Title: Article 196
Volume: Volume VIII (16th May to 16th June 1949)
Date: 07/06/1949
Participants: Dr. B. R. Ambedkar, Sardar Hukum Singh, Mr. H. V. Kamath, Shri
Shibban Lall Saksena, Mr. Mahavir Tyagi, Mr. B. M. Gupte, The Chairman (Dr.
Rajendra Prasad), Shri Prabhudayal Himatsingka, Dr. B. R. Ambedkar, The
Chairman (Dr. Rajendra Prasad)
Constituent
Assembly OF INDIA Debates (Proceedings)- Volume VIII
Tuesday, the 7th June, 1949
--------
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at
Eight of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the
Chair.
---------
DRAFT CONSTITUTION-(Contd.)
Article 193-(Contd.)
Mr. President We were
dealing with article 193 yesterday. We shall now resume consideration of that
article. One amendment was moved but there are several other amendments. We
shall take them up now. Amendments Nos. 2586, 2587, 2588 and 2589 are of a
similar nature. The only difference is with regard to the age of retirement of
the Judges in these amendments. There is another amendment No. 2592 which is in
the name of Dr. Ambedkar which, I think , will cover all these amendments
except about the question of age. So I think that if Dr. Ambedkar moves his
amendment first, probably it may not be necessary to take up these other
amendments with regard to matters other than the age. With regard to the age,
we may take up that question separately.
The Honourable Dr. B.R. Ambedkar (Bombay: General): I am not moving that
amendment.
Mr. President : Then we shall have to take up the other amendments. Mr. K.
C. Sharma, amendment No. 2586.
Shri Krishna Chandra Sharma (United
Provinces: General): Sir, I moved:
“That for clause (1) of article 193, the following be substituted:
‘(1)
Every Judge of a High Court shall be appointed by the President by a warrant
under his hand and seal after consultation with the Chief Justice of India, and
in the case of appointment of a judge other than a Chief Justice, the Chief
Justice of the High Court of the State, and shall hold office until he attains
the age of sixty years.’”
Sir, in that article there is the additional precaution of consultation with
the Governor. I respectfully submit that in the case of the other Judges of a
High Court in a State, consultation with the Chief Justice is quite sufficient.
The Governor in no way comes in and consultation with him would be undesirable.
Sir, I move.
(Amendments Nos. 2587,2588 and 2589 were not moved.)
Prof. Shibban Lal Saksena (United
Provinces: General): Sir, with your permission, I would like to move the
amendment to this amendment No. 2590, of which I have given notice. Sir, I
moved:
“That for amendment No. 2590 of the List of Amendments, the following be
substituted:-
(i) ‘that in clause (1) of article 193, for the words occurring after the words
‘Chief Justice if India’ to the end of the clause, the following be
substituted:-
‘and
such of the judges of the Supreme Court and of the High Court of the State
concerned as the President may deem necessary for the purpose and shall hold
office until he attains the age of sixty years:
Provided
that in the case of appointment of a judge, other than the Chief Justice, the
Chief Justice of the High Court of the State shall always be consulted.’ “
(ii) that after sub-clause (b) of clause (2) of article 193, the following new
sub-clause be added:-
‘(e) is a distinguished jurist.’”
Sir, I have tried to put this clause in line with the clause we have already
passed for the Supreme Court. I have used the same language which has been used
there. The only thing is that I have omitted reference to the Governor of the
State. I feel that in case of appointment of a Judge of a High Court,
consultation with the Chief Justice of the High Court is enough. Consultation
with the Governor of the State will, I think, not be proper. I also feel that
the Judges of the Supreme Court Should be consulted. I do not see why the
language should be different here from the language used in article 103 for the
Supreme Court.
I have also made provision for the appointment of a distinguished jurist. When
we have made this provision in the case of the Supreme Court, I do not see why
we should not provide that a distinguished jurist should be appointed as a
Judge of the High Court also. I think, Sir that in view of the fact that the
principle has already been accepted, this amendment will prove acceptable to
the House.
(Amendments Nos. 2591, 2593, 2594 and 2595 were not moved.)
Prof. K. T. Shah (Bihar: General): Amendment No. 2596. This matter has been
already discussed. It was rejected then. May I move It now?
Mr. President : I do not think any useful purpose will be served by
repeating the same arguments once again.
(Amendments No. 2597, 2598, 86, 2599, 2600, 2601 and 2602
were not moved.)
Shri T. T. Krishnamachari (Madras:
General): sir, I formally move amendment No. 2603 and I move amendment No. 194
of List II, which reads as follows:-
“That with reference to amendment No. 2603 of the List of Amendments, In clause
(1) of article 193 the words ‘or such higher age not exceeding sixty-five years
as may be fixed in this behalf by law of the Legislature of the State’ be
omitted.”
Sir, the two amendments are more or less the same in substance except that the
amendment which I have moved expressly states the words that are to be
eliminated. By the elimination of these words, what will happen is that every
judge of a High Court shall hold office only until the age of sixty and the
object of this amendment is merely to crystallise the status quo. Sir, I
do not think it is necessary for me to adduce any arguments, particularly when
the amendment is one that seeks to confirm the existing practice. But there are
undoubtedly many and weighty arguments against the provision which my amendment
has sought to delete, namely, “ or such higher age not exceeding sixty-five
years as may fixed by law of the Legislature of the State”; and whether it is
the Legislature of the State or Parliament that has to make a law varying the
age of retirement of judges, it is an unwholesome and unhealthy provision in a
Constitution. Many Members of this House will undoubtedly agree with me that it
is best to fix a particular age, no matter what it is and not leave it to canvassing
by interested parties, so that either a private members will introduce a Bill
or pressure will be brought to bear on the Government of the day, asking them
to make a change in the retiring age of the judges, because the people who are
interested in raising the age limit have some influence in the quarters, who
might perhaps conceivably make the Government move in that direction. The
advantage, therefore, lies in the direction of fixing a particular age and not
allowing any room for any private canvassing or private endeavour, so that
people will know definitely that this cannot be changed except by an amendment
of the Constitution. Sir, on the merits of the problem, I think is much to be
said in favour of the age of sixty. It is undoubtedly true that in this country
the age of expectation has risen considerably during the last twenty years. We
do find in public life and amongst lawyers people who have passed the age of
superannuation, fixed by this provision that I am moving, in full possession of
their faculties, able to control the destinies of the country and very
adequately at that; but Sir, these people are only exceptions to the rule and
the rule happens to be in a country like ours probably in about 30 per cent of
the cases perhaps, people who attain the age of sixty become unfit for active
work. It is in my view safer to provide against even a fraction of the Judges
of the High Court being incapable of doing their work rather than depend upon
what happens outside the court and in public life where people who are well
past the age of sixty are functioning very well and serving the country
extraordinarily well. Sir, I feel that no further arguments are necessary in
order to make the proposition which crystallises the status quo acceptable
to the House; and if ten or fifteen years hence conditions of living in this
country vary and medical science improves considerably so that senility can be
avoided more or less in the generality of cases of people above the age of
sixty, well probably that will be time enough for the Constitution to raise the
age. I think for the time being the age of sixty is adequate and safe. for the
same reasons I hope the House will accept my amendment.
(Amendment Nos. 2604 and 2605 were not moved.)
Prof. Shibban Lal Saksena : Mr.
President, Sir, in clause (1) (a) it is said that “a judge may, by writing
under his hand addressed to the Governor, resign his office”. I want that he
may resign his office only by addressing to the President or to the Chief
Justice of India. I therefore move:
“That in sub-clause (a) of the proviso to clause (1) of article 193, for the
word ‘Governor’ the words ‘Chief Justice of Bharat’ be substituted.”
It is the President who appoints the judges of the High Court and they can be
dismissed only by two-thirds of the majority of both House of Parliament.
Therefore, Sir, if he wants to resign his office, he must address either to the
President who appointed him or two the Chief Justice of India who is the
highest judicial authority the land and there is no sense in his addressing his
resignation to the Governor, and I do not know how the Governor can come in
this matter. It should be either the President or the Chief Justice of India
and I hope, Sir, that it will be corrected. Besides, if the word ‘Governor’ is
put in here. I think it will not only be improper but will also be derogatory
to the independence of the judiciary.
(Amendment No. 2607 was not moved.)
Shri H. V. Kamath (C. P. &
Berar: General): Mr. President, Sir, I moved:
“That in clause (b) of the proviso to clause (1) of article 193 after the words
‘Supreme Court’ the words ‘the State Legislature being substituted for
Parliament in that article’ be inserted.”
Through this amendment I seek that the State Legislature might play an
important role in the removal of a Judge of the High Court of that State. This
clause as it stands provides that a Judge of a State High Court may be removed
by the President in the same manner as is provided for the removal of a Judge
of the Supreme Court. That is to say, the President after an address presented
to him by both House of Parliament, supported by not less than two-third of the
members present and voting in Parliament may remove the Judge concerned. If the
sub-clause were passed as it stands here I feel that the legislature of the
State will have no voice at all in such removal.
The crux of the matter is this. Should Parliament be the sole authority in the
removal of the Judge or should we give power to the State legislature in this
matter? It may be argued against this procedure suggested by me that Parliament
is a superior authority and therefore more competent. Is that really so? to my
mind, both Parliament and the State legislature are elected, the Lower House
being entirely elected and the Upper House partly nominated, but the Lower
House in either case is elected on the basis of adult suffrage. If we put trust
in Parliament, can we not put trust in the State legislature as well?
Ultimately, if is a question of putting trust in the people. Shall we trust the
people and their elected representatives or not, whether in the Centre on in
the State? Moreover, where a Judge of the High Court is concerned, it is quite
likely that Parliament being far removed from the scene may not be quite able
to seize it self of the various matters pertinent to or germane to the issue,
and the State legislature being on the spot may be better able to deal with the
matter. At this time of day when we have plumped for adult franchise, we should
trust the State legislatures as much as we trust our Parliament at the Centre.
After all, if the House reads article 193, clause (1), it will see that so far
as the appointment of a Judge of a High Court is concerned, it is not merely
the authorities in the Centre that come into the picture, but also some
authorities in the Centre that come into the picture, but also some authorities
in the State as well, the authorities concerned being those referred to in
clause (1) of article 193. The Governor of the State-he is a provincial
authority-is consulted-he is a provincial authority. Therefore, if for the
appointment of a Judge not merely the authorities in the Centre but also the
authorities in the provinces are concerned, the question arises so far as
removal is concerned, why should we not trust, or rather entrust the State
legislature with conducting the investigation or impeachment or enquiry? It
Parliament at the Centre is competent to present an address to the President
for the removal of a Judge of the Supreme Court, to my mind it is quite logical
and obvious that so far as a Judge of the High Court of a state is concerned,
the legislature of the State ought to be competent, ought to be given powers to
present an address in this regard to the President for the removal of a Judge
of the High Court. It may be that the amendment of mine may have to be recast.
I only seek here the acceptance of the principle that I am trying to embody in
this amendment of mine. The amendment that I have suggested seeks to substitute
the State legislature for Parliament in article 193. Once this principle is
accepted that so far as the removal of a Judge of a High Court is concerned,
the State legislature must deal with the matter and present an address to the
President, then I am willing or amenable to the recasting of the amendment in
any form that the Drafting committee may please. I move.
Mr. President : Amendment No. 2609: that does not arise.
Shri T. T. Krishnamachari : Sir, I would like formally to move amendment
No. 2610 in order to enable Dr. Ambedkar to move amendment No. 195.
Sir, I moved:
“That in para (c) of the proviso to clause (1) of article 193, after the words ‘Supreme
Court of’ the words ‘the Chief Justice’ be inserted.”
The Honourable Dr. B. R. Ambedkar :
Mr. President, Sir, I move:
“That with reference to amendment No. 2610 of the List of Amendment in clause
(c) of the Proviso to clause (1) of article 193, after the words ‘High Court’
the words ‘in any State for the time being specified in the First Schedule’ be
inserted.”
Sir, the object of this amendment is two remove all distinctions between
provinces and Indian State so that there may be complete interchangeability
between the incumbents of the different High Courts.
Sir, I formally move amendment No. 2614 in the List of Amendments.
“That in sub-clause (a) of clause (2) of article 193 for the word ‘State’ the
words ‘State for the time being specified in the First Schedule’ be
substituted.”
Sir, I move:
“That with reference to amendment No. 2614 of the List of Amendments, in
sub-clause (a) of clause (2) of article 193, for the words ‘in any State in or
for which there is a High Court’ the words ‘in the territory of India’ be
substituted.”
“That with reference to amendment No. 2614 of the List of Amendments, in
sub-clause (b) of clause (2) of article 193, for the words ‘High Court’ the
words ‘in any State for the time being specified in the First Schedule’ be
inserted.”
“That with reference to amendment No. 2614 of the List of Amendments, in
sub-clause (b) of Explanation I to clause (2) of article 193, for the words ‘in
a State for the time being specified in Part I or Part II of the First Schedule’
the words ‘in the territory of India’ be substituted.”
“That with reference to amendment No. 2614 of the List of Amendments, in
sub-clause (b) of Explanation I to clause (2) of article 193 for the words ‘British
India’ the word ‘India’ be substituted.”
“That with reference to amendment No. 2622. . . . “
Mr. President : Before moving that, you may formally move amendment No.
2622.
The Honourable Dr. B. R. Ambedkar : Sir, I formally move:
“That for Explanation II to clause (2) of article 193, the following be
substituted:-
‘Explanation
II.-In sub-clauses (a) and (b) of this clause, the expression ‘high Court’ with
reference to a State for the time being specified in part III of the First
Schedule means a Court which the President has under article 123 declared to be
a High Court for the purposes of articles 103 and 106 of this Constitution.’”
Sir, I move:
“That with reference to amendment No. 2622 of the List of Amendments,
Explanation II to clause (2) of article 193 be omitted.”
The object of all these amendments 196 to 200 is to remove all distinctions
between British India and the Indian States. Some of the amendments
particularly amendments 199 and 200 are merely consequential upon the main
amendment.
(Amendments Nos. 2611, 2612, 2613, 2615 and 2616 were not
moved.)
Mr. President : No. 2617 does not arise. 2618.
Mr. Mohd. Tahir (Bihar:
Muslim): Sir, I beg to move-
“That in sub-clause (b) of clause (2) of article 193, after the words ‘in
succession’ the words ‘or has been a pleader practising for at least twelve years’
be inserted.”
I beg to move:
“That in sub-clause (a) Explanation I of clause (2) of article 193, after the
words ‘High Court’ the words ‘or has practised as a poleader’ be inserted, and
for the words ‘which a person’ the words ‘which such person’ be substituted and
the words ‘or a pleader’ added at the end.”
I beg to move:
“That in sub-clause (b) of Explanation I of clause (2) of article 193, after
the words ‘First Schedule or’ the Words ‘has’ be inserted, and after the word ‘Court’
wherever it occurs the words ‘or a pleader’ be inserted.”
