CHAPTER III

( .......................................................................................................................................................... \
Development of the modern system of
Justice in India - British Rule -
Constituent Assembly Debates - Draft
Constitution.
v J
British Rule :

The modern system of administration of justice in India was

largely the legacy of British rule in India. The rudimentary beginnings were
made during the regime of the East India Company which established Civil
and Criminal Courts in the Presidency towns. But major steps to establish
a uniform system of judiciary were taken up since 1858 when the crown
took over Indian administration. These may be briefly analysed as follows

When the company’s administration was replaced by direct

rule of the crown in 1858, the very move of the latter was to abolish the
duality of courts that existed under the company. The Sadar Adalats
which were the courts of the company, and the Supreme Court, which
were the courts of the crown, were proposed to be replaced by the High
Courts. Therefore, on the recommendation of the Law Commission of
1858, the Parliament passed the Indian High Courts Act, 1861 providing
for the establishment of High Courts in the three Presidencies in place of
Supreme Courts and the Sadar Adalats.

The Act of 1861, titled as "an Act for establishing High Courts
of judicature in India authorised Her Majesty the Queen of England to
establish High Courts by issuing Letters Patent to Presidency towns
wherever and whenever it deemed fit. The High Court was to consist of a
Chief Justice and the other Judge not exceeding 15. The qualifications of
the judges were laid down in the Act. A person to be a judge of any High
Court must be either :

1. a barrister of not less than 5 years standing, or

2. a member of the covenanted Civil Service of at least 10 years standing
and should have served as Zila Judge for at least 3 years in that
period, or
 66

3. he should be a person having held judicial office not inferior to that of

Principal Ameen or judge of a small cause court for at least 5 years or
4. a person who has been a pleader of a Sadar Court or High Court for at
least 10 years.

Apart from this, a condition was imposed that at least one

third of the judges of the High Court, including the Chief Justice, were to
be barristers and at least one third of the judges were to be members of
the covenanted Civil Service. The judges held their office during the
pleasure of Her Majesty.

The High Court was given following original and appellate

jurisdiction.

Original jurisdiction :

The original jurisdiction of the court was of several types

which may conveniently be put under the following heads.

1. Civil jurisdiction :

The original Civil jurisdiction was either ordinary or extra

ordinary. The ordinary civil jurisdiction extended to the town of Calcutta or
to such local limits as may from time to time be prescribed by law of a
competent legislature in India. All suits of the value of Rs. 100 or more
and which were not cognisable by the small cause courts at Calcutta were
cognisable before the High Court under this jurisdiction.

Under its extra-ordinary civil jurisdiction the High Court would

call a case pending in any lower court subject to its superintendence and
 67

could decide that case itself. This jurisdiction could be exercised in a case
where the parties agreed to such exercise or the High Court thought it
proper to impart justice.

2. Criminal justice :

An extra-ordinary original criminal jurisdiction was given to the

High Courts which was not available to the Supreme Court. Under that
jurisdiction the High Court could hear any criminal case against any
person within the cognisance of any court, which was subject to the
superintendence of the High Court, if such case was referred to the High
Court by the Advocate General or by any magistrate on any other officer
specifically empowered for that purpose.

3. Revenue jurisdiction :

The court was given jurisdiction to hear revenue cases also

which were precluded from the jurisdiction of the Supreme Court, by the
Act of settlement, 1781.

4. Admiralty jurisdiction :

The Admiralty and Vice-Admiralty jurisdiction was given to the

High Court. It could hear all civil, criminal, maritime and prize cases

5. Testamentary and Miscellaneous jurisdiction :

The court was given testamentary, intestate and probate

jurisdiction enjoyed by the Supreme Court. It also worked as the court of
 68

wards for the administration of the estate and person of lunatics, idiots
and minors.

Appellate jurisdiction :

Appellate jurisdiction of the High Court may be divided into

the following categories.

(i) Civil Jurisdiction : The High Court could hear appeals in all cases
authorised by any law or regulation. Provision was made for a
Letters Patent Appeal which could be heard by the High Court m
cases in which the judgement was given by a single judge of the
High Court or by a Division Bench in which the judges were equally
divided.
(ii) Criminal jurisdiction : The High Court had criminal jurisdiction in all
cases decided by the courts subordinate to it. Apart from that it
could also revise the decisions of the lower courts and hear
references from them.

