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838 Raoand the States, and, subject to the other provisions of Chapter Iof Part XIV, regulatethe recruitment, and the conditions of service of persons appointed, to anysuch service.Under article 309, the recruitment and conditions of service of themembers of the subordinate judiciary are to be regulated by the Acts of the appropriateLegislature, and, pending such legislation, the President and the Governoror their nominees, as the casemay be, are empowered to make rules regulatingtheir recruitment and the conditions of service.In 1991, the Supreme Court gave certain directions to improve the service con-based on the recom-ditions of the members of the subordinate judiciary largelymendations of the Law Commission of India made in its 14th Report prepared in1958.160 Upon filing of review petitions, the Court considered the matter again in1993 and gave modified directions.161 The Union of India contended that the serviceconditions of the subordinate judiciary are a matter of policy and the authorityto prescribe them is vested in the Legislature and t*he Executive, that the implementationof the directions given by the Court would place a very heavy financialburden on the public exchequer and might generate. similar demands by theother services, etc. Rejecting the arguments, the Court observed that the membersof the judiciary are comparable to the Council of Ministers and legislators and, accordingly,stand on a higher footing than the members of the other services, thatthe society has a stake in ensuring the. independence of the judiciary and, therefore,the judges cannot be kept in want, that, though article 309 only gives powerto the Executive and the Legislature to prescribe the service conditions of the judiciary,it would be in the interests of the independence of the judiciary to allowthe judiciary to play a role in this behalf, and that, if the Executive and the Legislaturealone are allowed to deal with the matter by virtue of article 309, they mayuse that power "to turn and twist the tail Of the judiciary". The Court then proceededto give directions related to setting up of All India Judicial Service, raisingof superannuation age of judicial officers up to 60 years, uniformity in payscales,grant of residence-cum-library allowance, provision of conveyance, in-servicetraining, etc.; it specified time-limits for implementing these directions. The viewof the Court that article 309 can be breached by it in the interests of the independenceof the judiciary is a dangerous proposition and raises the question whetherthe Court sees its role as the protector of judicial independenceConstitution of India. The Court obviously made up itsrather than of themind that the lot of thejudicial officers needed to be improvedand laid downfanciful theories in supportthereof.160All India judges' Association v. Union of India, AIR 1992 SC 165.161All India Judges'Association v. Union of India, AIR 1993 SC 2493.http://www.zaoerv.de© 1998, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
containinginsertedUse and Abuse of the Indian Constitution 839In K Veeraswami v.(iii) Criminal cases against judgesUnion of India,162 the Supreme Court, while declaring thatthe Prevention of Corruption Act, 1947, applied even to the judges of the SupremeCourt and of the High Courts, held that, in order toprotect the independenceof the judiciary, it was'essential that no criminal case shall be registeredunder section 154 of the Code of Criminal Procedure against such a judge, unlessthe QJ1 is consulted and he assents to such an action being taken. The Court observedthat the apprehension that the Executive, being the largest litigant, is likelyto misuse the power to prosecute the judges seems to be "not unjustified or unfounded".The need for obtaining the assent of the QJI was thus introduced intothe Act not by Parliament but by the Supreme Court; it amounted to enacting anew law outside the scope of the Act.163If the Supreme- Court is correct in assuming that the other organs of the Statecannot be trusted when the matter involved is one of judicial independence itcould well lead to a situation in which one could have misgivings as to how theQJI would act in a case where one of his own colleagues is sought to be prosecutedon charges of corruption. Decisions in such matters, needless to say, have tobe based on "trust" and not "mistrust".(iv) Belittling administrative tribunalsIn L. Cbandra Kumar v. Union of India,164 the Supreme Court swiped at arti-in the Constitution with effectcles 323A and 323B of the Constitution-from 3 January 1977 -enabling provisions for the establishment of administrativetribunals. Pursuant to article 323A, Parliament enacted the AdministrativeTribunals Act, 1985, for the resolution of service disputes and for the exclusionof the jurisdiction of all courts, except the jurisdiction of the SupremeCourt under articles 32 and 136 of the Constitution. Article 323A was inserted inthe Constitution by the Constitution (Forty-second Amendment) Act, 1976, toprovide for the expeditious disposal of service disputes by tribunals which are notbound by strict rules of procedure or of evidence.The validity of the aforesaid Act was first considered by the Supreme Court in1985 in the Sampatb Kumar case,165 wherein a 5-Judge Constitution Bench directedthe carrying out of certain measures with a view to ensuring the functioningof the Central Administrative Tribunal along constitutionally sound principles.The Act was amended by Act 19 of 1986 to bring about the changes prescribedby the Court. Following the order of the Supreme Court in 1987,166 theAct was again amended. It was felt,thereafter, that the constitutional validity of162(1991) 3 SCC 655.163 See also the dissenting judgment of Ve r m a, J., in Veeraswamy case, (1991) 3 SCC 655, 727.164Supra note.29.165Sampatb Kumar v. Union of India, (1985) 4 SCC 458.166(1987) 1 SCC 124.http://www.zaoerv.de© 1998, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
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