Constitution Assembly Of India - Volume VIII
Dated: May 24, 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten minutes past Eight of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
The Honourable Shri Ghanshyam Singh Gupta (C.P. & Berar: General): Sir, could we not do something to be punctual? It pains me very much to see that we commence our business eleven minutes late. This is very bad for us and it ought to be a matter worthy of your consideration that we should be punctual.
Mr. Tajamul Husain (Bihar: Muslim): For that we are to blame. The fault is ours. We do not come here in time.
The Honourable Shri Ghanshyam Singh Gupta: What I once did in the C.P. Assembly was that I entered punctually and when I found that there was no quorum, I told honourable Members that I would retire for five minutes to see whether there was quorum. This was the solitary instance and I have found that I have not to wait even for five seconds. It is a matter of very great concern that this august House should commence its work eleven minutes after time.
Mr. President: I am glad that the honourable Member has drawn attention to this. I myself have been waiting for the past twenty minutes in the chamber. I hope the point that he has raised will receive due consideration at the hands of honourable Members and it will not be necessary for me to take the step which he took in the C.P. Assembly. From tomorrow we shall always be here exactly in time.
We shall now take up article 103.
DRAFT CONSTITUTION -(contd.)
* Article 103
Mr. Tajamul Husain: Mr. President, Sir, my amendment is a very simple one. I beg to move:
Now I will read article 103, clause (1).
If my amendment is accepted, the amended clause will read:-
According to this article, the Chief Justice of the Supreme Court will be called the Chief Justice of India and the Chief Justice of a provincial High Court will also be called a Chief Justice. I am of the opinion that there must be a distinction between these two. No doubt the Chief Justice of India is called the Chief Justice of India and the other is only a Chief Justice. We have distinguished between the Prime Minister of India will be called the Prime Minister but the provincial head will be called the Attorney-General, while in a province he will be called the Advocate General. We have distinguished here also. The Auditor-General of India will be called the Auditor-General, while in a province he will be called only the Auditor-in-Chief. Therefore in order to distinguish between the Chief Justice of a provincial High Court and the Chief Justice of the Supreme Court, we should call the Chief Justice of India the Supreme Chief Justice of India instead of merely the Chief Justice of India the Supreme Chief Justice of India instead of merely the Chief Justice of India. With these words I move my amendment and I hope it will be accepted.
The Honourable Dr. B. R. Ambedkar (Bombay: General): Mr. President, Sir, I move:
The object of this amendment is that the constitution of the Supreme Court should not be held over until Parliament by law prescribes the number of Judges. The amendment lays down that seven Judges will constitute the Supreme Court.
(Amendment No. 1815 was not moved.)
Shri Krishna Chandra Sharma (United Provinces: General) : Sir, I move:
The object of this amendment is that the constitution of the Supreme Court should not be held over until Parliament by law prescribes the number of Judges. The amendment lays down that seven Judges will constitute the Supreme Court.
(Amendment No. 1815 was not moved.)
Shri Krishna Chandra Sharma (United Provinces: General): Sir, I move:
Sir, read with article 61, my amendment would carry the same meaning and purpose as the provisions of Section 200 of the Government of India Act, 1935. Under that Section the Chief Justice and the other Judges of the Federal Court are appointed by the King and the King is supposed to act on the advice of his Ministers. Now under article, 61, the President of India shall act on the advice and with the consent of the Senate. In the other Dominions also, the representative of the King, on the advice of the Ministry concerned, appoints the Chief Justice and other Judges of the Supreme Court. So my amendment is quite in accord and in line with what prevails in the United States, is provided in the Government of India Act, 1935, and is the practice in the other Dominions as well. Sir, I move.
Mr. President: There are two other amendments which are more or less to the same effect that is, 1822 and 1823. I do not think it is necessary to move those amendments separately, but I will take them as representing more or less the same view-point as conveyed in amendment No. 1816. We shall take the amendment which may be considered to be the best from the point of view of language.
Prof. Shibban Lal Saksena (United Provinces: General): Mr. President, Sir, I move:
ir, in this amendment I have provided that the Chief Justice of the Supreme Court shall be appointed by the President, but it shall be confirmed by at least two-thirds majority of both the Houses. At present, clause (2) provides that the president shall appoint the Chief Justice of the Supreme Court, which means that the Prime Minister or the Executive shall appoint him. The Chief Justice of the Supreme Court should be completely independent of the Executive and it is this principle which I want to introduce in this section. At present he shall be a creature merely of the executive and the President shall appoint him on the advice of the Prime Minister. This will take away some independence of the Supreme Court. We are here providing for the highest tribunal of justice in our country. This tribunal should be above suspicion and no executive should be able to have any influence upon him. If the Chief Justice is appointed by the President or the Prime Minister then his independence is compromised. I therefore want, Sir, that the Chief Justice shall be appointed by the President of course, but at least two-thirds members of the Parliament shall approve his name. This means that the President shall and will be the prime mover in the appointment but if the name he chooses is not one which can be approved by the members of Parliament by at least two-thirds majority, then that name shall be changed and another name shall be changed and another name shall be proposed which shall be acceptable to two-thirds majority of both Houses. In this manner, there is some initiative to the President also. He will be the man who will give the names, but the name will only be accepted if two-thirds majority of both the Hoses support him, so that the President shall have the initiative, but the man chosen will be such who shall enjoy the confidence of both the Houses of Legislature. This method has two advantages; it gives the executive the right of choosing the person who they think will be proper, but it will not exercise that right in a party spirit but shall decide it in a manner that all the members of both the Houses, or at least a two-thirds majority of them, shall approve that name. Therefore, Sir, I think that the provision which I am suggesting will be a far better provision than the one contained in the draft already. At present, Sir, the judges also have not to be appointed on the advice merely of the Chief Justice of the Supreme Court, but they are appointed in consultation with the Supreme Chief Justice, which means even in their appointments the Executive has got the major hand. I think, Sir, that this should not be. Every judge of the Supreme Court should be appointed on the advice merely of the Supreme Judge of the Supreme Court, so that they may advice merely of the Supreme Judge of the Supreme Court, so that they may derive their authority from the Chief Justice and not from the Executive. This, I think, Sir, is a very important thing and should be incorporated in our Constitution. We have all along said that we want an independent judiciary; that is the pride of many peoples and that is the pride of the United States of America. I think we too want that our Chief Justice and the Supreme Court should be above suspicion. These should be completely independent, so that a man can feel that they shall be absolutely independent of the Executive. To my mind my amendment is very important and I therefore, hope that the Members here will see that they make some changes so that the Chief Justice of the Supreme Court does not become a creature merely of the Executive, and the President appoints him on his recommendation.