Sir I had moved similar amendments as regards the appointment of the Judges of
the Supreme Court. I want to give the same position to the Pleader lawyers as
we are going to give to advocates, because I am of opinion that so far as
qualification is concerned, they hold the same qualification and in the third
amendment if it is accepted it will read thus-
“In computing the period during which a person has held judicial office in a
State for the time being specified in Part I or Part II of the schedule or has
been advocate of a High Court or a pleader, there shall be included any period
before the commencement of this Constitution, etc., etc.”
In explanation I clause (a) will read as follows:-
‘In computing the period which a person has been an advocate of a High Court or
has practised as a Pleader there shall be included any period during which such
person held judicial office after he became an advocate.”
With these few words, I move these amendments.
(Amendment Nos. 2619 and 2623 were not moved.)
Mr. President : All amendments have been moved and the article and
amendments are open for discussion.
Dr. P.S. Deshmukh (C.P. &
Berar: General): Sir, the appointment of the Judges of the High Court has been
left to the President and only consultation with the Chief Justice of India and
the Governor of the State has been provided for. I quite agree that for the
independence of our judiciary the authorities appointing the Judges should be
as high as possible but I would personally have preferred if the appointment
was made by the President on the advice of the Premier and the Governor
together. That however is not possible now, but next to that I would like some
distinction to be made between Judges of the Supreme Court and the High Court
so far as removal is concerned and thus I come to the amendment moved by my
Friend Mr. Kamath which I strongly support. According to the provision that has
been proposed the removal would be as difficult of a Judge of a High Court as
that of a Supreme Court and it is only by reference to Parliament, the highest
legislature body in the whole of the Republic, that a removal could be
discussed and could be effected. Thus if this provision is retained, then the
Legislature of the State will have absolutely no function to perform so far as
the High Court and Judges are concerned except the fixation of the maximum age
at any age between the age of sixty and sixty-five and determining their
salaries and some such insignificant matters. I do not think the Legislatures
of the State should either be distrusted to this extent as to have no say in
the matter of the removal of High Court Judges or it should be imagined that
they would be trying to removed Judges on frivolous grounds. Secondly, the
object of making it difficult for the Legislatures to remove Judges could be
achieved by providing that the final order would be passed by the President
himself but it should at any rate be competent for the State Legislature to
present an address through the Governor to the President for the removal of any
of the Judges of the High Court. I think this would be a salutary provision
which would work for efficiency as well as better relationship between the
Judicature and the State Legislature as well as the Executive in the State. We
may further provide that a removal of a judge could take place on a limited and
restricted grounds and we might not leave it to their discretion. The ground
may be the same as have been stated in the previous 1935 Act, Section 220,
where it has been provided that a judge may be removed from his office by His
Majesty by warrant under the Royal Sign Manual on the ground of misbehavior or
of infirmity of mind or body if the Judicial Committee of the Privy Council, on
reference being made to them by His Majesty, report that the judge ought on any
such ground to be removed. So these grounds may be taken from this section, and
on these grounds appropriately modified it should be competent for the Legislature
of a State to present an address to the President so that a judge may be
removed. I do not think there is any other means excepting the Governor to know
the capacity and the efficiency, character etc. of a Judge of the High Court.
It is the Provincial Governor and the Provincial Legislatures who are more
competent to know all these things and if they are convinced that a certain
judge ought to be removed, I think it should be given the necessary powers for
such removal.
So far as the amendment of Mr. Tahir is concerned, the principle has not been
accepted that the pleaders should also be competent to be appointed as High
Court or Supreme Court Judges and I think that is quite sound; because any
pleader who has any practice and who has any competence generally gets himself
enrolled as an Advocate-and there is not much difficulty in getting onself
enrolled as an Advocate- and after a few years when he acquires the necessary
standing he would be considered eligible to be appointed as a High Court or
Supreme Court Judge. So I do not think there is any substance in that
amendment.
Dr. Bakshi Tek Chand (East
Punjab: General): Sir, I have a few words to say on the amendment which Mr.
Kamath has moved and which has been supported by Dr. Deshmukh. In the article
as drafted the procedure for the removal of a Judge of a High Court and the
authority by which he can be removed are the same as those provided in article
103 clause (4) for the removal of a Judge of the Supreme Court, viz.,
that an address will have to be presented by Both Houses of Parliament to the
President and it should be supported by a majority of the total number of
members of either House and also by a majority of two -thirds of the members
present and voting at the meeting when the matter is discussed and voted. The
amendment seeks to substitute the Provincial Legislature in place of Parliament
when the matter concerns a Judge of a High Court. This is the point that the
house has to consider. My submission is that the provision contained in the
Draft Constitution is the proper one. It is a very important matter-the removal
of a Judge of a High Court-and the enquiry should be conducted in a very
impartial manner by persons who are not swayed by local prejudices and who take
a detached view of the matter. In the provinces-especially in those where the
number of members is very small or where there is a sharp division of
parties-the members may be swayed by local prejudices and other considerations.
It is for this reason therefore, that the Drafting Committee has proposed in
clause (b) of the Proviso that this matter should be left to the vote of the
two Houses of Parliament. It is said that Members of the Parliament will be for
away from the scene and will not be fully cognizant of all local matters. Well,
that is the very reason why this matter should not be left to the vote of the
Provincial Legislature. In Provinces like Orissa, Assam, East Punjab, Central
Provinces where the number of Members of the Legislature is small and in some
of them there will be only one House-the vote of a few members only might
decide so important a motions. If there is a Judge whom the leader of the party
in power does not like, or who has by his judicial decisions or otherwise
incurred the displeasure of that party, there is a chance of local prejudices
coming in. In such a case the independence of the judiciary will to a very
large extent be impaired. It is for this reason that the Draft Constitution
provides that this matter should be left to Parliament. Formerly, under the
Government of India Act, 1935, a Judge of a High Court could be removed if the
Judicial Committee of the Privy Council, on reference by his Majesty, reported
that he is unfit to hold office on the ground of misbehavior or of infirmity of
mind or body. Under the Draft Constitution, It will be on the address of both
Houses of Parliament at the Centre that the President will act. This is very
salutary provision indeed. I would ask the House not to disturb the provision
in clause (b) of the Proviso and to reject the amendment which Mr. Kamath has
moved.
Shri Prabhudayal Himatsingka (West
Bengal: General): Mr. President, Sir, I beg to oppose the amendment moved by
Shri H. V. Kamath in as much as he wants to make the removal of a High Court Judge
easier than what has been provided for in the Draft Constitution. It will be a
dangerous thing to do so and to empower the Provincial Legislature to be able
to remove a High Court Judge. If for removal of a Judge of the Supreme Court
provision has been laid down in article 103, clause (4), I do not see any
reason why we should make it easier for removal of a Judge of a provincial High
Court.
As has been stated by the previous speaker, Dr. Bakshi Tek Chand, the
Provincial Legislature can be very easily swayed by political considerations
and by local influence when a Judge of the High Court gives certain decisions
which are not acceptable or which may not be palatable to the party in power or
to the majority party in the Legislature. Therefore it should not be made easy
for a High Court Judge to be removed. After all, a lot depends on the integrity
and the stability of a High Court Judge, and it his position be made so
unstable that he can be removed by the vote of the Provincial Legislature it
will be a dangerous thing, and that will affect the independence of the High
Court Judges. Therefore I oppose the amendment moved by Mr. Kamath. I support
the amendments moved by the Honourable Dr. Ambedkar inasmuch as the provisions
are brought in line for all the High Courts, whether in the States or in the
Provinces.
Dr. P. K. Sen (Bihar:
General): Mr. President, Sir, I am thankful for this opportunity to enter into
the general discussion of the provisions of article 193. There are several
amendments which I had tabled with regard to other articles allied in
character, but I am not moving them. I feel that a great many factors enter
into the consideration of the provisions of article 193. These factors are
scattered about in other articles like 196, 197 and so on. Unless and until we
consider these other factors, or have them in view while deciding the shape of
article 193, I apprehend that we shall not be able to come to the right
decision.
Let us take these factors one by one. The essential point in article 193 is the
retiring age of the Judge of the High Court-whether it should be sixty or sixty
five. It is left in some quarters-and I do not say there is no ground
whatsoever for that feeling-that at the age of sixty a man becomes incapable of
working actively and making his contribution to the service of the country,
that on the bench he finds it difficult to command that concentration of mind
which is necessary and that therefore sixty should be the proper age for
retirement. On the other hand it is felt-and there is very good ground for that
feeling too-that the retiring age should be higher at the present moment,
because people are often found to be very actively engaged in public life much
after sixty. We have many instances of people who can devote a great deal of
energy and who can command a great deal of concentration in very important
kinds of work on behalf of the State. That being so, there is no reason why in
judicial work one should be unfit and incompetent after the age of sixty. So
far as I am concerned I make no secret that I am strongly in favour of making
it higher than sixty-at least sixty two-for the High Court Judge. Now, the
question that we have to consider is how the age-limit is affected by other
considerations. Take it from the point of view of the Judge. The man who is
going to be appointed and who has to make his choice as to whether he should
accept the office when it is offered to him or decline it-what are the matters
that will enter into his consideration? The question of salary comes in, the
question of pension comes in, and also a very important thing-the question as
to whether or not after having held the office for a particular period of time,
he will be allowed to practise in other Courts, if not in the same High Court, or
in the courts subordinate to its jurisdiction. Now the man who is going to
appointed, we must assume, is one of the men pre-eminently fitted for the work
in the province. The choice would naturally fall upon the man who is most
distinguished in the province for legal acumen and ability. He has to make his
choice: if he finds that there are only about five years to run, that there
will be no pension at all after he attains the age of sixty, that he will have
to be thrown back upon his own resources, or that the pension would be rather a
small pittance and not that liberal pension which is awarded to the Judges of
the High Court in Great Britain, for instance, which is 75 percent of their
salary; and when he finds also that there is no other way in which he can earn
an income: that he cannot possibly go even to another High Court or to the
Courts under the jurisdiction of another High Court and take up engagements in
important cases; if he is debarred from practising altogether, then what is he
to do? The only conclusion which he can come to is that although it is post of
very high dignity and prestige, he is reluctantly obliged to decline it. That
will be the result. I submit that it will be a loss because the State will fail
to command the services of men who really count, and instead of those men the
second-rate or third-rate men will have to be selected for the office of the
High court Judge. I submit therefore that it is a very serious matter. It is
not at all a trivial matter-this question of age. It really acts and reacts
upon other considerations. If he has to retire at sixty, well and good. But has
he got a good pension? Can he make a living from the practice of law not in the
High Court where he held office but in some other Court, in some other High Court,
or in one of the Courts subordinate to that other High Court?
Sir, I had tabled another amendment which I submit-Although I am not moving the
amendment formally-has a great bearing upon this question. Suppose a man at the
age of fifty-eight is obliged on account of ill-health to retire. It is to be
presumed that a man in that high office will not continue if for reasons of
health he feels that he cannot possibly do justice to the work which has been
entrusted to him. He will naturally say, “I am sorry I cannot go on any longer.
I wish to retire”. Now in that case, I submit, there should be some provision
about his being allowed full pension in spite of the fact that he has not been
able to work till the age of sixty. It may involve a little expense, but that
expense will be more than compensated for by the amount of efficiency secured
by substituting in his place a person who is in full enjoyment of health. Thus
it will be seen that the question not only of pension in the ordinary cases but
pension in those cases where a person is obliged to retire on account of
ill-health has to be taken into consideration.
Now we do not know as yet-because the relevant articles have not come up before
us for discussion-whether there would be temporary judges or whether there
would be additional judges appointed or not. There are certain articles
relating to there appointment provided in the Draft Constitution. What will
happen to those articles-whether the House will accept them or not-is a matter
which one does not know. But assuming that temporary judges are to be
appointed, or additional judges are to be appointed, the additional judges to
hold office for not more than two years. After being two years in office as
High Court Judge, would the additional judge be then able to practise? Well if
he is not able to practise after two years of office as High Court Judge, the
result will be that very few people will be prepared to accept the office of
Additional Judge. It may be said that it will not be necessary to appoint
additional Judges because if you have a full complement of judges, such as
would be able to cover the work satisfactorily without any appointment of
temporary or additional judges, then the question does not arise. But if it
should be the desire of the House to provide for additional judges or temporary
judges, then I submit that the right to practise or restriction in that behalf
should be considered in there cases also.
I am pointing out these things. Sir, because I believe that without consideration
of these points one will not be in a position to accept office if he is offered
such a post when he is fifty-four or fifty-five because he will never be able
to earn the full pension. Therefore, these are just the factor that will enter
into his consideration in the decision which he has to arrive at.
I submit that these points should be kept in view in discussing the question as
to the retiring age limit and that the question of age limit should not be
considered as if it were utterly unconnected with these other factors which
appear in several different sections of this chapter of the Draft Constitution.
Shri K. M. Munshi (Bombay: General): Sir, the age at which a High Court
Judge is to retire has caused considerable differ of opinion and this age of
sixty has been fixed after exhaustive enquiry and scrutiny at the hands of
those responsible for this decision. I submit, sir, that the decision to which
the Drafting Committee has come, together with the amendments which are going
to be moved and accepted, is the best one under the circumstances.
In the first instance, we must consider the point of view not of individual
judges but of the judiciary as a whole and of its independence which we are so
anxious to maintain and preserve. Firstly, the age limit of the judges of the
High Court is kept at sixty. The provision as to higher age, not exceeding
sixty-five, which finds a place in the existing article, has to be deleted.
This is so because it would be cardinally wrong that a judge of the High Court
should be in a position to canvass for the extension of the period, or that the
retirement of judges at sixty-two or sixty-five should depend on the wish of
the Legislature-central or provincial. Once a person is appointed a judge,
there must be fixity of tenure during his good behaviour and no extension or
dimunition of his term. In this view that clause has to go. Then the other
amendment which will, I hope, be moved and accepted is for the elimination of
the temporary judges and additional judges. It has been found that the
appointment of temporary judges and additional judges is not a very
satisfactory procedure in India as it leads to departure from that strict
impartiality and independence which is necessary in a High Court Judge.
Then comes the other article to which my Friend Dr. Sen referred article 196 is
a bar against a High Court judge practising in any court in India. Naturally
therefore the question whether it would be possible to draw to the High Court
Bench such talent as is necessary for the due administration of justice
requires to be examined. We are accustomed to the present system. But we must
see as to what kind of judiciary we are setting up by this Constitution. In the
first instance, it is admitted on all hands that at the age of sixty most of
the judges of the High Court- I do not say all- become unfit for further
continuance on the Bench. If that is so, any further age limit prescribed by
the Constitution would be a danger. The judges are not allowed to practise after
retirement; otherwise during the last years of his tenure there may be
temptation to so behave as to attract practice after retirement.
