IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 227 OF
2016
IN THE MATTER OF
A.C.Philip …PETITIONER
Versus
1.
The Supreme Court of India,
through its Registrar General & Others …RESPONDENTS
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA SEEKING DECLARATION AND OTHER RELIEFS.
TO
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE
PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH
1. The Petitioner is a
citizen of India. He hails from the
family of small scale farmers and was enrolled as an Advocate with the Bar
Council of Tamilnadu and Pondichery.
Currently he appears in the High Courts of Bombay, Delhi, Kerala and
Punjab and Haryana and, of late, in the Supreme Court of India, as well.
2. The Petitioner, who
is part of the campaign titled ‘National Lawyers’ Campaign for Judicial
Transparency and Reforms’, has observed since the judgments of the Supreme
Court in Judges-2 and Judges-3 cases that selection and
appointment of Judges to the Supreme Court and High Courts have largely been of
the elite class of lawyers, namely, the kith and kin of sitting and former
Judges of the Supreme Court and High Courts, celebrated lawyers, Chief
Ministers, Governors et al and a few first generation lawyers who are all
politically connected or are close to big industrial houses. The Petitioner, with great amount of pain,
begs to further submit that Judges so appointed, who constitute to be the super
elite class among lawyers, in turn appointed their kith and kin, relatives and
friends as Senior Advocates. The fallout
thereof is disquieting. The sons and
daughters of common men, taxi drivers, teachers, farmers, small traders and
vendors those in the private and public sector in the lower rungs, who
constitute to be 98% of the legal fraternity, have no place anywhere near the
higher echelons of judicial office.
However, there are some exceptions and the world knows the reasons, the
Godfathers and the connections they had.
With the Bench and the Bar, the latter for all practical purposes means
the upper class of lawyers mentioned above, literally being under the monopoly
of the elite upper class meant another class, a miscellaneous or lower caste,
of lawyers who are literal untouchables in the sanctum sanctorum of the Temples
of Justice. The casteism in the legal
profession, though not on the lines advocated by Manu, but legalised into the
class system by virtue of section 16 & 23(5) of the Advocates Act,1961, is
a reality. The Petitioner believes that
he has no reason to hesitate to admit that he belongs to the untouchable class
of lawyers who have no Godfathers.
3.
The Petitioner is no great admirer of the system which
was in prevalence prior to 1993 when the executive appointed Judges of the
higher judiciary in consultation with the Chief Justice of India (CJI) in the
case of the Supreme Court and the Chief Justices of the High Courts as well, in
the case of High Courts. But the
collegium system, an offspring of the judgments in Judges-2 and Judges-3
cases, a mechanism to insulate judicial appointments uninfluenced by extraneous
considerations and to secure appointment of the most deserving, has, far from
achieving the said goal, led to oligarchy, to borrow an expression of the
legendary Justice Krishna Iyer, who was the greatest critic of the collegium
system. The painstaking study undertaken
about the judgments in Judges-1, Judges-2 and Judges-3 cases, so too the judgment of the Full Bench of the
Supreme Court in Kesavananda Bharati v. the State of Kerala (1973)
Supp. SCR 1, made him realize that the judgments in Judges-2 and Judges-3
cases are rendered per
incuriam and the judgment in Kesavananda Bharati, though one elevated to the status of Bible and Bhagwat Geeta and
therefore of which no criticism could be made, is a judgment against the basic
tenets of jurisprudence, and the judgments in Judges- 1,2 and 3 cases, to a large extent, are the products of the
mischief of the purported ratio of Kesavananda Bharati. The
Petitioner also realized that the sole reason for the national calamity, which
the judgments in Judges-2 and Judges-3 cases are, is the admission of
‘locus standi’ as to the maintainability of Judges-1&2 cases and the
concession made by the then Attorney General in Judges-3 case that the
Government of India is not seeking a review of the judgment in Judges-2 case as
“the law of the land”.
4.
While the Judges-2 and judges-3 cases
effected amendments to the constitution, by constituting collegium, the Union
Government in terms of the promise made
by it in its election manifesto of an open and transparent selection and
appointment of Judges to the higher judiciary, brought in the Constitution
(121st Amendment) Bill, 2014
and the National Judicial Appointment Commission Bill, 2014. The said Bills were passed by both the Houses
of the Parliament, received the assent of the President of India on 31st
December, 2014 and became the Constitution (Ninety-ninth Amendment) Act, 2014
and the National Judicial Appointment Commission Act, 2014 (the Acts, for
short). However, they were not notified.
5.
In the meanwhile, certain first class
lawyers, the so-called legal luminaries, mesmerized the people of this country
and ordinary lawyers to believe that a judgment of the Supreme Court in a case
between A and B is not merely a precedent when a case between C and D involving
the same issues, but is the “law of the land”; that it is not the Parliament
which declares the law of the land, but the Supreme Court, and filed petitions
under Article 32 of the Constitution titling them as PILs, which later came to
be known as the NJAC case. PIL as envisaged by the legendary Judges like
P.N. Bhagwati, Y.V. Chandrachud, V.R. Krishna Iyer et al, only meant that where
a person whose constitutional and legal rights are infringed and who out of his
poverty, ignorance, illiteracy and other disadvantages is unable to approach a
constitutional Court, any person acting pro
bono publico can, without any express authority from the person aggrieved,
act on his behalf. PIL only meant
relaxation of the concept of locus standi to make justice delivery system
accessible to the poor, illiterate and such others. However, the PIL had been castigated to be a “ravenous wolf in sheep's clothing”
by none other than legendary Krishna Iyer, one of the very architects of the said benevolent jurisprudence. Thus, though PIL was not meant to be a device
to substitute the executive and legislature by Courts and the Courts to act as
if it is the executive, legislature and judiciary, all at once, the legal
luminaries and some among them, who are accused of running a Rs.500 crore PIL
industry, hypnotized the people of this country and ordinary
lawyers and made them to think otherwise.
