Vol. 15 · pages 661–665

644 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Dr. Ambedkar: There is also the possibility of all the three people being taken from the list mentioned under (a). Shri Kamath: I agree, but the clause as it stands would have precluded the majority of persons mentioned in part (b) because there were only two members of which one would necessarily be a District Judge, that is from the list under (a) or a High Court Judge, and the other would have been an advocate. And therefore, both of them would not have been advocates ……… I do agree with my friend, Mr. Satish Chandra that either the clause be held over or you waive notice for the amendment which he has given notice of. If you waive notice his amendment will be discussed in the House, otherwise it will be unfair to him and the House if his amendment is not allowed to be moved and the clause is put to the House as amended by the amendment of Mr. Upadhyay. Shri T. T. Krishnamachari: I think quite a lot is being made about a clause which does not merit so much time. Shri Kamath: That is in your view. Shri T. T. Krishnamachari: That is my view and I hope it will be the view of the House. Shri Kamath: I hope not. Shri T. T. Krishnamachari: The merit of accepting my hon. friend, Mr. Upadhyay’s amendment is that the elaborate improvision contemplated in clause 103 is done away with and I feel to that extent it is something which is commendable. The other point, as you were good enough to suggest, is whether the operation of clause 104 should continue in view of the fact that the chance of the High Court considering it as a side issue if there is a difference of opinion, is now removed……… Notwithstanding the vehement objection of my hon friend, Mr. Kamath I would allow the whole thing to pass as it is if the House approves. I commend the amendment for acceptance of the House. Mr. Deputy Speaker: Is it not a fact that as the Bill originally stood in case of a difference of opinion between the chairman and the member and the case taken up to the High

645PARLIAMENTARY DEBATES Court there was a guarantee that two judicial officers will bring to bear their judgment on the case ? That provision is taken away now and now it is open to the appointing authority to appoint both the members from among advocates. Why should there be such a radical change between the provisions of the Bill and the amemdment contemplated, which may bring in persons who may take part in politics ? Shri T. T. Krishnamachari : So long as the appointments vest in the Election Commissioner, we can leave it to him to see that the people who are appointed are above suspicion. Dr. Ambedkar: May I say a word, Sir to clear the matter ? Really the substantial question that we have to consider is whether we should retain the provisions contained in clause 103,—that is the fundamental point,—whether we want this, matter to be so dragged as to require the intervention of the High Court. The Committee all along felt that we have no idea as to the number of election petitions and we have no idea as to whether the judicial staff that would be wanted for the purpose of disposing of the election petitions would be adequate for the purpose of constituting the necessary number of tribunals. That was the difficulty that we have all along felt. Consequently we decided in the Select Committee that sub-clause (b) be added—I think you will remember that,—on account of the difficulty that was felt that if the personnel was confined only to judicial officers in the service of the Government there may be great difficulty. Therefore sub-clause (b) was brought in. Now, with regard to the question that a lawyer may be appointed who might have played some part in politics and may have developed some kind of a bias in favour of one party as against the other, or who may have been a candidate in an election that difficulty is sought to be met in two ways. The first is this: that it is not every advocate who would be eligible for the purpose of being appointed. The restrictions are very many. First of all he must be a lawyer who is approved by the High Court. You will see the words are: “a list of advocates of that High Court who have been in practice for a period of not less than ten years and who are in the opinion of the High Court, fit to be appointed as such members.” I

