Constitution Assembly Of India - Volume VIII

Dated: June 07, 1949

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 knew they might have to revert to the Bar. This should not be permitted.

It has been said temporary judges should not be debarred from practice. I hope that article 198 and 199 would be so amended that there will not 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. 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 spiring 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 but 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 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 an 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 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 argument 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 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. Prohibition of practising in courts or before any authority by a person who held office as a judge of a High Court. 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 :-

'198. Temporary appointment of Acting Chief Justice. 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:

'198. Temporary appointment of Acting Chief Justice. 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 amendment 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 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 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, 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 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 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 later, 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 200. 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 retire, 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 Judges 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 executive, nor its independence, if the President is inclined to meddle in the judiciary, or is inclined to see that the judiciary kowtows to 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 Judges 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 them.

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 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 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 the 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 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 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 point 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 Court 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:

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 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 Judges, 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 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 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 to 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 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 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.