Petitions
H.V.R Iengar, Secretary, Ministry of Home Affairs - 'Provisions in the Draft Constitution relating to the Judiciary.'
22 October 1948.
H.V.R. Iengar, Secretary of the Ministry of Home Affairs and an ICS officer, wrote to the Secretary of the Constituent Assembly on 22 October 1948. The letter forwarded the Ministry’s views on provisions in the draft Constitution dealing with the judiciary, responding to a joint memorandum that had been submitted earlier by the Chief Justice of the Federal Court and the Chief Justices of the Provincial High Courts. The Ministry’s views had not yet been considered by Cabinet but were sent to the Drafting Committee, which was then in session.
The note dealt with four matters. On retirement age, the Chief Justices wanted 65 for High Court judges and 68 for Supreme Court judges. The Ministry proposed keeping 60 and 65 as the normal ages respectively, but allowing the President to extend an individual judge’s service by up to three years in exceptional cases. Most High Court judges, the Ministry argued, were well past their peak by 60, and an automatic extension would not serve the public interest. Leaving the decision to state legislatures, as the draft Constitution did, would also create a lack of uniformity that would complicate the transfer of judges between High Courts.
On the ban preventing retired judges from practising law, the Ministry noted the Chief Justices’ concern that applying the ban to Additional and temporary judges would discourage recruitment from the bar. On salaries and conditions of service, the Ministry wanted uniformity across the country, settled by the Union Parliament rather than state legislatures. It also wanted the salaries of all existing judges, both Federal Court and High Court, guaranteed by the Constitution, though appointments made after 1 November 1948 could be subject to changes by the appropriate legislature.
New Delhi,
22nd October 1948.
82.
From
H.V.R. Iengar, Esq., CIE.,ICS.,
Secretary, Ministry of Home Affairs.
To
The Secretary,
Constituent Assembly of India.
Dear Sir,
I am directed to say that the joint memorandum submitted by the Chief Justice of the Federal Court and the Chief Justices of the Provincial High Courts on the provisions of the draft constitution dealing with the Supreme Court and the High Courts has been considered in the Ministry of Home Affairs. The accompanying note contains the views of this Ministry on some of the points dealt with in the Chief Justices memorandum. These views have not yet been considered by Cabinet but I have been directed to submit them for the consideration of the Drafting Committee which is understood to be now in session. The Government of India will be very grateful to be informed of the result of the consideration of the note by the Drafting Committee.
2. Spare copies of the note are attached for circulation to the members of the Committee.
Yours faithfully,
(H.V.R. Iengar)
Secretary.
MINISTRY OF HOME AFFAIRS.
Subject: Provisions in the Draft Constitution relating to the Judiciary.
The Chief Justice of the Federal Court and the Chief Justices of the Provincial High Courts submitted a joint memorandum to the Hon’ble the Home Minister and to the Constituent Assembly incorporating their views on the provisions of the Draft Constitution dealing with the Supreme Court and the High Courts of States. This memorandum has been considered by the Drafting Committee and a joint meeting of the Union and Provincial Constitution Committees, and some of the recommendations of the Chief Justices have been accepted. Those that have not been accepted have been subjected to a careful scrutiny in the Ministry of Home Affairs and the view of the Ministry is that on the points noted below a communication should be addressed to the appropriate committee of the Constituent Assembly asking them to take into consideration the views of Government:-
2. Under article 103(2) of the Draft Constitution, Judges of the Supreme Court are to hold office till they attain the age of 65 and, under article 193(1), Judges of High Courts are to hold office until they attain the age of 60 or such higher age not exceeding 65 as may be fixed in this behalf by a law of the Legislature of the State. The Chief Justices have suggested in their memorandum that the retiring age for High Court Judges should be 65 and that for Supreme Court Judges 68. The view of the Home Ministry is that the normal age for retirement should be 60 for High Court Judges and 65 for Supreme Court Judges, but the Constitution should provide that, in exceptional circumstances, the appointing authority may extend the service of an individual Judge, in the case of High Courts not beyond the age of 63 and in the case of the Supreme Court not beyond the age of 68. Experience has shown that most High Court Judges are well past the peak of their usefulness by the time they attain the age of 60 and an automatic extension of the age limit would not be in the public interest. Where, however, an individual Judge shows exceptional talent and vitality, the President may extend his service for a maximum period of three years. Such cases, however, are likely to be very few. There is also another objection to the provision in the Draft Constitution. As it leaves it to the Legislatures of States to decide whether the age limit should be extended in the case of all Judges, there would be lack of uniformity. This would be undesirable in any case and would be particularly inconvenient as it would render difficult the transfer of Judges from one High Court to another.
