The members of the Constituent Assembly envisaged the Judiciary as a bastion of rights and of justice. The question was how to render the fortress impregnable to sapping by private interests. The Assembly had been careful to keep the Judiciary out of politics. How was politics to be kept out of the courts? The Assembly’s answer was to strengthen the walls of the fortress with constitutional provisions. At first glance, the Assembly’s debates on the Judicial provisions seem to have been disproportionately concerned with the administrative aspects of the judicial system, with the tenure, salaries, allowances, and retirement age of judges, with the question of how detailed the Judicial provisions of the Constitution should be, and more pertinently, with the mechanism for choosing judges. A closer look, however, shows that the members’ interest in these apparently routine matters – which did at times become tedious – was prompted by the desire to insulate the courts from attempted coercion by forces within or outside the government. In this respect, the attitude of the Sapru Committee must have greatly influenced Assembly members.
The Sapru Committee report recommended that the justices of the Supreme Court and the High Courts should be appointed by the head of state in consultation with the Chief Justice of the Supreme Court and, in the case of High Court judges, in consultation additionally with the High Court Chief Justice and the head of the unit concerned. The justices of all courts could be removed on grounds of misbehaviour or infirmity of mind by the head of state, with the concurrence of the Supreme Court in the case of High Court justices, and with the concurrence of a special tribunal in the case of Supreme Court justices.
The salaries of all judges (and the strength of the courts) should be ‘fixed in the Constitution Act’, said the Sapru Report, and should be neither varied to a justice’s advantage or disadvantage during his term of office, nor in any way modified without the sanction of the head of state and the recommendation of the High Court, the Supreme Court, and the government concerned. Such provisions must be included, the members of the committee believed, in order ‘to secure the absolute independence of the High Courts (and pre- sumably the Supreme Court as well) and to put them, above party politics or influences’. Although these conditions might seem to infringe provincial autonomy, the independence of the courts was of greater importance, the report argued. Nothing could undermine public confidence more than ‘the possibility of executive interference with the strength and independence of the highest tribunal of the provinces’. The Sapru Committee also suggested special provi- sions for the removal of judges because it was not satisfied with the mechanism in the 1935 Act, yet it rejected the idea of an address by Parliament – which was used in England and would later be adopted by the Constituent Assembly – because it did ‘not consider it right and proper that the judge’s conduct should form the subject of discussion in the heated atmosphere of a political Assembly’.
The members of the Constituent Assembly’s ad hoc Committee on the Supreme Court took a somewhat different view of these matters, but the Assembly would ultimately frame provisions closer to those of the Sapru Committee. The members believed that the sala- ries and pensions of justices should be laid down in statutory rules and that only their main recommendations need be embodied in the Constitution. Detailed provisions, including those establishing the procedure for the issuance of writs in civil rights cases, could be laid down in a ‘Judiciary Act’, said the ad hoc Committee. In the matter of choosing justices, however, the committee sought greater safeguards. Its report declared that it would not ‘be expedient’ to leave the appointment of Supreme Court judges ‘to the unfettered discretion of the President of the Union’, and it offered alternative suggestions. According to the first of these, the President should nominate puisne judges with the concurrence of the Chief Justice, and this nomination would then be subject to confirmation by a panel composed of High Court Chief Justices, ‘some members’ of both houses of the central legislature, and the law officers of the Union. The second scheme was that the panel should submit three names to the President who would choose one of them with the concurrence of the Chief Justice.
