JUDICIAL POLICY FLIP-FLOPS are not uncommon in India, especially in policies regulating the service of subordinate court judges. Only last year, we saw the Supreme Court (‘SC’) reverse its earlier rulings on whether in-service candidates with adequate experience at the Bar and/or in judicial service qualify for direct recruitment into the higher judicial service. The Court also revisited the quota for the Limited Departmental Competitive Examination (‘LDCE’) in All India Judges Association v. Union of India. The latter ruling also reinstated a minimum of three-year practice at the Bar as a qualification for the post of Civil Judge (Junior Division). The SC is now, noting that the three-year practice requirement would affect the representation of women in the judiciary, poised to reconsider this three-year practice requirement, a question it has revisited on multiple occasions since the 1990s in the All India Judges’ Association line of cases.
The SC’s decision to review the minimum practice requirement within a year after its reinstatement appears puzzling. This is because, as noted in the All India Judges Case (2025), most High Courts and state governments concur that three years’ experience at the Bar is essential to enhance the efficiency and quality of judicial administration. In this case, several High Courts and state governments highlighted various other challenges arising from inexperienced judicial officers.
Moreover, the intensive pre-induction judicial training intended to compensate for such inexperience, as recommended by the Shetty Commission and endorsed in the All India Judges Association Case (2002), remains largely unimplemented. There is as yet no systematic, robust empirical study that conclusively establishes the causal impact of relaxing the three‑year practice rule on women’s representation, although emerging commentary underscores its potential negative implications for diversity.
Although the All India Judges Case (2025) and its ongoing review warrant critical examination, this piece does not critique either. Instead, it seeks to address a larger constitutional question: Does the Supreme Court possess the constitutional authority to prescribe policy for state judicial services? This piece concludes that SC’s policy interventions run counter to the express provisions of the Constitution. It further elucidates that the policy interventions undermine the regulatory autonomy and competencies of the High Courts and states. But first, the piece briefly outlines the extent of the SC’s interventions in matters of state judicial service.
Having established the High Courts’ supremacy in the recruitment and regulation of subordinate court judges, the SC has relentlessly assumed upon itself the task of laying down judicial policy for state judicial services.
The expansive reach of the SC’s interventions
The breadth of the SC’s interventions in relation to the recruitment and service conditions of state judicial services has become remarkably expansive. The Court, by adopting and revising the recommendations of the Judicial Pay Commissions, has effectively rewritten the provisions on judges’ salaries, increments, pensions, gratuity, allowances, accommodation and other facilities. Through judicial rulings, the Court has prescribed quotas for direct and promotion-based appointments to judicial service. The SC has set out quotas and minimum qualifications for entry-level appointments, inter-se seniority, promotions, and prescribed pay scales, assured career progression, including provisions for retired judicial officers. In a nutshell, in the last three decades, the SC has redefined judicial policy on recruitment and conditions of service of subordinate court judges. However, it is difficult to locate a firm constitutional basis for these policy interventions, given that the Constitution vests regulatory and policy-making power in the states and High Courts.
While the administrative, judicial and disciplinary control over subordinate courts and judges is vested in the High Court under Articles 227 and 235, the competence to regulate recruitment and conditions of service of subordinate court judges, including the district judge cadre, lies with the state legislature under Articles 246 and 309, read with relevant entries in Lists II and III of the Seventh Schedule. In the absence of the laws made by the state legislature, it is the state executive (the Governor), through rules made in consultation with the High Court, that ought to regulate the field as per Articles 309, read with Articles 233, 234 and 235.
Incrementally, through a catena of rulings, the SC has relegated the state legislature’s competencies in matters of judicial recruitment and conditions of service. The SC rulings, namely, State of Bihar v. Bal Mukund Sah (2000) and Nawal Kishore Mishra v. High Court of Judicature at Allahabad (2015), significantly constrain the state legislature’s competencies by requiring the High Courts’ ‘green signal’ for making law on recruitment and appointments to the state judicial service. These rulings have effectively hollowed out the space for the state legislature to prescribe judicial policy. The rulings further establish that, in matters of recruitment and appointment to state judicial services, rules made by the Governor (in consultation with the High Court) remain the sole repository.
Implications of the SC’s ruling on the competence of the state legislature and High Courts in matters of recruitment are that: (a) the state legislatures cannot make law regulating recruitment and appointment in judicial service, (b) High Courts’ views on judicial recruitment and appointment hold primacy, and c) as a general rule, the Governors/state governments are expected to comply with the recommendations of the High Court. Having established the High Courts’ supremacy in the recruitment and regulation of subordinate court judges, the SC has relentlessly assumed upon itself the task of laying down judicial policy for state judicial services.
The SC’s competence to issue directions and prescribe judicial policy for state judicial service has been called into question on multiple occasions. However, the SC firmly set aside the competency challenges. For instance, in the second All India Judges Association Case (1993), the court repudiated the states’ contention that it lacked competence to prescribe policy on judicial service; on the contrary, the SC held that its policy interventions are essential, inter alia, to achieve uniformity. Recently, in another All India Judges Association Case (2025), the court justified its intervention as necessary to improve service conditions and maintain the work-life balance of judicial officers. And of course, the ever-expanding lineage of judicial interventions is also entrenched in usual justifications: judicial independence, separation of powers, basic structure, and special status of judges vis-à-vis the administrative executive (members of other services). To avoid questions of competency and jurisdiction, the SC has converted the first All India Judges Case into a continued mandamus, justifying all of its interventions in a host of judicial service matters.
