Dated: June 06, 1949
There is another reason also. The Supreme Court is not likely to grant special leave in any matter whatsoever unless it finds that it involves a serious breach of some principle in the administration of justice, or breach of certain principles which strike at the very root of administration of justice as between man and man. I think article 112 as it stands is a very right one and should be there.
The Honourable Dr. B. R. Ambedkar: I do not think there is anything for me to say.
Mr. President: The question is:
"That in article 112, the words 'except the States for the time being specified, in Part III of the First Schedule, in cases where the provisions of article 110 or article 111 of this Constitution do not apply' be deleted."
The amendment was adopted.
Mr. President: The question is:
"That article 112, as amended, stand part of the Constitution.
The motion was adopted.
Article 112, as amended, was added to the Constitution.
New Article 112-A
Mr. President: There is notice of a new article to be moved by Dr. Ambedkar, amendment No. 191.
The Honourable Dr. B. R. Ambedkar: Sir, I beg to move:
"That with reference to amendment No. 1932 of the List of Amendments, after article 112, the following new article be inserted :-
112-A.Review of judgments or orders passed by the Supreme Court. Subject to the provisions of any law made by Parliament or any rule made under article 121 of this Constitution, the Supreme Court shall have power to review any judgment pronounced or order passed by it.'"
Sir, the Draft Constitution, as it stands now,............
Prof. Shibban Lal Saksena:On a point of order, Sir, amendment No. 1932 has not been moved.............
Mr. President: That has not been moved : I am taking this as a fresh article.
Shri T. T. Krishnamachari: May I mention, Sir, that amendment No. 1932 is exactly the same as amendment No. 1928? Actually, if amendment 1928 is moved, amendment 1932 cannot be moved.
Mr. President: I have already said that I have taken it as a fresh article.
The Honourable Dr. B.R.Ambedkar: The Draft Constitution contains no provision for review of its judgments. It was felt that that was a great lacuna and this new article proposes to confer that power upon the Supreme Court.
The Honourable Shri K. Santhanam (Madras: General): Sir, I am afraid that the drafting of this is not quite as happy as it should be. For one thing, I do not think it is right to put an article in the Constitution giving a power to the Supreme Court and say that that power shall be limited by rules made by the Supreme Court itself. I think it is bad law. If you give a power to the Supreme Court, it must be real power; you cannot say that that power could be limited by the Court itself. Again, the article says that the Supreme Court's power to review its judgment shall be regulated by law made by Parliament. I thing this is altogether contrary to the article 112 which we have adopted, where you have given the Supreme Court the power to review any judgment or any order coming from anywhere. Parliament has no right to interfere even with its ordinary power of review.
Mr. President: This refers to its own decisions.
The Honourable Shri K. Santhanam: I am coming to that. I think there is a greater reason why the Supreme Court should be left unfettered to review its own judgment. When it is allowed an unfettered freedom even in matters which are ordinary dealt with by Parliament and State legislatures, why should the Supreme Court be fettered by law made by Parliament about the review of its own judgment? In these two respects, the thing is rather defective. I would suggest to Dr. Ambedkar to see if it should go in this form or whether the form should not be reconsidered.
The Honourable Dr. B. R. Ambedkar: I think my Friend Mr. Santhanam is completely mistaken in the observations that he has made. First of all, we are not conferring any power to the Supreme Court to make any rules. That power is being delegated by article 121. If he refers to that article he will see that it reads thus :-
"Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including, etc., etc."
Therefore it is not correct to say that we are giving power to the Supreme Court. The power is with the Supreme Court is to be exercised with the approval of President. Another thing which has misled Mr. Santhanam is that he has not adverted to the fact that I proposed by amendment 42 in List I to add one more clause to article 121 which is (bb) and which deals with the rules to be made with regard to review. Therefore, having regard to these two circumstances, it is necessary that the review power of the Supreme Court must be made subject both to article 121 and also the amendment contained in No. 42.
Mr. President: The question is:
The motion was adopted.
Article 112-A was added to the Constitution.
* Article 113
Mr. President: No. 113.
Shri T. T. Krishnamachari: The House has expressly excluded reference to State in Part III of the First Schedule all along and therefore this article may not be necessary. You can formally put it to the House so that the House can negative it.
The Honourable Dr. B. R. Ambedkar: That is so.
Mr. President: The question is:
"That article 113 stand part of the Constitution."
The motion was negatived.
Article 113 was deleted from the Constitution.
* Article 114
Mr. President: Article 114. There is one amendment by Mr. Gupte.
(The amendment was not moved.)
Does anyone wish to speak?
The Honourable Dr. B. R. Ambedkar: My attention has been drawn by my Friend Shri Alladi Krishnaswami Ayyar that the articles of this Draft Constitution dealing with powers of the Supreme Court do not expressly provide for appeals in income-tax cases. I wish to say that I am considering the matter and if on examination it is found that none of the articles could be used for the purpose of conferring such an authority upon the Supreme Court, I propose adding a special article dealing with that matter specifically. But this article may go in.
Mr. President: The question is:
"That article 114 stand part of the Constitution."
The motion was adopted.
Article 114 was added to the Constitution.
Mr. President: We have already dealt with 115, and 116 to 120.
* Article 119
Shri T. T. Krishnamachari: We have not dealt with 119.
Mr. President: Yes, 119. There is an amendment of which notice has been given by Mr. Kamath 1952.
(Amendments 1952 to 1955 were not moved.)
There is another amendment No. 41.
Shri T. T. Krishnamachari: May I point out that 41 is substantially the same as 1953 and if nobody moves 1953, and if Mr. Kamath moves 1955, then 41 can be moved.
Mr. President: Neither 1953 has been moved nor is Mr. Kamath in a position to move 1955. He is busy otherwise. I understand it was moved on the 27th May. So we can take up 41.
Shri T. T. Krishnamachari: Sir, I move:
"That with reference to amendment No. 1955 of the List of Amendments, clause (2) of article 119 be deleted."
