Report No. 121
Historical Evolution of the Method of Appointment of Judges of the Superior Judiciary in India
2.1. A process of Indianisation of judiciary was in the offing and ground norms were laid for the same in the Government of India Act, 1915-1919. Provisions with regard to Indian High Courts were set out in Part IX of the Act. The power to appoint a Judge of the High Court was conferred on His Majesty (section 101). The power to fix salaries, allowances, furloughs and retiring pensions of a Judge was conferred on the Secretary of State-in-Council. The qualifications for being appointed a Judge of the High Court were set out in sub-section (3) of section 101 which, inter alia, provided that he must be:
(a) a Barrister of England or Ireland or a Member of the Faculty of Advocates in Scotland of not less than five years' standing, or
(b) a Member of the Indian Civil Service of not less than ten years' standing and having for at least three years served as, or exercised the power of, a district judge, or
(c) a persons having held judicial office not inferior to that of a subordinate judge, or a judge of a small cause court, for a period of not less than five years, or
(d) a persons having been a pleader of a High Court for a period of not less than ten years.
The last two qualifying clauses opened up a possibility for Indians being appointed as High Court Judges. There was a concept of a quota reserved for each category set out hereinabove. The quota was that not less than one-third of the Judges of a High Court, including the Chief Justice but excluding Additional Judges, must be such Barristers or advocates as aforesaid and not less than one-third must be Members of the Indian Civil Service.
Section 102 provided that every Judge of a High Court shall hold his office during His Majesty's pleasure. Two ugly features of the colonial approach to appointment of High Court Judges, with a tall claim that British Justice is being transplanted to a colonial country, were that the executive branch had a quota in High Court and that the tenure was at His Majesty's pleasure and the salaries and perks were to be determined by the executive. The votaries of independence of judiciary drawing their sustenance from United Kingdom should have examined these provisions before eulogizing British justice.
2.2. Fasciculus of articles in Part IX of the Government of India Act, 1935, provided for setting up of Federal Court and the High Courts. Section 200 provided for establishment of a Federal Court and section 220 for constitution of High Courts. The High Court Judges were to be drawn from four separate and distinct groups, namely-
(i) banisters of England and Northern Ireland or advocates in Scotland;
(ii) Members of the Indian Civil Service;
(iii) Holders of judicial office in British India; and
(iv) pleaders practising in High Courts.
The power to appoint a High Court Judge was vested in His Majesty, as provided in section 220(2). The notable change was that the tenure was changed from His Majesty's pleasure to attaining a certain age, being sixty years then. The power to determine salaries, allowances and such other perks as well as such other rights in respect of leave and pension was conferred upon His Majesty in Council. Similarly, the power to appoint Judges of the Federal Court was vested in His Majesty and he was to hold office till he attained the age of sixty five years.
The power to determine salaries, allowances, perks, rights in respect of leave and pension was vested in His Majesty-in-Council. These provisions indisputably, show that the power to appoint Judges of the superior judiciary was unreservedly vested in the executive. No one else was even to be consulted. These were the provisions in vogue when the Constituent Assembly was convened and proceeded to determine the shape of superior judiciary as well as the procedure for selecting manpower to man the superior judiciary.
2.3. The Constituent Assembly set up an Experts Committee, consisting of Mr. S. Varadachariar, a former Judge of the Federal Court, Sir Alladi Krishnaswami Ayyar, Mr. B.L. Mitter, Mr. K.M. Munshi and Mr. B.N. Rao, the Constitutional Advisor, for drafting provisions relating to judiciary. The Committee submitted its report on May 21, 1945. The approach of the Committee was largely influenced by the provisions of the Government of India Act, 1935.1 Long before the advent of independence, a view had gained ground that there must be a Supreme Court at the apex of the judiciary with each State having a High Court of its own.
A federal structure with division of powers among the federation and the federating units and a written Constitution with a Bill of Rights, all combined to make a compelling necessity of a body which will have powers to determine whether there is encroachment of power of one by the other. This necessitated conferment of power of judicial review on the Supreme Court. The Supreme Court became the guardian angle of keeping every centre of power created by the Constitution within its prescribed limits. Such a body of necessity must be insulated against executive and political interference.
1. B. Shiva Rao The Framing of Inndia's Constitution: A Stuty, 483.
2.4. The Experts Committee proceeded to give shape to the various provisions under which the Supreme Court of India would be set up as well as the High Court in each State would be set up. The draft Constitution was forwarded to Judges of the Federal Court for their comments. The Chief Justice of the Federal Court convened a conference of the Judges of the Federal Court and the Chief Justices of the High Courts in India.
The Conference authorised the Chief Justice of the Federal Court to submit a memorandum expressing its views. Amongst the various views expressed therein the one that must attract attention is that the Chief Justice of the Federal Court and the Chief Justices of High Courts considered paramount the importance of securing the fearless functioning of an independent, incorruptible and efficient judiciary.1
1. B. Shiva Rao The Framing of Inndia's Constitution: Select Dacuments, Vol. IV, 194.