B MALIK Vs. UNION OFINDIA

JUDGEMENT

(1.) I have read the judg ments of my brothers G. C. Mathur and Gangeshwar Prasad and I entirely agree with them that these petitions should be dismissed. As the matter is obviously of importance, I have thought it proper to deal with certain aspects in my own way.

(2.) THE Constitutional History before January 26, 1950 is not relevant. It is not necessary to refer to it. By virtue of Article 376 (1) all pre-Constitution Judges became Judges under the Consti tution. Their salaries, allowances and rights in respect of leave of absence and pension are determined not by any pre-Constitution law of its own force but under Article 221 of the Constitution. So in respect of these matters there is no difference between pre-Constitution Judges and post-Constitution Judges. Both of them derive rights from one common source-Article 221.

(3.) NOW I am aware of the ordinary rule of strict construction of a proviso. But I think that this proviso should re ceive a broad construction.I say this not merely because it is part of the Consti tution which generally receives a liberal interpretation. I say this because it is designed to secure a historic social inter est in a democratic society. It is the social interest in the independence of Judges from men and their government. If the Judges are to dispense with fear less and favourless justice between man and man and between man and the Gov ernment, they should be kept above 'the throne' by granting them complete econo-J mic security. Their rights to economicl advantages should be fixed definitely at the time of their call to office and should be insulated from subsequent impair ment. (See Holdsworth: Constitutional Position of the Judges, (1932) 48 Law Quarterly Review, P. 25). When the Com missioners of Inland Revenue, purporting to act under the vague words of the National Economy Act, 1931, made a deduction from the salary of the Judges, Holdsworth warned: "It is clear that if the English legal sys tem is to develop in the future on the same high plane of intellectual excellence as it has developed in the past, the stand ard of the intellect of the bench must be maintained. And we should remember that, if this standard of intellectual excel lence is not maintained, that law-abiding instinct, which is the life- blood of civilisa tion, will be imperilled". (Ibid, pp. 32-33).