The Union Constitution Committee, considering these recommendations at its 11 June meeting, decided that the salaries, allowances, etc. of Supreme Court justices need not be included in the Constitution, but disagreed with the ad hoc Committee’s suggestions for the selection of judges. Instead, returning to the method of the Sapru Report, the Union Constitution Committee recommended to the Assembly that justices be appointed by the President in consultation with the Chief Justice of the Supreme Court and such other Supreme or High Court Justices as might be necessary. This provision ultimately became part of the Constitution. The Provincial Constitution Committee had no expert report for its guidance. In a joint meeting with the Union Constitution Committee to consider the ad hoc Committee’s report, the members decided, however, to adopt the same system for appointing judges: High Court justices were to be appointed by the President in consultation with the Chief Justices of the Supreme Court and the High Court concerned and the Governor of the State. Otherwise the provisions of the 1935 Act, with the necessary adaptations, were to be used. Along with the Union Constitution Committee, the members of the Provincial Constitution Committee believed that the salaries and allowances of justices could be provided for in a Judicature Act, but they also believed that the bench needed greater security in the interim. Pending the passage of such an act, therefore, the salaries and allowances of judges were to be enumerated in a constitutional schedule.
Introducing the Provincial Constitution Committee report to the Assembly, Patel explained that the committee had paid special attention to the manner of appointing judges, for ‘the judiciary should be above suspicion and should be above party influences’. The debate on this report was brief and marked by only one major change. Adopting an amendment moved by A. K. Ayyar, the Assembly gave to High Courts the power to issue prerogative writs in fundamental rights cases, entrusted them with the superintendence of subordinate courts within their jurisdiction, and empowered them to consider cases concerning revenue matters.
Turning to the Union Constitution Committee report a week later, the Assembly accepted with little debate the committee’s provisions that judges should be appointed by the President, but considered at somewhat greater length several methods of removing justices from the bench. Two main amendments were moved. That of A. K. Ayyar provided that justices could be removed by the President for incapacity or proved misbehaviour, on receipt of an address by both houses of Parliament. K. Santhanam moved a similar amendment. Both were opposed by M. A. Ayyangar, according to whose amendment judges could be removed on like grounds but by a special tribunal of acting and former Supreme and High Court judges. Ayyar argued that the weighty procedure of a Parliamentary address enhanced the dignity of the Supreme Court and that his method was preferable to a simple tribunal. The Assembly adopted Ayyar’s amendment. Ayyar also defended the exclusion from the Constitution of provi- sions laying down the salaries of judges. He believed that ‘from the very nature of things’ all such provisions could not be included in the Constitution, which should embody only the ‘main heads’. It should be left, he said, ‘for a Judicature Act to be passed by the Assembly to implement the powers that are conferred under the Constitution’. On this the Drafting Committee would not agree with him.
The Drafting Committee held regular meetings from early November onwards. During the week between 10 and 17 December, the members framed nearly all the Judicial provisions, including many of the details omitted the previous summer. The committee set the number of justices on the Supreme Court at seven, subject to change by Parliament, and confirmed the retirement age at sixty-five years. The committee also laid down the qualifications necessary for justices. The procedure for the removal of judges was stiffened by requiring the address by Parliament to be passed by a two-thirds majority. Former judges were not to be allowed to return to the Bar, a provision that had the strong support of both Sir Tej Bahadur Sapru and B. N. Rau. On the question of writing the salaries, allowances, leave, and pensions of justices into the Constitution, the Drafting Committee compromised. Parliament was empowered to legislate on these subjects; until it did so, however, salaries and so on were to be as laid down in a Schedule to the Draft. But none of these rights could be varied to a justice’s disadvantage during his tenure of office. The Draft Constitution provided that the salaries etc. of the administrative personnel and officers of the Supreme Court were to be fixed by the President in consultation with the Chief Justice and that all the expenses of the Court were to be chargeable to the revenues of the country. The method of appointing judges remained unchanged.
The provisions for the High Courts were largely the same. Judges were to be appointed by the President, as previously agreed upon, and removed by him on receipt of a parliamentary address. The salaries and other emoluments of judges were laid down in a schedule, but could be legislated upon by the provincial legislature provided that the minimum salary of a Chief Justice was kept at Rs 4,000 monthly and that of puisne judges at Rs 3,500. These salaries were laid down in the Second Schedule of the Draft, along with figures of Rs 5,000 monthly for the Chief Justice of the Supreme Court and Rs 4,500 for other Supreme Court judges. It is likely that the Drafting Committee adopted these amounts on the recommendation of the Home Ministry, which suggested them in a note to the committee.