Mr. President: The question is:
"That with reference to amendment No. 1955 of the List of Amendment, clause (2) of article 119 be deleted."
The amendment was adopted.
Mr. President: The question is:
"That article 119, as amendment, stand part of the Constitution."
The motion was adopted.
*Article 121
Mr. President: 120 we have passed. 121. There are several amendments to this. No. 1958.
Mr. Z.H. Lari (United Provinces: Muslim) : Sir, I move:
"That in clause (1) of article 121, the words 'with the approval of the President be deleted."
This article deals with certain provisions which are necessary to be made by the Supreme Court in the discharge of its duties and functions. If you look to the article, the main purpose of the article is that there must be such rules as shall govern persons practising before the Court, and the number of judges which shall hear particular kinds of cases, and rules as to granting of bail and the and the like. All these are such as should be left to the entire discretion of the Supreme Court. The necessity of having the approval of the President is in a way interference by the Executive with the Judiciary. I think that in all these matters, which really relate to internal arrangement by the Supreme Court, there should be no hand of the President therein, and as such, I think that these words are entirely superfluous. The Supreme court shall be competent enough to frame all the necessary rules and there is no necessity of securing the previous approval of the President.
I hope that this House will accept this amendment which is really intended to make the Supreme Court entirely immune from the influence of the Executive.
(Amendment Nos. 1959 to 1961 were not moved.)
Shri T. T. Krishnamachari: Sir, Dr. Ambedkar has gone out for the amendment 1962 standing in the name of the Honourable Dr. Ambedkar:
"That in sub-clause (b) of clause (1) of article 121, the words 'and the time to be allowed to advocate appearing before the Court to make their submissions in respect thereof be deleted.
Mr. President: There is another amendment with reference to this amendment. It is No. 42.
Shri T. T. Krishnamachari: Sir, I move:
"That with reference to amendment Nos. 1959, 1960 and 1962 of the List of Amendments, after sub-clause (b) of clause (1) of article 121, the following new sub-clause be inserted:-
'(bb) rules as to the procedure for the review of any judgment pronounced or order passed by the Court including the time within which applications to the Court for such review are to be entered;'"
This amendment is necessary in view of the fact that the House has already accepted a new clause moved by Dr. Ambedkar in respect of conferring powers on the Supreme Court to make rules for the purpose of reviewing its own decisions. This a corollary to that amendment which the House has accepted.
(Amendment No. 1963 was not moved.)
This amendment (No. 1964) has to be moved formally in order to enable the other amendments to be moved of which notice has been, namely, 42 and 43.
Sir, I formally move:
"That for the proviso to clause (2) of article 121, the following be substituted:
'Provided that it shall be the duty of every judge to sit for the said purpose unless owing to illness he is unable to do so, or owing to personal interest or other sufficient cause he considers that he ought not to do so.
Shri Alladi Krishnaswami Ayyar: Sir, I move:
"That with reference to amendment No. 1964 of the List of Amendments, for clause (2) of article 121, the following clause be substituted :-
'(2) Subject to the provisions of the next succeeding clause, rules made under this article may fix the minimum number of judges who are to sit for any purpose, and may provide for the powers of single judges and Division Courts.
(2a) The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution, or for the purpose of hearing any reference under article 119 of this Constitution shall be five:
Provided that where the Court hearing an appeal under article 111 of this Constitution consists of less than five judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal such court shall refer the question to a court constituted under this clause for opinion and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.'"
I do not think there is any need for comment on sub-clause (2), and (2a) which speak for themselves. The only clause which requires some elucidation is the proviso. The main point of the proviso is that judicial time need not be unnecessarily wasted. A constitutional point may be raised by a party in the course of a general appeal in which other questions are raised. A court hears the appeal; it comes to the conclusion that really the constitutional point that is raised is not necessary for the disposal of the appeal, and that the case can be easily disposed of on the other point that has been raised. Under those circumstances it will be sheer waste of judicial time that a Bench of five Judges should hear this case, if otherwise a Bench of three Judges can under the rules of the Court dispose of the appeal. Therefore the provision is made-if the Bench that is hearing the case is satisfied that a real question of constitutional law has arisen, for the proper disposal of the case, the matter is referred to a full Bench of five Judges. They hear the constitutional question and the matter comes back before the three Judges who hear the original appeal and the other points of law that have been raised and that Bench disposes of the case. This is the normal procedure followed in cases where any point is referred to a full Bench for consideration by the High Courts in India. The idea is to assimilate this procedure to the procedure that is being followed for full Bench references to the High Court.
There is another point that I should like to mention so that the House may not think that I have brought it at a later stage and I have no doubt that Dr. Ambedkar will agree with it, namely, the express reference to article 111 of the Constitution in the proviso. Now there are various amendments tabled with a view to expand the jurisdiction of the Supreme Court and which have been left over. A constitutional question may be raised in the course of a criminal appeal if the Supreme Court is to be invested with criminal jurisdiction. Therefore possibly the expression "an appeal under article 111 of the Constitution" might have to be omitted. Or a constitutional point might arise even in the course of a special appeal and if the court is satisfied that a constitutional question arises then it may be referred to a court constituted under this clause. I am mentioning it so that it may not be thought that we are trying to bring in new amendments at every stage.
With these words, Sir, I move the amendment that is tabled in the name of Dr. Ambedkar and myself.
Shri T. T. Krishnamachari: Sir, amendment No. 44 is no longer necessary, if as I suppose Mr. Alladi Krishnaswami Ayyar's amendment is to be accepted.'
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"That for clause (3) of article 121, the following be substituted :-
'(3) No judgment shall be delivered by the Supreme Court save in open, and no report shall be made under article 119 of this Constitution save in accordance with an opinion also delivered in open court.'"
Sir, I shall move also amendment No. 1966:
"That for clause (4) of article 121, the following he substituted :-
'(4) No judgment and no such opinion shall be delivered by the Supreme Court, save with the concurrence of a majority of the judges present at the hearing of the case but nothing in this clause shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment or opinion.'"