I also feel, Sir, that this provision about consultation with the High Courts in States is an anachronism. The States shall now not have an independent existence as they have merged. Probably it was intended when they were not given that right, but now this should not be there. I hope, Sir, that Dr. Ambedkar will see that this is removed and things are brought up to date, and we shall have an independent judiciary which shall be absolutely independent of the Executive. I have already provided that the initiative shall be entirely that of the President, which means that the Executive shall have the right to suggest the names, but out of the names, it will be the Assembly, the joint session of both the Houses which will choose the name they think proper, by the two-thirds majority in a proper manner. Sir, I move.
(Amendment No. 1818 was not moved.)
Mr. B. Pocker Sahib (Madras: Muslim) : Sir, I move:
Now, Sir, in giving this amendment, I wanted to see that the appointment of the judges of the Supreme Court is not in any way affected by political influences. It is with that view that this amendment has been given and in that view. I am very strongly supported by the opinions given by the Federal Court and the Chief Justices of the various High Courts, which have been submitted to this body. That memo has been circulated to the honourable Members of this House. Sir, you will permit me to read only some of the sentences from that memo. This is what it says:
It is said later on that mutatis mutandis, the very same principles apply to the appointment of the Judges of the Supreme Court. The same memo points out:
Further, it is stated:
I submit, Sir, the views expressed by the Federal Court and the Chief Justice of the various High Courts assembled in conference are entitled to the highest weight before this Assembly, before this provision is passed. It is of the highest importance that the Judges of the Supreme Court should not be made to feel that their existence or their appointment is dependent upon political considerations or on the will of the political party. Therefore, it is essential that there should be sufficient safeguards against political influence being brought to bear on such appointments. Of course, if a Judge owes his appointment to a political party, certainly in the course of his career as a Judge, also as an ordinary human being, he will certainly be bound to have some consideration for the political views of the authority that has appointed him. That the Judges should be above all these political considerations cannot be denied. Therefore, I submit that one of the chief condition mentioned in the procedure laid down, that is the concurrence of the Chief Justice of India in the appointment of the Judges of the Supreme Court, must be fulfilled. This has been insisted upon in this memo. and that is a very salutary principle which should be accepted by this House. I submit, Sir, that it is of the highest importance that the President must not only consult the Chief Justice of India, but his concurrence should be obtained before his colleagues, that is the Judges of the Supreme Court, are appointed. It has been very emphatically stated in this memo. that it is absolutely necessary to keep them above political influences. No doubt, it is said in this procedure that the Governor of the State also may be consulted; but that is a matter of minor importance. It is likely that the Governor may also have some political inclinations. Therefore, it is that my amendment has omitted the name of the Governor. That the judiciary should be above all political parties and above all political consideration cannot be denied. I do not want to enter into the controversy at present, which was debated yesterday, as to the necessity for the independence of the judiciary so far as the executive is concerned. It is a matter which should receive very serious consideration at the hands of this House and I hope the Honourable the Law Minister will also pay serious attention to this aspect of the question,particularly in view of the fact that this recommendation has been made by the Federal Court and the Chief Justice of the other High Court assembled in conference. I do not think, Sir, that there can be any higher authority on this subject than this conference of the Federal Court and the Chief Justices of the various High Courts in India.
Another point, which I have raised in my amendment is that the age of retirement of the Supreme Court Judges should be raised to 68. It has been found in recent years that there are many High Court Judges who have retired at the age of sixty, who are very energetic and who are well fitted to discharge the duties for a number of years more. Apart from that, there are very cogent reasons given in this memo. Why the age of retirement of the Judges of the Supreme Court should be raised to sixty-eight. In this memo. it is stated that there may be a difference of three to five years between the age of retirement of a Judge of a High Court and that of the Supreme Court. The very same memo, says that the age of retirement of the High Court Judges may be fixed at sixty-five and that of the Judges of the Supreme Court may be fixed at sixty eight. As regards the age of retirement of the Judges of the High Court, the matter has to be discussed when those relevant sections are taken up for consideration. I do feel, Sir, that the age of retirement of the High Court Judges should be raised to sixty-two or sixty-eight as recommended by the Federal Court and the Chief Justices of the various High Courts of India. I submit, Sir, that this is a matter which should receive very serious attention at the hands of the honourable the Law Minister, in view of the fact that I am supported in my amendment by the recommendations of the highest judicial authority in the country.
(Amendment No. 1820 was not moved.)
Shri H.V. Kamath (C.P. & Berar: General): Amendment No. 1821 is purely of a drafting nature. I leave it to the Drafting Committee.
Mr. President: Amendment Nos. 1822 and 1823, as I said, are covered by amendment No. 1816 which has been moved.