The question of pension has been referred to. I know that the pension given to
judges is not adequate; but that is matter that has to be considered by the
legislature. The question therefore is restricted to talent which at 60 is
sufficiently vigorous and whose services may be required for the country. The
Constitution provides two avenues for judges who retire at sixty. The age of
retirement of a Supreme Court Judge is sixty-five. The brilliant or the sound
judges who are physically fit may have the opportunity to be appointed to the
Supreme Court. There is also the provision of ad hoc judges in the High
Court under article 200. Such of the judges who are physically and mentally fit
after retirement can always be invited to administer justice under that
article. Avenues therefore are open to those judges who are able to do their
work after retirement. The difficulty, however, has been that, as experience
has shown, in quite a large number of cases most of the judges becomes even
before the age of sixty, not fit for their work. In the last year or two or
their tenure on the Bench they are more of a handicap to the administration of
justice than otherwise. Therefore it is that the definite limit has been fixed
at sixty. The scheme as a whole which has been adopted departs from the
existing practice. Ultimately its success will depend upon whether the
distinction and prestige of a High Court Judge is such as to attract talented
people. Unfortunately in this country the tradition which prevails in England
does not hold good. There, even for the ablest of practitioners with a very
large amount of income, to be invited to the Bench is an honour and if the
honour is twice offered by convention it could not be rejected. Even a lawyer
like Justice Greene with one of the largest practices in the English Bar, when
invited to be a judge, accepted the position. If we invest the high court
judges with the prestige which they enjoy in England, I am sure talent will be
drawn to this office whether retirement is at sixty or sixty-five and whether
the pension is meagre or adequate.
Shri Brajeshwar Prasad (Bihar
: General): Sir, I am opposed to the fixation of any age limit for the High
Court judge. I feel that to say that after the age sixty a judge becomes an
imbecile and therefore he must retire is arbitrary. It should be left to the
discretion of the President on the advice of the Governor and the Chief Justice
to ask a judge to retire from the Bench. It is quite possible that even at the
age of fifty he may not be in a position to discharge his functions efficiently
and properly.
Sir, I feel that clause 2(a) which lays down the qualification for a high court
judge also ought to be omitted. It should be left to the discretion of the
President to choose anybody he likes to be a judge of the High Court. This
distrust of the President, the Governor and of the Chief Justice is not warranted
by facts and experience. It is obvious that no judge will be appointed who is
not a man experience, who has not put in a practice of at least ten years in
any court or who has not been in any judicial capacity as an officer for at
least ten years. But there are cases of brilliant men who have not all these
qualifications. After all, the creative period in a man’s life centres round
about the ages of 30-35. I do not see any reason why a young man should not
become a judge of the high court.
I have another point to make. I oppose the amendment moved by Mr. Kamath. He
wants that a judge should be removable on an address presented by the Lower
House of the Provincial Legislature. I feel that when the provincial
legislatures are reconstituted under adult franchise it will not be safe to
vest such a power in the hands of the provincial legislature. Already passions
and prejudices run very high in the provinces. Communalism and provincialism
are rampant. Where there is political immaturity, a judgment passed by a judge
is likely to be misconstrued and misinterpreted by political parties.
Therefore, Sir, in the interests of efficiency, I feel that all power should be
vested in the President and in the Parliament.
Mr. Naziruddin Ahmad (West
Bengal : Muslim): Mr. President, Sir, I have a few comments to offer. With
regard to the amendment moved by Prof. Shibban Lal Saksena, I think there are
some very good points in it. His amendment says that in appointing a Judge of a
High Court in the States, the President shall consult the Chief Justice of
India and such of the other Judges of the Supreme Court and of the High Court
of the States concerned as the President may deem necessary for the purpose,
and shall hold office until he attains the age of sixty. His proviso runs to
this effect: Provided that in the case of appointment of a Judge other than the
Chief Justice, the Chief Justice of the High Court of the State shall always be
consulted. Sir, I find that this amendment is amendment is exactly on a per with
article 103 which we have passed. Clause (2) of that article provides that
every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem
necessary for the purpose and shall hold office until he attains the age of
sixty-five years. This Principle of consultation with the other Judges of the
Supreme Court as well as with those Judges of the High Court as the President
may deem necessary has already been accepted. This amendment is similar to
clause (2) of article 103. In fact, this amendment is just an attempt to
reconcile this article with the principle which we have already accepted. From a
drafting point of view and also from the point of view of the necessity of
consulting the other Judges of the High Courts, this amendment should be quite
acceptable.
The second part of his amendment is that a distinguished jurist also can be
appointed as a Judge of the High Court. In fact, we have adopted this in
connection with article 103 which I have just mentioned. In sub-clause (c) of
clause (3) of article 103 we have provided that a distinguished jurist can be
appointed as a Judge of the Supreme Court. So that principles underlying the
present amendment of Professor Saksena have already been accepted by the House.
With regard to the provision for compulsory retirement at sixty, I think this
will not be a very good thing. I think longevity and effective age would
increase in our country. Judges of the High Courts are not ordinary men. They
are selected from the best legal talents and they have to keep in touch with
legal literature. I do not think that a Judge would have spent his useful life
at sixty. It is provided that he will retire at sixty unless he is appointed a
Judge of the Supreme Court in which case he will retire at sixty five. He will
not be able to plead before any court or before any authority after his
retirement under article 196. The effect of fixing the age limit at sixty and
article 196 would not be wholesome. In England there is of course a provision
that a High Court Judge is not entitled to practise in any Court there. But
there the age limit is seventy-two and than even after seventy two
distinguished Judges are appointed as Law Lords and they hold office as Member
of the Judicial Committee of the House of Lords, as Lords in Appeal, etc., and
they hold office for life. So they have a large span of useful life both as a Judge
and later on as Law Lords. But after seventy-two they are working in an
honorary capacity. There are these prospects before an English Judge but there
is no prospect before an Indian Judge. After a Judge retires at sixty, he will
be incapable of practising in any Court, practically incapable of holding any
office under the Government because that would be wrong in principle. He will
thus be a political untouchable of the worst type. I submit, Sir, that the age
limit should be considered at a suitable opportunity whenever it comes. With
these few words, I support the article with the amendments proposed by
Professor Shibban Lal Saksena.
Shri H. V. Pataskar (Bombay
: General): Sir, I wish to offer a few remarks only with respect to fixing the
age limit for the retirement of a High Court Judge. In article 193, as it was
drafted, it was fixed at sixty but there was a further provision that a Judge
may hold office at such higher age not exceeding sixty-five years as may be
fixed in this behalf by law of the Legislature of the State. Now, the general
trend seems to be that this latter portion should be deleted from this article,
and opinion seems to have gathered round the fact that we should fix the age
limit at sixty. Under the Act of 1935 the age limit was fixed at sixty, and
there was no provision for extension. Because there was no provision for
extension the Drafting Committee has said in their note below this article on
page 87 of the Draft Constitution that in view of the different conditions
prevailing in different States, the Committee has added the underlined words in
article 193 so as to enable the Legislature of each State to fix any age limit
not exceeding sixty five years. At the time when this Draft was prepared,
probably the Drafting Committee was of the opinion that some provision should
by made by which the age limit might be increased to sixty-five and they made
it possible by adding the words “or such higher age not exceeding sixty-five
years age may be fixed in this behalf by law of the Legislature of the State”.
Subsequent to that, Sir, the Home Ministry made its own recommendations with
respect to several provisions in the Draft Constitution. In there memorandum in
this connection they said they were of the view that the normal age for retirement
should be sixty for High Court Judges but that in exceptional circumstances the
appointing authority may extend the service of an individual Judge of the High
Court to a period not beyond the age of sixty-three and in the case of a judge
of the Supreme Court not beyond the age of sixty eight. They also say that
experience has shown that most High Court Judges are well past the peak of
their usefulness by the time they attain the age of sixty and an automatic
extension of the age limit would not be in the public interest. Therefore they
suggested that the President may extend the service of a High Court Judge for a
maximum period of there years. That was their proposal. Now, Sir, the view
seems to be that there should be no extension. My honourable Friend Mr. Munshi,
who is also a member of the Drafting Committee, has said that towards the last
years or two of their career most of the Judges are not able to work
efficiently. Now sir, this article is again connected with another article, i.e.,
article 200. The original idea of the Drafting Committee was that the
Legislature should extend this period; the Home Ministry stated that is must be
left to the President in individual cases and now there is a provision in
article 200 which says “Notwithstanding anything contained in this Chapter, the
Chief Justice of a High Court may at any time, subject to the provisions of
this article, request any person who had held the office of a judge of that
court to sit and act as a judge of the court etc. etc.” When a High Court Judge
is to be made to retire at the age of sixty, I cannot understand the propriety
of the Chief Justice of a High Court requesting a retired judge to come and
fulfil the functions of a High Court Judge; and further if he comes, he can go
on working as a High Court Judge with all the privileges, etc for an indefinite
period. It really means that while we are laying down in article 193 that he
must retire at the age of sixty without any question of extensions of an
individuals career either by the President or by the Legislature, we are also
laying down that the chief Justice may call upon any person the view of the
Home Ministry is that this right should be exercised by the President in
individual cases. This is to my mind rather anomalous. Probably we have been
landed in this difficulty by our hostility to the appointment of additional
temporary judges, to which reference was made by my honourable Friend, Mr. K.M.
Munshi. No doubt there have been cases in which people who have been appointed
as temporary judges might have taken advantage of the fact that they happened
to sit on the bench, but there are equally good instances of eminent people who
have only worked as temporary Judges but who have subsequently taken no
advantage of the fact that they happened to sit on the bench, but of pecuniary
and financial loss. I know of some persons who have worked as temporary judges
and in their case, it cannot be said by any person whatsoever that they took
advantage of their positions. All the same the present trend appears to be that
there is a disinclination to the appointment of temporary judges for reasons
which may be justifiable, but that has necessitated that fact that some
arrangement must be made for clearing of arrears of work. Because judicial work
might increase in any High Court and for various reasons we are against the
appointment of temporary or additional judges, we have found it necessary to
incorporate article 200. It seems to be intended that in such a case some
retired judge may be called upon by the Chief Justice to attend to the arrears
of old work or the disposal of new work. So far as the age limit of judges is
concerned, while we are going to accept the recommendation of the House
Ministry that the President as the appointing authority should be authorised to
extend the period of the High Court Judge, while we are also not giving power
to Legislature for such extension, we re going to enable the Chief Justice to
call upon any retired judge to come and work as a judge; it may be for two or
three years. The result has been that while we provide in one article that he
shall retire at the age of sixty, there in another article (200) by which any
Chief Justice can call upon a retired judge to come and do the work of a High
Court Judge. Thereby we are practically going to leave this question of
extension of the work of a High Court Judge in the hands of the Chief Justice
and as we know the Chief Justice may appoint a particular judge because he has
been working for so many years and there may be so many reasons for which
people will go on getting extension under this article 200. Therefore, I think
that the whole question of the period of sixty years has been more confused
than what it was before we took it up and it has undergone so many changes.
The drafting Committee at one time thought that in individual cases there
should be provision for extension of this period beyond sixty and they wanted
it to be left to the Legislature. The Home Ministry had stated that it should
be left to the President to decide in individual cases and in the final
disposal of the matter it appears that we are all determined that he must
retire at the age of sixty. But by a kind of certain other reasoning and
because we do not want any temporary or additional judges, we are not again
providing for this extension. Practically it will be easy for the High Court
Judge to induce his Chief to say that there are a lot of arrears of work to be
done and that he should be continued and there is no period even fixed for such
extension. This is an anomaly which should be carefully attended to.
Mr. President : Dr. Ambedkar, do you wish to speak on this?
The Honourable Dr. B. R. Ambedkar :
No, Sir. I do not think that any reply is called for.
Mr. President : The
question is:
“That for clause (1) of article 193, the following be substituted:-
‘(1)
Every Judge of a High Court shall be appointed by the President by a warrants
under his hand and seal on the recommendation of the Chief Justice of the High
Court concerned after consultation with the Governor of the State concerned and
with the concurrence of the Chief Justice of India and shall hold office until
he attains the age of sixty-three Years.’ “
The amendment was negatived.
Mr. President : The question is:
“That for clause (1) of article 193, the following be substituted:-
(1)
‘Every Judge of a High Court shall be appointed by the President by a warrants
under his hand seal after consultation with the Chief Justice of India, and in
the case of appointment of a judge other than a Chief Justice, the Chief
Justice of the High Court of the State, and shall hold office until he attains
the age of sixty years.’ “
The amendment was negatived
Mr. President : The question is:
“That for amendments Nos. 2590, 2619, 2620 or 2621 of the List of Amendments,
the following be substituted:-
(i) ‘That in clause (1) of article 193, for the words occurring after the words
‘Chief Justice of India’ to the end of the clause, the following be
substituted:-
‘and
such of the judges of the Supreme Court and of the High Court of the State
concerned as the President may deem necessary for the purpose and shall hold
office until he attains age of sixty years:
Provided that in the case of appointment of a judge, other than the Chief
Justice, the Chief Justice of the High Court of the State shall always be
consulted.’
(ii) ‘That after sub-clause (b) of clause (2) of article 193, the following new
sub-clause be added:-
‘(c) is a distinguished jurist.’ “
The amendment was negatived.
Mr. President : The question is:
‘That
with reference to amendment No. 2603 of the List of Amendment, in clause (1) of
article 193 the words ‘or such higher age not exceeding sixty-five years as may
be fixed in this behalf by law of the Legislature of the State’ be omitted.”
The amendment was adopted.
Mr. President : The question is:
“That in sub-clause (a) of the proviso to clause (1) of article 193, for word
Governor’ the words ‘Chief Justice of Bharat’ be substituted.”
The amendment was negatived.
Mr. President : The question is:
“That in clause (b) of proviso to clause (1) of article 193 after the words ‘Supreme
Court’ the words ‘the State Legislature being substituted for Parliament in
that article’ be inserted.”
The amendment was negatived.
Mr. President : The question is:
“That in clause (c) of the proviso to clause (1) of article 193, after the
words ‘High Court’ the words ‘in any State for the time being specified in the
First Schedule’ be inserted.”
The amendment was adopted.
Mr. President : The question is:
“That in sub-clause (a) of clause (2) of article 193, for the words ‘in any
State in or for which there is High Court’ the words ‘in the territory of India’
be substituted.”
The amendment was adopted.
Mr. President : The question is:
“That in sub-clause (b) of clause (2) of article 193, after the words ‘High
Court’ the words ‘in any State for the time being specified in the First
Schedule’ be inserted.”
The amendment was adopted.
Mr. President : The question is:
“That in clause (b) of Explanation I to clause (2) of article 193, for the
words ‘in a State for the time being specified in Part I or Part II of the
First Schedule’ the words ‘in the territory of India’ be substituted.”
The amendment was adopted.
Mr. President : The question is:
“That in clause (b) of Explanation I to clause (2) of article 193, for the
words ‘British India’ the word ‘India’ be substituted.’ “
The amendment was adopted.
Mr. President : The question is:
“That in sub-clause (b) of clause (2) of article 193, after the words ‘in
succession’ the words ‘or has been a pleader practising for at least twelve
years’ be inserted.”
The amendment was negatived.
