In light of International Women’s Day, the ConstitutionofIndia.net team will focus on key interventions by women Constituent Assembly members that shaped our constitutional republic. We will showcase three women Assembly members all through March 2021.
In this second post of the series, we highlight an early intervention by freedom fighter, lawyer and social worker G. Durgabai, in a debate in the Constituent Assembly around the appointment of High Court judges.
Image Credits: Print India
On 21 July 1947, Sardar Vallabhai Patel proposed that judges of the High Courts (excluding the Chief Justice) be appointed by the President of India in consultation with the Chief Justice of the Supreme Court, Governor of the Province and the Chief Justice(s) of the respective provincial High Court(s).
Durgabai supported this proposal. She anticipated that some Assembly members would be concerned about the involvement of the Union CJI in the appointment of provincial judges and perceive Patel’s proposal as undermining principles of federalism. The federal principles aside, Durgabai preferred the involvement of the Union CJ for the following reasons:
First, it allowed for judicial independence. The participation of a Union judicial functionary specifically the Supreme Court Chief Justice would ensure that the selection of a provincial high court judge was less influenced by provincial political and institutional dynamics. This was particularly important as the Constitution was going to give High Courts critical powers and responsibilities to dispense justice and safeguard the Constitution.
Second, Durgabai felt that Patel’s proposal was consistent with and flowed from the Supreme Court’s supervisory powers over all High Courts in India. She said that the involvement of the Supreme Court was necessary for the appointment process for retaining the purity of the administration of justice and should not be viewed as a breach of provincial autonomy.
Lastly, Durgabai argued that there was no uniform principle or solid precedent followed around the world that unequivocally suggested the superiority of a system that vested powers of appointing provincial judges exclusively with provincial authorities.
She ended with reiterating her support for Patel’s proposal and advised the Assembly to accept it ‘without fear’.
The Assembly did eventually accept Patel’s proposal as Article 217, of the Constitution of India 1950 on 7 June 1949. Durgabai’s early support, plausibly played part in the Assembly making this constitutional choice.