l805 Constitution |4 MAY 1962] (Amdt.) Bill, 1962 1806 RAJYA SABHA Bill I propose to amend certain articles of Friday, the 4th Mat/, 1962/the 14th the Constitution. The first article that I Vaisakha, 1884 (Saka) would like to have amended is article 74 of the Constitution. The purpose of it is to Tlie House met at eleven of the clock, make the supremacy of Parliament MR. CHAIRMAN in the Chair. absolutely definite, put it beyond the pale of discussion and debate and give a cons- ANNOUNCEMENT RE GOVERN- titutional mandate, in terms of the written MENT BUSINESS Constitution, to the President that he is bound by the advice given by his Council of THE MINISTER OF PARLIAMENTARY Ministers. When I come to the provisions of AFFAIRS (SHRI SATYA NARAYAN SINHA): the Bill, you will see that this requires to be Sir, with your permission, I rise to announce amended in order not to leave any ground that Government business in this House for ambiguity or debate. during the week commencing 7th May, 1962 will consist of: The second amendment relates to article 123 Further discussion of the General Budget for which gives the President the ordinance- 1962-63, and making or legislative power. My object through this amendment is to restrict the Consideration and return of the ordinance-making power of the President, at Appropriation Bill relating to the Demands least in respe:t of certain cases where the for Grants (Railways) for 1962-63. fundamental rights of the citizens are involved.

"RESULT OF ELECTION TO My third amendment relates to the THEINDIANCEN TRALSUGAR appointments of Judges including the Chief CANECOMMITTEE Justices of the High Courts and of the MR. CHAIRMAN: Shri Sonusing Dhansing Supreme Court. They relate to article 124 and article 217 of the Constitution. The Patil being the only candi-•date nominated m for election to the Indian Central Sugarcane underlying principle behind y amendment is Committee, I hereby declare him to be duly that the judiciary should be completely sepa- elect-member of the said Com-jmiuee. rated from the influence of the executive and that in the matter of appointment of the Judges of the Supreme Court and the High THE CONSTITUTION (AMENDMENT) Court, the Council of Ministers must not be BILL. 1961 (TO AMEND ARTICLES 74, given any say whatsoever. I take, by my 123, 124, 217 AND THE SECOND amendment, the Governor and the Council of SCHEDULE)— Continued, Ministers who come through the Governor, out c'f the picture altogether. I propose to SHRI BHUPESH GUPTA (West Bengal): Mr. leave the matter entirely in the hands of the Chairman, Sir, this measure —the Judges themselves to settle how they should Constitution (Amendment) Bill, 1961—1 select the Judges and so on. Naturally I do not brought up during the last Session. Actually alter the other provision of the Constitution its consideration was taken up during the last that the President appoints them but the Session and notice of it was given much President in this matter would be guided only earlier. But for the benefit of the new Mem- by the advice of the Judgeis and the Chief bers who have come here, I would like to just Justice and of nobody else outside the briefly state or re-state the objectives of this judiciary. I shall explain the-provisions later. Bill. Through this 212 RS—1 1807 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1808; [Shri Bhupesh Gupta.] Lastly with regard to the reduction of My fourth amendment relates to Part II of the salaries, I have social objectives in mind. Se:ond Schedule of the Constitution, I want, Reduction of income disparities is the by this amendment, to cut down the salaries declared policy of the Government and I of the President of the Indian Union as well think that we should' begin at home. as of the Governons. I have suggested, as Therefore at the highest level, especially you will see, that the President's salary where consti^ tutional Heads are there, the should be brought down to Rs. 2,500—a very example should be set. It appears to me that practical view I have taken in this—and the example speaks louder and more eloquently Governor's salary should be brought down than precepts that we may issue from time to from Rs. 5,500 to Rs. 750. I consider Rs. 750 time even from very high pedastal. Therefore to be an excessive amount for the post of the these are simple propositions. I know they Governor but non-the-less, out of generosity, give rise to controversies. I have gone I accept Rs. 750. Now these are my through the proceedings of the Constituent amendments. Assembly and I note that there was a great deal of debate and controversy. I have read all the=e thing's. I suppose there will be controversy here but I would ask hon. Members to judge the proposals, to judge the

propositions on merits, forgetting that a SHRI BHUPESH GUPTA: The salary of Communist Member is moving the Bill. I do Member of Parliament you reduce as much not say that all of you are anti-Communists ais you like and I will support you. Mr. or touchy about Communism or allergic to Chairman, each amendment in itself would things coming from a Communist, but I think justify honest, searching, self-critical and we should judge things on merits. Let there instructive debate in the House because each be a public, frank discussion here on the floor of them relates to a matter of public policy. of this House over these rather important and Take the case of the supremacy of vital matters. If I may quote the words of a Parliament. I think it will be agreed on all great American Statesman of the 19th hands that we stand for the supremacy of Century, '"With malice towards none and Parliament. with charity for all" I begin to introduce the subject 'for consideration by hon. Members in Similarly the question of the ordinance- this House. Now, why am I seeking an making powers of the President is there. amendment of the Constitution? I am seeking Here again I say that the liberty of the it because whatever might , have been our citizens is involved and when Parliament is views then, at the time of the framinig of the not in session, the President should not really Constitution, when we passed it or put our have power but if he had any power, that signature on it, now that ten years of should be exercised under very great experience has accumulated, it is necessary restraint, and certainly not to curtail the that we carry out some re-appraisal of some Fundamental Rights. That again is a matter of the provisions of the Constitution in the of public policy. With regard to the light of our own experience of life and in the appointment of Judges, that takes us to a light of the social objectives that have got rather important aspect of public more and more defined with the passage of administration or public life, namely, the time in the course of the last ten years. For separation of the judiciary from the example, when I was reading the debates in executive or rather, if I may put in this the Constituent Assembly one the question of context, the liberation of the judiciary from salary and emoluments, of the Governors the suffocating hands of the executive. This and the President,, again h a noble principle that is there behind this amendment. 1809 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1810 very few hon. Members, in fact none it constitutions which are presidential in nature. seems, spoke about income disparities. What At the same time we have adopted, in some I want to convey to the House is that this respects we have swallowed hook, line and aspect of the social objective namely, sinker, the British Parliamentary system. reduction o'f disparities in income which we Therefore, we blended and we combined the have set forth in the objective^ of the Second two into one in favour of the Parliamentary Five Year Plan and which we still acclaim system. That is why we introduced the which is really a very strong and powerful President. We took the powers that are objective before us, was not there at that time enjoyed by the American President and in the forefront in the mind of the framers of brought him in line with the Parliamentary the Constitution or those who took part in the system and when we had the President,, we debate at that time. Are we then to be guided shifted the centre of gravity of public by the consideration and thoughts of ten administration, the governance of the years ago or are we, in the light of our country, from the President or his Cabinet as experience, in the light of the feelings of the in the United States o'f America to the people, in the light of what we have Parliament and the Council of Ministers. ourselves put down in our Plan objectives to That is how we view this matter. review the matter again to see how we can bring them in line with those objectives? SHRI AKBAR ALI KHAN (Andhra That is how we view this matter. Similarly, Pradesh): Those were the only two best Sir, at the time of the framing of the democratic systems. We could not fincl Constitution we did not have a Law anything else. Commission. As you know, after that a Law Ccmmis-sion wat; appointed and the Law SHRI BHUPESH GUPTA; There was another Commission made big and voluminous re- democratic system at that time, Mr. Akbar ports on the working of the judiciary and Ali Khan, and that was in Hyderabad. I made a whole number of recommendations. should have thought that you should have Naturally, we have to take this into account said "three democratic systems." Now, that is and see how far our constitutional provisions not good. There were many other systems fall in line with the recommendations, should and learned men like Mr. Akbar Ali Khan we think these recommendations are should know, and the world is slightly bigger something that merit our consideration. This than the United States of America and the is how I view this matter. Then again, when United Kingdom put together. I suppose we embarked on from British rule to our everywhere you have a constitution. Republic, we created the post of President and then we were guided more or less by a Now, that is what we did. Let us start combination of the two systems, the reviewing this thing. Why do I ask for the American system and the British system. We amendment? Now, I should like to come to combined the Presidential rule so to say each of my amendments. I take up nominally with the Parliamentary system. amendment of article 74 of the Constitution. We do not have a King fortunately. I do not This is a very vital provision in the Consti- know if the Swatantra Party ever came to tution. I do not think all of you have got the power, it would like to have a monar"h but Constitution with you and so I would just we do not have one now. At the same time, read out the few lines; we have given the President ample powers. "There shall be a Council of Ministers with He is the Supreme Commander of our Armed the Prime Minister at the head to aid and Forces and this corresponds to the position advise the President in the exercise of his occupied by the President in the American functions." Constitution or other 1811 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1812 [Shri Bhupesh Gupta.] It is a very important is bound by the advice of the Council of phrase, "aid and advise the President in the Minister here. I do not accept that reasoning exercise of his functions". Then see what here. I share the view that it should be so but happens. I now come to article 75: "The" you should not take it for granted. This is Prime Minister shall be appointed by the what I say. After all. England does not have a President and the other Ministers shall be ap- written Constitution although parts of the pointed by the President on the advice of the Constitution have come to be in'.orporated Prime Minister." I would like you to note through legislation, customs, case law and so article 75. It makes it obligatory for the many other tilings but the fact of the matter is President to appoint only such Ministers as that England does not have a written are recommended by the Prime Minister. Constitution beginning with the Preamble and ending with the Schedules. The English That is why it is said 'lihall be appointed"; it Constitution has been evolved in the course is not "may be appointed". No discretion of centuries of struggle between the whatsoever is left to the President. The contending classes where convention, President has no other alternative but to ap- precedents, case laws, even civil war, have point, if he would appoint any at all, the each played a part. You have not only the person whom the Prime Minister has Magna Carta of 1215 but you have also in the recommended but the moment we come to English constitutional system practices for look at article 74, the Constitution does not examDle. one person chopped off the head of say what happens if the advice is not the King and summoned the Parliament. You accepted. It does not say that the "President have Laski, Ivor Jennings and other writers. shall act on the advice of the Council of Now. who authorised the summoning of Ministers in the discharge of his functions." Parliament?—Parliament itself. How does it It only says that "There shall be a Council of happen? Therefore, it is the political thing Ministers...". It is only a statement, a that determines it. Then you have later on the description that there shall be a Council of Glorious Revolution and so on. Very many Ministers with the Prime Minister at the things took place head. This also js an elaboration of that Then in the 19th century they had a series of description; then comes the phrase "to aid reforms and they evolved this process. Now. and advise". What this details is what this we cannot, have that. First of all. we do not Council of Ministers will do.... "to aid and visualise three centuries or four centuries of advise the President in the exercise cf his trouble to evolve a convention, nor is there functions". This is what we get in the entire any need for it. Secondly, we have started article in Part V of the Constitution before with a written Constitution, with a we pass on to the provision relating to the parliamentary system and we are living in an Attorney-General for India which is dealt age where the laws have to be codified. Even with in article 76, These two articles, articles the civil laws have to be codified. The days 74 and 75. do not in any way say that the when the ca5e law had Drecedence are gone. President is bound by the advice of the It is still there but the emoha-sis today is on Council of Ministers and we are having a the codification of the civil laws of the written Constitution. Here, a few points have country. Therefore the position is. if you been raised. One school of thought says, agree that this is your view that the President what is the need for stating it? After all. we is bound by the advice of the Council of are going by the British system and in Ministers, what is the harm in nutting it England the Crown is bound bv the advice of down in writing? Nothinff is going to be lost. the Council of Ministers. It follows, You have to put in only one or two words. therefore, that the President That is all what I suggest. 1813 Constitution [4 MAY 1962 1 (Amdt.) Bill, 1962 1814

SHRI K. SANTHANAM (Madras): Somebody SHRI BHUPESH GUPTA: There is no will go to the Supreme Court; that is the only provision. I have read your speeches and I objection. will come to that because I have paid a little attention to the precious words that you SHRI BHUPESH GUPTA: It is better to go to uttered there in the Constituent Assembly. We the Supreme- Court than to go to the have too many Founding Fathers of the military; to the armed forces. It is better to Constitution. The patrimony of the take to the path of fighting the battle of Constitution does not suffer on that account. Constitution in the precincts of the Supreme Anyway, this is the position. Mr. Santhanam Court rather than getting the armed forces to has raised the point; it is very good. start goose-stepping in the streets of Calcutta, Now, here this matter is being debated in the Bombay and Delhi to usurp authority and country by the jurists, by the lawyers, by the power. But the question does not arise at all politicians and I shall read out what a very if I make it expressly clear. Mr. Pathak high dignitary of the State said at the Law can help us. He knows the art of Supreme Institute towards the end of November 1960. Court. Why does not. he help us in giving us He suggested that that provision, that is, a provision in a manner which will leave article 74, should be reconsidered; the no room for interpretation of law and which President's powers should be reconsidered. will be explicit and clear so that no judge He went on: "This is necessary in view of the will consider it worth while to go into this fact that our conditions and problems question and any attempt to raise the matter in are not on par with the British and it may the Supreme Court would be summarily not be desirable to treat ourselves as rejected? It is possible to do so. Anyhow, strictly bound by the interpretation which Mr. Santhanam knows very well that that has been given expression to from time to danger is not there. Now ysu can go; I say, time in England." as it is, you can go. Today Jawaharlal Nehru is there. Today there may be a good SHRI G. S. PATHAK (Uttar Pradesh) : Is it President. But assuming—I am reconsidered or considered? discussing from an academic point of view— SHRI BHUPESH GUPTA: Anyway, that is that we do not have a Prime Minister of that for Mr. Pathak to say. For me, I must take type or President of the type that we have in cognisance of it. mind, let us suppose that somebody goes to the Supreme Court for raising this matter and SHRI G. S. PATHAK: I was present there. says, 'My petition is that the President is not That is why I asked. bound—on a certain matter—by the advice of SHRI BHUPESH GUPTA: I am a politician the Council of Ministers'. Then what minus lawyer but Mr. Pathak is a politician happens? Suppose somebody takes lawyer. Let him fill in the legal gap if I err recourse to the Constitution of India and says, on that score. 'My Lords....'—I do not know why they call My Lords anyway—find out where in the "We have got used to rely on the precedent Constitution it is said that the President is of England to such an extent that it seems bound by the advice oT the Council of almost sacrilegious to have a different inter- Ministers, then the law of interpretation will pretation even if our conditions and follow. circumstances might seem to require a different interpretation. I do not think it is necessary for me to formulate the problem SHRI K. SANTHANAM: If Mr. Bhupesh precisely or in definite terms. I hope I have Gupta will read the Constitution, it is said there that nobody shall go to the court on the advice tendered by the Council of Ministers. 1815 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1816 [Shri Bhupesh Gupta.] it or not? We should consider it in all our given enough indication of the questions wisdom, in all sincerity and honesty because which I have in mind and I leave it to the it is not a party issue at all. It has been said Institute of define more precisely the scope that it should be studied. I am in the midst of of the investigation so that more or leas that study and I would like hon. Members to precise answers may be formulated. I put share that study with me and bring to bear on forward this subject purely as a subject of it greater light and wisdom than I am capable study and investigation in a scientific manner of. Then what happened? Immediately after so that we may know exactly what the scope that, reactions started in the country. All the of power and functions of the President are." files are here. One gentleman who was also Head of the State or what yju call, the This is what he has stated. Now, a very high ) Governor-General of India, Shri C. dignitary of the State is of the view . . . Rajagopalachari, rushed to make a statement SHRI M. RUTHNASWAMY on the 30th November, I960, within five days (Madras): Who says that? or so of the speech of the President at the SHRI BHUPESH GUPTA: In this connection Law Institute. He made the statement at it may be pointed out that there is no Bangalore. The former Governor-General of provision in the Constitution which in so India, now the Leader of the Swatantra Party many words lays down that the President with the blessings of the Maharaja of Jaipur shall be bound to act in accordance with the SHRI SAWAI MAN SINGH advice of the Council of Ministers. The (Rajasthan): I am not to give him blessings. relation between the President and his Ministers is laid down in articles 74. 75 and SHRI BHUPESH GUPTA: I am very glad to so on. Article 74 lays down— hear that. The less of your blessings the "There shall be a Council of Ministers with better for Mr. Rajagopalachari. I am glad to the Prime Minister at the head to aid and hear it is not there. He said in his advise the President in the exercise of his statement: functions. The question whether any, and if "It is a matter of some satisfaction that so what, advice was tendered by Ministers to President Rajendra Prasad has suggested a the President shall not be inquired into in any thorough examination by jurists of the duties court." and powers of the President of the Indian Union." Now, who has said all this? It is not a small man, a poor man like me. It was stated at the There was this immediate reaction. The Law Institute by none other than the Prime Minister did not say anything. Other President of the Indian Union himself. Now, politicians did not say anything but the it is not a question of who said what. I am politician of tht laissez faire, the politician of concerned with the proposition that set the the big enterprise, the politician of the ball rolling, the principle that set the ball Swatantra Party, was quick enough to react rolling. Therefore what power the President to it and seize it. Define the powers of the has or has not got in relation to the President. It was put on the melting pot after Prime„Minister was questioned, not by ten years of the Constitution. Then, Mr. N. Bhupesh Gupta of the Communist Party or C. Chatterjee, another lawyer—who became Mr. Akbar Ali Khan of the Congress Party, the President of the Swatantra Party, but but by the President of the Indian Union. Are when he saw that it was difficult to win in we to take note of Bengal as the Swatantra Party President, suddenly l817 Constitution f* MAY 1962] (Amdt.) Bill, 1962 1818 he became an independent and lost also on the ball was set rolling so publicly, so openly that score—made; another ,-latement. He and in such a manner at the Law Institute, the said that the President's powers should not be debate is going tax in our public life as to questioned and his suggestion was that the what the power of the President is. This is the President was not bound by the advice of the question. I know there are two schools of Council of Ministers. thought. One school of thought thinks that the Then, what happened? Here in this very President is a constitutional head bound by House, only four days ago, another, the advice of the Council of Ministers. if I may say so with all respect, Another school of thought is that the English gauleiter of the Swatantra Party—I am example or practice does not apply here and using a German word— Mr. Dahyabhai that the President has much greater powers in Patel, got up to praise the President and our Constitution, at any rate he shoul* have you cannot beat him in expressing good greater powers in our Constitu> tion. than the sentiments for that great son ai India. But British Crown. Are we to allow this debate to what did he say? He brought in politics. continue? ' When are we going to stop it? We At page 189 of the proceedings it says: — "I must resolve this once and for all. Either you think it is due to him that the Government say it is a debatable matter—I can understand do take note of the sentiments that he hon. Members debating it—or you say that it himself expressed a few months ago, I think, is not a debatable matter at all. Then, clinch it while he was speaking before the Law in that way. Society, as to what state the President has been reduced to under the present method I have suggested In my Bill that the President is bound by the advice of the Council of in which the Constitution has been Ministers. Now, I would like to ask you. hon. working. He has his views. But he cannot Members opposite, what you will do now. function. He cannot do anything. Is this Now, you might say that we need not debate right, -this procedure or this interpretation of it. I can understand your feelings, because the Constitution as it has been going on you live under conditions fortunately for the steadily in the last twelve years, the country which give you that assurance. I reduction of the President to a total non- share that assurance with you, because you entity? Is it worth while?" have a Prime Minister who believes in the This is the Swatantra Party's statement on the supremacy of Parliament, a great personality, floor of the House on the 30th April, four apart from being the Prime Minister. It will days back. not be easy for anyone as long as he is there Now. my friend here, Mr. Vajpayee, is to subvert the Constitution and turn smiling sitting. It is very good that I should parliamentary institutions into a rubber stamp have him here. Only day before yesterday he for certain authoritarian regimes. That may expressed more or less the same concern that not be possible. You have also experienced the President was not having the power that Presidents and so on and in the next few he would like to have. He spoke in eloquent years also you may not have any Hindi and naturally not being very proficient apprehension on that score. But we are today in that language. I might have missed some acting here and functioning here not only for of the things, but I got the impression that ourselves, but also for the generation that is his heart was also bleeding. Now, there we bom or that is yet unborn. This is what I say stand. Here you have now a complete and this is the time, before it is too late, to picture. make the mind of the nation

