CONSTITUENT ASSEMBLY DEBATES
DATED: 24th MAY, 1949
TOPIC: APPOINTMENT OF JUDGES
Name of the members
Present
Krishna Chandra
Sharma
Krishna Chandra
Sharma, also known
as Bhikkhu, was an
Indian radio
broadcaster and
author. He was the
Director General of
All India Radio from
1980 to 1981. He was
a noted novelist and
wrote over twenty
literary works in his
lifetime.
Shibban Lal Saxena
Shibban Lal Saxena was a
former Indian politician and
Freedom Fighter. He was
son of late Shri Chhotey Lal
Saksena and his uncles'were
late Shri Shyam Sunder Lal
Saksena and late Shri Ram
Sunder Lal Saksena. He
was born on 13 July 1906 to
a wealthy Kayastha Family
Arguments Presented
Suggested that President
must appoint the judge of
Supreme court in
consultation with Chief
Justice of India, rationale
behind this being that this
method is abided by United
States, other Dominions,
also it was in the
Government of India Act,
1935.
Prescribes that Chief Justice
of the Supreme Court must
be appointed by President ,
pre requisite being – 2/3rd
majority of the total number
of members of
Parliament in Joint Session,
consultation of Chief
Justice of India.
Also, he/she can hold the
office till 65 years of age, if
the case being that he
Opinion
This is not a valid
rationale as per me . The
rationale that it is
followed in the role
mode countries, so it will
prove to be a effective
and efficient method
here in India too is
flawed as both countries
differ from each other in
n number of ways be it
the diversity,
demography or anything
for that matter. Also so
much of Executive
indulgence (who in fact
depends on the advice of
council of ministers
headed by Prime
Minister) may prove to
be unjust and
consultation of Chief
Justice only may result
into biases derived out of
personal or professional
disagreements,
Presumes that the
legislative approval will
be the best to go for and
that if it gives opinion it
won’t be out of any
collective bias of
political parties or for
some political agenda.
Which to me is quite
problematic.
Agreed with the
proposition that giving
at Agra. resigned from his office by sole discretion to
writing to President or is Executive compromises
removed from office in the the independence of
prescribed manner. Judiciary and leads to
Rationale given : by miscarriage of justice
introduction of consultation system in part and of
from both the houses federal system in whole
restores the independence and that there needs to
of Justice System which is be an independent
presently in partial control judiciary.
of Executive, who in fact is
dependent on the advice of
council of ministers headed
by Prime Minister.
Suggests that executive in
this case will not have sole
discretion which is a good
thing to go with.
Strictly opposes over
indulgence of Executive.
Votes for independent
judiciary.
Criticizes the provision of
consultation with the High
Courts in States as an old
fashioned thing.
Mr. B. Pocker Sahib  Proposes the requisites for The proposed
appointment of Supreme amendment seems
B. Pocker (1890 – July 29, Court judges as such: feasible as the
1965), Sahib Bahadur, was appointed by the President , consultation process
an Indian politician and consultation with:  Supreme involves all those having
social worker from Court judges, Chief Justice expertise and knowledge
Tellicherry, north Kerala, of States’ High Court, Chief in the field and all
Madras PresidencyHe was Justice of India. consultation at so many
the second advocate from The requisites for different levels and not
the Mappila community appointment of Chief being only dependent on
(backward class Muslims of Justice of India : appointed CJI’s referral reduces the
Malabar District, Madras by the President , possibility of an unjust
Presidency). consultation with:  Supreme treatment being met out.
Court judges, Chief Justice Also the non
of States’ High Court. consultation with either
Proposes age retirement to of the house provides for
be raised to 68. a lesser legislative
influence , which again
Rationale given : Doesn’t is way forward in the
want any political influence direction of independent
 in the appointment judiciary.
procedure. Provides for the
instance that how high court
are merely being treated as
a home department of
Province which needs to be
stopped as soon as possible.
Asks for direct
recommendation by Chief
Justice to the President.
Clarifies that the necessary
consultation with Chief
Justice of India would
provide a safeguard against
political and party pressure.
The concurrence of Chief
Justice of India before his
colleagues will ensure a fair
play.
Votes for federalism.