3. Article 196 of the Draft Constitution lays down that no person who has held office as a Judge, Additional Judge or a temporary Judge of the High Court shall plead in any Court or appear before any authority within the territory of India. The Chief Justices in their memorandum have pointed out that the enforcement of the ban in the case of Additional or temporary Judges would lead to a not very satisfactory result and would prevent recruitment from the bar to these posts. No doubt a District Judge could be appointed to be an Additional or Temporary Judge whenever it is found necessary to appoint such Judges but such appointments might not always be satisfactory and by giving some sort of a claim for permanent vacancies, give rise to difficulties in recruitment from the bar. The Chief Justices are also of the opinion that the scope of the existing disability should not be enlarged without a compensating increase in the scale of pension and a higher age-limit for superannuation.
4. Article 197 of the Draft Constitution provides that the salaries and allowances and rights in respect of leave, pension etc. of High Court Judges shall be fixed by or under a law made by the States Legislature. The Home Ministry considers that it is most desirable that there should be uniformity in this respect and that the matters specified in Section 197 should be settled, not by State legislation, but by legislation in the Union Parliament.
5. Article 197 read with Part IV of the Second Schedule provides that while the existing emoluments and conditions of service of High Court Judges shall be preserved in the transition period, these may be amended by State legislation subject to the qualification that the salary of a Chief Justice shall not be less than Rs. 4000/- and that of a Puisne Judge less than Rs. 3500/-. On the consideration of the Chief Justices’ memorandum, the Special Committee has agreed to provide that the existing Judges in the High Courts should continue to get the same salaries as they were drawing immediately before the commencement of the constitution.
In regard to Supreme Court Judges, the effect of articles 104 and 308(1) read with Part IV of the Second Schedule is the same as in the case of High Court Judges, namely, that the salaries and conditions of service may be varied by Union legislation. The Special Committee have not agreed to extend to Supreme Court Judges the privilege which they are prepared to extend to High Court Judges, namely, to preserve the rights of Federal Judges on the date the constitution comes into force. The Home Ministry considers that there is no reason to differentiate between the High Courts and the Federal Court in this matter of salaries and considers that the salaries of all existing Judges both of the Federal Court and the Provincial High Courts should be guaranteed by constitution.
The Home Ministry is prepared, however, to make it a condition of all appointments made after the 1st November 1948 that the salaries will be subject to such changes as may be made by the appropriate legislative authority under the new constitution.
In regard to other conditions of service also, the Home Ministry considers that the existing rights should be preserved by the Constitution except in the case of appointments made after the 1st November 1948. Any variation either in salaries or other conditions of service of existing High Court Judges would not only not have any appreciable financial effect but would be unfair and create discontent and consequently would not be in the public interest.
It is not understood why, while the Constitution should provide a minimum salary for High Court Judges, it should not do so for Supreme Court Judges. The Home Ministry considers that a provision for a minimum salary for Supreme Court Judges should also be made. It accepts the figures mentioned in Section 10 of Part IV of the Second Schedule to the Draft Constitution
(H.V.R. Iengar)
Secretary to the Government of India.