6. To invoke the
jurisdiction of the Supreme Court under Article 32 of the Constitution, there
must be a “person aggrieved”. One could
be said to be a person aggrieved where his fundamental rights are
infringed. The Acts in question, the
Petitioner begs to submit, cannot be said to infringe the fundamental rights of
anyone, for, the said enactments are enactments in the realm of executive and
legislative policy, which are wholly non-justiciable. Yet, the Supreme Court Advocates on Record
Association (SCAORA) instituted a Writ Petition under Article 32 seeking a
declaration that the said Acts are unconstitutional without a plea that their
or their members’ fundamental rights are violated. The learned Advocate General was duty bound
to raise the plea of non-maintainability of the said Writ Petition, for, to
repeat, for maintenance of a PIL there must be a person aggrieved and SCAORA
and the Bar Association of India, the Petitioners in the Writ Petitions, have
not stated who is the person aggrieved;
that the only persons who can be said to be aggrieved are the Judges of
the High Courts and the Supreme Court who could be said to be invested with a
legitimate expectation, an equitable right, for elevation as a Judge of the
Supreme Court or as the Chief Justice of a High Court, but they were not
Petitioners in the Supreme Court; that SCAORA and the Bar Association of India
have not made any assertion that the said Writ Petitions were instituted in a
representative capacity on behalf of such Judges who could not have, on their
own, instituted them for enforcement of their fundamental rights; and that the
controversy raised in the said Writ Petitions were in the realm of executive
and legislative policy and therefore not justiciable. The learned Attorney General, like his
predecessors in 1981, 1993 and 1998, by failing to raise the fundamental plea
that the challenge to the said Acts is not maintainable, invited the judgment
dated 16th October, 2015 at the hands of the Five-Judge Constitution
Bench of the Supreme Court holding that the said Acts are unconstitutional.
7. “Brevity is the soul of wit”, said
Shakespeare. The Petitioner begs to
submit that the Five-Judge Constitution Bench in NJAC case (WP(C) No.13/2015 with
WP(C) No.124/2015, JT 2015 (10) SC 1), took notice of the
fact that the collegium system has failed; that it is imperative to improve it
and exhorted that it is time for “glasnost” (openness) and “perestroika”
(restructuring), and accordingly it invited suggestions from Bar Associations,
legal luminaries and the ultimate stakeholders, the public at large. The public at large responded to the call of
the Supreme Court in an overwhelming measure, though they were given only a few
days and that too in the midst of the 2015 Diwali Holidays to submit their
opinions and suggestions in the realm of (i) Transparency, (ii)
Collegium Secretariat (iii) Eligibility
Criteria and (iv) Complaints. With utmost respect the Petitioner begs to submit
that the Supreme Court realized that inviting suggestions from the public is in
the realm of legislation, though it did not expressly say so, and when opinions
and suggestions running into 15,000 pages from thousands of people are received
it is impossible to decide which opinion should be accepted or rejected. A copy of the main judgment is not produced
and the Petitioner begs to refer to it since it has been reported in JT 2015
(10) SC 1. A copy of the order dated
05.11.2015 by which suggestions from the public was sought is produced as Annexure P-1 page at ( ____ to ____) and copy of the order dated
19.11.2015 by which collegium was revived to function is produced as Annexure P-3 page at ( to
____)
8. As to
be reminded of the words of Horace, parturient montes, nascetur ridiculus mus, the Supreme
Court, the Petitioner salutes its sagacity and wisdom in realizing that the
task of inviting opinions and suggestions from the public at large as to the
ways and means by which the collegium system could be improved and acting upon
those suggestions is too cumbersome/onerous, by order dated 16.12.2015 directed
the Government of India to prepare a Memorandum of Procedure for appointment of
Judges to the higher judiciary in consultation with the CJI. A copy of the order dated
16.12.2015 is produced as Annexure P-3
page at (____to ___).
9. The
aforesaid Acts, by which a mechanism for appointment of Judges of the higher
judiciary by NJAC in substitution of the collegium system, which has failed entirely
and has resulted in oligarchy, corruption and nepotism, were held to be
unconstitutional by the judgment dated 16th October, 2015. The NJAC was aborted and the collegium system
is restored. The Government has not
filed any petition seeking review of the said judgment. The only review petition is the one which has
been filed by the Petitioner. The
Petitioner in all humility concedes that he is so inconsequential that the
efforts to secure a review of the judgment dated 16th October, 2015
and restore the NJAC is a near impossibility.
The Petitioner, therefore, considers that it is only prudent on his part
to accept the burial of the NJAC as a fait accompli and to pursue some other
feasible means to secure the mandate of Articles 14 and 16 of the Constitution
a reality. Hence this writ petition.
10.
The august offices of the Judges of the Supreme Court and
High Courts are public offices of great esteem and sanctity. Every lawyer, nay, every citizen of this
country, who satisfies the qualifications and criteria prescribed under
Articles 124(3) & 217(2) of the Constitution, is entitled to aspire for
selection and appointment to the said posts, and to be selected and appointed
if the authorities invested with such function find him eligible and suitable. The Petitioner begs to submit that the
ordinary lawyers commits no crime in harbouring a thought that there should
exist a system where they could also apply for and be selected and appointed as
a Judge, if eligible, and whether they are eligible or suitable ought to be
determined by certain eligibility criteria or standard prescribed. It is the duty of the authority invested with
the power to make selection and appointment that it makes such appointment in
an open, transparent, non-arbitrary, just and fair manner so that hundreds and
thousands of lawyers across the breadth and width of the country, who consider
themselves to be eligible for the post, are not denied of their fundamental
right guaranteed under Articles 14 and 16 of the Constitution.
11.
The judgment dated 16th October, 2015
recognizes and holds that certain rules or regulations ought to be made in the
matter of selection and appointment of Judges of the higher judiciary and
accordingly invited suggestions and opinions from the public at large identifying
or confining to four core areas, namely, (i) Transparency, (ii)
Collegium Secretariat, (iii) Eligibility Criteria and (iv) Complaints. If rules and regulations or Memorandum of Procedure, no matter by what
name it is known, no matter whether it is statutory or non-statutory or merely
executive, it is absolutely necessary that its draft so made is made known to
the public at large. But the Memorandum
of Procedure unfailingly ought to prescribe the eligibility criteria, including
the upper and lower age limit, the income limit, though the Petitioner has
serious reservations in fixing any
income limit, etc. The most pointed
accusation against the collegium system of appointment is that it is absolutely
cabal, which meant the exalted office of the Judges of the higher judiciary
being literally monopolized by the kith and kin of Judges, and the vast
majority of lawyers who have no connections with the members of the collegium
are left out; they do not even come to know that vacancies of Judges are being
filled up. The word “invitation” is the most scandalous one, for, it has meant
only the kith and kin of sitting and former Judges of the Supreme Court
and High Courts, celebrated lawyers, et al being invited to occupy the august
office. In other words, the greatest
demand of the legal fraternity, the civil society, the public at large, is that
vacancies in the office of the Judges of the Supreme Court and High Courts be
notified, invitations and references from all eligible be called for, the
selection procedure should be made wholly transparent, minutes of the
proceedings of the collegium be open to the public and in particular through
the Right to Information Act. The order
dated 16.12.2015 by which the Constitution Bench directed the Government of India
to frame a Memorandum of Procedure in
consultation with the CJI has not given any directions even in the realm of
notifying the vacancies and inviting applications/references from eligible
candidates. The Petitioner is an ordinary
Advocate; he has no connections with the higher ups; he knows nothing about
what happens in the higher echelons of power.