K.T. Shah (Bihar. General)
K.T. Shah was an Indian
economist, advocate and
socialist best known for his
active role as a member of
the Constituent Assembly
of India that was
responsible for framing of
the Indian Constitution. An
alumnus of the London
School of Economics and
Gray's Inn, he practiced as
an advocate in Bombay
from 1914.
Proposes the requisites for
appointment of Supreme
Court judges as such:
appointed by the President ,
consultation with:  Supreme
Court judges,
Judgesof States’ High
Court, Council of States.
Rationale: Council of
States’ recommendation
would decrease the over
indulgence of PM who
advises President.
Strongly against the
political influence on the
appointment procedure.
As House of People is made
supreme in financial
matters and the like, the
Council of States should
have a higher say to reduce
the political influence.
Proposes to include clauses
as to the retirement term
which are not solely
It is circular argument
logical fallacy in which
it is presumed that
council of state will
reduce political influence
hence it should be
involved in appointment
process without giving
any strong backing as to
how it will do that.
Also the argument that
just because House of
People is made supreme
in financial matters and
the like, the Council of
States should have a
higher say prima facie
appears to be flawed.
The proposed
amendment seems to be
a revolution for judiciary
as it provides judiciary to
enlarge its horizons.
With the age restriction,
the judiciary wasn’t free
dependent on the age
criteria and excluding the
age clause , the clauses
being : during the good
behavior, until the judge
resigns. That judge may
resign at any time after 10
years of service, shall be
entitled to pension.
Rationale given:
The thing that retirement
age is not prescribed, or is
of definite period, promotes
absolute-independence of
the judiciary.
By reducing the
apprehension judges might
have that of being thrown
out of their work by official
or executive displeasure etc.
, functioning of it.
Discretion to leave on
mental and physical
grounds also promotes
better functioning of the
justice system.
Proposes the opinion that
same pension amount as of
salary so that there is no
temptation left to them
either to seek any other
employment or carry on any
other occupation or
profession by which they
could eke out their
existence.
Proposes to add new clause
that debars SC and HC
Judge from holding any
executive office under the
Government of India or
under that of any unit
unless he has resigned from
his office and also from
from being elected to a seat
in either House of
in its all form and also it
was too restrictive for its
independent functioning.
The move to provide
pension after resignation
of 10 years of service
without any specific
criteria laid down that in
which circumstances
resignation would be
deemed fit is a
suggestion which seems
problematic.
Proposal is restrictive for
judges, though the intent
of it keeping the
judiciary away from
Legislature is fulfilled
therein , it restricts the
employment
opportunities of judges
to an extent that it is
seeming coercion. The
contention that they may
join legislative part may
act as an inducement for
them to involve in faulty
practices when in
services.

