Vol. 13 · pages 681–685

648 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES ARTICLE 191 *The Honourable Dr. B. R. Ambedkar : Sir, I formally move. “That in sub-clause (a) of clause (I) of article 191, for the words ‘the High Court of East Punjab, and the Chief Court in Oudh’ the words ‘and the High Courts of East Punjab, Assam and Orissa’ be substituted.” Sir, I move: “That with reference to amendments Nos. 2567 and 2570 of the List of Amendments, for article 191 the following article be substituted :— ‘191. (1) There shall be a High Court for each State. (2) For the purposes of this Constitution the High Court existing in any Province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State. High Courts for State (3) The provisions of this Chapter shall apply to every High Court referred to this article’.” Shri T. T. Krishnamachari : We might take up the discussion of this amendment first because if this is accepted by the House all the other amendments will be unnecessary. This alters the entire contour of the article while, it also simplifies it. Mr. President : There are some amendments of which I have got notice, I shall run over them and see. (Amendments Nos. 2568 to 2577 were not moved.) Mr. President : There is therefore no other amendment except the one moved by Dr. Ambedkar. Does anyone wish to say anything about the amendment or the article ? The amendment was adopted. [Article 191, as amended, was added to the Constitution.] ARTICLE 192 (Amendments 2578 to 2580 were not moved.) †Mr. President : Amendment No. 2581 is in Dr. Ambedkar’s name. This has to be formally moved. The Honourable Dr. B. R. Ambedkar : Sir, I formally move : “That in the proviso to article 192, the words beginning with ‘together with any’ and ending with ‘of this chapter’ be deleted, and after the word ‘six’ the words ‘from time to tune’ be inserted.” Sir, I move : “That with reference to amendment No. 2581, of the List of Amendments, for article 192. the following new articles be substituted :— 192. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. *CAD, Vol. VIII, 6th June 1949, p. 656. † Ibid., p. 657. High Courts of Records

649DRAFT CONSTITUTION ‘192-A. Every High Court shall consist of a chief Justice and such other judges as the President may from time to time deem it necessary to appoint: “Provided that the judges so appointed shall at no time exceed in number such maximum at the President may. from time to time, by order fix in relation to that Court.’ ” ***** ARTICLE 193 *Mr. President : We were dealing with article 193 yesterday. We shall now resume consideration of that article. One amendment was moved but there are several other amendment. There is another amendment No. 2592 which is in the name of Dr. Ambedkar which, I think, will cover all these amendments except about the question of age. So I think that if Dr. Ambedkar moves his amendment first, probably it may not be necessary to take up these other amendments with regard to matters other than the age. With regard to the age, we may take up that question separately. The Honourable Dr. B. R. Ambedkar (Bombay : General) : I am not moving that amendment. Mr. President : Then we shall have to take up the other amendments. ***** †The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I move: “That with reference to amendment No. 2610 of the List of amendments, in clause (c) of the proviso to clause (1) of article 193, after the words ‘High Court’ the words ‘in any State for the time being specified in the first Schedule’ he inserted.” Sir, the object of this amendment is to remove all distinctions between provinces and Indian States so that there may be complete interchangeability between the incumbents of the different High Courts. Sir, I formally move amendment No. 2614 in the List of Amendment. “That in sub-clause (a) of clause (2) of article 193 for the word ‘State’ the words ‘State for the time being specified in the first Schedule ‘be substituted.’” Sir, I move : “That with reference to amendment No. 2614 of the List of amendments, in sub-clause ( a) of clause (2) of article 193 the words ‘in any State in or for which there is a High Court’ the words ‘in the territory of India’ be substituted.” “That with reference to amendment No. 2614 of the List of amendments, in sub-clause (b) of clause (2) of article 193, after the words ‘High Court’ the words ‘in any State for the time being specified in the First Schedule’ be inserted.” Constitution of High Courts *CAD, Vol. VIII, 7th June 1049, p. 661. †Ibid., pp. 664-65.