The first reaction to the Judicial provisions of the Draft Constitution came from the judges themselves. In late December 1947, the Chief Justice of the Federal Court, H. J. Kania (to whom the provisions had presumably been shown as soon as they had been drafted), wrote a letter to Nehru about them. Kania made no com- ment on the jurisdiction and powers of the courts, confining his letter entirely to the independence of the Judiciary. He suggested that the Draft Constitution should cover the relationship of the Executive with the Judiciary so that the courts would be free from suspicion of Executive control. Kania particularly stressed that, when recommending to the President a person for a judgeship on a High Court, the Governor and the High Court Chief Justice should be in direct contact so that the provincial Home Ministry would not be an intermediary in the proceedings. Otherwise, Kania said, local politics might affect the selection of judges.
These points and many others were elaborated at a meeting held by the justices of the Federal Court and the Chief Justices of all the High Courts a month after the publication of the Draft Constitution. The sense of the meeting was that under the Raj the Judiciary had, in the main, been independent, but that certain tendencies to encroach upon its independence were becoming apparent. India must preserve, in the justices’ opinion, ‘the fearless functioning of an independent, incorruptible, and efficient Judiciary’. Taking up the point of Kania’s earlier letter, the meeting deplored ‘the growing tendency to treat the High Court as a part of the Home Department of the Province’, and recommended that the Chief Justice of the High Court, after consult- ing with the Governor, should send his suggestions for appointment directly to the President, thus excluding all provincial ministers from the selection process. This recommendation was to eliminate the procedure, claimed by the justices to be followed in some provinces, by which the High Court Chief Justice made his suggestion on appoint- ments to the provincial prime minister, who passed it to his home minister, who in turn sent his views to the Union Home Minister in New Delhi for communication to the Union Prime Minister and the Governor-General. By this procedure, it was claimed, the High Court Chief Justice’s original written recommendation never reached New Delhi at all. Reading the substitute provision put forward by the meeting of justices, however, one finds it difficult to defect any difference from that already in the Draft Constitution.
Further to ensure the independence of the Judiciary, the justices’ meeting recommended that the salaries, leave, and allowances of High Court judges should be a Union subject, and if not, that all provincial legislation on these matters should be reserved for the President’s consideration. The responsibility for district judges and all subordinate courts should, in the justices’ view, be taken from the provincial government and placed within the power of the High Courts. It was also suggested that either former judges be allowed to return to the Bar – outside the jurisdiction of the High Court on which they had sat – or that pensions be increased. (Although the Assembly rejected this suggestion at the time, the Seventh Amendment Act of 1956 provided that retired justices could return to the Bar.) Salaries, too, should be raised, the justices said. The sum of Rs 4,000 had been established seventy years earlier and the standard of living of judges must be kept up, for to ‘lower their dignity and status’ vis-a-vis the other members of the community would be detrimental to the larger interests of everyone concerned. To maintain the independence of the Judiciary by preventing the use of politics as a stepping-stone to the bench, the justices finally recommended that no former minister could become a judge.
Ayyar, replying to the justices’ memorandum, took a firm line. The provisions in the Draft Constitution concerning subordinate courts must be made to work, he said, and these courts could not be put in the charge of the High Courts. An independent Judiciary was an admirable principle, but the High Courts could not be vested with administrative responsibility and then placed above criticism. As to the justices’ other comments, the Judiciary was remarkably independent, Ayyar said. There was no authority that could interfere with it in the exercise of its functions. Judges had security of tenure and could only be removed by the most rigorous procedure; no judge’s salary could be altered to his disadvantage during his term of office; the salaries and allowanaces of all justices were not subject to the vagaries of legislative appropriations, but were charged to the revenues of the Union or provincial government; and the administrative establishment of courts was fixed by Chief Justices. The Drafting Committee did, however, accept an amendment suggested by several High Court Chief Justices to the effect that any Bill passed by a provincial legislature derogating the authority of a High Court should be reserved for the President’s consideration.