Then, Mr. Chairman, here are cuttings from the newspapers. Ever since 1821 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1820 [Shri Bhupesh Gupta.] for granted. It has to be built up, with known. Constitutional provisions do not legislation, with necessary merely lay down something. They help to constitutional provisions and above all in remould public opinion, reorientate the the political life of the country. That is how I thoughts and ideas of the people. They try view this matter. What does our experience to become the central point of attracting show? In August, 1959 suddenly we read in people's ideas on constitutional matters. the newspapers that General Thimmayya had They have an educative value that way. written a letter to the Prime Minister, which Therefore, it is important that we go into had been published in the newspapers. that question here and now and settle it. The matter came up m the other House and immediately the suggestion was that the Mr. Chairman, parliamentary democracy Defence Minister should resign. There should not be taken for granted. Some hon. were people who stood for General Thim- members opposite take tilings for mayya rather than for the Parliamentary granted. I share their hope and, in institution and supremacy of Parliament. fact, I shall be one with them in We know how the drama was enacted. It defending the. parliamentary institution was the Prime Minister who came and we have been, I believe, doing it during forward and said that he stood by the the last ten years. Only the other day in the supremacy of Parliament and then he had to President's Address it was suggested that the say that he did not like General Thim- parliamentary institution has come to stay, mayya's resignation business. Yet voices has struck firm roots and gained were raised that General Thimmayya confidence and so on. I do not deny the must be given quarter and the Defence positive gains that we have made over the Minister a membex' of the Council of ten years in the course of our Ministers, carrying with him all the attributes parliamentary practices and so on. It of collective responsibility would have redounds to the great credit of our people to resign or do some such thing to that ten to eleven crores of people go to the vindicate the honour of General polls peacefully despite big money Thimmayya. Did we not experience it corruptions and so on, and cast their votes. It ourselves? Yes, we did. It was in a way a is there I see their goodness, it is there I see challenge. I have got what the Prime hopes of the parliamentary system. But then, Minister said on the 2nd of September or in you cannot take it for granted. The the beginning of September in that House in parliamentary system, as you know, existed reply to the various points that were in other countries also and it has been in the raised from the Opposition side, not by us, but recent period undermined in Thailand, by certain others in the Opposition. He Pakistan, Iran, Syria and even in Burma. said that the supremacy of And you know that two attempts have Parliament was to be maintained and been made to undermine it in Ceylon, we shared his opinion. We our neighbour, first in the assassination supported him here and in the other of Mr. hiandaranaike, the Prime Minister" House. This is an example. I think wise at the time and secondly in an attempted men take note of such developments. Wise coup d'etat recently by certain men pay heed to the warning before it is too officials when they wanted to arrest the late. And do we not know that at least on two entire Cabinet. Now, I do not say that such a occasions in 1958 or so the matter was thing is going to happen here tomorrow or the referred to the Supreme Court for opinion day after. All I would like to impress on hon. as to what were the powers, in regard to Members of this House is that the parlia- certain matters—I think in one case it was the mentary system must not be taken Hindu Code Bill and in another 1821 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1822 case something else—of the President and taken into account. Big money is coming the Council of Ministers and the Prime in in a big way. Yesterday the Prime Minister? It appears that the opinion Minister revealed while answering to my came and the Judges differed. One Judge query that they got Rs. 16 lakhs from Tatas, said that the advice was binding or some Rs. 4 lakhs for the A.I.C.C. and Rs. 12 lakhs such thing. He gave an opinion in favour of for others. That is revealed. Here is the Prime the supremacy of Parliament. Another Judge Minister, the leader of the country, who did not agree with that opinion. I am will admit it, but a time may come when we not concerned with it, but I only point out will not have the Prime Minister who will this thing. There were these things at have the courage to get up and say: "Yes, we that time. Two such references were made took Rs. 16 lakhs from the Tatas". It may be. to the Supreme Court Judges as to But money is coming. My information is where things stood. Therefore, in our this. It is not Rs. 16 lakhs, it is to be country also we see this thing. In this multiplied by some thing. This is my connection today after the third general information. But in: this respect only our elections we should he even more friend, Mr. J.R.D. Tata, can help us. Anyway particular about our parliamentary this is the thing. Money is coming. I am not institutions. Well, remember, 1 crore 60 concerned with who gets this money from lakhs of people, for whatever reasons, these people, the Tatas, I am not concerned have voted for the Parties of communalism with the Party. The point is that big money has and right reaction in the country. The Parties invaded our elections and the processes of that do not believe in parliamentary democracy despite the warning given by Mr. institutions and systems got 25 per cent of Justice Chagla, Mr. Justice Tendulkar, the total poll. It is not a small matter. Today and Mr. Justice Mukherjee of the Calcutta High after fourteen years of independence and ten Court. That is so. Their warning has been years of our Constitution, I think in four brushed aside. That is how it comes in, mdney, feudal influence. I know of a State where it States, Bihar, Orissa, Rajasthan and is said that a multimillionaire spent several Gujarat, we have the Swatantra Party as the lakhs of rupees to return to the Rajya Sabha. main opposition, and in two States nay friend's Party as the main opposition. Now I MR. CHAIRMAN: You come to the know it is not easy for them . . . amendment. AN HON. MEMBER: What about your SHRI BHUPESH GUPTA: This point is very Party? important. Now, Sir, the money has come in. Multimillionaires spent several lakhs to get SHRI BHUPESH GUPTA; It will not be so returned to the Rajya Sabha. I spent Rs. 2h easy, I know that. But you have to take note which was taxi fare from my office to the of this fact. I have got all these figures here. Bengal Legislative Assembly, even less than These communal and right reactionary that. That is all. Sir, you have to take note of parties got 1 crore 60 lakh votes. It is not a this thing. Now the real point is this. Suppose matter of joke. It shows their capacity to there are in a large number of States a number manoeuvre, their capacity to consolidate, of legislators belonging to Parties which their capacity to exploit the backward, feudal believe iri right reactionary theories, communa- sentiments of the country. Am I or am 1 not lism, and so on, and do not have faith in to take note of this, and am I or am I not to parliamentary institutions or would like the relate this experience of mine to the future of country's will to be put back, they are the voters our parliamentary institutions and see what in the PresidentiPl election. Ther may be a: should be done at every stage to protect it, to e defend it, to sustain it, to uphold it? Therefore, this has to be 1823 Constitution [RAJYA SABHA ] (Amdt.) Bill, 1962 1824 [Shri Bhupesh Gupta.] Constitution General Eskander Mirza took power, subverted the Constitution and ipersonality who can get unanimous dismissed the popularly elected Assembly, support. But in future we may not how he took over and then ultimately have such a personality. There may be how he was chucked out by President •a contest. Then whom will they sup Ayub Khan. The gentleman is now in port? If there are too many members, London. This is the position. Therefore, -they can pressurise on that score. here there is every need for the provision. All That should be borne in mind. There 1 say is that the provision is vitally fore, a contradiction may arise bet important for the country today. I want to go ween the President on the one hand and tell the people, no matter which Party I .and the Prime Minister on the other. may or may not belong to, that Then what happens? Political parliamentary institution and its supremacy influence gets entrenched in this manner in this are an article of faith with us who function country, the influence .-of reaction. They will today in the political set-up of India. It should try to take cover under this Constitution to uti- be said. Any utterance made against lise the President against the Council ■of that, any utterance made in order to Ministers in order, in the first instance, to detract the authority of Parliament or make it cripple its power and then finally to subvert subservient or to create parallel authorities and undermine all parliamentary institutions. side by side with the authority of Parliament We have seen such examples, and let us get should be countered ideologically, back to the land of liberty, equality and politically and even by the struggle of fraternity. Only recently, was not the Fourth the people. We want ideological rearming, if I Republic of France subverted by an may ay so, by way of acceptance of this amendment of the law of the land in order to s assurance. I know that if the situation went transform the Communist Party which was the bad, even this assurance will not first Party in French Parliament into a Party help. I know that, but that with only 15 members, by changing the strengthens our hands not to allow electoral laws and by bringing in all kinds of such a situation to arise at all. It strengthens combination, although the Party still gets our hands to rally people to the overwhelmingly the largest number of votes supremacy of Parliament. I cannot but recall compared to any other party? in this connection the fatal provision in the Weimar Constitution, artic'e 48 of the Weimar Constitution, which was How am I to assure myself that some people adopted by post-war Germany, after the First might not do such a thing here in the future? World War. There it had the very The other day they had elections in Pakistan. provisions. Bourgeoisie politicians and Basic democracy, democracy at bayonet point, political philosophers acclaimed it as one wonderful democracy. Nominations are filed, of the finest constitutions ever produced returning officers are there, elections are by the ingenuity of bourgeoisie. But it there, and then they have a wonderfully had a provision that the President could managed House of President Ayub Khan. I do assume power and pass orders and do things not say that we are going to have it. But then in disregard of Parliament and of the it is all done in the name of democracy, in the Council of Ministers or the ministers, as name of parliamentary institutions, in the they were called. He could do so. That name of the Constitution. We 1 know how power was given. Ground? Public security. under the Pakistan Constitution which is Well, what happened? The Weimar comparable in its provisions in some respects Constitution was never annulled by a law or to our by an enactment of a legislation or through a constitutional process. The 1825 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1826 Weimar Constitution was never cancelled. amendment here that speeches on Bills Yet, it was found to be lost and the Nazis should also be limited in time? marched, they trampl-•ed it under their feet, SHRI BHUPESH GUPTA: No. Let them we know. Von Papen got up one day and give an amendment. I may support it. Then I gave power this was went ahead with this Ordinance which they issued. Therefore, we are 1835 Coyistitution [ RAJYA SABHA ] (.Amdt.) Bill, 1962 1836 [Shri Bhupesh Gupta.] in a position to meet. ments will be raised by them I am very glad It has been amply seen that even though that Mr. Pathak is here. He has preferred the people had gone away, hardly they had Parliament session today to the Supreme reached home, that on telephone they were Court. You can understand the importance called back, why can you not do that here? I that he attaches to it, even in very material cannot arm the President with this power terms. I am so glad that he is here. What do I which means power in the hands of the want to point out? I want, as I said in the executive to bypass the Parliament of the beginning, to take away the Chief Minister country, the will of the people and then out of the picture altogether in the matter of going. about throwing its weight and using appointment of Judges. Mine is a very its sphere of power in order to suppress the simple amendment. Again, to quote Mr democratic movement of the vworkers. Datar's favourite expression—I am quoting We do not want an emergency to be met that just your phraseology, Mr. Datar—as to how way. The straightforward way is that Judges should be appointed: calling Parliament to .•session and the "Provided that no advice from the Council of wisdom of 750 people should be mobilised Ministers shall be called for or otherwise there in order to counsel the Government to entertained by the President in matters of take the right action so that we can meet the such appointments." Very forthright. I do emergency and see how best in the not mince matters, as you know. Here interests of the nation and the people ■we also I am very forthright. My amendment can evolve correct measures to i lace relates to article 124 of the Constitution such situations. This is a blow ■to-.the which says: Constitution, if you ask me. The Congress, in all its previous resolutions, were opposed "There shall be a Supreme Court of India to this kind of ■ordinance-making power. consisting of a Chief Justice of India and, What was "bad under the British is equally until Parliament by law prescribes a larger bad from the point of view of principle, ■ at number, of not more than seven any rate, under this Government. What was other Judges." I just want to put in my practised under the British for suppressing amendment at the end of this article. the democratic movement is also being Nowhere it is said, "just because he comes in practised by this -Government to suppress or the Government comes in". You know the democratic movement. This is it very well. Therefore, I say that it what I submit in all sincerity and should be expressly stated. Why did I say humility to the House for its consideration. this thing? I want this ordinance-making power to go, or at least to be restricted. I have two amendments. My amendment in relation to the High Court should be taken 1 then come to the judiciary. When I speak together with the amendment in relation to the .on judiciary, I am heartened because I see Supreme Court. In article 217 I say that the before me great legal figures. Shakespeare words "the Governor of the State" shall be said, "You Cassius had a lean and hungry omitted. Now article 217 makes another look". I do not say that the lawyers here have curious provision: lean and hungry looks. Nevertheless, they are here. "Every Judge of a High Court shall be appointed by the President by warrant under SHRI B. K. P. SINHA (Bihar): They liave his hand and seal after consultation with the very fat looks rather, not lean -and hungry. Chief Justice of India, . . ." SHRI BHUPESH GUPTA: You know that. Now, the lawyers are here. Madam, I know that many argu- 3837 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1838

