CONSTITUENT ASSEMBLY OF INDIA - Volume VIII


Tuesday, the 24th May, 1949

Now coming to the amendment of Professor Shah, he wants the Council of States to decide the question of the appointment of Judges. This I must strongly oppose. We want impartial and independent Judges; and if you leave it to the Council of States there is bound to be individual canvassing, in which case the question of ability, etc, will be set aside. Of course from the point of democracy it may be good to consult them because we want wider consultation and discussion but there must be a limit to it. And if you leave it to the Council of States to appoint Judges, that will be going too far. After all our Prime Minister has to make appointments of Ambassadors, Governors, Judges etc. This is true; he is likely to make appointments of his choice or show favoritism, but surely he is subject to our votes. You cannot have it decided by a Council of 150 people or more; canvassing that of all persons Prof. Shah should have moved this amendment.

My honourable Friend, Mr. Mohammad Tahir, wants that pleaders of district courts of twelve years standing should be considered for the posts of Judges of the Supreme Court. Sir, we know of briefless and duffer barristers and lawyers who wander in the corridors of courts; are these people to be appointed Supreme Court Judges? The Supreme Court Judges should be men of experience and knowledge gathered in the High Courts and from that point of view the amendment of Mr. Tahir is objectionable.

Coming to the article itself, clause(4) contains an important provision about the removal of Judges. It says that the President can remove a Judge on an address presented by the Houses of Parliament and if two-thirds of the members present have voted for it. I do not know any case of removal of a Judge except a recent one in the United Provinces where the Governor-General at the instance of the Premier of the U.P. removed a Judge for misbehaviour. I did not know the Governor-General had this power because it has never been used although I know of one Judge who has been guilty of misuse of power. I am glad our Governor-General has made history; other Judges also will learn from this a lesson to be more careful about their character and behaviour in future. You now want in this constitution that if two-thirds majority of the two Houses sitting together want a Judge to be removed the President will dismiss him. It is good to give wide powers to legislature but it will lead to all kinds of outside influences being brought to bear on the question and no Judge will ever be dismissed. In this U.P. case several things could not be proved against the Judge and circumstantial evidence only had to be taken into account. If we leave it to the two Houses it will be difficult to remove a Judge even if he is guilty. In spite of our wanting wider powers for the legislature I cannot support this and I am surprised that this provision has been proposed in the constitution. If you leave it to the President and he misbehaves he will be accountable to us; and be will not act in an injudicious manner.

I oppose this age-limit amendment and I support the proposition as stated minus the power that is vested in the Legislature in Both Houses to remove a Judge.

Shri Biswanath Das (Orissa: General) : Sir, a number of important issues have been raised in the course of the discussions on article 103. Of these, the first one that I would like to discuss is the introduction of the system of elections into our Judiciary. Sir, it has been proposed that a joint Session with a two-third majority is one way of selecting the Chief Justice of India. Prof. K. T. Shah contracts the process of the election by having the election of Judges to be done by the Council of States. In any event, be it by a joint Session of Parliament or by the Council of States, the fact remains that we are trying to import a very dangerous principle, namely the process of electing Judges of the Supreme Court in place of the one that we have, namely the process of

selection. Sir, intense thought has been given up this aspect of the question, whether Judges have to be selected or elected, and we have rejected the one and retained selection as the proper mode of appointing Judges.

Prof. K. T. Shah : On a point of personal explanation, I have not said that they should be elected. I have said that the Council of States should be consulted.

Shri R. K. Sidhva : It comes to the same thing.

Shri Biswanath Das : Consulting the Legislature and election are certainly technical two different processes. But in a democracy functioning, as we propose it should, under this Constitution, is it anything less to say that my Friend, Prof. Shah, wants to import election into the appointment of the Judges? I think there is nothing for me to stand corrected by the revised version given by my honourable Friend, the learned professor. We have seen the difficulties and distress of countries which have accepted the principle of such election. If you once accept the principle of election what reasons could you assign to exclude the subordinate? As has been done in America, even Public Prosecutors are to be elected by a defined electorate.

Under these circumstances, Sir, I plead with my friends that the system of appointment by a process of election be shunned and be given up for good.

Sir, I come to the question of the age-limit of the Honourable Judges of the Supreme Court. We have in ordinary Government service fifty-five years. This has been extended to sixty years in the case of the Judges of High Courts and the Supreme Court. the Drafting Committee, I am afraid, have not given convincing and adequate reasons why this change was made. I see a note in which some explanation has been given, but I claim that the explanation that they have given is not adequate. One fact we cannot forget namely, that the Judges of the Supreme Court and the High Courts who are bound to be practitioners in the Bar or subordinate judicial officers, who have risen by dint of merit-in any case the private property which they have earned age their property. The constitution gives them ample safeguards regarding the tenure of service, their freedom of judgment and safeguards from interference so far as the discharge of their functions and responsibilities are concerned. Under these circumstances, I am afraid, that further reasons are necessary if my honourable Friends want us to accept even the age-limit of sixty-five years. Sir, in a country where the average duration of life was twenty-eight years under the British rule, and I believe the same period is being continued even today, there is little justification for the Honourable Judges of the High Court to go on functioning up to sixty-five years. The great Seers of Hindu society have prescribed the ways of life for us. they have provided that the closing stages of life should be reserved for Vanaprasth or Sanyas. Are you going to close these chapters. So far as such Judges of the High Courts and Supreme Court are concerned for Vanaprasth and Sanyas? It is a very important stage of life in Hindu society. In other societies, such as among the Christians and the Muslims, they have also the necessary and natural expectation that people at the last stages of life shall have time to devote themselves either to God or to free social work. Man must have some leisure to devote himself, at least in the last days of his life, to some other work-either spiritual or social. Under these circumstances, I believe that the honourable Members of this House should not give the go-by to that normal and general expectation of society and that the limitation of sixty-five years be given up in favour of allowing the Honourable Judges of the Supreme Court, from whom the society, the country and the State expect much, either to live a Vanaprasth or a life of a Sanyasi, so that they could devote themselves to their Maker and for those who do not believe in God, at least to the service of society.

I now come to the proviso in clause (2) of article 103. It has been said: 'Provided that in the

case of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.' I do not know of any reason or justification for the retention of this proviso. The Chief Justice is a very responsible person and there is no reason why he should not be consulted in the case of the appointment of the Chief Justice who is to be his successor. I think in the matter of the selection of a person to succeed the Chief Justice it will be doing in injustice to the place and position of the Chief Justice himself not to be consulted.

