Report No. 80

5.8. View expressed by Chief Justice of Madras in 1947.-

It may be mentioned that in 1947, the then Chief Justice of the Madras High Court expressed misgivings about the procedure relating to the appointment of Judges as, according to that procedure, the Ministers were also brought into the picture, as against the earlier procedure in which the Governor or Governor-General acted without taking the advice of the Minister in this matter. Sardar Patel, who was the Home Minister, defended the change made in the procedure in his letter dated 8th December, 1947 to the Governor-General of India,1 in the course of which he observed:

"obviously the previous procedure becomes out of date and in the new order of things recommendations must go from the provincial Ministers or Prime Minister to the Minister concerned in the Central Government. To assign those respective roles to the Governor and the Governor-General would be casting upon them the burden of explaining proposals or decisions, interim or final, with which they may not be wholly in sympathy but which nevertheless they are bound to accept on advice. This in my opinion is neither fair nor proper.

I am quite clear in my mind that the procedure which we have devised does full justice to the constitutional position which obtains now and places responsibility fairly and squarely where it should be placed. Indeed the procedure which has been devised is calculated to reduce practically to vanishing point, favouritism of all forms, be it of the Chief Justice or of the politicians, by making the final appointment the result of deliberations between the Chief Justice, the Prime Minister and the Governor of the province and the Chief Justice of India, the Home Minister, the Prime Minister and the Governor-General of the Dominion. In such a situation it is ridiculous to entertain apprehensions such as the Chief Justice has done."

1. Sardar Patel, letter dated 8th December, 1947.