Dr. P. S. Deshmukh (C.P. & Berar: General): Sir, article 121 has undergone considerable change as a result of several amendments moved, some of them by or on behalf of Dr. Ambedkar and some others by Mr. Alladi Krishnaswami Ayyar. In view of that, the necessity for the retention of the word; "with the approval of the President" has further diminished. I therefore feel considerable sympathy with the amendment that has been moved by Mr. Z.H. Lari, notice of which was given by Mr. Shankar Rao Deo and others. In view of the changes that have been now effected there is no need for any reference to the President, because in most matters the whole position has been particularized and specifically stated. We have laid down the number of judges that should be there to hear particular classes of cases. We have also provided for cases falling under article 109. We have by the fresh amendments accepted that the judgment shall be in open court. The only powers that are retained with the Supreme Court under the article are those by which they can frame rules on matters more of day to day procedure which are not of such vital importance or significance as must be laid before the President before they can be made operative. The position is not very different from the powers of the High Courts in the provinces. The High Court has got wide powers of making rules in almost every matter as enumerated in this article and they are not required under any rule or procedure to refer them to the Governor or obtain his consent. I therefore feel that a reference to the President is unnecessary and it would be good if the House accepts the amendment moved.
Shri B. Das : Sir, I would like Dr. Ambedkar to clarify the words "No report shall be made under article 119 of the Constitution save in accordance with an opinion delivered in open court." This affects the liberties of the press. Suppose the press gets hold of some opinion which the Supreme Court has given to the President and if it is published, is the Government going to prosecute the paper which has published that secret information which the Supreme Court has tendered to the President? Newspapers have their sleuths. There are sometimes intelligent newspaper men who are able to anticipate the advice of High Court judges or Supreme Court judges. Is it contemplated that the Constitution will empower the Parliament under the present law that the liberty of the press will be affected? That is the question involved whether the liberties of the press will be affected and pressmen will be prosecuted.
Dr. Bakhshi Tek Chand : Sir, I support the amendment moved by Mr. Lari (No. 1958), that in clause (1) the words "with the approval of the President" be deleted. Article 121 gives the Supreme Court the power to frame rules, relating firstly, as to persons practising before the Court; secondly, rules regulating the procedure for hearing appeals and for determining what class of cases are to be heard in single Bench or in Divisional Court to frame rules relating to costs and other incidental matters, rules for granting bail, stay of proceedings, providing for summary determination of any appeal which appears to the court to be frivolous, vexatious or for purposes of delay. Now, Sir, these all are matters which ought to be solely within the jurisdiction of the Chief Justice and the judges of the Supreme Court and there is no reason why they should be subject to approval of the President. If you see the constitution of the High Courts, as they have functioned in the country for the last eighty years or more and also the provisions of the Government of India Acts of 1915 and 1935 relating to these matters, you will find that it is purely within the jurisdiction of the Chief Justice and the judges of the High Court to frame rules in such matters, as the admission of advocates, attorneys, etc. and the constitution of Benches. Sanctions of approval of the Governor-General or Governor is not obtained for promulgating these rules. In this connection, I would draw the attention of the House to clauses 9 and 10 of the Letters patent of all the other High Courts, i.e., the presidency High Courts, as well as the High Courts of Allahabad, Patna, Nagpur and of the East Punjab Orissa and Assam which have been established recently.
Clause 9 reads:
"And we do hereby authorise and empower the said High Court of Judicature at Fort William in Bengal to approve, admit, and enrol such and so many Advocates, Vakeels, and Attorneys as to the said High Court shall seem meet; and such Advocates, Vakeels and Attorneys shall be and are hereby authorised to appear......"
Then clause 10 says:
"And we do hereby ordain that the said High Court of Judicature at Fort William in Bengal shall have power to make rules for the qualification and admission of proper persons to be Advocates, Vakeels and Attorney-at-Law of the said High Court, and shall be empowered to remove or to suspend from practice, on reasonable cause......"
These provisions are not subject to the approval of the Governor or the Governor-General, though in several other matters such as the creation of new courts, the fixation of salaries of the staff and so on, rules framed by the High Courts, are subject to the approval of the Governor-General in the case of Calcutta and provincial Governments in the case of the other provinces. But so far as the admission of advocates, vakeels, etc. are concerned, the framing of the rules is purely a matter within the jurisdiction of the Chief Justice and the other judges of the High Courts, and no approval of the Governor-General or the Governor is necessary.
With regard to the constitution of Division Benches, the provision in section 108 of the Government of India Act, 1915 was as follows :-
"Each High Court may by its own rules provide as it thinks fit for the exercise by one or more judges or by division courts constituted by two or more judges of the High Court of the original and appellate jurisdiction vested in the court.
(2) The Chief Justice of each High Court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the Chief Justice are to constitute the several division courts."
This provision was re-enacted with slight verbal alterations in section 223 of the Government of India Act, 1935. If this is the position relating to the High Courts, why should a different rule be adopted in regard to the Supreme Court which will be the highest court in the country? Why should the previous approval of the President be necessary? In practice this will mean the approval of the Prime Minister. I submit this is a wholly unnecessary interference with matters which relate to the internal administration of the Supreme Court.
I have mentioned these two clauses relating to the admission, etc. of the advocates, pleaders and attorneys and with regard to the constitution of Benches. The other matters referred to in article 121 are matters of very small import; they relate to costs and other incidental matters. Obviously, the Supreme Court is the proper body to decide these matters.
Then there is the question of the granting of bail. Why should rules relating to this matter, which is purely a judicial matter, be referred to the executive? They should be left to the Chief Justice and the other Judges. Similarly rules as to stay of proceedings. When the Courts stay proceedings in a pending suit or appeal, generally security has to be taken for the due execution of the order which may ultimately be passed. Whether that security is to be certified before the Registrar of the Supreme Court or before the High Court are matters of detail which should be settled by rules framed by the Court.
