• This article looks at issues w.r.t. Higher Judiciary and raises questions with intent to provoke thought.

This article is not about the collegium system that occupies maximum mind space but looks at important matters w.r.t. the Higher Judiciary.

The Government of India has three arms i.e. Legislature (who pass laws), Executive (law implementers) and Judiciary (interpreters and adjudicators of law). Members of the legislature are elected, executive are appointed and judiciary (higher) are self-appointed.

Intent of article is to provoke thought and not cast aspersions on the judiciary, individually or collectively. Short-forms used-Indian Constitution is ICONS, Supreme Court is SC, High Court is HC and Higher Judiciary (HJ) means SC+HC.

This article includes Articles in the ICONS on establishment of SC, salaries of Judges, declaration of assets and applicability of the Prevention of Corruption Act. Format is matter followed by comment in italics. 

At the outset must state that I do not claim to be as educated and knowledgeable as Judges. I am an ordinary chartered accountant, not an expert on Constitutional Law.  

1. Article 124 Establishment and Constitution of SC

(2) Excerpt- “Every Judge of the SC shall be appointed by the President by warrant under his hand and seal after consultation with such judges of the SC”-----

A review of the Collegium Resolution dated 15/2/23 for appointment of 5 Additional judges as permanent judges of the High Court shows space for signature of Minister of Law and Justice, besides 3 collegium members. A review of the 31/1/23 resolution for appointment of two chief justices as SC judges is signed by six SC judges with no space for Minister’s counter signature. There must be a reason for not keeping space for the Ministers signature in 31/1/23 resolution. 

A 17/1/23 resolution reiterating appointment of a Judge to Madras HC has excerpts from the Intelligence Bureau report and states that the recommended judge is a Christian. For resolution click on PDF

Do collegiums resolutions mention religion of the judge and excerpts from IB reports as a norm?

(4) “A Judge of the SC shall not be removed from his office except by an order of the President passed after an address by each house of Parliament supported by a majority of the total membership of that house and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proven misbehaviour or incapacity.”

This is the Constitution’s way of maintaining independence of the judiciary. 

Note that since the formation of the SC in 1950, impeachments are few or none. In May 1993 Justice V Ramaswami was the first SC judge to face an impeachment motion but it failed. Identity and vote bank politics come into play when matters reach Parliament. However, Ramaswami retired a year later, did not resign though.

Read In past, futile removal motion  against SC judge, probe panels for four others  

Another way of penalising is forcing a judge to retire or resign but it does punish the individual for wrong doing.

Impeachment is a complicated process. Based on 72 years experience and changes in society it is suggested that corruption and disproportionate asset cases be kept out impeachment.  

Instead, Corruption in HJ should be tried as it would be for any other citizen. Read on.

Should there be a  faster and apolitical way of impeachment?

There is more to India than the Taj. 

2. Article 125 Salaries etc. of Judges

(1) ‘There shall be paid to the Judges of the Supreme Court salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule’. Art 221 determined by Parliament. 

According to the Department of Justice, “Salaries, gratuity, pension, allowances etc. in respect of Judges of Supreme Court are governed by the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958.  Salaries etc. of Judges of High Courts are governed by High Court Judges (Salaries and Conditions of Service) Act, 1954.”

“Pursuant to the implementation of the report of 7th CPC by Central Government in respect of civil servants, the Chief Justice of India (CJI) constituted a Committee of three sitting Judges to recommend revision in the salaries and other service conditions for the CJI and Judges of Supreme Court and Chief Justices of High Courts.”

So post approval by Union Cabinet on 22.11.2017 revised remuneration for SC Judges was Salary Rs 2.5 lakhs per month, Pension Rs 15 lakhs p.a. plus Dearness relief, Gratuity Rs 20 lakhs, Furnishing allowance Rs 8 lakhs and Sumptuary allowance Rs 34,000/ per month.

In order to maintain independence of Judiciary, salaries of HJ can be decided by them! Why does Parliament need to approve their salaries?

Why did the Constitution Makers envisage that salaries of Higher Judiciary require approval of the Centre?

