I may mention, Sir, that there are certain other amendments by Mr. Santhanam. Some of his amendments overlap but I would like to explain my position with regard to these amendments. If any of his amendment is more comprehensive than my amendment, then I would be glad to withdraw. One thing I want to make quite clear. The object is not to make a comprehensive provision in regard to the Supreme Court. The normal procedure that is adopted in every constitution is to give the main heads of power of the Supreme Court and leave it for Judicature Act to be passed by the Assembly to implement the powers that are conferred under the Constitution. From the very nature of things, you cannot have all the provisions inserted in the Constitution. You may indicate what exactly is the head of jurisdiction in regard to the original jurisdiction. You may indicate what exactly is the basis of the appellate jurisdiction. The reason why more detailed provisions were found a place in the Constitution Act of 1935 is quite obvious because the Constitution then wanted to give only certain restricted powers to the Federal
Court. Secondly, the Legislature of India itself was not clothed with plenary powers. Therefore Parliament provided more exhaustively for all those powers to be exercised by the Federal Court than are ordinarily found in a Supreme Court Constitution in other Federations. Therefore under those circumstances, the Committee, as referred to in the existing Government of India Act, has indicated what exactly are the lines of jurisdiction, what exactly are the powers to be exercised both on the original side as a matter of original jurisdiction—and as a matter of appellate jurisdiction and that Committee’s report is fairly comprehensive; for example, whether supplementary jurisdiction can be invested in the Supreme Court or not is another point that has been raised. That is again referred to in the Committee’s Report. Therefore there is nothing to prevent any supplementary jurisdiction being conferred upon the Supreme Court by the future Union Legislature. That will be competent. The main heads of jurisdiction will be indicated in the Constitution Act. Secondly, supplementary jurisdiction is referred to in the report itself. Then the matters in which it can be taken up by the States are also referred to in the Report. Under those circumstances, I venture to think that this provision is adequate. Then with regard to the removal of judges under the Constitution of 1935, the power was vested in His Majesty in Council and His Majesty would have the advantage of a Judicial body. Therefore that was the basis of the Act of 1935. In cases of misconduct or misbehaviour, His Majesty in Council was clothed with the jurisdiction to initiate any proceedings against a Judge of the Federal Court or against a Judge of the High Courts in India. Under the present Constitution the suggestion that is made in certain quarters that the President of the Union with the advice of some Council or some Panel of Judges should have the power of removal is not, I venture to submit, a proposition which will meet with the acceptance of the House. That will bring the highest judicial dignitary in the land, the Chief Justice or the Chief Justices of the High Courts into the position of a member of the Indian Civil Service. Imagine the President appointing a special Commission of a few judges to enquire into the conduct the Chief Justice of India or the Chief Justice of the Provincial High Court. I should think that is not a position which will commend itself to the House. This particular provision which I have put in namely, that “he shall not be removed from his office except by the President on an address from both the Homes of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity”, is in line with the provision in the various Acts of the British Commonwealth. In Australia, in Canada, in South Africa, there is a similar provision and similarly from the date of the Act of Settlement In England it is only by resolution of both the Houses that a judge, could be removed from his office. It does not mean that that power will normally be invoked. The best testimony to such power is that it has never been exercised. It is a wholesome provision intended to be a salutary check on misbehaviour, not intended to be used frequently, and I have no doubt that the future legislatures of India which are invested with this power will act with that wisdom and that sobriety which have characterised the great Houses of Parliament in other jurisdiction. Therefore this provision with regard to proved misbehaviour, they may appoint a Committee of the House; it may be a case of secret session. But ultimately the Resolution will have to be passed by both Houses. And then, he may be removed for misconduct. That is not a happy way of expressing the tenure of a judge. That is why it has been put in the negative—“he shall not be removed etc.” Then, further provision may be made by Federal law for the procedure to be adopted in this behalf, i.e. you cannot put in all the detailed provisions by which the machinery can be set in motion in this Act. As a matter of fact, even a provision like, “Further provision may be made by Federal law for the procedure to be adopted in this behalf” does not occur in other constitutions, but there is a tendency to over-elaborate the provisions on our side and that is the only justification for my putting in that clause. Having regard to the very detailed provisions in the present Government of India Act which are intended to be adapted in the present constitution, so far as they are consistent with the man tenet of our constitution, namely, that we are providing for a Free India, there is no difficulty in adapting those provisions to the judicial machinery that we are going to erect. Therefore we have got those provision. One of our friends has put forward the provision that a judge’s salary cannot be reduced during his tenure of office. That provision occurs in the Government of India Act. Therefore, we need not have a detailed provision. Let us concentrate ourselves on the fundamentals (a) in regard to jurisdiction (b) in regard to removal from office. Other matters may be left to Federal law and also to the present Government of India Act which is intended to be adapted into the provisions of this constitution. That is the reason why I have put the word “salary“. That may include emoluments, leave allowances and so on and so forth, but all that need not find a place in the constitution. On these grounds I would ask the House to accept this amendment, but if any convincing reasons are placed why another amendment is to be adopted, I am not wedded to my amendment, I shall be glad to yield to any other amendment that may be proposed.
