Thursday, May 29, 2008

Frozen judicial salaries: a crisis

Frozen judicial salaries: a crisis

T.R.Andhyarujina

The great standing which our higher judiciary with its enormous power commands in India and the rest of the world is in serious danger of being undermined if prompt steps are not taken to raise judicial salaries to draw talent to the judiciary.

The salaries of judges of the Supreme Court and High Courts have become so low that it would not be an exaggeration to say that they threaten to undermine the standing, competency and independence of the higher judiciary.

The inadequacy of salaries has been a grave problem for many years, but the immediate provocation for a discussion at the Judicial Conference of Chief Justices on April 18 and 19 was the recent recommendation of the Sixth Pay Commission for revision of salaries in other services. The Commission recommended that chairpersons of regulatory bodies such as SEBI, TRAI, CERC, CCI & IRDA, who are retired Supreme Court and High Court judges be paid Rs. 3,00,000 a month i.e. 10 times that of the sitting judges of the Supreme Court and the High Courts. It also recommended a salary of Rs. 80,000 for Secretaries in government and Rs. 90,000 for the Cabinet Secretary.

Compare these with the salaries in the higher courts. The Chief Justice of India gets a salary of Rs. 33,000 and other judges of the Supreme Court get Rs. 30,000. The Chief Justices of the High Courts are paid Rs. 40,000 and other judges Rs. 26,000. These salaries were last increased in 1996 and there is no prospect of any revision to take care of the fall in the value of rupee and the rising cost of living.

Two days after the judicial conference decisions became public, Prime Minister Manmohan Singh, referring to the Pay Commission recommendations, said, “I would like our civil and defence services to be properly rewarded.” Significantly, no mention was made of the judiciary being “properly paid”.

Judicial salaries in India have been niggardly. When the Constitution was being enacted in 1950, the Constituent Assembly consulted judges of the Federal Court and the High Courts on their salaries. A memorandum drawn up by the judges stressed the need for sufficiently high salaries as “the paramount importance of the securing a fearless functioning of an independent, incorruptible and efficient judiciary.” Strangely, judicial salaries were in fact reduced from those in the pre-independence days because at one stage the President’s salary as proposed was lower than that of the judges. In 1950, the Constitution fixed the salaries of the Chief Justice of India and other judges of the Supreme Court at Rs. 5,000 and Rs. 4,000 and the salaries of the Chief Justices of the High Court and other judges at Rs. 4,000 and Rs. 3,500.

In 1950, with the then standard of living these salaries were attractive enough for lawyers in good practice who sought a judicial career with the prestige of a judge of a High Court and the Supreme Court. For 36 years the salaries remained unrevised though the value of the rupee had fallen and the cost of living had risen. In 1986, the salaries were increased by a Constitution amendment. The Chief Justice and other judges of the Supreme Court were to be paid Rs. 10,000 and Rs. 9,000 and the Chief Justices of the High Courts and other judges Rs. 9,000 and Rs. 8,000. In 1998, they were raised to the present salaries.

Even taking into consideration the perquisites attached to the office of judge, judicial salaries have become unrewarding and unattractive to lawyers in good practice, leaving aside lawyers in top practice. In the past, lawyers in India as in the United Kingdom in good practice took judgeship as a career and as a matter of honour even though rewards at the Bar were higher. Today, judicial salaries, apart from becoming unreal with the passage of time, do not stand comparison with the average earnings at the Bar, resulting in fewer and fewer competent lawyers from the Bar taking judgeship.

It is ironical that today fledgling graduates passing out of the national law schools are offered salaries between Rs. 50,000 and Rs. 1,00,000 by law firms and corporate houses, whilst the salaries of judges remain in the vicinity of Rs. 30,000. Some retired judges, as arbitrators, earn fees which far exceed their previous judicial salaries. Such a disparity between judicial salaries and rewards at the Bar and elsewhere in the legal profession not only tends to detract talent from coming to the Bench but also creates in sitting judges a feeling that their work is not properly appreciated and rewarded. After all, judges are as much, if not more, contributors as are lawyers to the whole legal system.

Comparison between the salaries of civil servants and judges is inapt. It must be remembered that judges by their office are required to maintain a life style of aloofness and dignity which is not required of civil servants. The 14th Law Commission Report, quoted the speech of Sir Winston Churchill in moving a bill for raising salaries of judges in U.K. He said :

“The service rendered by judges demands the highest qualities of learning, training and character. These qualities are not to be measured in terms of pounds, shillings, and pence according to the quantity of work done. A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct. The Bench must be the dominant attraction to the legal profession, yet it rather hangs in the balance now, and heavily will our society pay if it cannot command the finest characters and the best legal brains which we can produce.”

Of course, we shall still have competent judges as indeed some of our judges of the Supreme Court and High Courts are and have been. However, increasingly lawyers from the Bar who have been traditionally recognised as the mainstay of the higher judiciary in India and the U.K. are not likely to be attracted to a judicial career and the judiciary itself will cease to be a service which must attract the best brains.

Impact on efficiency

Low salaries have a direct impact on the efficiency of the higher judiciary, including the disposal of cases. That great jurist the late H.M. Seervai trenchantly observed:

“It may be said that we are a poor country and cannot afford to pay high salaries to judges . I would like to record my opinion that only an extremely wealthy country can afford the luxury of an ill-paid judiciary, and that the greatest sufferers of an ill-paid judiciary would be the Union and the State Governments, because to-day the biggest litigant in India is the State. In my opinion arrears of work cannot be diminished by diluting the quality of the judiciary; the correct remedy is to make a judicial career sufficiently attractive for lawyers of the highest standing.”

In U.K., the problem of judicial salaries becoming unremunerative and not keeping pace with the cost of living is taken care of by revision by the Senior Salaries Review Board which recommends increase in from time to time. For example, in 2007 the board recommended an increase averaging 2.4 per cent for judicial salaries. With this, the salary of the Lord Chief Justice will be £ 230,400, of the Appeal Court judges £ 188,700 and of the High Court Judge £ 165,900 per year. Even small countries like Singapore have more attractive judicial salaries than India.

The great standing which our higher judiciary with its enormous power commands in India and the rest of the world is in serious danger of being undermined if prompt steps are not taken to raise judicial salaries to draw talent to the judiciary. It is little realised by even the legal profession that what is at stake is the functioning of an independent, incorruptible and efficient judiciary. As it would be inappropriate for judges to agitate the issue, the Bar associations, lawyers and the Law Commission should take up the matter urgently. In 2007, Chief Justice Roberts of the U.S. Supreme Court described the current levels of judicial salaries in the U.S. a “constitutional crisis.” Judicial salaries in India are considerably lower than in the U.S. With greater reason we have a constitutional crisis in India on hand.

(The writer is a senior advocate of the Supreme Court and former Solicitor-General of India.)

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