This aspect of the matter seems to have escaped the attention of the Drafting Committee and there is no reason why the words "subject to approval of the President" should be imported, in the article. Sir, I support the amendment moved by Mr. Lari.
Prof. Shibban Lal Saksena: Sir, with regard to the amendment moved by my honourable Friend, Mr. Lari, there is a general feeling in the House, that Constitution allows too much interference with the work of the Supreme Court. We have given enough powers to the President, that is the Prime Minister, over the Supreme Court. If even in small matters like the framing of rules in regard to the powers vested in the High Courts, etc., we say that these should make our Supreme Court etc. completely independent of the influence of the nominated the Judges there should be no further interference. They will frame rules which are contemplated in the best interests of the country. Sir, I support the amendment of Mr. Lari.
Shri T. T. Krishnamachari: On a point of information, Sir, may I ask the speaker whether he has changed his mind in regard to what he said with regard to article 111 where he wanted its provisions to be subject to the law made by Parliament?
Prof. Shibban Lal Saksena: Sir, I have not heard the question.
Mr. President: Mr. Krishnamachari has put a question which you do not understand and therefore need not answer.
Mr. Naziruddin Ahmad: Sir, I rise to support the amendment of Mr. Lari. As has been clearly explained by Dr. Tek Chand, with all the authority of his unique judicial experience, matters relating to rules under article 121 relate entirely to the procedure to be observed in Courts. In fact rules relating to practising lawyers and other things are matters of internal administration of the Courts. Such being the case, it will be extraordinary for the Court to send its proposals to the President for his approval. I could well understand and appreciate a provision which requires consultation with the President. That would have been something acceptable. I have no doubt whatsoever that if we delete these words the Supreme Court will always consult the Government.
But to make it a condition of the validity of the rules is somewhat extraordinary. I submit that the President, for all practical purposes, will mean the Ministry or the Government of the day. That is more objectionable. That the Supreme Court with whom vests the supreme authority of the judiciary and which should be absolutely independent of the executive should be required to take the approval of the executive in regard to internal matters of administration of the Court in its judicial functions, would be highly objectionable. With regard to rules for the grant of bails, whether bail should be granted or not is a matter for the legislature but the exact regulation of rules for the grant of bails, whether bail should be granted or not is a matter for the legislature but the exact regulation of rules relating to the granting of bails, whether an application is to be made, whether a surety is to be taken, and so on and so forth, are matters for the internal administration of the Supreme Court. As regards stay of proceedings, it is a matter entirely in the discretion of the Court and it is impossible to provide in advance any definite rule as to stay of proceedings. They are matters entirely discretionary and change with the circumstance of each case. Nothing could be determined in advance. Rules should, therefore, be left to the discretion of the Court and somewhat general and elastic for easy application to individual cases. Again, matters which are incidental to the proceedings and matters for summary determination are all purely judicial matters. I do not wish to go into the details which have been so ably explained by Dr. Bakhshi Tek Chand. I submit that there should not only be no interference with the independence of the judiciary, but there should be no struck out. I have no doubt, as I have submitted, that the Supreme Court will always consult the Government and that should be enough. The matter should be left rather to convention than to legislation. With these few words, I support the amendment of Mr. Lari.
The Honourable shri K. Santhanam : Sir, I am rather surprised at this support for the removing of the words "with the approval of the President." The consequence of this will not be the independence of the Supreme Court from the Executive; it will only give the right to the Executive to limit the rule making power by law. So long as the first portion of the article is there, "Subject to the provisions of any law made by Parliament", the words "with the approval of the President" form the safety valve for the Supreme Court. Because, it will be open to Parliament to make a law taking away the rule making power altogether from the Supreme Court and Parliament may prescribe every one of these things by law. Therefore, it is always better to have the things done with the approval of the President, if you want to vest the ultimate power in Parliament.
Then it is a matter of public policy also. Take for instance rules as to the person practising before the Court. Should it be open to the Supreme Court to say that they shall recognise the Degrees of a particular University and not of any other University? The whole question of legal education and inter provincial matter also arise. This is a matter probably in which the Supreme Court will not have sufficient materials for coming to a judgment and it will have to consult the Executive, not only the Executive in the Centre, but also the Executive in the provinces. The Education Department in the Central Ministry will be the authority to say which law college is conferring proper Degrees. Otherwise, the Supreme Court will have to appoint a Commission to go into the standard of education of every University to see whether a particular Degree should be recognised. I do not think this should be left to the absolute power of the Supreme Court. Similarly, in matters relating to costs and fees, it is also a matter of public policy. It is but right that the Supreme Court should also have the co-operation of the Executive. This idea that the Supreme Court has to be somebody which is absolutely separate from every other institution set up by the Constitution is a wholly wrong and mischievous idea. The Supreme Court has to be one of our safeguards. But, If it is to be put in a position of hostility to the Executive or Parliament, then, the power of the Supreme Court will vanish, because, after all, it has to depend upon the goodwill both of Parliament and the Executive. I would suggest therefore that this idea of independence of the Supreme Court should not be done to death as many Members are attempting to do.
There is only one other small point which I would like to point out. In the new clause which has been moved by my honourable Friend Mr. T. T. Krishnamachari by amendment No. 42, it is stated, rules as to the procedure for the review of any judgment pronounced or order passed by the Court including the time within which applications to the Court for such review are to be entered". I would suggest that this is not wholly consistent with the new article 112-A as has been adopted. There, it is said, not only the procedure, but the power of review itself, or the conditions of review will be limited by rules. I personally objected to that provision. But, having passed that, I think the subsequent amendment should be consistent with the provision already adopted. I would suggest that the words "the procedure for" may be left out. "Rules as to the review of any judgment" will be sufficiently comprehensive, If you want that the word "procedure" must stand in the clause, the words "rules as to the conditions of and procedure for' may be adopted to be consistent with the provision which we have already adopted.