The Assembly did not undertake detailed consideration of the Judicial provisions of the Draft until a year after these recommendations were presented. When on 24 May 1949 the Assembly took up Article 103 on the appointment of Supreme Court Judges, it became evident that keeping politics out of the courts continued to be a matter of great concern. One member, for example, suggested that the appointment of judges should be confirmed by two-thirds of both houses of Parliament so that their independence would not be ‘compromised’. Ambedkar defended the draft provision, saying that it was a middle way between the English system of appointment by the Lord Chancellor and the American system of confirmation of judicial appointments by the Senate. The English method was too unsupervised, said Ambedkar, and, in India, the American way too open to politics. The majority of the Assembly agreed with Ambedkar and the provision was adopted.
It proved much more difficult to resolve the matter of judges salaries, however, and the status of the provisions naming them. The quality as well as the independence of the Judiciary were considered to be at stake, and the decision, which the Assembly was left to ratify, was taken by the Cabinet. Article 104 of the Draft Constitution, it will be recalled, laid down that the salaries, allowances, leave, pensions, etc. of judges could be legislated upon by Parliament, but that until such time they should be provided for in the Second Schedule. There was a like provision for the High Courts. This article was apparently already under discussion at the highest level when it came up for consideration in the Assembly on 27 May, and Ambedkar requested that debate on it be postponed. Four days later a secret note written by Patel was circulated in the Cabinet. It recalled discussions on the issue six months earlier and said that in the light of these and of the views of the Chief Justice, the Prime Minister and he had agreed that to have ‘a first-rate Judiciary in India’ the salaries of judges should be fixed in the Constitution in order to attract ‘first-rate men to accept these appointments’. The note also listed the salaries and allowances considered to be necessary to achieve this.
The following day, Ambedkar submitted a note in which he said the salaries named by Patel were in some cases too high. He did not seem to question the idea of fixing the salaries in the Constitution. Discussion continued but no decision had been reached when the Assembly rose on 16 June. On the first day of the following session, however, 30 July 1949, Ambedkar moved on the Assembly floor a new Article 104 that provided that judges should be paid the salaries specified in the Second Schedule, but that the privileges and allowances of justices should be determined by Parliament. Until Parliament decided on them, however, they should be as specified in the Schedule. The Assembly adopted the new provision after an inconsequential debate. The schedule itself was adopted in mid-October. The salaries for justices specified in it showed that Nehru and Patel had been forced by their cabinet colleagues to lower their sights in every case save that of the Chief Justice. In the main, the salaries embodied in the Constitution were those laid down in the Draft nearly two years before.
Believing that they had established a Judiciary both independent and powerful, Assembly members then wished to give their work some permanence. There would, of course, be in the Constitution a mechanism for amending it. How, then, could the sanctity of the courts be protected? The Assembly solved the problem by including among the entrenched provisions of the Constitution all the articles dealing with the Union Judiciary, the High Courts in the states, and the Legislative Lists – on which appeared the authority for the several legislatures to act on matters concerning the Judiciary.
Although much of the Constitution can be changed by Parliament itself, the entrenched provisions require additionally the approval of not less than one-half of the legislatures of the states. Only certain provisions pertaining to the Executive and to the federal structure were also included in this special category.
The Union Constitution Committee had recommended, in a supplementary report of mid-July 1947, that the articles pertaining to the Supreme Court should require the consent of the provinces before being amended. This was included in the Draft Constitution, but no mention was made of the High Courts. By the time the Draft was presented to the Assembly in November 1948, Ambedkar, Saadulla, N. M. Rau, and several others had submitted amendments giving the same status to the provisions regarding the High Courts. The Drafting Committee agreed to this principle and recommended to the Assembly that it be accepted, and the members adopted the provision in September 1949 during the debate on the amending process. Thus the Assembly finally provided all the measures it believed necessary to preserve the independence of the Judiciary.