But he is made to understand that the Ministry of Justice, which has
formulated or is formulating the Memorandum of Procedure, is in favour of notification of the vacancies to the legal
fraternity, nay, the public at large, and invitation of applications/
references from members of Bar Associations and general public, though at the
hearing of the NJAC case the learned Attorney General, time and again, reiterated
that the Government is in favour of advertisement of vacancies and open
selection; so too total openness of the method of selection and appointment,
and make the Right to Information Act,2005 applicable to it. The petitioner, under the leadership of Mr.Mathews
J.Nedumpara, along with M/s. R.P. Luthra, A.K.De, Anjan Sinha, Anil Nishani, et
all , members of the National Lawyers’ Campaign for Judicial Transparency and
Reforms met the Hon’ble Minister of law and justice, seeking appropriate steps
at the hands of the Government to undo the great public injury which the
judgment of the Supreme Court in NJAC case constitute to be and in particular,
to the members of the legal fraternity, nay the posterity or the generations of
the lawyers to come, of equal opportunities in the matter of elevation to the
office of the judges of the High Courts and Supreme Court which undoubtedly is
high constitutional public offices, of which all citizens are entitled to have
an equal opportunity under Article 16 of the Constitution. A communication was received dated 23.02.201
from the ministry of Law and Justice on this. The legal fraternity, nay, the public at
large, is kept in total darkness as to the ways and means by which the
collegium system could be improved, which should reflect in the Memorandum of
Procedure which is said to be under discussion with the CJI. The Petitioner is made to understand that the
Memorandum of Procedure has failed to translate the need of the hour, namely, “glasnost”
and “perestroika”, which will be
achieved only if the following are incorporated in the Memorandum of Procedure in unmistakable terms:-
(i) Notification of vacancies;
(ii) Invitation of applications from lawyers who
are considered to be eligible; so also references from Bar Associations,
lawyers and even public at large as to whom they consider to be eligible and
deserving;
(iii) Short-listing of applications/references so
received;
(iv) Notify to the legal fraternity and the public
at large the names which are short-listed;
(v) Provide for a mechanism for dealing with
complaints against the names short-listed;
(vi) Provide for the composition of the Collegium
Secretariat;
(vii) Give access to documents/minutes of the
collegium, including application of Right to Information Act,2005 as well.
12.
It is possible that the apprehensions expressed by the
Petitioner above that the Government is not considering inclusion of the above
points in the Memorandum of Procedure, that the Memorandum of Procedure under
preparation or which has already been prepared means no tangible improvement of
the collegium system, which was condemned by all, may not be true, for, for the
Petitioner cannot claim any sanctity to his source of information, in which
case this Writ Petition may become infructuous and the Petitioner will have to
seek leave of this Hon'ble Court to withdraw the same. If, on the contrary, what the Petitioner has
heard from informal, not so reliable sources, is true and the collegium system
is restored without any improvement with no amount of “glasnost” and “perestroika” and the same continues to
be the cabal system as before, then the Petitioner is entitled to seek a
mandamus at the hands of this Hon'ble Court directing the Government of India
to incorporate in the Memorandum of Procedure the requirements enumerated
above, which will make the collegium system transparent and will afford an
opportunity to all those who are eligible and deserving to apply for the post
of Judges of the higher judiciary.
13.
The petitioner is functionary of a national campaign
titled “the national lawyers campaign for judicial transparency and reforms’’
to secure greater Transparency and Accountability in the higher judiciary. The
campaign has as its primary agenda to strive for, leaving no stones unturned,
to secure an open and transparent selection and appointment of the judges of
the Supreme Court and High Courts. Accordingly, a delegation of the lawyers
Campaign met the Hon’ble union law minister on 16th of February 2016
demanding that the Government of India should seek a review of the judgement of
this court in the NJAC. Suffice is to say that the irresistible impression
which the Hon’ble Minister, who entertained the delegation which was led by Mr.Mathews
J.Nedumpara, so too, the petitioner and M/S.
R.P.Luthra and A.K.Dey, was that the Government of India is committed to the
cause of greater transparency and accountability in higher judiciary.
14.
Considering the larger issue, the Petitioner, has
instituted, the instant Writ Petition under Article 32 of the Constitution of
India before this Hon’ble Court, on the following amongst other :-
GROUNDS
A.
The judgment dated 16th October, 2015 in WP(C) No.13/2015
with WP(C) No.124/2015, (JT 2015 (10) SC 1) declaring the Acts as
unconstitutional is void inasmuch as the said judgment impinges the basic
structure of the Constitution; it is one rendered without jurisdiction and in
violation of the principles of natural justice since this Hon'ble Court
happened to assume to itself the jurisdiction to embark upon an inquiry as to
whether or not the wisdom of the Parliament, and that too in absolute
unanimity, except a sole Member in the Rajya Sabha, and ratified by more than
20 States, is questionable or not. This
Hon'ble Court happened to do so since the learned Attorney General conceded, as
has been recorded in paragraphs 75 and 76 of the lead judgment at the hands of
Hon'ble Mr. Justice Khehar, that the challenge raised by the Supreme Court
Advocates on Record Association (SCAORA) and others “could only be accepted, if
it was shown, that the Parliament while exercising its plenary power to amend
the Constitution, had violated the ‘basic structure’ of the Constitution.” At the cost of repetition, it may be stated
that in paragraph 76 of the judgment it was recorded that it has been asserted
by the learned Attorney General that “the only scope for examination with
reference to the present constitutional amendment was, whether while making the
aforestated constitutional amendment, the Parliament had breached, any of the
‘basic features’ of the Constitution.”
B.
The entire challenge to the Acts made in the Writ
Petitions filed by SCAORA and others was founded on the spacious premise that
independence of judiciary is one of the basic structure of the Constitution and
in so far as the said Acts while enacting for NJAC, a mechanism where under
Judges will have no absolute monopoly in the selection, appointment and
transfer of Judges, will amount to impingement of the independence of the
judiciary, one of the most inalienable, transcendental and primordial basic
feature of the Constitution. Stated in
the simplest of simple words, the challenge to the Acts was on the sole premise
that independence of judiciary is at peril, nay, the basic structure of the
Constitution will be impinged; nothing more, nothing less.
C.