Changes in later period :

Gradually various other High Courts were established in the

country. A High Court was established at Agra on March 17, ,1868 which
was subsequently shifted to Allahabad in 1875. A court of Judicial
Commissioner was formed in Oudh which was united with the Allahabad
High Court on July 26, 1948.

In February 1916 a High Court at Patna, on March 21, 1919 a

High Court at Lahore and on January 2, 1936 a High Court at Nagpur was
established.
 69

In 1947 on the partition of India the Punjab High Court and in

1948 two High Courts for Assam and Orissa each were established. After
that in 1950 the Constitution of India came into being with full provisions
about the position and powers of the High Courts putting them in equal
position 1 .

Writ Jurisdiction of the High Courts :

The Pre-Constitution writ jurisdiction of the High Court was

(i) All the High Courts had the power to issue the writ of habeas corpus
throughout the territory falling under their original and appellate
jurisdictions (S 491 Cr.P.C.)
(ii) Only the High Courts of Calcutta, Madras and Bombay had the
power to issue other writs.
(iii) The jurisdiction of these High Courts to issue writ was limited to the
territorial limits of their ordinary original civil jurisdiction and that too
with respect to those matters which fell within that jurisdiction.

The Privy Council :

In English legal system the King is regarded as the fountain of

justice. All justice in England is distributed in the name of the King
Though theoretically the King exercises the prerogative of mercy and may
grant pardon to persons convicted of criminal offences, yet actually this
job is done by the judicial committee of the Privy Council. The prerogative
of the King was generally exercised in later time in the form of appeals
only and not otherwise. The King exercised this power by way of special
leave taken from him. However, subsequently people began to assert this
discretion of the King as of right and the law made provision in what cases
appeals of right could be preferred to the King-in-Council. However, it did

1. The Chapter V of Part VI of the Constitution of India.

 70

not affect the power of the King-in-Council to admit any appeal by its
special leave and such appeals came to be called as appeals by special
leave.

Working of the Privy Council in India :

The Privy Council made the maximum contribution to the legal

development in India.

At first very few appeals from India were filed before the Privy
Council. The reasons behind this condition were that the Indian people
either did not know the procedure to file an appeal before the Privy
Council or they did not know the nature and working of the Privy Council;
or because of financial reasons they could not afford to file such appeal
and last, was the delay which the Privy Council made in deciding an
appeal. Moreover, the Privy Council was not a duly constituted court with
law members nor there was any provision for the regular sittings of the
council, nor there was any procedure properly known to the people and
the decisions of the council also lacked uniformity.

As a remedial measure Lord Brougham got the Judicial

Committee Act passed on August 14, 1833. This Act constituted a
committee of the Privy Council which consisted of specified members The
quorum of the committee was fixed at four members at a time. Provision
was also made for the sitting of two members as assessors, who had held
the office of a judge in India or in any other dominion. In 1843 the quorum
was reduced to three members and in 1876 the provision was made for
the appointment of Law Lords to the judicial committee of the Privy
Council. The number of colonial judges was increased from two to five in
1895 and in 1908 the judges from India were allowed to be authorised by
 n

His Majesty the King to work as members of the Judicial Committee After
1915 the Judicial Committee set in two divisions.

After reorganisation the Privy Council worked as a regular

court. With respect to Indian appeals a uniform limit of Rs. 10,000 was
fixed to bring a case for appeal to the council. Some provisions were also
made to dispose off the pending work.

Under the Government of India Act, 1935 a Federal Court was

established in 1937 which had original and appellate jurisdiction in
constitutional matters only. An appeal could be made against its decision
to the Privy Council in cases decided in its original jurisdiction or with the
leave of the Federal Court or of His Majesty.

The Codification of Laws :

The advocacy of Bentham and his disciple James Mill had an

influence on Indian Codification and in 1833 the Charter Act was passed
by the efforts of James Mill and Macaulay.