Excerpted with permission of Oxford University Press from The Indian Constitution: Cornerstone of a Nation by Granville Austin.
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The Sapru Committee report recommended that the justices of the Supreme Court and the High Courts should be appointed by the head of state in consultation with the Chief Justice of the Supreme Court and, in the case of High Court judges, in consultation additionally with the High Court Chief Justice and the head of the unit concerned. The justices of all courts could be removed on grounds of misbehaviour or infirmity of mind by the head of state, with the concurrence of the Supreme Court in the case of High Court justices, and with the concurrence of a special tribunal in the case of Supreme Court justices.
The salaries of all judges (and the strength of the courts) should be ‘fixed in the Constitution Act’, said the Sapru Report, and should be neither varied to a justice’s advantage or disadvantage during his term of office, nor in any way modified without the sanction of the head of state and the recommendation of the High Court, the Supreme Court, and the government concerned. Such provisions must be included, the members of the committee believed, in order ‘to secure the absolute independence of the High Courts (and pre- sumably the Supreme Court as well) and to put them, above party politics or influences’. Although these conditions might seem to infringe provincial autonomy, the independence of the courts was of greater importance, the report argued. Nothing could undermine public confidence more than ‘the possibility of executive interference with the strength and independence of the highest tribunal of the provinces’. The Sapru Committee also suggested special provi- sions for the removal of judges because it was not satisfied with the mechanism in the 1935 Act, yet it rejected the idea of an address by Parliament – which was used in England and would later be adopted by the Constituent Assembly – because it did ‘not consider it right and proper that the judge’s conduct should form the subject of discussion in the heated atmosphere of a political Assembly’.
The members of the Constituent Assembly’s ad hoc Committee on the Supreme Court took a somewhat different view of these matters, but the Assembly would ultimately frame provisions closer to those of the Sapru Committee. The members believed that the sala- ries and pensions of justices should be laid down in statutory rules and that only their main recommendations need be embodied in the Constitution. Detailed provisions, including those establishing the procedure for the issuance of writs in civil rights cases, could be laid down in a ‘Judiciary Act’, said the ad hoc Committee. In the matter of choosing justices, however, the committee sought greater safeguards. Its report declared that it would not ‘be expedient’ to leave the appointment of Supreme Court judges ‘to the unfettered discretion of the President of the Union’, and it offered alternative suggestions. According to the first of these, the President should nominate puisne judges with the concurrence of the Chief Justice, and this nomination would then be subject to confirmation by a panel composed of High Court Chief Justices, ‘some members’ of both houses of the central legislature, and the law officers of the Union. The second scheme was that the panel should submit three names to the President who would choose one of them with the concurrence of the Chief Justice.
The Union Constitution Committee, considering these recommendations at its 11 June meeting, decided that the salaries, allowances, etc. of Supreme Court justices need not be included in the Constitution, but disagreed with the ad hoc Committee’s suggestions for the selection of judges. Instead, returning to the method of the Sapru Report, the Union Constitution Committee recommended to the Assembly that justices be appointed by the President in consultation with the Chief Justice of the Supreme Court and such other Supreme or High Court Justices as might be necessary. This provision ultimately became part of the Constitution. The Provincial Constitution Committee had no expert report for its guidance. In a joint meeting with the Union Constitution Committee to consider the ad hoc Committee’s report, the members decided, however, to adopt the same system for appointing judges: High Court justices were to be appointed by the President in consultation with the Chief Justices of the Supreme Court and the High Court concerned and the Governor of the State. Otherwise the provisions of the 1935 Act, with the necessary adaptations, were to be used. Along with the Union Constitution Committee, the members of the Provincial Constitution Committee believed that the salaries and allowances of justices could be provided for in a Judicature Act, but they also believed that the bench needed greater security in the interim. Pending the passage of such an act, therefore, the salaries and allowances of judges were to be enumerated in a constitutional schedule.