1 am all for it. It goes on to say: SHRI BHUPESH GUPTA: That is right, "... the Governor of the :Siate, and, m the Madam Deputy Chairman. That makes my task case of appointment of a Judge other than simple. Now you see there are three parties to the Chief Justice, the Chief Justice of the the dispute before you—the Law High Court, and shall hold office until he Commission, myself and Dr. P. N. Sapru. We attains the age of sixty-years." are three now. I thought that I was debating only with the Congress Party. But you see now SHRI SUDHIR GHOSH (West Bengal): how the position is. Well, I have the greatest Madam, how long is Mr. Gupta going to regard for his learning, wisdom and speak, so that we can adjust our things foresight and when he expresses an accordingly? opinion, whether I agree with him or not, I attach the greatest importance to it and SHRI BHUPESH GUPTA: You can safely therefore, this is a proposition which is go and have your lunch. After I finish you liable to be debated. It may give rise to can come to Congress benches. But tell me, diverse thoughts and different approaches. are you still independent or a I may not agree, but I would not call Congressman? anybody any names if he disagreed with me So, this is the position. The crux of the or violently criticised me. That is what I say. matter is that I want to take the executive But let me deal with the Law Commission. I out of the picture. I think Mr. Pathak will am a layman and I am frightened of law agree with me in this matter. 1 tell you why. courts. When we have got the Law These are very important matters because it Commission appointed by the Government . as not the wording of the law that matters. It . . is the other things that matter, the consideration. SHRI AKBAR ALI KHAN: You are a Here, Madam Deputy Chairman, I shall now barrister, take to the Law Commission's Report. I am suggesting something which is not alien to SHRI BHUPESH GUPTA: Well, must Mr. legal thinking in the country. My Akbar Ali Khan try to remind me, when I am amendments fall more or less in line with the trying to forget that I am ono? approach and recommendations of the Law Commission. Anyway, here is a body of men with whom you may disagree. But they went SHRI P. N. SAPRU (Uttar Pradesh): The Law into this proposition and came to certain Commission has stated completely erroneous conclusions, findings and so on. So you have views. I am surprised at th ignorance e to consider them. But, Madam Deputy displayed by the Law Commission in using Chairman, the tragedy is that though it is three the word "concurrence". and a half years since this Report was SHRI BHUPESH GUPTA: I am also submitted, the Government have not told us surprised that Mr. P. N. Sapru should have what they are going to do on their remarks expressed surprise even before he has heard and recommendations. How long will they me. Now, let .-us come to that ignorance. Of delay it? They can say: "No, we do course, there is ignorance from a particular not accept them." Be finished with it. ipoint of view. Well, to be or not to be seems to be the case. What the Law Commission says, they are ISHRI P. N. SAPRU: With all res-ipect to the accepting some, some of their recommendations personnel who constituted the Law perhaps. But they should tell us why they Commission, I venture to think that they did are not accepting the other not know what they were writing about it. recommendations. We are entitled to know it. 212 RS.—2. Lakhs of 1839 Constitution IRAJYA SABHA ] (Amdt.) Bill, 1962 1840

[Shri Bhupesh Gupta.] rupees were spent on to certain other very relevant observations the Law Commission to produce this Report which would underline the-urgency of going and three and a half years is a long enough into this whole question, not merely for period for any intelligent, vigorous person to accepting the amendment that I am come to a conclusion, whatever may be the suggesting, here today. On page 69, paragraph conclusion, on merit. They should come to 8,. the question of the appointment of Judges, some conclusion. Why do they keep their etc., came to be discussed and' this is what is mind open? I don't think they keep their mind stated in the Report: open either. They do not want to implement some of the recommendations of the Law Commission because they do not suit them, "We refer to the selection of unsatisfactory and they do not have the moral courage to judicial personnel. We have visited all the tell the country: "We do not accept the re- High Court centre-, and on all hands we have commendations of the Law Commission." heard bitter and revealing criticisms about the The fact is, silence is found to be golden in appointments made ta High Court judiciary the Home Ministry of this Government. This during recent years. This criticism has been is what I say. made by Supreme Court Judges, High-Court Judges, retired Judges, Public Prosecutors, numerous representative associations of the What has the Law Commission said? The Bar, principals and professors of Law Col- Law Commission went into this question. I leges and very responsible members of the will invite your attention to page 34 of legal profession all over the country. One of Volume I of their Report. This is what they the State Governments had to admit that some say: of the selections did not seem to be good and "Though we call ourselves a secular State, that careful scrutiny was necessary. The ideas of communal representation, which almost univer ar chorus of comment is that were viciously planted in our body politic by the selections are unsatisfactory and that they the British, have not entirely lost their have been induced by executive influence." influence. What perhaps is still more to be regretted is the general impression, that now Can you have a greater indictment of the and again executive influence exerted from manner in which the executive is? the highest quarters has been responsible for functioning in the matter of the appointment some appointments to the Bench. It is of Judges than the one given here by the Law undoubtedly true, that the best talent among Commission, which is no partisan political the Judges of the High Courts has not always body, but is constituted of men of great legal found its way to the Supreme Court. This has experience, wisdom and learning? This is prevented the Court from being looked upon what I put to this: House for its consideration. by the subordinate Courts and the public What have they to say to this? I would like to generally with that respect and, indeed, hear that. It is no use trying to evade it. I am reverence to which it is by its status very glad there was no Communist there. entitled." Otherwise it would have been said that the Communists infiltrated into the Law- This is what the Law Commission of the Commission and spoilt the whole-thing. They country said, not what a Communist or are all great men in the-eyes of the bourgeois Opposition Member said. of this country. Then again, in the same Report. I would like to invite your attention 1841 Constitution [ 4 MAY 1962] (Amdt.) Bill, 1962 1842 Then again in paragraph 14 on page 72 you This, Madam, is what the Law Commission find the Chief Justice has given the has said, after quoting the Judge; description of how a Judge is appointed. I "This indeed is a dismal picture and would need not go into the matter, for the seem to show that the atmosphere of description given is very instructive. This is communalism, regionalism and political what he says: patronage, have in a considerable measure "In olden days in the matter of the influenced appointments to the High Court appointment of High Court Judges, the Chief Judiciary." Justice of the High Court had a This statement is made by the Law preponderating voice and, generally Commission of the country. Criticise it, if speaking, the recommendations made by you have the courage. I ask the Central him, as the person responsible for the work- Government of India to get up and say that ing of the High Court, used to find support of this is a wrong statement, a falsehood uttered the Governor, who in such matters could act by these great men. Let them say that, if they in his individual discretion. Now, the Gover- have the courage. They have not yet said nor has to be guided by his Ministers and it is either "Yes" or "No". They are trying to usually felt that nowadays the Chief Minister evade the point. I will not allow it and we on thinks that it is his privilege to distribute this side of the House will not allow them to patronage and that his recommendations evade such a salutary finding or re- should be the determining factor." commendation of the Law Commission, because we know that in so far as they go, The accusation is made by the Law some of these recommendations are in the Commission, that the Chief Minister uses his interest of justice and this country. authority to distribute patronage. This should Therefore, we would seek their be a serious recommendation and implementation. observation for any sensible and responsible Then, in paragraph 16 on page 73, the Chief men in the country. Justice of a High Court outlined the procedure followed in regard to the selection Then again, the Law Commission's Report of High Court Judges. This is how the thing. quotes the evidence given by a Judge of the is done. I am again quoting from the Report, High Court. It is here. A Judge of the High which says: Court has stated it, not me or anybody here, "According to him, the question is first but a Judge of the High Court whom we hold discussed at a meeting between the Chief in great reverence. What did he say, Justice and the Chief Minister during which according to the Law Commission's Report? the Chief Justice suggests names and the Chief Minister gives his opinion on the "If the State Ministry continues to have a proposal. Thereafter, some discussion takes powerful voice in the matter, in my opinion, place and an informal understanding is in ten years' time, or so, when the last of the reached between the two before formal Judges appointed under the old system will proposals are sent up. He stated that from his have disappeared, the independence of the experience of such conferences, it was clear judiciary will have disappeared and the High that political and communal considerations Courts will be filled with Judges who owe did affect the mind of the executive at the their appointments to politicians." time of the discussion of the names. We have no doubt that in other States, a somewhat similar procedure is fol- 1843 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1844 [Shri Bhupesh Gupta.] observations and findings. Government lowed before the making of a formal suffers from lack of moral courage in this recommendation by the Chief Justice. It is matter because it is not a question of the not surprising therefore that the concurrence Communists and the Government where you of the Chief Justice has been obtained to can say so many things and get away with it many unsatisfactory appointments. In The moment they come to this, they will substance, having regard to the position in come to grips with their own High Court which he is placed, the Chief Justice Judges and there the political bogey will not surrenders his better judgement and yields to work, no red herring of the type will work. the wishes of the Chief Minister." They have to tell whether the Judges of then- regime, appointed by them and the Law SHRI P. N. SAPRU: Then he does not Commission appointed by them are saying deserve to be a Chief Justice. the fight thing or the wrong thing. The moment this controversy starts, they know SHRI BHUPESH GUPTA: This is what the very well, the entire country will be Law Commission says. The Chief Minister compelled to support the judicial men rather bullies and influences him and ultimately the than the unstable and very often changing poor Chief Justice surrenders to him. This is ministerial ranks. That is why there is what is stated in blunt, brutal language and if avoidance of debate over this matter I would I were on the Law Commission. I would not like to ask the Government to tell us exactly have gone in for sophistication, language of where they stand in regard to this recom- this type. Even though it is strong enough I mendation. Madam Deputy Chairman, the would still have asked him to go a little recommendations of the Law Commission further and tell the truth, nothing but the have made me move this proposal. I want the whole truth before the world in this matter. Chief Minister to go as far as the States are Now, here is the position. Now, come to page concerned. The Governor is there but 79 of this Report. I would like to draw your Governors, you know, are poor little attention to paragraph 30. Governors. ****** "There is an insidious and calculated attempt an the part of the executive to briner down What can they do? I think a child of five does the prestige of the High Court Judges". not feel so helpless before his parents as a Governor feels helpless before the Chief I am skipping a few sentences. Minister. To such helplessness they have been reduced. We do not like Governors and we "All these matters have contributed to the would like this institution to go or at least public feeling that High Court judiciary is not have them directly elected, to which I shall what it used to be-Now, this is rather a very come later on but now this is what is unambiguous, forthright and clear statement happening and this is how the Chief Ministers by the Law Commission. Either we stand by behave. I can tell you here of examples where it or do not stand by it. If we stand by it, certain wrong appointments had taken place. then we proceed to think of measures to There are no rules but I can give you an implement the recommendations. If we do not example of how a Chief Minister behaves, an stand by it, at least it is the duty of the example from my own unfortunate State, Government to tell the country that they do unfortunate because of the fact that the pot accept any such thing and would not like Congress is still in power there and fortunate to be a party to this kind of because there is a strong Communist *Expangee as ordered by the Chair. 1845 Constitution [ 4 MAY 1962 ] (Amdt.) Bill, 1962 1846 Party and the democratic movement is also appointed as a High Court Judge. In his there. Now, here is how they do it case too, political loyalties did not stand in the way. We do not. however, object to the appointment of Shri Mitra and Shri Mukherji on principle because we are firmly of the Madam, in 1959, we of the Communist opinion that the right to association with any Party, presented a Memorandum to the political organisation is a valued democratic President of the Indian Republic, in the right of the people. We, however, hold that middle of 1959. I, along with Comrade Jyoti any person is entitled to associate with any Basu, Leader of the Opposition in the West organisation till the time of his or her ap- Bengal Assembly, had the honour of pointment to any office in the State but we representing our Party and placing a accuse the Government of following double memorandum in the hands of the President. standards in the matter of appointments. We We had some discussions with him. I cannot charge the Government with discriminatory go into the discussions but I can only say treatment because it rejected the claim of what we stated in the Memorandum. In the Shri Sen on the ground of hi* association memorandum which was released to the with the opposition party in the remote past. Press and published, it was stated that in Now, this is self-explanatory as to how the 1957 the Government decided to recruit four Chief Minister behaved persons from amongst the practising lawyers for appointment as District and Sessions Judge. The Chief Justice of the Calcutta High Court accordingly selected four per- I have no quarrel with the two Congressmen sons among whom was Shri Sen. His name who have been appointed. They are good was removed from the list on the ground that Judges, both of them, and I would Jike them the police report against him was adverse but to be Judges. I make that absolutelv clear but what was this police report? It was stated here we are discussing question* of principle. that Shri Sen had connections with the Com- When it was a question of Mr. Sen. one of the munist Party prior to 1947 when he was in topmost lawyers of Alipore. he was not Khulna, now in Pakistan. He did not, chosen despite the recommendations of the however, keep contact with any political Chief Justice because he had been associated party after he had come over to the Indian with the Students' Federation of the Union but his connection with the Communist Party before independence; and Communist Party in the remote past was although he had given up all politics and had enough to debar him from appointment as a built UD a fairly lucrative practice in the District and Sessions Judge. This is one side meanwhile, he was not chosen but when they of the picture. The other side is equally if not came to the question of the other two more sordid. Shri San-kar Prasad Mitra was gentlemen, well, one was a member of the a Congress Minister when he was defeated Executive Committee of the Pradesh by a Communist candidate in the last Congress and he was a Minister but was General Elections, the Second General defeated by us and immediatelv he was made Elections. He was also a member of the a Judge. I have no quarrel with him. He is a Pradesh Congress Committee. He was good Judge but then you should not follow two standards. Mr. Deba-brata Mukherji also appointed as a Judge of the Calcutta High I know. After his defeat by a Commmunist Court and his political allegiance just before candidate in Calcutta, he was appointed as a his elevation to the Bench was not Judge. Now, I would like to ask the hon. considered as a disqualification because it Members to consider whether was allegiance to the ruling party. Shri Deba-brata Mukherji, a defeated Congress candidate in the 1951-52 Election was 1847 Constitution [ RAJYA SABHA] (Amdt.) Bill, 1962 1848 [Shri Bhupesh Gupta.] one standard has been that all the defeated Ministers become either followed in thia matter. We know that the Managers or Commissioners or Chairmen of Chief Justice made the recommendation and public undertakings. They can never be we solemnly placed it before the President. common M.Ps. They are not made of common Dr. Roy did not deny that the Chief Justice clay. But now I do not go into this matter; this had made the recommendation in the case of is another part of the story. Anyway, the point Mr. Sen and he frankly admitted that for the here is that these two gentlemen were political reasons as given here, that person was not men belonging to the Congress Party, put up appointed. as Congress candidates. One of them was a Congress Minister at the time of the election SHRI SANTOSH KUMAR BASU (West and was a member of the Pradesh Congress Bengal): I hope Mr. Gupta will enlighten me Committee. Mr. Debabrata Mukherji was an on this point and that is, whether he is aware officebearer of the South Calcutta District that long before his appointment, after his Congress Committee. If these could be defeat in the Elections as he has stated. Mr. appointed as judges—I have no quarrel with Debabrata Mukherji was sounded by the then them—why then others should not be Chief Justice of Calcutta. Mr. Justice Harris, appointed, why Mr. Sen was not appointed? I whether he would accept a Judgeship or not. know of the Tamil Nad case also. Recently—I would not name him—a recommendation was SHRI BHUPESH GUPTA: Madam. I said I made In favour of a person for appointment as have the greatest regard for Debabrata a judge but then the Tamil Nad State Mukherji. I have worked with him; during Government decided not to recommend him war days we were on the same Committee. I because that gentleman does not belong to the have great respect for that gentleman. I know Congress Party but he is said to have . some him personally and Mr. Sanker Prasad Mitra; other association or party affiliation. we were together in England. He has been a personal friend of mine. That way, SHRI P. N. SAPRU: On a point of order, are personalities are not involved at all. Any time we in a fit position to estimate the I would support their being appointed as qualifications of various men who have been judges. appointed and is it in order that a reference should be made to judges either sitting or about to be appointed or never appointed? It SHRI SANTOSH KUMAR BASU: I want to is not fair to them also. It is not fair to drag in point out that it was not in consequence of his their names in the House. defeat in the election but long before, he was sounded by the Chief Justice whether he SHRI BHUPESH GUPTA: Madam Deputy would accept a judgeship or not. Chairman, I am speaking with the greatest reverence to these judges. In fact, I want more rights to be given to them. SHRI BHUPESH GUPTA: Mr. Basu need not quarrel with me. My point is not whether THE DEPUTY CHAIRMAN: The hon. after defeat you appoint people. We defeated Member may pass on to other points. a Central Minister in Bolpur and now he has been appointed Commissioner for Scheduled SHRI BHUPESH GUPTA: I should not be Castes and Scheduled Tribes. We defeated a misunderstood. I am here to vincHwrte the President of the Congress Committee and he honour, dignity and power of the judges. This has been appointed Chairman of an Oil is what I stand for here today. Nothing is Refinery. Such things happen. We find far- 1849 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1850 ther from my mind than to suggest or SHRI BHUPESH GUPTA: Yes; we have a indicate anything that dims that honour and parliamentary system with 1he presidential dignity which I want to ^uphold in this system. In addition to one Prime Minister, House. we have got 16 Chief Ministers. Place our Chief Ministers with Mr. Maemillan; Mr. SHRI B. K. P. SINHA: But you are Macmillan will blush and go away. I can tell >dishonouring individual judges; that js the you that much. We have one Prime Minister charge. and on top of that we have 16 Chief Ministers and one Chief Minister calls himself a Prime Minister also. We have got SHRI BHUPESH GUPTA: I am not talking of so many of them. We have 15 of them individuals. These are all stated in the operating on the scene building up our memorandum. Even so I paid tribute to these judiciary at the highest level. When you go two judges, I just say this thing in order to to the United Kingdom, may I also take you, point out to you how the Chief Minister with the permission of the Chair, to the works in West Bengal. It is being said in United States of America? Because there the political circles in West Bengal that the Chief judges are appointed with the concurrence of Minister decides the question of judges over the Senate which is the corresponding body the telephone addressing them in second to the Council of States here. person 'You are here; you are there*"; like that it is done. As you know, the Chief SHRI SANTOSH KUMAR BASU: The Minister comes in and I would not like the American Bar Association is also consulted. Chief Minister to come in at all. You know many things happen. And sometimes he may SHRI BHUPESH GUPTA: You are perfectly be right and sometimes he may be wrong. right. I would also like the Bar Association But this should not happen. Mr. Sapru should to be consulted here. I say the Chief Justice help me because I know he stands for the will consult them because the Chief Justice independence of the judiciary and he would will be much more legally oriented than the not like the judiciary to be tampered with or Chief Minister. The Chief M'n-ister consults interfered with by the Executive. He may not his colleagues. The Chief Minister consults agree with my arguments or contentions but I the Police Minister and when he does not am sure that the underlying proposition that consult the Police Minister, he consults a we want to place before the House would contractor. This is what *hey do; what can I certainly receive his unstinted and generous do? As far as the judges are concerned, I am support. I hope at least this I would get from sure the Chief Justice will consult men like him. Mr. Samtosh Kumar Basu, Mr. Sapru and others. Certainly, the Bar Association should SHRI SANTOSH KUMAR BASU: Just one be consulted; I entirely agree but let us first more question; you have been a Barrister of give him the power. Let us take first the England. Who appoints the head of the Chief Minister out of the picture altogether. At present the Chief Minister is the villain of judiciary in England, the Lord Chancellor? Is ; it not the Prime Minister of England? the piece. He s the star; the others are satellites revolving round him in the matter of appointment of judges. The Law SHRI BHUPESH GUPTA: It is true. I do not Commission says how it is d^ne and how it know how many times we should go back to is influenced by the Chief Minister and how England. Should we do that all the time? the Chief Minister has his way in this matter. Even the Chief Justice siir- SHRI SANTOSH KUMAR BASU: "You are talking of democracy.