“The Salaries, Pension and Allowances of the Supreme Court Judges are charged upon the Consolidated Fund of India, whereas the Salaries and Allowances of the High Court Judges are charged upon the Consolidated Fund of the States and the Pension is charged on the Consolidated Fund of India.”

Just because SC/HC Judges salaries are paid from the Consolidated Fund of India, does that make them like members of the Executive and Legislature?  

3. Judges are Constitutional Functionaries!

In 2014, Registrar General of Madras High Court said, “Judges, particularly those of the higher judiciary are constitutional functionaries and not government servants or officials and so no direction can been issued to them.” Source 

Constitutional functionaries are those whose appointment is referred to in the Constitution i.e. SC Judges (Art 124), HC Judges (Art 218), Comptroller and Auditor General of India (Art 148), Chief Election Commissioner (Art 324) and members of the Public Service Commission Art 317). Source GKtoday link

Did the Constitution Makers envisage the SC Judges to hold a position i.e. superior to other functionaries? Asking because of the recent SC order that made the Chief Justice of India a member of the committee to   appoint Election Commissioners? 

The Legislature and to an extent the Executive are held accountable through elections.

Did the Constitution Makers envisage to which living being the constitutional functionaries would be accountable to? Also, HJ cannot be accountable to the Constitution when they are positing themselves as its sole interpreters.

Read Can we expect some accountability from the Supreme Court

If they are to be accountable to the people of India, did the Constitution Makers create a framework for measuring such accountability?

Read Efficient judicial system shall improve the ease of doing business

Since the efficiency of courts has a bearing on enforcement of legal contacts, the business environment, FDI and eventually ease of doing business in India, their efficiency or inefficiency has a bearing on the investment climate and job creation?

So how are courts accountable for improving ease of doing business?

Did the Constitution Makers envisage the importance of Courts being important tools for the ease doing business and devise a performance framework? If not done, should a performance matrix be designed now?

It is easy to tell others what to do but difficult to look within and change.

India must promote Tourism beyond the Golden Triangle. 

4. Article 146 Officers and servants and expenses of SC

These are paid for by the Consolidated Fund of India.

Read Conditions of Service of HC Judges and Raising of Retirement Age of Judges, why Dept of Justice against 

Parliament must pass a law that any person, whose remuneration as an employee (not consultant’s fees) is paid from the Consolidated Fund of India, is a Public Servant? Make it simple.   

5. Are Higher Judiciary covered by the Prevention of Corruption Act (PCA)?

According to Section 2 of this Act, unless the context otherwise requires (b) “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest;

c) Public servant means –

i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;

iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

The Act does not clarify if ‘Judge’ includes HJ. On checking with the learned various opinions are expressed, some say HJ covered others say not covered. The 1991 SC order in K Veeraswami case does not provide clarity in simple terms.

Surely, the public has an interest in the working of the HJ and their salaries are paid from the consolidated fund of India. The Centre must clarify if HJ is covered under PCA and current legal process in case of corruption and disproportionate assets charges. Either way here are suggestions.

PCA should apply to sitting and retired SC and HC judges too since the law should be equally applicable to all – No one can be above the law! However, once a judge retires there must be a pre-determined time frame (say two years) within which corruption or disproportionate asset cases can be filed.

Suggested process - HC Judges can be prosecuted, on corruption charges and having assets disproportionate to known sources of income, on confirmation by the Chief Justice (CJ) of that HC, SC’s in-house probe and receipt of Central government approval (CBI gets government sanction to prosecute Allahabad HC judge and February 2023 report states this is a second corruption case CBI files corruption case against Allahabad HC Judge). For SC judges process is the same except that the SC’s in-house probe committee must consist of 2 members from the collegium, leader of the opposition and the law secretary. This is necessary for transparency. 

Once corruption case (F.I.R.) is filed against a HJ judge he or she cannot be impeached under Article 124 (4) (proven misbehaviour and incapacity).

The HJ will cease to be a judge on filing of FIR and till name is cleared.

No parliamentary approval is required for filing FIR.

Intent is not to dilute powers of Parliament but speed up the process of acquittal or conviction. However, the President’s nod is required to remove judge from office.  

However, if there is inadequate circumstantial evidence provided to the CJ of that HC, the CJ may levy a fine on the complainant. 

