This Court has dealt with three different Judicial Pay
Commissions and has evolved certain principles, which form the underpinning
of judicial pay, pension and allowances. The first principle is that a unified
judiciary requires uniform designations and service conditions
of judicial officers across the country. The second principle is that
the independence of the judiciary requires that pay of judicial officers
must be standalone and not compared to that of staff of the political
executive or the legislature. The third principle is that the
independence of the judiciary, which includes the District Judiciary, is part
of the basic structure of100 the Constitution. The fourth principle is that the access
to an independent judiciary enforces fundamental rights guaranteed under
Part III120 of the Constitution. The fifth principle is that the essential
function of all judicial officers in the District Judiciary and judges of the
High Court and this Court is essentially the same.
India has a unified judiciary under the scheme of the
Constitution. A unified judiciary necessarily entails that the service
conditions of judges of one state are equivalent to similar posts
of judges of other states. The purpose of this constitutional scheme is
to ensure that the judicial system200 is uniform, effective and efficient in its functioning. Efficient
functioning necessarily requires judges of calibre and capacity to be provided
with the right incentives and promotion opportunities to maintain the
high level of functioning of the judiciary.
The judiciary in240 this country is a unified institution
judicially, though not administratively. Hence uniform designations and hierarchy,
with uniform service conditions are unavoidable. The further
directions given, therefore, should not be looked upon as an
encroachment on the powers of the executive and the legislature to determine
the service conditions of the judiciary. They are directions to perform the
long overdue obligatory300 duties.
Separation of powers demands that the
officers of the Judiciary be treated separately and distinct from the
staff of the legislative and executive wings. It must be remembered the
judges are not employees of the State but are holders of public office who
wield sovereign judicial power. In that sense, they are only comparable
to members of the legislature360 and ministers in the executive. Therefore, parity cannot be
claimed between staff of the legislative wing and executive wing with officers
of the judicial wing.
This Court in the case of All India Judges' Association vs.
Union of India, explained400 the distinction and held that 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. Thus, there
cannot be any objection that judicial officers receive pay which is not
at par with executive staff. In this context, it may also be
remembered that Article 50 of the Constitution directs the State to take steps to
separate the judiciary from the Executive.480
This distinction is also important because judicial independence
from the executive and the legislature requires the judiciary to have a500 say in matters of their finances.
This Court has previously noted that theoretically, allowing the
Executive to decide the pay of the judiciary may lead to unintended
consequences. Therefore, to secure true independence of the judiciary, this
Court has recognized that the pay of judicial officers is separate and distinct
from the pay of staff of other wings of the State.
This is nothing but an articulation
of the doctrine of inherent powers. This doctrine mandates that the
judiciary must possess the inherent power to compel payment of those sums of
money which are reasonable and necessary to carry out600 its mandated
responsibilities, and its powers and duties to administer justice. This
doctrine is only the logical conclusion of separation of powers and
ensures that the independence of the judiciary is secured.
The submission of the states that there is640 a paucity of financial
resources must be examined from this aspect of the matter. The states
and the Union have repeatedly stated that the burden on the financial resources
of the states and the Union due to the Report of the Second National
Judicial Pay Commission is significant and, therefore, the Report cannot be
implemented. Without the doctrine of inherent700 powers, any de-funding of the
Judiciary cannot be repelled.
Apart from this, Judicial Officers have been working without a pay720 revision for nearly 15 years. A pay
revision has been recommended in accordance with the law laid down by
this Court and a report submitted by a Judicial Pay Commission after
considering this very objection. This Court has also examined this issue of
paucity of financial resources on at least three occasions in these very
proceedings.
In the Order dated 28.02.2020, which took cognizance of the Report
of the Second National Judicial Pay Commission,800 this Court stated that it hoped
that the same objections, which have been rejected by this Court in the
case of All India Judges Association vs. Union of India, will not be re-agitated.
The Court in the aforesaid judgment observed840 that compared to the other plan
and non-plan expenditures, the financial burden caused on account of the
directions given therein are negligible. However, the states and the
Union raised this objection in their affidavits before this Court.
After going through the affidavits of the states and the Union,
this Court on 27.07.2022 found that900 in contrast to the 7th Central Pay Commission, which was
implemented from 01.01.2016, judicial officers have not received any
similar benefit. Thus, the Court held that there is a need to at least
implement the revised pay structure immediately so as to alleviate
the sufferings of the judicial officers. The Court, after considering the
objections of the Union and the960 states rejected the same and accepted the revision of pay structure
as recommended by the Second National Judicial Pay Commission. Aggrieved
by the acceptance of the Report, the Union filed a review petition1000 before this Court.
This Court by Order dated 05.04.2023 dismissed the review
petitions and found that the financial implications cannot be considered
as excessive in view of the information given by the Second
National Judicial Pay Commission. Still, the states and the Union have
raised this objection after its express rejection twice over. The rejection of
their objection is also reiterated. Judicial Officers cannot be left in
the lurch for prolonged periods of time without a revision of pay on an
alleged paucity of financial resources.1093