The Honourable Dr. B. R. Ambedkar : Mr. President, I regret very much that I cannot accept the amendment moved by my honourable Friend Mr. Lari. It seems to me that he has completely misunderstood what is involved in his amendment.
The reason why it is necessary to make the rule-making power of the Supreme Court subject to the approval of the President is because the rules may, if they were left entirely to the Supreme Court, impose a considerable burden upon the revenues of the country. For instance, supposing a rule was made that a certain matter should be heard by two Judges. That may be a simple rule made by the Supreme Court. But undoubtedly, it would involve a burden on public revenues. There are similar provisions in the rules should be subject to the approval of the President is the proper procedure to follow, Because, a matter like this which imposes a burden upon the public revenues and which burden must be financed by the legislature and the Executive by the imposition of taxation could not be taken away out of the purview of the Executive.
I may also point out that the provisions contained in article 121 are the same as the provisions contained in article 214 of the Government of India Act, 1935 relating to the Federal Court and article 224 relating to the High Courts. Therefore, there is really no departure from the position as it exists today. With regard to the comments made by my honourable Friend, Mr. T. T. Krishnamachari, I am afraid, I have not been able to grasp exactly the point that he was making. All that, therefore, I can say is this, that this matter will be looked into by the Drafting Committee when it sits to revise the Constitution, and if any new phraseology is suggested, which is consistent with the provisions in the article which we have passed conferring power of review by the Supreme Court, no doubt it will be considered.
There is one other point to which I would like to refer and that is amendment No. 43. In amendment No. 43, which has been moved by my honourable Friend, Shri Alladi Krishnaswami Ayyar, and to which I accord my whole hearted support, there is a proviso which says that if a question about the interpretation of the Constitution arises in a matter other than the one provided in article 110, the appeal shall be referred to a Bench of five judges and if the question is disposed of it will be referred back again to the original Bench. In the proviso as enacted, a reference is made to article 111, but I quite see that if the House at a later stage decides to confer jurisdiction to entertain criminal appeals, this proviso will have to be extended so as to permit the Supreme Court to entertain an appeal of this sort even in a matter arising in a criminal case. I, therefore, submit that this proviso also will have to be extended in case the House follows the suggestion that has been made in various quarters that the Supreme Court should have criminal jurisdiction.
Mr. President: The question is:
"That in clause (1) of article 121, the words 'with the approval of the President' be deleted.
The amendment was negatived.
Mr. President: The question is:
"That with reference to amendments Nos. 1959,1960 and 1962 of the List of Amendments after sub-clause (b) of clause (1) of article 121, the following new sub-clause be inserted:-
'(bb) rules as to the procedure for the review of any judgment pronounced or order passed by the Court including the time within which applications to the Court for such review are to be entered;'"
The amendment was adopted.
Mr. President: The question is:
"That in sub-clause (b) of clause (1) of article 121, the words 'and the time to be allowed to advocates appearing before the Court to make their submissions in respect thereof' be deleted."
The amendment was adopted.
Mr. President: The question is:
"That with reference to amendment No. 1964 of the List of Amendments, for clause (2) of article 121, the following clauses be substituted:-
'(2) Subject to the provisions of the next succeeding clause, rules made under this article may fix the minimum number of judges who are to sit for any purpose, and may provide for the powers of single judges and Division Courts.
'(2a) The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution, or for the purpose of hearing any reference under article 119 of this Constitution shall be five:
Provided that where the Court hearing an appeal under article 111 of this Constitution consists of less than five judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such court shall refer the question to a court constituted under this clause for opinion and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.'"
The amendment was adopted.
Mr. President: The question is:
"That for clause (3) of article 121, the following be substituted:-
'(3) No judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under article 119 of this Constitution save in accordance with an opinion also delivered in open court.'"
The amendment was adopted.
Mr. President: The question is:
"That for clause (4) of article 121, the following be substituted:-
'(4) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the judges present at the hearing of the case but nothing in this clause shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment or opinion.'"
The amendment was adopted.
Mr. President: The question is:
"That article 101, as amended, stand part of the Constitution."
The motion was adopted.
Article 121, as amended, was added to the Constitution.
*New Article 122-A
Dr. Bakshi Tek Chand : Sir I move:
"That with reference to amendments Nos. 1909 and 1926 of the List of Amendments, after article 122 the following new article be inserted:-
122-A. Interpretation. In this Chapter, references to any substantial question of law to the interpretation of this Constitution shall be construed as including references to any substantial question of law as to the interpretation of the Government of India Act, 1935, or of any Order in Council or order made thereunder or of the Indian Independence Act, 1947, or of any order made thereunder.'"
Pretation of this Constitution". "This Constitution" would mean the Con- Sir, the necessity for adding this new article has arisen because in several sections of this chapter which relates to the powers of the Supreme Court, the expression used is "as to the interpretation of this Constitution". For instance, in article 110 which takes the place of section 205 of the Government of India Act, power is given to a party to a party to prefer an appeal to the Supreme Court in any matter, whether in civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question of law "as to the interstitution which is being passed by, this Constituent Assembly now. There may be other cases, however, in which the question of the interpretation of the Government of India, is involved; similarly, questions relating to the interpretation of the Indian Independence Act of 1947 may arise. No provision for appeals in such cases is made in the article as drafted. Such questions may have arisen in such cases which are pending before the High Court or before subordinate Courts on the day the new Constitution comes into operation. What will happen to them? Unless we enlarge the meaning of this expression "this Constitution" in the manner in which it is suggested in this amendment, there will be no appeal at all from the decisions of the High Court in those matters. Those matters may be of very vital importance, and may arise in connection with legislation which has been enacted by the provincial or Central legislatures or in Ordinances promulgated by the Governor or the Governor-General. If these question arose in cases which had been decided by the High Court and are pending before the Privy Council on the date on which the New Constitution comes into force, they will be automatically transferred to the Supreme Court under the transitional provision, made in article 308(2) which will be placed before this House at the proper time. But there is no provision with regard to cases in which similar questions are involved. but which have not yet been decided either by the subordinate court or by the High Court in India or which may arise in suits to be instituted hereafter. Under the existing law, appeals from such cases lie to the Federal Court; but the Federal Court will cease to exist on the date when the new Constitution comes into force. In order that appeals in such cases may under articles 110 and 111 or other articles, lie to the Supreme Court, provision must be made in the Constitution Act. Therefore, it has been found necessary to insert this interpretation clause, instead of repeating these words in article 110, or article 111 clause (2) or article 116, and in one or two other articles.