The doctrine of basic structure has its foundation in the
judgment of the Full Court of this Hon'ble Court in Kesavananda Bharati v.
the State of Kerala (1973) Supp. SCR 1.
In Kesavananda Bharati, the constitutionality of the Constitution
(Twenty-fourth Amendment) Act, 1971 and Constitution (Twenty-fifth Amendment)
Act, 1971 was challenged on the premise that the said amendments are violative
of Part III of the Constitution, a Chapter which deals about fundamental
rights, of which the most pertinent is Article 13 of the Constitution which
declares that all pre-existing laws in so far as they are in conflict with, so
too all post-Constitution laws in so far as they take away or abridge the
rights conferred under Part III of the Constitution, are void. In Kesavananda Bharati the plea that
the Constitution (Twenty-fourth Amendment) Act, 1971 and the Constitution
(Twenty-fifth Amendment) Act, 1971 be declared to be void because they violated
the fundamental rights was not accepted.
The said judgment, however, held that though fundamental rights could be
impinged by virtue of a Constitution amendment, such impingement cannot be an
absolute one, one which would totally take away or eliminate the lives and
liberties of citizens which are so sacrosanct and could be construed to be the
soul of the constitutional ethos. This
Hon'ble Court while explaining the proposition that the Parliament in exercise
of its constituent power is competent to curtail or limit the fundamental
rights, keeping in mind the directive principles of State policy, which has an
equal position of prominence in the constitutional scheme, held that it still
shall not be entitled to exercise its power of amendment in such a fashion as
to totally destroy or emasculate the Constitution or replace it with
another. However, the doctrine of basic
structure, on the very face of it a proposition which none could find fault
with, for, in Kesavananda Bharati, so too in subsequent judgments of
this Hon'ble Court, it was held that republican democratic form of Government,
Federal structure of the Constitution, separation of powers, secularism,
independence of judiciary, all, constitute to be the basic structure of the
Constitution, lost sight of the fact that the doctrine of basic structure no
way expands the horizons of the concept of justiciability. Kesavananda
Bharati invoked the jurisdiction of the Supreme Court for enforcement of
his fundamental right. The Supreme Court
held that the Constitution amendment, which was challenged, was valid, but it
further held that the Parliament even in exercise of its constituent amendment
cannot take away or completely destroy the fundamental rights.
D.
The doctrine of basic structure in itself is not
justiciable. Nobody could ever imagine to
be invested with the right to come to a Court and seek a declaration that a
Constitution amendment or an Act of Parliament is void since he perceives that
the amendment or the Act impinges the basic structure. He or she needs to plead something more, namely,
that his or her fundamental rights are violated and the amendment or the Act
which has violated his or her fundamental rights is so drastic or illegal that
it not merely impinges his or her fundamental rights but it completely destroys
them. There thus a violation of the
basic structure of the Constitution and the Parliament in exercise of its
constituent power is not empowered to enact such a law can be pleaded. Stated pithily, before and after Kesavananda
Bharati, to challenge the constitutional validity of a Constitution
amendment or an ordinary legislation there must exist a person aggrieved and
the person aggrieved must complain that by virtue of the amendment or the
legislation his fundamental right is violated.
Kesavananda Bharati has, in fact, contrary to the public
perception, made the challenge on the ground of violation of fundamental rights
difficult, rather than easier. Kesavananda
Bharati permits some curtailment of fundamental rights. The only bar is that such curtailment shall
not be so drastic that it will completely destroy the fundamental rights
itself, for, the fundamental rights constitute to be an inalienable,
transcendental and primordial basic feature of the Constitution. The Petitioner begs to submit with utmost
respect that in Kesavananda Bharati the Hon'ble Judges went on to
discuss the concept of basic structure of the Constitution beyond what was
required, which made the seeds of total misconception of the said judgment
blossom in the years to come. In certain
other judgments, namely, Minerva Mills v. Union of India (1980) 2 SCC 591, Madras Bar Association v.
Union of India, (2014) 10 SCC 1 and the NJAC case too, the fact that the
concept of basic structure was evolved with reference to a plea for enforcement
of fundamental rights was completely lost sight of and a new jurisdiction
founded on sand that a challenge to the constitutionality of a Constitution
amendment or an ordinary Act of Parliament will lie without there in existence
a person aggrieved and he claiming violation of his fundamental rights by
virtue of the Constitution amendment or the Act of Parliament, as in the
instant case.
E.
Since the
question of the non-maintainability of the above Writ Petitions, nay, the
question of the constitutionality of the Acts on the premise that it violates
the basic structure without there in existence a plea that the fundamental
rights of SCAORA and other Petitioners have been violated by virtue of the said
Acts, which the Petitioner raised, happened to be, the Petitioner begs to
submit with utmost respect, not taken notice of by this Hon'ble Court, since
the Petitioner did not receive any support from the learned Attorney General or
the Solicitor General, though had the said plea been supported by them and was
taken to its logic end, this Hon'ble Court would not have rendered the judgment
in question holding the said Acts as unconstitutional and void, being violative
of the basic structure of the Constitution.
The learned Attorney General and the Solicitor General, by failing to
raise the fundamental issue of non-justiciability of the said Acts without
there in existence anyone claiming or complaining that his or her fundamental
right is violated and such violation amounts to infringement of the basic
structure of the Constitution within the meaning of Kesavananda Bharati,
have, the Petitioner begs to submit with utmost respect, “invited” this Hon'ble
Court to go into and examine the wisdom of the Parliament in enacting the Acts
and substitute its/ Court’s wisdom with that of the Parliament by holding that
there is no wisdom in enacting the Acts.
The failure/refusal to support the plea of non-maintainability of the
Writ Petitions by the learned Attorney General and the Solicitor General was
probably the most important factor which has led the said Acts being struck
down at the hands of this Hon'ble Court and this Hon'ble Court, with utmost
respect, substituting the wisdom of the Parliament with its own judgment and rewriting of the Constitution, nay,
endorsing the rewriting of the Constitution by virtue of the judgments in
Judges-2 and Judges-3 cases.
F.
Sublato
fundamento, cadit opus – the foundation being removed, the structure
falls. This Hon'ble Court had no
jurisdiction at all to entertain the plea on the challenge to the Acts. To repeat, the said Acts are legislations on
constitutional policy in the matter of appointment of Judges, which is not
justiciable at all. The learned Attorney
General and the Solicitor General failed to raise the plea of
non-maintainability of the Writ Petitions, for, no Writ Petition under Article
32 could be filed unless the party invoking the said jurisdiction claims
violation of his or her fundamental rights.