The Charter Act, 1833 :

The Charter Act was passed on 28 August, 1833 and came

into force on 23 April, 1834. The Act has been described as an Act which
“forms a water-shed in the legal history of IndiaY The Act created a single
Legislative Council for India at Calcutta with Governor General and tour
members, one of whom was a law member. The Legislative Council was
given power to make all laws with respect to Indian Territory under the
Company. The Government of Madras and Bombay were deprived of all

2. Rankin : Background to Indian Law, p. 17

 /; •

legislative powers. They could send their proposals to the Governor

General in Council at Calcutta for their consideration.

The Section 53 of this Act authorise the Governor General ir

Council to appoint a Law Commission of not more than five members at a
time, as the court of Directors with approval of the Board of Commissione
thought fit.

The First Law Commission :

The First Law Commissioner was appointed in 1835 Lore

Macaulay was its Chairman. The first duty of the Law Commission was the
codification of the criminal law. Next was the ascertainment of the positior
of the anglo-lndians and lastly it was asked to draft a law of procedure ano
pleadings. The Commission prepared the draft on all these subjects ana
the Government did not find it appropriate to pass. However, one of the
recommendations of the Commission was accepted in 1850. The Caste
Disabilities Removal Act, 1850 was passed which abrogated the Hindu
and the Mohammedan laws to the extent to which they affected any right
of inheritance on the ground that a person had renounced his religion or
caste.

The Charier Act, 1853 :

The Charter Act of 1853 made the law member a full member
of the Governor General in Council and the legislative council was
expanded by including more members in it. The Act also made provision
for the appointment of a Law Commission in England to consider the
various reports of the First Law Commission and to recommend to His
Majesty within three years as to how the Indian Law was to be codified
 /:■

The Second Law Commission :

The Second Law Commission was appointed on 29"

November, 1853 in England. The Commission submitted two reports The
first report related to the reforms of judiciary and the second related to the
reforms in law. On the recommendations of the Second Law Commission
the Civil Procedure Code of 1859, Indian Penal Code of 1860, Crim m a1
Procedure Code of 1861 and the Limitation Act 1859 were enacted

The Third Law Commission :

As the policy set out by the Second Law Commission had

already accepted by the Government, the Third Law Commission prepared
the drafts of several codes in its seven reports. These reports
successively submitted the draft of Indian Succession Act, Law of
Contract, Law of Negotiable Instruments, Law of Specific Performance
Law of Evidence, Law of the Transfer of Property and the revised Crimina
Procedure Code.

The Third Law Commission resigned in 1870 because of its

differences with the Indian Government. During this period the Companies
Act, 1866, the General Clauses Act, 1868, the Indian Succession Act
1865 and the Divorce Act, 1869 were passed. Later the Indian Contract
Act, 1872 and the Indian Evidence Act 1872 were also passed.

The Fourth Law Commission :

The Fourth Law Commission was appointed on February 11

1879. The Commission was in favour of codification suited to Indiar
condition. In the year 1881 the Negotiable Instrument Act and in 1882 the
Transfer of Property Act, the Easement Act, the Trust Act and later on the
revised Civil Procedure Code and Criminal Procedure Code were enacted

Law Commission since Independence :

After the efforts made by Dr. Sir Hari Singh Gaur and N.C
Chatterjee for the establishment of a new Law Commission, the All India
Congress Committee recognised the need of a Law Commission and
resolved on 26 July, 1954 that “a Law Commission should be appointed as
in England to revive the laws promulgated nearly a century back by the
Law Commission of Macaulay and to advise on current legislation horn
time to time"3.

The resolution was, however, withdrawn after a statement in

Lok Sabha on 3 December, 1954 by the then Prime Minister Shri
Jawaharlal Nehru that “the Government had accepted the resolution in so
far as the appointment of Law Commission was concerned and that
Government were even then engaged in considering the steps to be taken
towards that end”4. Acting upon this statement the then Law Minister Shri
C.C. Biswas on 5 August, 1955 announced in the Lok Sabha the
Government of India’s decision to appoint a Law Commission. Thus the
Law Commission of independent India came into being.

