Should Judges Have Fixed Pension & Uniform Pay Conditions Across All States? Should NPS Apply? Supreme Court Hears Issue

The Supreme Court today (January 8) orally remarked that the Court's hands are not tied if the judiciary is not provided with adequate infrastructure and service conditions including salary and pensionary benefits.

"Normally we would not issue any writ that you provide us with this budget or that budget which is within the domain of the executive. But suppose if the executive totally neglects in providing infrastructure to the judiciary, should we tie our hands and sit back? Normally we don't enter into the domain of the legislature or the executive but the in the circumstances which warrants the court to [do otherwise], it would always be justified in invoking Article 142" this observation was made in the context of the Court exercising Article 142 powers.

At the outset, the Court clarified: "We are restricting our scope of enquiry only to two aspects: whether as a unified judiciary, there has to be same paying conditions for all levels of judges in all the States and secondly, to ensure the independence of the judiciary is maintained, whether fixed pension is necessary or not..."

The Union, represented by Attorney General for India R. Venkataramani, has maintained that to consider if there could be a unified pension scheme where there is no hierarchy, it calls for a "larger constitutional rearrangement".

A bench of Justices B.R. Gavai and AG Masih is currently hearing the case in a writ petition filed by the All India Judges Association raising the issue of whether judges should be governed by the old pension scheme (OPS) or the 2003 new national pension scheme (NPS) where there is no fixed pension for members of the district judiciary. The Court is deliberating whether a unified pension scheme could be applied to the judiciary throughout the country.

Under the OPS, the pension is fixed with no contribution from the employee. Whereas, under NPS, both the employee and the central government make a defined contribution during the service of the employee. The same bench is also apprised of another matter in which a writ petition is filed by retired Judge-Justice Ajit Singh of the Allahabad High Court, who has been receiving nearly Rs.15,000 as pension under the NPS.

Currently, States based on their discretion have applied either the OPS or the NPS. As per the submissions of the Senior Advocate and Amicus K. Parameshar, Tamil Nadu is the only State that has its pension scheme.

Parameshar has argued that since the judiciary is unitary in nature, there could be a unified pension scheme for judges which would ensure a fixed pension. He argued that this would be an aspect linked to the independence of the judiciary. In one of the hearings, Parameshar mentioned that the Union Government apparently has distinguished between elevation of judges from the Bar and Bench in extending pensionary benefits.

Venkataramani has stated that States siding with either pension scheme have their own "legitimate reasons". He argued that if a pension scheme is to be applied uniformly, it will put "financial constraints" on the Union.

Venkataramani referred to the 2nd National Judicial Pay Commission, which was against the application of the NPS to the higher judiciary, and reiterated that the new pension scheme was implemented as a reform to "mitigate the unsustainable fiscal burden of the old pension scheme".

He said: "Old pension scheme creates significant inter-generational inequities by imposing an unsustainable fiscal burden on future generations and guarantee fixed-funded pension entirely funded by governmental revenues without employees contribution, leading to growing liability and reducing investments in protective sectors...Your Lordship will see, only after the 2nd National Judicial Pay Commission, which is a watershed [such issues came into being]. Prior to that, the question was bringing uniformity in the conditions of service...Prior to NJPC, nobody could argue against the independence of judiciary principle and security of conditions etc."

The Attorney General added that he hopes the Court will not to the extent of stating that based on the Commission, any State which applied the new pension scheme is wrong.

-He stated that there has to be a balancing exercise to be done by the Court while considering this issue and that too on "board parameters". He pressed that the Court should not consider "dismantling" the current system in place.

To this, Justice Gavai said: "We are not stalling anything. We are only considering as to whether the judiciary has a whole could be considered as a separate class in order to ensure its unitary character and in order to ensure its independence. Whether there has to be an assured pension scheme or not."

The hearing will continue.

Case Details: ALL INDIA JUDGES ASSOCIATION Vs UNION OF INDIA., W.P.(C) No. 643/2015