646 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES have no doubt in my mind that when the High Court recommends any particular advocate to be appointed to the Tribunal, it will take into consideration the political affiliations of the particular advocates whom it is recommending. Secondly, the High Court again is only a recommendatory body. The final appointment is to be made by the Election Commission and I have no doubt in my mind again that the Election Commission in order to maintain fair practices in election will further examine the list given by the High Court to find out whether any man is there on their list as recommended by the High Court who should be excluded by reason of the fact that he is a political individual or has been a defeated candidate or belongs to any particular party. I agree the question whether advocates should be admitted or not to these appointments is a seperate question. But the possibility of including political advocates as members of the Tribunal, I think has been for all practical purposes more or less eliminated by the two provisions, namely, that it has been made subject to the recommendations of the High Court and secondly it has been made subject to the right of the Election Commission to select any particular individual or not. I, therefore, think that the fear is more or less groundless. Mr. Deputy Speaker: Advocates of ten years’ standing are eligible to be appointed as High Court Judges—is it not ? Therefore, persons who are qualified to be High Court Judges will alone be selected. Dr. Ambedkar: Even after that if it is found out that he is politically interested in anybody, the Election Commission has got the power to exclude him. These are very rigorous and stringent conditions. Shri Kamath: A person when he goes from the Bar to the Bench behaves differently but here the posibility is not obviated of this Tribunal being weighted by two advocates, thereby detracting from its judicial character. Dr. Ambedkar: At that rate, why do you suppose that a retired sub-judge may not be a politician ? After all he is a retired man and is free to take part in politics.

647PARLIAMENTARY DEBATES Shri Kamath: Then delete that even. Dr. Ambedkar: That would be further reducing the available resources for appointing the Tribunal. Shri Shiv Charan Lal (Uttar Pradesh): I think, Sir, the contingency which Mr. Kamath thinks might arise was already there. Previously also, when two persons were to be appointed, one a Chairman and the other an advocate, both could be advocates. Sub-clause (a) says “a Chairman who shall be either a person who is or has been a judge of a High Court.” You know, Sir, that at least half of the Judges of the High Court are appointed from the advocates of the High Court. Suppose a man who was an advocate last year has been appointed a Judge of the High Court and he was appointed Chairman ? In that case both would be advocates. Mr. Deputy Speaker: Once he is appointed a judge he sheds his colour of an advocate. Shri Shiv Charan Lal: He might have been appointed a High Court Judge only a month before. Shri J. R. Kapoor: The only apprehension that is troubling the minds of some of my hon. friends is that there is a possibility that the two members of the Tribunal other than the Chairman, may be advocates. To remove that apprehension. I would suggest a slight amendment. Dr. Ambedkar: I have asked my hon. friend Pandit Munishwar Datt Upadhyay to move an amendment. Shri J. R. Kapoor: I suggest that part (b) of sub-clause (3) of clause 85 be amended in the following manner, that for the present words the following words be substituted: “(6) two other members selected by the Election Commission either from the list maintained by it under part (a) of subsection (2), or one from each of the list maintained by it under sub-section (2).” It means that both the non-Chairman members may be from the list maintained under part (a) of sub-section ( 2)……. This is my amendment and if I have your permission I might move it.

648 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Pandit Munishwar Datt Upadhyay: This difficulty will be solved by the omission of the words “either of” occurring in part (b) of sub-clause (3). The amendment will read as: In part (b) of sub-clause (3) of clause 35 omit the words “either of”. Shri J, R. Kapoor: That would not meet the point. Shri Satish Chandra: I would suggest the substitution of the word “each” for the word “either” in part (b). Mr. Deputy Speaker: If it is understood that the hon. the Law Minister is also agreeable to this amendment, we can make it easy. Even in item (a) of sub-clause (3) we can say that the Chairman and one other member shall be persons who are either High Court Judges or who are in the list under sub-clause (2)(a) and one other member shall be a person from the list under sub-clause (2) (b). Dr. Ambedkar: If the words “either of” remain it may be possible that both of them may be appointed exclusively from one list. We do not want that. If we drop the words “either of” then that possibility does not remain. Shri J. R. Kapoor: Even then it remains. Mr. Deputy Speaker: It does not prevent the Commission from appointing from either list. Shri T. T. Krishnamachari: It should be one from each. Shri Kamath: Instead of “from either” if you make it “one from each” it will be clear and free from doubt. Mr. Deputy Speaker: “One from each of the lists”? Shri J. R. Kapoor: So that the advocate must always necessarily be there ! Dr. Ambedkar: I have no objection. If people have so much prejudice against advocates what can I do ? Mr. Deputy Speaker: I shall put the amendments in their order. I shall first put Pandit Munishwar Datt Upadhyay’s amendment. The question is: In part (b) sub-clause (3) of clause 85, for the words “one other member” substitute the words “two other members”. The motion was adopted.