Appointment of retired judges: Neglected provisions and a forgotten drafter

Senior Advocate and scholar Arvind Datar, in a recent important article, argued for reviving the neglected Articles 128 and 224-A of the Constitution. These articles provide for the appointment of retired judges to the Supreme Court and High Court, respectively.

The idea behind the provisions was to enable the Chief Justice of India to equip the Court with more manpower and address the volume of cases, if the need arises. However, as Datar highlights, this provision has largely been neglected and has only been used thrice.

Much like the provisions, the constitutional discourse in India has also neglected the drafter of the articles, Sir Benegal Narsing Rau. Despite making significant contributions to the Constitution-making process, he is remembered as a mere footnote.

Rau wore many hats during his illustrious public career, including scholar from Presidency College, Madras and Cambridge; member of the Indian Civil Services; judge of the Calcutta High Court; an almost-judge of the Federal Court; Chairperson of the Hindu Law Reform Committee and judge of the International Court of Justice. However, his most important contribution to the nation was his service as the Advisor to the Constituent Assembly.

He is popularly remembered for preparing the first draft of the Constitution, containing 243 Articles and 13 Schedules. The initial discussions in the Assembly proceeded on Rau’s draft, which the Drafting Committee later revised. However, his role extended beyond preparing the draft. He was the backbone of the Assembly, responsible for its administrative functioning. Additionally, he educated the Assembly about global constitutional practices and provisions, sought their suggestions on provisions to be drafted and, as a result, ensured that India’s Constitution was a product of informed deliberation and discussion.

On March 17, 1947, even before the formation of the Drafting Committee, Rau prepared a questionnaire seeking suggestions on salient features of the Constitution. These included the designation of the head of the state, mode of selection, term of office, nature of the executive (parliamentary or presidential or mixed), number of chambers in the legislature, amendments, etc. The questionnaire also contained a note explaining the position in different countries. It was circulated to members of both the Central and provincial legislatures, and individual views of the members were sought. Rau also prepared a series of pamphlets titled ‘Constitutional Precedents’, containing key features of the new Constitution. These pamphlets were circulated to the members of the Constituent Assembly to educate them about global practices and enhance the discussions of the Assembly. His pamphlets were appreciated by Prime Minister Nehru himself for their research and objectivity. Nehru wrote in a note,

“Sir B.N. Rau has prepared a number of leaflets and pamphlets on the various issues before the Constituent Assembly, I have read most of them and I find them very helpful. I think they certainly need to be printed in convenient book form all together and sent to all the members of the Constituent Assembly. The pamphlets have been written very objectively and not with a view to support any particular thesis.”

In addition to educating the Assembly, Rau was also deputed by the President of the Assembly to visit the United States of America, Canada, Ireland and Britain for personal discussions on important features of the draft Constitution with leading constitutional experts. These interactions influenced Rau, and two key provisions of the Constitution were accordingly amended, including the change in phraseology of Article 21 which was changed from ‘due process’ to ‘procedure established by law’, based on Rau’s discussion with Justice Felix Frankfurter.

During this trip, Rau envisaged the provision for the appointment of retired judges in the Supreme Court and the High Courts. In his report to the President titled A Visit to the U.S.A., Canada, Eire and Britain, Rau recalls his interaction with Sir Madhavan Nair, to whom he suggested that he was keen on empowering the Supreme Court to call upon a retired judge of the Court to serve on any particular case. Rau was inspired by similar provisions in the United States of America and England and thought the provision would help alleviate the anticipated concern of a large volume of cases in the Court. Upon return, Rau added Clause 90-A to the draft Constitution, a suggestion which was approved by the Drafting Committee on December 10, 1947. In the proceedings of the Assembly, the provision was barely discussed (except in a speech by HV Pataskar).

Rau believed that the provision could help address concerns about the high workload of the Supreme Court. Datar has rightly argued that it could also be used to appoint outstanding retired judges to clear the backlog of pending cases in the Court. The intention of Rau and the Drafting Committee was to create an enabling provision which could be invoked by the Chief Justice if the need arises. However, the failure of successive Chief Justices to do so despite a pressing need highlights the neglect of the provision.

The Union government has recently announced its decision to celebrate 75 years of the Constitution. It is hoped that the celebrations do justice to the makers of the Constitution and celebrate the role of everyone, not just a select few. In a tribute to Rau, President Rajendra Prasad remarked,

“If BR Ambedkar was the skilful pilot of the Constitution through all its stages, Sir BN Rau was the person who visualised the plan and laid its foundation.”

It is imperative that the genius of Rau, his contributions, and his life are celebrated and that he is brought back from the footnotes of constitutional discourse in India. 

Read more about Rau here.

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.