D: Provisions as to the Judges of the Supreme Court and of the High Courts

Articles 48 (3), 62 (6), 79, 104, 124 (2), 135 (3), 145 (5), 163 and 197, Draft Constitution of India 1948

PART IV- PROVISIONS AS TO THE JUDGES OF THE SUPREME COURT AND OF THE HIGH COURT

10. There shall be paid to the judges of the Supreme Court and of each High Court within the territory of India except the States for the time being specified in Part III of the First Schedule in respect of time spent on actual service salary at the following rates per mensem, that is to say:

Provided that if a judge of the Supreme Court at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or any of its predecessor Governments or. under the Government of a State for the time being specified in Part I of the First Schedule or any of its predecessor Governments, his salary in respect of service in the Supreme Court shall be reduced by the amount of that pension

11. The Chief Justice or any other judge of the Supreme Court or a Chief Justice or any other judge of a High Court within the territory of India except the States for the time being specified in Part III of the First Schedule shall receive such reasonable allowances to reimburse him for expenses incurred in travelling on duty within the territory of India and shall be afforded such reasonable facilities in connection with travelling as the President in the case of the Chief Justice or any other judge of the Supreme Court, or the Governor of the State in the case of the Chief Justice or any other judge of such High Court, may from time to time prescribe.

12.

(1) The rights in respect of leave of absence or pension of the Chief Justice or any other judge of the Supreme Court shall be governed or shall continue to be governed, as the case may be, by the provisions which were applicable to any such judge of the Federal Court.

(2) The rights in respect of leave of absence or pension of the Chief Justice or any other judge of a High Court within the territory of India except the States for the time being specified in Part III of the First Schedule shall be governed or shall continue to be governed, as the case may be, by the same provisions which were applicable immediately before the commencement of this Constitution to any such judge of such High Court.

(3) For the purposes of this paragraph, a person who was serving as an ad hoc judge, acting judge or additional judge at the commencement of this Constitution shall be deemed to have been serving as a judge at that date if, but only if, his service as such ad hoc judge, acting judge, or additional judge continued without interruption until his subsequent permanent appointment as a judge.

13. In this Part, unless the context otherwise requires,

(a) the expression “Chief Justice” includes an acting Chief Justice, and a “Judge” includes an ad hoc judge, an acting judge and an additional judge;

(b) “actual service” includes-

(i) time spent by a judge on duty as a judge or in the performance of such other functions as he may be directed by the President or the Governor, as the case may be, or by the Commission appointed under article 289 of this Constitution to discharge;

(ii) vacations, excluding any time during which the judge is absent on leave; and

(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.

Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221, Constitution of India 1950

9.

(1) There shall be paid to the Judges of the Supreme Court, in respect of time spent on actual service, salary at the following rates per mensem, that is to say:—

Provided that if a Judge of the Supreme Court at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor Governments, his salary in respect of service in the Supreme Court shall be reduced by the amount of that pension.

(2) Every Judge of the Supreme Court shall be entitled without payment of rent to the use of an official residence

(3) Nothing in sub-paragraph (2) of this paragraph shall apply to a Judge who, immediately before the commencement of this Constitution,—

(a) was holding office as the Chief Justice of the Federal Court and has become on such commencement the Chief Justice of the Supreme Court under clause (1) of article 374; or

(b) was holding office as any other Judge of the Federal Court and has on such commencement become a Judge (other than the Chief Justice) of the Supreme Court under the said clause,

during the period he holds office as such Chief Justice or other Judge, and every Judge who so becomes the Chief Justice or other Judge of the Supreme Court shall, in respect of time spent on actual service as such Chief Justice or other Judge, as the case may be, be entitled to receive in addition to the salary specified in sub-paragraph (1) of this paragraph as special pay an amount equivalent to the difference between the salary so specified and the salary which he was drawing immediately before such commencement.

(4) Every Judge of the Supreme Court shall receive such reasonable allowances to reimburse him for expenses incurred in travelling on duty within the territory of India and shall be afforded such reasonable facilities in connection with travelling as the President may from time to time prescribe.