Mr. President : The question is:
“That in sub-clause (a) of Explanation I of clause (2) of article 193, after
the words ‘High Court’ the words ‘or has practised as a Pleader’ be inserted,
and for the words ‘which a person’ the words ‘ which such person’ be substituted
and the words ‘or a pleader’ be added at the end.”
The amendment was negatived.
Mr. President : The question is:
“That in sub-clause (b) of Explanation I of clause (2) of article 193, after
the words First Schedule or’ the word ‘has’, be inserted, and after the word ‘Court’
wherever it occurs the words ‘or a pleader’ be inserted.”
The amendment was negatived.
Mr. President : The question is:
“That Explanation II to clause (2) of article 193 be omitted.”
The amendment was adopted.
Mr. President : The question is:
“That article 193, as amended, stand part of the Constitution.”
The motion was adopted.
Article 193. as amended, was added to the Constitution.
Mr. President : There is notice of an amendment that a new article, article
193-A be introduced, by professor K. T. Shah, amendment No. 2624.
Article 193-A
Prof.
K. T. Shah : Mr. President, Sir I beg to move:
“That the following new article 193-A article be added:-
‘193-A.
No one who has been a Judge of the Supreme Court, or of the Federal Court or of
any High Court for a period of 5 years continuously shall be appointed to any
executive office under the Government of India of the Government of any State
in the Union, including the office of an Ambassador, Minister, Plenipotentiary,
High Commissioner, Trade Commissioner, consul, as well as of a Minister in the
Government of India or under the Government of any State in the Union.’ “
Sir, this is part of the principle which I have been trying to advocate, namely
the complete separation and independence of the judiciary from the executive.
One way by which the executive has tried in the past to tempt the highest
judicial officers is by holding out the prospect of more dazzling place on the
executive side which would be offered to those who were more convenient or
amenable to their suggestions.
In this connection may I refer to the practice of the preceding Government. The
then Government of India had a practice or convention by which, so far, at any
rate, as the civilian Judges were concerned, at a very early stage in a
civilian’s career, he was required to choose the executive or the judiciary
side. Once the choice was made, generally speaking bifurcation remained
complete. In those days the Executive and Judiciary were not as separate as we
desire now; but even so this convention was in force. The transition, if any
took place only at a higher level of High Court Judge and so on. The
opportunities that that Government could offer being limited, the scope for
this kind of influence upon the judiciary by the executive was also limited. In
the new dispensation with full sovereign authority with us, the opportunities,
the occasions, the number of offices which can be held out as a temptation to
useful or convenient judicial officers of the highest level are very much
greater, and therefore, the suggestion given in this amendment that it is
should be prohibited at least for people who have held any such high judicial
office for not less than five years continuously. The Possibility of
establishing conventions or precedents which may serve in the place of a
constitutional provision is also very difficult, especially in the years of
transition through which we are just passing. For, any precedent now made or convention
established may be regarded as an extraordinary thing under extraordinary
circumstances and may not be binding. The provision is therefore suggested by
this amendment that the Constitution itself should provide a power against any
transition of judicial officers from a judicial post to an executive post of
the kind mentioned in this amendment. The matter I take it is so-simple and the
principle underlying it is so clear that there could be no difference of
opinion unless you desire your judiciary to be subservient or in any way
influencible by the executive. I therefore commend the matter to the House.
Shri H. V. Kamath : Mr.
President, I rise to support the amendment that has just been brought before
the House by my Friend Professor Shah. The amendment seeks to subserve the
cause of judicial independence and integrity. I believe Prof. Shah does not
wish to debar retired Judges from aspiring to any office like that contemplated
in this amendment, but this intention is that Judges in office, who are on the
Supreme Court Bench or on other High Court Benches must be debarred from
employment in the executive of the Government in any capacity whatsoever.
Dr. Bakshi Tek Chand : That is not the wording.
Shri H. V. Kamath : Yes, for five years. A judge can serve up to 65 years.
Here the amendment seeks to lay down that a judge who has served for 5 years
continuously should not be employed in any specified in this amendment. This is
in my judgment a very healthy maxim. It has happened in many countries that a
judge who has served for a term of 5 years or more has been shunted off to some
executive job when his vies or independence of mind and judgment became a
little too hot for the Executive. I think it was President Roosevelt in the
U.S.A.-I do not recollect the occasion when be tried this method but it was in
the thirties of this century when he found that the views of some Judges of the
Supreme Court were unpalatable, he tried to get over that by appointing more
Judges, so that he might get the required majority for that particular measure
that he wanted to push through. This is one of the methods-to increase the
number of Judges who might favour a particular view. Because you will remember
that the Supreme Court in our country will have to arbitrate and adjudicate
upon disputes-constitutional disputes between the Centre and the Units as well
as between unit and unit. The Executive is interested in many of these
questions and it is very likely-more often than not-that a particular matter
which is coming up before the Supreme Court may be such vital importance and
interest to the President or the Executive that they might like the Supreme
Court to give a particular decision upon that matter. They may find to their
chagrin, to their discomfiture that the Supreme Court is not inclined that way
and one of the methods may be to see that the inconvenient judges are shunted
off to some less inconvenient positions. A Judge is after all human, and
temptations such as Ambassadorships.
Pandit Thakur Das Bhargava (East Punjab: General): We are only discussing
the High Court Judges under this Chapter.
Shri H. V. Kamath : I am sorry Pandit Bhargava has not read the
amendment moved by Professor Shah. It relates to Supreme Court as well and as
it has been moved in that form, I am entitled-I hope by your leave, Sir,-to
speak with regard to judges mentioned in this particular amendment. If a judge
aspires to or is made to feel that he can look forward to a job as an
Ambassador, High Commissioner, Minister and things like that-he is human and
after all we have our own weaknesses and it is human enough to suppose that he
will not be above temptation that may be placed in his way by the
Executive-that may, I submit, affect his judicial independence and integrity
and I am sure none of us in this House desires that such a consequence should
ensue. Our judges wherever they might be-in the States or in the Centre-must be
models of Judicial independence, fearless in their judgments and action without
fear or favour of the State authorities or the Central authorities. If about
Judges in harness or in office a condition like this is not laid down, then it
is likely that we may not find them as strong, as true, as we would like then
to be. I hope, however this bar will not apply to retired Judges. If they are
competent for a particular job such as Ambassador, certainly they should be
employed but for judges in harness I think it is very salutary that this House
should lay down a principle of this nature-that so long as they are in service
they should not aspire to any office in the Executive. I support the amendment
moved by Professor Shah.
Prof. Shibban Lal Saksena :
Sir, I also think that the amendment which Prof. Shah has moved deserves our
careful attention. Some people might say that talent in this country at present
is limited and if we lay down this provision, probably there might be dearth
for appointments to these higher posts. But here we are framing a Constitution
for the future of this country and it will not be only for a limited period but
will last for a very long time and therefore a provision like this deserves our
consideration. We have already laid down that Judges of the High Court shall
not be allowed to practise after retirement at the bar in any Court. That of
course is a very salutary provision and is very good but if the temptation of
being appointed to other high positions after retirement is not removed, it
will also be liable to be abused by the Executive or by any party in power and
they may hold out such temptations which might affect the independence of the
judiciary. I personally feel that the amendment is very salutary and healthy.
Even though the language may leave to be different I hope that somewhere in our
Constitution the principle enunciated here will be embodied so that the
judiciary may be above temptation and nobody may be able to influence it.
Mr. President : Dr. Ambedkar, do you wish to say anything about Prof. Shah’s
motion?
The Honourable Dr. B. R. Ambedkar :
Mr. President, Sir, I regret that I cannot accept this amendment by Prof. Shah.
If I understood Prof. Shah correctly, he said that the underlying object of his
amendment was to secure or rather give effect to the theory of separation
between the judiciary and the executive. I do not think there is any dispute
that there should be separation between the Executive and the Judiciary and in
fact all the articles relating to the High Court as well as the Supreme Court
have prominently kept that object in mind. But the question that arises in
this: how is this going to bring about a separation of the judiciary and the
executive. So far as I understand the doctrine of the separation of the
judiciary from the executive, it means that while a person is holding a
judicial office he must not hold any post which involves executive power;
similarly, while a person is holding an executive office he must not
simultaneously hold a judicial office. But this amendment deals with quite a
different proposition so far as I am able to see it. It lays down what office a
person who has been a member of the judiciary shall hold after he has put in a
certain number of years in the service of the judiciary. That raises quite a
different problem in my judgment. It raises the same problem which we might
consider in regard to the Public Service Commission as to whether a Member of
the Public Service Commission after having served his term of office should be
entitled to any office thereafter or not. It seems to me that the position of
the members of the judiciary stands on a different footing from that of the
Members of the Public Service Commission. The Members of the Public Service
Commission are, as I said on an earlier occasion, intimately connected with the
executive with regard to appointments to Administrative Services. The judiciary
to a very large extent is not concerned with the executive: it is concerned
with the adjudication of the right of the people and to some extend of the
rights of the Government of India and the Units as such. To a large extent it
would be concerned in my judgment with the rights of the people themselves in
which the government of the day can hardly have any interest at all.
Consequently the opportunity for the executive to influence the judiciary is
very small and it seems to me that purely for a theoretical reason to
disqualify people from holding other offices is to carry the thing too far. We
must remember that the provisions that we are making for our judiciary are not,
from the point of view of the persons holding the office, of a very
satisfactory character. We are asking them to quit office at sixty while in
England a person now can hold office up to seventy years. It must also be
remembered that in the United States practically an office in the Supreme Court
is a life tenure, so that the question of a person seeking another office after
retirement can very seldom arise either in the United States or in Great
Britain.
Similarly, in the United States, so far as pension is concerned, the pension of
a Supreme Court Judge is the same as his salary: there is no distinction
whatsoever between the two. In England also pension, so far as I understand, is
something like seventy or eighty per cent. of the salary which the Judges get.
Our rules, as I said, regarding retirement impose a burden upon a man inasmuch
as they require him to retire at sixty. Our rules of pension are again so
stringent that we provide practically a very meagre pension. Having regard to
these circumstances I think the amendment proposed by Prof. K. T. Shah is both
unnecessary for the purpose he has in mind, namely of securing separation of
the judiciary from the executive, and also from the point of view that it
places too many burdens on the members who accept a post in the judiciary.
Shri H. V. Kamath : May I say that this amendment applies not to retired
Judges but to Judges serving on the bench at the moment?
The Honourable Dr. B. R. Ambedkar : If I may say so, the amendment seems to
be very confused. It says that it shall apply to a person who has served “for a
period of five years continuously”. That means if the President appointed a
Judge for less than five years he would not be subject to this, which would
defeat the very purpose that Prof. K. T. Shah has in mind. It would perfectly
be open to the President in any particular case to appoint a Judge for a short
period of less than five years and reward him by any post such as that of
Ambassador or Consul or Trade Commissioner, etc. The whole thing seems to me
quite ill-conceived.
Mr. President : The
question is:
“That the following new article 193-A after article 193 added:
‘193-A.
No one who has been a Judge of the Supreme Court, or of the Federal Court or of
any High Court for a period of 5 years continuously shall be appointed to any
executive office under the Government of India or the Government of any State
in the Union, including the office of an Ambassador, Minister, Plenipotentiary,
High Commissioner, Trade Commissioner, Consul, as well as of a Minister in the
Government of India or under the Government of any State in the Union.’”
The amendment was negatived.
----------
Article 194
Mr. President : The
question is:
“That article 194 stand part of the Constitution.”
The motion was adopted.
Article 194 was added to the Constitution.
-----------
Article 195
The Honourable Dr. B. R. Ambedkar : I move:
“That in article 195 for the words ‘a declaration’ the words ‘an affirmation or
oath’ be substituted.”
It is a very formal amendment.
Mr. President : The question is:
“That in article 195 for the words ‘a declaration’ the words ‘an affirmation or
oath’ be substituted.”
The amendment was adopted.
Mr. President : The question is:
“That in article 195, as amended, stand part of the Constitution.”
The motion was adopted.
Article 195, as amended, was added to the Constitution.
----------
Article 196
The Honourable Dr. B. R. Ambedkar :
Sir, I move:
“That for article 196, the following article be substituted:-
|
Prohibition
of practising in courts or before any authority by a person who held office
as a judge of a High Court.
|
‘196.
No person who has held office as a judge of a High Court after the
commencement of this Constitution shall plead or act in any court or
before any authority within the territory of India.’ “
|
It is simply a rewording of the same.
(Amendment Nos. 87 and 2627 to 2631 were not moved.)
Shri Prabhu Dayal Himatsingka : In view of the amendment moved by Dr.
Ambedkar now, my amendment (No. 2632) is not necessary.
(Amendments Nos. 2633 to 2637 were not moved.)
Sardar Hukam Singh : (East Punjab : Sikh): Sir, I beg to move:
“That in
article 196, for the words ‘within the territory of India’ the words within the
jurisdiction of that High Court’ be substituted.”
It is not
necessary for me, Sir, to make a speech as the amendment is self explanatory.
Shri H. V. Kamath : Sir,
article 196 has now been brought in an amended form before the House by the
Chairman of the Drafting Committee. To my mind even the amended article imposes
too sweeping a restriction on persons who have held office as judges of high
courts. We had visualised that a person could be appointed as a high court
judge either for a long tenure or a very short tenure too. I suppose the
amendment that has been moved by Dr. Ambedkar does not do away with the
possibility of a person acting or holding office as a high court judge for a
few months. Suppose a person has held office as a high court judge for a few
months, six or nine months, do we seek to impose a restriction upon him, a man
who has acted as a temporary judge for a short time? Do we seek to debar him
from pleading or practising not merely in any court but even before any
authority within the territory of India? It passes my comprehension why a
person who has sat on the high court bench for a short while should not be
allowed to appear before any court or authority within the territory of India?
It passes my comprehension why a person who has sat on on the high court bench
for a short while should not be allowed to appear before any court or authority
within the whole of India. There would have been some meaning, as my Friend Sardar Hukam Singh has suggested, if
the judge was precluded from appearing either in that High Court where he held
office or within the jurisdiction or within that territory of the Indian Union,
where the High Court held sway and jurisdiction,-what I mean to say is, in that
high court or in courts or authorities subordinate to that High Court in which
he held office as a judge. But to my mind this sweeping constitutional
prohibition is unwarranted and, may I say, undemocratic. I am inclined to
support the amendment of my Friend Sardar
Hukam Singh and I hope that it will receive some serious consideration at
the hands of the House, and the article amended accordingly.
Prof.