When public money is used the government is responsible for preventing corruption.

The Executive must not abdicate its responsibility of framing suitable laws.

Majuli island in Assam is a must visit.

6. How to ascertain disproportionate assets?

Corruption can be ascertained when a person has assets that are disproportionate to the declared sources of income or there is undue gratification “meaning any gratification whatever, other than legal remuneration” or “if he intentionally enriches himself illicitly during the period of his office – Section 13 B.  

The commonly held perception is that the judges of the HJ are high on integrity. One way of re-confirming this perception is if judges make their assets declarations public, meaning on the Supreme Court website.

Alternatively, the declaration of assets could be submitted annually to the Central Vigilance Commissioner (CVC) instead of the Dept of Personnel as is done by gazetted officers for their immovable properties.

Read Madhav S Aney, Subhankar Dam and Giovanni Ko (2021) titled “Jobs for Justice(s): Corruption in the Supreme Court of India”

On corruption in judiciary read this Outlook report

7. Declaration of Assets

Gazetted Officers have to declare their (including spouse) immovable assets every year. Sources state that the information is provided online currently, the nodal agency being the Department of Personnel.

Similarly, those who contest Lok and Vidhan Sabha elections have to file a declaration of assets (including spouse, separately movable and immovable assets) and liabilities.

Read Lok Sabha Polls 2019. What all is filed in Affidavit by candidates

However, the 1997 collegium resolution on declaration of assets reads, “full court meeting of the Supreme Court resolved that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office, and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time.”

Accordingly, in October 2017 14 out of 25 SC judges declared their assets. Asset declarations of former judges (55) are given though.

In 2016 (as on 13 May 2016), 21 of the then 25 Supreme Court judges had declared their assets on the court’s website. 

In 2017, i.e. on 14 October, this number was down to 14; and on 4 April 2019, this number was even lower at just seven out of 27 judges.

Read  Mandatory declaration of Assets by Judges shall increase transparency

I visited the SC site on 1.3.2023 at 3.40 pm and found no voluntary declarations. To know why read on.

SC site on topic Assets of Judges. 

The reason for no asset declarations on the SC site is because the disclosure of any personal information under Right to Information Act will be decided on a case-by-case basis and after assessing whether it serves public interest. Personal information includes assets and liabilities of judges.

This means that anyone wanting to know about assets of a judge would need to apply to the Central Public Information Officer (CPIO) who will decide whether to share such information whilst balancing privacy, transparency, judicial independence and accountability. These parameters are subjective, to say the least.

On this subject Alok Prasanna Kumar, Senior Resident Fellow at the Vidhi Centre for Legal Policy, wrote 

“Door to greater transparency for courts is now shut’ in the Hindustan Times, “The respondent Subhash Chandra Agarwal, asked what now seems a fairly innocuous question – do judges of the SC declare their assets as they undertook to in accordance with a 1997 resolution? That this question was itself so strenuously resisted tells you about the court’s approach to transparency then and now. Even after the Central Information Commission and two benches of the Delhi high court agreed that the CJI’s office should be required to answer this question, it is only now, more than ten years later that a definitive answer has come from the court: yes it must.”

If the assets and liabilities of the Union council of ministers (2021-22) are in public domain and Prime Minister Modi declared his of assets as on March 31, 2022 (to see declaration click on PDF) then!

Did the Constitution makers visualise a status for the HJ i.e. higher than democratically-elected representatives and the Prime Minister?

Is making such a declaration not their dharma? After all, the SC logo is ‘Yato Dharmah Tato Jayah’, i.e. “Where there is righteousness (dharma), there is victory (jaya).”

I realize that vested interests might harass judges by comparing their change in assets. Surely, elected representatives are subject to similar scrutiny? If they can cope with it surely Judges can? As suggested above, an alternate mechanism to overcome such harassment is to file declarations with the Central Vigilance Commission.

Should the Government of India not make annual declaration of assets mandatory for all those who receive salary and pension from the Consolidated Fund of India? After all, the fund represents public money!

This special privilege to HJ! Is that what the Constitution Makers had in mind?