Prof. K.T. Shah (Bihar. General): Sir, I beg to move:
The amended proposition would read:
Sir, this is an amendment seeking to make the appointment of Judges free from any particular influence. My amendment is that the President, if he makes the appointment, will naturally do so on the advice of the Prime Minister. In my opinion, Sir, if I may so with all respect, this Constitution concentrates so much power and influence in the hands of the Prime Minister in regard to the appointment of judges, ambassadors, or Governors to such an extent, that there is every danger to apprehend that the Prime Minister may become a Dictator if he chooses to do so. I think there are cases which ought to be removed from the political influence, of party manoeuvres. And here is one case, viz. Judges of the Supreme Court, who I think should be completely outside that influence. I am, therefore, suggesting that the appointment of the Judges should be made by the President, after consultation not only with the Judicial services proper, but also with the Council of States so that the party element may be eliminated or minimised, and any political influence also may be avoided.
The suggestion has further this argument in its support that just as in regard to the financial powers the Lower House or the House of People is made supreme, so in matters of this kind, in matters of making high appointments as a pure consideration of balance of power I suggest that the Council of States should be associated, if only to avoid the influence that is likely to dominate when the Prime Minister alone advises the President on such matters.
The Council of States composed, as it is of representatives of States as well as certain interests, would be, I think, more able to be balanced in this matter. Accordingly, the addition of the Council of States as an advisory body to the President in such matters will not be in any way objectionable.
There is of course the obvious precedent of the U.S.A. Senate which is associated in such matters, even though the Constitution of the U.S.A. is based, fundamentally speaking, on a somewhat different principle than that which we have adopted in this draft. Nevertheless, here is a case in which I think it would be well for us to adopt that line and associate the Council of States for advising the President in the appointment of the Supreme judiciary. I hope this will be accepted.
(Amendments Nos. 1825, 1826 and 1828 were not moved.)
Mr. President: No. 1827 is covered by other amendments moved.
The Honourable Shri K. Santhanam (Madras: General): Sir, I beg to move:
As the clause stands the words 'may be' may come before a Court of law because somebody has to decide about the necessity and so my amendment seeks to give the President the discretion to decide which Judges it will be necessary to consult. I think the amendment is essential as otherwise the words are left vague.
Mr. President: No. 1830 and No. 1831 are already covered by No. 1829.
Prof. K. T. Shah: Mr. President, Sir, I beg to move:
The amended proposition would read:
This is another way in which I am trying to secure the absolute-independence of the judiciary. This means that the appointments will be not for a definite period, or within a prescribed age-limit, on attaining which a Judge must compulsorily retire, but, as is the case in England, and as was quite recently the case in the United States of America, judges, particularly of the Supreme Court, should be appointed for life. They should not, in any way be exposed to any apprehension of being thrown out of their work by official or executive displeasure. They should not be exposed to the risk of having to secure their livelihood by either resuming their ordinary practice at the bar, or taking up some other occupation which may not be compatible with a judicial mentality, or which may not be in tune with their perfect independence and integrity.
I suggest, therefore, that the practice which exists in England, and which existed quite recently in U.S.A. of allowing judges to continue in their office during good behaviour, that is, practically for the rest of their lives, should be accepted.
If, however, any judge feels that, due to mental or physical causes, he is unable to carry on or do full justice to his functions, it may be open to him to resign I suggest, after ten years of service in a judicial capacity; and if he so resigns, I further suggest that he should be exposed to no want, no fear as to his ordinary livelihood. He must be completely secure in his social position, in his economic position, and as such he must be allowed a reasonable pension.
I leave the amount of this pension to be determined by law by Parliament, not for a particular judge, if and when he resigns, but as a rule for general application. Whatever be the law in force at that time, a retiring judge after ten years of service should be allowed the benefit of that law by way of a pension.
'Speaking for myself, I would suggest that the pension for the such judges should be not less than their own salary while in office, so that there is no temptation left to them either to seek any other employment, or carry on any other occupation or profession by which they could eke out their existence. If the salary was sufficient to maintain them in given standard of life, the pension also should be of a similar nature.
This, however, is my personal opinion which I do not wish to be included in the Constitution, and I suggest it may be left to the law to be made by Parliament in that behalf. But the supreme principle that I have all the time been pressing upon the House is the necessity of securing the absolute independence of the judges. That I have attempted to secure, first, in the previous amendment, by the procedure for their appointment, and here, secondly, by the term of their appointment being made for the duration of good behaviour, that is to say, practically for the rest of their lives. If for any reason it becomes necessary for a judge to wish to retire from his office, or even to be removed, without of course any censure being attached, then he should be entitled to pension sufficient to maintain him in independence and in perfect security and comfort, not necessarily affluence, during the rest of his life. This, Sir, is such a simple principle that I hope there will be no objection taken to it and that the proposition will be accepted.
Shri Jaspat Roy Kapoor (United Provinces: General): Mr. President, Sir, I beg to move:
Sir, my reasons for moving this amendment are there. Firstly, the ordinary age of retirement in the case of government servants is 55 years, but in the case of High Court Judges it has been raised to sixty. I see no reason why a further extension up to the age of sixty-five should be granted in the case of judges of the Supreme Court. They must, after putting in long years of service retire and make room for others to come in. I know that the Chief Justices in a conference which they held some time ago, recommended that the age of superannuation of the judges of the Supreme Court should be sixty-five. I have not been able to find in the proceedings of that conference any cogent reasons urged by the learned Chief Justices. The main reason which they have urged is that if the age of superannuation is not raised to sixty-five years, there will not be enough attraction to the High Court Judges to accept posts in the Supreme Court. I must confess that I felt considerably disappointed at this sort of argument being urged by the learned Chief Justices. We should not accept this recommendation of the Chief Justices merely in order to provide attraction to such Judges of the High Courts with whom monetary considerations weigh the most.