Shibban Lal Saksena : Sir, I am very much surprised at the
speech of my honourable Friend Mr. Kamath on this article. This article
deserves whole hearted support. In fact I should have thought that the words “after
the commencement of this Constitution” should be deleted. I do not see why it
should remain there. Everybody who has been a judge should be debarred from
practising. The prohibition which you want to impose now has a very salutary
reason behind it. In fact in Britain nobody who has been on the bench can
practise at the Bar. It is a very well known principle. It is also well known
that once when Lord Birkenhead and some others wanted to revert to the Bar,
public opinion was so vehemently against it that they did not dare to carry out
their resolve and practise. You may ask why should it be so. First of all, the
dignity of the High Court demands that an ex-judge should not come back to the
Bar. A High Court Judge may not have much money but his dignity is far greater
than that of anyone else. So if he comes back to the Bar he would bring down
the dignity of his office. It is for that reason that a man who has been a High
Court Judge should not revert to his practice at the Bar. I would go even
further. I would even say that those who have been ministers of justice should
not be allowed to practice at the Bar. I have seen some advocates who have been
ministers of justice going back to the Bar thus bringing down the dignity of their
office. Probably during office they cultivated especial relations with the
Chief Justice and other judges as they know they might have to revert to the
Bar. This should not be permitted.
It has been said that temporary judges should not be debarred from practice. I
hope that article 198 and 199 would be so amended that there will no more be
any temporary judges in our high courts and everybody who is on the bench will
be there, once he is appointed, for the period the constitution allows him to
be there. So the question of temporary judges not being debarred from practice
does not arise. It is therefore a very salutary provision that a man who has
once been on the bench should not come back to the Bar. I may be asked what are
the practical reason against it. First of all, a man who has been on the Bench
and wants to come back to the Bar would always be thinking of the possibility
of getting more clients. The clients will be attracted towards such a man and
that will be unfair to his colleagues at the Bar. He may also try to develop
contacts. It will not be very healthy when back to the Bar he may influence
clients by saying that the Chief Justice is his friend. For these reasons I
think a retired High Court Judge should not be permitted to resume practice. He
should not even be permitted to practice in other High Courts. I agree that he
should be given full pension, a sum almost equal to his salary so that he may
maintain the dignity of the office which he once held. To enable a man to
maintain his dignity and independence it is necessary that we must provide him
full pension, seeing that we are not permitting him to revert to the Bar or
seek other appointments which will interfere with his dignity and independence.
I am thankful to Dr. Ambedkar for the amendment he has moved. I only wish to
remove the words ‘after the commencement of the Constitution.’ My object is
that even those who have been judges before the commencement of the
Constitution should not be allowed to revert to practice at the Bar.
Shri Mahavir Tyagi (United
Provinces: General) : Mr. President, I may be pardoned for venturing to give
expression to my views on this issue. I am a layman and as such it may seem
somewhat presumptuous that I should talk on academic matters concerning law. At
another occasion, Dr. Ambedkar had objected to my saying that my feelings were
such and such. He insisted that I should express my opinions and not feelings.
It seems with literary men opinions and not feelings. It seems with literary
men opinions vary with their feelings. To me feelings and opinion mean the same
thing. I submit that in the case of judges of the High Court of the Supreme
Court, the seats that they occupy are the seats of God. It is so said in the
villages. The villagers say: ‘The seat of Justice is the seat of God’. The
highest ambition of a man in any country therefore is to occupy the seat which
is attributed to God. It has a great sanctity about it. Justice, in fact, does
not depend on law. It is very strange that the British have created in the
minds of people a sort of misgiving about justice. People have been made to
think that a true interpretation of law is real justice. It is not so. In fact
justice is an eternal truth; it is much to above law. At present what the
lawyers do is to shackle the free flow of godly justice. Sir, the language used
in the previous article in such that there is a possibility of laymen having
godly qualities being appointed as justices. Why should we always have lawyers
as judges? I do not know. Why should we presuppose that in future lawyers only
will occupy the seats of judges? The provision for the appointment of judges
says that the President, in consultation with the Chief Justice will appoint
them. Why should we take it that a judge shall always be a graduate in law? I
think there is a good possibility of persons, who are otherwise fully qualified
to administer justice, occupying the posts of judges and attain the highest
ambition of their life. It is wrong to think that the moment a non-lawyer is
appointed a judge the dignity attributed to that post will be gone. My belief
is that laymen would not only add to the dignity of this seat, but they would
also make it more sacrosanct. If after retirement from this high office, its
occupants were allowed to aspire for wordly wealth after doing the work of God,
after imparting justice, they would stultify both the office and themselves.
Sir, let me confess, I am opposed to the very profession of lawyers. They do
not create any values or wealth. They attain knowledge of law and put their
talents to auction or hire. Sir, if lawyers were appointed as judges and after
retirement they were also permitted to carry on their legal practice in courts,
the result would be that they would stultify the great office of ‘Justice’;
they would use these offices as spring boards or ladders to build much more
lucrative practice after retirement. I therefore submit that lawyers should not
be permitted to have any practice in a court of law when they revert from the
Bench. Sir, I am anxious that I should put in my views about the present manner
of imparting Justice. I am afraid I am going slightly off the track. But I may
be given this concession.
Mr. President : I am glad that the honourable Member has realised that he is
going off the track.
Shri
Mahavir Tyagi : You are also a lawyer and Sir, you will
pardon me when I say that they stultify real justice, because they want to make
God’s justice flow through the artificial channels of law made by man. That is
all what the lawyers do. Real justice is not bound by any shackles of law or
argument. According to the practice of British jurisprudence justice is given
only to the man who can engage a clever lawyer, because the realities are not
taken into account. A judge is unfit to try a case if he has a personal
knowledge about the incident. Unless he comes forward and gives evidence as a
witness and is cross-examined, his knowledge of the facts of a case counts for
nothing. The present conception of justice does not appeal to me. The law
courts at the present time are the nucleus and the fountain spring of all
corruption, dishonesty and lies, and therefore the seats of judges are no more
the seats of God in India. In our future set-up we should see to it that our
courts achieve their old past glory and be not enslaved and dominated by “Law”.
Justice is a fact and Law a mere fiction. Justice is a reality and Law is only
a mode of its expression. Let the man who is once appointed a judge, live a
life of truthful glory. Once a judge, always a Judge. He must be content with
his pension after retirement. If lawyers are ever appointed as judges they
should not revert to practice because it is certain that if they do so they
will use their posts as ladders for more practice.
I support the original proposition.
Shri B. M. Gupte (Bombay :
General): Sir, I concur with my Friend Mr. Kamath in that this proviso is far
too wide and drastic for our acceptance. According to the present situation the
retired High Court judges are not allowed to practise in that High Court and in
the courts subordinate to it. There is no further prohibition than that. I want
to ask, what is our experience? Why do you want this change? Has this provision
disclosed any defects? Has it brought forward any evil? If it has not, I do not
see why there should be a change at all. Is the Bar flooded by retired
judges? No, nothing of the sort has happened and can happen because success at
the Bar is not so easy a thing that anybody can try his hand at it. The question
of dignity may perhaps arise. I can understand that a man who has occupied the
Bench should not in that very court set up practice. But apart from that, is it
a fact that today no decent-minded person is prepared to accept the position of
a High Court Judge because the proposed prohibition is not there? On the
contrary the prestige of the post is so high that very able lawyers are
prepared to accept it and aspire for it. I therefore submit that the answer to
this question is again an emphatic ‘No’. Then the point may arise that perhaps
the retired Judge may exercise undue influence in the court. To that extent I
concede that the ban should extend to all the subordinate courts throughout the
territory. But that does not mean that he should be prevented from coming to
the Supreme Court. Supreme Court is in no way subordinate to any High Court. He
should also not be prevented from practising in other High Court. Therefore I
submit there is no reason why we should make a departure from the existing practice.
I may be told the practice in England warrants the introduction of the
innovation now being made. But, I ask, why go to England or America or Russia
when we have got our own experience to work upon? I submit that the change is
not warranted by the experience that we have already got. I am not saying that
this change is merely unnecessary; it is undesirable. We have already been
informed by the Drafting Committee in their foot-note to article 193 that: ‘The
result is that the best men from the Bar often refuse appointments on the Bench
because under the existing age-limit of sixty years they would not have time to
earn a full pension’. So, because of that age-limit, the best men are not
coming. That is admitted by the Drafting Committee. Then the Committee has
proposed that the salaries and pensions may be reduced. I quite understand Shri
Mahavir Tyagi when he says that if pensions are sufficient as in England, the
question does not arise. But there is a definite proposal by the Drafting
Committee itself to reduce salaries. I am not prepared to say that it should be
accepted. But there is that proposal for reduction of salaries and on top of
that comes this prohibition that they shall not practise anywhere. What would
be the cumulative effect of all theses things? I submit the result will be that
the best of men in the High Court Bar or mufassal Bar would not be prepared to
accept the appointment. I am not urging this in the interests of the top men.
They can take care of themselves. They need no sympathy or pity from us. They
would have their flourishing practice. But what would be the result of the
whole thing on the independence of our judiciary? That is the problem. In the
absence of top men, we shall have to choose men of lower calibre and men who have
failed at the Bar will be raised to the Bench. Or otherwise practically the
entire High Court will be manned by District Judges and Subordinate Judges. I
put it to you whether it is a desirable position. We have all along been
clamouring for the independence of the judiciary, but that cannot be achieved
by merely laying down that a Judge shall not be removed from office except
after an address by the Houses of the Legislature or by providing that their
salaries and allowances are chargeable to the revenues of the State. The
independence of the judiciary can be achieved only by making their conditions
of employment such that men of really independent spirit would be attracted to
those posts. I do submit that independent rising men would not be attracted if
we make the prohibition so sweeping. I may be told that Sir Tej Bahadur Sapru
was in favour of this provision. It may be. Sapru’s is an honoured name and his
views are entitled to our respectful consideration; but it does not mean that
we should follow his views blindly irrespective of the merits of the case. To
do that would be to bestow on him posthumously the position of a dictator,
which he himself would have detested.
Mr. President : No Member who has supported this proposition has brought in
the name of Sir Tej Bahadur Sapru. The honourable Member brings in his name and
starts criticising his supposed opinion. I think it is not right.
Shri B. M. Gupte : Sir, I am anticipating an argument. Any way I would only
submit, Sir, that we should consider all the relevant arguments in favour of
this proposal. And if we do that, the conclusion would be that the proposed
provision is not such as would attract the proper men at the top to these very
important position. I therefore submit that it is worth considering whether we
should retain it in the form in which it has been put.
An Honourable Member : The question be now put.
Mr. President : I
notice that about half a dozen Members still want to speak on this. I have
noticed that in discussing the articles relating to the Supreme Court and the
High Courts there is a tendency to prolong the discussion even where discussion
is not required. I would ask Members not to have discussion for discussion’s
sake, as I feel in some cases we are having. I think we had better proceed with
the voting on this article. Both points of view have been placed before the
House.
The question is:
“That the question be now put.”
The motion was adopted.
Shri Prabhu Dayal Himatsingka : I
want to draw the attention of the honourable the mover to amendment No. 2627
which says that no person who has held office as a Judge of a High Court shall
be entitled to practice before any court. There are a number of temporary
Judges in many High Courts at the present moment. As soon as this Constitution
comes into being....
Mr. President : I am going to take the vote and you start speaking.
(Some honourable Members rose to speak.)
Mr. President : I will put the closure motion again.
The question is:
“That the question be now put.”
The motion was adopted.
Mr. President : Dr. Ambedkar do you wish to say anything ?
The Honourable Dr. B. R. Ambedkar :
I do not think anything is necessary.
Mr. President : I will first
put Sardar Hukam Singh’s amendment
to the vote. If that is accepted, Dr. Ambedkar’s amendment will stand amended
by this.
The question is:
“That in article 196, for the words ‘within the territory of India’ the words ‘within
the jurisdiction of that High Court’ be substituted.”
The amendment was negatived.
Mr. President : The question is:
“That for article 196, the following article be substituted :-
‘196. No person who has held office as a judge of a
High Court after the commencement of
this Constitution shall plead or act in any court or before any authority
within the territory of India.’ ”
The amendment was adopted.
Mr. President : The question is:
“Article 196, as amended, stand part of the Constitution.”
The motion was adopted.
Article 196, as amended, was added to the Constitution.
---------
Article 196-A
(Amendment No. 2639 was not moved.)
Mr. President : A similar amendment, No. 1870 was moved and discussed at
great length and it was held over.
The Honourable Dr. B. R. Ambedkar :
I suggest that article 196-A may be held over. A similar article,
(No. 103-A) was held over.
Mr. President : I agree. This article will then stand over.
----------
Article 197
The Honourable Dr. B. R. Ambedkar :
Article 197 also may be held over.
Mr. President : I agree, this article also is held over.
----------
Article 198
The Honourable Dr. B. R. Ambedkar :
Sir, I move :
“That for article 198, the following article be substituted :-
|
Temporary
appointment of Acting Chief Justice.
|
‘198.
When the office of Chief Justice of a High Court is vacant or when any such
Chief Justice is, by reason of absence or otherwise, unable to perform the
duties of his office the duties of the office shall be performed by such one
of the other judges of the court, as the President, may appoint for the
purpose.’ “
|
(Amendment No. 2649 was not moved.)
Shri T. T. Krishnamachari :
Sir, amendment No. 2650 is covered by the amendment moved by Dr. Ambedkar
because it relates to clause (2). Dr. Ambedkar’s amendment is substantially the
same; it deletes clause (2) and only retains clause (1).
Dr. P. K. Sen : I do not want to move that amendment.
(Amendments Nos. 2651, 2652 and 2653 were not moved.)
Mr. President : The question is:
“That for article 198, the following article be substituted:-
|
Temporary
appointment of Acting Chief Justice.
|
‘198.
When the office of Chief Justice of a High Court is vacant or when any such
Chief Justice is, by reason of absence or otherwise, unable to perform
the duties of his office the duties of the office shall be performed by such
one of the other judges of the court as the President, may appoint for the
purpose.’ “
|
The motion was adopted.
Mr. President : The question is:
“That article 198, as amended, stand part of the Constitution.”
The motion was adopted.
Article 198, as amended was added to the Constitution.
----------
Article 199
Mr. President : There
are some amendments which want the article to be deleted. I do not take them as
amendments. Amendment No. 2656 is one of a drafting nature.
Mr. President : The question is:
“That article 199 stand part of the Constitution.”
The motion was negatived.
Article 199 was deleted from the Constitution.
---------
Article 200
(Amendment No. 2657 was not moved.)
Shri Jaspat Roy Kapoor (United
Provinces : General) : Mr. President, Sir, I beg to move:
“That in article 200, for the words “ The Chief Justice of a High Court’ the
words ‘The President’ be substituted.”
To this amendment, Sir, I beg to move another amendment and that is this :-
“That in article 200 after the words ‘at any time’, the words ‘with the previous
consent of the President’ be inserted.”
The article, when amended would read thus:-
“Notwithstanding anything contained in this Chapter the Chief Justice of a High
Court may at any time, with the previous consent of the President request any
person who has held the office of a Judge of that court to sit and act as a
judge of the court and every such person so requested shall, while so sitting
and acting, have all the jurisdiction, powers and privileges of, but shall not
otherwise be deemed to be, a judge of that court.”
Prof. Shibban Lal Saksena : Do you drop the proviso?
Shri Jaspat Roy Kapoor : I have not come to that yet. It is not necessary
for me to read it. I only want to deal with amendments for the time being to
the first para of article 200. I will come to the question of deletion of the
proviso later on.