1851 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1852 [Shri Bhupesh Gupta.1 renders to him. And he said is true, but then when the-Law you have got the most lamentable spectacle Commission came to its recommendations, of the aspirants far judgeship going to the thus is what they said. I have got it ready. Home Minister. I would not name anyone but I expected an interruption of that kind:— I have tumbled against some of them in some Home Minister's house. I don't mention "While it should be open to the State anybody by name here and therefore I am de- executive to express its opinion on the lightfully vague but the suggestion is quite suitability of a person proposed by the Chief clear. I would not like this. Let tham go to Justice, it should not be open to it to propose the Chief Justice's house and discuss the a nominee of its own and forward it to the matter with him but certainly I would not like Centre; if JL does not agree with the thern to g^ to the Home Minister's house recommendation made by the Chief Justice, because then the appointment gets politically he should be asked to make another coloured. You have factions not only within proposal. Further, to avoid delays, it would the Congress Party but you have developed be advisable for the Chief Justice to send a factions within the legal profession also. copy of his recommendation direct to the There are Congressmen in the legal Chief Justice of India." profession; there are dissident Congressmen also. There are members of this group of Therefore, even the Law Commission, which Congress leaders and members of that group is rather moderate in this matter, saw the need of Congress leaders. The fortunes of those for not allowing, the Chief Minister of a State people vary with Whether Dr. Katju wins the to nominate anyone, suggest the name of any- election or not. whether Mr. Hanumanthayya body. That initiative should be left entirely, comes here or goes somewhere else, whether not in legal notion but in the fact of life, with Mr. Niialin-gappa leads or not. The fortunes the Chief Justice of India or with the Chief of those members of the Bar vary with Justices of the States. That is why this whether Mr. Monarji Desai succeeds in his recommendation is made by the Law electoral strategy in Gujarat or not. Would Commission. I know what Mr. Santosh' you like this state cf affairs? Kumar Basu has said. He is formally true. Then, the Law Commission has also said that the Chief Justices themselves giving evidence SHRI SANTOSH KUMAR BASU: May I ask before the Law Commission had to admit that a question? When this matter was raised on they had to surrender to the Chief Ministers. another occasion in this House—I think you Such things happen in the country. Whom am also took part in the debate; it was a debate I to believe? Am I to disbelieve My Lords, on the Law Commission's Report—it was the Judgag-or disbelieve the Home Minister panted out by the then Home Minister, the of the country or the Minister of State in the late lamented lead°r Govind Ballabh Pantji, Ministry of Home Affairs? I do not know. Let that the ultimate decision is made always by us nnt go into that question. Here it is. the Chief Justice of India and it was onlv in Therefore, I say that it should be done, it one or two oases that any deviation was should be amended in this manner. It is very, made from his reeommendaHon, and in all very important today. other cases the vo'ce of the Chief Justice of India had prevailed. When the matter came up for discussion in the Constituent Assembly, Members st>oke SHRI BHUPESH GUPTA: Mr. Santosh and in this connects on. I should like to invite Kumar Basu, I must sav. is always very ynur attention to Mr. K. T. Shah's amend- thought provoking. What ments Nos. 1822 and 1823. He said' l853 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1854 that the Judges snouid be appointed in uieiefore, thank that that is al»o a dangerous consultation with the Council of States. He proposition." wanted to follow the practice as m the United States of America, and there he it is as if the M-nisters are not without suggested that the element of political prejudices witnout sentiments and as n tney choice should be eliminated. Parties should are uuaiubie cxea-ures. Wiieii toe matter came be eliminated. Here, if you bring it for up for leaving. it to toe Cruet Justice or, if you discussion, then it means all will discuss it. want, bringing it here to the Council of There will be checks and balances coming States, hjs answer was, "No, we cannot leave it from b.th sides of the House, wi.h the in tne hands ox the President of India. The result that the nom nation would not be Council of Ministers must do it." Therefore, vitiated by-narrow, party and political it is the Governor in the case of the States and considerations. That was his contention. I also the Central Government, He said certain ■think he drew his analogy from the things about the Chief Justice. Well, I do United States of America. not share that. There are great men in the M nistries also, but there may not be so great men SHRI SANTOSH KUMAR BASU: I also. Anyway, they have attributes ab^ut suppose y:iu follow it. which he was talking, prejudices, sentiments, failings and so on. I do not think that the SHRI BHUPESH GUPTA: Dr. Ambedkar acctimu-lation of all these attributes—virtues or got up and spoke and at page 258 of the vices as you may call it—is so-great Constituent Assembly's proceedings, Vol. anywhere in India as in the institution called the VIII, you will find what he said. It is also Council of Ministers. They are the very interest ng. He could see some point in embodment of sentiments and wrong it. He said: sentiments at that. They are the embodiment of prejudices, factional prejudices "With regard to this matter, I quite agree that at that. And they are the embodiment of failings. the point raised is of the greatest importance. All failings conceivable on earth have There can be no difference of opinion in the crowded into our institution called the Council House that our judiciary must both be of Ministers. Therefore, Dr. Ambedkar was independent of the ex^cu-t've and must also not quite right in this matter. Anyway, if he be competent in itself." had been alive today, he would have known it. Then, when it came to suggestions he said Even after the Constitution, he was siting in the something with which I do not agree. He did Oppcsi-tion. He did not go to the Government not seem to have much faith in the Chief side. He thought it was the time to part Justice. He had faith in the Council of company with the Government. He was on our Ministers. He sa:d: side, sitting here. I am almost certain that had he been alive today he would not have "I personally feel no doubt that the Chief maintained whst he s-aid at that time, because Justice is a very -minent person. But after all, the experience we have got today was not to ere the Chief Justice is a m^n will all the failings, in 1949 whsn he awoke these words in the all the sentiments and all the prejudices which Constituent Assembly of the day. Now, we as common ■people have; and I think, to therefore, this asipect has to be taken into allow the Chief Justice prqctieallv a veto uoon account. the apoointm?nt of iudfres is reallv to transfer ^h0 authoritv to the Chief Justice which we There again, the Governor is no substitute. Why are not prepared to vest in the President or the bring in the Governor? It is indirectly Government of the day. I, keeping the 1855 Constitution [ RAJYA SABHA] (Amdt.) Bill, 1962 1856 [Shri Bhupesh Gupta.] Chief Minister and invasion or rather the smuggling of the you know that •once the Chief Minister is executive into the affairs of the iudiciary? I coming into the picture, the whole thing is would ask the hon. M n-ister, Mr. Datar, to clone by the Chief Minister. I do not like it. I explain it here. Why are you so keen? You have my grievances against some Judges and have got your hands full. You cannot so on. I may not like some of the things they manage the Andamans; you cannot manage do aad some of their interpretations of law, the Central Government employees; you their approaches in life cr in legal matters. cannot manage the domestic I P.M. affairs But I would rather entrust the matter of in various fields. Why appointments in the hands of Judges than in do you poke your nose into the affairs of the the hands of the Chief Ministers of the judiciary and smuggle yourself there where various States. I would not like the latter at you are neither wanted nor qualified nor all. And I shudder to think of the Home needed? I ask you this straight question. Are Ministry. Whatever you send to the Home our Judges not qualified to choose their Ministry for its consideration, Mr. Datar brother Judges? Do they have to go to the immediately sends a letter to the C.I.D. South Block of the Central Secretariat to saying "Give your police report." I do not seek the wisdom and blessings of Mr. Datar know if there is any Minister born or unborn and through him the Secretary and through in this world who has read so many police him the sub-inspector of police? reports in the course of ten years as TMr. Datar must have read in the course of his THE DEPUTY CHAIRMAN: You can tenure of office. He lives with police reports. continue after lunch. The House stands adjourned till 2-30 P.M.

SHRI G. S. PATHAK: He has got his own The House then adjourned for lunch at one C.I.D. of the clock. SHRI BHUPESH GUPTA: The police is in the picture. Why should the Judges be appointed on the basis of police reports? The House reassembled after lunch at half- C.I.D. men under the British, who had no past two of the clock, THE VICE-CHAIRMAN education practically, who did not know how (SHRI M. P. BHAR-GAVA) in the Chair. to spell words—High Court—many of them would be giving reports about Mr. Pathak. SHRI BHUPESH GUPTA: Mr. Vice- Imagine it. Now, Mr. Patihak's name may be Cbairm&n, I was just concluding that aspect on the Congress side, but if his name comes of my amendment which deals with the up, then Mr. Datar, even if he is a Con- appointment of Judges. The only point that gressman, will ask for a report on security remains to be answered is what happens grounds. The C.I.B. or the C.I.D. in Delhi when, for example, there is a conflict will b: p:':ed to prepare a report and furnish between the President and the Chief Justice information about Mr. Pathak, t:> find out in the matter of reoommendation or whether he is qualified enough to be appoint- appointment or selection of Judges to be ed as a Judge by Mr. Datar. What else could accepted. There my suggestion is simple, be a mockery of the so-called independence ; that in such a ease the matter should come to of the jud ciary than that? What else could be Parliament in the case of Supreme Court a -bitter perversion of the institution •and Judges and to the State Legislature independence of the judiciary? What else concerned in the case of High Court Judges. could better illustrate the I am aware that this would involve discus- sion and debate on the appointment of Judges, but then this is done in certain countries. Even in the U.S.A. 1857 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1858 in the Senate, for example, the matter is of a State Government and the Home Minister discussed. I do not think that if it should in the case of the Central Government who come to that, if any discussion takes place in prevail. I do not want this ■arrangement to Parliament or in ithe State Legislature, it continue. It is better to leave the matter in the would in any way undermine the dignity hands of the Assembly or Parliament, because or the prestige of the Judges or in any way in the Assembly the Chief Minister will be come in the way of making the right choice. there, and the Home Minister will be here in I do not think so. If you say that politicians Parliament. Under my arrangement, those will then have an opportunity of saying who take part in settling the matter will be things which should not be said, I think in there to express their views and influence that case it is better to let the politicians have opinion by their arguments and logic. They their say than leave the matters with .the are not taken out cf the picture but they do it Chief Ministers who are also the political openly along with the rest of the Members of leaders of the Party and do all kinds of things Parliament, or in the case of the St . e behind the scenes. I think it is better lo be Assemblies with the Members of the State open-hearted and straightforward in such a Legislature. I therefore do not see why we matter instead of being circuitous, secretive should fight shy of making a provision of this and unfair. This is what I say. Therefore, the kind in order to meet the contingency of a problem does not arise that way which really conflict arising between the Chief Justice and should make us feel: ""No, the matter of the President. I think it is a good thing. appointment should never come to Judges do not know how the Parliament Parliament". In fact sometimes I feel that feels. People do not know how we feel. there is a gap in our parliamentary system After all Judges function in a social ond institutions that we cannot discuss the structure, they function in a dynamic question of appointment of Judges. I am not society, and they must be acquainted with saying that the conduct of the Judges should the thoughts and ideas of society so that they be discussed. I will not be opposed to it can interpret

SHRI P. N. SAPRU: All these remarks are in excellent judge and he is a very dear friend the nature of obiter dicta. of mine? But a judge's quality is not judged by the comments that appear in 'The Times SHRI BHUPESH GUPTA: They are there of India', or "The Leader' or 'The National none-the-less, but I am concerned with the Herald' or 'The Statesman'. A Judge's quality remarks of Mr. Justice Multa. . . . is judged by the remarks he gets from learned journals and jurists. SHRI P. N. SAPRU: These could not arise out of any . . . SHRI BHUPESH GUPTA: Neither are a Judge's qualities established by kowtowing SHRI BHUPESH GUPTA: Anyway, "Mr. the Chief Minister or the Council of Sapru may have that view. But what I am Ministers Or even by trying to serve the concerned with here is this. Mr. Sapru, you Congress Party in a particular way, though it will understand that my opposition is to the is not called for. Mr. Justice Mulla did not attitude of the executive. Yes. It is open to the make these remarks by reading 'The Times of Chief Justice 'of the Allahabad High Court to India' editorial. He made these remarks by point out that he should not have made this reading law books and on the basis of the remark since, according to Mr. Sapru, it did experience of 15,000 to 20,000 cases which not arise. But that did not happen. "What he had handled; on the basis of acquired happened . . . knowledge and experience he made these remarks, and I am a little surprised that a SHRI P. N. SAPRU: May I put it like that? former Judge of the same Allahabad High Edmund Burke said that be did not know the Court who is a deaT friend, on his own method whereby to indict a whole nation. admission, of Mr. Justice Mulla should not May I humbly say that what Burke did not have come to his rescue when he happens to know, Mr. Mulla claims to know? . . .

SHRI BHUPESH GUPTA: No. There you are. SHRI P. N. SAPRU: May I in all humility say Mr. Justice Mulla's cry was that he had the that my concept of what a Judge should say courage and guts to make certain observations or should riot say in his judgment is against the police. somewhat different? And when I had the privilege of acting as a Judge, I made com- SHRI P. N. SAPRU: No question of courage ments severely on the executive governments here. but I always felt that it was incumbent on me not to go beyond a certain radius. SHRI BHUPESH GUPTA: Things were said day in and day out by many people in the SHRI SANTOSH KUMAR BASU: Before he country. For that he is now being—well, I do begins to answer, may I also point out to him not say— maligned by some people in the that there is a clear provision in the law for a country. But I know that his remarks are Judge to make comments in his judgment on welcome by larger sections of public opinion. the result of a particular case? And if it Newspaper editorials came out saying that the involves a larger question, it is open to the Uttar Pradesh Government should reform the Judge to direct that a copy of the judgment police administration, instead of trying to get should be sent to the Government for such the words of Mr. Justice Mulla expunged from action as they may choose to take. There is a the proceedings. provision in the law. But does that justify or authorise a Judge to make a roving inspection SHRI P. N. SAPRU: May 1 say that Mr. of his experience Justice Mulla was a most 1863 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1864

[Shri Santosh Kumar Basu.] SHRI B. K. P. SINHA: In what court? running into 15,000 or 20,000 cases, not to confine to that particular case and draw SHRI BHUPESH GUPTA: By the' Allahabad conclusions and ask the Government to take High Court, an appeal was made. I am n'ote of them and act upon them? reading out from the whole judgment.