One other point and I shall have done. It has been stated that no office of profit should be offered to a judge in office or after retirement. I do not see much logic in this amendment. The judges of the Supreme Court are granted the highest scale of salaries, barring the Governor-General and the Governors. If at any time an office of profit under the Government is to be offered to a judge of the Supreme Court it is either the same or some other allied office involving semi-judicial functions. That being so, I do not find any justification for a restriction of the kind proposed. I do not therefore agree with those friends who hold this view. Such a proviso merely reveals a fear complex. I would appeal to my friends to give up this fear complex. I feel that the system of election as has been proposed, direct or indirect, to be imported into the appointment of judges of the Supreme Court should not be thought of and that the age-limit should be fixed at sixty and not at sixty-five. The proviso to clause (2) of article 103 is unnecessary and the restrictions sought to be imposed upon the appointment of judges of the Supreme Court to offices of profit under the State are needless restrictions which reveal nothing except fear complex.

Shri Rohini Kumar Chaudhari (Assam: General): Mr. President, I have come hare purposely to warn the House against the acceptance of the suggestion made by my Friend Mr. Shibban Lal Saksena. He seems to think that any appointment which is made should be subject to confirmation by two-thirds majority of the House of Parliament. I submit that this is a very dangerous principle. Confirmation by two-thirds majority of the House Parliament means that the appointment will be at the pleasure of the leader of the majority party. Already there have been suggestions that the present Government--the Ministers in different provinces-- are interfering at times with the administration of justice. Recently, very adverse remarks were made by Mr. Justice Beaumont, Judge of the Privy Council. In the course of delivering a judgment, the Judge observed that he was constrained to say that the Congress was at one time very anxious to have separation of the judiciary and the executive and now that it has come to power they seemed to like that the old system should continue. This utterance by a very eminent Judge that there is at times room for the executive to interfere with the course of justice and this might lead to very serious consequences in future. I would therefore warn the House not to accept any proposal aimed at giving the House power to confirm the appointment of judges or agree to the suggestion that action for the removal of a judge can be taken by Parliament itself. That sort of thing should not be allowed to be accepted for a moment.

Next I come to the consideration of age. In my opinion what we have to do is to fix the minimum age of a judge and not the maximum age. We know that in England there is no age-limit for a High Court Judge or a Supreme Court Judge. A man of any age, provided he is able to conduct the judicial proceedings properly can be admitted to the Bench. It is a very wrong principle to compel a man, particularly a man of advanced age, to declare his age. In this connection I would like to warn the leaders of people, distinguished men, not to celebrate their birthdays. If at all they want to celebrate their birthday, let them not disclose their age. It is a very sad thing that a particular person whom we consider to be young--I have in mind

our leader Pandit Jawaharlal Nehru--should give out that he is nearly sixty, when he allowed his birthday to be celebrated. People now know his correct age. He was vary easily passing for a man younger by ten years. Not that he wanted to do so. It is a wrong thing to remind people of one's age.

Further, so far as age is concerned, there seems no bar to the appointment of a female as Supreme Court Judge. I would ask you, Sir, where is the sensible woman who would declare her age as fifty-five even if she is fifty-five in order to get appointed to the Supreme Court Bench? Now even for the Kingdom of England would a women say she is fifty or sixty years old-- much less in order to continue as a High Court Judge. Not even for a Kingdom would a woman say so. Therefore it is a wrong principle to have the age prescribed. A man is not necessarily old because he is old in age or a woman is necessarily old because she is old in age. The maximum age should not be fixed now. It should be left to be decided by persons competent to judge in this matter.

I would refer in this connection to the amendment of Mr. Satish Chandra. He wants that the age should not be prescribed here and should be left to be fixed by the future Parliament. If we agree to that, there would be one difficulty. After the Constitution is adopted, we may have to appoint a Chief Justice for the Supreme Court and for the High Courts. If at that time no age limit is fixed there would be difficulty, if we say that is should be fixed by Parliament sitting. We would not know what sort of people we should exclude.

I want now to say a word about 'consultation'. In my opinion the amendment suggested by Dr. Ambedkar for the deletion of the line where it is said that after consultation with such of the judges of the Supreme Court and of the High Courts in the States where necessary should be accepted. After all, this is a matter which should be entirely dealt with by the President. He can, if he likes, consult anybody; if he does not like, he need not consult anybody. If he knows the man to be of outstanding ability, it is not necessary for the President to consult anybody. It should not be made obligatory. I think that the interpretation of this article is that the President is not bound to consult anybody if he does not consider it necessary to do so. It that is the interpretation, well and good. If that is not the interpretation, then I submit that it will not be proper to say that the President is bound to consult the High Court judge. After all, the Chief justice of the Supreme Court is a person of superior position in relation to the High Court Judges. It seems rather queer that the President will have to select a person of higher grade only after consulting persons of a lower grade, but that may be the tendency of democracy now-a-days. We are finding students claiming that they should be consulted over the appointment of teachers and even in the promotion of the teachers. Sometimes we come across cases where the students demands engineered no doubt--that a particular teacher should be made the headmaster. But that is not the proper way, and I submit, Sir, that a person of a lower grade should not be consulted over the appointment of people of a higher grade. We have the curious position in some parts of the country where the Public Service Commission is consulted over the appointment of a Sub-Judge of a Judge. The Public Service Commission may not have any member who has ever practised in a court of law or who has any knowledge of the qualifications of a Judge, but still the Public Service Commission is consulted. This is rather absurd. In some places a Sub-Judge has to sit for departmental examinations in law, which is held by an officer who has no idea of law. That sort of thing ought not be allowed. I therefore submit, and submit strongly, that the procedure for consulting a judicial officer of a lower grade for making appointments to a higher grade is rather unreasonable.

Then, Sir, I have to say a word about my honourable Friend, Dr. Sen's amendment. It

is definitely worthy of consideration. If a High Court Judge who joins the bench after giving up practice, next year on account of illness resigns and finds himself without any resources, it will be a very sad thing. He must have some security for the future and that security should be given to him by providing for a pension. We have found cases where a member of the Judiciary has had to resign on account of illness brought about by hard mental labour. In such cases there should be some provision for pension. I am not sure, Sir, whether such a provision should be made in the constitution itself or whether it should be left to Parliament to decide or whether it should be left to the President to decide. The President may even specify in the terms of appointment of a Judge that if on account of illness he is forced to resign, he will get a pension.