Jaspat Roy
Jaspat Roy Kapoor was an
Indian politician. He was a
Member of Parliament,
representing Uttar Pradesh
in the Rajya Sabha the
upper house of India's
Parliament representing the
Indian National Congress
Shri Satish Chandra (United
Provinces: General)
Krishna Chandra Sharma,
also known as Bhikkhu,
Parliament, or in any State
Legislature.
Rationale : to keep
Judiciary completely out of
any temptation of the
executive or the legislative.
Any temptation or greater
prestige factor would in
any way affect his
independence as a judge
Proposes that age of
retirement be reduced from
65 to 60.
Rationale: They must make
room  for others to come in.
Argument by Chief justices
that if the age of
superannuation is not raised
to sixty-five years, there
will not be enough
attraction to the High Court
Judges to accept posts in
the Supreme Court, doesn’t
hold value for him.
Very often a person who
has gone beyond the age of
sixty is not very fit and is
not mentally alert, to
perform the strenuous
duties of a judge of the
Supreme Court.
The one who has served
and has earned handsomely
from the Government up to
the age of sixty years
should be prepared to retire
and serve the society
thereafter in an honorary
capacity
Proposed that the retirement
age should be left to the
discretion of Parliament.
Rationale given : Same as
Corelating mental and
physical inactivity and
hence leading to
decreased productivity is
a statement made
without any scientific
backing.
Also reducing the
service term just on the
basis that one must give
chance to new commers
doesn’t seem feasible in
a profession in which
one gains expertise with
time and experience.
Forcibly asking one to
serve the society after a
certain age and
corelating the age to
gratuitous work is an
argument that doesn’t
hold any such strong
value.
The contention that the
retirement age should be
left to the discretion of
Parliament is
was an Indian radio
broadcaster and author. He
was the Director General of
All India Radio from 1980
to 1981. He was a noted
novelist and wrote over
twenty literary works in his
lifetime.
Mr. Mahboob Ali Baig
Sahib (Madras: Muslim)
Shri P.K. Sen (Bihar:
General)
that of Jaspat Roy that
young people at a leads
disadvantageous position
and after the age of sixty,
physical and mental
incapacity overtake most
people, although there are
always exceptions
Made the concurrence of
the Chief Justice is made a
pre-requisite for the
appointment of a Judge of
the Supreme Court
Rationale: the President
would be guided by the
Prime Minister or the
Council of Ministers who
are necessarily drawn from
a political party. Therefore
the decision of the President
would be necessarily
influenced by party
considerations. Therefore,
concurrence of CJI I is
necessary for just
functioning.
Provides that a new proviso
that where a Judge resigns
his office on grounds of ill-
health, he shall be entitled
to pension as if he has
continued in service until
the age of sixty-five years
be added.
Rationale : to keep the
Judge, who has to retire on
account of impairment of
health, free from fear or
temptation and free from
the allurements of holding
some office in the executive
line or in the political field.
problematic because it
to excessive
involvement of
Legislative wing which
in turn hampers the
justice system. As far as
the new commers thing s
concerned, it can be
resolved by an
alternative of more and
frequent recruitment of
judges.
This move is in positive
direction. The rationale
is also agreed upon that
how president is
necessarily guided by
PM and which in turn
interferes the justice
process, hence the
concurrence of CJI is a
better option to go with.
Ill health being a ground
for resignation and the
pension thereof promotes
betterment of judges and
judiciary. Also, the
rationale given justifies
the proposal and is
agreed thereupon.

Shri Jaspat Roy Kapoor
Jaspat Roy Kapoor was an
Indian politician. He was a
Member of Parliament,
representing Uttar Pradesh
in the Rajya Sabha the
upper house of India's
Parliament representing the
Indian National Congress
I desire that the Judge who
has retired will not be able
to engage himself in any
office of emolument under
the Government in any
other field of activity, and
that is exceedingly
necessary, because
otherwise there is always
the phenomenon of the
Judge while in office
aligning himself with a
political party and to avoid
this the essential thing to be
done is to give him the
pension as if he had served
up to the age of sixty-five.
The provision presently
provides that not only will
it affect his attitude of mind
while he is out of office and
retired, but it is bound to
effect his attitude while in
office, as he will try and
look for something which
he may get for for saving
him from penury.
Proposes SC judges from Proposal is too
acquiring office of profit restrictive for judges,
either under the though the intent of it
Government of India or keeping the judiciary
under the Government of away from Legislature is
any State after he has ceased fulfilled therein , it
to hold his office. restricts the employment
Also pointed out the flaws opportunities of judges
in KT’s amendment that it to an extent that it is
completely bars judge from seeming coercion.
performing any duties under
the Government of India  The opinion that state
and also that it can utilize the services of
unnecessarily lays down judges post retirement
that a judge of a Supreme needs to come with
Court shall be eligible to be various restriction and
a member of either House of must be handled very
parliament after resigning cautiously or else might
his seat. lead to infringement of
 Rationale : there should be justice system.
no temptation before any
Supreme Court Judge of the
possibility of his being
offered any office of profit
after retirement.
As according to article
124(3), provides that the
Auditor-General shall not be
offered any office after his
retirement. The same
principle should be made
applicable in the case of the
Supreme Court Judges.
It should be open to the
State to utilize the services
of retired Supreme Court
Judges in various capacities.
Shri H.V. Kamath  Proposes a new sub -clause This argument is a
to be added in clause (3) of welcomed one and might
Hari Vishnu Kamath (1907- article 103. - '(c) or is a lead to widen the justice
1982) is an Indian distinguished jurist.'" system with a new
Politician. He was elected to Rationale: to open a wider category being
the lower House of field of choice for the introduced, provide the
Parliament the Lok Sabha President in the matter of limitations it brings with
from Hoshangabad, Madhya appointment of Supreme itself are dealt properly.
Pradesh, India. Court judges as the present
article restricts the selection
of judges to only two
categories, one being those
who have been judges of a
high court or of two or
more such in succession
and the second being of
those who have been
advocates of a high court or
of two or more high courts
in succession.
We must realise that it is
essential, to have men and
women-who are possessed
of outstanding legal and
juristic learning and such
are not confined to Judges
or Advocates.
Mr. Mohd. Tahir Proposes that the sub clause The argument that as the

