Vol. 13 · pages 686–690

653DRAFT CONSTITUTION ARTICLE 196 *The Honourable Dr. B. R. Ambedkar : Sir, I move: “That for article 196, the following article be substituted : Prohibition of practising in court or before any authority by a person who held office as a judgment a High Court. ‘196. No person who was held office as a judge of a High Court after the commencement of this Constitution shall plead or act in any court or before any authority within the territory of India’.” It is simply a rewording of the same. Shri Prabhu Dayal Himatsingka : In view of the amendment moved by Dr. Ambedkar now, my amendment (No. 2632) is not necessary. ***** †Mr. President : Dr. Ambedkar do you wish to say anything ? The Honourable Dr. B. R. Ambedkar : I do not think anything is necessary. Mr. President : I will first put Sardar Hukam Singh’s amendment to the vote. If that is accepted, Dr. Ambedkar’s amendment will stand amended by this. [The amendment was negatived. Dr. Ambedkar’s amendment was adopted. Article 196, as amended, was added to the Constitution.] ARTICLE 196-A (Amendment No. 2639 was not moved) Mr. President : A similar amendment, No. 1870 was moved and discussed at great length and it was held over. The Honourable Dr. B. R. Ambedkar : I suggest that article 196-A may be held over. A similar article, (No. 103-A) was held over. Mr. President : I agree. This article will then stand over. ARTICLE 197 The Honourable Dr. B. R. Ambedkar : Article 197 also may be held over. Mr. President : I agree, this article also is held over. ARTICLE 198 ‡The Honourable Dr. B. R. Ambedkar : Sir, I move : “That for article 198, the following article be substituted :— Temporary appointment of acting Chief Justice. “198. When the office of Chief Justice of a High court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his *CAD, Vol. VIII, 7th June 1949, p. 680. †Ibid., p. 085. ‡Ibid., p. G85.

654 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES office the duties of the office shall he performed by such one of the other judges of the court as the President may appoint for the purpose’.” Shri T. T. Krishnamachari : Sir, amendment No. 2650 is covered by the amendment moved by Dr. Ambedkar, because it relates to clause (2). ***** ARTICLE 200 Dr. Ambedkar’s amendment is substantially the same ; it deletes clause (2) and only retains clause (1). Dr. P. K. Sen : I do not want to move that amenement. (Amendments Nos. 2651, 2652 and 2653 were not moved.) [The motion of Dr. Ambedkar was adopted. Article 198 as amended was added to the Constitution.] *Mr. President : There is amendment No. 201 of which notice has been given by Dr. Ambedkar which is exactly the same as the amendment moved by Mr. Jaspat Roy Kapoor. That amendment need not be moved. The Honourable Dr. B. R. Ambedkar : Sir, I move : “That in article 200, the words ‘subject to the provisions of this article ‘be omitted.” ***** † The Honourable Dr. B. R. Ambedkar : Sir, I did not think that this article would give rise to such a prolonged debate, in view of the fact that a similar atrticle has been passed with regard to the Supreme Court. However, as the debate has taken place and certain Members have asked me certain definite questions, I am here to reply to them. My Friend Mr. Kamath said that he did not know whether there was any precedent in any other country for article 200. I am sure he has not read the Draft Constitution, because the loot-note itself says that a similar provision exists in America and in Great Britain. (Inaudible interruption by Mr. Kamath) in fact, if I may say so; article 200 is word for word taken from section 8 of the Supreme Court of Judicature Act in England. There is no difference in language at all. That is my answer, so far as precedent is concerned. But, Sir, apart from precedent, I think there is every ground for the provision of an article like article 200. As the House will recall we have now eliminated altogether any provision for the appointment of *CAD, Vol. VIII, 7th June 1949, p. 688. †Ibid., pp. 693-95.

655DRAFT CONSTITUTION temporary or additional judges, and those clauses which referred to temporary or additional judges have been eliminated from Constitution. All judges of the High Court shall have to be permanent. It seems to me that if you are not going to have any temporary or additional judges you must make some kind of provision for the disposal of certain business, for which it may not be feasible to appoint a temporary judge in time to discharge the duties of a High Court Judge with respect to such matters. And therefore the only other provision which would be compatible with article 196 (which requires that no judge after retirement shall practise) is the provision which is contained in article 200. As my Friend Dr. Tek Chand said, there seems to be a lot of misgiving or misunderstanding with regard to the purpose or the intention of the article. It is certainly not the intention of the article to import by the back door for any length of time persons who have retired from the High Courts. Therefore nobody need have any misgiving with regard to this. The other question that has been asked of me is with regard to the proviso. Many people who have spoken on the proviso have said that it appeared to them to be purposeless and meaningless. I do not agree with them. I do think that the proviso is absolutely necessary. If the proviso is not there it would be quite open for the authorities concerned to impose a sort of penalty upon a judge who refuses to accept the invitation. It may also happen that a person who refuses to accept the invitation may be held up for contempt of Court. We do not want such penalties to be created against a retired High Court Judge who either for the reason that he is ill, incapacitated or because he is otherwise engaged in his private business does not think it possible to accept the invitation extended to him by the Chief Justice. That is the justification for the proviso. The other question that has been asked is whether the word ‘privilege’ in article 200 will entitle a retired judge to demand the full salary which a judge of the High Court would be entitled to get. My reply to that is that this is a matter which will be governed by rules with regard to pension. The existing rule is that when a retired person is invited to accept any particular job under Government he gets the salary of the post minus the pension. I believe that is the general rule. I may be mistaken. Anyhow, that is a matter which is governed by the Pension Rules. Similarly this matter may be left to be governed by the rules regarding pension and we need not specifically say anything about it with regard to this matter in the article itself. This is all I have to say with regard to the points of criticism that have been raised in the course of the debate.