My second reason is, and I urge this reason with due respect to such honourable Members of this House who are above the age of sixty, that very often a person who has gone beyond the age of sixty is not very fit and is not mentally alert, to perform the strenuous duties of a judge of the Supreme Court. I know that sometimes there have been judges in the High Court who even before they have attained the age of sixty are not mentally fit to discharge the functions of a High Court Judge. Sometimes, we have found High Court Judges-and I say this with due respect to them-we have found them sleeping and snoring when the learned advocate is going on speaking.
Mr. President: That does not depend upon age.
Shri Jaspat Roy Kapoor: Of course, not always, Sir, I only say that sometimes it happens that a person who is even nearing the age of sixty is not fit to perform the strenuous duties of a High Court Judge, and much less to be able to perform the duties of a judge of the Supreme Court. I know that we cannot say that generally it is so, but I can say that sometimes it is certainly so. Therefore, my submission is that if we make it a definite rule that every Judge of the Supreme Court shall go up to the age of sixty-five, it may not be safe to do so. I know, of course, honourable Member of this House, a good many of them, are beyond the age of sixty and they are an ornament to the country. But it is not everybody who goes beyond the age of sixty that continues to be so fit and so mentally alert.
And then, Sir, my third reason is-and that is the most important of the reasons-that one who has served and has earned handsomely from the Government up to the age of sixty years should be prepared to retire and serve the society thereafter in an honorary capacity. Society has a right to expect of everyone who has attained the age of sixty to work honorarily for the benefit of the society. In our country, Sir, the ideal, the ancient ideal has been that every person in the fourth stage of his life must become a Sanyasi and must serve society in an honorary capacity. This is the standard which has been set before us by our ancient sages, and I think, Sir, we can reasonably expect of everybody, and more particularly of the learned ones like the Judges of the Supreme Court, to set a good example for everybody else, of service to the country in an honorary capacity after the age of sixty years. I have often thought that Government servants who are on pension after retirement and free from worry about earning a living may very well serve society in an honorary capacity in doing constructive work, in which case we may have a very good army of social workers in various spheres of activity. My amendment, however, does not absolutely bar the continuance of judges of the Supreme Court in service after the age of sixty. What I say is that ordinarily they shall retire at sixty but in exceptional cases the President, if he thinks the Judge is exceptionally capable and should be retained in the interest of good judicial administration, may keep him till sixty-five, but only by giving him extensions from year to year. I hope this amendment will be acceptable to the Honourable Dr. Ambedkar and the House.
(Amendments Nos. 1834 and 1835 were not moved.)
Shri Satish Chandra (United Provinces: General):
Sir, I move:
There has arisen a lot of controversy over the question of age-limit which is prescribed in this clause. My honourable Friends Mr. Pocker Saheb, Mr. Naziruddin Ahmad and Mr. Mahboob Ali Baig wish it to be raised to sixty-eight years, while Shri Jaspat Roy Kapoor and Shri Mohanlal Gautam would like it to be reduced to sixty. I think our constitution is being unduly burdened with age-limits in various articles here and there. The question of age is one which can be left safely to the future parliaments to be decided and fixed, in particular circumstances, according to the needs and exigencies of the time. I endorse most of what Shri Jaspat Roy Kapoor has said and do not wish to repeat the arguments. My feeling is that this House, composed as it is of elderly gentlemen has been unfair to young men at various stages in fixing the age-limits. Our constitution has provided for the membership of Legislatures minimum age-limits which are highest in the world; and, but for the one amendment that was accepted about the eligibility for the Upper Chamber of Parliament, the age-limits should have been higher than the highest in the world. I hope my amendment will be accepted and it will be left to the future Parliament to decide the age-limit in this case. I think after the age of sixty, physical and mental incapacity overtake most people, although there are always exceptions. However I do not wish to enter into that controversial point and desire to leave such questions of detail to the future Parliament.
(Amendments Nos. 1837 and 1838 were not moved.)
Mr. Mahboob Ali Baig Sahib (Madras: Muslim): Sir, I beg to move:
Under our proposed constitution the President would be the constitutional Head of the executive. And the constitution envisages what is called a parliamentary democracy. So the President would be guided by the Prime Minister or the Council of Ministers who are necessarily drawn from a political party. Therefore the decision of the President would be necessarily influenced by party considerations. It is therefore necessary that the concurrence of the Chief Justice is made a pre-requisite for the appointment of a Judge of the Supreme Court in order to guard ourselves against party influences that may be brought to bear upon the appointment of Judges.
This is a salutary principle and it is necessary that the concurrence of the Chief Justice should be made necessary for the appointment of the Judges of the Union Judicature. It may be said that there might be disagreement between the opinion of the President and the Chief Justice and there might be a sort of deadlock. I submit, Sir, at that higher level between the Supreme Judge and the President, there is not likely to be any such difference of opinion. Even if there was any such difference of opinion it is open to the President to just propose another name which will be acceptable to the Chief Judge. So there cannot be any serious objection to make the concurrence of the Chief Justice a necessary pre-requisite for the appointment of the Judges of the Union Judicature and that will certainly guard us against any party influences being brought to bear upon the appointments.
(Amendments Nos. 1840 and 1841 were not moved.)
