INDIA Supreme Court of India All India Judges' Association V. Union of India

Supreme Court of India All India Judges' Association v. Union of India (Before M.N. Vekatiachaliah, A.M. Ahmadi and P.B. Sawant JJ.) In Writ Petition No. 1022 of 1989

Judiciary at all levels performs sovereign functions and is superior in status to and a class separate from the administrative executive- therefore entitled to claim conditions of service commensurate with its status.

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Facts

In a judgment delivered by the Supreme Court in the above writ petition on I3 November 1991, the Court gave specific directions to the Governments concerned to improve the service conditions of the members of the subordinate judiciary in the country as regards the following matters. 1. uniformity in the judicial cadres in the different States and Union territories; 2. an appropriate enhanced uniform age of retirement of judicial officers through- out the country; 3. uniform pay scales as far as possible; 4. residential accommodation for judicial officers; 5. transport facilities and conveyance allowance; 6. adequate perquisites by way of library allowance, residential office allowance and expenses allowance 7. provision for in-service training; The administration of justice and organisation of Courts had been a provincial (State) subject under the Government of India Act, 1935 and the same scheme was adopted by the Constitution of India by listing, in Entry 3 of List II of the Seventh Schedule, the administration of justice, and the Constitution and organisation of all Courts other than the Supreme Court of India and the High Courts as a State subject. However, the amendment of the Constitution in 1977 deleted this entry from the State List and the subject was transferred to the concurrent list as Entry I I-A as a result of the recommendation of the Law Commission that an All India Judicial Service should be set up. Prior to independence, the District Judge was invariably a member of the Indian Civil Service and his position in the district was superior to that of the District Magistrate. This position continued until the Indian Civil Service came to be abol- ished in 1946-47. The long association resulted in the judicial and civil service being linked. Criminal justice at that time was handled by magistrates who belonged to the executive. The concept of the "rule of law'' came to be accepted and developed under the Constitution. Article 50 prescribed the guidelines for separating "the judiciary from the executive in the public services of the State". This position was the outcome of recognition of the fact that the judiciary is a class separate from the executive. Since the adoption of the Constitution, the control over the subordinate judiciary has been vested in the High Court and the administrative control has been con- strued to be complete and exclusive. However, in certain aspects, and particularly in regard to service conditions, the distinction has not been maintained. In its fourteenth report in 1958, the Law Commission of India recommended the setting up of an All-India Judicial Service through the methods of competitive tests or examinations from among the graduates who had taken a law degree, bringing to the subordinate judiciary capable men so that the subordinate judiciary would be constituted from the best talent available in the country. In the case of the lower judiciary, there could be recruitment by similar tests held at the State level. Those eligible for these would be graduates who had taken a law degree and the require- ment of practice at the bar should be done away with. Recruitment to the higher judiciary at the All- India level in the manner suggested would be a powerful unify- ing influence and serve to counteract the growing regional tendencies and would be in accordance with the observations made by the States Reorganisation Com- mission for the creation of the All-India Services for similar purposes. The Com- mission also recommended intensive training of the selected candidates in criminal, administrative and civil law and criminal administration, before they took over their duties as judges. Such training was also to be given after their promotion to the higher cadre.To overcome the argument that the institution of an All-India Judicial Service might affect the constitutional provisions regarding the consulta- tion of the appropriate High Court under Article 235, the Commission recommended that necessary amendments be made to the relevant articles, if required. In view of the more or less uniform functions performed by the judicial officers so variously designated, the Commission considered it to be advisable to aim at uniformity of designation. In this connection, reference was made to Article 236 of the Constitution, which defined the expression 'District Judge' to include a Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistance District Judge, Chief Judge of a small Causes Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge. This definition in Article 236 covered the higher section of the State Judicial Service both in the civil and the criminal side and the hierarchy of judges could similarly be worked out even as regards the junior divi- sion of the judiciary. In its 1991 judgment the Supreme Court expressed its inclination to adopt the view of the Law Commission. Thereafter, the Court considered the retirement age of the Judges and suggested that the retirement age be raised to 60 years, keeping in view earlier decisions of the Court that, since the Judges enter employment at a fairly late age, their retirement age should be correspondingly higher.