656 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Shri H. V. Kamath : Is there such a provision in the Constitution of the United Slates ? The Honourable Dr. B. R. Ambedkar : I have not got the text before me. In the United States the question does not arise because the salary and pension are more or less the same. I am prepared to accept amendment No. 89 of Mr. Kapoor, because some people have the feeling that article 200 is likely to be abused by the Chief Justice inviting more than once a friend of his who is a retired judge. I therefore am prepared to accept the proposal of Mr. Kapoor that the invitation should be extended only after the concurrence of the President has been asked for. Shri Jaspat Roy Kapoor: May I know whether it is the intention that the interpretation of the term ‘privileges’ should be left to the Parliament ? The Honourable Dr. B. R. Ambedkar : It may have to be defined. There is no doubt about it that Parliament will have to pass what may be called a Judiciary Act governing both the Supreme Court and the High Courts and in that the word ‘privilege’ may be determined and defined. Shri Jaspat Roy Kapoor : But the privileges will be the same in the case of a judge who has been called back and that of the permanent judges. That is what article 200 lays down. The Honourable Dr. B. R. Ambedkar : Yes, but privilege does not mean full salary. Mr. President : Amendment No. 89 moved by Mr. Jaspat Roy Kapoor has been accepted by Dr. Ambedkar. I will now put it to vote. “That in article 200 after the words ‘at any time’, the words ‘with the previous consent of the President’ be inserted.” The amendment was adopted. [Dr. Ambedkar’s original amendment was also adopted and article 200 as amended, was added to the Constitution.] ARTICLE 202 *Dr. Bakshi Tek Chand : ...I hope the amendment which I have moved will be accepted by Dr. Ambedkar and that the article, as amended, will be passed by the House. Mr. President: Dr. Ambedkar, do you wish to move amendment No. 2663 ? The Honourable Dr. B. R. Ambedkar : No. Sir, I accept bakshi Tek Chand’s amendment. I do not think that any reply is necessary. *CAD, Vol. VIII, 7th June 1949, p. 697.

657DRAFT CONSTITUTION Shri H. V. Kamath : There has been an amendment to substitute “or” for “and”. The Honourable Dr. B. R. Ambedkar : There is no difference as to the substance of the article. Shri H. V. Kamath : It makes a difference as to the meaning. (Amendment by Dr. Bakshi Tek Chand.) “That with reference to amendment No. 2661 of the list of Amendments, in clause (1) of article 202, for the words ‘or orders in the nature of the writs’ the words ‘orders or writs including writs in the nature’ be substituted.” The amendment was adopted. [Article 202, as amended, was added to the Constitution.] ARTICLE 203 *The Honourable Dr. B. R. Ambedkar : Sir, I wish that article 203 be held over. Mr. President: Article 203 is held over. ***** ARTICLE 204 ***** †The Honourable Dr. B. R. Ambedkar : Sir, I move : “That the explanation to article 204 be omitted.” Sir, it is unnecessary. ***** ‡Mr. Tajmal Hussain : ...The amendment moved by Dr. Ambedkar is perfectly correct. I support that amendment. Mr. President: I want to dispose of this article before we rise. It is already twelve. The Honourable Dr. B. R. Ambedkar : I am afraid I have to go to a Cabinet Meeting at 12 o’clock. Mr. President : Then I do not think “there is much to be said either against or for the amendment. All that could be said has been said. No more speeches. The Honourable Dr. B. R. Ambedkar : With regard to the observations made by my Friend Mr. Bharathi. Shri H. V. Kamath : Sir, you have called upon me to speak. I shall not take more than 2 or 3 minutes. Shall I speak now or tomorrow ? Mr. President: Tomorrow. ***** #Mr. President : We shall now take up the discussion of article 204. *CAD, Vol. VIII, 7th June 1949, p. 698. †Ibid., p. 699. ‡Ibid., 701. #Ibid, 8th June 1949, pp. 703-04.