Sir, under this article a retired Judge of the High Court is liable to be
called back to sit on the Bench of the High Court if the Chief Justice thinks
that it is necessary for him to call such a judge back. Now recalling a retired
judge to sit again on the Bench of the High Court virtually amounts to a new
appointment, though it may be only for the time being and since the President
is the appointing authority, I think it is only proper and advisable that
before such a request is made by the Chief Justice to any retired High Court
Judge, the previous consent of the President must be obtained. The words that
appear in this article, as it stands at present, are :
“That the Chief Justice of a High Court may at any time request any
person......”
without
of course, any reference to the President. That does not seem to be proper. I
think, therefore, Sir, that my amendment needs being accepted so that no
retired judge may be called back without the express consent of the President
taken in advance. Now, Sir, there is another amendment of which I have given
notice and it reads thus :-
“That with reference to amendments Nos. 2658 and 2659 of the List of
Amendments, in article 200, the proviso be deleted.”
“The proviso is: Provided that nothing in this article shall be deemed to
require any such person as aforesaid to sit and act as a judge of that court
unless he consents so to do.”
I do not desire to formally move this amendment, but I do certainly wish Dr.
Ambedkar to consider as to whether it is really necessary that this proviso
should be retained at all. To me it appears, Sir, that his proviso is not only
redundant, but it also does not appear to be a dignified one. It is redundant
in this way. It seems to presume that the Chief Justice of a High Court would
request a retired High Court Judge to come back and serve on the Bench without
having previously consulted the retired Judge that is going to be requested. We
should presume that the Chief Justice would be acting as a prudent man of
ordinary common sense and he would certainly not make a request to a person
only to get a ‘no’ from him. He would certainly take the retired Judge into
confidence, ask him whether he is prepared to come back to the Bench and
perform certain duties, and then alone he would approach the President to
obtain his consent. In this view, Sir, I think this proviso is absolutely
unnecessary. It does not look dignified to have this proviso here because it
means that a request would be made by the Chief Justice and thereafter it would
be open to the retired Judge to say, ‘no’. Of course, it is always open to a
retired Judge to express his inability to accede to the request. Once a request
having been made to him and thereafter to ask whether he is prepared to accede
to the request or not looks like putting the cart before the horse. Therefore,
this proviso is both unnecessary and gives a rather undignified appearance to
this article.
Again, I have given notice of an amendment which is No. 212 in List III which
runs thus :-
“The term ‘privileges’ shall not include the right to draw salary.”
I
am not moving this amendment even formally. But I would very much like the
Honourable Dr. Ambedkar to make it plain on the floor of this House whether the
term privileges’ does or does not include the right to draw salary. I believe,
Sir, It is not the intention of the Drafting Committee that a retired Judge of
the High Court when called back to serve on the Bench of the High Court should
be given again the salary which a permanent judge of the High Court is entitled
to. I believe, it is not their intention. But I certainly wish that no
ambiguity in regard to this matter should be left and it should not be open to
interpret this term later on as meaning that salary also is due to the Judges
who are called back after retirement. If the term were to include the right to
draw salary, it only nullifies one of the previous articles which we have just
passed laying down that a Judge shall retire at the age of sixty, because under
this article, even after retirement at the age of sixty, a Judge can be called
back even though he may be sixty-one, sixty-two, or seventy-five; if the Chief
Justice or a the President so like, they can call back a retired Judge even
after the age of sixty and enable him to continue to sit on the Bench of the
High Court for any number of years and give him even the full salary that a
permanent Judge of the High Court is entitled to. That would be a position that
we should not be prepared to accept. If it be said that the President and the
Chief Justice should be relied upon and that they would never like to
circumvent a previous article which we have just passed, I would say, when we
are framing a Constitution and when we are framing it in such an elaborate and
detailed manner, we should not leave these things merely to the good sense of
the Chief Justice or the President, but make a definite provision for
everything. My purpose, of course, would be amply served it the Honourable Dr.
Ambedkar makes it plain today that the word ‘privileges’ does not include the
right to draw salary.
Mr. President : There is amendment No. 201 of which notice has been given
by Dr. Ambedkar which is exactly the same as the amendment moved by Mr. Jaspat
Roy Kapoor. That amendment need not be moved.
The Honourable Dr. B. R. Ambedkar :
Sir, I move:
“That in article 200, the words ‘subject to the provisions of this article’ be
omitted.”
Mr. President : Two amendments have been moved. Does anybody wish to speak?
Mr. Tajamul Husain (Bihar:
Muslim): Mr. President, Sir, article 200 lays down the manner in which a
retired High Court Judge can be asked to come back and perform the duties of a
Judge temporarily. It says that it is the Chief Justice of that High Court who
would request him to come and sit on the Bench. If he agrees, then, of course,
he will be appointed for the time being. There is an amendment by my honourable
Friend Mr. Jaspat Roy Kapoor which says that instead of the Chief Justice of
that Court calling him, the President of the Union should do it. I think there
is very little difference between the two, whether it is the Chief Justice or
the President who should make the request. But I personally think in a matter
like this where a retired Judge, who was appointed when he was appointed by the
President of the Union and who is a man known to the Chief Justice, is being
called back, there is no reason why in a matter of day-to-day administration,
we should ask the President to perform this task. The Chief Justice knows every
retired judge, the merits of each of the judges. I submit that this amendment
of Mr. Jaspat Roy Kapoor is not right and therefore I oppose it. I think the article
as it stands may be accepted and it is the Chief Justice who should make the
request and not the President.
Shri Rohini Kumar Chaudhari (Assam:
General) : Mr. President, Sir, I welcome this article as amended by my
honourable Friend Mr. Jaspat Roy Kapoor. I fully endorse the remarks which have
been made by him so far as the deletion of the proviso is concerned. I consider
this proviso is absolutely meaningless and redundant. A request from the Chief
Justice does not stand in the place of any command from a Sovereign and a
request when it is made by the Chief Justice should not be treated as such.
Everybody knows it. After all a request is a request. That is to say, when a
Chief Justice makes a request to one of his ex-colleagues that request does not
have the force of a command, and nobody would consider it disloyal if he does
not comply with that request. I am inclined to think there will be hardly any
occasion when such a request will be disregarded. If the ex-Judge is not
prevented by illness or some other serious reason, he is bound to accept that
position with alacrity. We have seen how District Magistrates after retirement
have scrambled for the position of honorary magistrates. Therefore, it is not
very easy to imagine a position when an ex-Judge would refuse to hold
the position temporarily or where he would be unwilling to accept that position
without very strong reason.
I consider that article 200 as it stands amended by my honourable Friend Mr.
Jaspat Roy Kapoor helps us a good deal. That helps us to get out of the hole
which the amendment of my honourable Friend Dr. Ambedkar has put us in today.
According to the amendment of Dr. Ambedkar, anyone who has held office as a
Judge even for a single day will be disqualified from practising in any court
in India; that is to say he will absolutely find himself out of employment,
unless the Government is pleased to appoint him as an Ambassador or as a
Minister Plenipotentiary or the finds his way through election and becomes a
Minister of some State, because the amendment which was moved by Prof. Shah has
not been accepted by this House. The Chief Justice or a Judge of any Court even
after retirement can look forward to the position of an Ambassador or High
Commissioner or Minister or any other similar executive office. I do not
understand why a Judge who has been sitting as Judge for five years and who
has-so to speak-acquired the judicial habit-how can he be called upon to accept
the position of a High Commissioner or that of an Ambassador is more than I can
grasp.
Mr. President : The honourable Member is now discussing a proposition which
we have already disposed of.
Shri Rohini Kumar Chaudhari : I am only talking of the position which has
been created after the rejection of the amendment of Professor Shah and after
the acceptance of the Honourable Dr. Ambedkar. The only solution which can
relieve us of that position is the present article 200 which enables us to make
provision for employment of ex-Judges, who have left the service at a
fairly good age. He is fit to hold the responsible position of Minister or High
Commissioner or Ambassador and still he is not in a position to practice in any
Court in India, and the only help you can render to that man who had
fortunately or unfortunately been selected as High Court Judge and held that
position for one year or so is that his plight should be borne in mind by the
Chief Justices of the different High Courts that whenever any opportunity
occurs of providing any employment for such ex-Judges, they should be
remembered and they should be requested to render service. Therefore I welcome
this provision because in this method there is no limit of age; if only the
Chief Justices of different High Courts in India will only bear in mind their ex-colleagues
and try to provide for them in every opportunity, then the question of finding
employment for ex-Judges gets solved to some extent at least.
I also wanted to mention another fact which require clarification, viz.,
whether these ex-Judges who will be requested to sit as Judge will get
any emolument. The article says that they will be given privileges of a High
Court Judge. Whether the word ‘privileges’ includes also salaries or emoluments
or remuneration, I want to know whether they will be honourary Judges or
whether they will be stipendiary Judges. whether they will be merely content
with the privileges of a High Court Judge which are of different variety or
whether they will also be in the same status as the other Judges of the same
Bench and whether they will get any salary or not, and whether there can be any
limit of the term of their office or whether they can be requested to hold the
office for any term exceeding two years, because in one of the articles I find
that it was intended that in no case a temporary Judge should be appointed in
this manner for more than two years. This is a point which requires
clarification. I also want to know designation they will have, whether they
will be called Judge of the High Court or not for the term in which they are
working, but the article says they will not be deemed to be Judge of that Court
for any other purpose excepting for sitting as a Judge. What will be their
designation, will they form the personnel of the Judges of that High Court or
they will have no designation and be merely requested to work for seven or
eight days temporarily? I hope Dr. Ambedkar will clarify these two points, viz.,
what will be their designation, what will be their salary, if any, and what
would be the term of their office.
Dr. Bakshi Tek Chand :
Mr. President, Sir, I had no intention of taking part in the debate on this
article, if it had not been for the speeches which have been made by Shri
Jaspat Roy Kapoor and Shri Rohini Kumar Chaudhari. It seems to me that the whole
purpose and object of introducing article 200 in the Constitution has been
misunderstood. It has been thought that this article is intended to nullify the
article which has been passed already by the House that the Judges of the High
Courts shall retire compulsorily at the age of 60. It is supposed that a Chief
Justice of a High Court, acting under the powers given to him in article 200,
may ask a retired Judge who is his friend or favourite to come and join the
Court and may keep him there for any length of time. Mr. Chaudhari’s suspicions
are that this period may be two years or longer, that is to say, a Judge who
has retired at the age of 60 may two years later, when he is 62, be recalled
and may be asked to work again for a year or two or a longer period. Surely, if
that is the underlying idea, there is a great deal in what the honourable
Members have said. But if I may say so with great respect, that is not the
intention of this article and that could not have been the intention of the
Drafting Committee.
Pandit Thakur Das Bhargava : The question is whether this article is
susceptible of this interpretation or not.
Dr. Bakshi Tek Chand : This article has been introduced in order to make it
possible for the Chief Justice to introduce here the practice which has been in
vague in England and U.S.A. for a very long time. There, retired Judges are not
invited to come back and become regular members of the Court even for 6 months
or 8 months. It is only for decision of a particular case, or a group of cases
of difficulty and importance, where it is thought that the ripe experience and
expert knowledge of persons who had retired but who are still available in the
realm will be very helpful, that their services may be requisitioned by the
Chief Justice for assistance. In England a retired Judge when he is asked to do
so, receives no salary at all. He gets only a small allowance, which used to be
2 guineas a day plus conveyance expenses-something like the Rs. 45 a day
which the Members of this House receive when they sit in the House. It is
considered derogatory to the position of a retired Judge to be re-employed as a
regular member of the Court for six months or for a longer period and it will
be very improper-indeed, it is inconceivable-that the Chief Justice of the
Court will resort to this method of having his own “favourites” back on the
Bench in order to get a particular decision in a case when he finds that his
other colleagues do not take the particular view that he takes. Such a thing is
unthinkable. Certainly, that could not be the object of enacting article 20. In
England, eminent Judges- e.g. Lord Darling to asked at the age of 82 to
come and sit for a particular case or group of cases, in which difficult
questions of law had arisen and it was thought necessary to have the benefit of
his talent and expert knowledge in that branch of law. After deciding the
particular case or cases the Judges go back to their retirement. They come to
London, stay there for a short time, receive this meagre allowance to meet
hotel charges. About ten years ago they used to get two guineas a day plus
taxi expenses, which used to come to twelve shillings a day that is Rs. 30 to
Rs. 40 a day and no more.
It is considered a compliment by the Judge also, that the Chief Justice thinks
that though he is retired, his talent will be of assistance in deciding cases.
He therefore ungrudgingly placed his services at the disposal of the court. It
is the Lord Chancellor who invites Members to sit in the Judicial Committee and
it is the Chief Justice who asks the assistance of retired Judges in the High
Court. I take it that that is the intention and all suspicions and fears, which
have been expressed, are unfounded. Similarly it will be undesirable that when
arrears pile up the Chief Justice should invite a retired judge at the age of
63, or 65, or 67 or more to come back to clear off these arrears. This would be
very derogatory to the retired Judge and very improper for the Chief Justice to
do so. If such a Judge is not to receive an allowance, then it will be
introducing a system of having ‘Honorary’ Judges of the High Court, something
like glorified Honorary Magistrates with all the attendant evils, of the
system. That is not the intention. It could never have been the object of
introducing this article in the constitution. The idea is to introduce in India
the time-honoured practice which has been in vogue in England and U.S.A. for
many many years and which is resorted to very rarely-once or twice a year for a
period of a few weeks or so to decide a particular case or set of cases of
every great difficulty and importance. That is what the article contemplates. I
therefore submit that the article, as drafted, should be passed without any
amendments and Members should have no apprehensions of the kind that have been
expressed.
Shri H. V. Kamath : Mr.
President, I desire to sound a note of caution. I am afraid that this article,
if we adopt it in its present form incorporating the amendment of Dr. Ambedkar,
or my Friend Mr. Kapoor, might entail unpalatable consequences at some time,
consequences to my mind other than those which the wise men assembled here have
intended. I am not aware from which written constitution of the world this
article has been borrowed. In this article, neither the circumstances under
which certain judges can act, nor the time during which they should sit has
been mentioned. My learned Friend Dr. Bakshi Tek Chand, has stated that a judge
will not be employed merely to dispose of accumulated arrears. I agree with him
that it would be derogatory to the dignity of a High Court Judge to be called
upon to dispose of some arrears. If that be not the case, then for what purpose
will his talents be utilised? Obviously to my mind there is only one other category
of cases, and that might be important cases involving issues of vital
constitutional importance-issues that might arise between the Centre and the
units, or between different units. Here as I stated earlier, it may be that the
Executive may like to have a decision in a particular fashion and we have
already decided here in this Assembly that the Judiciary shall not be
completely separate from the Executive. We might take steps some time or other,
but.
Dr. P. S. Deshmukh : May I point out that this section refers to the High
Court and not to the Supreme Court?