It was their duty while representing the Government, nay, the 125 crores
people of this country, to assert that neither SCAORA nor the Bar Association
of India, nay, none of the Petitioners who had challenged the validity of the
Acts, has claimed that their fundamental rights are infringed; that no Writ
Petition under Article 32 could have been maintained without such a plea; that
the PIL is wholly not maintainable inasmuch as for maintenance of a PIL there
ought to be a person aggrieved and the person aggrieved out of his poverty,
ignorance, illiteracy and other similar disadvantages is unable to approach
this Hon'ble Court. It was the duty of
the learned Attorney General and the Solicitor General to point out that, where
there is no person aggrieved in existence whose fundamental or legal rights are
said to have been infringed, no lis exists and no Writ Petition under Article
32 could be filed. In other words, the
Writ Petitions are upon the validity of a law which provided for a new
mechanism for appointment of Judges to the higher judiciary, which is in the
realm of legislative or executive policy and which by no stretch of imagination
could be said to involve violation of any fundamental rights of any of the
Petitioners and, admittedly, none has claimed such violation. It was the duty of the learned Attorney
General and the Solicitor General to have pointed out that nobody could ever
come to the Supreme Court alleging that if a mechanism as under the impugned
Acts is created for appointment of Judges and where Judges are appointed in
terms of the said mechanism, the Judges so appointed would be subservient to
the executive, that they will ever remain loyal to the executive Government,
and that the person who has instituted or may have reason to institute a legal
proceeding in the High Court or supreme Court in future will not get fair justice
and thereby his fundamental right is violated because the Judges appointed
under the NJAC will remain loyal to the executive Government who had a role in
their appointment. No person whose
sanity cannot be put to question will ever venture to make such a plea and the
Petitioners who have challenged the Acts have not, thankfully, made any such
plea in their petitions or in the arguments by the distinguished of the
distinguished counsel in the country engaged by them.
G.
The judgment
of this court dated 16.10.15 which is
sought to be declared as violative of the fundamental rights of the petitioner
and thus unconstitutional in fact is the
Judges-5 case, though popularly known as the Judges-4 case, which has struck
down the Acts and restored the collegium, a mechanism whereunder the Judges
appoint themselves. The Petitioner may
be forgiven in putting it bluntly that the said judgment is nothing but
entering into the act of legislation as if the Supreme Court is the Parliament,
nay, in substitution thereof. By the
instant judgment, the judgment in Judges-2 case, which is nothing but rewriting
of the Constitution, a judgment rendered per incuriam and which is void ab
initio, is restored. The net effect of
the judgments in Judges-2, Judges-3 cases and the current case is literal death
of democracy, the unkindest cut of the concept of separation of
power at its very root, the Court assuming the role of both the Parliament and
the executive, all at once, as if it is the Parliament and the executive,
nay, in substitution thereof. The
judgments in Judges-2 and Judges-3 cases and the above petitions have resulted
in a ridiculous scenario where Articles 124 and 217 of the Constitution are to
be read diametrically opposite to what they state, which has meant cutting the
concept of judicial review at its very root.
The question which now arises and for which no satisfactory answer could
ever be offered is that if the Court were to act as the executive and the
legislature, where will a person aggrieved, who intends to seek judicial review
of the executive or legislative action, go to seek remedy. It is not the Acts which impinge the
so-called holy cow, the basic structure, but it is the judgments in Judges-2
and Judges-3 cases and in the above petitions which have caused the severest
blow and irreparable damage to the concept of basic structure.
H.
The concept of
basic structure is wholly misunderstood.
It has been detailed above, but at the cost of repetition it is
submitted that nobody could ever be heard to invoke Article 32 on the premise
that the basic structure of the Constitution is impinged. He has to come with a plea that the
Constitution amendment or an ordinary law, whatever be it, results in violation
of his fundamental rights and the violation is so grave, is so fundamental,
that it is beyond the permissible domain of abrogation of the fundamental
rights that so long as the Constitution remains it cannot be allowed to
happen. Unless there is such a plea, no
writ under Article 32 will lie. The Writ
Petitions by SCAORA and the Bar Association of India and others, so too the
National Tax Tribunal case and the innumerable PILs where busy bodies assume
the role of the Attorney General and speak of public interest are all
instituted on a misconception of the doctrine of basic structure and the
concept of PIL.
I.
This Hon'ble
Court listed the above petitions on 3rd November, 2015 to device ways and means
by which the collegium system could be improved. With utmost respect, the Petitioner begs to
submit that the said exercise has no foundation in jurisprudence, nay,
constitutional law. This Hon'ble Court
in doing so acted as if it is the Parliament exercising its
constituent/legislative power. Nobody
could deny that Supreme Court today is a fortress. An ordinary lawyer finds it difficult to get
entry; passes are restricted; no pass is issued to the general public unless he
is able to show that he has a case listed; assuming that a lawyer or litigant
who is interested in partaking in the deliberations of this Hon'ble Court on
3rd November, 2015, he will not be able to enter the Court Hall and if he is
able to do so, he will not be heard.
Distinguished of the distinguished lawyers, with utmost respect and with
an apology the Petitioner begs to submit, have monopolized the right to
audience. The Petitioner with more than
31 years at the Bar, pursuing his Writ Petition with great amount of zeal and
fire, found himself difficult to be heard.
The Petitioner was not heard in any meaningful way. Had he been heard and allowed to raise the
question of justiciability of the issue, elaborated above, the judgment in
question would not have been delivered. The course of history would have been
different. The plea of
non-maintainability and non-justiciability is so important and even if it were
to be rejected, it ought to have been allowed to be argued and was required to
be rejected by giving reasons. The
judgment of this Hon'ble Court running into more than 1000 pages is silent
about it since this Petitioner was not really heard. When a party to a proceeding was not heard,
the judgment becomes null and void.
J.
The judgment dated 16th October, 2015 is void ab initio
since the Constitution Bench was disqualified from hearing the case. When a Constitution Bench was first constituted
with Hon'ble Mr. Justice Anil R. Dave as the Presiding Judge, the Petitioner
had to seek His Lordship’s recusal with a heavy heart and great amount of
hesitation, but he did so because he felt that it was his duty to do so.
Thereafter the Constitution Bench was reconstituted with Hon'ble Mr. Justice
J.S. Khehar, one of the most respected, distinguished and erudite Judges with
heavenly qualities, as the Presiding Judge.