SHRI BHUPESH GUPTA: Such is life Mr. SHRI B. K. P. SINHA: That is . . . Vice-Chairman. It has fallen on my shoulders to defend the Judge of the SHRI BHUPESH GUPTA: Anyhow, n'o other Allahabad High Court, Judge appointed by case is pending. You can, go and ask Mr. C. the . . . B. Gupta to employ you as a lawyer and have it fought out in the Supreme Court. But there SHRI SANTOSH KUMAR BASU: He is is no appeal pending now. going beyond the scope of discussion. SARDAR RAGHBIR SINGH PANJHAZARI THE MINISTER OF STATE IN THE (Punjab); On a point of order. sprf WTHrf^T MINISTRY OF HOME AFFAIRS (SHRI B. 'JSfT fT pffa % 3TC FTfa £ ST N. DATAR): Are these things relevant here, whatever may or may not have been said by THE VICE-CHAIRMAN (SHRI M. P. Mr. Justice Mulla? We are not here BHARGAVA) : There is ino point of order concerned either with his observations or with the police. We are concerned with the there. appointment of Judges. And why should Mr. Justice Mulla's observations be brought in SHRI BHUPESH GUPTA: What? and the time of the House taken up? THE VICE-CHAIRMAN (SHRI M. P. SHRI BHUPESH GUPTA: If I had any doubt BHARGAVA): He is continuing his speech. that he should not be given the power, now Please carry on Mr. Bhupeslv. Gupta. that is gone. That is absolutely gone now. "You see how he interrupted. He would not SHRI BHUPESH GUPTA; Mr. Pan-jhazari even make his very vast experience felt. But raised a p'oint of order. you see how the Home Minister has got him. When I was trying to point out the attitude of the executive towards the Judge, and in THE VICE-CHAIRMAN (SHRI M. P. this connection I cited the example of the BHARGAVA) : There is no point of order. State Government which appealed to the High Court in order to get the words of a SHRI BHUPESH GUPTA: Mr. Pan-jhazari Judge expunged from his judgment, he says spoke. I would like him to frequently raise that the time of the House is being wasted points of order even if there may not be any and asks me whether it is relevant. Well, Mr. point in it. Datar . . . I would ask you to note from the judgment SHRI P. N. SAPRU: On a point of order. Is that we have got after the appeal as to what he the appeal against Mr. Justice Mulla's says: — judgment pending before any court? "This petition presents a strange SHRI BHUPESH GUPTA: No, the appeal anomalous position—that the State was dismissed. functioning as a judiciary makes certain observations and the State through its executive wants these remarks to be expunged. As 1865 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1866 obesved by me above, the basic fallacy in the may not be clear t'o you; what is clear to you mind of those who presented this application may not be so clear to me, specially in such . . ." matters. I am raising a theoretical point here. SHRI P. N. SAPRU: I want to know "....is that when these observations were something; I am seeking light. I have always made by me, they were not made by the understood the word 'prerogative' in a certain State. The executive cannot be permitted to context and I attach certain meaning to that stand between the judiciary and the people of word. Well Mr. Mulla has used the word the country in the judicial sphere and the 'prerogative' and Mr. Bhupesh Gupta is people include the public servants also." endorsing his remark as his 'prerogative'. I This is what he said: should like to know what his concept of the "If the executive is permitted to come word 'prerogative' is. forward as the champion of the public servants, there is a likelihood that the public SHRI BHUPESH GUPTA: The concept of servants would begin to feel that while the 'prerogative' is well known. judiciary is out to pass strictures against them SHRI AKBAR ALI KHAN: It is but fair that they are protected by the executive 'of the Mr. Sapxu should throw light and guide you. moment. They would disregard the strictures passed by the judiciary in the belief that they SHRI BHUPESH GUPTA: No, I would not have only to please the executive to escape try it; I would not try to interpret what Mr. the consequences of these strictures. The Mulla has said; I have only stated what public services would thus be demoralised he has said. and instead of being loyal to the State they would become loyal to the group in power. SHRI SANTOSH KUMAR BASU: Is there This violates the basic c'onception of a any prerogative in this House to stop this democratic kind of irrelevant discussion? State...... In my opinion the presentation of this type of application is an SHRI BHUPESH GUPTA: Now we have got over-stepping of the limits of the executive the definition of 'prerogative'; Mr. Santosh sphere and an encroachment upon the Kumar Basu has given, by an irrelevant judicial prerogative . . ." interruption, the definition of 'prerogative'. This is how it has been put. Now here is a proposition placed before the country. Now let me proceed to other aspects of the matter and what I said just now is important; SHRI P. N. SAPRU: May I respectfully ask here is a Judge of the Allahabad High Court Mr. Bhupesh Gupta to explain to me what saying this thing) that T function on behalf of the word 'prerogative' here means? The word the State, and when the judicial organ of the 'prerogative' is very loosely used in this State says something, then the executive country. I have seen the Supreme Court also comes down upon 'me', and it is a clear case using it and I would like to know whether of intimidation; other Judges are put to fear Mr. Bhupesh Gupta has a clear idea of what by this kind of interference on the part of the the word 'prerogative' means. Executive. What should have been done was SHRI BHUPESH GUPTA: Sir, I have some to go into the police administration and see idea but clarity is a relative term. Now I do what was wrong there instead of trying to not wish to go into it, because what is clear brow-beat a Judge of the High Court. It to me should not have been done. And I say, this is the attitude of the Executive towards the Judges. We cannot have a 1867 Constitution [RAJYA SABHA] (Amdt.) Bill, 1962 1868 [Shri Bhupesh Gupta.] dignified judicial leave them in the hands of the Chief Justice system in the country when the Executive of the Supreme Court and the Chief Justices shows red eyes all the time to the Judges, and of the High Courts. Brother Judges will even go to the court of law—to add insult t'o know how to choose brother Judges. They injury—to file an appeal and ask the court to will know how to find the best men from expunge a remark made in a judgment, a among the Bench and the Bar and appoint remark which occurred to the Judge as obiter them to these high positions. This is what I dictum. It involves great and important ques- would like to say. tions of public policy in the country "today. SHRI P. N. SAPRU: May I interrupt Mr. This is what I say. This is what I am Bhupesh Gupta and say that he is suffering discussing. You are not the Chief Justice of from some confusion of mind as regards the the Supreme Court sitting here; you are the proper place of the Chief Justices in our conscience keeper bf democracy; as the judicial hierarchy? Judges are not subordi- sentinels of our parliamentary institutions you nate to the Chief Justices. They do not take sit here, and it is my duty, and privilege —if their orders from the Chief Justices, and I do you like—to tell the Government frankly and not see how a Chief Justice comes into the brutally that if this attitude is allowed to be picture. developed and cultivated against the judicial system of the country, independence •of the SHRI BHUPESH GUPTA: If I were suffering judiciary will be a misnomer, and arbitrariness from confusion, why must Mr. Sapru add to of the Executive will be the order of the day. the confusion? I was not so, I know what is That is the function of the Chief Justice here. I know "how I put it. I need go into this questi'on Chief Justice is there mentioned in the again because Mulla's words are a great Constitution. He comes in the consultations. national indictment of the police force, and the My provision is: Give him the full authority behaviour of this Government in regard to him in this matter. And Chief Justice is the is again an example of how the Executive take administrative head of the High Court—that their own Judges. Therefore I say, come and you know. Anyway let us not go into that. discuss it here. Let the appointment of Judges Therefore I say I want to rescue the Chief be discussed in Parliament. We shall see how Justices and the Judges, liberate them from things are settled. We can d;s-cuss it. If we are the hands of the Home Minister and the Chief wrong, we shall be rectified; if you are Minister, and I hope I shall be given due wrtong, we shall correct you. But for the life assistance in this matter. Independence of the of me I shall never leave it in the hands of the Judiciary demands it. Chief Minister of a State or in the hands of the Now let me come to the last item of my Home Minister of the country. amending Bill—that is very important also— They are political creatures; they are leaders and the last item is about salary. What do I not only of a party but they are also say there? You are giving the President Rs. sometimes leaders of factional groups within 10,000 per month. I say: "Give him Rs. 2,500 the Congress Party behaving sometimes in a per month." You are giving the Governors factional way, and in a parliamentary demo- Rs. 5,500 per month. I say: "Give them Rs. cracy if you want to ensure the independence 750 per month." Am I wrong, or am I fight? and the continuance of the Judiciary without If you will say I am wrong, then I will ask any fear from the side of the Executive, put why. them out- ■ side the reach of th Executive; e SHRI N. M. ANWAR (Madras): Why give any salary at all? Why should there be any salary at all for a Governor? I869 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1870 SHRI BHUPESH GUPTA: Well, even if you Drafting Committee as well as by a large give me Rs. 10,000, I would not Jike to be a body of Members of this House that no Governor; I would not like, and if Mr. pers'on who is a functionary under the Anwar is thinking of becoming a Governor Constitution or a civil servant under the some day, I would advise him: "Better try for Constitution should be immune from any Deputy Ministership rather than liability imposed by any fiscal measure for Governorship." Now I would not like the general people of this country. Governors to be there; our case is that Consequently, we felt that it was desirable to Governors should be abolished, that post of increase the salary of the President if we Governor. Still y'ou have them and since you were t'o make it subject to income-tax." have them, have them directly elected. "We put it in our election manifesto. Now why do "The other reason why we fixed the salary at I say this thing? Here I have got Dr. Rs. 10,000 is to be found in the salary of the Ambedkar's statement in the Constituent existing Chief Justice of the Supreme Court, As5embly. I think that is very important in which is Rs. 7,000. It was the feeling of the this connection; it should be brought to your Drafting Committee that since the President notice. Dr. Ambedkar gave the reason for the was the highest functionary in the State there high salary. And what did he say? He said a ought to be no individual who would be very interesting thing. I would ask the hon. drawing a higher salary than the President Members to kindly listen. They are not my and if the Chief Justice of the Supreme Court words. When the matter was discussed in the was drawing a salary of Rs. 7,000 it was Constituent Assembly, he spoke on the 12th absolutely essential, from that point of view, of October, 1949, and in support of his that the salary of the President should be proposal for Rs. 10,000 for the President he somewhat above the salary of the Chief said: Justice. Taking all these factors into consideration we thought that the proper 1 P.M. salary would be Rs. 10,000." "As every one knows, under the Government That is how it was fixed. Now, consider of India Act, 1935, the salary of the these arguments after ten years. Are we to Governor General was fixed at Rs. 2,50,800 stick to the argument of income-tax that a year which came to Rs. 20,000 per since the salary is subjected to income-tax, it mensem. This salary was of course subject should be raised. I do not think it is a wise to income-tax. Under the recent Act passed argument. Whether we make it subject to by the Legislative Assembly the salary of the income-tax or not is a different matter, but Governor-General was fixed at Rs. 5,500 but certainly in determining an imporant that salary was free of income-tax. I am told question like the salary of the President what that if the salary of the Governor-General is important to be considered by the House was subject to income-tax, it would come to and the country is the social objective, moral somewhere about Rs. 14,000. In fixing the imperatives and moral consequences. Dr. salary of the President at Rs. 10,000 we have Ambedkar's arguments did not raise any of taken into consideration twto factors." these things. What are these two factors? I am again quoting him: — The other argument was that the Chief Justice of the Supreme Court was getting Rs. "One factor is that the salary of the President 7,000. Now, of course^ this does not exist; should be subject to income-tax. It was the Supreme Court Chief Justice now gets felt by the Rs. 5,000 plus 212 R.S.—3. 1871 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1872 [Shri Bhupesh Gupta.] This h the question that I put to the hon. Members to consider seriously. a rent free house. He does not get Rs. 7,000 now. So, even on that score if Dr. Here, again, is an interesting thing that I Ambedkar's argument is taken, it would should like to point out for your demand a revision of this whole thing. consideration. The salary business is rather an important matter. Our per capita national As far as the question of income-tax is income is Rs. 330 per year. The President gets concerned, we need not go into that. There, a salary of Rs. 1,20,000 a year. How much even Dr. Ambedkar had to say in his speech, does the ratio come to? The President's salary "Later on the Parliament may change the is 396 times the per capita income. The ratio salary and allowances of the President comes to 1: 396. subject to this, that they shall not be changed during the tenure of the President Now, take the case of the skilled worker in concerned." He foresaw the need for the country. A skilled worker, on an average, changing the salary but he said; "Do not gets Rs. 120. If you calculate on that basis, change it when this President is there." This you will find that the President's salary is 83 is what he said. Now, two full Presidential times the average wage of a skilled worker. terms are over, and we are now in the Here I am taking the higher group of skilled beginning of the third term. Here is the time worker. to make that change. This is what I suggest. Now, come to the Governor's salary. In Even the sponsor of the Constitution foresaw relation to the per capita income, the the need for a change, and now the change Governor's salary is 192 times. And if you has to be made today because we have got a take into account the earnings of a skilled social objective before us. worker, the Governor's salary comes to 46 On the question of income disparities how times the average monthly earning of the can you tell the people to reduce their skilled worker. Such is the disparity. income disparities when in the Rashtrapati Bhavan there is the office carrying a salary SHRI ANUP SINGH (Punjab): May I ask the of Rs. 10,000 per month or Rs. 1,20,000 a hon. Member if he has any comparative year? How can you tell the employers in the figures for other countries? I do not have. But private sector to narrow down income dis- my general impression is that even taking parities? How can you ask the managing into consideration the per capita income, the directors, who are getting Rs. 12,000 or Rs. salary of the President of India is not higher 13,000 per month, to reduce their salaries than the salary of a President anywhere else. I when we have in the public life, the Head of may be wrong, but I would like the hon. the State, getting such a high salary? I do not Member to enlighten us on the point. think this is a good example to set. Now, this is the first point that I wish to make, leave SHRI BHUPESH GUPTA: About any where alone the other question namely its else I do not know. Certainly, the American relationship to the salary of the Supreme President may be getting more. But there are Court Chief Justice. many Presidents who are getting less. SHRI ANUP SINGH: Compared with the per Sir, if the Prime Minster of the country can capita income also, I do not have the figures, get a salary less than that of a Judge of the but my general impression is that the salary Supreme Court, why can the President not, of our President is not higher than the salary for example, be given a salary, if it comes to of any other President taking into con- that, less than that of the Supreme Court sideration all the relevant factors. Chief Justice or a Supreme Court Judge? 1873 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1874 SHRI BHUPESH GUPTA: I am coming to down. This is what I want to say. Here two that. My contention is that from the point of questions arise. Dr. Ambed-kar's contention view of per capita national income we are at was not that the President needed this the bottom; we are among the lowest. From money. Dr. Ambed-kar's contention was that the point of view of the salary that is given the President should be given more than to the high officials, the President and so on, what the Chief Justice of India gets. And we are among the highest. This is what I since there was the question of income-tax, want to say. There is a howling disparity. it was raised a little higher. Now I This is what I want to say.' Take the case of understand—and it goes to his credit—that a class IV Government employees and the President was taking less. I will quote compare it with that of the President. from a press report in the Hindustan Times of July llth: SHRI B. K. P. SINHA: I have one query. What about the salary of the President and "The President has informed the Prime the per capita income in the Communist Minister his decision to receive a salary of fatherland countries, China and Soviet Rs. 2,500 per month. In fact, from August Russia? 1960 and also in 1952, the President has surrendered Rs. 4,000 a month and in 1955 he gave up another Rs. 1,000". SHRI BHUPESH GUPTA: Now, there you are. Here you cannot say anything, you cannot discuss anything. If I were discussing Now, it does seem to me that the President antibiotics or birth control, you would have will be getting, according to this about Rs. brought in the Communist countries. 2,500. It means what? It means that the Anything I discuss will bring in the President does not require, or rather, that the Communist countries. I can tell you that the office of President does not require Rs. ratio between what a skilled worker gets in 10,000 a month to maintain his dignity. Wellt Soviet Russia and what the Premeir, Mr. you can maintain all the liveried men that the Khrushchev gets is about 1:8 or it may be Viceroy had. You can have the six- 1:9. In China also it is very low. It is even horsedrawn carriage if you like. You can less in China, though I cannot give you the have all the paraphernalia of pomp and pelf exact figure now. But the Soviet figure is there. But you can manage all that with the well known and you can also consult these other money that you get. You don't need Rs. people and find out what is the position 10,000 for all this and this fact has been there. About the skilled workers I am talking proved. I am grateful to the President, Dr. about, this disparity of 83 times is not there. Rajendra Prasad, that he made that voluntary It may be 1 to 8 or 1 to 9 or 1 to 10 or sacrifice. Parliament would not cut this something like that. I would like you, Mr. salary; but he has set an example before this Vice-Chairman ? to send Mr. Sinha to country in this matter. And what is more, he Moscow once. He has got all wrong ideas has proved by his conduct that the dignity of about what is happening in the Soviet Union this high office can be maintained in that and I think a trip there will do him good, high and exalted office without drawing Rs. mentally, physically and in every way. 10,000 from the public exchequer. I say, Anyway, this is the position here and it is a please implement it. What has been practised serious matter, the disparities in incomes. All by the President and the example set by him, the while we are speaking against it, but at incorporate it in the Constitution and let that home, at the highest level, we are giving an noble example be part of the Constitution ot example of such wide disparity between the the country. That is why I suggest that the skilled worker and the President, between amendment may be made and that the Governor and the skilled worker. This has got to be narrowed 1875 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1876 [Shri Bhupesh Gupta.] part of the other thing is why we should have Governors at Constitution may be amended to bring it all. I have not understood it. But since it is there to this level of Rs. 2,500. in the Constitution, let us not go into it at this stage. I have made enquiries and I understand SHRI AKBAR ALI KHAN: Will it not be that each Governor gets Rs. 5,500 pur month, more graceful to leave it to the President? which comes to Rs. 66,000 a year. Madam SHRI BHUPESH GUPTA: I am concerned, Deputy Chairman, one would like to know why Mr. Akbar Ali Khan, with something else. It we do it. I would now like to know from Mr. is undoubtedly a matter of grace. But I am Akba^ Ali Khan whether he would like to be a concerned here not with the gracefulness of Minister or a Governor. things. I am concerned here with con- SHRI AKBAR ALI KHAN: Irrelevant. stitutional principles. I am concerned here with telling the world that the highest in the SHRI BHUPESH GUPTA: It seems he likes to land today, in a country of poverty, squalor, be a Minister which means he would get less hunger and disease receives a salary which is money. Now, I find that some Governors have not so high, but which is low, compared to imposed a 10 per cent, cut in their salary. Some what his counterparts in other parts of the others have not. I find that my State is one world get. This is the message that I want to where the Governor does not believe in any give to the people at large and to the world at voluntary cut. The Governor there gets Rs. large, and I think it is well worth doing it. Dr. 66,000. From the Budget figures, I find it is Rs. Rajendra Prasad has proved it and therefore, 66,000 and this Rs. 66,000 is taken. that argument does not stand at all. This SHRI AKBAR ALI KHAN: She spends on poor argument that you require Rs. 10,000 has students. been blown sky-high, the argument namely, that for maintaining the dignity of this office SHRI BHUPESH GUPTA; In Andhra or for fulfilling those functions you require Pradesh there is a cut and Mr. Akbar that sum. That is what I want to say. Ali Khan's Governor has made a voluntary cut. He takes Rs. 6,600 less. I say again that I deeply appreciate the Assam does not seem to believe in any voluntary cut that Dr. Rajendra Prasad has cut. Bihar has a 10 per cent. cut. made and I want you to accept it. Accept it Gujarat—they are business men and not in sentiments only, but bring it into the they do not believe in this kind of Constitution as a matter of law and make it meaningless cuts. Kerala has no cut impossible for any one on some future date, and the pound of flesh, the whole to deviate from the good and honourable Rs. 66,000 is taken. In Madhya example the President has set. This is what I Pradesh also the pound of want you to do. flesh h taken. In Madras there is a cut and the [MR. DEPUTY CHAIRMAN in the Chair.] Governor there takes Rs. 6,600 less. In Maharashtra, the Budget shows this sum of Rs. As far as the Governors are concerned, well, 66,000 and I don't know whether there is any I don't know why we must spend Rs. 5,000 cut or not. There does not seem to be. Mysore, per month for these Governors. I don't know well the Governor there can give some money. why we should. There are, in fact, two things Therefore, he takes Rs. 11,000 or Rs. 13,000. I which I have not been able to understand in don't know how much. He n the Maharaja of my life. One is, why people should be sitting Mysore and he can finance the State. For in the House of Lords, why the House of Orissa, I find Rs. 46,000 in the Budget. I don't Lords should be maintained in England. The know whether there is a cut or not. There seems to be a I cut. In the case of Punjab—and 1877 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1878 Dr. An up Singh may note, there may be can discuss things. So I say, you please live smuggling and so on but— there is a 10 per up to those ideals. Remember your Karachi cent. cut. In Rajasthan there is the 10 per Resolution of 1931 and live up to the ideals cent. cut. In Uttar Pradesh—Mr. Pathak's of the Karachi Resolution embodying the State— they don't believe in any cut at all. ideas and feelings of our nationalism. Here They get cut only by the Jan Sangh. The you have Rs. 66,000. Dr. Mookerjee was only cut that they permit themselves is the getting Rs. 6,000 and now we have Rs. cut that the Jan Sangh inflicts on them. In 66,000. Are we advancing towards socialism, Jammu and Kashmir, the Sadr-i-Riaysat does Mr. Santosh Kumar Basu? It is a Rs. 66,000 not believe in any cut. Therefore, why make socialism. Why should the Governors get an appeal to the civil officers to have a money? What for? What functions of brain voluntary cut when your own Governors do and brawn do they discharge that they have not listen to your appeals? Some of them do to be replenished and recouped in this man- not make any cut at all even when they get ner? I do not think going to wedding parties such huge amounts. requires a very high calibre of intellect or energy for which you must give nourishment at the cost of Rs. 66,000. We do not need it SHRI SANTOSH KUMAR BASU: Before even for receiving people at the airport. Even my friend proceeds further, it would be then, these things are provided for by the graceful to remember at this stage the budgetary provision. For example, the Raj example set by the previous Governor of Bhavan in West Bengal, cost in 1960-61 a West Bengal—Dr. Mookerji. He was sum of Rs. 6,72,700. This includes the salary drawing only Rs. 500 per month. of the Governor. That means, a sum of about Rs. 6 lakhs was provided for Raj Bhavan. In SHRI BHUPESH GUPTA: Sir, I would like that year they bought furniture, curtains, such men to be mentioned. I am glad the carpets, mosquito nets and so on and this hon. Member has mentioned this name. But cost them Rs. 42,500 a year or Rs. 3,540 per then he was not a Conressman. month. Can we imagine an institution so ostentatious, so extravagant, so futile and so SHRI BAIRAGI DWIBEDY (Orissa): What negative like the institution of governorship was he? in our country? When somebody does not like somebody to be in the Cabinet, he SHRI BHUPESH GUPTA: I may tell you, he becomes a Governor. When a Minister gets was not a Congressman but a Christian defeated, then he becomes a Governor. When gentleman. somebody does not like an I. C. S. officer and he has to be provided for somewhere, SHRI SANTOSH KUMAR BASU: So much then he is sent to a State to become a the more credit to Congressmen who Governor. Well, I do not know, at this rate, appointed a man like him. where we shall be going. Maintain them, if you like but why should the public spend so SHRI BHUPESH GUPTA; That is all right. much money on them? The sum of Rs. 750 is But why don't you follow up that credit? a very high amount. I have been unduly Now there is no cut. It is gone. generous in this matter. That is not my habit. I think Rs. 750 with everything provided for, SHRI SANTOSH KUMAR BASU: I am not all found, is enough, They live in the Raj going to discuss the present. I only wanted Bha-vans, all found their car, their bearer, to point this out. their secretariat, their mosquito nets, their lamps and so on everything provided for. SHRI BHUPESH GUPTA: You had Mahatma Gandhi who wa; a Congress man for example. That way you 1879 Constitution [RAJYA SABHA] (Amdt.) Bill, 1962 1880