Shri H. V. Kamath : We have laid down that the Judiciary will not be
independent of the Executive and so long as that is so, there is no obviating
the possibility or no guarantee against the judiciary being the handmaid of the
executive: or if that is too strong a word, the judiciary kowtowing to the
executive, not on all occasions but on some occasions, now that the House has
not accepted Prof. Shah’s suggestion that the plums of executive office should
not be open to judges in office. So there is no guarantee that the judiciary
will be actuated by a sense of the completest integrity and independence.
Dr. Ambedkar has moved another amendment seeking that the power of appointing
the High Court Judge or the acting Judge of the High Court should be divided
between the Chief Justice and the President. The Chief Justice shall consult
the President. It may be making assurance doubly sure that the right man will
be called in. But we are not always sure-in fact none of us here can be
sure-about the calibre of the men who will be filling these exalted offices and
becoming the high dignitaries of our State in future. So long as the
constitution does not ensure the separation of the judiciary from the
executive, nor its independence, if the President is inclined to meddle in the
judiciary, or is included to see that the judiciary kowtows to Ko his will, or
his subservient to his will, or is the handmaid of the executive, then the
President will on certain issues dictate to the Chief Justice. But it is also
quite likely that in effect the President will tell the Chief Justice to
do such and such.....
Mr. President : Article 107, which we have already adopted relating to
similar judges being invited to the Supreme Court is in exactly the same
wording as this article, and all this argument now seems to me to be beside the
point.
Shri H. V. Kamath : Have we incorporated this amendment about the
President?
Mr. President : Yes.
Shri H. V. Kamath : I thought it was not there. I thought this was a new
amendment, inserting the President in connexion with the appointment of acting
Judges to the High Court. I should therefore submit so far as the High Court is
concerned, if it is not merely to dispose of accumulated arrears then it must
be to deal with certain cases which may involve technical or constitutional
issues. In that event, I feel that the Chief Justice, so far as the acting
Judges are concerned, is the competent authority and he need not consult the
President at all. So far as the acting period is concerned, Dr. Bakshi Tek
Chand has mentioned four, five or six weeks, and he has mentioned the case of
Justice Darling. There was another great Judge, Justice Haldane. But such
judges are rare and I hope that this system of appointing acting judges will
not occur in our country.
Mr. President : The word “appointment” does not occur in the article at
all. It is not an appointment but a request for particular occasions.
Shri H. V. Kamath : The article says that he acts as a Judge of the High
court. It may not be technically an appointment.
Dr. Bakshi Tek Chand : He has to “act” because he has to decide cases.
An Honourable Member : He is not an acting judge.
Shri H. V. Kamath : He is an acting judge certainly. He acts as a judge of
the High Court, and is certainly an acting Judge of the High Court. Let us not
do hair-splitting here.
To my mind when it is a case of a small period of ten days or a fortnight, as
Dr. Bakshi Tek Chand told us, I do not see why the President should come into
the picture at all. The Chief Justice is competent enough to ask any judge to
dispose of any cases for the time being. The President, to my mind, need not
come in, and the Chief Justice should be entrusted with the task of requesting
a retired judge to act as a judge on any particular occasion.
Lastly, Sir, the proviso is absolutely meaningless, purposeless, redundant and
superfluous. I do not know why the wise men of the Drafting Committee thought
fit to incorporate the proviso here. It must have been in a fit of, may I say,
adding a little verbiage to the constitution. No person can be compelled to do
this work, unless you are going to enforce a system of begar in the
country. We have done away with begar and I suppose, so far as the
judges are concerned too, we shall not enforce begar. If the judge
agrees to work he will comply with the request of the Chief Justice. The
proviso is therefore absolutely meaningless and pointless, and I hope the wise
men of the Drafting Committee will see their way to delete the proviso.
Prof. Shibban Lal Saksena :
It has been said in the note to this clause that the employment of retired
judges follows the practice in the U. K. and the U.S.A. That has been said in
defence of retaining the section. In the U.S.A., as has been pointed out by the
Chairman of the Drafting Committee himself the judges get a pension almost
equal to their salary and in England they get a pension equal to 80 per cent of
the salary which they drew as judges. If after retirement they are called to
the Bench, it is not a matter of monetary gain to them, it is only a matter of
distinction and of duty done for the state. I give my conditional support to
this clause. If we also lay down that the retired judges of the High Court
shall get as pension the full salary which they were getting when in office or
at least 80 per cent of it as they do in England, then judges will not try to
seek the favour of the Chief Justice so that they may be called back by him to
the Bench. My Friend, Bakshi Tek Chand, said that this is only for particular
occasions and for particular periods but the wording of the article does not
warrant this. Under article 189 we should not have any additional or temporary
judges. It is quite possible that there may be arrears and this may be a device
to be adopted by the Chief Judges to recall retired judges and ask them to
dispose of the arrears. The article does not say that the men requested shall
not continue to act for two or three years. In fact I feel that this is calling
back judges by the back door. I should have personally preferred a higher age
of retirement for judges, sixty-six for High Courts and seventy for the Supreme
Court. We could then have said that these judges will not have to be recalled.
You retire them at sixty and then call them back. It only means that you are
throwing open possibilities of nepotism and favouritism. The judges will be
inclined to see that they do not get on the wrong side of the Chief Justice
with the result that they will have no chance of recall. My suggestion is
firstly, that the pension of the judges should be almost equal or 80 per cent.
of their salary when in office and secondly, that they shall be called only in
particular cases and for a stated period. They shall not be acting judges
brought in by the back door.
The Honourable Dr. B. R. Ambedkar :
Sir, I did not think that this article would give rise to such a
prolonged debate, in view of the fact that a similar article has been passed
with regard to the Supreme Court. However, as the debate has taken place and
certain Members have asked have asked me certain definite questions, I am here
to reply to him.
My friend Mr. Kamath said that he did not know whether there was any precedent
in any other country for article 200. I am sure he has not read the Draft
Constitution, because the footnote itself says that a similar provision exists
in America and in Great Britain. (Inaudible interruption by Mr. Kamath). In fact,
if I may say so, article 200 is word for word taken from section 8 of the
Supreme Court of Judicature Act in England. There is no difference in language
at all. That is my answer, so far as precedent is concerned.
But, Sir, apart from precedent, I think there is every ground for the provision
of an article like article 200. As the House will recall we have now eliminated
altogether any provision for the appointment of temporary or additional judges,
and those clauses which referred to temporary or additional judges have been
eliminated from Constitution. All judges of the High Court shall have been
eliminated from the Constitution. All judges of the High Court shall have to be
permanent. It seems to me that if you are not going to have any temporary or
additional judges you must make some kind of provision for the disposal of
certain business, for which it may not be feasible to appoint a temporary judge
in time to discharge the duties of a High Court Judge with respect to such
matters. And therefore the only other provision which would be compatible with
article 196 (which requires that no judge after retirement shall practise) is
the provision which is contained in article 200. As my Friend Dr. Tek Chand
said, there seems to be a lot of misgiving or misunderstanding with regard to
the purpose or the intention of the article. It is certainly not the intention
of the article to import by the back door for any length of time persons who
have retired from the High Courts. Therefore nobody need have any misgiving
with regard to this.
The other question that has been asked of me is with regard to the proviso.
Many people who have spoken on the proviso have said that it appeared to them
to be purposeless and meaningless. I do not agree with them. I do think that
the proviso is absolutely necessary. If the proviso is not there it would be
quite open for the authorities concerned to impose a sort of penalty upon a
judge who refuses to accept the invitation. It may also happen that a person
who refuses to accept the invitation may be held up for contempt of court. We
do not want such penalties to be created against a retired High Court Judges
who either for the reason that he is ill, incapacitated or because he is
otherwise engaged in his private business does not think it possible to accept
the invitation extended to him by the Chief Justice. That is the justification
for the proviso. The other question that has been asked is whether the word ‘privilege’
in article 200 will entitle a retired judge to demand the full salary which a
judge of the High Court would be entitled to get. My reply to that is that this
is a matter which will be governed by rules with regard to pension. The
existing rule is that when a retired person is invited to accept any particular
job under Government he gets the salary of the post minus the pension. I
believe that is the general rule. I may be mistaken. Anyhow, that is a matter
which is governed by the pension rules. Similarly this matter may be left to be
governed by the rules regarding pension and we need not specifically say
anything about it with regard to this matter in the article itself. This is all
I have to say with regard to the points of criticism that have been raised in
the course of the debate.
Shri H. V. Kamath : Is there such a provision in the Constitution of the
United States?
The Honourable Dr. B. R. Ambedkar : I have not got the text before me. In
the United States the question does not arise because the salary and pension
are more or less the same.
I am prepared to accept amendment No. 89 of Mr. Kapoor, because some people
have the feeling that article 200 is likely to be abused by the Chief Justice
inviting more than once a friend of his who is a retired judge. I therefore am
prepared to accept the proposal of Mr. Kapoor that the invitation should be
extended only after the concurrence of the President has been asked for.
Shri Jaspat Roy Kapoor : May I know whether it is the intention that the
interpretation of the term ‘privileges’ should be left to the Parliament?
The Honourable Dr. B. R. Ambedkar : It may have to be defined. There is no
doubt about it that Parliament will have to pass what may be called a Judiciary
Act governing both the Supreme Court and the High Courts and in that the word ‘privilege’
may be determined and defined.
Shri Jaspat Roy Kapoor : But the privileges will be the same in the case of
a judge who has been called back and that of the permanent judges. That is what
article 200 lays down.
The Honourable Dr. B. R. Ambedkar : Yes, but privilege does not mean full
salary.
Mr. President :
Amendment No. 89 moved by Mr. Jaspat Roy Kapoor has been accepted by Dr.
Ambedkar. I will now put it to vote.
The question is:
“That in article 200 after the words ‘at any time’, the words ‘with the
previous consent of the President’ be inserted.”
The amendment was adopted.
Mr. President : I will not put to the House amendment No. 2659.
The question is:
“That in article 200, the words ‘subject to the provisions of this article’ be
omitted.”
The amendment was adopted.
Mr. President : Now the question is:
“That article 200, as amended, stand part of the Constitution.”
The motion was adopted.
Article 200, as amended, was added to the Constitution.
--------
Article 201
Mr. President : There
are no amendments to article 201. If nobody wants to speak on it, I will put it
to vote.
The question is:
“That article 201 stand part of the Constitution.”
The motion was adopted.
Article 201 was added to the Constitution.
---------
Article 202
Mr. President : Article 202 is now for discussion.
Shri H. V. Kamath : Mr.
President, I move:
“That in clause (1) of article 202, for the words ‘to issue directions or
orders in the nature of the writs of habeas corpus, mandamus, prohibition,
quo warrants and certiorari’ the words ‘to issue such directions or orders
as it may consider necessary or appropriate’, and for the words ‘and for any
other purpose’ the words ‘or for any other purpose’ be substituted
respectively.”
If amendment No. 2660 were accepted, clause (1) of article 202 will read as
follows :-
“Notwithstanding anything contained in article 25 of this Constitution, every
High Court shall have power, throughout the territories in relation to which it
exercises jurisdiction, to issue such directions or orders as it may consider
necessary or appropriate, for the enforcement of any of the rights conferred by
Part III of this Constitution or for any other purpose.”
The second part is purely verbal but I think this change is necessary. The
clause as it stands relates both to the enforcement of the rights conferred by
Part III and for any other purpose. If the word ‘or’ is substituted for the
word ‘and’, it would make the meaning quite clear, that is to say, that the
High Court has power to issue orders not merely when both are affected but on
either ground. I think there should be no difficulty in the way of the House
accepting this second part of the amendment. I sent in two separate amendments
and that is why I am speaking about them separately.
As regards the first part of the amendment, I believe that in the interests of
brevity, not however, at the expense of precision or clarity, we can omit the
mention of the various writs. The courts should be competent to issue whatever
orders or writs that may be necessary for the enforcement of any of the rights
enumerated in Part III, i.e. Fundamental Rights. By omitting the mention of
these writs, the meaning of the clause would not be affected adversely in any
manner. We have already stated in Part III, article 25, the writs that can be
issued for the enforcement of the various fundamental rights. I remember that
there was an amendment accepted by Dr. Ambedkar and the House on that occasion
which slightly modified it by saying that the Supreme Court shall have powers
to issue orders or writs including writs in the nature of habeas corpus,
etc., or something to that effect; but in any case I believe that this clause, as
its stands, is loaded with unnecessary and useless verbiage. The High court
Judges know what particular writs or orders or directions should be issued in
particular cases. We need not lay down in the Constitution what particular
writs or orders may be appropriate on particular occasions. The passage of time
and the evolution of case law may bring to birth decrees or writs of some other
nature. Why should we bind the High Courts to these particular writs mentioned
in this clause? The verbal amendment substituting the word ‘or’ for the word ‘and’
will make the meaning clearer. Sir, I move.
Dr. Bakshi Tek Chand :
Mr. President, Sir, I formally move:
“That in clause (1) of article 202, before the words ‘in the nature of’ the
words ‘including those’ be inserted.”
There is another amendment which I would like to move with your permission as
an amendment to this amendment, which is of a verbal character and will clarify
the position. This amendment to amendment reads as follows:-
“That with reference to amendment No. 2661 of the List of Amendments, in clause
(1) of article 202, for the words ‘or orders in the nature of the writs’ the
words ‘orders or writs including writs in the nature’ be substituted.”
This amendment to amendment brings the phraseology of this article in line with
that of article 115 which we have already passed in regard to the Supreme
Court, and also of article 25, where similar powers are given to the Supreme
Court in respect of the Fundamental Rights. This amendment is, therefore,
purely of a verbal character and I would ask the House to accept it. In doing
so, I may make one or two observations with regard to the remarks made by my
Friend, Mr. Kamath. He suggests that it is not necessary to enumerate or
specifically mention in the article the writs of habeas corpus, mandamus,
prohibition quo warranto and certiorari. With great respect, I
entirely differ with my honourable Friend. It is, in my opinion, very necessary
that these writs should be mentioned by name. We have done so with regard to
the Fundamental Rights in article 25 and we have also mentioned them in
connection with the Supreme Court in article 115; and for the reasons for which
these writs were specifically mentioned in these articles, they should be mentioned
here also. These are the writs which, I may remind the House, have been among
the greatest safeguards that the British judicial system has provided for
upholding the rights and liberties of the people, and it is very necessary that
they should be incorporated in our Constitution. At present High Courts which
are not Presidency High Courts, viz., the High Courts of Allahabad, East
Punjab, Patna, Nagpur, Orissa, Assam, etc. have not got any of these powers.
The writ of certiorari cannot be issued by any of these High Courts.