The Petitioner had to seek His Lordship’s recusal since he felt that if
the Constitution Bench were to strike down the Acts and give a new lease of
life to the collegium system, then His Lordship, the Petitioner begs to submit
with utmost and great hesitation would be seen to have, though wholly
unwittingly it could be, struck down the Acts and given rebirth to the
collegium system, which was interred with its bones by virtue of the impugned
Acts, and becoming a member of the powerful collegium which appoints Judges of
the Supreme Court and High Courts. The
fundamental principle, namely, nemo iudex in sua causa or nemo debet esse judex
in propria causa - no one can be judge in his own cause – stands violated. It is a fundamental principle that where a
Judge is biased, even where such bias is non-conscious, sub-conscious or
unconscious, as in the instant case where His Lordship Hon'ble Mr. Justice
Khehar would not have even in the wildest of his dreams ever thought of himself
being a member of the collegium writing a judgment so as to secure a place for
himself. With utmost respect, nay, with
greater amount of hesitation, the Petitioner begs to submit that had NJAC been
in place, which certainly would have been the position but for the judgment
sought to be reviewed, Hon'ble Mr. Justice Khehar as of today would not have
any role in the appointment and transfer of Judges, but since the NJAC is, if
the Petitioner were to borrow an expression from Shakespeare, “interred with
its bones” by virtue of the said judgment and since by a stroke of a pen the
Constitution Bench could do so and resurrect the collegium system, which is
universally castigated to be an opaque and non-transparent one, His Lordship
Hon'ble Mr. Justice Khehar is part of the collegium and His Lordship has a
pre-eminent role in the appointment and transfer of Judges of the Supreme Court
and High Courts. The Petitioner is
afraid to say that an “informed onlooker”, nay, even an ordinary man, nay, the
125 crores people of this country, may consider the judgment rendered by this
Hon'ble Court as void, being in conflict with the maxim nemo potest esse simul
actor et judex – “no one can be at once suitor and Judge”.
K.
The doctrine of nemo debet esse judex in propria causa –
no one can be judge in his own cause – is equally applicable for the entire
Constitution Bench which heard the above petitions. It is incorrect to say that the plea of
recusal made by the Petitioner was confined to Hon'ble Mr. Justice Dave and
Hon'ble Mr. Justice Khehar. The
Petitioner tendered in the open Court a chart showing that a Bench of not nine
but eleven Hon'ble Judges, who will never be a part of the collegium nor of the
NJAC, for, they will superannuate before they could reach that position by
virtue of seniority, could have been constituted. The judgment at the hands of the entire Bench
is, therefore, vitiated by violation of the first principle of natural justice,
namely, nemo debet esse judex in propria causa, and is liable to be declared as
void.
L.
The only saving grace in the aforesaid judgment is
acceptance of the fact of total lack of transparency, opaqueness, oligarchy,
nepotism and all sorts of vices where sunlight, which is the greatest
disinfectant, is not allowed to enter is taken notice of by Hon'ble Mr. Justice
Kurian Joseph quite eloquently in his judgment, concurring though, so too by
Hon'ble Mr. Justice Jasti Chelameswar, and the willingness of the Constitution
Bench to further the case on the question of ways and means by which the
collegium system could be improved. The
collegium is incapable of being improved, for, its shortcomings are so fundamental
and incurable. The Petitioner considers
that the following steps could go a long way in making the working of the
collegium system far better. They are:
M.
Creation of a Secretariat/Commission under the
administrative control of the Hon'ble Chief Justice of India and the Chief
Justices of the High Courts, which is provided with all facilities,
infrastructure, requisite finance, and empowered to act as a Judicial
Appointment Commission. Such Commission
should be brought under the purview of the Right to Information Act, 2005 and
it should conduct its business transparently;
N.
The Commission should notify the vacancies of Judges in
the Supreme Court and High Courts at least six months before the vacancies
occur. Notification of the vacancies
should also provide for filling up of the same by open selection for which the
first step is to invite applications from all eligible candidates, invite
references from all stakeholders, the Bar Associations, the public at large, of
whom they consider to be most suitable.
The collegium/Commission should fix the qualifications and the minimum
and upper age limit. Though the
Constitution has prescribed the qualification as 10 years of practicing as a
lawyer or as a Judge, the collegium/Commission appointed by the collegium could
fix it to be 15 years. The minimum age
limit could be fixed at 45 years and the maximum at 55. In case the number of applications is too
large, then the collegium/ Commission should fix a further standard for
screening/short-listing the candidates.
When it comes to the competence and experience of lawyers who have
applied for and could be considered for appointment, it could be possible that
it may vary from State to State because there can be no match for the lawyers
practicing in Delhi, Mumbai etc., with those practicing in far off High Courts,
without meaning any belittling the lawyer fraternity of any Bar. The zone of selection need not be confined to
the Bar of a particular High Court.
Appointing a lawyer of a North Indian High Court in a South India High
Court and vice-versa will not only foster greater national integration, but
also will mean an answer to the complaints of favouritism and nepotism, which
is so widespread. Whether a Secretariat/Commission
for each High Court or a common selection Secretariat at the national level
under the command of the collegium of the Supreme Court is a matter which by a
method of “trial and error” alone can tell.
However, currently a mechanism of State level Secretariat could be
thought of.
O.
Once the candidates are short-listed for selection, which
ideally should be double the number of vacancies, the short-listing should be
made known to the Bar and the public at large so that opinions in favour and
against could be received and the collegium can take a final call. Though the open and transparent method of
selection, as aforesaid, is likely to offer some difficulty, for, it could be
possible that lawyers who have a flourishing practice may consider it embarrassing
to be put to public scrutiny. Such
inhibitions are all likely to vanish into thin air once it is accepted that in
a constitutional democracy, appointments to the august office of the Judges of
the Supreme Court and High Courts cannot be made in an opaque and cabal manner. Viewed from another angle, a lawyer who is
willing to subject himself to public scrutiny, a lawyer who has nothing to hide
and no skeleton to be tumbled out of his cupboard, alone should be appointed as
a Judge. Like the Caesar’s wife, a Judge
should be above suspicion.
15.
The
instant Writ is not barred by the by the doctrine of estoppel res judicata.
16.
The
Petitioner states that the Petitioner has no other efficacious alternative
remedy than to prefer the instant Writ Petition under Article 32 of the
Constitution of India.
17.
That the Petitioner crave leave to add, amend or alter
any of the foregoing grounds with the permission of this Hon’ble Court.
18.
The petitioner has not filed any other petition appeal
application before this Hon’ble Court or any other High Court seeking similar
reliefs as are sought in this Writ Petition.