Mohammad Tahir was an
Indian politician and lawyer
who served as a member of
parliament three times in
1957, 1962, 1971, member
of Constituent Assembly
from 1946 to 50 and
member of Bihar
Legislative Assembly while
representing kishanganj &
Purnia (Lok Sabha
constituency) and Purnia
assembly constituency. A
member of the Indian
National Congress, he also
served member of
Constituent Assembly from
1946 to 50 and was
formerly associated with
the All-India Muslim
League.
 Mr. Tajamul Husain
'(c) has been a Pleader in qualification of both
one or more District Courts pleader and advocate is
for at least twelve years.' In almost same, so shall be
clause 3 of article 103 given equal opportunity
which talks about the to be a judge seems
qualifications of Judges of pretty good .
the Supreme Court.
Rationale :
the pleaders should also be
qualified for appointment as
Judges of the Supreme
Court as the qualification of
an Advocate and the
qualification of a pleader is
the same and advocate is not
better qualified than a
pleader.
A pleader also can become
an advocate by depositing a
certain amount of money
with the Association, which
makes him no more
qualified.
Therefore as far as the
qualifications are
concerned, both the
Advocates and the pleaders
have got the same
qualifications. 
If they don’t get to be
judges a great injustice
would be lone to the class
of pleaders, who have
fought for the independence
of the country.
Proposes to add in clause Both the rationale and
(4) of article 103 which suggestion provided
talks about the removal of ensures the
the supreme court judge and independence of
that he can be removed after judiciary. The idea of
an address is presented to impeachment with the
the President by both way of forming
Houses of Parliament. , after committee thereof seems
the word 'passed' the words feasible.
'after a Committee
consisting of all the Judges

Jawaharlal Nehru.
Jawaharlal Nehru was an
Indian independence
activist and, subsequently,
the first Prime Minister of
India, as well as a central
figure in Indian politics
both before and after
independence.He emerged
as an eminent leader of the
Indian independence
movement, serving India as
Prime Minister from its
establishment in 1947 as an
independent nation, until
his death in 1964. He was
also known as Pandit Nehru
of the Supreme Court had
investigated the charge and
reported on it to the
President and' be inserted.
Rationale:  to remove a
judge on the
recommendation of the
Parliament would be wrong
in principle as in this case
there are high chances in
this of the judge being a
victim of party politics.
A judge must have
absolutely no relation with
the government of the day.
Suggestion : Supreme
Court judges form
themselves into a
Committee, then should
investigate the charge
against the accused judge,
then submit its report to the
President and then the
President is to remove him
in consultation with the
parliament, provided the
charges are proved against
him.
Jawaharlal Nehru opined
that age limit for a federal
court judge should be set to
sixty-five years, higher than
what was proposed Mr.
Kapoor (??) (60 Years).
According to him the
decision for the age limit of
judges shouldn't be inspired
from that of the Civil
Services, where the age
limit was sixty years, as the
job of a judge is completely
different, less physically
tiring and doesn't have to
face storm and fury so much
as an administrative official.
Just because a Judge is older
 due to his roots with the
Kashmiri Pandit
community, while Indian
children knew him better as
Chacha Nehru
than sixty doesn't mean he
can't be resourceful to the
state, and "in-fact", for the
professions based on
intellectual, the
professionals reach their
highest competency only
after considerable amount of
experience and during their
old age. Also, a state spends
a lot of resources to train
their professionals and it
would be only fruitful for
the state to get the most and
the best out of an official.
Therefore, by setting a low
age limit for judges and
thereby excluding the "top-
class", only to make room
for younger talent, would
actually be nothing but
counter-productive.

