission has also to take into consideration that the judicial salaries in real terms have been considerably eroded by the application of tapering neutralisation formula for compensating the price increases, especially at higher levels.

14.74 Having regard to these, and other aspects, it is necessary to have an appropriately designed remuneration system which must serve as a key factor for recruitment, retention and motivation of judges to ensure proper administration of justice.

14.75 The Commission considers that a poorly designed remuneration system is likely to manifest itself in the recruitment of poor quality of judges which will inevitably lead to undesirable levels of judicial performance.

14.76 We are reminded of the observations made by the Chief Justice Marshall12: 

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12. Proceedings and Debates of the Virginia Convention of 1829-1830, 619 (1830).

(Reproduced in "Judges and Jurors" by Vanderbelt , Chief Justice, p.24).

 

 

". . . . . . . . No Sir. I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant, a corrupt, or a dependent judiciary."

14.77 The scale of pay and other emoluments to Judicial officers are to be evolved to avoid such a judiciary in our country.

 

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