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir, we have now reached in the discussion of this constitution, a stage which according to me is one of the most important stages if not the most important stage in the discussion of this constitution. The Supreme Court is the watchdog of democracy. In an earlier part we enacted the Fundamental Right and we are very anxious to provide the means by which these Fundamental Rights could be guaranteed to the citizens of the Union. This is the institution which will preserve those rights and secure to every citizen the right that have been given to him under the Constitution. Therefore naturally this must be above all interference by the Executive. The Supreme Court is the watchdog of democracy. It is the eye and the guardian of the citizen' rights. Therefore at every stage, from the stage of appointment of the judges, their salaries and tenure of office, all these have to be regulated now so that the executive may have little or nothing to do with their functioning. The provisions, that have been made, have been made with an eye towards that. If amendments are moved now, each amendment must be judged by the test whether it secures the independence of the judiciary which this Chapter attempts to provide for.

Now, Sir, two formal amendments have been moved, amendments Nos. 1813 and 1840, relating to the nomenclature. They want the Chief Justice of India to be called the Supreme Chief Justice. When we come to the High Court, this means that we should call the Chief Justice of the High Court as High Court Chief Justice or High Chief Justice. Supreme Chief Justice, High Chief Justice or Law Chief Justice-- I have never heard of such a nomenclature being given to Judges. A Supreme Court is not a peculiar institution to this Country. There are Supreme Court in America and in various other places. These amendments are absolutely unnecessary and should be rejected.

Then as regards the number of judges, inasmuch as the Supreme Court has appellate jurisdiction in various matters, the number seven is not big at all. The Parliament is given the power to increase this number seven according to the needs and circumstances.

The important amendments that have been moved relate to the necessity for the President consulting the judges of the High Court in the States. Now, consultation with the Chief Justice is necessary for making appointments of Puisne Judges of the Supreme Court. So for as the Chief Justice himself is concerned, there is no higher judicial authority who may, be consulted.

Therefore that provision will have to remain. Now, as regards the appointment of Puisne Judges, the Chief Justice will be consulted, but the objection is to the consultation with the Judges of the High Courts in the States. If the President considers that such consultation is necessary, I feel that it should be open to him to do so. Whether it is necessary to consult the judges of the High Court is left to the discretion of the President. The Chief Justice of the Supreme Court may be drawn from one of the provinces of this country and might not be able to suggest as to who should be appointed Judges of the Supreme Court. Naturally therefore the

President would not be able to get the necessary advice from the Chief Justice alone and would have to consult the Judges of the various High Courts. It is not obligatory on him to consult everyone of the Judges. It is optional to him, wherever he considers it necessary in the interests of proper administration of justice. That power must be given to him.

Then, it is almost fantastic--I hope the honourable Members who have moved the amendment would forgive me for saying so--but I cannot use a milder word than 'fantastic' to characterise the suggestion that the Chief Justice of India should be appointed on the recommendation of the majority of the Members of the Council of States. This will reduce it to an election and there will be canvassing to get the majority of votes. This is inconceivable and unheard of in any part of the civilised world.

Then as regards the age, some young friends want it to be reduced from sixty-five to sixty and others want to raise it from sixty-five to sixty-eight.

In Canada the upper limit is seventy-five. Up to the age of seventy-five, judges can go on being in office. That may be a cold country where the age seventy-five may be the upper limit. So for as the Privy Council is concerned in Great Britain, I am told that the age for retirement is seventy. In America there is no age-limit at all. The judge of the High Court retires normally under existing law at the age of sixty and if be was appointed a few years before that, there is absolutely nothing to say against it. Our Friend, Mr. Munshi--he may not accept this, is he is offered--is quite strong and healthy and for another twenty-five or thirty years he will be able to judge between man and man and persons of that caliber must be available and the age sixty is too early an age and even in a hot climate like ours, I would like to go even to seventy, but let us be somewhat careful. So sixty-five seems to be a proper limit. Therefore the age sixty-five need not be raised nor cut down to sixty. Younger man on account of their enormous energy may go into various other fields which are open to them. For the judiciary there must be a balanced mind. Immature minds are useless. They must have sufficient experience; they must judge calmly and coolly. Old judges will not stand in the way of younger men, but the younger men may have a lot of other things to do. Youth ought not to come in the way of proper judgment and therefore, older men alone must be chosen; but there is nothing preventing a young man of extraordinary ability if he possesses a balanced mind, an enormous capacity and intellect to judge between man and man. The Chief Justice of the Madras High Court is barely forty-three and he can go on mature in age until the age of sixty-five. These are exceptional cases; otherwise you do not expect a judge to be a very young man to judge between man and man.

Then, Sir, I agree with my honourable Friend, Mr. Kamath, when he says that the choice of Supreme Court judges ought not to be limited to judges already in service and of ten years' standing. He has moved that it ought to be open to the President, if he so chooses, in the interest of proper administration of justice, to include a distinguished jurist. His amendment does not make it obligatory upon the President to choose only a jurist only among jurists. In various cases a Supreme Court has to deal with constitutional issues. A practicing lawyer barely comes across constitutional problems. A person may enter the profession of Law straightaway. He might be a member of a Law College or be a Dean of the Faculty of Law in an University. There are many eminent persons, there are many writers, there are jurists of great eminence. Why should it not be made possible for the President to appoint a jurist of distinction, if it is necessary? As a matter of fact, I would advise that out of the seven judges, one of them must be a jurist of great reputation. I am told, Sir, by my honourable Friend, Shri Alladi, whom I consulted, that some years ago President Roosevelt in the U.S.A. appointed one

Philip Frankfurter. He was a Professor in the Harward University. That was a novel experiment that he made. Before that, barristers were being chosen and also persons from the judiciary. This experiment has proved enormously successful. He is considered to be one of the foremost judges, one of the most eminent judges in the U.S.A. Therefore, Sir, I am in agreement with the proposal to add a jurist also, a distinguished jurist, in the categories for the choice of a judge of the Supreme Court.