Introducing the Provincial Constitution Committee report to the Assembly, Patel explained that the committee had paid special attention to the manner of appointing judges, for ‘the judiciary should be above suspicion and should be above party influences’. The debate on this report was brief and marked by only one major change. Adopting an amendment moved by A. K. Ayyar, the Assembly gave to High Courts the power to issue prerogative writs in fundamental rights cases, entrusted them with the superintendence of subordinate courts within their jurisdiction, and empowered them to consider cases concerning revenue matters.
Turning to the Union Constitution Committee report a week later, the Assembly accepted with little debate the committee’s provisions that judges should be appointed by the President, but considered at somewhat greater length several methods of removing justices from the bench. Two main amendments were moved. That of A. K. Ayyar provided that justices could be removed by the President for incapacity or proved misbehaviour, on receipt of an address by both houses of Parliament. K. Santhanam moved a similar amendment. Both were opposed by M. A. Ayyangar, according to whose amendment judges could be removed on like grounds but by a special tribunal of acting and former Supreme and High Court judges. Ayyar argued that the weighty procedure of a Parliamentary address enhanced the dignity of the Supreme Court and that his method was preferable to a simple tribunal. The Assembly adopted Ayyar’s amendment. Ayyar also defended the exclusion from the Constitution of provi- sions laying down the salaries of judges. He believed that ‘from the very nature of things’ all such provisions could not be included in the Constitution, which should embody only the ‘main heads’. It should be left, he said, ‘for a Judicature Act to be passed by the Assembly to implement the powers that are conferred under the Constitution’. On this the Drafting Committee would not agree with him.
The Drafting Committee held regular meetings from early November onwards. During the week between 10 and 17 December, the members framed nearly all the Judicial provisions, including many of the details omitted the previous summer. The committee set the number of justices on the Supreme Court at seven, subject to change by Parliament, and confirmed the retirement age at sixty-five years. The committee also laid down the qualifications necessary for justices. The procedure for the removal of judges was stiffened by requiring the address by Parliament to be passed by a two-thirds majority. Former judges were not to be allowed to return to the Bar, a provision that had the strong support of both Sir Tej Bahadur Sapru and B. N. Rau. On the question of writing the salaries, allowances, leave, and pensions of justices into the Constitution, the Drafting Committee compromised. Parliament was empowered to legislate on these subjects; until it did so, however, salaries and so on were to be as laid down in a Schedule to the Draft. But none of these rights could be varied to a justice’s disadvantage during his tenure of office. The Draft Constitution provided that the salaries etc. of the administrative personnel and officers of the Supreme Court were to be fixed by the President in consultation with the Chief Justice and that all the expenses of the Court were to be chargeable to the revenues of the country. The method of appointing judges remained unchanged.
The provisions for the High Courts were largely the same. Judges were to be appointed by the President, as previously agreed upon, and removed by him on receipt of a parliamentary address. The salaries and other emoluments of judges were laid down in a schedule, but could be legislated upon by the provincial legislature provided that the minimum salary of a Chief Justice was kept at Rs 4,000 monthly and that of puisne judges at Rs 3,500. These salaries were laid down in the Second Schedule of the Draft, along with figures of Rs 5,000 monthly for the Chief Justice of the Supreme Court and Rs 4,500 for other Supreme Court judges. It is likely that the Drafting Committee adopted these amounts on the recommendation of the Home Ministry, which suggested them in a note to the committee.