DATE – 5th JUNE

TOPIC – Article 270- 289

Date Members Main ideas expressed My observation

of the
debate

B.R. Ambedkar The idea of a unified What I

( He was a jurist India is considered when observed is that there
,reformer , politician and deleting the word Dominion were genuine doubts
writer who campaigned from Dominion raised by the debaters
against Untouchables), Government of about the liabilities of
H. V. Kamath( He was India.Dominion is succeeding
Indian politician and Mp repugnant to our government ,
of lok sabha from constitution. Deletion of the Election commission,
Hoshangabad) , Shibban same shall be proceeded.We power of union
Lal Saxena ( He was an should say Government of regarding water but
Indian politician and Indian Republic or ther were some
freedom fighterhe has Government of Union of instances where the
 been arrested 17 times
for participating in
Gandhi's Satyagraha),
President, ( He was the
president of India, a
politician and a freedom
fighter .He eventually
became the president of
India) Naziruddin
Ahmad( He was a
member of Bengali
Muslim community and
was keen writer and
editor of Burdawan
Wani), K.
Santhanam( He was an
Indian politician who
was central figure in
shaping the politics of
Tamil nadu. He was the
15th first editior of Indian
June1949 express and joint editor
of Hindustan Times), R.
K. Sidhva( He was born
into a Parsi family who
was a lifelong member
of Indian National
Congress
He was secretary
general of INC and he
also served as a mayor
of Karachi), Mahavir
Tyagi ( He was an
Indian politician who
was MP from
Dehradun.He was active
in Kisan Movement. He
was close to motilal
nehru and was a lifelong
member of INC), Alladi
Krishnaswami Ayyar(He
was an Indian lawyer,
Member of
Constitutional assembly
and advocate general of
Madras. He was part of
India. It is on us to decide
what we call ourselves.
Article 270 was
supported to be passed.
Many told that told it
should be passed with an
amendment . There shall be
formation of new state or
merger of two and these
states have their own
liabilities which is a
problem. Also , the idea of
introducing the money
which british owe should be
introduced.
It was discussed that
India will inherit the
property, liabilities and
assets which Britishers had
possessed but is it necessary
to give it a legalistic
expression?
The previous
government had given
pension and salary to people
, do the new government
too have to give the salary
which was given by
them.And if Article 270 is
omitted what would be the
effects?
Since the succeeding
government will take
liabilities of previous one , a
difference between
Obligation and liabilities
was asked.
A clarification was
given about the necessity of
keeping it since it was being
discussed by many
members.The assets and
liabilities and the properties
belonging to the
Government of India
previously belonged to
person like KV
Kamath who was not
a legal
profession was not
asking not so genuine
questions. I felt the
most important thing
discussed here was
article 289 which
talked about Election.
It was rightfully
taken out from the
the Fundamental
rights commiittee and
put in another article
289 and 290 as
giving free and fair
election a
Fundamental
character is not good.
It was best decision
of the debaters to
put it as a
constitutional rights
as at that we don't
have had enough
resources to enforce
the same and it would
have become
problematic just like
Right to property
which was a
fundamental rights
and in Keshavananda
Bharti case it was
struck down. It was
vert thoughtful at that
time to think so
advance and to be
visionary about the
Elections. As it can
be seen that certain
bodies have become
under government
control and there is
some need to have
nine commiittee
including drafting and
advisory committee), S.
V. Krishnamurthy
Rao(He was member of
RS and LS and was MP
from Shivmoga district
of Mysore), T.T
Krishnamachari (He was
an Indian politician and
Finance Minister who
was founding member of
first governing body of
National Council of
Applied Economic
Research), Biswanath
Das ( He was the former
CM of India . He was
great supporter of
Independence struggle
and Was elected in
various provincial
Election) , A.T.
Pillai( He was from
Kerala and was deputy
chief of agricultural
department . He was
state Congress president
for 14 years), Shri K.
M. Munshi( He was
former governor of Uttar
Pradesh and a social
activist, writer and
politician who was a
lawyer by profession.
He was from INC . After
swarajya party he joined
swantatra party) Jaspat
Roy Kapoor ( He was
Indian politician and a
member of Rajya Sabha
Representing INC),
Hirday Nath Kunzru( He
was an Indian politician,
parliamentarian and
member of several
Secretary of State-in-
Council.There were no such
thing as to property belongs
to government of India or
provinces bout it was
owned by one single
province. Government of
India Act, 1935 divided it
into government of India
and province and by passing
article 270 , Government of
India Act, 1935 is being
repealed.
Second important
question is that article
doesn't make any reference
to the assets and liabilities
of India. To this two things
is to be seen . First is the
Indian state being
incorporated without any
changes in the territory and
other neighbouring states
