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 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.

8.90.1

Ghanashyam Singh Gupta

     : 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.

8.90.1

Ghanashyam Singh Gupta

     : 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.

8.90.2

     : For that we are to blame. The fault is ours. We do not come here in time.

8.90.2

     : For that we are to blame. The fault is ours. We do not come here in time.

8.90.3

Ghanashyam 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.

8.90.3

Ghanashyam 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.

8.90.4

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.

8.90.4

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.

8.90.5

President

     We shall now take up article 103.

DRAFT CONSTITUTION -(contd.)

Article 103

8.90.5

President

     We shall now take up article 103.

DRAFT CONSTITUTION -(contd.)

Article 103

8.90.6

     : Mr. President, Sir, my amendment is a very simple one. I beg to move:

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

8.90.6

     : Mr. President, Sir, my amendment is a very simple one. I beg to move:

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

8.90.7

     Now I will read article 103, clause (1).

     "There shall be a Supreme Court of India consisting of a Chief Justice of India and such number of other judges not being less than seven as Parliament may by law Prescribe.'"

8.90.7

     Now I will read article 103, clause (1).

     "There shall be a Supreme Court of India consisting of a Chief Justice of India and such number of other judges not being less than seven as Parliament may by law Prescribe.'"

8.90.8

     If my amendment is accepted, the amended clause will read :-

     "There shall be a Supreme Court of India consisting of a Supreme Chief Justice of India, etc.'"

8.90.8

     If my amendment is accepted, the amended clause will read :-

     "There shall be a Supreme Court of India consisting of a Supreme Chief Justice of India, etc.'"

8.90.9

     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 and the provincial prime Ministers.  The Prime Minister of India will be called the prime Minister but the provincial head will be called only the premier.  Then again, the Advocate-General of India 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.

8.90.9

     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 and the provincial prime Ministers.  The Prime Minister of India will be called the prime Minister but the provincial head will be called only the premier.  Then again, the Advocate-General of India 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.

8.90.10

B.R. Ambedkar

     Mr. President, Sir, I move:

     "That in clause (1) of article 103, for the words 'and such number of 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."

8.90.10

B.R. Ambedkar

     Mr. President, Sir, I move:

     "That in clause (1) of article 103, for the words 'and such number of 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."

8.90.11

B.R. Ambedkar

     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.)

8.90.11

B.R. Ambedkar

     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.)

8.90.12

Krishna Chandra Sharma

     : Sir, I move:

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

     'Every Judge 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.'"

8.90.12

Krishna Chandra Sharma

     : Sir, I move:

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

     'Every Judge 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.'"

8.90.13

Krishna Chandra Sharma

     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 instance of his Ministers.  Again, Sir, in the United States of America, the Chief Justice of the Supreme Court is appointed by the president 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.

8.90.13

Krishna Chandra Sharma

     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 instance of his Ministers.  Again, Sir, in the United States of America, the Chief Justice of the Supreme Court is appointed by the president 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.

8.90.14

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.

8.90.14

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.

8.90.15

      Mr. President, Sir, I move:

     "That for clause (2) of article 103, the following clauses 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 Parliament assembled in a joint session of both the Houses 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)."

8.90.15

      Mr. President, Sir, I move:

     "That for clause (2) of article 103, the following clauses 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 Parliament assembled in a joint session of both the Houses 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)."

8.90.16

     Sir, 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 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 Houses 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 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.

8.90.16

     Sir, 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 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 Houses 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 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.

8.90.17

     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.)

8.90.17

     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.)

8.90.18

     : Sir, I move:

     "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 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 Justice 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.'"

8.90.18

     : Sir, I move:

     "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 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 Justice 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.'"

8.90.19

     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 appears that a certain provincial Government has issued directions that the recommendations of the Chief-Justice, instead of being sent to the Premier, should be sent to the Chief-Secretary, who, in some instances, has asked the Assistant Secretary to correspond further with the High Court in the matter. Thus, there seems to be a growing tendency to treat the High Court as a part of the Home Department of the province. With a view to check this tendency which is bound to undermine the position and the dignity of the High Courts and lower them in the estimation of the public, the Judges assembled in conference were unanimously of opinion that a procedure on the following lines must be laid down for the appointment of High Court Judges:

     "The Chief Justice should send his recommendation in that behalf directly to the President. After consultation with the Governor, the President should make the appointment with the concurrence of the Chief Justice of India.

8.90.19

     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 appears that a certain provincial Government has issued directions that the recommendations of the Chief-Justice, instead of being sent to the Premier, should be sent to the Chief-Secretary, who, in some instances, has asked the Assistant Secretary to correspond further with the High Court in the matter. Thus, there seems to be a growing tendency to treat the High Court as a part of the Home Department of the province. With a view to check this tendency which is bound to undermine the position and the dignity of the High Courts and lower them in the estimation of the public, the Judges assembled in conference were unanimously of opinion that a procedure on the following lines must be laid down for the appointment of High Court Judges:

     "The Chief Justice should send his recommendation in that behalf directly to the President. After consultation with the Governor, the President should make the appointment with the concurrence of the Chief Justice of India.

8.90.20

     This procedure would obviate the need for the Chief Justice of the High Court discussing the matter with the Premier and the Home Minister and justify his recommendations before them. It would also ensure the recommendation of the Chief Justice of the High Court being always placed before the appointing authority, namely, the President. The necessity for obtaining the concurrence of the Chief Justice of India would provide a safeguard against political and party pressure at the highest level being brought to bear on the matter." 