The effect of this will be that the words "this Constitution" wherever they occur in this chapter will mean questions relating to interpretation of the Constitution which is now being passed, but also include questions relating to the interpretation of the Government of India Act 1935 or any Order in Council or order made thereunder, of the Indian Independence Act or orders made thereunder.
The Honourable Shri K. Santhanam: Sir, I wish to raise a rather delicate point. From the date this Constitution comes into force, the Government of India Act, 1935 and all orders made thereunder, and the Indian Independence Act of 1947 and all orders made thereunder lapse altogether. They cease to have any kind of legal validity and if any laws made under them continue, it will only be in virtue of some provision inserted in this Constitution saying that all laws which are in force at the commencement provided they are not repugnant to this Constitution, shall continue. Their legal validity will depend upon the provisions of this Constitution and therefore question will arise only under this Constitution. I think this is a sort of juridical- I would not call it absurdity-impropriety, It is altogether meaningless. We can not ask our Supreme Court to go into the interpretation of constitution which have become absolutely dead and which have no kind of legal validity. It is possible that anybody can sue in a court of law under the Government of India Act, 1935, after this Constitution comes into force? There may be arguments based on some interpretation. Is it right that the Supreme Court should sit to consider and say that this is the interpretation of section 211 of the Government of India Act of 1935, because at that time the Government of India Act would have lapsed altogether, or can the Supreme Court interpret some articles of the Indian Independence Act of 1947? This Indian Independence Act was an Act made by the British Parliament. How can the Supreme Court of India say that this is the interpretation of a particular section made under the Government of Britain? They can only say how far the laws made under the Government of India Act, 1935 are consistent with this Constitution or have been continued by this Constitution. All questions of interpretation of the Constitution can arise before the Supreme Court only as interpretation of this Constitution. In interpreting this Constitution , they may refer to the Government of India Act or the law made by Parliament. I may also say that after discussion with Mr. Alladi Krishnaswami Ayyar, he thinks this point of view must be considered. I think this is a matter which requires proper consideration by lawyers who are better versed in law than myself.
Shri T.T. Krishnamachari: Mr. President, I am afraid my honourable Friend Mr. Santhanam has been rather hasty in opposing this amendment and holding it as ridiculous.
As a proposition in the abstract what he says may be correct; but there are certain contingencies which might happen and which will not be provided for by this Constitution coming into force without a saving clause of this nature. Because, certain things may be done under the old Constitution and the new Constitution may contain provision that are not only different but also the opposite of what were contained in the constitution Acts which it supersedes. While some acts of State may be ultra vires of the old Constitution, it may be intra vires of the new Constitution. What will happen to such a contingency if it occurs? For example, supposing in the old Constitution, a provincial Government is not permitted to levy a tax on the betterment value of property or a capital gains tax and we in the new Constitution put a provision in the appropriate Schedule that that particular subject shall be within the competence of the provincial Government, what is to happen in respect of an action which may be initiated, provided it is not barred by limitation, by a person aggrieved by the action of the provincial Government in imposing a tax which was ultra vires at the time when it was imposed because the old Constitution did not permit it? It is rather a delicate problem; it is not a conundrum; it is a fact which may well come into being because there may be provisions in the new Constitution which will ease the strain that is being felt in regard to the distribution of powers between the Centre and the provinces under the Government of India Act. What is contemplated by this new clause is this. Cases where a change has been made in the new Constitution will be covered and the interests of affected parties will be protected. I do not think it is quite so easy as saying that merely because we pass the new Constitution, that Constitution applies to all that has happened in the past. There is undoubtedly room for considerable difference of opinion. Parties may be seriously injured by a provision of this nature not being put in the constitution. The matter has been discussed at some length in the Drafting Committee and the proposition before the House is a result of it. Notwithstanding the fact that I should be chary of criticising any view expressed by my esteemed Friend Mr. Alladi Krishnaswami Ayyar.......
Shri Alladi Krishnaswami Ayyar: I have not given any opinion in the matter.
Shri T.T. Krishnamachari: He may have expressed the opinion if he felt strongly on the point and there is no harm in it.
What I say is, this provides for meeting a lacuna which exists or which is likely to come into being when the interest of parties may be affected by the absence of a provision of this nature in the Constitution. While I would not like to say anything to detract from the value of what my honourable Friend Mr. Santhanam has said, I think on reflection he will find that this new article is not absurd. On the other hand, it is dictated by principles of wisdom and careful thought rather than with the intention of introducing an additional conundrum into the Draft Constitution.
I support the motion moved by Dr. Bakhshi Tek Chand.
Mr. Naziruddin Ahmad: Mr. President, Sir, I think there is a tempest in a tea pot. The article provides for a very likely and a very ordinary contingency which is likely to happen in Court from day to day. The Draft Constitution will come into operation on a certain date, but before the Draft Constitution comes into operation action will be taken, Bills will be passed and other things done under the Government of India Act, 1935, and the Independence of India Act which now operates. All these acts will not necessarily be questioned or challenged during the pendency of those Acts and before be questioned after the commencement of this Act or even ten or twenty years later. Legality of deeds and grants made by the Mughal Emperors and the East India Company still now come into question. So this is a very important provision. If we do not pass it, there will be a lacuna and questions or cases will arise any time relating to past transactions. It is for this reason that I think that this really supplies and fills up a lacuna and it must be passed.