being incorporated. The
arrangement between
states /provinces and the
incorporated one shall
include the special part
included in the special
provisions which is
proposed to be in Part Ill.
It was said that there
is no point in holding the
article for the sake of
making changes in first
schedule .
Article 271 was
termed as most important an
it is necessary to
incorporate this article as in
future the states which have
been incorporated may raise
issue about the mineral and
resources underlying in
their territorial waters. In
article 271, what was meant
certain independent
institution so that
influence of
executive is not there
like the judiciary or
EC itself.
Conducting an
election is a very
important task and if
conducted
wrongfully , it shall
wreak havoc upon
the Citizens for five
years.
Next
observation is
regarding the idea for
having separate
liabilities and assets
for province and
Union which can be
indirectly implied
from the discussion
of the 270 . The
debaters had this in
mind about the
separation of area of
control of states and
Union bwhichvis
very striking feature.
Next thing I
like most is that it
was asked what was
meant by on behalf of
governor? It was all
kept in mind about
the person who may
misuse the powers in
the name of the
governor. So the
free
,fair,transparency,
separation of power
and the principles of
partiality was kept in
mind while framing,
legislative bodies.Heco- by other things of value ? amending and
founded the Indian Also we have not defined incorporating these
Council of World territorial waters and articles which are
Affairs and the Indian underlying the ocean part being talked about.
School of International in the article. It was also The definition
Studies.), H. V. Pataskar asked whether It is of every term was
( He was a lawyer, necessary to include sky in given so that seems
politician and former the constitution. Some to be no confusion
Vice chancellor of asked whether it is regarding the same.
Poona University.He is a necessary to vest territorial Every person 's
Padma Vibhushan waters in Union and the opinion and
awardee). difference between shall suggestions was
vest in the Union and shall considered even if it
be held for the purposes of was not so good. A
the Union. It was said that democratic country is
the right of Government of made when the
India depends upon the people making
convenant it has entered and constitution are
if not entered will the right themselves
be created. Then about democratic.
rights of union and states
regarding water.
It was said that
fisheries would be owned
by state. The territorial
water shall be claimed by
the Union.
Regarding to Article
272 , is it wise to vest
executive with the power to
make Contract without any
reference to or subsequent
confirmation by the
sovereign Parliament at the
Centre.It was stated that it's
necessary to lay down the
right to make and rescind
the Contract should be of
parliament and legislature
but it was contended that
the rights of parliament and
legislature are fully
protected.The parliament
and legislature shall
Properly define the
authority who shall carry
certain activities in a
prescribed manner. There
should be separation of
Legislature and executive
which is very well
established by Government
of India Act, 1935.
Article 273 ,
Regarding this article it was
asked that whatever has
been agreed upon by the
Governor or those who do it
in the name of the
Governor, whether it is in
our interest or not, shall at
all costs be executed?
Kashmir referendum was
given as example.There is
some liabilities and it's
nature should be defined.
Then referring to article 64
it was said who is liable to
enter into the contract. The
answer came as the people
becsuse it is a democratic
constitution. The objection
was raised as to give
immunity to the person who
execute such undertaking.
What is meant by
assurance of property in the
article was asked ? It was
replied that assurance
included Contract so there
was no problem.
Talking about article
274, the question was asked
what is exactly Union of
India ? What is the
difference between
government of India and
Union of India.It was stated
that since we are at initial
stage, there is no clear
picture of this.The
Government of India is not
 a legal entity; the Union of
India is not a legal entity, a
sovereign body which
possesses rights and
obligations and therefore it
is only right that any suit
brought by or against the
Central Government should
be in the name of the Union
or against the Union.
Article 289 of Part
XIIl
The proposition in
support of the article was
not given because the point
raised during the debate
Shall be explained at the
end.
When the
Fundamental rights were
being talked about then
free and fair election was
also discussed.The Election
were removed from FR and
put into article 289 and
290.The appointment of
chief election commissioner
and other Election
commissioner was talked
about .There should be
central and regional State
election commission should
be set up free from the
executive. EC should have
independent staff to conduct
Election related work. The
appointment of CEC and
other EC should be such
that it would be a nominee
of President and have two
third majority of house.

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