Shri P.K. Sen (Bihar: General): Sir, I move:
The object of this amendment, Sir, is to keep the Judge, who has to retire on account of impairment of health, free from fear or temptation and free from the allurements of holding some office in the executive line or in the political field. It is an admitted principle, and no one is this House, I am sure, will take exception to it, that the Judge of the Supreme Court,or the Judge of the High Court, should be above all fear and temptation. Now, here is the case of a man who has served at the time when he was in health, but while he is fifty-seven or say sixty-one or even sixty-two he feels that any day he might have to retire on account of ill-health. Well, there is a natural temptation to provide something during the period when he will be out of office: We are not unaccustomed to the spectacle of a man in this country who has been a Judge of a High Court, then a Member of the Executive Council of the Governor-General of India, then back again to his province as a Member of the Executive Council of the Province, and further again transported to the Bench of the High Court. Well, this sort of thing should be avoided, and as a matter of fact if a man feels that he has got no provision at all, then he may have to go abegging as it were for some employment or office or occupation, which may keep the wolf from his door. This is the object. I think in this connection. I may draw the attention of the House to clause (7) of article 103, which is also germane to this issue. It says:
Although it is not really directly relevant, I may mention that I have also tabled another amendment-it is new article 103A-in which I have said that a person who is holding or has held the office of Judge of the Supreme Court shall not be eligible for appointment to any office of emolument under the Government of India or a State other than that of the President may with the consent of the Chief-Justice of India depute a Judge of the Supreme Court temporarily on other duties: Provided further that the article shall not apply in relation to any appointment made and continuing while a proclamation of an emergency is in force if such appointment is certified by the President as necessary in the national interests.
Barring those exceptions, I desire that the Judge who has retired will not be able to engage himself in any office of emolument under the Government in any other field of activity, and that is exceedingly necessary, because otherwise there is always the phenomenon of the Judge while in office aligning himself with a political party or with commercial caucuses, which is a very undesirable thing. If all those safeguards are to be adopted, one of the most essential things to be done is also to give him the pension as if he had served up to the age of sixty-five, the utmost limit provided for by the Constitution.
It may be said that all this will be provided for by the rules. I doubt if there is any such thing in the Constitution, and when there is the express provision in the Constitution that he has to serve up to sixty-five years of age, if he does not serve-whether it be on account of ill-health or any other consideration-the result will be that he will only get proportionate pension or very little pension perhaps and naturally in that case not only will it affect his attitude of mind while he is out of office and retired, but it is bound to effect his attitude while he is in office, because he will try and look about for something which he may get for the purpose of saving him from penury. I do think that the Judge should be made perfectly independent so that he can live in dignity when he is in retirement, although the retirement may be premature-before the age of sixty-five.
I hope, Sir, that in the wilderness of amendments with which we are surrounded, this little amendment will not be thrown away as if it were not necessary. I think it is very essential in the public interests of the country.
Prof. K. T. Shah: Sir, I beg to move amendment No. 1843:
This follows the general principle I have been trying to lay before the Houses viz., or keeping the Judiciary completely out of any temptation, and contact with the executive or the legislative side. Whether during his tenure of office, or in the ordinary course of judgeship or even on retirement, I would suggest that there should be a constitutional prohibition against his employment in any executive office, so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge.
I further suggest also that a judge should be free to resign his office and then it would be open to him to have all the rights of an ordinary citizen, including contesting a seat in the legislature, but certainly not during his tenure of office, I consider that these are so obvious that no further words need be added to support it. I would only say once more that in the part we had bitter experience of high-placed Government servants who had risen fairly high in the scale of service, used to secure on retirement influential positions in Britain or directorships in concerns operating in this country. On account of the official position which they had held here in the past, they were able to exercise an amount of undue influence. Such practices the Congress and other parties had frequent occasion to object to. As such I suggest that that practice should now be definitely avoided. I take it that this is also on a par with that principle, and as such should be acceptable to the House.
Shri Jaspat Roy Kapoor : Mr. President, I beg to move:
Sir, I am in agreement both with the principle and with the substance of Professor Shah's amendment No. 1843. But I am moving my amendment because I find that Professor Shah's amendment is defective in two respects. Firstly, in his amendment we have the words "Any person who has once been appointed as Judge of any High Court or Supreme Court shall be debarred from any executive office". It means that he shall be prevented from performing any duties under the Government of India or the Government of any other State even in an honorary capacity. I think it should be open to the Government of a State or the Centre to utilise the services of retired Supreme Court Judges in an honorary capacity.
The second defect in the professor's amendment is that it unnecessarily lays down that a judge of a Supreme Court shall be eligible to be a member of either House of parliament after resigning his seat. I think, Sir, it shall be applicable to every Government servant that so long as he is holding any office of profit he shall not be eligible to be a member of any legislature, be it provincial or Central. So this part of the amendment of Professor Shah is unnecessary. Hence I am moving my amendment.
Sir, the Professor has rightly said that in order to maintain the independence of the judiciary there should be no temptation before any Supreme Court Judge of the possibility of his being offered any office of profit after retirement. That is the first reason. Secondly, as I said while moving another amendment a few minutes ago, the Judges of the Supreme Court, after retirement. should be prepared to offer their services to society in an honorary capacity. Thirdly, I find that this principle is going to be accepted in the case of the Auditor-General. According to article 124(3), with which we shall deal after sometime, provides that the Auditor-General shall not be offered any office after his retirement. The same principle should be made applicable in the case of the Supreme Court Judges. While I was discussing this point with a very learned Member of this House I was told that it should be open to the State to utilise the services of retired Supreme Court Judges in various capacities. I have absolutely no objection to that. But no emoluments should be offered to the retired Supreme Court Judges. A retired Supreme Court Judges may be called upon to perform various and important duties. But then he should be content with the pension which he must necessarily be receiving and no further emoluments should be offered to him.
With these words, I move my amendment and hope it will be accepted by the House.
(Amendment No. 1844 was not moved.)
Shri H.V. Kamath: Sir, I move:
The object of this little amendment of mine is to open a wider field of choice for the President in the matter of appointment of judges of the Supreme Court. The House will see that the article as it stands restricts the selection of judges to only two categories. One category consists of those who have been judges of a high court or of two or more such in succession and the second category consists of those who have been advocates of a high court or of two or more high courts in succession. I am sure that the House will realize that it is desirable, may it is essential, to have men-or for the matter of that, women-who are possessed of outstanding legal and juristic learning. In my humble judgment, such are not necessarily confined to Judges or Advocates. Incidentally I may mention that this amendment of mine is based on the provision relating to the qualifications for Judges of the International Court of Justice at the Hague. I hope the House will see its way to accept my amendment and thus give a wider choice for the President in the matter of appointment of Judges of the Supreme Court.
