Beyond The Collegium: Issues Involving Higher Judiciary That Won't Go Away

This article is not about the collegium system that occupies maximum mind space but looks at important matters with respect to the higher judiciary.

The government of India has three arms — the legislature (which passes laws), the executive (the law implementers) and the judiciary (interpreters and adjudicators of the law).

Members of the legislature are elected, the executive is appointed and the judiciary (higher) is self-appointed. 

The intent of this article is to provoke thought and not cast aspersions on the judiciary, individually or collectively.

This article includes articles in the Indian Constitution on the establishment of the Supreme Court (SC), the salaries of judges, the declaration of assets and the applicability of the Prevention of Corruption Act.

The format followed is statement(s) followed by comment in italics. 

At the outset I must state that I am a 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 February 2023 for the appointment of five additional judges as permanent judges of the high courts (HCs) shows space for signatures by the minister of law and justice, besides three collegium members.

A review of the 31 January 2023 resolution for the appointment of two HC chief justices as SC judges is signed by six SC judges with no space for the minister’s counter signature.

There must be a reason for not keeping space for the minister’s signature in the 31 January resolution.

A 17 January 2023 resolution reiterating the appointment of a judge to the Madras HC has excerpts from the Intelligence Bureau report and states that the recommended judge is a Christian.

Comment/Question: Do collegium resolutions mention the religion of the judge and excerpts from IB reports as a norm?

Article 124 has this to say:

(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-thirds 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 the independence of the judiciary.

Note that since the formation of the SC in 1950, impeachments have been very few, almost non-existent.

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.

Justice Ramaswami retired a year later, but did not resign though. (Read: In past, futile removal motion  against SC judge, probe panels for four others)  

Another way of penalising is by forcing a judge to retire or resign. 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 assets cases be kept out impeachment. Instead, corruption in the higher judiciary should be tried as it would be for any other citizen. Read on.

Question: Should there be a faster and apolitical way of impeachment?

2. Article 125 on salaries 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 of Article 221, as determined by Parliament.

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

“Pursuant to the implementation of the report of 7th Central Pay Commission (CPC) by the 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.”

Post approval by the Union Cabinet on 22 November 2017, the revised remuneration for SC Judges was salary Rs 2.5 lakh per month, pension Rs 15 lakh per annum, plus dearness relief, gratuity Rs 20 lakh, furnishing allowance Rs 8 lakh and sumptuary allowance Rs 34,000 per month.

Comment: In order to maintain the independence of the judiciary, the salaries of the higher judiciary can be decided by them. Why does Parliament need to approve their salaries? Why did the Constitution makers envisage that salaries of the 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 similar to members of the Executive and Legislature? 

3. Judges are Constitutional Functionaries!

In 2014, the Registrar General of the 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.”  

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

Did the Constitution makers envisage SC judges to hold a position superior to other functionaries? One must ask this, for a recent SC order 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 making constitutional functionaries accountable? To whom? The higher judiciary cannot claim it is 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 the enforcement of legal contracts, the business environment, foreign investment, 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 consider the importance of courts being important tools for the ease of 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.

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 Department of Justice was 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. Is 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 the higher judiciary. Expert opinion is divided on this. The 1991 SC order in the K Veeraswami case does not provide clarity in simple terms.

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

The 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: If 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.  A February 2023 report states this is a second corruption case (CBI files corruption case against Allahabad HC Judge). For SC judges, the process is the same except that the SC’s in-house probe committee must consist of two members from the collegium, the leader of the opposition and the law secretary. This is necessary for transparency.

Once a corruption case (FIR) is filed against a higher judiciary judge, he or she cannot be impeached under Article 124 (4) (proven misbehaviour and incapacity).

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

No parliamentary approval is required for filing an FIR.

Intent is not to dilute the 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 Chief Justice 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.

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 higher judiciary 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 Department 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’s) 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 Sabha 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, “(A) 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. The asset declarations of former judges (55) were.

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 March 2023 at 3.40 pm and found no voluntary declarations. To know why, read on.

The reason for the lack of asset declarations on the SC site is because the disclosure of any personal information under the 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 the 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.

Alok Prasanna Kumar, Senior Resident Fellow at the Vidhi Centre for Legal Policy, wrote in the Hindustan Times: ‘The door to greater transparency for courts is now shut’.

“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 10 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 the public domain and Prime Minister Modi declared his of assets as on 31 March 2022 , we must ask: Did the Constitution makers visualise a status for the higher judiciary that is higher than democratically-elected representatives and the Prime Minister?

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

I realise that vested interests might harass judges by comparing changes in their assets. Surely, elected representatives are subject to similar scrutiny? If they can cope with it, surely judges can, too? 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 the annual declaration of assets mandatory for all those who receive salaries and pensions from the Consolidated Fund of India? After all, the fund represents public money! Did the constitution makers envisage this special privilege to the higher judiciary?

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

About a decade ago, few would bother to check whether or not judges have declared their assets. But today the SC has become the most powerful court in the world. It has gone beyond interpreting the 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 the sins of omission and commission of the executive, individuals and the corporate world. Some of its decisions have major financial implications.

(Read: Constitutional issues arising from the telecom, Essar rulings)

In public life, perception is as 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)

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

A 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 the above 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 perpetuate the pedestal on which we place Their 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 an SC judge talk about a plan to clear the backlog of cases. In recent talks,  (Independence of Judiciary, Fundamental rights of citizens, or Judiciary and Rule of Law in Advancing Economic Development),  the focus has been on expanding the role of the higher judiciary instead of how to administer justice speedily.

(Read: Does being independent mean you are accountable only to yourself)

Did the Constitution Makers visualise a higher judiciary 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 organisation cannot have two 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.

(Also Read: SC forms Committee to oversee import-transfer of wild animals in India;  Can the Vacation Policy of the Supreme Court give up its colonial legacy? Does being Independent mean you are accountable only to yourself  Decoding Vaccine Pricing and Supply

(Author’s note: Errors, if any, are unintended. Do mail me with sources, and if found admissible, shall gladly correct the errors).