The Court invokes Articles 32, 141 and 142 to ensure compliance with its policy interventions. Arguably, the judicial review power under Articles 32 and 141 cannot justify the prescription of a broad policy on judicial recruitment and conditions of service. Similarly, invoking Article 142, while sidestepping constitutionally entrenched regulatory competencies of the High Court and states, as briefly analysed below, undermines the federal scheme.
Under the Constitution, which deliberately accommodates state and region-specific diversity through asymmetric arrangements in the legislative, executive, judicial and administrative spheres, it is striking that the SC insists on granular uniformity in judicial policy and practice across diverse states and union territories
Against the grain of federal judicial design
The policy interventions of the SC lack explicit textual foundations and run counter to federal judicial design. The SC has no administrative or regulatory competency over the High Courts, let alone the subordinate judiciary. The High Courts are constitutionally responsible for efficient judicial administration within their respective jurisdiction; the executive and legislative branches of the states are expected to lend full support to the High Courts in the discharge of their constitutional duty. Therefore, relevant provisions of the Constitution, including Articles 233 to 237, oblige all three organs of the state to perform their respective responsibilities to ensure efficient judicial administration. Precisely for this reason, the Constitution envisages a federated judicial governance architecture in which the SC, as a self-governing judicial institution, has no role in regulating courts below it, save for the limited role of the Chief Justice of India in the appointment and transfer of high court judges.
The High Courts’ administrative and judicial superintendence over the subordinate judiciary is entrenched not just in the Constitution, but it has gradually evolved through various legislative instruments such as the Government of India Acts of 1915 and 1935, the respective Letters Patent and statutes that establish them, going all the way back to the High Court’s Act of 1861. By superimposing its policy preferences on the High Courts and states, the SC undermines federal principles, overlooks the legislative history of the relevant constitutional provisions and the regulatory autonomy of the High Courts. In light of the constitutional design and legislative history, the SC’s coordinating or policy-making role should have been used sparingly; yet over the last three decades, judicial review has increasingly been deployed as a routine, default instrument of judicial policy‑making.
In matters of judicial policy at the state level, even on the judicial side, the SC is expected to follow a narrow judicial review. The collective decisions of the Full Court, i.e., High Court, deserve respect and weightage in the process of judicial review. The narrow judicial review would still permit the SC to inquire into arbitrary, unfair and illegal regulatory decisions of the High Court or the State. However, there is no justification for using matters requiring judicial determination to lay down broad policy measures that transgress the constitutional competencies of the High Courts and the states.
A top-down approach to judicial policymaking is unsuitable for states and union territories that have varying local conditions and needs.
The myth of uniformity
Further, the need for uniformity has been overemphasised. Under the Constitution, which deliberately accommodates state and region-specific diversity through asymmetric arrangements in the legislative, executive, judicial and administrative spheres, it is striking that the SC insists on granular uniformity in judicial policy and practice across diverse states and union territories. A more holistic approach would be to allow states and High Courts to determine for themselves which policy domains require convergence. If there is a need to facilitate inter-high-court dialogue, the SC would do so on the administrative side. Similarly, where uniformity is a must, the SC can impress upon the state and union governments to introduce uniformity across the country, regions or states. Also, if such far‑reaching uniformity in judicial service is indeed indispensable, it is parliament and state legislatures and not the SC that ought to pursue it. For instance, by creating an All India Judicial Service under Article 312, or by employing other legislative means.
A top-down approach to judicial policymaking is unsuitable for states and union territories that have varying local conditions and needs. For instance, on judicial recruitment, it is only appropriate that, based on their local conditions and priorities, the High Courts and states formulate judicial policies. In the case of the three-year practice rule, even assuming it will bolster the representation of women in judicial service, its withdrawal across all states and union territories would be unnecessary. Some states, such as Andhra Pradesh, Telangana, Goa, Meghalaya, Nagaland and Mizoram, have made notable strides in increasing the representation of women on the bench at the entry level. Going forward, these states would focus on sustaining the momentum they have gained over the last decade and on increasing diversity at the mid and higher-levels of the judiciary. Therefore, not all states that have made notable progress in enhancing diversity would favour the withdrawal of the three-year practice rule.
Only a holistic approach to judicial policymaking is sustainable in the long run. Frequent policy flip-flops based on what judicial leadership groups at the SC perceive to be right for the rest of the country would open Pandora’s box. Judicial decisions devoid of ground realities not only fail to address the problems but also complicate them. Precisely for this reason, the Constitution envisages a federated judicial governance framework in which the High Court and the states focus their policy interventions on local needs and challenges. For instance, while making policy on the practice rule, some states and High Courts might consider the representation of women in law schools and at the Bar in their jurisdiction to arrive at an empirically informed policy conclusion on whether there is a need for any relaxation to buttress the representation of women at the entry-level vacancies. Some other states would consider mitigating other structural barriers to judicial diversity, such as non-compliance with the carry-forward rule, de-reservation of unfilled seats without conducting special recruitment drives, non-allowance of reservation in promotion, inadequate reservations for marginalised groups, and filling unfilled reserved positions with open category candidates.
The SC should therefore reconsider its longstanding approach to judicial policymaking. A top-down, centralised model of judicial governance is counterproductive, and it sits uneasily with the constitutional scheme. More importantly, repeated policy interventions by the SC have progressively eroded the autonomy and institutional competencies of the High Courts and the states. Frequent policy interventions risk fostering dependency, may discourage local initiative and contribute to policy paralysis and inefficiency. In keeping with the Constitution’s federal and decentralised vision, the SC ought to adopt a posture of restraint and allow High Courts and states to lay down judicial policy on matters such as recruitment.