(Amendments Nos. 1846 and 1847 were not moved.)
Mr. Mohd. Tahir (Bihar: Muslim) : Sir, I move:
Sir, clause (3) of article 103 lays down the qualifications of Judges of the Supreme Court. The clause reads:
So far as the qualifications for the appointment of Judges are concerned, I want that the pleaders should also be qualified for appointment as Judges of the Supreme Court. My reason for this is that the qualification of an Advocate and the qualification of a pleader is the same. An advocate is not better qualified than a pleader`. Of course an Advocate generally practices in a High Court, and a pleader practices in the District Courts, but this is a matter of convenience and nothing else. In these days, a pleader also can become an advocate by depositing a certain amount of money with the Association. As soon as he deposits the money, he becomes an Advocate. May I know, Sir, whether by simply depositing a certain amount of money he becomes more qualified than he was before? Therefore my contention is that so far as the qualifications are concerned, both the Advocates and the pleaders have got the same qualifications. Besides this, Sir, if pleaders have not got a chance of being appointed as Judges of the Supreme Court, a great injustice would be lone to the class of pleaders. That is the class, Sir, which, as everybody knows, has gone through greater sacrifices in achieving the independence of the country. I do not say that it was only the pleader class that fought for the independence of the country. There are other classes who fought for it, but so far as the lawyer class is concerned, you will find that only a very few advocates or almost none of the advocates have taken part in the fighting for the independence of the country. When we are making our Constitution, it will be a great injustice if we are not going to give a chance to the pleaders as such of being appointed as Judges of the Supreme Court. Some of my friends might say that even the briefless pleaders of the District Courts will have the right to be appointed as Judges of the Supreme Court. Some of my friends might say that even the briefless pleaders of the District Courts will have the right to be appointed as Judges of the Supreme Court. That is not the position. There are many advocates who are briefless. Moreover, when a man is appointed as a Judge of the Supreme Court, certainly it will be seen that he is qualified to be appointed as such. My point is that so far as the qualifications are concerned, there is no difference whatsoever between the pleaders and the advocates. Therefore, if an advocate is entitles to be appointed as a Judge of the Supreme Court, there is no reason why a pleader should not be entitled to be so appointed. With these words, Sir, I move.
(Amendment No. 1849 was not moved.)
Mr. Mohd. Tahir: Sir, I beg to move:
I do not wish to make a speech in support of this amendment because this is only consequential on the amendment that I have moved just now. So, no further explanation is necessary.
Sir, I also move:
I am not going to say anything more on the first part of this amendment. So far as the second part of this amendment is concerned, if we look at the Explanation, it runs thus:
Instead of "a person held, etc." it should be "such person held, etc." Instead of the article "a", it should be "such".
The Honourable Dr. B. R. Ambedkar: Sir, I move:
I also move:
Mr. President: There is an amendment to this amendment by Dr. Bakshi Tek Chand, of which he has given notice. It is No. 101 in the printed pamphlet containing the amendments to amendments.
Dr. Bakshi Tek Chand (East Punjab: General): Sir, I do not want to move that.
Mr. President: There is another amendment, I am afraid.
Is Mr. B. Das moving his amendment No. 102? He has given notice of an amendment to this amendment, that is No. 102 in the printed list.
(The amendment was not moved.)
Shri H.V. Kamath : As regards my amendment No. 1854, it being more or less of a drafting nature may be left to the Drafting Committee. Therefore, I do not move it.
Mr. Tajamul Husain: Mr. President, Sir, I move:
With your permission, Sir, I will read clause (4) of article 103.
Therefore, Sir, clause (4) of article 103 deals with the procedure for the removal of a judge. It says that the President can remove a judge after an address is presented to the President by both Houses of Parliament. In my opinion, Sir, to remove a judge on the recommendation of the Parliament would be wrong in principle. If the majority party in the parliament is not in favour of a particular judge, then removal will become very easy, and the judge should always be above party politics. He should be impartial and he should never look up to the Government of the day and he must carry on his work. It does not matter who is in power. If there is an allegation against a judge, I submit, Sir, that the allegation must be enquired into first. Therefore, I suggest that all the judges of the Supreme Court form themselves into a Committee, and this Committee should investigate the charge against the particular judge, then submit its report to the President and then the President is to remove him in consultation with the parliament, provided the charges are proved against him. Therefore, Sir, my amended resolution, if accepted, will read in this way:
I think, Sir, it is the best course we can take as far as the removal of the judges is concerned.
Mr. President: Amendment No. 1856 stands in the name of Mr. Mohd. Tahir. I do not think it is necessary to have any speech on this. It only substitutes the words "a majority" for the words "not less than two-thirds". I take it that it is moved.
Mr. Mohd. Tahir: All right, Sir. I have no objection to it.
Mr. President: Amendment No. 1857 is a verbal amendment.
Amendment No. 1858 stands in the name of Professor K.T. Shah. Is not that covered by the words 'incapacity and misbehaviour'?
Prof. K. T. Shah: I would accept it if you think that they are covered. I do not move it.
Mr. President: Amendment No. 1859. That is also more or less covered by the amendment which has been moved by Mr. Tajamul Husain.
Amendment No. 1860 also goes with Amendment No. 1859.
Amendment No. 1861 is a verbal Amendment.
Amendment No. 1862 stands in the name of Dr. B. R. Ambedkar. That is also a formal amendment to substitute for the words "a declaration" the words "an affirmation or oath". We have made similar changes wherever that expression occurs in other parts of the Draft Constitution. I take it that it is moved.