The Law Commission is not yet a constitutional or statutory

body. It is appointed by the Government of India every three years (from
September 1 to work for the next three years ending on August 31) The
working of the Commission is very important as they recommend on some
significant matters some of which have been acted upon by the
Government. Thus the formation and reformation of the laws has played
an important role to keep pace with the changes in the society in India

3. Law Commissioner of India, Fourteenth Report V I P I. (1958)

4. Ibid, p. 2
Indian Penal Code :

The Penal Code is substantive law, whereas the Criminal

Procedure Code is procedural. The offences described in the Penal Code
are to be dealt with by Criminal courts and every person in India who
commits any offence is liable to punishment as provided in the Indian
Penal Code and the manner provided in the Criminal Procedure Code
Every person is made liable to punishment without distinction of caste
rank or creed if the offence mentioned in the Code or any Act has been
committed in any part of India. However, there is an exception with regard
to (i) foreign sovereigns; (ii) ambassadors and members of the diplomatic
corps enjoying immunity; (iii) alien enemies; (iv) foreign armies (v;
warships and (vi) the President and Governor under Article 361 of the
Constitution.

The Indian Penal Code lists various offences under various

heads which are as below :

i. Criminal conspiracy;
ii. Offences against the state;
iii. Offences relating to army, navy and air force;
iv. Offences against public tranquillity;
v. Offences by or relating to public servants;
vi. Offences relating to elections;
vii. Contempt of lawful authority of public servants;
viii. False evidence and offences against public justice;
ix. Offences relating to coins and government stamps;
x. Offences relating to weights and measures;
xi. Offences affecting public health and safety, convenience, decency
and morals;
xii. Offences relating to religion;
xiii. Offences relating to affecting the human body;
 / fi

xiv. Offences against property;

xv. Offences relating to documents and to property matters;
xvi. Offences relating to breach of contract of service;
xvii. Offences relating to marriage;
xviii. Cruelty by husbands or relatives of husband;
xix. Defamation;
xx. Criminal intimidation, insult and annoyance etc.

Apart from the offences mentioned in the Indian Penal Code,

there are other offences of a criminal nature created by various Acts of
Parliament and the State Legislature. Offences under the Foreign
Exchange Regulation Act, the Income Tax Act, the Customs Act the
Central Excise and Salt Act, the Food Adulteration Act, the Police Act the
Companies Act etc. are also tried by Criminal courts under the procedure
provided by the Criminal Procedure Code.

Criminal Procedure Code 1898 (as amended in 1973) :

The Criminal Procedure Code of 1882 gave, for the first time,
a uniform procedural law for the whole of British India. This was later
supplemented by the 1898 Act. The code of 1898 was amended from time
to time as it was found to be wanting, particularly when India became
independent and the Indian states became part of the Republic of India

The Law Commission gave its 41st report in September 1969

The code was fully amended in 1973 and it came into force from 1st April
1974. The Criminal Procedure Code is mainly an objective law of

procedure. Its object is to provide machinery for punishment of offences

against substantive criminal law, for example, the Indian Penal Code
 77

Constituent Assembly Debates - Draft Constitution :

The Constitution of India which is the basis of all

governmental organs and institutions, establishes a federal form of
government. The essence of a federal Constitution is the division of
powers between the Central and State governments as expressly provided
in a written Constitution. In other words, a federal government requires
double sets of executive, legislature and judiciary - one each for the
centre and the states. Though the matter of judiciary was originally
mentioned in the Constitution at three different places - in part V, part VI
and part VII, our Constitution makes an exception to the general rule in so
far as it establishes single set of judiciary which administers both central
as well as state laws. Dr. Ambedkar claimed that one of the prominent
features of our Constitution unlike in the U.S.A., is that, “the Indian
Federation, though a dual polity, has no dual judiciary at all” and he stated
that this is deliberately done “to eliminate all diversity in all remedial
procedure’^, "unlike many countries, with federal constitutions, India has a
single judicial system ... The single hierarchical system of judiciary has
brought about not only jurisdictional unity, but also the establishment of a
single judicial cadre for the whole countryV

The constituent Assembly functioned mainly through

committees appointed from time to time.

