Wednesday, October 14, 2009

What ails the Indian Judiciary: Part I

Volumes have been written by many authors on what ails the Indian Judiciary, such articles always begin with the large number of cases pending in the courts (the figure passed around is around 30 million or 3 crore). Most authors would then draw the following reasons as the Achilles’ heel (or rather heels):

However rarely would such an article (except few) provide some hard data (except that 3 crore figure) to substantiate their arguments. So why not look at such issues one by one and use more empirical data to back up such assertions. As first part we would first look at the issue of less incentive.

We divide the issue into 2 parts monetary and promotion (& appointment). Again there are two sides of the story one for the higher judiciary (Supreme Court and the High Court) and the lower judiciary (the district court, taluka courts etc.). After repeated increase in emoluments the present salary of a higher judiciary judge is one of the best in public office.

As per section 12A of the Act and the Rules Governing the Service Condition of Supreme Court Judges the CJI gets a per month salary of 1 lakh INR and the other Supreme Court judges get Rs. 90,000 pm. Apart from this he gets other perks like car (with 200 lit. petrol/diesel; sec. 22B), security guard, cleaner, orderly, PA, steno, drivers, residence (usually at Lutyen’s Delhi), free telephone, travelling allowance, sumptuary allowance etc. As per section 13A of the Act and Rules governing the service conditions of High Court Judges, Chief Justice of the High Court draws a salary of Rs. 90,000 and his brother judges draw a salary of Rs. 80K pm apart from the similar perks (discount the Lutyen’s bunglow but similar in what the state capital has to offer). After the end of judicial career the SC and HC judges retire with a handsome pension package (but they have barriers on commercial law practice but can always give legal opinions). Thus we can surely discount (in higher judiciary) lack of monetary incentive as an Achilles’ heel (though the judges still should feel economically vulnerable as there are advocates in the SC and HC who earn 1 lakh a day). Now let us look at the lower judiciary. Padmanabhan Committee had suggested that the starting salary of a civil judge (junior division) is expected to be around Rs 35,000, a hike of nearly Rs 24,000. As per Justice Padmanabhan’s recommendations, salary of civil judge (senior division) would be around Rs 45,000, which means a hike of around Rs 30,000. Similarly, the salary of district judge (entry level) would be around Rs 60,000 and that of District Judge Rs 70,000. The salary is always topped with other similar perks like car, driver, orderly, telephone, residence etc. (unlike in higher judiciary the sum total of benefits to a lower judiciary is much more than advocates practicing there).

However money is not always the end all, this brings us to the second issue of promotion. One of the major reasons why many law students don’t choose a career in lower judiciary is because the scope for promotion to the top spot (CJI) is ZERO. Let us look at the way judges are appointed in India. For lower judiciary one gives a competitive examination and gets in there are usually two types of examination one which a fresh law student can sit for entering as second class judicial magistrate (the lowest rank that Indian judiciary has to offer) another exam which a bit experienced lawyers (usually means having a bar license for 3-5 yrs) can take is for post of Assistant District Judge. Most of the promotions are based on seniority. For appointment into SC the process was once laid in Art. 124 of the Constitution which ran ‘Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose’. We would come to the contemporary meaning later but before that let us look at the route to appointment as HC judges. HC Judges are appointed under Art. 217 of the Indian Constitution which states that ‘Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court’. Now who are eligible for selection under Art. 217(2) any judicial officer or an advocate having 10 yrs experience. Thus the makers of constitution had envisaged a judiciary where even lower judiciary officers would have a say in how higher judiciary should be run and to take in the experience from the field to the appellate level so that the higher judiciary does not become an ivory tower. However recent statistics as released by Department of Justice, Ministry of Law and Justice shows a completely different picture, about 2/3rd of the HC judges are from Bar.

Click on the table or chart to enlarge (Opens in the same tab)

Now keeping aside Art. 124 in SP Gupta Case and the Advocates on Record Association vs Union of India the Court decided that all promotions to SC would be based on the number of years of service as HC judge. and the collegium model of appointment from Bar to Bench. Thus at one stroke all the career years accrued by the lower judiciary judges who somehow have managed to squeeze into the HC is whitewashed. This would tilt the chances of getting into SC for a service judge to a big zero. Look at another statistics pulled out from the Handbook on Judges of the Supreme Court of India and the High Courts:

Click on the graph above to enlarge (opens in the same tab)

This graph does not show the seniority based retirement but strongly indicates that a service judge would always remain inferior experience wise to his colleagues who have been elevated from the Bar. Thus statistically speaking the lack of incentive for lower judiciary judges to aim to perform at the highest level is one of the factor which is responsible for sluggishness of the Indian Judiciary.


  1. Hi, Thats a very interesting article. Is there a part 2 to this? would love to see it

    My question is- are things changing for the service? is there talk of increasing the ferequency of their promotions?