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.
Source: Barandbench