As regards good behaviour, my honourable Friend, Prof. Shah wants that the tenure of office must be during good behaviour. He has evidently forgotten that provision is coming later. No doubt in the earlier portion in clause (2) it is not definitely prescribed to continue only during good behaviour, but later on there is a provision for the removal on the ground of proved misbehaviour or incapacity. I understand this to mean that they do not want such an eminent person as the judge of the Supreme Court, his tenure ought not to be linked even at the start with, or that anyone should have, a suspicion that he may be guilty of misbehaviour. In the Australian Constitution they say that the appointment should endure so long as he is of good behaviour. Later on a provision in made that in case of misbehaviour, he may be removed. In substance there is provision here for removing a judge who is guilty of misbehaviour. Even at the outset, it is something like thinking even at the time of marriage--if the man dies, what happens. It is only certain communities that think of the death of a son-in-law even at the time of marriage and make provision for that, while other communities are a little more anxious to avoid this possibility. I would not like to lay down that a judge must be appointed only during good behaviour; there is enough provision for his removal, in case he proves himself incapable or is of bad behaviour.

Then I come to 'office'. Mr. Santhanam referred to clause (7) and says that a person who was a judge of the Supreme Court ought not to hold any office of profit except with the consent of the President. I have seen and we have seen a number of cases where important Secretaries who were drawing Rs. 3,000 to 4,000 while in office have helped some person in some industries and immediately they retired, they become Managers of this Institute or that Institute. I want to avoid this kind of selling away. Particularly, a judge cannot decide in favour of a particular person and then join his service. It is not as if this provision is absolute and it is a prohibition. With the consent of the President, he will decide as to whether this new office is or is not inconsistent with the office he held, and the President may give due permission in proper cases. I would urge upon the House to accept the amendment moved by honourable Friend, Mr. Santhanam, regarding the prohibition that a person who holds the position of a judge of the Supreme Court ought not to accept an office of profit except with the consent of the President.

Coming to Dr. Sen's amendment that person who hold the office of judgeship ought to be given pension even if for reasons of illness they are unable to continue in office before the period is over. Person that are going to be appointed judges are of there classes. A person in service will always get his pension. He is entitled to retirement in advance. Therefore, this amendment does not apply to such a person. A person who straightaway is drawn from the bar, a practicing lawyer, if he is old by the time he is appointed a judge of the Supreme Court, he must have attained sufficient reputation and amassed a sufficient sum of money. With respect to him, it may not be necessary. I no doubt agree with him that with respect to not only of judges of Supreme Court but in respect of ministers also there must be a National Pension Scheme and, in fact, with respect to all persons who have rendered great service to the nation. After giving up their jobs or after the country no longer feels them necessary for public work, they

ought not to be thrown no the streets, and some such person scheme must be started. That must be an all-round scheme and ought not to be confined to the judges of the Supreme Court only.

I oppose the other amendments, barring those which I have accepted. I would appeal to the House to see that the other amendments are of a formal nature, or go against the scheme of this provision which makes the judiciary absolutely independent of the executive.

Mr. President: Mr. Naziruddin Ahmed. He will be last speaker. After his speech, we shall close the discussion.

Mr. Naziruddin Ahmad (West Bengal: Muslim): Mr. President, Sir, we are indebted to the Honourable the Prime Minister for has illuminating speech giving a true picture of men of high intellect. You can put no age-limit to men of real worth. Two honourable Members have tried to put the age-limit not only to Judgeship of the Federal court, but to all mental efficiency at sixty. I submit if this test is to be applied, Pandit Jawaharlal Nehru, who is about sixty-one would be equally unfit for public office. Mr. K. M. Munshi who is sixty-two would be equally unfit. Mr. Alladi Krishnaswami Ayyar who is sixty-six would be more unfit, and Sardar Patel who is seventy-four, who is an ornament of the country, and whose intellect is as keen as ever, would according to this argument, be equally unfit. To put the age-limit for men of real worth at sixty is meaningless. I should say childish. One Member has gone so far as to say that at sixty, a man is intellectually defunct and becomes absolutely unfit for any mental activities. His view is that the younger the man, the greater is his intellect. In fact, he would prescribe a formula that mental capacity increases in the inverse proportion to the advance in years. In other words, the younger the man he is, the more he is mentally fit for high judicial or other intellectual work. These are absurd propositions to be laid down.

While the Honourable the Prime Minister has laid and age-limit at sixty-five, I shall, with due respect to him, try to support the age-limit as sixty-eight. My reasons are these. Men in the legal profession, who are very efficient, earn a very high income. If they are to be appointed judges that means a heavy sacrifice. If you put the age-limit at sixty-five, you discourage high legal talents from accepting high judicial appointments. While you put the age-limit at sixty-five, in clause (6) you require him not to plead or act in any Court. That is a highly desirable condition; but it goes against the age-limit of sixty-five. At the age of sixty-five, very efficient people are highly alert and if they are not to be allowed to practise in the Courts, which I concede is a desirable condition, you must raise their age-limit. In fact, Judges of the Supreme Court will have very high judicial duties to perform. If you put the age-limit of sixty-five, you will be shutting out from the service of the country men of real worth and ability at the very height of their efficiency and experience. In these circumstances, I should think that the age-limit should be sixty-eight.

To ask a Supreme Court Judge to take up any position of profit under the Government with the consent of the President would be to introduce a pernicious principle. Judicial officers, especially of the highest rank should never be induced to accept any Government job. When they retire, they should never like up to Government for some sort of job after their judicial career is ended. The difficulty which has been felt by Mr. Santhanam in shutting out men of ability is not met by his amendment, but rather would be met by raising his age-limit to something like sixty-eight. In England the age-limit of ordinary Judges is 72, but there is no age-limit for Judges who are Law Lords. They hold office during the pleasure of His Majesty and that means efficiency. In England, there are various ways of ascertaining the efficiency of a Judge. There, the usual age of the highest judicial officers in the Privy Council and in the House of Lords is about