Read SC commutes death sentence of a man who raped, killed minor

About a decade ago, few would bother whether or not judges declared their assets. But today the SC has become the most powerful court in the world. It has gone beyond interpreting of law and is involved in governance issues like BCCI, pollution, permissible height of Dahi Handi during Janmashtami and liquor sale on highways.

Further, the judiciary acts on omission and commission of the executive, individuals and corporate worlds. Some of its decisions have major financial implications.

Read Constitutional issues arising from the telecom, Essar rulings

In public life, perception is more important as reality. Thus, it is imperative for the judiciary to be perceived to be above board. Whilst advocating transparency in public life, the SC must be seen to be leading from the front.

Read Contempt of Court. Time to get rid of this scandalous provision

Drive from Leh to Zanskar Valley is full of adventure. 

8. Can the Higher Judiciary consider itself superior to other arms of the government?

Former secretary-general of the Lok Sabha Subhash C Kashyap wrote in Hindustan Times, “No organ or institution can, therefore, cast itself in the role of a conscience-keeper of the nation or of a superior which can call the duly elected government to order.” 

Do you feel that the SC is stonewalling being transparent on some of issues whilst positioning itself as the only institution that can ensure objectivity and balance in public life?

Just as the Judiciary wishes to keep checks and balances on the Executive, who will do so on the Higher Judiciary.  

To summarise, the current systems perpetuates the pedestal of Your Lordships. Checks and balances, if any, are unknown to the common man.

Read CJI’s remarks on a different accountability yardstick for judges is worrying

How often have you a heard a SC judge talk about a plan to clear backlog of cases for e.g. recent talks Independence of Judiciary, Fundamental rights of citizens or Judiciary and Rule of Law in Advancing Economic Development or Transformative Constitutionalism

Talks are invariably perceived to be about expanding the role of the HJ instead of how to administer justice speedily thereby clearing huge backlog of cases.    

Read Does being Independent mean you are accountable only to yourself

Did Constitution Makers visualize a HJ that -

1. Is accountable to only itself? 

2. Hinders the ease of doing business.

3. Carries forward colonial legacies like vacation policy.

4. Is extending its sphere of influence outside judicial matters? Not to forget Judges appointing Judges.

5. Gets involved in matters by taking suo-motto cognizance thereby creating, inspite of good intent, a parallel power centre. An organization cannot have 2 Chief Executive Officers.     

6. Would be sole and final interpreter of the Constitution?

You reflect and decide.

Every pillar of India’s democracy has a role to play! None is Supreme and can claim to know all.

Read SC forms Committee to oversee import-transfer of Wild animals in India N Can the Vacation Policy of the Supreme Court give up its colonial legacy? N Decoding Vaccine Pricing and Supply

Errors, if any are unintended. Do mail with sources, and if found admissible, shall gladly correct the errors.

First published in Swarajyamag and here

Also read

1. Efficient judicial system shall improve ease of doing business

2. Dialogic Jurisdiction: A Step towards Constitutional Crisis by Judicial Overreach

3. Dear CJI – Indians have lost faith in the judiciary 

4. Producing vaccine is not like making 2 minute noodles

5. Constitutional issues arising from telecom, essar rulings

6. Mandatory declaration of assets by judges shall increase transparency

7. Tax laws should be the same for all Indian citizens

8. Judicial Rush to save Investors is misplaced

9. Why India needs Urgent Reform in Higher Judiciary   

10. Why district judiciary needs to be better understood

11. Why these deputations by CJI are raising eyebrows in legal circles

12. Controversial judicial remarks 2021

13. Calcutta HC moves SC against a single bench order

14. Judges must know their limits, not act like emperors says SC

15. Supreme Court appointed committee submits report on farm laws-yet to be made public

16. Challenges for Judiciary

17. Judges in controversy, courtesy judges

18. What causes Judicial Delay

19. SC does not need more judges

20. SC turns to Delhi Police to curb corruption in its Registry

21. Judiciary should be independent and accountable

22. How women face and negotiate sexism in courts

23. The SC must avoid turning into the executive

24. The non-trivial cost of a slow judiciary

25. As row rages Justice Khanna and Maheshwari appointed as SC Judges