650 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES “That with reference to amendment No. 2614 of the List of the amendments, in sub-clause (b) of Explanation I to clause (2) of article 193, for the words ‘in a State for the time being specified in Part I or Part II of the First Schedule’ the words ‘in the territory of India’ be substituted.” “That with reference to amendment No. 2614 of the List of Amendments, in clause (h) of Explanation I to clause (2) of article 193 for the words ‘British India’ the word ‘India’ be substituted.” “That with reference to amendment no. 2622…………” Mr. President : Before moving that, you may formally move amendment No. 2622. The Honourable Dr. B. R. Ambedkar : Sir, I formally move: “Thai for Explanation II lo clause (2) of article 193, the following be substituted :— ‘Explanation II.—In sub-clauses (a) and (b) of this clause, the expression ‘High Court’ with reference to a State for the lime being specified in Part HI of the first Schedule means a Court which the President has under article 123 declared to be a High Court for the purposes of articles 103 and 106 of this constitution.’” Sir, I move : “That with reference to amendment No. 2622 of the List of amendments, Explanation II to clause (2) of article 193 be omitted.” The object of all these amendments 196 to 200 is to remove all distinctions between British India and the Indian States. Some of the amendments particularly amendments 199 and 200 are merely consequential upon the main amendment. ***** *Mr. President : Dr. Ambedkar, do you wish to speak on this ? The Honourable Dr. B. R. Ambedkar : No, Sir. I do not think that any reply is called for. [Only 4 amendments were adopted. Rest were rejected. Article 193, as amended, was added to the Constitution.] ARTICLE 193-A †Mr. President : Dr. Ambedkar, do you wish to say anything about Prof. Shah’s motion ? The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I regret that I cannot accept this amendment by Prof. Shah. Ill understood Prof. Shah correctly, he said that the underlying object of his amendment was to secure or rather give effect to the theory of separation between the judiciary and the executive. I do not think there is any dispute that there should be separation between the Executive and the Judiciary and in fact all the articles relating to the High Court as well as the Supreme *CAD, Vol. VIII, 7th June 1949, p. 674. †Ibid., pp. 678-79.

651DRAFT CONSTITUTION Court have prominently kept that object in mind. But the question that arises is this : how is this going to bring about a separation of the judiciary and the executive. So far as I understand the doctrine of the separation of the judiciary from the executive, it means that while a person is holding a judicial office he must not old any post which involves executive power ; similarly, while a person is holding an executive office he must not simultaneously hold a judicial office. But this amendment deals with quite a different proposition so far as I am able to see it. It lays down what office a person who has been a member of the judiciary shall hold after he has put in a certain number of years in the service of the judiciary. That raises quite a different problem in my judgment. It raises the same problem which we might consider in regard to the Public Service Commission, as to whether a Member of the Public Service Commission after having served his term of office should be entitled to any office thereafter or not. It seems to me that the position of the members of the judiciary stands on a different looting from that of the Members of the Public Service Commission. The Members of the Public Service Commission are, as I said on an earlier occasion, intimately connected with the executive with regard to appointments to Administrative Services. The judiciary to a very large extent is not concerned with the executive : it is concerned with the adjudication of the rights of the people and to some extent of the rights of the Government of India and the Units as such. To a large extent it would be concerned in my judgment with the rights of the people themselves in which the government of the day can hardly have any interests at all. Consequently the opportunity for the executive lo influence the judiciary is very small and it seems to me that purely for a theoretical reason to disqualify people from holding other offices is to carry the thing too far. We must remember that the provisions that we are making for our judiciary are not, from the point of view of the persons holding the office, of a very satisfactory character. We are asking them to quit office at sixty while in England a person now can hold office up to seventy years. It must also be remembered that in the United Stales practically an office in the Supreme Court is a life tenure, so that the question of a person seeking another office after retirement can very seldom arise either in the United States or in Great Britain. Similarly, in the United States, so far as pension is concerned, the pension of a Supreme Court Judge is the same as his salary : there is

652 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES no distinction whatsoever between the two. In England also pension, so far as I understand, is something like seventy or eighty per cent. of the salary which the Judges get. Our rules, as I said, regarding retirement impose a burden upon a man inasmuch as they require him to retire at sixty. Our rules of pension are again so stringent that we provide practically a very meagre pension. Having regard to these circumstances I think the amendment proposed by Prof. K. T. Shah is both unnecessary for the purpose he has in mind, namely of securing separation of the judiciary from the executive, and also from the point of view that it places too many burdens on the members who accept a post in the judiciary. Shri H. V. Kamath : May I say that this amendment applies not to retired Judges but to Judges serving on the bench at the moment ? The Honourable Dr. B. R. Ambedkar : If I may say so, the amendment seems to be very confused. It says that it shall appply to a person who has served “for a period of live years continuously”. That means if the President appointed a Judge for less than live years he would not be subject to this; which would defeat the very purpose that Prof. K. T. Shah has in mind. It would perfectly be open to the President in any particular case to appoint a Judge for a short period of less than five years and reward him by any post such as that of Ambassodor or Consul or Trade Commissioner, etc. The whole thing seems to me quite ill-conceived. Mr. President : The question is : “That the following new article 193-A after article 193 be added : ‘193-A. No one who has been a Judge of the Supreme Court, or of the Federal Court or of any High Court for a period of 5 years continuously shall he appointed to any executive office under the Government of India or the Government of any State in the Union, including the office of an Ambassador, Minister, Plenipotentiary, High Commissioner, Trade Commissioner, Consul, as well as of a Minister in the Government of India or under the Government of any Stale in the Union’.” [This amendment of Prof. K. T. Shah was negatived.] ***** ARTICLE 195 *The Honourable Dr. B. R. Ambedkar : I move : “That, in article 195 for the words ‘a declaration’ the words ‘an affirmation or oath’ be substituted.” It is a very formal amendment. The amendment was adopted. Article 195, as amended, was added to the Constitution. *CAD, Vol. VIII, 7th June 1949, p. 680.