AN HON. MEMBER: Cigarettes. and ask the people what they feel about the Governor and they will tell you. Just bear that SHRI BHUPESH GUPTA: After that we put in mind. It is not a question of Congressmen Rs. 66,000 in their pockets. We are not going or Communists. There is a general feeling in to build socialism. Are we building socialism the country that if ever there is a wastage of in the private chambers of our Governors? If public funds under the Constitution, it is in socialism means that the Governors should the Raj Bhavans where lakhs and lakhs of flourish in this manner, should be pampered rupees are spent for no purpose at all. I do not in this manner, then you are not only not know why the Governors should get so much building up socialism but you are almost on money when the Prime Minister of the the high road to paradise. I say that this country is getting Rs. 2250? If we can find a should go. Therefore, I shall reduce the salary Prime Minister, we tan also find Governors. and if you cannot find Governors for Rs. 750 Supposing you were to say that the Prime I volunteer consultations in this matter and I Minister wanted to take as a Minister a can offer you some candidates, good person from amongst the Governors and were candidates; they will not be as old as the to ask for volunteers, you will find that other ones but they will be very useful for almost all of them will volunteer to become going to functions, sports, and so on, Ministers because money is not their problem receiving people and at times saying a thing at all. I do not say that these gentlemen, ladies or two better than what many Governors say. and gentlemen because there are ladies also, I do not understand why they should be paid are just motivated by financial considerations so much. Does it mean that if we reduce the because they were not there when the law salary, people will not be forthcoming to was passed. You just passed the law, you become Governors? Well, if it is so, then it passed the Constitution and followed the would be a sad day for our future. I think if British line. Your aim was. "The British were the post is maintained and even if you reduce giving this and so we must also give." I am the salary to Rs. 750, many people would still be available. Now, you do not take Govern- surprised at the old Rolls Royce car which is nors by advertisement. You first of all look at a misfit in the modern world still being used. the election results, find out how many have These Rolls Royce cars were used by the got defeated, how many big men have got Governors in the British days. It is very defeated and then when the Prime Minister antiquated and carries all the evidence of thinks of the list of members for the new conservatism in the Government House. It is Cabinet, people whom he has to drop out, a waste. There-'fore, Madam Deputy then, on the basis of that, you come to the Chairman, I would like this amount to be conclusion as to who should be sent to the reduced. I have before me the social Raj Bhavans in the various States. You have objectives and these should apply to high got a number of Raj Bhavans at your disposal places and from there we should set examples to send these people to. That is how this is for the rest. We can however function very settled, nothing to do with public policy at all. well with a lesser sum as Dr. Rajendra Prasad We are now told in the press that the pension has amply shown and I can tell you that of the President will be increased and so on. Governors will be better off, politically and otherwise but not financially, if you give Well, we do not like that thing. This them little less, about Rs. I'M. i can tell you approach must go. Go to the streets of also that much. Calcutta or any town and ask the people there; go to a cafeteria, go to a restaurant, go These are the provisions of this Bill. I have to a school or college concluded the last item of my amending Bill. Madam Deputy Chairman, I must thank the House for giv- 1881 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1882 ing a kind and patient hearing with lively shape of a constitutional provision in article interruptions from the opposite side. I like 74. We have a written Constitution; if we these interruptions because they had an unwritten Constitution, we could have stimulate thought, they generate debate perhaps waited for conventions to grow or and they introduce polemics in for matters to take their course but today discussion and this is what it should be. I having adapted a written Constitution by would only like to state, in conclusion, which we take our oath or affirmation in this that I have brought this Bill with a view House and in other places, we cannot afford to to highlighting before the country and this leave things in ambiguity or to leave gaps in Parliament certain important aspects of our order that some people some day might seize public policy. I have no personal upon this lacuna in the provisions of the complaint against any one and it is not at Constitution and put the wheels in the all intended to cause any injury to any opposite direction and bring about individual but principles are principles and certain reactionary changes or trends in our they have to be maintained. The fight for political life. I am not willing to risk it. principles is a continuous process and it Nothing is lost, if you agree with me about the mutit go on. There is no end to that fight. supremacy of Parliament, by making it a May be today we are wrong, may be today part of the law itself, incorporating it in the you are right but how will it be determined Constitution itself. Similarly, I want the unless there is debate, and discussion, judiciary to be absolutely free from unless there is controversy, unless influences, direct or indirect, of the Home contrary points of view are placed Ministry, of the Executive, of the Chief before the nation and we go back to the Ministers. Today we are in the formative stage nation to seek their wisdom, judgment and of our parliamentary institutions. A experience in order to arrive at a correct time may come when many parties may demo:ratic solution of the problems facing come in, conflicts may develop, where one us? That is why I have placed before you party may rule a State today, another party the question of the supremacy of Parliament. may rule a State in the next election, and we The supremacy of Parliament has to be do not want our judiciary to be placed at the maintained in the Constitution, in the House, mercy of political variations of this type. in the Lobby, outside the House, in our On the contrary we want to give our public life in the fields and factories and we judiciary an assurance, a guarantee, that in must not keep any loophole in our the interests of the nation, in the interests Constitutional provision whereby some of progressive attitude and dynamic outlook, day some malevolent force of counter- they are assured of their integrity, of their revolution might rear its head and seek independence and there shall not be any to subvert the Constitution, do away with authority in the country to encroach upon the supremacy of Parliament and instal in or to intrude upon their independent authority its place a regime of arbitrariness and and their integrity. That is what we want to authoritarianism. tell them. We want the judges of our country to feel that here in Parliament we function to strengthen all the arms of our We do not want such things. We want to State, whether legislative, whether judicial, mould the thinking of the nation, to direct whether executive, in the service of the the thoughts of the nation along the lines nation. Justice today is an important aspect on which parliamentary institutions shall of our public life and we want our judges to prosper and progress. That is why we say, be men of character and integrity, free of all make it obligatory on the part of the encroachment, of all influences, so that they President to respect the advice of the can uphold the scale? of Council of Ministers, place him under the mandate of the nation. This mandate of the nation can be given in the 1883 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1884 [Shri Bhupesh Gupta.] life and impress, by our example and by our inspiration, upon others to behave in the justice evenly in a decent way and administer same manner as we do. That is what I wish justice for the sake of common man, for the to tell them. progress of the society, so that in the administration of justice evil and good are Madam Deputy Chairman, I think I have not placed in the same category so that what raised a whole number of important public we go after is evil and what we enshrine in issues in the course of the discussion. I know the practice of our life is goodness and many people may not agree with everything democracy. We want to tell them likewise that I have said but that is not the main point that we want to take away the arbitrary today. I would like these things to be power of the President to come down upon discussed on merits; I would like these things progressive movements with ordinances and to be discussed with a sense of detachment defy the legislative supremacy by passing from party and other affiliations. I would like them simply be.ause they anticipate the these things to be discussed from the point of support from the majority as had been done view of the great social objectives that we in the case of the Central Government have set before ourselves according to the employees' strike. We do not want preamble of our Constitution bearing in mind democracy to be polluted by provisions of always the Directive Principles of State this type by which the arbitrariness, the fiat Policy which unfortunately today are not of the Executive becomes the law of the land enforceable. I think only in this way can we, and the legislative organs have to wait at the Madam Deputy Chairman, recapture the pleasure of the Executive to be summoned at finest traditions of our national liberation will. We do not like this. That is why I have movement, that tradition of simplicity, of made this provision here. high thinking and simple living, of which Maha-tma Gandhi was an embodiment. Let We want again these institutions of us go back to those days of the greatest Governors and Presidents, as I have said, to martyrs to the cause of our independence and be brought in line with the concepts of our translate those thoughts into a living reality social objectives and to begin with, we want by having these provisions. That is how we the salaries to be reduced so that we can tell should rise to the occasion. I think the time our starving people, our unemployed bro- has come after ten years of constitutional thers and sisters in the country, that even the experience to realise that we must not live in highest in the land would not be getting such the past. We must look forward to the future. fabulous salaries as the Managing Directors To look forward to the future we must have of Tatas and Birlas get. From that position of courage; we must have resolution, we must moral strength and stature after reduction of have a dynamic mind and readiness to their salaries we want to dictate with change according to the changing times. We authority and power of the Parliament to the must have the capacity to respond to the will Managing Directors of the companies, to the of and desires of the people. I think if anything Chairmen of the Boards Directors, 'You today is before us, it is this that we must have to reduce your salary. You are not en- bring all our activities in line with the social titled morally and otherwise to take such objectives, in line with the concepts that high salaries as you are taking. The time has many of us share and popularise in the come to minister to the needs of the working country. We want this country of hunger and people and the employees. We do so with squalor to rise from its age-long poverty to our own employees. Government be a great country with a proud heritage, to employees.' ^o we begin at home and we be a strong country, but a beginning must be project /urselves into the wider context o-f made by those on whom 1885 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1886 the greatest responsibility lies. That is why I Madam, I shall point out to hon. Members of appeal to hon. Members in this House, the House how and in what respects some Members of Parliament, to consider seriously fundamental principles which form the whether they should not give adequate framework and the bedrock o'f our thought to this proposal that I have made and Constitution would be weakened if this make a break with the past which is passing amendment were to be accepted. There are away and step into the future which is checks and balances. Power is not summoning us to greater action, to greater concentrated in any functionary under the thoughts, to higher ideals and nobler Constitution. There are certain concepts, sentiments. Thank you. constitutional con:apts, which were designedly imported into the Constitution. The question was proposed. Take away those concepts, weaken those concepts and the Constitution will become SHRI G. S. PATHAK: Madam Deputy very weak. Now, the Bill will, as it does, Chairman, this Bill, as I have said, is tinker with this Constitution. It will destroy impracticable. Some parts of it are fraught the fine equilibrium of the various powers with dangerous consequences and some parts which are conferred by the Constitution on of it are unnecessary. Our Constitution was the various functionaries and there does not framed by experts like Sir B. N. Rau, Dr. appear to be any sound reason why this Ambedkar, Sir Alladi and others. These tinkering should take place. experts had studied not only the Constitutions Now, I shall take up, one by one, the various of the world but also the practical working of clauses of this Bill, and I shall show to you those Constitutions. Sir B. N. Rau had gone to that some of the clauses are either a number of countries in order to study on the unnecessary and impracticable or are fraught spot the working of different Constitutions. with grave danger. I shall take up clause 2 These experts were well versed in first. This clause divides itself into two parts: constitutional principles, in principles of — constitutional law and in constitutional history of India. (i) "AH such advice shall be binding on the President;" They were men of experience and it is they, (ii) "Unless each House of Parliament by a who along with others—I will not mention all motion passed by a majority of the total the names—after considerable thought and membership of the House and by a majority study framed this Constitution, which was of not less than two-thirds of the members of passed after prolonged deliberations. The Bill that House present and voting, requests the seeks to amend this Constitution and the effect President to disregard the advice." of the amendment is not merely to supply something on the periphery which may be Now, interpreting the two parts, the result is wanted or something which may have been that if both the Houses of Parliament pass by a necessitated by some new circumstances. The certain majority a resolution and by that amendment envisaged in this, Bill will result resolution request the President to disregard in affecting important, basic principles the advice, then, the advice of the Cabinet underlying the Constitution of the country. Our shall not be binding on the President. Now, I Constitution is a delicate machinery, is a shall deal with it in detail a little later, What delicate mechanism. There are some strong will happen if the President holds a certain pillars upon which the edifice of the view which is not the view Of the Cabinet? If Constitution rests. You destroy the principles Parliament passes a resolution, the result of or weaken the principles relating to those that will be that the President will be requested pillars, and you are weakening the edifice to disregard the itself. 1887 Constitution [ RAJYA SABHA] (Amdt.) Bill, 1962 1888 [Shri G. S. Pathak.] dent, in one of his speeches stated that this advice of the Cabinet. Suppose the President was a proper subject of study. I had the does not accept that request. It is a mere honour of being present at the time when he request made by Parliament. The President made that statement. That was the occasion holds his own views on the matter. He is not when the Indian Law Institute building agreeing with the Cabinet. He does not opening ceremony was being performed, and accept the request of Parliament. What is he the President mentioned this as a fit subject going to do? Will he act on his own views? If for study by the Indian Law Institute. If any he acts on his own views, who will be constitutional matter is mentioned as a fit responsible for the action taken by him? We subject for study by any high dignitary of know that in article 361 of the Constitution, our country; that does not furnish an occa- the principle of the English law that the King sion for amendment of the Constitution upon or Queen can do no wrong has been the ground that there wa; some doubt about incorporated. If the President takes any it. Or does the fact that there is a seminar action, he not accountable to anybody for where from the very nature of the case that action in any court of law. He cannot be speakers speak for alternative views furnish sued. For his action, according to article 361, a ground for amendment of the Constitution? the Government can be sued. The principle is Beyond this what has happened which has that the President can do no wrong. occasioned the necessity of a Bill upon this Therefore, article 361 incorporates the question? principle of responsibility of the Cabinet and If the constitutional provisions which define the principle that the President acts as the the relationship or which govern the constitutional head, not amenable to the relationship between iha President and the jurisdiction of any court, not accountable to Cabinet are close'y examined in the any court or to anybody else for his actions. background of the Constitutional history in Now, if as in the case mentioned by me, the which our Constitution was framed, there President does not accept the request of cannot be any doubt that the intention of the Parliament, does not agree with the Cabinet constitution-makers was to adopt the and takes action according to his own views, principle of constitutional Presidentship in the result will be that nobody will be our Constitution, which necessarily means responsible for his actions. He is not that the President has to act on the advice of responsible for his actions because of the the Caibinet which is responsible to immunity under article 361. Parliament. On this matter I will mention It is not the action of the Government which just three or four considerations which will he has accepted, therefore the Government is show that the matter does not rest in doubt. not responsible. While formulating this Take first this article 361 itself, that is the amendment other articles have been lost embodiment of the principle that wherever sight of. The principle underlying article 361 the President acts, he is not answerable and it and the principle underlying article 74 have is the Cabinet or the Government which is been completely lost sight of. You cannot responsible. The Government can always be introduce an amendment which may result in sued for the acts of the President. Then con- reductio ad absurdum, which will make it sider this expression "aid and advise". This, impossible for the Constitution to work, for Mafdam, is a technical expression which in the Government machinery to function. Now course of time had acquired a definite the first part is unnecessary. The reason sign'ficance. It was to be found in a number given by Mr. Bhupesh Gupta is that Dr. of statutes which laid down the Constitutions Rajendra Prasad, the retiring Presi- of some Dominions and which statutes were passed by the British 1889 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 1890 Parliament. In India, when the Government with Constitutional practice. The President of India Act was passed in 1935, section 9 of is not the State; he could not say like Louis the Government of India Act gave two kinds XIV, "I am the state", out he is the of powers to the Governor-General: (1) personification of the State, and in where he had to act according to the advice legislation, in courts, tne word 'may' is used of the Ministers, and (2) where he could act where 'shall' is meant. In legislation out of in his own judgment. Two specific respect, oui 01 courtesy, such language is provisions were made in sec-lion 9 of the not used, and it is not said "This shall be Government of India Act. Therefore, at that binding on the President of India". time full responsible Government was not xiuWj 11 tne President 01 lnuia hau uui LO treated; qua certain matters there was res- loiiiow tne advice of the Cabinet, serious ponsible Government; qua matters in respect consequences wouid re-suit. Tne President of which the Governor-General could act in would have to descend into tne arena of his own discretion there was no responsible controversies. He holds one particular view, Government. When the Indian Independence the Cabinet holds another view, and tne view Act was passed and India became a that the President might be no'iding might be Dominion, an amendment was made by the view 01 some other party. And it was which those provisions which gave the never, and could never be, contemplated by p;wer to the Governor-General to act in his the Constitution-makers that the President own discretion were deleted, and the only w^uld take part in politics and that he would provision left was the provision upon wnicn be a party to any con-trover -sues. That arreie 74 is based. I am reading section 9 of would destroy the neutral posiiion which the the amended Government of India Act: Constitution intended the President to "There shall be a Council of Ministers to aid occupy. He will be compromising this and advise the Governor-General in the neutrality if he holds any view on a political exercise of his functions". That is identically matter, which view he might enforce by his the language of article 74. This, therefore, action. When I say this, I do not mean that shows that "aid and advise" was an the President has got no function to perform expression which had acquired a definite in this matter or that he will merely rubber- meaning in constitutional law, and wherever stamp everything without considering the this expression was used, what was intended aspects of the question on which advice is was that the "aid and advice" shall be given to him. The President, by reason of his followed by the dignitary to whom that "aid experience, by reason of his knowledge of and advice" was given. That had been the public affairs by reason of his knowledge of constitutional practice in the United foreign affairs which he acquires when Kingdom, and this expression was borrowed foreign dignitaries meet him, is a very from that practice and incorporated in competent person to exercise a powerful various statutes. influence on the views which the Cabinet SHRI P. N. SAPRU: Not in the Irish might hold, and if he is a powerful President, Constitution. then he would be m a position to influence the views of the Cabinet. But when it comes SHRI G. S. PATHAK: You are talking of to taking action, then it must be action taken independent Ireland. I am talking of according to the advice of the Cabinet. Dominions. I did not talk Otherwise, deadlocks would result and the of independent Ireland. Now, 4 P.M. 'aid Constitution cannot be interpreted in a and advice' therefore had manner which may result in the creation of received a definite meaning. The reason why insoluble deadlocks. I will g've you one ins- it was not said that 'aid and advise' shall be tance. Suppose the President does binding on the President was again in consonance 1891 Constitution [ RAJYA SABHA] (Amdt.) Bill, 1962 1892 [Shri G. S. Pathak.] Now, these are the attributes of a not agree with the Cabinet, the result will be c.nstitutioraal monarchy or a consti-ui'.ional that the Cabinet will resign. This instance is presidentship. And if there is any other not invented by me; this is an instance given position possible, then you will be depriving in books on Constitutional Law. The Cabinet all these Constitutional provisions of their will resign. The Cabinet will ask the real intent. Therefore, it is not necessary at mandate of the people who are sovereign. all that there should be this amendment. The people return the same party. The same Now, about the second part of clause (2), as I leader is app3inted. The leader selects the have pointed out, this will result as it stands same Ministers. The same view is taken, and in reductio ad absurdum, and certain articles that view is presented again to the President. 1 of the Constitution would become unwork- Now, this will result in a deadlock, and we able. There is another aspect which deserves cannot interpret any Constitution in a man- consideration and that is this. Secrecy would ner which may create deadlocks because that be taken away from, what passes on between could not have been intended by the the Cabinet and the President. There may be Constitution-makers. Consequently, in important matters; there may be important whatever way you may look at this question, reasons which it may not be in the interest of in whatever way you may approach this the State to disclose; there may be important question, there cannot he any doubt that the discussion. Yet, if the requirement is that President has to act according to the advice Parliament shall consider it, then how shall of the Cabinet. Parliament consider it unless that advice is placed before Parliament? Either the Now, it is a very important circumstance that President informs Parliament that the Prime article 53 of the Const'tutica says, "The Minister has given this advice 0r the Prime President shall act in accordance with this Minister informs Parliament that this is the Constitution". Article 74 is a part of the advice which is going to be given to the Constitution. We do not find this expression President. Parliament then will assume "in accordance with this Constitution" executive function, wh'eh is not the function mentioned in many places in the of Parliament; Parliament will be conducting Constitution. Therefore, when you look at Government business, and the great design article 77 or article 78—"Conduct of underlying our Constitution will be Government Business"—you will find that destroyed. There may be an emergent matter. the Cabinet is mentioned there, that it is the Parliament may take some time to decide duty of the Prime Minister to communicate whether the advice was correct or wrong. to the President what business has been The amendment does not say that Parliament transacted or what decisions have been will give advice. The Parliament will only arrived at. It is the right of the President to say: "We request you to disregard the advice call for information. And that, I submit, of the Prime Minister". Now there may be a reinforces the position that this information matter which may require expeditious would be needed by the President for the handling, and if the Prime Minister goes to purposes of consultation. What is very the President and gives him the advice that important in this connection is that secrecy law has to be made or Ordinance has to be has to he maintained. It is not open to any passed, then in that case the matter may not court to enquire in any litigation which is brook any delay, and all this Parliamen*ary contemplated under article 361, whether any procedure which would deal with the advice advice was given to the President, and, if so, given by the Prime Minister what advice was given to the President. 1893 Constitution [4 MAY 1962] (Amdt.) Bill, 1962 ^94 to the President, I submit, would bs contrary be a law which may provide for legal to the very concepts which we have strikes—the Industrial Disputes A.', for incorporated in the Constitution. It is not a example, and there may be oth:r laws. But if matter concerning the supremacy of there is a law which while providing for Parliament. Parliament is supreme in its strikes, is unreasonable, is not in public sphere, but we cannot confuse one sphere interest, then what has been described by Mr. with another. Parliament cannot be allowed Bhupesh Gupta as the Fundamental Right to arrogate to itself a sphere whic'i under the could not be exercised under article 19. Now, principles of constitutional law incorporated therefore, there may be a strike which in in our Constitution belongs to the Executive. essence may not be a mere strike against the Therefore, clause 2 is both unnecessary and employer, may be a strike against the nation impracticable and is contrary to the basic itself. There may be a general strike. There framework of the Constitution, and cannot, may be a strike in which communications are therefore, be accepted. completely stopped. There may be a strike which may affect health, welfare of the State, N;w, I shall very briefly deal with clause 3. a strike which may affect the defence of the Article 123 gives the power to the President country. It may be necessary to move forces to make an Ordinance where two conditions or to move war materials or to move food occur, (1) when both the Houses are not from place to place. Now that would not be a sitting, and (2) where immediate action is strike in the real sense of an industrial strike; necessary. Now these are the two important that would be a strike which has been conditions. The President is not empowered described by an English Judge as a strike to pass any Ordinance if the Houses of against the Government and the nation, and Parliament are dtting, or immediate action is such strikes would be illegal. Now Mr. not necessary. Now, therefore, jn, the life of Bhupesh Gupta said: "Why Ordinance? Why a nation, emergencies may occur; these two not call Parliament?" Now, with respect I events or these two conditions msy occur; want to remind Mr. Bhupesh Gupta that immediate action may be necessary; b^th when you call Members of Parliament to Houses may not be sitting at one time. In that Delhi, they cannot come on foot; they have case and in that case alone the President can to come either by railway or by air. There function under article 123. Now kindly may be a situation where, as a result of a consider the language of the proviso which is strike, railway communication and air sought to be added to article 123. communication may be stopped. Can you call Parliament then? And if you call "Provided that no such Ordinance shall be Parliament, how will the Members of promulgated to declare illegal any strike..." Parliament—750— assemble here to deal with the emergency? Now Mr. Bhupesh Kindly mark the word 'any'. Gupta has not considered these various aspects. "...of the workers or of the civil employees or of any other section of the working people." SHRI M. S. GURUPADA SWAMY Now, Madam, nobody is disputing that the (Mysore): May I ask the hon. Member, in aH workmen have got a right to work and a right cases of strike, is it not true that there will be not to work—the right to strike work. But in notices issued in advance and there will be our Constitution no right is given in absolute sufficient time to discuss the issue? terms; there are always limitations imposed on every right. Ordinarily there may SHRI G. S. PATHAK: Yes, there may be notices issued; there may be sufficient time for discussion. But 1895 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1896 [Shri G. S. Pathak.J SHRI G. S. PATHAK: Now, let us their demands may ,be so exorbitant; it may remember, Madam, that there is a recent not be possible to meet the demands; there decision of the Supreme Court about may be no conciliation. And then they may Government employees that the go on strike. Government employees have got a right to place their grievances before the public. SHRI BHUPESH GUPTA: Why was SHRI BIREN GHOSH (West Bengal): Right it not p:ssible to call Parliament on the 8th to strike is restricted but right to private of July, because there was no strike then? property is unrestricted.

