I may be told the practice in England warrants the introduction of the innovation now being made. But, I ask, why go to England or America or Russia when we have got our own experience to work upon? I submit that the change is not warranted by the experience that we have already got. I am not saying that this change is merely unnecessary; it is undesirable. We have already been informed by the Drafting Committee in their foot-note to article 193 that: ‘The result is that the best men from the Bar often refuse appointments on the Bench because under the existing age-limit of sixty years they would not have time to earn a full pension’. So, because of that age-limit, the best men are not coming. That is admitted by the Drafting Committee. Then the Committee has proposed that the salaries and pensions may be reduced. I quite understand Shri Mahavir Tyagi when he says that if pensions are sufficient as in England, the question does not arise. But there is a definite proposal by the Drafting Committee itself to reduce salaries. I am not prepared to say that it should be accepted. But there is that proposal for reduction of salaries and on top of that comes this prohibition that they shall not practice anywhere. What would be the cumulative effect of all theses things? I submit the result will be that the best of men in the High Court Bar or mufassal Bar would not be prepared to accept the appointment. I am not urging this in the interests of the top men. They can take care of themselves. They need no sympathy or pity from us. They would have their flourishing practice. But what would be the result of the whole thing on the independence of our judiciary? That is the problem. In the absence of top men, we shall have to choose men of lower caliber and men who have failed at the Bar will be raised to the Bench. Or otherwise practically the entire High Court will be manned by District Judges and Subordinate Judges. I put it to you whether it is a desirable position. We have all along been clamoring for the independence of the judiciary, but that cannot be achieved by merely laying down that a Judge shall not be removed from office except after an address by the Houses of the Legislature or by providing that their salaries and allowances are chargeable to the revenues of the State. The independence of the judiciary can be achieved only by making their conditions of employment such that men of really independent spirit would be attracted to those posts. I do submit that independent rising men would not be attracted if we make the prohibition so sweeping. I may be told that Sir Tej Bahadur Sapru was in favour of this provision. It may be. Sapru’s is an honoured name and his views are entitled to our respectful consideration; but it does not mean that we should follow his views blindly irrespective of the merits of the case. To do that would be to bestow on him posthumously the position of a dictator, which he himself would have detested.