Prof Shibban Lal Saksena: Sir, I would have wished to support Mr. Santhanam's view but I feel that if what he has said in necessary, this can be put in a Parliamentary Act. Why should it be in this Constitution? Why should it be for ever said that the interpretation of the Government of India Act and orders passed thereunder shall be interpreted by the Supreme Court? If, say, for a particular period or so, while these orders are in force or cases are pending under the Government of India Act, we require this provision, we can pass an Act of Parliament or we can pass an Ordinance on the very day this Constitution comes into force to meet this need, but why burden our Constitution with this? Therefore, I think that Dr. Ambedkar should remove this provision from our Constitution and either leave the Parliament to make such a provision to enable pending cases to be decided under that law or by an Ordinance until the Act is passed.
Dr. P.S. Deshmukh: Sir, my Friend Mr. T.T. Krishnamachari has explained the purpose of this new article that is before the House and the purpose is said to be that if we do not have this article, then the cases arising out of these various Acts and Statutes will probably not fall within the purview of the Supreme Court. My interpretation of the whole position is slightly different. In may view all that the new article wishes to provide for is to give cases arising out of the interpretation of the Government of India Act as well as the Indian Independence Act the dignity which is provided especially for interpretation of the Constitution in the various articles that have been incorporated in the Constitution. I do not think that this clause can be regarded as providing for the first time and only in this particular place a provision to save those cases which arise prior to coming into operation of the Constitution but arise out of the various enactment which have been mentioned in this article. The main purpose as it appears to me is to give the interpretation of the Government of India Act and the Indian Independence Act the same status as is given to the cases involving interpretations of the Constitution. I do not think however that the way in which the article has been worded is quite satisfactory. First of all, it puts the whole thing upside down. Instead of saying that the questions or interpretations of the Government of India Act and the Independence Act shall be interpreted as if they are question of interpretation of the Constitution, it puts the whole thing absolutely in the reverse; and secondly, if there is any provision necessary for saving those cases which arise out of Indian Independence Act, etc., I do not think the article as it stands provides for that. These are the observations I would like to make for the consideration of the Honourable Dr. Ambedkar. There are if I may repeat for the sake of clarity, two things: firstly that the wording of the article is not satisfactory, secondly, if the intention is that excepting for the article the cases arising out of the Government of India Act or the Independence Act will not be within the purview of the Supreme Court, then according to my view, the article does not seem to make adequate and proper provision for it.
Shri L. Krishnaswami Bharathi: May we have the benefit of Mr. Alladi's views?
Shri Alladi Krishnaswami Ayyar: I do not want to say anything.
The Honourable Dr. B. R. Ambedkar: Sir, I accept the amendment moved by my Friend Mr. Tek Chand. The point is a very simple one. We are undoubtedly repealing the Government of India Act, 1935, and the Indian Independence Act and the orders made thereunder from the date of the passing of this Constitution; but it has to be realised that while we are putting these Statutes, so to say, out of action, we are not putting an end to the rights and obligations which might have accrued under the Government of India Act. Consequently if there are parties who have obtained certain rights under the provisions of the Government of India Act and whose rights have now been extinguished by any rule regarding limitations, it is obvious that some forum must be provided for the adjudication of those rights. It is to meet this contingency viz., of persons who have their rights accrued under the existing Government of India Act and which have not come before a court of law, it is for such contingency that this article is necessary. This matter could have been provided for, I agree, in two different ways, first of all, by amending the language of the article 110 where we have used the word "This Constitution', if we had merely said 'any law regarding the Constitution relating to the Constitution of the country' that probably might have sufficed but the point is that we would have been obliged to repeat this formula in three or four places. Instead of doing that, It was decided that the best way is to put in an omnibus clause to define what this Constitution means. I think this provision is very necessary and ought to remain part of the Constitution.
Mr. President: The question is:
'That with reference to amendment Nos. 1909 and 1926 of the List of Amendments after article 122, the following new article be inserted.
'122A. Interpretation In this Chapter, references to any substantial question of law as to the interpretation of this Constitution shall be construed as including references to any substantial question of law as to the interpretation of the Government of India Act, 1935, or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947, or of any order made thereunder.'"
The motion was adopted.
Article 122-A was added to the Constitution.
*Article 123
Mr. President: Article 123.
Shri T.T. Krishnamachari: 123 refers to those portions which were specifically omitted all along. Therefore it might be put to the House and possibly the House might negative it because it is unnecessary.
Mr. President: Yes. The Question is:
'That article 123 stand part of the Constitution."
The motion was negatived.
Article 123 was deleted from the Constitution.
Mr. President: After this we have to go back to the articles dealing with the States. We did up to 170. The subsequent articles deal with the procedure in the provincial Legislatures.
*Article 191
Shri T.T. Krishnamachari: May I suggest that we might take up article 191 and the articles that occur thereafter. This and subsequent articles deal with the question of High Courts in the States and it would be easy for the House to deal with them because we have just now dealt with analogous articles relating to the Supreme Court.
Mr. President: If so, I am prepared to take up article 191 and subsequent article because they deal with High Courts, and as we have been dealing with the provisions regarding the Supreme Court and the provisions for the High Court are more or less similar, Members may not find it difficult to carry on with the discussion of these articles. So I take up article 191.
(Amendments Nos. 2563, 2564, 2565 and 2566 were not moved.)
The Honourable Dr. B.R. Ambedkar: Sir, I formally move.
"That in sub-clause (a) of clause (1) of article 191, for the words 'the High Court of East Punjab, and the Chief Court in Oudh' the words 'and the High Courts of East Punjab, Assam and Orissa' be substituted."
Sir, I moved:
"That with reference to amendment Nos. 2567 and 2570 of the List of Amendments, for article 191, the following article be substituted:-
'191. (1) There shall be a High Court for each State.
High Court for State. (2) For the purpose of this Constitution the High court existing in any Province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State.
(3) The provisions of this Chapter shall apply to every High Court referred to in this article.'"