SHRI G. S. PATHAK: I am discussing an SHRI G. S. PATHAK: I have got a brief amendment to the Constitution which would summary. I will read three or four lines to apply to a variety of cases. I am not you. That may help you. There is no discussing one particular occurrence. I am question of property. It says: discussing the words "any strike". "Demonstration is a visible form of the Now, can it not happen that in spite of the feeling or sentiments of an individual or a best efforts cf workmen, employer and the group. It is thus a communication of one's Government, there may be no success ideas to others to whom it is intended to be achieved? Can it not be contemplated that in conveyed. It is in effect, therefore, a form of spile of prior notices, in spite of meetings, in speech or expression, because speech need spite of discussions, there is no success not be vocal since signs made by dumb achieved and the workmen go on strike? If person would also be a form of speech. Rule they go on strike, then s tuations are 4A in the form in which it now stands conceivable where it may amount to a strike prohibiting "any form of demonstration" is against the nation. A right, which is violative of the appellant's right under Art. incidental :o collective bargaining, may 19(1) (a) and (b) and should therefore be become an engine of oppression which struck down. The Constitution does not might be employed to disturb the life of the exclude Government servants as a class from community, and in such cases this the protection of the several rights amendment, if passed, would create a guaranteed by the several articles In part III situation where there may be threat to the save in those cases where such persons were existence of the State itself, and in the specifically named (Art. 33). The court illustration taken by me, China, of course, upheld that portion of the rule prohibiting will be very happy because when we have resort'ng to any form of strike by got a conflict with a country like China, Government Servant." whose ideal is, or which believes in the in- And the word "any" occurs here In this Bill. evitability of war for the prosecution of its Now, we in India have our traditions to ideals, such a situation would be very respect law, and mythlng which may disturb welcome to it, a situation where you cannot those traditions would not be in consonance move Forces, where you cannot move army with any good public policy. material, where you cannot move food and there is disturbance in the whole country. Sir, everyone in th;s House remembers the Therefore, as I subnr'tted, there are tolerable general strike of 1926 in England where the limits of the right to strike in every voice of on» lawyer and of one Judge democratic country. stopped trie

SHRI B. K. P. SINHA: It is not a fundamental right. 1897 Constitution [ 4 MAY 1962 ] (Amdt.) Bill, 1962 1898 strike. Sir John Simon and a Judge of the Therefore, this is not a matter which had to High Court stopped the strike when they be separately stated in article 124, it has to said that a general strike of this form was be read with article 74 and the President has illegal. That shows that the people, when to take the advice of the Cabinet in the they have respect for the law and when they matter of the appointment of a Supreme realise that they cannot have a strike against Court Judge. Mr. Bhupesh Gupta's the nation, do not go on str.ke. It would be amendment says that no advice shall be wrong for anybody to entertain the idea that taken. such a strike is tolerated by our Constitution or such a strike against the nation should be SHRI BHUPESH GUPTA: No advice from imported into our Constitution by an the Council of Ministers. amendment. That disposes of clause 3. SHRI G. S. PATHAK: Which means the Madam, I am not troubling you very much Cabinet. with the judiciary part of it but as the time is SHRI BHUPESH GUPTA: Yes, but from the very short, I will make just two observations Chief Justice. on this question. The argument which you find in the speech of my friend, Mr. SHRI G. S. PATHAK: Which means that in Bhupesh Gupta, is inconsistent with his this matter, the President, the constitutional thesis which he has made in relation to Head of the State, shall be acting not as a clause 2. In clause 2 his thesis is that article constitutional Head, which means taking the 74 makes the Cabinet's advice binding upon advice of the Cabinet, but will be acting as the President. Now, article 74 says: an unconstitutional Head.

