Constitution of India
Article 221: Salaries, etc., of Judges
Part VI — The States (Chapter V — The High Courts in the States)
Clause (1) — Salaries of High Court Judges
WHAT IT SAYS: Judges of each High Court shall be paid such salaries as Parliament may determine by law; until such law is made, salaries shall be as specified in the Second Schedule. WHAT IT MEANS: 1. Parliament — not the State Legislature or the Executive — has exclusive power to fix HC judges' salaries. 2. The Second Schedule acts as an interim/default salary framework until Parliament legislates. 3. After the 54th Amendment (1986), Parliament can revise salaries by ordinary law — no constitutional amendment needed. KEY DOCTRINE: Doctrine of Financial Independence of the Judiciary — salary determination by Parliament (not Executive) secures judicial independence. AMENDMENT HISTORY: 1. Original Clause (1) (1950): 'There shall be paid to the Judges of each High Court such salaries as are specified in the Second Schedule.' — Salaries were fixed only in the Schedule. 2. Substituted by the Constitution (54th Amendment) Act, 1986, Section 3 (w.e.f. 1-4-1986) — added the words 'as may be determined by Parliament by law' to enable future salary revision without amending the Constitution.
Clause (2) — Allowances, Leave, and Pension
WHAT IT SAYS: Every Judge is entitled to allowances, leave of absence rights, and pension as determined by or under law made by Parliament; until so determined, as specified in the Second Schedule. Proviso: Neither allowances nor rights regarding leave or pension shall be varied to a Judge's disadvantage after appointment. WHAT IT MEANS: 1. Parliament controls all non-salary emoluments — allowances, leave, pension. 2. The Second Schedule serves as the default until Parliament legislates. 3. The Proviso creates a constitutional guarantee: no post-appointment detrimental variation. 4. This is a safeguard against political retaliation — a judge's conditions of service cannot be worsened once appointed. KEY DOCTRINE: Non-Detriment Guarantee / Protection against disadvantageous variation — once a Judge is appointed, their financial terms form a constitutional floor.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 221 (read with Seventh Schedule, Part VII) Original provision: Salaries of High Court Judges in British India were fixed by Order in Council and could not be varied to their disadvantage during tenure. What India kept: The structure of fixing salaries in a Schedule with a non-detriment proviso was retained almost verbatim. 2. Article III, Section 1 of the US Constitution Original provision: Compensation of federal judges 'shall not be diminished during their continuance in office.' What India kept: The principle that judicial salaries shall not be reduced — adapted into the proviso to Clause (2). INDIA'S SPECIFIC ADAPTATIONS: 1. Parliament (not the Executive) determines salaries — Unlike the 1935 Act where the Crown fixed terms, India vested this power in the Legislature to ensure democratic accountability. 2. Second Schedule as interim framework — Framers provided a constitutional default so judges would never be without specified pay, even if Parliament delayed legislation. 3. Charging salaries on Consolidated Fund of the State (Art. 202(3)(d)) — Removes the need for annual vote, insulating pay from legislative bargaining. 4. The 54th Amendment (1986) enabled Parliament to revise salaries by ordinary law — Original clause fixed salaries only in the Schedule, making every revision a constitutional amendment.
Constituent Assembly Debate
DEBATED ON: 1 August 1949 (CAD Volume IX) DRAFT ARTICLE: Draft Article 197 (renumbered as Article 221) KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Proposed to wholly replace Draft Article 197 to make it correspond with Draft Article 104 (Article 125, salaries of SC Judges). 2. The amendment was adopted without debate — No significant opposition was recorded. MAJOR DISAGREEMENTS: None recorded — the amendment was accepted without dissent. FINAL OUTCOME: Dr. Ambedkar's substitute clause was adopted, prescribing that HC Judges' salaries would be as specified in the Second Schedule, with allowances, leave, and pension determined by Parliament, subject to the non-detriment proviso. AMBEDKAR'S KEY POSITION: Dr. Ambedkar emphasized that Draft Article 197 needed to correspond with Draft Article 104 (for SC Judges) to ensure uniformity in the constitutional framework governing judicial compensation across the higher judiciary.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Union of India v. Sankal Chand Himatlal Sheth (1977) — SC held that HC judges' salaries under Article 221(1) are specified in the Second Schedule and cannot be varied without constitutional amendment (pre-54th Amendment); proviso to Art. 221(2) prevents disadvantageous variation of allowances, leave, or pension after appointment. 2. Union of India v. Gurnam Singh (1982) — SC upheld a retired HC Judge's claim to cash equivalent of leave salary, holding that Article 221(2) entitled judges to benefits determined by Parliament including via rules under the HC Judges Act, 1954. 3. Union of India v. Pratibha Bonnerjea (1995) — SC held that HC Judges are not 'employees' holding posts under Union/State; they are constitutional office holders whose salary is specified in the Second Schedule via Article 221 to preserve independence. 4. All India Judges' Association v. Union of India (1993) — SC emphasized that financial neglect of the judiciary erodes public confidence; stressed that judges' service conditions must be reviewed by an independent commission — principle equally applicable to higher judiciary under Art. 221. 5. Justice Shailendra Singh v. Union of India (2024) — SC held that Article 221 does not permit discrimination between HC Judges based on their source of recruitment (Bar or service); all judges form one homogeneous class of constitutional office holders. NOTABLE DISSENTS: None of major significance directly on Article 221. SCHOLARS & JURISTS: 1. Granville Austin — Observed that financial independence of judges is integral to the separation of powers, and without economic security the independence of judiciary remains incomplete. 2. Justice P.B. Sawant (in All India Judges' Assn. 1993) — Stated that judges are not employees but holders of public offices exercising sovereign judicial power; their financial conditions must reflect this constitutional status.