Committees of the Constituent Assembly :

The Union Constitution Committee was appointed by the

Assembly. The first meeting of the Union Constitution Committee took
place on May 5, 1947. The Committee elected Nehru as its chairman and
adjourned after transacting some preliminary business. The Committee
met again from June 6 to June 11 and thereafter on June 30 to consider m

5. C .A .D ., V o l, V II, p, 3 7
• 6. M .V . P y le e : In d ia 's C o n s titu tio n , p. 2 0 3
 78

COMMITTEES OE THE CONSTITUENT ASSEMBLY

A)

V
x .

V 6*
V
x .
Chairman
* * U t .
X \ Rajendra Prasad

n\AV®® ^
X President
Expert Committee on the Financial Rajendra
Provisions of the Union Constitution Chairman Prasad
NR- Sarkar ♦ Constituent
Committee (3) *
Assembly Credentials Committee (7)
(320)

tf' X :r -
>*<*>
C tfl* * Chairman Valabhbha Patel
C ^ U ls t' c p .

c ^'

.,cX
Advisory Committes on Fundamental Rights.
Minonties & Tnbal & Excluded Areas *

/ Chairman Charman Charman Charman

/ J B Kripatani Gopmath Bordobi A V Thakka H C Mukherjee

Fundamental Rights Sub- North-East Frontier Excbded & Partially Mnontes Sub-Comn
Committee (12) Tnbal Areas & Excluded Areas (36)*
Assam Excluded & (other than those in
Partially Excluded Assam) Sub-
Areas Sub-Committee Committee (7) *
(5 )*

* indicate an office or body that had non-Assembly Member

 / 9

detail the principles to be recommended for the Union Constitution. The

members of the Committee discussed mainly on the basis of constitutional
Adviser, B.N. Rau’s questionnaire and memorandum.

K.T. Shah, another member of the Constituent Assembly sent

a copy of “General Directives” which he had submitted to the President of
the Assembly on December 22, 1946 and a draft Constitution. In the draft
Constitution and in the General Directives K.T. Shah prepared a scheme
for the judiciary which is as below :

“59. The Judicial organ of the state in India shall consist of a

Supreme Court of Judicature for the Union of India, which shall be
sovereign in its allotted sphere, together with such High Courts and sub­
ordinate courts, both civil and criminal, with original and appellate
jurisdiction, admiralty, matrimonial and other ordinary and extra-ordinary
jurisdiction, as the Constitution may provide.

60. The Supreme Court shall be established and shall function

in every part of the Union.

61. The State in India being a wholly secular organisation

there shall be no ecclesiastical jurisdiction in any tribunal.

The Principal function of the judicial organ of the state in India

shall be to interpret the Constitution and administer justice in accordance
with law and equity.

62. Except in so far as statute law may modify the personal

law of any community in India, the personal law shall be the same as has
hither to been applied in respect of each separate community. The other
civil and criminal law and procedure codes shall likewise be the same as
 80

are in use at present, until modified or amended hereafter, provided that

the writ shall run in the name of the people only.
63. Judges of the Supreme Court of Judicature shall be
appointed, in such a manner and members, and with such salaries
emoluments, allowances and pensions, as may be prescribed from time to
time by Act of the Union Legislature.
64. Every appointment of a Judge of the Supreme Court
shall be for life, unless otherwise ordained and provided for by Act of the
Union Legislature.
65. Judges of the Supreme Court shall be appointed from
among practising lawyers of prescribed standing, judges of High Courts
and other judicial officers of the Union, or in any component part thereof oi
from among professors of law or jurisprudence by the Head of the State
provided that the Union Legislature may, by a majority of two-thirds of the
members present and voting, order the removal of any judge or judicia
officer on grounds of proved offence against the safety, security or
tranquillity of the Union, proved misconduct, incurable illness, established
infirmity of mind or body, and consequent incapacity or violation of the
oath of office.
66. The judicial organ of the state in India shall be wholly
independent, and co-equal of the legislative and the executive, in power
function and authority. In no case shall any judicial function, power or
authority be vested in any administrative or executive officer, body ot
authority.
67, There shall be complete separation between the judicial
and executive functions, except as provided in the Constitution.
 81

68. In addition to the judges of the Supreme Court, of the

High Courts, and other subordinate judicial tribunals, as well as other
judicial officers, there shall be in and for the Union of India an Advocate-
General, appointed by the Head of the State, and charged with the legal
work of the state in India. Corresponding to the judicial organisation for
the Union of India, there shall be, for each component part of the Union or
for each group thereof, such High Courts with ordinary and extra-ordinary,
original and appellate, civil and criminal, admiralty and matrimonial
jurisdiction, as the Constitution of each component part or group thereof
provides.