PRAYERS
It is, therefore,
most respectfully prayed that this Hon’ble Court may graciously be pleased to:
(a)
declare that the august offices of the Judges of the
Supreme Court and High Courts are high constitutional public offices and every
citizen of India, if eligible and competent, is, as a matter of right, entitled
to aspire for selection and appointment to the same and the judgments of this
Hon'ble Court in Judges-2, Judges-3 and Judges-5, namely, the majority judgment
dated 16th October, 2015 in the NJAC
case [Supreme Court Advocates on Record Association v. Union of India
and others, WP(C) No.13/2015 with WP(C) No.124/2015, (JT 2015 (10) SC
1)], in so far as
they abrogate the said right, are unconstitutional and void; so too the collegium system of selection and
appointment of Judges, an offspring of the judgments in the aforesaid cases
which provide for an opaque and nontransparent system where only the kith and kin
of Judges, their juniors and the elite class of lawyers are appointed to the
deprivation of equally deserving members of the Bar who have no chance at all
to be so selected and appointed;
(b)
declare that the judgments of this Hon'ble Court in
Judges-2, Judges-3 and Judges-5, namely, the majority judgment dated 16th
October, 2015 in the NJAC case (Supreme
Court Advocates on Record Association v. Union of India and others WP(C) No.13/2015 with WP(C)
No.124/2015, JT 2015 (10) SC 1) are rendered per incuriam since the controversy
“adjudicated” therein is one which is non-justiciable, the same being in the
realm of matters of executive and legislative policy not involving violation of
any fundamental or legal right of the petitioners in the PILs in which the said
judgments were rendered;
(c)
declare that Articles 124 and 217 of the Constitution of
India, as originally enacted and amended by the Constitution (Ninety Ninth
Amendment) Act, 2014, continue to remain in the statute book and appointments
of judges of the Supreme Court and High
Courts are liable to be made in accordance therewith and that the judgments of
this Hon'ble Court in Judges-2, Judges-3 and Judges-5, namely, the majority
judgment dated 16th October, 2015 in the NJAC case (Supreme Court Advocates on Record
Association v. Union of India and others) are liable to be declared as rendered
per incuriam;
(d)
without prejudice to prayers (a), (b) and (c)
hereinabove, declare that selection and appointment of Judges of the Supreme
Court and High Courts cannot be made except by notifying the vacancies and
inviting applications from all eligible candidates; so too references from all
stakeholders, including Judges, Bar Associations, Bar Councils and the public
at large, namely, in an open and transparent manner;
(e)
issue a writ in the nature of injunction or prohibition,
restraining and prohibiting Respondent Nos. 2 & 6 from making any recommendations/
appointments of Judges of the Supreme Court and High Courts without
notification of their vacancies and invitation of applications from all
eligible candidates; so too references from all stakeholders, including Judges,
Bar Associations, Bar Councils and the public at large;
f) Pass such other order or orders as the
circumstances of the case may require.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER
PRAY:
FILED BY
Drawn
by:
A.C.
PHILIP
Advocate PETITIONER
FOR PARTY IN PERSON
Drawn on: 09/04/2016 [A.C. PHILIP]
Filed on: 11/04/2016
APPENDIX
CONSTITUTION OF
INDIA
21. Protection of life and personal
liberty.-
No person shall be deprived of his life
or personal liberty except according to procedure established by law.
32. Remedies for enforcement of rights
conferred by this Part.-
(1) The right to move the Supreme Court
by appropriate proceedings for the enforcement of the rights conferred by this
Part is guaranteed.
(2) The Supreme Court shall have power
to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers
conferred on the Supreme Court by clause (1) and (2), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this
article shall not be suspended except as otherwise provided for by this
Constitution.
124. (1) There shall be a
Supreme Court of India consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven2 other
Judges.
(2) Every Judge of the Supreme Court shall be
appointed by the President by warrant under his hand and seal [on the
recommendation of the National Judicial Appointments Commission referred to in
article 124A] and shall hold office until he attains the age of sixty-five
years:
[Provided that]—
(a) a Judge may,
by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner
provided in clause (4).
[(2A) The age of a Judge of the Supreme Court shall be
determined by such authority and in such manner as Parliament may by law
provide.]
(3) A person shall not be qualified for appointment as a
Judge of the Supreme Court unless he is a citizen of India and—
(a) has been for at least five years a Judge of a High
Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High
Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished
jurist. Explanation I.—In this clause “High Court” means a High Court which
exercises, or which at any time before the commencement of this Constitution
exercised, jurisdiction in any part of the territory of India. Explanation
II.—In computing for the purpose of this clause the period during which a
person has been an advocate, any period during which a person has held judicial
office not inferior to that of a district judge after he became an advocate
shall be included.
(4) A Judge of the Supreme Court shall not be removed
from his office except by an order of the President passed after an address by
each House of Parliament supported by a majority of the total membership of
that House and by a majority of not less than two-thirds of the members of that
House present and voting has been presented to the President in the same
session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of the
misbehaviour or incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme
Court shall, before he enters upon his office, make and subscribe before the
President, or some person appointed in that behalf by him, an oath or
affirmation according to the form set out for the purpose in the Third
Schedule. (7) No person who has held office as a Judge of the Supreme Court
shall plead or act in any court or before any authority within the territory of
India. 1[124A. (1) There shall be a Commission to be known as the National
Judicial Appointments Commission consisting of the following, namely:—
(a) the Chief
Justice of India, Chairperson, ex officio;
(b) two other
senior Judges of the Supreme Court next to the Chief Justice of India—Members,
ex officio;
(c) the Union Minister in charge of Law and
Justice—Member, ex officio;
(d) two eminent persons to be nominated by the committee
constiting of the Prime Minister, the Chief Justice of India and the Leader of
Opposition in the House of the People or where there is no such Leader of
Opposition, then, the Leader of single largest Opposition Party in the House of
the People— Members: Provided that one of the eminent person shall be nominated
from amongst the persons belonging to the Scheduled Caste, the Scheduled
Tribes, Other Backward Classes, Minorities or Women: Provided further that an
eminent person shall be nominated for a period of three years and shall not be
eligible for renomination.
(2) No act or proceedings of the National Judicial
Appointments Commission shall be questioned or be invalidated merely on the ground
of the existence of any vacancy or defect in the constitution of the
Commission.”
“124B. It shall be the duty of the National
Judicial Appointments Commission to—
(a) recommend persons for appointment as Chief Justice of
India, Judges of the Supreme Court, Chief Justices of High Courts and other
Judges of High Courts;
(b) recommend transfer of Chief Justice and other Judges
of High Courts from one High Court to any other High Court; and
(c) ensure that the person recommended is of ability and
integrity.”