Shri T.T. Krishnamachari: We might take up the discussion of this amendment first because if this is accepted by the House all the other amendments will be unnecessary. This alters the entire contour of the article while, it also simplifies it.
Mr. President: There are some amendments of which I have got notice. I shall run over them and see.
(Amendments Nos. 2568 to 2577 were not moved.)
Mr. President: There is therefore no other amendment except the one moved by Dr. Ambedkar. Does anyone wish to say anything about the amendment or the article?
The question is:
"That with reference to amendment Nos. 2567 and 2570 of the List of Amendments, for article 191, the following article be substituted:-
'191. (1) There shall be a High Court for each State.
High Court for State. (2) For the purpose of this Constitution the High court existing in any Province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State.
(3) The provisions of this Chapter shall apply to every High Court referred to in this article.'"
The amendment was adopted.
Mr. President: The question is:
"That article 191, as amended, was added to the Constitution."
The motion was adopted.
Article 191, as amended, was added to the Constitution.
Mr. President: I have left out one thing. There is a proposal by Prof. Shah-amendment 2562- that a new article, 190-A be added. I do not know if it will come at this stage. Does Prof. Shah wish to move it?
Prof. K.T. Shah (Bihar: General): Yes, Sir.
Mr. President: Have we not discussed this question in relation to the Supreme Court?
Prof. K.T. Shah: It has been discussed, I know.
Mr. President: It is any use going over the same ground?
Prof. K.T. Shah: In that case I shall not move it.
(Amendment 2562 was not moved.)
*Article 192
(Amendments 2578 to 2580 were not moved.)
Mr. President: Amendment No. 2581 is in Dr. Ambedkar's name. This has to be formally moved.
The Honourable Dr. B.R. Ambedkar: Sir, I formally move:
"That in the proviso to article 192, the words beginning with 'together with any' and ending with 'of this Chapter' be deleted, and after the words 'fix' the words 'from time to time' be inserted."
Sir, I move:
"That with reference to amendment No. 2581, of the List of Amendments, for article 192, the following new articles be substituted:-
'192. High Courts to be courts of Record Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
'192-A. Constitution of high Courts Every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint:
'Provided that the judges so appointed shall at no time exceed in number such maximum as the President may, from time to time, by order fix in relation to that to that Court.'"
(Amendment No. 2582 was not moved.)
Prof. Shibban Lal Saksena: Sir, I only wish to draw attention to one fact. Article 192 says:
"Every High Court shall be court of record and shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint."
and in the proviso it was said:
"Provided that the judges so appointed together with any additional judges appointed by the President in accordance with the following provisions of this Chapter shall at no time exceed in number such maximum as the President may by order fix in relation to that court."
My only objection to the use of the word "President" in this clause is that this the function of the Supreme Court. If the court feels that justice cannot be dispensed unless a certain number of judges are in the court. It is their province to recommend this. I therefore think that the President should fix the number on the advice of the Supreme Court Chief Justice or in consultation with him, so that the Supreme Court may have the initiative in advising the President as to what is the number of judges required for each High Court, That should I think be provided for.
Mr. President: The question is:
"That with reference to amendment No. 2581, of the List of Amendments, for article 192, the following new articles be substituted:-
'192. High Court to be courts of record. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
'192A. Constitution of High Courts. Every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint:
Provided that the judges so appointed shall at no time exceed in number such maximum as the President may, from time to time, by order fix in relation to that Court.'"
The amendment was adopted.
Mr. President: The question is:
"That article 192, as amended, stand part of the Constitution.
The motion was adopted.
Article 192, as amended, and 192-A were added to the Constitution.
Mr. President: Hon. Shri G.S. Gupta's amendment relates to the language question which we shall not take up now.
*Article 193
(Amendment No. 2584 was not moved.)
Mr. B. Pocker Sahib (Madras: Muslim): Sir, I beg to 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 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.'"
There are two points involved in this amendment. Even in connection with the articles dealing with the appointment of Supreme Court judges I have made a reference to the recommendations in the memorandum of the Federal Court and the Chief Justices of the provincial High Courts. There fore I do not propose to deal with those points to which I had already referred. I would request the Members of this House to consider the points mentioned in the memorandum of the Federal Court and the Chief Justices of all the High Court in India. It is very valuable document and therefore proper weight should be attached to that by the House. I do not want to repeat those arguments to which I have referred on the previous occasion.
The important difference between my amendment and the article as it stands is that the amendment requires that the main recommendation must be from the Chief Justice of the High Court concerned after consultation with the Governor of the Province and the concurrence of the Chief Justice of India is insisted on. It is very necessary that the recommendation should be that of the Chief Justice of the High Court concerned and the Governor is only to be consulted. The concurrence of the Chief Justice of India is insisted on in my amendment which is an important thing. I do not want to repeat the arguments which I mentioned in connection with the appointment of the judges of the Supreme Court. The reason for the amendment is that in the matter of appointments to the High Courts there should be only consultation with the Governor and the Ministry should not have any real part in these appointments and they should be above political considerations.
Another point involved in the amendment is as regards the age. On this matter I would draw the attention of the House to the recommendation of the Federal Court and the Chief Justices of the High Courts in India. They state:
"It is essential that a difference of three to five years should be maintained between the retiring age of the High Court judge and that of the Supreme Court judge. The age limit for retirement should be raised to 65 for High Court judges and to 68 years for Supreme Court judges."
They go to the extent of recommending that the age should be fixed for retirement at 65. We know cases in which retired High Court judges are very energetic and have held very responsible positions in life after retirement. When that is so, I do not see any reason why they should be compelled to retire at an earlier age. Therefore, I would request honourable Members to pay sufficient consideration to the recommendations made by the Federal Court and the Chief Justices of the various High Courts who put the age limit as high as 65, while my amendment only raises it to 63. I do not want to add anything more to what I have said.
The Assembly then adjourned till Eight of the Clock on Tuesday, the 7th June 1949.