"...to aid and advise the President." AN HON. MEMBER: Despotically. in the functions which the President has to discharge. Is the appointment of a Supreme SHRI G. S. PATHAK: This will be taking us Court Judge not a function which the back to the British period when in 1935 President has to discharge? Kindly there were two classes of functions which remember the language of article 74. the Governor-General had to perform. One was where he had to act on the advice ot SHRI BHUPESH GUPTA: You are right. I ethers, and the other, where he had to act in am taking that portion out. his own discretion. This, then is the advance which, according to Mr. Bhupesh Gupta, we SHRI G. S. PATHAK: Yes, you will take out must make now, namely that we must revert at one place hut insist on it at another place. Therefore, 1his is an executive function. back to the British period. Remember, appointment of a functionary or On this question of the appointment of an official is an executive function, it is not Supreme Court Judges, I want to say just a legislative function. Therefore, when the one thing more. He has proposed in his Bill: President has to exercise this function, how will he exercise it? Will he not exercise it on "in the event of any conflict of opinion ; the advice of the Cabinet or can he exercise between the President and the Ch ef Justice this function apart from the advice? When of India or the Chief Justice of a High Court, article 53 says that the President shall all names under consideration rhall be exercise his functions in accoi-dance with referred to the Legislative Assembly of the the Constitution, article 74 says that aid and State concerned for opinion before arriving advice shall be given to him in the exercise at a final decision." of his functions. Therefore, this shows that the President has to arrive at a decision. That is point number one. The second 1899 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1900 [Shri G. S. Pathak.] point is that Parliament to have their names bandied about and to has to give an opinion on an executive have their character and their merits function. Now, there is this practical aspect. discussed in this manner.

SHRI BHUPESH GUPTA: May I ask the SHRI BHUPESH GUPTA: Take for example hon. Member one question? the case of an Ordinance. An Ordinance is issued by the P*esi-dent when Parliament [s SHRI G. S. PATHAK: Certainly. not in session. Than we are called upon to SHRI BHUPESH GUPTA: Character give an opinion and unless we endorse it it assassination was mentioned. I don't assume lapses after six weeks. it. Anyhow, suppose one is to be made the President. Is it not open to the press and the AN HON. MEMBER: That is not an public to discuss the matter publicly? executive function, SHRI G. S. PATHAK: That is an office which goes by election. And from the very fact that SHRI G. S. PATHAK: I am not the Constitution contemplated that the obsessed with Ordinances and I have judiciary should be independent, a particular dealt with them. So I will proceed kind of tenure was given to the Judges. In an with this matter now. Please consi election matter you may discuss anything. If der what is going to be the result if a man stands for election, that may be the this proviso is put in the Constitu case. tion. Apart from the question that this proviso requires the President to SHRI P. N. SAPRU: Under the German arrive at a fined decision, as an un system also. constitutional Head of the State, Parliament as got to give an opinion SHRI G. S. PATHAK: I will come to that upon the merits of the various per German system also. I have omitted from Mr. sons whose names have been sent up. Gupta's speech so many things,—Hitler, and Now, the Judge's office is a very high so on. If I have to come back, I will do so. office and you require, to fill that office, persons of character and reputation. We must bear in mind, therefore, the nature of We know that where there are seve this office. There is one case which comes to ral names, there /nay be some as my mind and it may be interesting here. After pirants too. There may be some per a person had been appointed a Judge, sons who have been persuaded to ac somebody had made a remark relating to the cept. Even people possessing charac time before he was appointed. There was a ter may have rivals and the result case in court. The argument was that a will be that if a person who may reference was made to that person and to his have been asked to become a conduct at a time when he was not a Judge. Supreme Court Judge, will There was an argument in the Privy Council have to submit to charac- and the gentleman —Mr. Jowitt as he than ter assassination. His name will he bandied was—asked: "Is it a slander on the butterfly if about. There are people who are instructing you call it ugly at the cocoon stage? The stage Members of Parliament, interested people. In at which you want the person to be discussed that case, there will not be a single self- here is the cocoon stage." This argument was respecting man who would like to be a not accepted by the Privy Council. It is such a Supreme Court Judge. I do not say that you high office that it is best to keep the question will not find people who may yet like to have of appointment secret. Otherwise you will that office. But you can consider the position not get any of that office if it is filled, not by self-res- pecting men, but by men who would be prepared to be subjected to all this, vI90I Constitution [4 MAY 1962] (Amdt.) Bill, 1962 I9o2 - -respectable peisoni any person having any [THE VICE-CHAIRMAN (DR. A. SUBBA seif*respect of his own, for the RAO) in the Chair.] • office of the Supreme Court Judge. If you do not want to destroy the dignity of the office, of i do not want to cover many of the aspects the judiciary, you must remember what has often covered by the two previous speakers. been stated that the bulwark of our democracy is the judiciary: This dt-mocrac^ cinnot exist if you weaken the judicia-y. And it is the ma:i who Before I deal with the Bill in question, I want ma':es the office, whatever the office ma/ bf, at d to raise a general issue, an issue -which is if you allow peopl; who do not possess vary important to all of us. Wc have beer sufficient self-respect, working this Constitution for the las; one '"So fill tiat office, then you canno; have decade. Since then, lets of changes have been "a judiciary and you cannot have a democracy. made in the Constitution. It will be very fruitful and interesting indeed to study the HRI working of the Constitution in the last ten S BHUPESH GUPTA: The judiciary may be ; the bulwark of democracy, but there is a bull in years. No study has been undertaken in th: s the china-shop, a bull in tbe Home Ministry. regard except the few isolated debates now and then that have taken place when amendments were discussed either in this SHRI G. S. PATHAK: And in the first part of House or in the other House. You may ask clause 2 of the Bill -the Home Minister comes me why such a study of the working of the in. Anyway, I an", not discussing at present any Constitution is very necessary now, whether particular circumstances or any particular matter any situation has arisen, whether any which is the subject of the Law Commission's development has ta^en place which calls for Report. I have discussed the principle and on such a study. For the last few years, it would this principle alone I submit thj;t this appear to any student of Consti tutioraal amendment also is fraught with dangerous History that the Indian Constitution h&6 consequences. It is as bad as the first one. been worked in sue a a way that it was not

L intended -to in many respects by the authors . Now, I have taken a long time and I would of the Constitution. Members will agree with close by saying that in my submission this Bill me if I briefly touch upon a few aspects of is really a chimerical Bill. the Indian Constitution which have been subjected to much criticism both in the press SHRI BHUPESH GUPTA: What is and on the platforms. The question of the that? '- Fundamental Rigths, the problem of the powers of the States versus the Union, the SHRI G. S. PATHAK: Chimaera question of the relationship between the exe- 'was -a monster in Greek mythology, cutive and the judiciary are some of these. To ' with the-head of a lion, the body of me it seems that the Indian Constitution has a goat and the tail of a snake. It was not been worked in the way it should have killed later and that mythological been worked, it ought to have been worked. ■monster gave the expression chimer- 1 There were instances, many instances in the ■' --ic'al to the Erig'ish language, which past, to show that the Constitution had been means grotesque and' fanciful. made a convenient instrument for the executive to do whatever it -wanted and from SHRI M. S. GURUPADASWAMY: •'^Madam' that point of view, the application of many of Deputy Chairman, there has -' been a: Very the provisions had been very much in the lehgthy debate on this ' ''Hill and its various wrong. Sometimes, there had clauses. 212 HS— 1903 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1904

[Shri M. S. Gurupadaswamy.] SHRI SHEEL BHADRA YAJEE (Bihar): been cases of total distortion of the various Mr. Vice-Chairman, it is not a fact. Mr. P. K. provisions, misapplication sometimes and Tare, the then Forward Bloc Advocate was appointed as judge. considerable misuse of the powers conferred on the executive by the Constitution. SHRI SANTOSH KUMAR BASU: Do not Anyway, the feeling ha gained ground in s mention names. the country that the executive has been mis- using the powers conferred upon it by the SHRI M. S. GURUPADASWAMY: I do not Constitution and that the Constitution has want to mention names. not been worked properly. There has been considerable abuse and not only that but a SHRI SHEEL BHADRA YAJEE: Why not? deliberate attempt is made on the part of the So many names of congressmen were executive to defeat the very spirit of the mentioned by Shri Bhupesh Gupta. Constitution. So, I suggest that it would be very necessary indeed that an overall study, SHRI M. S. GURUPADASWAMY: I have a detailed and objective study, of the not mentioned any names, working of the Indian Constitution should be undertaken at this hour. SHRI SHEEL BHADRA YAJEE: Names were mentioned by Comrade Bhupesh Gupta. Mr. P. K. Tare, an advocate beonging Now, in regard to the various matters that are to the Forward Bloc, who contested the contained in the present Bill, I must first of Congress and lost, was later o.\ appointed as all say that I partly agree with one or two a High Court Judge. things contained in the Bill and partly dis- agree with one or two things mentioned here. SHRI M. S. GURUPADASWAMY: Sir, I To begin with, let me deal with the question said that in many cases appointments of of the appointment of High Court Judges and judges have been made on political Supreme Court Judges. I think our consideration; I don't say ;n all cases, but in experience in the past has been contrary to many cases it has been so. I do ir>t want to what was said here, A legalistic argument be dragged to divulge . . can be advanced to justify the fact that we cannot and should not deny the right of the SHRI P. N. SAPRU: May I just point out that executive, in the last analysis, to appoint the so far as Chief Justiceship is concerned, it Judges. But what is the experience that we goes now by the rule of seniority. It is have gained in the past? May I ask the unfortunate that it goes by the rule of Members of the Treasury Benches whether seniority but that is the fact and so far as the spirit of the Constitution in regard to this apoointment of judges is concerned, rarely provision has been strictly adhered to in the ever is the recommendation of I he Chief appointment of Judges either to the Supreme Justice turned down by the Home Ministry. Court or to the High Courts? Is it not true, is The statement of the Law Commission that it not a fact that members who belong to the the responsibility for good or bad or indif- ruling party are invariably found to be the ferent appointments is with the Home persons best suited to fill such high posts? Ministry is not founded on facts and I Are there no instances to show most of these propose to S° mto that question when I appointments or assignments have gone to speak. members who belong to or who have got affiliation to the ruling party? SHRI M. &. GURUPADASWAMY: With due respect to the hon. Mr. Sapru, I still ho'd that in most of the cases not merit and merit alone, I905 Constitution [ 4 MAY 1962] (.Amdt.) Bill, 1962 1906 ability and ability alone, experience and ! ing too much but that they are inter-! fering experience alone is taken as the sole criterion too little. in appointing judges. I need not divulge tie I names of persons who have been appointed to SHRI M. S. GURUPADASWAMY: My hon. judgeships because it is not necessary and it friend seems to have become vary sensitive to is not desirable either but I would confine the criticism which is so legitimate and which myself to this remark that the appointments is based on certain facts. I am not making any of the judges of the High Courts or the sweeping remark. It will be an interesting Supreme court are not above board and in study now if you collect the statistics about most of the cases I still maintain that they these recent appointments made in the last few have been made on considerations other than years and see how many of these judges really the consideration contemplated under law or belong to< the Congress Party. If they are under the Constitution. deserving and if they are able as advocates or practitioners, certainly they have to be Shri SANTOSH KUMAR BASU: You say appointed. in most of the cases? SHRI P. N. SAPRU: I can speak with respect SHRI M S. GURUPADASWAMY: Yes. to my State and I hardly know a member of the Congress Party who has got a judgeship. SHRI SANTOSH KUMAR BASU: Absurd.

SHRI M. S. GURUPADASWAMY: It is not SHRI B. K. P. SINHA: Not in Bihar either. absurd. It is very absurd that such SHRI M. S. GURUPADASWAMY: I will just appointments have become absurd and have refresh the memory of hon. Members by become a mockery. The sanctity of the citing some examples from m own State. judiciary has been very much violated. y Perhaps maybe in Uttar Pradesh the appointments have been proper. SHRI P. N. SAPRU: May I point out that there are three sources from which our SHRI P. N. SAPRU: May I also point out that judges are drawn? There is the Bar. there is a great British writer has said that an the Indian Civil Service and there is the unsuccessful lawyer but a successful Provincial Judicial Service and parliamentarian ends his career as a Cabinet recommendations for appointments come Minister while a successful lawyer but an from the Chief Justice. If they are vitiated, if unsuccessful politician ends his career on the they have favourites, then the Home Bar? That is the paradox of the British Ministry cannot be held responsible for those system. appointments. SHRI M. S. GURUPADASWAMY: It is SHRI M. S. GURUPADASWAMY: It will natural that there are interruptions. And may I be an interesting study if . . . tell my hon. friend, Mr, Sapru, about some of the appointments made in my State? The SHRI B. K. P. SINHA: May I inform the hon. Home Ministry is aware of them but I have to Member that the judges are going on merrily refer to them here because I have been with the recommendations developing provoked to do so. I may tell for his judicial families? If the father is a judge, the information that there are two judges whole family becomes a faimly of judges. appointed after the Congress Party came to My charge against the Home Ministry is not power and those two Tudges of the High that they are interfer- Court belong to the Congress Party. They were regular members of the Congress Party. 1907 Constitution [ RAJYA SABHA ] (Amdt.) Bill, 1962 1908 [Shri M. £. Gurupadaswamy.] tries. As he ■'• mentioned, in America the Two others who were appointed later are Senate has got a direct interest in the very much attached to the Congress Party. selection vf judges and their retirement age is They went with the Congress Party. I do not not prescribed. They are appointed for life; like to dilate upon this aspect but it is a fact. I they may retire after 70 years. In other am equally concerned as other honour-able countries, there are different practices. We friends to protect the purity and sanctity of have been following the English practice. judges. After all, 1 am not making .an attack The English practice is that the Crown here; I .am just telling what has taken place appoints the judges of the superior courts and in. the past. That ,sbould not happen. There thereby the Prime Minister and his Cabinet has been a good deal of criticism about these will decide the personnel. The recom- .appointments both in the Bar and outside. It mendations made by the Cabinet and the has been the experience of many that a lot of Prime Minister are invariably accepted by wirepulling and pressures are brought in the the Crown. Generally, the decision is that of matter of such appointments and it is very the Executive ind not of the Crown. necessary that the judiciary should be protected from such pressures and the appointments, as far as possible, must be THE VICE-CHAIRMAN (DR. , A. SUBBA made on the basis of ability, merit, talent, RAO): You can continue' on -the next day. knowledge and experience. These ought to be the sole criteria on the basis of which judges should be appointed. The House stands adjourned till 11.00 AM,, on Monday, the 7th May, 1962.

In regard to the aspect that Mr. Bhupesh The House adjourned at five of the clock till Gupta has touched upon, namely, whether eleven of the clock on Monday, the 7th May the selection of judges should be made in consultation with the Ministers or not, there 1982. are different practices in different -coun-

GMGIPND—R.S.—212 R.S.—25 -7-62—550