69. In addition to the High Courts, there shall be in each

component part of the Union, or group of parts, such other subordinate
courts, original as well as appellate, civil and criminal, as the Constitution
of the part or the group provides.

70. The power, functions and jurisdiction of the each such

court or tribunal shall be prescribed by Act of the Legislature of the part or
group concerned.

71. In addition to judges of High Courts and of other courts,

as well as other judicial officers, there shall be an Advocate-General
appointed by the Chief Executive or Head of the State in the part
concerned, or, by agreement, in the combining parts in a group, and
charged with the legal work of the part or group concerned.

72. In addition to judges, judicial officers, Advocate-

General, there may be such other administrative, clerical, and subordinate
officers and servants in the Judicial Department of the Union, or of any
component part or group thereof, as an Act of the appropriate Legislature
may from time to time prescribe.
 8P

73. The same Legislature shall also lay down, or authorise

the Chief-Executive to lay down, the terms and conditions of appointment
and service, grades, rules of discipline of all such officers and servants as
well as the mode of making and the authority to make the appointment in
the first instance and to regulate promotions, transfers, retirement,
provided that, once appointed, no judicial officer can be removed from his
post except for reasons mentioned in Article 65.

74. Any judge or judicial officer may at any time resign his
office by letter addressed to the authority entitled to appoint to that office,
and on acceptance of the resignation the officer shall be relieved and his
post declared vacant.

75. The budget provision for the salaries, allowances and

pensions of judges shall not be voted upon every year, but shall be treated
as part of the budget duly passed?".

An ad-hoc committee on the Supreme Court was also

appointed, under the chairmanship of S. Vardachariar, to recommend
the structure of the judiciary. The report of ad-hoc committee on
Supreme Court was submitted on May 21, 1947. The members of the ad-
hoc committee were S. Varadachariar, A. Krishnaswami Ayyar, B.L. Mitter
K.M. Munshi and B.N.Rau. They considered the matter under some heads
as follows :

I. Jurisdiction and powers of Supreme Court

II. Advisory jurisdiction of the court
III. Ancillary powers of the court
IV. Constitution and strength of the court
V. Qualification and mode of appointment of judges
VI. Tenure of office and conditions of service of judges

7. B. S h iv a R ao : T h e F ra m in g of In d ia ’s C o n s titu tio n , V o l. II, p. 4 6 5 -4 6 7

 n:;

I. Jurisdiction and Powers of the Supreme Court :

A Supreme Court with jurisdiction to decide upon the

constitutional validity of Acts and laws can be regarded as a necessary
implication of any federal scheme. This jurisdiction need not however
belong exclusively to the Supreme Court. Even under the existing Indiar
Constitution, the question of the validity of Acts and laws is permitted tc
be raised in any court whenever that question arises in a litigation before
the court.

A Supreme Court for certain purposes being thus a necessity

the members considered that the court may well be given the following
additional powers under the new Indian Constitution.

a. Exclusive jurisdiction in disputes between the Union and a unit or

between one unit or another. The Supreme Court is the best available
forum for the adjudication of such disputes, and its jurisdiction should be
exclusive.

b. Jurisdiction with respect to matters arising out of treaties made by

the Union.

The treaty-making power belongs to the Union as part of the subject

of “Foreign Affairs". It would therefore be appropriate to invest the
Supreme Court of the Union with jurisdiction to decide finally, though not
necessarily in the first instance, upon all matters arising out of treaties
including extradition between the Union and a foreign state.

c. Jurisdiction in respect of such other matters within the competence

of the Union as the Union Legislature may prescribe.
 84

If the Union legislature is competent to legislate on a certain matter,

it is obviously competent to confer judicial power in respect of that matter
on a tribunal of its own choice; and if it chooses the Supreme Court for the
purpose, the court will have the jurisdiction so conferred.

d. Jurisdiction for the purpose of enforcing the Fundamental Rights

guaranteed by the Constitution.