seventy at the lowest. The average of men in the highest judicial posts, the Law Lords, is about eighty. We have heard from the Honourable the Prime Minister that men of ninety of even above that are in a very good alert condition of mind. Some of the greatest judgments of the Privy Council and of the House of Lords, were delivered by men who were above eighty, some at ninety. It has been suggested that the climate of India does not reconcile high age with efficiency. I submit that is a fallacy. The British put down the agelimit for High Court Judges as sixty and for ordinary officers as fifty-five. They never allowed nay efficiency to be developed. They allowed something like mechanical efficiency or a kind of clerical ability in their officers. They allowed no initiative, no freedom of thought; they crippled the men's intellect while in Government service. Now, Sir, all these adverse factors would be gone. We are breathing a free atmosphere; the ability of our officers will increase. They will have enough initiative, enough patriotism behind them to do the best work for the country. The artificial age-limit of fifty-five and sixty and the reasons therefore no longer apply. For all these reasons, I think the age-limit should be enhanced. Especially in high judicial posts, I am of opinion, not without much careful thought, that the minimum should be sixty. Efficiency as high judicial officers can rarely being before sixty. Ripe experience and alertness of mind of high judicial talents really asserts itself after sixty. I should have been very happy to put the age-limit even higher. But, that would have necessitated the condition of his being in office during the pleasure of the President. It is considered that this may be utilised or used to the detriment of high judicial abilities. Therefore, I do not wish to limit the duration of high judicial service during the pleasure of the President. I should therefore strike a via media between sixty-five, and putting no age-limit, that is at sixty-eight. The duties of a judicial officer are extremely high. They do not earn their pay for nothing; they have to work very hard. They should look forward to a long career of usefulness, to induce them to give up their profession at the bar to accept high judicial post. In fact, it has been suggested against this that a man should make it as a matter of sacrifice for public service. I think, however, that a man who gives up a lucrative practice at the bar makes a tremendous sacrifice. To sacrifice and sacrifice, there must be some limit. From these considerations, I submit that the age-limit to the judges should be enhanced, and also in another context I should submit that their pay should also receive due consideration. I submit that this debate has been of a very revealing character fully deserving our attention. It has dispelled once for all the impression that any age above sixty means inefficiency. I submit that though the amendment which I have sponsored may not be accepted in the House today, its principles would be remembered and a day would come when will be compelled to raise the age-limit, at least o our highest judicial officers.

Mr. President: I think we had better close the discussion now. We have had so many speeches.

Shri B. Das (Orissa: General): But till now we have had all speeches from lawyers.

Mr. President: If you wish to speak I will not stop you. But I should think we have had a full discussion. And all the speeches were not from lawyers. For example, Mr. Sidhva is not a lawyer.

Dr. Ambedkar, would you like to say anything about the amendment.

The Honourable Dr. B.R. Ambedkar: Mr. President, Sir. I am prepared to accept two amendments. One of them is No. 1829 moved by Mr. Santhanam, and the other is No. 1845 moved by Mr. Kamath, by which he proposes that even a jurist may be appointed as a Judge of the Supreme Court. But with regard to Mr. Kamath's amendment No. 1845, I should like to make one reservation and it is this. I am not yet determined in my own mind whether the word "distinguished" is the

proper word in the context. It has been suggested to me that the word "eminent" might be more suitable. But as I said, I am not in a position to make up my mind on this subject; and I would, therefore, like to make this reservation in favour of the Drafting Committee, that the Drafting Committee should be at liberty when it revises the Constitution, to say whether it would accept the word " distinguished" or substitute " eminent" or some other suitable word.

Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. The first is, how are the Judges of the Supreme Court to be appointed? Now grouping the different amendments which are related to this particular matter, I find three different proposals. The first proposal is that the Judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. That is one view. The other view is that the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament; and the third suggestion is that they should be appointed in consultation with the Council of States.

With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United State, (it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day) Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.

With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto is the President or the Government of the day. I therefore, think that is also a dangerous proposition.

The second issue that has been raised by the different amendments moved to this article to the question of age. Various views have been expressed as to the age. There are some who think that the judges ought to retire at the age of sixty. Well so for as High Court are concerned, that is the present position. There are some

who say that the Constitution should not fix any age-limit whatsoever, but that the age-limit should be left to be fixed by Parliament by law. It seems to me that is not a proposition which can be accepted, because if the matter of age was left to Parliament to determine from time to time, no person could be found to accept a place on the Bench, because an incumbent before he accepts a place on the Bench would like to know for how many years in the natural course of things, he could hold that office; and therefore, a provision with regard to age, I am quite satisfied, cannot be determined by Parliament from time to time, but must be fixed in the Constitution itself. The other view is that is you fix any age-limit what you are practically doing is to drive away a man who notwithstanding the age that we have prescribed, viz., sixty-five, is hale and hearty, sound in mind and sound in body and capable for a certain number of years of rendering perfectly good service to the State. I entirely agree that sixty-five cannot always be regarded as the zero hour in a man's intellectual ability. At the same time, I think honourable Members who have moved amendments to this effect have forgotten the provision we have made in article 107 where we have provided that it should be open to the Chief Justice to call a retired Judges to sit and decide a particular case or cases. Consequently by the operation of article 107 there is less possibility, if I may put it, of our losing the talent of individual people who have already served on the Supreme Court. I therefore submit that the arguments or the fears that were expressed in the course of the debate with regard to the question of age have no foundation.

Now, I come to the third point raised in the course of the debate on this amendment and that is the question of the acceptance of office by members of the judiciary after retirement. There are two amendments on the point, one by Prof. Shah and the other by Shri Jaspat Roy Kapoor. I personally think that none of these amendment could be accepted. These amendments have been moved more or less on the basis of the provision that have been made in the Draft Constitutions relating to the Public Service Commission. It is quite true that the provision has been made that no member of the Public Services Commission shall be entitled to hold an office under the Crown for a certain period after he has retired from the Public Service Commission. But it seems to me that there is a fundamental difference between the members of the judiciary and the members of the Federal Public Services Commission. The difference is this. The Public Services Commission is serving the Government and deciding matters in which Government is directly interested, viz., the recruitment of persons to the civil service. It is quite possible that the minister in charge of a certain portfolio may influence a member of the Public Service Commission by promising something else after retirement if he were to recommend a certain candidate in whom the minister was interested. Between the Federal Public Service Commission and the Executive the relation is a very close and integral one. In other words, if I may say so, the Public Service Commission is at all times engaged in deciding upon matters in which the Executive is vitally interested. The judiciary decides cases in which the Government has, if at all, the remotest interest, in fact no interest at all. The judiciary is engaged in deciding the issue between citizens and very rarely between citizens and the Government. Consequently the chances of influencing the conduct of a member of the judiciary by the Government are very remote, and my personal view, therefore, is that the provision which are applied to the Federal Public Services Commission have no place so far as the judiciary is concerned. Besides there are very many cases where the employment of judicial talent in a specialised form is very necessary for certain purposes. Take the case of our Friend Shri Varadachariar. He has now been appointed members of a Commission

investigating income-tax questions.