The Honourable Dr. B. R. Ambedkar: Sir, I formally move:
Mr. Mohd. Tahir: Sir, I beg to move:
This clause, as it is, would, I think, make a person quite useless after he retires from the office of a Judge. Suppose a man is appointed as a Judge of the Supreme Court and he retires and after that he has got enough ability and capacity as well as to work and do many other jobs in the affairs of the world; then, Sir, making a constitution which makes a man unable to do what he wants to do, I think, is quite unjustified. A constitution should not contain such provisions by which the activities of a person should be limited even if he has got the capacity to do it. Therefore, I think those persons who have worked as Judges of the Supreme Court and retired in due time, if they have got the capacity to work in other fields, they retired in due time, if they have got the capacity to work in other fields, they should be allowed to do as they are able to do. With these words, I move.
(Amendment No. 1864 was not moved.)
The Honourable Shri K.Santhanam : Sir, I beg to move:
Sir, it has been argued by many that a Supreme Court Judge after retirement should not seek any office. To make such a complete prohibition will land us in difficulties. There is for instance, the Income Tax Investigation commission of which Mr. Justice Varadachariar is the Chairman. Similarly, we may have Enquiry Commissions and other Commissions for which these retired Judges may be the fittest persons. But my amendment tries to prevent them from holding any office of profit without the express permission of the President. Ordinarily, the President will not give such permission unless it is an office which does not militate against the independence of the Judge. Particularly, I want to prevent Supreme Court Judges from taking office in private companies such as Chairman of the Board of Directors, etc. This is absolutely essential if we want to keep our judiciary beyond all possibility of temptation. Therefore, I suggest that my amendment carries out all these purposes with the least complication or difficulty. I commend it to the House.
(Amendment No. 1866 was not moved.)
Mr. President: Amendment No. 1867: there is another article 196 in the Constitution which deals with the Judges of the High Courts. I think this is covered by that article. Do you insist on moving the amendment here also?
Prof. K. T. Shah : I do not move, Sir.
(Amendment Nos. 1868 and 1869 were not moved.)
Mr. President: We have now disposed of all the amendments of which I had notice. Those who wish to speak on any of the amendments or on the original article may do so now. I would request the Members to be brief. We have already taken two hours in moving amendments to one article.
Pandit Thakur Das Bhargava (East Punjab: General): Sir, I support amendment No. 1817. According to the provisions of this amendment, confirmation of the appointment of the Chief Justice of the Supreme Court must be made by a two-thirds majority of the total number of members of Parliament assembled in a joint session of both Houses of Parliament. If you kindly refer to clause (4) of this article, it will appear that so far as removal of a Supreme Court Judge is concerned, an address supported by not less than two-thirds of the members present and voting should be presented to the President by both Houses of Parliament in the same session. I beg to submit this principle is quite sound that the dismissing authority should be the appointing authority also. Therefore, the objection that the legislature should not have any influence in regard to the Judges of the Supreme Court has been laid at rest by this provision about removal. There can be no such valid objection so far as the appointment of the Chief Justice of the Supreme Court is concerned. No doubt, the appointment should be made by the President; but what is sought now is that the confirmation may be got to be made by a two-thirds majority of the total number of members of Parliament. This would inspire much more confidence in the Chief Justice of the Supreme Court and at the same time, the Chief Justice also shall get more influence and prestige when it is known that his appointment has not only been supported by the President, who practically represents the majority in the legislature, in so far as that it will be the Prime Minister who will give his advice to the President. All the same, if a two-thirds majority is insisted upon, it shall give him more influence and prestige. Moreover, the objection relating to amendment No. 1813 is also removed because the name which has been given is 'Chief Justice of Bharat'. This will be different from the name given to the Chief Justice of the High Courts.
I want to make one observation more in regard to amendment No. 1843. It has been pointed out that after retirement, no Judge of the Supreme Court should hold any office of profit, nor should he be allowed to practise in any of the courts. So far as it goes, this provision is quite wholesome; but at the same time, the restriction put upon his activities in amendment No. 1843 is not justifiable. According to me, a Judge of the Supreme Court, after retirement, is perfectly fitted to become a member of the House of the People or of the Council of States. Therefore, I am of the view that though a Judge should not be allowed to practise in any subordinate Court subsequent to his retirement, he should be allowed to continue his activities as a Member of the legislature.
The Honourable Shri Jawaharlal Nehru :(United Provinces: General): Sir, I wish to say about one particular matter with which some amendments have dealt, that is, the age-limit of the Supreme Court Judges. Some Members have proposed an amendment reducing the proposed age-limit to sixty; one of them suggested increasing it to sixty-eight. It is rather difficult to give any particular reasons for a particular age, sixty-five or sixty-six; there is not too much difference. After much thought, those of us who were consulted at that stage thought that sixty-five would be the proper age limit.
This business of fixing age-limits in India in the past was, I believe, governed by entirely the service view. The British Government here started various services, the I.C.S. which was almost manned entirely by Britishers and then later on some Indians came in. and other services. The whole conception of Government was something revolving round the interests of the services. No doubt, these services served the country; I do not say anything against that. But, still, the primary consideration was the service and all these rules were framed accordingly.
