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Report No. 80

II. Constituent Assembly and Its Committees

4.3. Discussions in the Constituent Assemb.- Union Constitution Committee, and ad hoc Committee on Supreme Court.-

There was considerable discussion in the Constituent Assembly, and in the various Committees which were appointed in connection with the appointment of Judges and other allied matters. Almost simultaneously with the appointment of the Union Constitution Committee, a Special Committee1 was set up to consider and report on the constitution and powers of the Supreme Court. This Committee consisted of S. Varadachariar, former Judge of the Federal Court, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi (all three of them distinguished advocates) and B.N. Rau, the Constitutional Adviser who had also earlier held high judicial office. This Committee, in its report sent on May 21, 1947, apart from2 dealing with the jurisdiction of the Supreme Court, suggested two alternative procedures for appointment of Judges to the Supreme Court.

The Committee was emphatic in its opinion that the appointment of Judges should not be left to the unfettered discretion of the executive. One suggested procedure was that for the appointment of puisne judges, the President should, in consultation with the Chief Justice of the Supreme Court, make a recommendation and such recommendation should be confirmed by at least seven out of a panel of eleven persons composed of some of the Chief Justices of the High Courts, members of the Central Legislatures and some law officers of the Union.

The alternative suggestion was that the panel should put forward three names for every vacancy, leaving it to the President to make the final choice in consultation with the Chief Justice of the Supreme Court. The same procedure with the necessary modification that the Chief Justice would not be consulted was also to apply in the matter of the appointment of the Chief Justice of the Supreme Court. In order to ensure that the panel would be independent and would command confidence, it was suggested that the panel should not be an ad hoc body but should function for a period of ten years. The extract from the report of this Committee in this respect reads:

"We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. We recommend that either of the following methods may be adopted. One method is that the President should, in consultation with the Chief Justice of the Supreme Court (so far as the appointment of puisne judges is concerned), nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of the constituent units, some members of both the Houses of the Central Legislature and some of the Law Officers of the Union.

The other method is that the panel of 11 should recommend three names out of which the President, in consultation with the Chief Justice, may select a Judge for the appointment. The same procedure should be followed for the appointment of the Chief Justice, except, of course, that in this case there will be no consultation with the Chief Justice. To ensure that the panel will be both independent and command confidence, the panel should not be ad hoc body but must be one appointed for a term of years".

1. Ad hoc Committee on Supreme Court.

2. Ad hoc Committee on Supreme Court (21st May, 1947), Report, being the Appendix to the Report of the Union Constitution Committee; B. Shiva Rao The Framing of India's Constitution, (1967), Vol. 2, pp. 587, 590.



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