Shri Jaspat Roy Kapoor: Let it be in an honorary capacity.

The Honourable Dr. B. R. Ambedkar: No, he is paid. It is an office of profit under the Crown.

Therefore, who else-can be appointed to positions like this, except persons who had judicial talent? It would be a very great handicap if these very persons who possess talent for doing work of this sort were deprived by provisions such as Shri Jaspat Roy Kapoor suggests. And I have said that the relation between the hardly any chance of influencing the judgment of the judiciary. I therefore suggest that the provision suggested is not necessary and I oppose all the amendments.

Mr. President: The question is:

"That is clause (1) of article 103, before the words 'Chief Justice' the word 'Supreme' be inserted"

The amendment was adopted.

Mr. President: The question is:

"That in clause (1) of article 103, for the words 'and such number or other judges not being less than seven, as Parliament may by law prescribe' the words 'and until Parliament by law prescribes a larger number, of seven other judges' be substituted"

The amendment was adopted.

Mr. President: The question is:

"That for clause (2) of article 103 the following be substituted:-

'Every Judges of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge, other than the Chief Justice, the Chief Justice of India shall always be consulted.'"

The amendment was negatived.

Mr. President: The question is:

"That for clause (2) of article 103, the following clause be substituted:-

(2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be appointed by the President subject to confirmation by two-thirds majority of the total number of members of Parliament assembled in a joint session of both the House of Parliament.'

(3) Every judge of the Supreme Court, shall be appointed on the advice of the Chief Justice of Bharat by the President under his hand and seal and shall hold office until he attains the age of sixty-five years.'

Provided that:

(a) a judge may, by writing under his hand addressed to the President, resign his office;

(b) a judge may be removed from his office in the manner provided in clause (5).'"

The amendment was negatived.

Mr. President: The question is:

"That for clause (2) and the first proviso of clause (2) of article 103, the following be substituted:-

'(2) Every judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the judges of the Supreme Court and Chief Justices of High Courts in the States and with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the judges of the Supreme and the Chief Justices of the High Court in the States and every judge of the Supreme Court shall hold office until he attains the age of sixty-eight years.'"

The amendment was negatived.

Mr. President: The question is:

"That in clause (2) of article 103, after the word 'with' the words the Council of States and' be inserted."

The amendment was negatived.

Mr. President: The question is:

"That in clause (2) of article 103, for the words 'may be' the words 'the President may deem' be substituted."

The amendment was adopted.

Mr. President: The question is:

"That in clause (2) of article 103, for the words 'until he attains the age of sixty-five years', the words 'during good behaviour or until he resigns; provided that any such Judge may resign his office at any time after 10 year of service in a judicial office and if he so resigns, he shall be entitled to such pension as may be allowed under the law passed by the Parliament of India for the time being in force' be substituted."

The

amendment was negatived.

Mr. President: The question is:

"That in clause (2) of article 103, for the word 'sixty-five' the word 'sixty' be substituted and the words 'The President, however, may in any case extend from year to year the age of retirement up to sixty-five years' be added."

Shri Jaspat Roy Kapoor: Sir, I beg leave of the House to withdraw my amendment.

The amendment was, by leave of the Assembly, withdrawn

Mr. President: There is the amendment of Shri Mohan Lal Gautam No. 1834. I did not allow him to move it in the first instance because it was covered by amendment No. 1833. Does he want me to put it to the House?

Shri Mohan Lal Gautam (United Provinces: General): Sir, I beg leave of the House to withdraw my amendment.

The amendment was, by leave of the Assembly, withdrawn.

Mr. President: The question is:

"That in clause (2) of article 103, for the words 'until he attains the age of sixty-five years' the words 'for such period as may be fixed in this behalf by Parliament by law ' be substituted."

Shri Satish Chandra: Sir, I beg leave of the House to withdraw my amendment.

The amendment was, by leave of the Assembly, withdrawn.

Mr. President: The question is:

"That is the first proviso to clause (2) of article 103, for the words 'the Chief Justice of India shall always be consulted' the words 'it shall be made with the concurrence of the Chief Justice of India' be substituted."

The amendment was negatived.

Mr. President: The question is:

"That after the second proviso to clause (2) of article 103, the following new proviso be inserted:-

'Provided further that where a Judge resigns his office on grounds of ill-health, he shall be entitled to pension as if he has continued in service until the age of sixty-five years.'"

The amendment was negatived.

Mr. President: There is an amendment to this amendment by Shri Jaspat Roy Kapoor. It is in List No. II, amendment, No. 41, namely:-

"That in amendment No. 1843, of the List of Amendments, for the proposed new clause (2A) of article 103, the following be substituted:-

'No Judge of the Supreme Court shall be eligible for further office of profit either under the Government of India or under the Government of any state after he has ceased to hold his office.'"

Shri Jaspat Roy Kapoor: I do not desire that this very useful amendment should be defeated I, therefore, beg leave of the House to withdraw it.

The amendment was, by leave of the Assembly, withdrawn.

Mr. President: I shall then put Professor K.T. Shah's original amendment to the House.

The question is:

"That after clause (2) of article 103, the following new clause be added:-

(2A) Any person who has once been appointed as Judge of any High Court or Supreme Court shall be debarred from any executive office under the Government of India or under that of any unit, or, unless he has resigned in writing in writing from his office as Judge, from being elected to a seat in either House of Parliament or in any State Legislature.'"

The amendment was negatived.

Mr. President: I shall put amendment No. 1845 as amended.

The question is:

"That in clause (3) of article 103, the following new sub-clause be added:-

(c) or is an eminent jurist.'"

The amendment was adopted.

Mr. President: The question is:

"That after sub-clause (b) of clause (3) of article 103, the following new sub-clause be inserted:

(c) has been a Pleader in one or more District Courts for at least twelve years.'"

The amendment was negatived.

Mr.President: The question is:

"That after Explanation I to clause (3) of article 103, the following new Explanation be inserted and the subsequent Explanation be renumbered accordingly:-

Explanation II.-- In this clause District Court means a District Court which exercises or which before the commencement of this Constitution exercised jurisdiction in any district of the territory of India.'"

