Provisions as to Judges of High Courts

Article 310, Constitution of India 1948

The judges of a High Court in any Province holding office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become on that date the judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave and pensions as are provided for under article 197 of this Constitution in respect of the judges of such High Court.

Article 376, Constitution of India 1950

(1) Notwithstanding anything in clause (2) of article 217, the Judges of a High Court in any Province holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and pension as are provided for under article 221 in respect of the Judges of such High Court.

⁠(2) The Judges of a High Court in any Indian State corresponding to any State specified in Part B of the First Schedule holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the State so specified and shall, notwithstanding anything in clauses (1) and (2) of article 217 but subject to the proviso to clause (1) of that article, continue to hold office until the expiration of such period as the President may by order determine.

⁠(3) In this article, the expression “Judge” does not include an acting Judge or an additional Judge.

Draft Article 310 was discussed in the Constituent Assembly on 10 October 1949. This transitional provision ensured that those who were judges of Provincial High Courts would continue to be judges of the same High Courts in the corresponding States after the Constitution came into force. They would also be entitled to salaries, allowances, leave and pensions as provided under Article 197 of the Draft Constitution.  

One Member did not see the need for such a provision: it was clear that Provincial High Court judges would continue to be judges of the same high courts after the Constitution came into effect.  He added that there was no such provision for other public officers. He suggested that this provision’s covert motivation was to reduce the pay of existing High Court judges.  He moved an amendment to keep the salaries, allowances, leave and pension of these judges the same as they were before the Constitution was enacted.  

The Drafting Committee Chairman argued that the member’s amendment was more relevant to Schedule II of the Draft Constitution, which lays down in detail the salary, allowances etc., of High Court judges. 

An amendment was moved by the Drafting Committee Chairman to add that judges of the High Courts in Princely States would also continue to be judges in the High Courts of the respective States once the Constitution was enacted. 

The Assembly adopted the Draft Article as amended by the Drafting Committee Chairman on 10 October 1949.