Even in the provinces of Bengal, Bombay and Madras, this particular writ can be
issued only within the limits of their respective ordinary original
jurisdiction. For instance, in the province of Madras, if a particular
proceeding is pending in the court of Trichinopoly or Madura, the High Court in
Madras has got on jurisdiction to issue a writ. It is only in regard to cases
coming from the city of Madras and a few miles around that the High Court has
got this power. Outside these limits, it had got this power only with regard to
European subjects. The reason for this was that the jurisdiction of these High
Courts was supposed to be derived from the Charters of the Supreme Courts which
had been established in these provinces during the time of the East India
Company by characters issued by the King of England, and it was said that their
jurisdiction was limited only to the Presidency towns or to subjects of British
extraction where they are found. In the new Constitution it is intended to give
the power to issue these writs to every High Court, and will be exercised
throughout the territories within its jurisdiction, and in order to put matters
beyond doubt, it is necessary that these writs be specifically mentioned. Sir,
we all know that the writ of habeas corpus is, the most important of
these writs. With regard to this writ, until section 491 was added to the Code
of Criminal Procedure, there was no power to issue this writ in the High Courts
of Allahabad, Patna, Lahore and Nagpur. Section 491 gave this power to these
High Courts only partially. Recently, before the East Punjab High Court the
question arose whether the powers and procedures of the High Court under
section 491 were co-extensive with the powers and procedure of the High Courts
of England in this matter. As you know, Sir, if a writ is refused by one Judge,
the party can move a second Judge, and in succession, a third Judge or a fourth
Judge and so on, until he has exhausted all the Judges. In the East Punjab High
Court the question was raised some six or eight months ago whether a party had
a similar right to go to each Judge in succession, and it was held that this
cannot be done, because they have not got the same powers as the High Courts of
England to issue writs of habeas corpus. The power of non-Presidency
High Court in India is derived from section 491 and under it you can apply for
a writ only once. This will illustrate as to why it is very necessary that
these writs should be mentioned by name so that there be left no ambiguity that
the power and the procedure prevailing in England is to be followed here. I
hope the amendment which I have moved will be accepted by Dr. Ambedkar and that
the article, as amended, will be passed by the House.
Mr. President : Dr. Ambedkar, do you wish to move amendment No. 2663?
The Honourable Dr. B. R. Ambedkar :
No. Sir, I accept Bakshi Tek Chand’s amendment. I do not think that any reply
is necessary.
Shri H. V. Kamath : There has been an amendment to substitute “or” for “and”.
The Honourable Dr. B. R. Ambedkar : There is no difference as to the
substance of the article.
Shri H. V. Kamath : It makes a difference as to the meaning.
Mr. President : The
question is:
“That in clause (1) of article 202, for the words “to issue directions or
orders in the nature of the writs of habeas corpus, mandamus,
prohibition, quo warranto and certiorari’ the words ‘to issue
such directions or orders as it may consider necessary or appropriate’, be
substituted.”
The amendment was negatived.
Mr. President : The question is:
“That in clause (1) of article 202, for the words ‘and for any other purpose’,
the words ‘or for any other purpose’ be substituted.”
The amendment was negatived.
Mr. President : The question is:
“That with reference to amendment No. 2661 of the List of Amendments, in clause
(1) of article 202, for the words ‘or orders in the nature of the writs’ the
words ‘orders or writs including writs in the nature’ be substituted.”
The amendment was adopted.
Mr. President : The question is:
“That article 202, as amended, stand part of the Constitution.”
The motion was adopted.
Article 202, as amended, was added to the Constitution.
---------
Article 203
The Honourable Dr. B. R. Ambedkar :
Sir, I wish that article 203 be held over.
Mr. President : Article 203 is held over.
----------
Article 203-A
(Amendment No. 2673 was not moved.)
-----------
Article 204
Prof. K. T. Shah : Mr.
President, Sir, I beg to move:
“That in article 204, for the word ‘shall’ the word ‘may’ be substituted.”
The amended article would read thus:
”If
the High Court is satisfied that a case pending in a court subordinate to it
involves a substantial question of law as to the interpretation of this
Constitution, it may withdraw the case to itself dispose of the same.
Explanation.-In this article, ‘High Court’ includes a court of final
jurisdiction in a State for the time being specified in Part III of the First
Schedule with regard to the case so pending.
Mr. President : It may withdraw the case to itself.
Prof. K. T. Shah : I do not wish that the withdrawal of the case must be
compulsory or mandatory, but some discretion must be left, and the case may be
withdrawn if the judge so decides, but not necessarily, as this article
requires him to do as clear compulsion on the judge to ask the case to be
withdrawn.
There may be points of law, or even other issues involved; and in the absence
of specific reasons or grounds on which you make it mandatory for him to
withdraw the case, I think it would as well to make it permissive, and allow
the case to be withdrawn if the judge so chooses, but not as a matter of
necessary obligation. Had there been grounds stated, viz., in the
following events or in the case of any political or other factor being
involved, then it would be compulsory to so withdraw, I would not have objected
to the article as it stands. The substitution of “may” for “shall” will really
help the courts of justice rather than hinder them. I therefore commend my
amendment for the acceptance of the House.
Mr. Mohd. Tahir : Sir,
I beg to move:
“That in article 204, after the words ‘it shall’ the words ‘after taking the
opinion of such court in writing’ be inserted.”
If the amendment is accepted, the clause will read thus :
“If the High Court is satisfied that a case pending in a court subordinate to
it involves a substantial question of law as to the interpretation of this
Constitution, it shall after taking the opinion of such court in writing,
withdraw the case to itself and dispose of the same.
I have moved this amendment, Sir, because if any question of interpretation of
this Constitution arises in any subordinate court, there can be no objection to
such a matter being disposed of by the High Court after the case is withdrawn
if such questions to arise in subordinate courts. I think it is better that the
opinion of such court in writing should be obtained so far as the
interpretation of such matter is involved in that court, because in many cases
we find that the High Courts do agree with the judgments of the subordinate
courts. Therefore, Sir, it does not mean that the subordinate courts are not in
a position to give their opinion so far as the constitutional matter is
concerned, because they are not given this power to dispose of such matter the
case has to be withdrawn by the High Court and when they are going to withdraw
such matters, it is not only desirable but reasonable that the opinion of such subordinate
courts where the questions of interpretation of constitution do arise should be
taken before it is disposed of by the High Courts. With these few words, Sir, I
move my amendment.
The Honourable Dr. B. R. Ambedkar :
Sir, I move:
“That the explanation to article 204 be omitted.”
Sir, it is unnecessary.
Dr. Bakshi Tek Chand :
Sir, I wish to say a few words in opposing the amendments which have been moved
by Prof. Shah and Mr. Mohd. Tahir. The amendment of Prof. Shah is to the effect
that the word “may” be substituted for the word “shall” in the first part of
article 204. If this amendment is accepted, then the whole of this article 204
will become unnecessary, as both under Section 24 of the Civil Procedure Code,
and 526 of the Criminal Procedure Code the High Court has the power to withdraw
in its discretion, any civil or criminal cases pending in any court subordinate
to itself. The reason for inserting the word “shall” in article 204 is to make
it obligatory on the High Court to withdraw the case, provided it is satisfied
that the case pending in the Subordinate court involves a substantial question
of law as to the interpretation of this Constitution. If the High Court is
satisfied that such a question is involved, it shall withdraw the case to
itself and dispose of the same. It is very necessary that all questions
relating to the interpretation of the Constitution should be decided as early
as possible. A case in a subordinate court may last for a year or two or more.
Then, there may be an appeal to the District Judge and the case may come in the
first or second appeal to the High Court after a very long time. In the
meantime, the important question of constitutional law will remain unsettled.
This will be very undesirable, indeed.
The second reason in this. There should be an authoritative decision on these
questions by the highest court in the province at the earliest possible date.
Otherwise, a particular point may be involved in a case pending in one district;
the same point may be involved in three or four other cases pending in other
districts and there may be contradictory decisions by these various subordinate
courts, and this will result in great confusion. In order to ensure a speedy
decision of important constitutional questions, and at the same time to see
that an authoritative decision is given on those points by the highest court in
the province, it is necessary that the word ‘shall’ should remain. It was with
this object that this special provision is sought to be incorporated in the
Constitution Questions relating to the interpretation of the Constitution are
likely to arise soon after the Constitution comes into force. For that reason
alone it is necessary that speedy and authoritative decisions should be given. From
such a decision of the High Court, an appeal may, if necessary, be taken to the
Supreme Court and the matter finally decided for the whole country. It is
therefore, desirable to make a provision with regard to this in the
Constitution.
The other amendment moved by Mr. Tahir, is that the opinion of the court in
which the case is pending should be taken in writing. I do not know what useful
purpose will be served by taking the opinion of the subordinate court on these
points. It should be borne in mind that the article does not lay down that
every case in which a question of law as to the interpretation of the
Constitution is involved will automatically be transferred to the High Court.
There are two very important conditions which must be fulfilled. One is that
the question involved must be a substantial question of law as to the
interpretation of this Constitution, and not every question involving such
interpretation, even if it arises incidentally or collaterally. It should be a
question of importance which goes to the very root of the case. Even then, it
is not necessary that the case will be transferred to the High Court. The words
of the article are that “the High Court is satisfied.” The High Court shall
examine the matter when it comes to its notice. If the Judges are satisfied
that the question involved is a substantial question of law as to the
interpretation of this Constitution, only in that case, will the case be
withdrawn to the file of the High Court. Why is it necessary in such a case to
obtain the opinion of the Subordinate Judge before coming to the High Court?
This amendment will have the effect of delaying the decision of the point and
of holding up the proceedings unnecessarily. I submit, therefore, that the
article as drafted should be accepted with the amendment moved by Dr. Ambedkar,
that the Explanation be deleted. That amendment is necessitated because, the
explanation originally made this article applicable only to the provincial High
Courts. Now, as in the new setup, the High Courts of the Indian States are
being brought in line with the provincial High Courts, the Explanation has
become unnecessary. The article, without the Explanation, contains a very
important and salutary provision and should be accepted.
Shri L. Krishnaswami Bharathi :
(Madras: General): Mr. President, Sir, I have only a small suggestion to make
to Dr. Ambedkar. This article is very necessary. When a High Court is satisfied
that a substantial question of law as to the interpretation of this
Constitution is involved, it should certainly withdraw that case and decide it.
But as the article reads, the High Court shall withdraw the case to itself and
dispose of the same. It is for the Drafting Committee to consider whether it is
necessary to withdraw the whole case and dispose the same. There may be many
cases in the Munsiff’s courts where this question may be raised. In my view, it
is not quite necessary for the High Court to withdraw the whole case and try
the case itself. It is quite enough that it may decide this question relating
to the interpretation of the Constitution and then refer it back to the
particular court to dispose of the case in conformity with the decision given
regarding the interpretation of the Constitution. We have made a similar provision
with reference to the Supreme Court. The Supreme Court is not bound, whenever
there is mention of a question of interpretation of the Constitution, to refer
it to a Full Bench of five Judges. If they are satisfied that it is a
substantial question, they may refer it to a Fuller Court, get their opinion
and thereafter the original court will decide the case in conformity with the
opinion so given. Therefore, I think it may quite suffice if we say, it shall
withdraw the question to itself. The High Court need not to be bound to dispose
of the case. It may be very difficult for the High Court to be disposing of all
manner cases. For instance, in an injunction suit, the question may arise. It
is not necessary for the High Court to try the whole case. I would therefore
wish that the High Court may only withdraw the question relating to the
interpretation of the Constitution and then refer it back to the original court
to dispose of the case in conformity with the opinion so given. I leave it to
Dr. Ambedkar to decide this matter.
Mr. Tajamul Husain : Mr.
President, Sir, the High Court has got an inherent power to call for the record
of any case and dispose of it. Article 204 says that the High Court shall, if
there is any substantial question of law as to the interpretation of this
Constitution involved in the case, call for record of the case and dispose of
the case. My honourable Friend, Prof. Shah, wants that instead of the word ‘shall’
it should be ‘may’. If you want to have the word ‘may’, the inherent power is
already there and according to the inherent power, if there is a substantial
question of law, or no point of law at all, it can call for the record and
dispose of the case. Therefore, the word ‘may’ does not help us at all. This
point has been dealt with very thoroughly by my honourable Friend Dr. Bakshi
Tek Chand and I do not wish to repeat the arguments. The only thing that I wish
to say is this. Suppose a substantial question of law is involved, according to
Professor Shah, the High Court may call for the record or it may not. It is not
incumbent on the High Court to call for the record. Suppose, the High Court
does not call for the record, look at the waste of time. By the time a case is
decided in the subordinate court and goes to the High Court, it may take three
or four years. Also look at the amount of expenses that will be incurred in the
lower court as well as in the appellate court. Apart from that, a very
important point of law will be pending and nobody will know what the decision
is going to be. The sooner a substantial question of law is decided by the High
Court, the better it is. Therefore, I oppose the amendment moved by Professor
Shah.
As regards the amendment moved by Mr. Mohd. Tahir, he says that the opinion of
the subordinate court should be taken. It always happens that in every case
that the High Court calls for record, it takes the opinion of the lower court.
It is absolutely unnecessary and redundant to have these words here. With these
words, I oppose this amendment also.
The amendment moved by Dr. Ambedkar is perfectly correct. I support that
amendment.
Mr. President : I want to dispose of this article before we rise. It is
already twelve.
The Honourable Dr. B. R. Ambedkar : I am afraid I have to go to a Cabinet
Meeting at 12 o’clock.
Mr. President : Then I do not think there is much to be said either against
or for the amendment. All that could be said has been said. No more speeches.
The Honourable Dr. B. R. Ambedkar : With regard to the observations made by
my Friend Mr. Bharathi...
Shri H. V. Kamath : Sir, you have called upon me to speak, I shall not take
more than 2 or 3 minutes. Shall I speak now to tomorrow?
Mr. President : Tomorrow.
The House now stands adjourned till 8 o’clock tomorrow morning.
The Assembly then adjourned till Eight of the Clock on Wednesday the 8th June
1949.
-------------------------------------------------------------------
*[Translation of Hindustani speech.]*
Related Documents:-
1) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 3
2) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 10
3) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 13
4) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 22
5) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 37
6) Role of Sardar Hukum Singh in Constituent Assembly Debates - Entries in Union List
7) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 67
8) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 67 (Contd)
9) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 102
10) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 131
11) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 135-A
12) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 149
13) Role of Sardar Hukum Singh in Constituent Assembly Debates - Government of India (Amendment) Bill
14) Role of Sardar Hukum Singh in Constituent Assembly Debates - Entries in Union List 2
15) Role of Sardar Hukum Singh in Constituent Assembly Debates - Report Of Advisory Committee On Minorities
1) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 3
2) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 10
3) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 13
4) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 22
5) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 37
6) Role of Sardar Hukum Singh in Constituent Assembly Debates - Entries in Union List
7) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 67
8) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 67 (Contd)
9) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 102
10) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 131
11) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 135-A
12) Role of Sardar Hukum Singh in Constituent Assembly Debates - Article 149
13) Role of Sardar Hukum Singh in Constituent Assembly Debates - Government of India (Amendment) Bill
14) Role of Sardar Hukum Singh in Constituent Assembly Debates - Entries in Union List 2
15) Role of Sardar Hukum Singh in Constituent Assembly Debates - Report Of Advisory Committee On Minorities
No comments:
Post a Comment