The amendment was negatived.

Mr. President: The question is:

"That in Explanation II to clause (3) of

article 103, after the word 'advocate' wherever it occurs the words 'or a Pleader' be inserted, and for the words 'a person held judicial' the words 'such person held judicial' be substituted.'"

The amendment was negatived.

Mr. President: The question is:

"That in Explanation II to clause (3) after the words 'judicial office' the words 'not inferior to that of a district judge' be inserted."

The amendment was adopted.

Mr. President: The question is:

"That in clause (4) of article 103, for the words 'supported by not less than two-thirds of the members present and voting has been presented to the president by both House of Parliament ' the words 'by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President' be substituted."

The amendment was adopted.

Mr. President : The question is:

"That in clause (4) of article 103, after the word 'passed' the words 'after a Committee consisting of all the Judges of the Supreme Court had investigated the charge and reported on it to the President and' be inserted."

The amendment was negatived.

Mr. President: The question is:

"That in clause (4) of article 103, after the words 'not less than two-thirds the words 'a majority' be substituted."

The amendment was negatived.

Mr. President: The question is:

"That in clause (6) of article 103, for the words 'a declaration' the words 'an affirmation or oath' be substituted."

The amendment was adopted.

Mr. President: The question is:

"That clause (7) of article 103, be deleted."

The amendment was negatived.

Mr. President: The question is:

"That in clause (7) of article 103, after the words any 'authority' the words 'or shall hold any office of profit without the previous permission of the President' be inserted."

The amendment sad negatived.

Mr. President: I shall now put the article as a whole, as amended by the amendments which have been accepted.

The question is:

"That article 103, as amended, be adopted."

The motion was adopted.

Article 103, as amended, was added to the Constitution.

*

Article 103 A

Dr. P.K. Sen: I do not wish to be long in my observation on this amendment. As a matter of fact it will be remembered that when I was moving my amendment No. 1842, I did refer to this amendment also and to the principle that underlines it, namely, that the man who has held the office of a Judge should not be under the necessity of seeking office afterwards, and for that purpose wooing political parties and causes or other persons, and thereby lowering the dignity of the office which he has held. As a matter of fact, this has been touched upon at various stages of the debate to which we have just listened and I have nothing further to say except this that I do not see in the Constitution as it stands now any definite provision of this character and I think it is absolutely essential that a Judge should be precluded from trying to get some office or other after he has vacated office. For that reason this provision is important, especially in this country, where we have known of person having filled offices in the Judiciary and then in the Executive and then again in the Judiciary. This sort of thing should be stopped and for that reason I do move my amendment and I hope that the House will accept it.

Mr. Naziruddin Ahmed: But the amendment has not been formally moved

Mr. President: He says he has moved it

Dr. P.K. Sen: I have not actually moved it now. I read it out on the last occasion when I was referring to it while moving my amendment No. 1842. Sir, I therefore move formally:

"That after article 103, the following new article be inserted:-

'103-A. 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 Chief Justice of India or the Chief

Justice of a High Court:

Provided that 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 this article shall not apply in relation to any appointment made and continuing while a proclamation of Emergency is in force, if such appointment is certified by the president to be necessary in the national interest.''

On these occasions it will be necessary for the State to utilise the services and the mature experience............(Interruption).

Shri T.T. Krishnamachari (Madras: General): May, I ask, Sir, if the Honourable Member's amendment can be moved, in view of the fact that amendment No. 1865 has been negatived by the House? The principle of that amendment is the same as that of amendment No. 1870.

Shri Jaspat Roy Kapoor: Amendment No. 1865 does not mention the words ' of profit'.

Mr. President: The mover added the words 'of profit'.

Dr. P. K. Sen: No, Sir. This has a very narrow scope and does not at all definitely say that kind of offices are barred. As a matter of fact it does not also mention that there may be cases of emergency where the President thinks that his ripe experience and mature knowledge should be utilised by the State, an on these occasions it would be quite proper and in the interests of the nation to appoint him to some of these posts. This has been more clearly brought out in the amendment I have submitted to this House.

The Honourable Shri K. Santhanam: Amendment No. 1843 was also to the same effect.

Dr. P. K. Sen: I think to a certain extent it may be said amendment No. 1843 covers the same kind of proposition. I leave it entirely in your hands as to whether it is not necessary in that view, or whether it is debarred from being considered be the House.

Mr. President: I think the principle enunciated in new article 103-A has been covered by the amendment referred to. There are,it is true, one or two additional matters also in this amendment. If the principle has been rejected, he question of considering ancillary matters does not arise. I would therefore let the matter be dropped, unless Dr. Sen insist upon moving it. But if he insists I shall have to put it to vote.

Dr. P. K. Sen: It is my desire that it should be discussed and a decision come to. If you think that, having regard to the fact that amendment, the question ends there.

Mr. President: As I have said, your amendment contains some additional factors. Technically speaking, they are not covered by amendment No. 1843. But the principle underlying it is the same as that in 1843. Therefore I would leave it to you to decide whether to press if or not.

Dr. P. K. Sen: I do press it, Sir.

Shri B. Das: I congratulate my Friend Dr. Sen, being an ex-High Court Judge, for the courage of his conviction in bringing forward such an amendment. Although my Friend Shri T.T. Krishnamachari had raised an objection that this amendment is out of order, I think he is out of order in raising that point of order. Sir, we Indians are a lawyer-redden people. Our lawyers frame our Constitution, control our politics and they think that the High Courts and the Judiciary are supreme and that no Judge can be challenged. Sir, we know that in a recent case the decision of a High Court Judge of Allahabad is under examination which shows that the Judges have feet of clay. We know the case of a Judge of the Chief Court of Lucknow who in his seventieth year showed that he can reduce his age by ten years. These are the characteristics of High Court Judges, which I repeat and affirm are the common man's viewpoint. We do not think that the British idea of maintenance of justice which was dangled before the people of India should continue to be dangled even in our Constitution. I did not move my amendments to restrict job-hunger on part of ex-High Court Judges. I think if clause 103-A, is passed it will reduce the status of High Court Judge to the level of normal people and not make abnormal people of them. They think they are

super-men and can do no wrong. But as a representative of the people, and not being a lawyer, I can say that the High Court Judges do things on the lines of their British predecessors and cling to British ideas. In another article--article 104-- which will come up for consideration shortly, my honourable Friend Dr. Ambedkar, as under the old Government of India Act, wants to give the Chief Justice of the Supreme Court 5,000 rupees salary and other Judges, 4,000 rupees. They are Indians all and let me hope they are all patriots. If my honourable Friends the Ministers could accept Rs. 3,000 as salary, why should a High Court Judge claim Rs. 5,000 or Rs. 4,000? I am saying that no man, even when he is occupying the highest judicial post, should claim special privileges. They are not different from our Minister at the Centre who draw only Rs. 3,000. I think some of the Provincial Governments pay much less to their Minister.