The first reaction to the Judicial provisions of the Draft Constitution came from the judges themselves. In late December 1947, the Chief Justice of the Federal Court, H. J. Kania (to whom the provisions had presumably been shown as soon as they had been drafted), wrote a letter to Nehru about them. Kania made no com- ment on the jurisdiction and powers of the courts, confining his letter entirely to the independence of the Judiciary. He suggested that the Draft Constitution should cover the relationship of the Executive with the Judiciary so that the courts would be free from suspicion of Executive control. Kania particularly stressed that, when recommending to the President a person for a judgeship on a High Court, the Governor and the High Court Chief Justice should be in direct contact so that the provincial Home Ministry would not be an intermediary in the proceedings. Otherwise, Kania said, local politics might affect the selection of judges.
These points and many others were elaborated at a meeting held by the justices of the Federal Court and the Chief Justices of all the High Courts a month after the publication of the Draft Constitution. The sense of the meeting was that under the Raj the Judiciary had, in the main, been independent, but that certain tendencies to encroach upon its independence were becoming apparent. India must preserve, in the justices’ opinion, ‘the fearless functioning of an independent, incorruptible, and efficient Judiciary’. Taking up the point of Kania’s earlier letter, the meeting deplored ‘the growing tendency to treat the High Court as a part of the Home Department of the Province’, and recommended that the Chief Justice of the High Court, after consult- ing with the Governor, should send his suggestions for appointment directly to the President, thus excluding all provincial ministers from the selection process. This recommendation was to eliminate the procedure, claimed by the justices to be followed in some provinces, by which the High Court Chief Justice made his suggestion on appoint- ments to the provincial prime minister, who passed it to his home minister, who in turn sent his views to the Union Home Minister in New Delhi for communication to the Union Prime Minister and the Governor-General. By this procedure, it was claimed, the High Court Chief Justice’s original written recommendation never reached New Delhi at all. Reading the substitute provision put forward by the meeting of justices, however, one finds it difficult to defect any difference from that already in the Draft Constitution.
Further to ensure the independence of the Judiciary, the justices’ meeting recommended that the salaries, leave, and allowances of High Court judges should be a Union subject, and if not, that all provincial legislation on these matters should be reserved for the President’s consideration. The responsibility for district judges and all subordinate courts should, in the justices’ view, be taken from the provincial government and placed within the power of the High Courts. It was also suggested that either former judges be allowed to return to the Bar – outside the jurisdiction of the High Court on which they had sat – or that pensions be increased. (Although the Assembly rejected this suggestion at the time, the Seventh Amendment Act of 1956 provided that retired justices could return to the Bar.) Salaries, too, should be raised, the justices said. The sum of Rs 4,000 had been established seventy years earlier and the standard of living of judges must be kept up, for to ‘lower their dignity and status’ vis-a-vis the other members of the community would be detrimental to the larger interests of everyone concerned. To maintain the independence of the Judiciary by preventing the use of politics as a stepping-stone to the bench, the justices finally recommended that no former minister could become a judge.
Ayyar, replying to the justices’ memorandum, took a firm line. The provisions in the Draft Constitution concerning subordinate courts must be made to work, he said, and these courts could not be put in the charge of the High Courts. An independent Judiciary was an admirable principle, but the High Courts could not be vested with administrative responsibility and then placed above criticism. As to the justices’ other comments, the Judiciary was remarkably independent, Ayyar said. There was no authority that could interfere with it in the exercise of its functions. Judges had security of tenure and could only be removed by the most rigorous procedure; no judge’s salary could be altered to his disadvantage during his term of office; the salaries and allowanaces of all justices were not subject to the vagaries of legislative appropriations, but were charged to the revenues of the Union or provincial government; and the administrative establishment of courts was fixed by Chief Justices. The Drafting Committee did, however, accept an amendment suggested by several High Court Chief Justices to the effect that any Bill passed by a provincial legislature derogating the authority of a High Court should be reserved for the President’s consideration.