(5) The rights in respect of leave of absence (including leave allowances) and pension of the Judges of the Supreme Court shall be governed by the provisions which, immediately before the commencement of this Constitution, were applicable to the Judges of the Federal Court.

10.

(1) There shall be paid to the Judges of the High Court of each State specified in Part A of the First Schedule, in respect of time spent on actual service, salary at the following rates per mensem, that is to say:—

⁠(2) Every person who immediately before the commencement of this Constitution—

(a) was holding office as the Chief Justice of a High Court in any Province and has on such commencement become the Chief Justice of the High Court in the corresponding State under clause (1) of article 376, or

(b) was holding office as any other Judge of a High Court in any Province and has on such commencement become a Judge (other than the Chief Justice) of the High Court in the corresponding State under the said clause,
shall, if he was immediately before such commencement drawing a salary at a rate higher than that specified in sub-paragraph (1) of this paragraph, be entitled to receive in respect of time spent on actual service as such Chief Justice or other Judge, as the case may be, in addition to the salary specified in the said sub-paragraph as special pay an amount equivalent to the difference between the salary so specified and the salary which he was drawing immediately before such commencement.

⁠(3) Every Judge of a High Court shall receive such reasonable allowances to reimburse him for expenses incurred in travelling on duty within the territory of India and shall be afforded such reasonable facilities in connection with travelling as the President may from time to time prescribe.

⁠(4) The rights in respect of leave of absence (including leave allowances) and pension of the Judges of the High Court of any State shall be governed by the provisions which, immediately before the commencement of this Constitution, were applicable to the Judges of the High Court in the corresponding Province.

11. In this Part, unless the context otherwise requires,—

(a) the expression “Chief Justice” includes an acting Chief Justice, and a “Judge” includes an ad hoc Judge;

(b) “actual service” includes—

(i) time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertake to discharge;

(ii) vacations, excluding any time during which the Judge is absent on leave; and

(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.

The Second Schedule of the Draft Constitution 1948 (Second Schedule of the Constitution of India 1950) was discussed in the Constituent Assembly on 11 and 12 October 1949. This schedule is divided into 5 different parts containing the salaries and allowances earmarked for the President, Governor of States, Union and State Ministers, Speaker and Deputy Speaker of the Parliament, Chairman and Deputy Chairman of the Council of States, Speaker and Deputy Speaker of Legislative Assemblies and Legislative Councils of States, Judges of the Supreme Court and High Court and finally, the Auditor-General of India.

The Chairman of the Drafting Committee started the debate by outlining the rationale for fixing the salaries and allowances for the different positions as they were. A few members were of the opinion that the President, the Governors and members of Parliament and Legislative Assemblies must serve their duty without taking a salary. They saw it as setting an example of selfless service and sacrifice, that would be more in conformity with India’s ancient culture and civilization. Another member found this demand to be ridiculous. He stated that the President and Governor-General were also administrative heads and it was only reasonable that they would draw at least a small salary to carry out their duties.

One member was worried that the Constitution was reducing the pay of Judges of the Supreme Court and High Court compared to what they were receiving prior to the Constitution coming into force. He maintained that Judges were eminent specialists who were entitled to a pay proportional to the intense intellectual work they did. In opposition to this sentiment, another member expressed concern that the Judges were being paid too much, especially in relation to the average income of an ordinary Indian citizen. A member was also of the opinion that the Judges were being treated too lavishly by the Constitution through the numerous allowances and remarked that this was not consistent with the dignity of the Constitution.

In response to these concerns, a Drafting Committee member defended the Schedule stating that the salaries of the Judges were fixed keeping in mind, ’the dignity, the efficiency and the independence of the judiciary.’ He informed the Assembly that the Committee also took into consideration the salaries of Judges in many other countries. The Drafting Committee Chairman added that certain provisions such as a free house for a Supreme Court Judge was necessary. As Judges came from different parts of the country, it would be inappropriate to task them with finding a home with their own resources. On the question of their salary, he argued that since the number of suitable people who could function as a Judge was limited, the salary fixed for this post was at a higher level.

Despite these contestations, the Second Schedule as amended by the Drafting Committee Chairman was adopted as part of the Constitution on 12 October 1949.