Another thing is that I have seldom seen a High Court Judge, barring those friends who come from Madras, wearing Indian dress. Two years have gone by after India become independent. Why is it that the Supreme Court Judges still cling to the old English practice and wear English costume? In the High Courts all over India also this is going on. In what way are they patriots? In what way are they going to maintain high standards of justice in India and create a new sense of social justice among the people? Sir, I am glad I got this opportunity whole-heartedly to support the amendment of Dr. P. K. Sen. I congratulate him once again that, being an ex-High Court Judge, he has the courage of his conviction to table such an amendment. Sir, I congratulate you, too, for having permitted it to be moved.

Dr. Bakhshi Tek Chand: Sir, the amendment which has been moved by Dr. P. K. Sen is not out of order. It raises a very important point and I would ask the House to consider it. One important difference between this amendment and some of the amendments which have already been considered is that it also deals with the case of a person who is holding the office of a Judge of the Supreme Court, that is to say, a Sitting Judge of the Supreme Court. In this connection, I would like to remind the House that there have been occasions on which a Judge of the Federal Court had been deputed, while holding that office, to duties which were entirely of a non-judicial character, to duties which were political, or diplomatic. A Sitting Judge was sent out to England as a member of War Council and again as a member of the War Cabinet, in spite of the protests of the Chief Justice, and while in England he took active part not only in political matters but also carried on propaganda of a highly communal character. It is very necessary that in the future Constitution provision should be made to see that such a thing does not happen again and Sitting Judges are debarred from being deputed to extra-judicial duties in this manner. This is the main difference between this amendment and the amendments which were moved and some of which have been rejected.

The Honourable Shri K. Santhanam: The words used are "has held."

Dr. Bakhshi Tek Chand: The amendment says " a person who is holding or has held the office of Judge". It will be seen that it contemplates two different cases. The first case is of " a person who is holding" the office of a Judge. With regard to this case, there has been no discussion and no amendment considered. Therefore the point of order does not arise. So far as the second part of the clause is concerned, it refers to "a person who has held" office of Judge of the Supreme Court and says that he shall not be eligible for appointment to any office, etc. With regard to them, no doubt we had certain amendment which were rejected, but in th amendment proposed by Dr. Sen there is the additional provision that the President may with the consent of the Chief Justice of India depute a Judge of the Supreme Court temporarily on other duties. That deals with the case of a sitting as well as of a retired Judge. The proviso

further says that this article shall not apply in relation to any appointment made and continuing while a Proclamation of Emergency is in force, if such appointment is certified by the President to be necessary in the national interest. In cases of national emergencies, some exception may have to be made. That is the proviso suggested by Dr. Sen, If will be seen that this matter is not fully covered by the amendment which have already been considered. I submit, therefore, that the amendment of Dr. Sen is in order and should be considered.

The Honourable Dr. B. R. Ambedkar: I should like to dispose of this matter in as few words as possible. Before I do so, I should like to state what I understand to be the idea underlying this particular amendment. For the purpose of understanding the main idea underlying this amendment, I think we have to take up three different cases. One case is the case of a Judge of the Supreme Court who has been appointed to an executive office with no right of reversion to the Supreme Court. That is one case. The second case is the appointment of a Supreme Court Judge after he has held that post to an executive office of a non-judicial character. The third case is the case of a Supreme Court Judge being given or assigned duties of a non-judicial character with the right to revert to the Supreme Court. I understand that--my friend Dr. Sen may correct me if I am wrong-- this amendment refers to the third proposition, viz, the assignment of a Supreme Court Judge to non-judicial duties for a short period with the right for him to revert to the Supreme Court.

With regard to the first case that I mentioned, viz., the appointment of a Supreme Court Judge to an executive office provide the Supreme Court Judge resigns his post as a Judge of the Supreme Court. I do not see any objection at all, because he goes out of the Supreme Court altogether.

With regard to the second case, viz., the assignment of duties to a Supreme Court Judge who has retired, we have just now disposed of it. There ought to be no limitation at all.

With regard to the third case, I think it is a point which requires consideration. We have had two cases in this country. One was the case which occurred during the war when a Judge of the Federal Court was sent round by the then Government of India on diplomatic mission. We have also had during the regime of this Government the case where the Chief Justice or a Judge--I forget now--on one of the High Courts, was sent out on a diplomatic mission. On both occasions there was some very strong criticism of such action. My Friend, Mr. Chimanlal Setalvad, come out with an article in the Times of India, criticising the action of the Government. Personally I share those sentiments. I am, however, at present not in a position to accept the amendment as worded by Dr. P.K. Sen because the wording either goes too wide or in some cases too narrow. I am prepared to recommend to the Drafting Committee that this point should be taken into consideration. On that assurance, I would request him to withdraw his amendment.

Shri Jaspat Roy Kapoor: May I request that a decision on this clause may beheld over till tomorrow because many of us would like to study it carefully.

Mr. President: Dr. Ambedkar has told us that he is willing to refer it to the Drafting Committee for its consideration.

Shri Jaspat Roy Kapoor: It might stand over.

Mr. President: When it is referred to the Drafting Committee, it means that it stands over, because when it comes back again, it will come back in the form in which it is approved by the Drafting Committee.

The Honourable Shri Satyanarayan Sinha (Bihar: General): That will serve the purpose.

Pandit Lakshmi Kanta Maitra (West Bengal: General): If a specific, definite proposition is made by Dr. Ambedkar, we can dispose of it here.

Mr. President: It will come back from the Drafting Committee in a form which will cover the points that have been raised.

Then we adjourn till 8 O'clock tomorrow morning.

The Constituent Assembly then adjourned

till Eight of the Clock on Wednesday, the 25th May, 1949.

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