“124C. Parliament may, by law, regulate the
procedure for the appointment of Chief Justice of India and other Judges of the
Supreme Court and Chief Justices and other Judges of High Courts and empower
the Commission to lay down by regulations the procedure for the discharge of
its functions, the manner of selection of persons for appointment and such
other matters as may be considered necessary by it.]”
“127.
(1) If at any time
there should not be a quorum of the Judges of the Supreme Court available to
hold or continue any session of the Court, 1[the National Judicial Appointments
Commission on a reference made to it by the Chief Justice of India, may with
the previous consent of the President] and after consultation with the Chief
Justice of the High Court concerned, request in writing the attendance at the
sittings of the Court, as an ad hoc Judge, for such period as may be necessary,
of a Judge of a High Court duly qualified for appointment as a Judge of the
Supreme Court to be designated by the Chief Justice of India.
(2) It shall be
the duty of the Judge who has been so designated, in priority to other duties
of his office, to attend the sittings of the Supreme Court at the time and for
the period for which his attendance is required, and while so attending he
shall have all the jurisdiction, powers and privileges, and shall discharge the
duties, of a Judge of the Supreme Court.”
“128. Notwithstanding anything in this Chapter
[the National Judicial Appointments Commission] may at any time, with the
previous consent of the President, request any person who has held the office
of a Judge of the Supreme Court or of the Federal Court 3[or who has held the
office of a Judge of a High Court and is duly qualified for appointment as a
Judge of the Supreme Court] to sit and act as a Judge of the Supreme Court, and
every such person so requested shall, while so sitting and acting, be entitled
to such allowances as the President may by order determine and have all the
jurisdiction, powers and privileges of, but shall not otherwise be deemed to
be, a Judge of that Court:
Provided that nothing in this article shall be deemed to
require any such person as aforesaid to sit and act as a Judge of that Court
unless he consents so to do.”
“217.
(1) Every Judge of a High Court shall be appointed by the
President by warrant under his hand and seal 1[on the recommendation of the
National Judicial Appointments Commission referred to in article 124A], the
Governor of the State, and, in the case of appointment of a Judge other than
the Chief Justice, the Chief Justice of the High Court, and [shall hold office,
in the case of an additional or acting Judge, as provided in article 224, and
in any other case, until he attains the age of [sixty two years]]: Provided
that—
(a) a Judge may,
by writing under his hand addressed to the President, resign his office;
(b) a Judge may be
removed from his office by the President in the manner provided in clause (4)
of article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being
appointed by the President to be a Judge of the Supreme Court or by his being
transferred by the President to any other High Court within the territory of
India.
2) A person shall not be qualified for appointment as a
Judge of a High Court unless he is a citizen of India and—
(a) has for at least ten years held a judicial office in
the territory of India; or
(b) has for at least ten years been an advocate of a High
Court or of two or more such Courts in succession;
Explanation.— For the purposes of this clause—
[(a) in computing the period during which a person has
held judicial office in the territory of India, there shall be included any
period, after he has held any judicial office, during which the person has been
an advocate of a High Court or has held the office of a member of a tribunal or
any post, under the Union or a State, requiring special knowledge of law;]
[(aa)] in computing the period during which a person has
been an advocate of a High Court, there shall be included any period during
which the person 3[has held judicial office or the office of a member of a
tribunal or any post, under the Union or a State, requiring special knowledge
of law] after he became an advocate;
(b) in computing the period during which a person has
held judicial office in the territory of India or been an advocate of a High
Court, there shall be included any period before the commencement of this
Constitution during which he has held judicial office in any area which was
comprised before the fifteenth day of August, 1947, within India as defined by
the Government of India Act, 1935, or has been an advocate of any High Court in
any such area, as the case may be.
(3) If any question arises as to the age of a Judge of a
High Court, the question shall be decided by the President after consultation
with the Chief Justice of India and the decision of the President shall be
final.]”
“218. The provisions of clauses (4) and (5) of article
124 shall apply in relation to a High Court as they apply in relation to the
Supreme Court with the substitution of references to the High Court for
references to the Supreme Court.”
“222.
(1) The President may, 5[on the recommendation of the
National Judicial Appointment Commission referred to in article 124A], transfer
a Judge from one High Court to any other High Court .
(2) When a Judge has been or is so transferred, he shall,
during the period he serves, after the commencement of the Constitution
(Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be
entitled to receive in addition to his salary such compensatory allowance as
may be determined by Parliament by law and, until so determined, such
compensatory allowance as the President may by order fix.]”
“224.
(1) If by reason of any temporary increase in the
business of a High Court or by reason of arrears of work therein, it appears to
the President that the number of the Judges of that Court should be for the
time being increased, 3[the President may, in consultation with the National
Judicial Appointments Commission, appoint] duly qualified persons to be
additional Judges of the Court for such period not exceeding two years as he
may specify.
(2) When any Judge
of a High Court other than the Chief Justice is by reason of absence or for any
other reason unable to perform the duties of his office or is appointed to act
temporarily as Chief Justice, 3[the President may, in consultation with the
National Judicial Appointments Commission, appoint] a duly qualified person to act
as a Judge of that Court until the permanent Judge has resumed his duties.
(3) No person appointed as an additional or acting Judge
of a High Court shall hold office after attaining the age of 4[sixty-two
years].]”
“224A. Notwithstanding anything in this Chapter,
6[the National Judicial Appointments Commission on a reference made to it by
the Chief Justice of a High Court for any State, may with the previous consent
of the President] request any person who has held the office of a Judge of that
Court or of any other High Court to sit and act as a Judge of the High Court
for that State, and every such person so requested shall, while so sitting and
acting, be entitled to such allowances as the President may by order determine
and have all the jurisdiction, powers and privileges of, but shall not
otherwise be deemed to be, a Judge of that High Court: Provided that nothing in
this article shall be deemed to require any such person as aforesaid to sit and
act as a Judge of that High Court unless he consents so to do.]”
“231.
(1)
Notwithstanding anything contained in the preceding provisions of this Chapter,
Parliament may by law establish a common High Court for two or more States or
for two or more States and a Union territory.
(2) In relation to
any such High Court,— hall, in relation to any rules, forms or tables for
subordinate courts, be construed as a reference to the Governor of the State in
which the subordinate courts are situate; and
(c) the references
in articles 219 and 229 to the State shall be construed as a reference to the
State in which the High Court has its principal seat: Provided that if such
principal seat is in a Union territory, the references in articles 219 and 229
to the Governor, Public Service Commission, Legislature and Consolidated Fund
of the State shall be construed respectively as references to the President,
Union Public Service Commission, Parliament and Consolidated Fund of India.]”
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