On the question of likelihood of the independence of judiciary being eroded due to Judges accepting post retirement benefits, it is useful to refer to the debates in the Constituent Assembly of India (dated 7th June. 1949), Volume VIII, page 676. In the draft Constitution, Article 193-A was sought to be introduced in the following terms:
Mr. President: There is notice of an amendment that a new article, Article 193-A be introduced, by Professor K.T. Shah, amendment No. 2624.
Prof. K.T. Shah: Mr. President, Sir, I beg to move:
That the following new Article 193-A after Article 193 be added:
193-A No one who has been a Judge of the Supreme Court, or of the Federal Court or any High Court for a period of 5 years continuously shall be appointed to any executive office under the Government of India or the Government of any State in the Union, including the office of an Ambassador, Minister, Plenipotentiary, High Commissioner, Trade Commissioner Consul, as well as of a Minister in the Government of India or under the Government of any State in the Union.
Sir, this is part of the principle which I have been trying to advocate, namely the complete separation and independence of the judiciary from the executive. One way by which the executive has tried in the past to tempt the highest judicial officers is by holding out the prospect of more dazzling places on the executive side which would be offered to those who were more convenient or amenable to their suggestions.
Shri H.V. Kamath and Prof. Shibban Lal Saksena supported the amendment suggested by Prof. K. T. Shah as will be evident from their comments at pages 677 and 678 respectively.
However, when the President of the Constituent Assembly called upon Dr. Ambedkar to express his views on the motion made by Prof. Shah, Dr. Ambedkar opposed the motion. Referring to, the doctrine of separation of the judiciary from the executive, Dr. Ambedkar emphasised the fact that it only contemplated that a person, while he is holding a judicial office, must not hold any post which involves executive power. Similarly while a person is holding an executive office he must not simultaneously hold a judicial office. But the motion had different implications. Dr. Ambedkar referred to the fact that in India, unlike in Great Britain and the United States, Judges were expected to quit office at a comparatively early age. The question of a Judge of the higher judiciary seeking another office after retirement seldom arose either in Great Britain or in the United States. A mention was also made of the fact that in United States the pension of the Supreme Court Judge was the same as his salary. In England also, it was stated, the pension was nearly 70% of the salary of the Judges of the higher judiciary. There was some discussion thereafter as to whether the motion proposed by Prof. Shah was meant only for sitting Judges or retired Judges. Ultimately, however, the amendment was negatived at page 679 of the Debates.