Clause 22 of the draft of the Fundamental Rights provided

that the right to move the Supreme Court by appropriate proceedings for
the enforcement of Fundamental Rights is guaranteed. They think that it is
undesirable to make the jurisdiction of the Supreme Court in such matters
exclusive. The citizen will practically be denied these Fundamental Rights
if, whenever they are violated, he is compelled to seek the assistance of
the Supreme Court as the only court from which he can obtain redress,
where there is no other court with the necessary jurisdiction, the Supreme
Court should have appellate jurisdiction, including powers of revision.

e. General Appellate jurisdiction similar to that now exercised by the

Privy Council.

Under the new Constitution the jurisdiction of the Privy

Council as the ultimate appellate authority will disappear and it is
obviously desirable that a similar jurisdiction should now be conferred on
the Supreme Court. So far as the British Indian units are concerned, this
jurisdiction should be co-extensive with the present jurisdiction of the Privy
Council. As regards the Indian State units, there are at least two classes
of cases where, in the interests of uniformity, it is clearly desirable that the
final decision should rest with the Supreme Court, namely -

1. cases involving the interpretation of a law of the Union, and

 85

2. cases involving the interpretation of a law of a unit other than the State
concerned.

Sir B.L. Mitter suggests that such uniformity can be obtained

either by invoking the appellate authority of the Supreme Court or by a
reference of the particular issue to the Supreme Court. Cases involving
the constitutional validity of a law of the Union or of any unit have already
been dealt with; they will all necessarily fall within the Supreme Court's
jurisdiction.

It will also, of course, be open to any Indian State unit to

confer by special agreement additional jurisdiction upon the Supreme
Court in respect of such matters as may be specified therein.

II. Advisory Jurisdiction of the Court :

There has been considerable difference of opinion amongst

jurists and political thinkers as to the expediency of placing on the
Supreme Court an obligation to advise the Head of the State on difficult
questions of law. Inspite of arguments to the contrary, it was considered
expedient to confer advisory jurisdiction upon the Federal Court under the
existing Constitution by Section 213 of the Act. After considering the
arguments, they felt that it will be on the whole better to continue this
jurisdiction even under the new Constitution. It may be assumed that such
jurisdiction is scarcely likely to be unnecessarily invoked, and if the court
is to have a strength of ten or eleven judges, a pronouncement by a full
court may well be regarded as authoritative advice. This can be ensured
by requiring that references to the Supreme Court for advice shall be dealt
with by a full court.
 ■ih

III. Ancillary Powers of the Court :

Power should be conferred upon the Supreme Court as under

Section 214 of the Act of 1935 to make rules of procedure to r e g u l a t e us

work and provisions similar to those contained in Order 45 of the vs

Procedure Code and should be made available so as to facilitate 'he

preparation of the record in appeals to the Supreme Court as well ar me

execution of its decrees. They did not feel it necessary to continue 'he
restriction placed at that time on the Federal Court by Section 2 0 9 o* the

Act of 1935. If the Supreme Court takes the place of the Privy Counc i
may well be permitted to pronounce final judgements and final decrees m
cases where this is possible or to remit the matter for further inquiry U 'he
courts from which the appeal has been preferred where such fu the-
enquiry is considered necessary. Provision must also be made on the res
of Section 210 of the Act of 1935 giving certain inherent powers tc the

Supreme Court.