8.90.20

     This procedure would obviate the need for the Chief Justice of the High Court discussing the matter with the Premier and the Home Minister and justify his recommendations before them. It would also ensure the recommendation of the Chief Justice of the High Court being always placed before the appointing authority, namely, the President. The necessity for obtaining the concurrence of the Chief Justice of India would provide a safeguard against political and party pressure at the highest level being brought to bear on the matter." 

8.90.21

     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:

     “It is therefore suggested that article 193 (1) may be worded in the following or other suitable manner. ‘Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India.’ “

8.90.21

     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:

     “It is therefore suggested that article 193 (1) may be worded in the following or other suitable manner. ‘Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India.’ “

8.90.22

Further, it is stated:

     "The foregoing applies mutatis mutandis to the appointment of the Judges of the Supreme Court. Article 103 (2) may also be suitably modified."

8.90.22

Further, it is stated:

     "The foregoing applies mutatis mutandis to the appointment of the Judges of the Supreme Court. Article 103 (2) may also be suitably modified."

8.90.23

     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 conditions 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 Courts 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. 

8.90.23

     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 conditions 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 Courts 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. 

8.90.24

     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-three, and that of the Judges of the Supreme Court should be raised to 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.)

8.90.24

     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-three, and that of the Judges of the Supreme Court should be raised to 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.)

8.90.25

H. V. Kamath

     : Amendment No. 1821 is purely of a drafting nature. I leave it to the Drafting Committee.

8.90.25

H. V. Kamath

     : Amendment No. 1821 is purely of a drafting nature. I leave it to the Drafting Committee.

8.90.26

President

     : Amendment Nos. 1822 and 1823, as I said, are covered by amendment No. 1816 which has been moved.

8.90.26

President

     : Amendment Nos. 1822 and 1823, as I said, are covered by amendment No. 1816 which has been moved.

8.90.27

Prof. K.T. Shah

     : Sir, I beg to move:

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

8.90.27

Prof. K.T. Shah

     : Sir, I beg to move:

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

8.90.28

Prof. K.T. Shah

     The amended proposition would read:

     "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with the Council of States and such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years:":

8.90.28

Prof. K.T. Shah

     The amended proposition would read:

     "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with the Council of States and such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years:":

8.90.29

Prof. K.T. Shah

     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.  

8.90.29

Prof. K.T. Shah

     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.  

8.90.30

Prof. K.T. Shah

     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. 

8.90.30

Prof. K.T. Shah

     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. 

8.90.31

Prof. K.T. Shah

     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.

8.90.31

Prof. K.T. Shah

     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.

8.90.32

Prof. K.T. Shah

     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.)

8.90.32

Prof. K.T. Shah

     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.)

8.90.33

President

     : No. 1827 is covered by other amendments moved.

8.90.33

President

     : No. 1827 is covered by other amendments moved.

8.90.34

      Sir, I beg to move:

     "That in clause (2) of article 193, for the words 'may be' the words 'the President may deem' be substituted."

8.90.34

      Sir, I beg to move:

     "That in clause (2) of article 193, for the words 'may be' the words 'the President may deem' be substituted."

8.90.35

     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.

8.90.35

     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.

8.90.36

President

     : No. 1830 and No. 1831 are already covered by No. 1829.

8.90.36

President

     : No. 1830 and No. 1831 are already covered by No. 1829.

8.90.37

Prof. K. T. Shah

     : Mr. President, Sir, I beg to move:

     "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 years 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."

8.90.37

Prof. K. T. Shah

     : Mr. President, Sir, I beg to move:

     "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 years 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."

8.90.38

Prof. K. T. Shah

     The amended proposition would read:

     "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office during good behaviour or until he resigns; provided that any such Judge may resign his office at any time after 10 years 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."

8.90.38

Prof. K. T. Shah

     The amended proposition would read:

     "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office during good behaviour or until he resigns; provided that any such Judge may resign his office at any time after 10 years 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."

8.90.39

Prof. K. T. Shah

     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.

8.90.39

Prof. K. T. Shah

     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.

8.90.40

Prof. K. T. Shah

     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.

8.90.40

Prof. K. T. Shah

     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.

8.90.41

Prof. K. T. Shah

     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.

8.90.41

Prof. K. T. Shah

     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.

8.90.42

Prof. K. T. Shah

     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.

8.90.42

Prof. K. T. Shah

     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.

8.90.43

Prof. K. T. Shah

     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.

8.90.43

Prof. K. T. Shah

     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.

8.90.44

Prof. K. T. Shah

     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.

8.90.44

Prof. K. T. Shah

     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.

8.90.45

     : Mr. President, Sir, I beg to move:

     "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."

8.90.45

     : Mr. President, Sir, I beg to move:

     "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."

8.90.46

     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.

8.90.46

     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.

8.90.47

     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.

8.90.47

     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.

8.90.48

President

     : That does not depend upon age.

8.90.48

President

     : That does not depend upon age.

8.90.49

     : 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 Members 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.

8.90.49

     : 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 Members 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.

8.90.50

     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.)

8.90.50

     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.)

8.90.51

     :  Sir, I move:

     "That in clause (2) of article 103, for the words 'until he attains the age of 65 years' the words 'for such period as may be fixed in this behalf by Parliament by law' be substituted."