The Assembly did not undertake detailed consideration of the Judicial provisions of the Draft until a year after these recommendations were presented. When on 24 May 1949 the Assembly took up Article 103 on the appointment of Supreme Court Judges, it became evident that keeping politics out of the courts continued to be a matter of great concern. One member, for example, suggested that the appointment of judges should be confirmed by two-thirds of both houses of Parliament so that their independence would not be ‘compromised’. Ambedkar defended the draft provision, saying that it was a middle way between the English system of appointment by the Lord Chancellor and the American system of confirmation of judicial appointments by the Senate. The English method was too unsupervised, said Ambedkar, and, in India, the American way too open to politics. The majority of the Assembly agreed with Ambedkar and the provision was adopted.
It proved much more difficult to resolve the matter of judges salaries, however, and the status of the provisions naming them. The quality as well as the independence of the Judiciary were considered to be at stake, and the decision, which the Assembly was left to ratify, was taken by the Cabinet. Article 104 of the Draft Constitution, it will be recalled, laid down that the salaries, allowances, leave, pensions, etc. of judges could be legislated upon by Parliament, but that until such time they should be provided for in the Second Schedule. There was a like provision for the High Courts. This article was apparently already under discussion at the highest level when it came up for consideration in the Assembly on 27 May, and Ambedkar requested that debate on it be postponed. Four days later a secret note written by Patel was circulated in the Cabinet. It recalled discussions on the issue six months earlier and said that in the light of these and of the views of the Chief Justice, the Prime Minister and he had agreed that to have ‘a first-rate Judiciary in India’ the salaries of judges should be fixed in the Constitution in order to attract ‘first-rate men to accept these appointments’. The note also listed the salaries and allowances considered to be necessary to achieve this.
The following day, Ambedkar submitted a note in which he said the salaries named by Patel were in some cases too high. He did not seem to question the idea of fixing the salaries in the Constitution. Discussion continued but no decision had been reached when the Assembly rose on 16 June. On the first day of the following session, however, 30 July 1949, Ambedkar moved on the Assembly floor a new Article 104 that provided that judges should be paid the salaries specified in the Second Schedule, but that the privileges and allowances of justices should be determined by Parliament. Until Parliament decided on them, however, they should be as specified in the Schedule. The Assembly adopted the new provision after an inconsequential debate. The schedule itself was adopted in mid-October. The salaries for justices specified in it showed that Nehru and Patel had been forced by their cabinet colleagues to lower their sights in every case save that of the Chief Justice. In the main, the salaries embodied in the Constitution were those laid down in the Draft nearly two years before.
Believing that they had established a Judiciary both independent and powerful, Assembly members then wished to give their work some permanence. There would, of course, be in the Constitution a mechanism for amending it. How, then, could the sanctity of the courts be protected? The Assembly solved the problem by including among the entrenched provisions of the Constitution all the articles dealing with the Union Judiciary, the High Courts in the states, and the Legislative Lists – on which appeared the authority for the several legislatures to act on matters concerning the Judiciary.
Although much of the Constitution can be changed by Parliament itself, the entrenched provisions require additionally the approval of not less than one-half of the legislatures of the states. Only certain provisions pertaining to the Executive and to the federal structure were also included in this special category.
The Union Constitution Committee had recommended, in a supplementary report of mid-July 1947, that the articles pertaining to the Supreme Court should require the consent of the provinces before being amended. This was included in the Draft Constitution, but no mention was made of the High Courts. By the time the Draft was presented to the Assembly in November 1948, Ambedkar, Saadulla, N. M. Rau, and several others had submitted amendments giving the same status to the provisions regarding the High Courts. The Drafting Committee agreed to this principle and recommended to the Assembly that it be accepted, and the members adopted the provision in September 1949 during the debate on the amending process. Thus the Assembly finally provided all the measures it believed necessary to preserve the independence of the Judiciary.
Excerpted with permission of Oxford University Press from The Indian Constitution: Cornerstone of a Nation by Granville Austin.