IV. Constitution and Strength of the Court :

The makers of the Constitution felt that the Supreme Crmrt

would require at least two Division Benches and that each Division Bern h

should consist of five judges, the court would have ten judges in add tmn

to the Chief justice so as to provide for possible absences or ether

unforeseen circumstances. Moreover, one of the judges may be reqt.red

to deal with miscellaneous matters incidental to appellate jurisdr tion

(including revisional and referential jurisdictions).
 8/

V. Qualification and Mode of Appointment of Judges :

The qualifications of the judges of the Supreme Court may be

laid down on terms very similar to those in the Act of 1935 as regards the
judges of the Federal Court, the possibility being borne in mind (as in the
Act of 1935) that judges of the superior courts even from the States which
may join the Union may be found fit to occupy a seat in the Supreme
Court. They did 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. They have suggested two alternatives, both of
which involve the setting up of a special penal of eleven members
According to one alternative, the President, in consultation with the Chief
Justice, is to nominate a person for appointment as prime judge and the
nomination has to be confirmed by at least seven members out of eleven
of the panel. According to the other alternative, the panel should
recommend three names, out of which the President, in consultation with
the Chief Justice, is to select one for the appointment. The relevant
section in the draft clauses adopts substantially the first alternative
utilising at the same time the Council of State for this purpose. It will be
noticed that the Council of State includes the Chief Justice among its
members and its composition is such as to secure freedom from party
bias. It should, therefore, be a satisfactory substitute for the panel
recommended by the ad-hoc committee.

VI. Tenure of Office and Conditions of Service of Judges :

The tenure of office of the Judges of the Supreme Court will

be the same as that of Federal Court Judges under the present
Constitution Act and their age of retirement also may be the same (65)
Their salary and pensions may be provided for by statutory rules it is
undesirable to have temporary judges in the highest court of the land
Instead of having temporary judges, the system of having some ad
judges out of a panel of Chief Justices or Judges of the High Courts nnv
be adopted8.

This report of the ad-hoc committee was incorporated in me

report of the Union Constitution Committee by adding only the mod* of

appointment of Judges.

The Constituent Assembly, at this stage was hopeful to get

some other details which will more appropriately go into the Judiciary Act
which the Federal Parliament may pass after it comes into existence ne
Constituent Assembly adopted the Clause 18 of the Union Constitution
Committee Report which suggested the adoption of the Report of the an
hoc committee with some modifications. But some amendments were
defeated in the Assembly and another was withdrawn and the idea behind
these withdrawal was that “it will find a place in the Draft’V But it was
seen that the Draft Constitution has deviated from the general scheme
adopted by the Constituent Assembly in three particulars ; "(1) the Report
of the ad-hoc committee was widely departed from, (2) the genmal
scheme to omit details which could be included in a judicature act was
given up, and many details were included, and (3) among the details
incorporated were some of the amendments defeated in the Assen biy
earlier” 10.

The language of the Constitution particularly in the provisions

of judiciary is not free from ambiguities and its meaning is likely to r>e
differently construed at different times which may not be interpreted in me
same way by the future judiciary in India. At a very late stage Ai'acn
realised it and remonstrated with them in vainn. Dr. Ambedkar also
confessed that its meaning would depend on how the Supreme Court
would interpret it in future12.

8. B. Shiva Rao : The Framing of India's Constitution, Vol. II, p. 587-590

9. C.A.D., Vol. IV, P, 958
10. K.V, Rao : Parliamentary Democracy of India, p. 201-202
11. C A D., Vol. VIII, p. 638-639
12 C.A.D., Vol. VIII, p. 358
 89

Thus the chapter on Indian Judiciary came into being which

consists of a Supreme Court at its top, with its seat in New Delhi, High
Courts in the middle and the Subordinate Courts at the bottom The
founders of the Constitution, mostly lawyer members were satisfied with
the existing judicial system of that time based under the 1935 Act They
found only one difficulty with the distribution of appellate jurisdiction
between the Federal Court and the Privy Council. So, they, as a remedial
measure, created the Supreme Court and integrated the two. They
however, made two innovations - the power to issue writs was conferred
on all High Courts, and the Supreme Court was given original jurisdiction
under Article 32 to enforce Fundamental Rights.

The Supreme Court is the creation of the Constitution and

therefore, its composition, powers, jurisdiction etc. all are given
exhaustively in the Constitution itself. But that is not the case with the
High Courts and the Subordinate Courts and with the exception of few
basic matters, the Constitution leaves them to be governed by the existing
laws or the laws which may be passed in future.