Now, the other view is, how you can get the best service out of an individual for the nation. Each country spends a lot of money for training a person. Now, we have to get the best out of the training you give to a person. You should not, when he is quite trained and completely fit, discard him and get an untrained person to start afresh. Now, it is difficult, of course, to say when a person is not working to the peak of his capacity. In different professions the peak may be different with regard to age. Obviously a miner cannot work as a miner at sixty or anywhere near sixty. An intellectual worker may work more. So also about writers. It will be manifestly absurd to say that a writer must not write after a certain age, because he is intellectually weak. Or for the matter of that, I rather doubt whether honourable Members of this Assembly will think of fixing an upper age-limit for membership of this Assembly, or for any Cabinet ministership or anything of that kind. We do not do it. But the fact is, when you reach certain top grades where you require absolutely first-class personnel, then it is a dangerous thing to fix a limit which might exclude these first-rate men. I would give you one instance which came up in another place. It was the case of scientists. In such a case, can we say that he cannot work because he has reached the age of sixty? As a matter of fact, some of the greatest scientists have done their finest work after they reached that age. Take Einstein. I do not know what his age is, but certainly it should be far above sixty; and Einstein is still the greatest scientist of the age. Is any government going to tell him, "Because you are sixty, we cannot use you, you make your experiments privately"?. There are some scientists in India-first class scientists-and the question came up before me, should they retire? I pointed out that we are already short of first-rate men, and if you just push them out because of some rules fixed for some administrative purpose, which have nothing to do with the highest class of inventive brain work, it would be a calamity for us. We would not get even the few persons we have got for our purpose.
With regard to judges, and Federal Court Judges especially, we cannot proceed on the lines of the normal administrative services. We require top men in the administrative services. Nevertheless, the type of work that a judge does is somewhat different. It is, in a sense, less physically tiring. Thus a person normally, if he is a judge, does not have to face storm and fury so much as an administrative officer might have to. But at the same time it is highly responsible work, and in all countries, so far as I know, age-limits for judges are far higher. In fact there are none at all. In America the greatest judge that I believe the Supreme Court produced went on functioning till the age of ninety-two-Holmes-and he went on functioning extremely well up to the age of ninety-two for thirty or forty years running. If you go to the Privy Council of England I do not know what they are now, but some years back when I went there I saw patriarchs sitting there with long flowing beards; and their age might have been anything up to a hundred years, so far as looks were concerned. May be, you may over do this type of thing. But the point is we must not look upon this merely as a question of giving jobs to younger people. When you need the best men, obviously age cannot be a criterion. A young man may be exceedingly good, an old man may be bad. But the point is if an old man has experience and is thoroughly fit, mentally and otherwise, then it is unfortunate and it is a waste from the State's point of view to push him aside, or force him to be pushed aside, and put in some one in his place who has neither the experience nor the talent, perhaps. We are going to require a fairly large number of High Court Judges. Of course the number of Supreme Court Judges will be rather limited. Nevertheless, there are going to be more and more openings, and the personnel at our disposal is somewhat limited. Judges presumably in future will come very largely from the bar and it will be for you to consider at a later stage what rules to frame so that we can get the best material from the bar for the High Court Federal Court Judges. It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way. Now, taking all these into consideration I feel that the suggestion made by the Drafting Committee with regard to Federal Court Judges, that the age-limit should be sixty-five, is by no means unfair, for it does not go beyond any reasonable age-limit that might be suggested. Many of us here are, as you are aware, dangerously near sixty or beyond it. Well, we still function, and function in a way which is far more exhausting and wearing than any High Court Judge can be. We are functioning presumably because in the kindness of your heart, in the country's heart, you put up with us, or think us necessary. Whatever it be, you can change us and push us out if you do not like us. There is no age-limit. But the High Court Judges and Federal Court Judges should be outside political affairs of this type and outside party tactics and all the rest, and if they are fit, they should certainly, I think, be allowed to carry on. Of course every rule that you may frame may give rise to some difficulties and undesirable men may carry on. But a man appointed to the Federal Court is presumably one who has gone through an apprenticeship in the High Court somewhere. He cannot be absolutely bad, otherwise he would not have got there. He cannot be absolutely bad, otherwise he would not have got there. He must have justified himself in a High Court as Chief Justice or something. So you are fairly assured that he is up to a certain standard. If so, let him continue. Otherwise the risk is greater, of pushing out a thoroughly competent man because of the age-limit, because he has attained the age of sixty. So I beg the House to accept the age-limit of 65 for Federal Court Judges that has been suggested.
Shri R.K. Sidhva (C.P. & Berar: General): Mr. President, Mr. Kapoor's amendment says that the age-limit should be curtailed from 65 to 60, and Mr. Satish Chandra suggests that the age should be left to the Parliament to decide. Sir, Mr. Kapoor himself was not sure in his argument whether the age sixty was the right age. He said that a judge under sixty he had come across was mentally unfit. Well, if the judge under sixty was mentally unfit, then the appointing authority, according to me, must have been mentally unfit, because it is not expected that a judge will be mentally unfit, which means mentally unsound or mad. Such a man cannot be allowed to continue. Sir, it has been argued that persons who have crossed the age of sixty are generally unfit, that they have lost all their energy. Let me tell my Friends who hold such a view that there are thousands of persons who have crossed the age of sixty, but they are younger in energy, younger in ability, younger in activity and younger in common-sense than so many of the young persons who boast of possessing these qualities. That is a fact which cannot be denied. Therefore those who say that a man after sixty is insane do not know the youngsters today. Today their constitution is such that a man of forty looks like one of sixty. Medical science says that a person is necessitated to wear glasses after forty-five, but you find youngsters of thirty years wearing glasses. The youngster of today is an old man at forty, whereas there are thousands of men above sixty who are stronger in their constitution than young men. In the judiciary older person bring a lot of knowledge and experience. I know the Pay Commission has recommended the extension of the age of pension. I do not know what Government have done about it. Of course from the administrative point of view it will block the promotion of younger people, but to say that a man is insane after sixty is nonsense. I know two Judges who lost their eyesight sat on the bench and used typewriter and they were two of the very best Judges this country has ever had. After all the Judges have got to be able and impartial, and age does not count in this matter. I myself claim to be younger than many of the young people although I have crossed sixty. It is ability that counts; and if a man has got energy and ability and perseverance, he should be kept in public service even if he is over sixty. I lay stress on this because I want that we should not be carried away by sentiment merely because we have to give a chance to younger people. You cannot discard people merely because they are over sixty years of age.