Suraz India Trust Vs Union
of India & ANR.
O R D E R
1.
This
writ petition has been filed under Article 32 of the Constitution by the present
petitioner claiming itself to be the registered Trust under the provisions of
Rajasthan Public Trust Act, 1959. It has been established in the legal arena
for the larger public interest. The Trust's motto is to challenge those
provisions of law which are ultra virus and unconstitutional. Basically the
petitioner has sought the review of the judgment by nine Judges' Bench of this Court
in Advocate on Record Association v. Union of India & Ors., (1993) 4 SCC
441; so also in the case of Special Reference No.1 of 1998 (reported in (1998)
7 SCC 739), whereby this Court declared the primacy of the collegium in the
matter of appointment of the Judges of the Supreme Court and the High Courts.
2.
As
Mr. Rajiv Daiya, Chairman of the Trust appeared in person and was not able to render
any assistance to the Court. Thus, we requested Mr A.K. Ganguli, learned Senior
counsel alongwith Mr. Bharat Sangal to assist the Court as amicus curiae. The petition
raises large number of complicated issues. Meanwhile, we also sought assistance
of the learned Attorney General for India.
3.
Shri
A.K. Ganguly, learned senior Advocate, has submitted: That the method of
appointment of a Supreme Court Judge is mentioned in Article 124(2) of the Constitution
of India which states: "Every Judge of the Supreme Court shall be
appointed by the President by warrant under his hand and seal after consultation
with such of the Judges of the Supreme Court and of the High Courts in the States
as the President may deem necessary for the purpose and shall hold office until
he attains the age of sixty five years. Provided that in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of India
shall always be consulted." It may be noted that there is no mention: (i) for
any Collegium in Article 124(2). (ii) The word used in Article 124(2) is `consultation',
and not `concurence. (iii) The President of India while appointing a Supreme Court
Judge can consult any Judge of the Supreme Court or even High Court as he deems
necessary for the purpose, and is not bound to consult only the five seniormost
Judges of the Supreme Court.
4.
That
by the judicial verdicts in the aforesaid two cases, Article 124(2) has been
practically amended, although amendment to the Constitution can only be done by
Parliament in accordance with the procedure laid down in Article 368 of the
Constitution of India.
5.
That
under Article 124(2) while appointing a Supreme Court Judge, the President of India
has to consult the Chief Justice of India, but he may also consult any other
Supreme Court Judge and not merely the four seniormost Judges. Also, the
President of India can even consult a High Court Judge, whereas, according to the
aforesaid two decisions the President of India cannot consult any Supreme Court
Judge other than the four seniormost Judges of the Supreme Court, and he cannot
consult any High Court Judge at all.
6.
Shri
Ganguli submits that the matter is required to be considered by a larger Bench as
the petition raises the following issues of Constitutional importance: (1) Whether
the aforesaid two verdicts, viz. the 7-Judge Bench and Judge Bench decisions of
this Court referred to above really amount to amending Article 124(2) of the Constitution?(2)
Whether there is any `Collegium' system for appointing Supreme Court or High
Court Judges in the Constitution? (3) Whether the Constitution can be amended by
a judicial verdict or it can only be amended by Parliament in accordance with
Article 368?(4) Whether the Constitutional scheme was that the Supreme Court and
High Court Judges can be appointed by mutual discussions and mutual consensus
between the judiciary and the executive; or whether the judiciary can alone appoint
Judges of the Supreme Court and High Courts?(5) Whether the word `consultation'
in Article 224 means `concurrence'?(6) Whether by judicial interpretation words
in the Constitution can be made redundant, as appears to have been done in the aforesaid
two decisions which have made consultation with High Court Judges redundant while
appointing a Supreme Court Judge despite the fact that it is permissible on the
clear language of Article 124(2)?(7) Whether the clear language of Article
124(2) can be altered by judicial verdicts and instead of allowing the
President of India to consult such Judges of the Supreme Court as he deems necessary
(including even junior Judges) only the Chief Justice of India and four seniormost
Judges of the Supreme Court can alone be consulted while appointing a Supreme
Court Judge?(8) Whether there was any convention that the President is bound by
the advice of the Chief Justice of India, and whether any such convention
(assuming there was one) can prevail over the clear language of Article 124(2)?(9)
Whether the opinion of the Chief Justice of India has any primacy in the
aforesaid appointments? (10) Whether the aforesaid two decisions should be
overruled by a larger Bench?
7.
Mr.
G.E. Vahanvati, learned Attorney General for India, supports the petitioner contending
that the aforesaid judgments require reconsideration. However, he also submits:
(a) A writ petition under Article 32 is not maintainable at the behest of a Trust
as the Trust cannot claim violation of any of its fundamental rights; (b)
Petitioner has no locus standi to seek review of the judgments of this Court. In
fact, a petition under Article 32 of the Constitution does not lie to challenge
the correctness of a judicial order; and (c) A bench of two Judges cannot examine
the correctness of the judgment of nine Judges Bench. (d) A Bench of two Judges
cannot refer the matter to the larger bench of nine Judges or more directly.
8.
In
Coir Board Ernakulam & Anr. v. Indira Devai P.S. & Ors., (2000) 1 SCC 224,
this Court while dealing with a similar reference by a Bench of two Judges doubting
the correctness of seven Judges' Bench judgment in Bangalore Water Supply &
Sewerage Board v. A Rajappa, (1978) 2 SCC 213, held as under:- "The judgment
delivered by the seven learned Judges of the Court in Bangalore Water Supply case,
does not, in our opinion, require any reconsideration on a reference being made
by a two Judge Bench of the Court, which is bound by the judgment of the larger
Bench. The appeals 5 shall, therefore, be listed before the appropriate Bench
for further proceedings."
9.
The
Constitution Bench of this Court in Pradip Chandra Parija & Ors. v. Pramod
Chandra Patnaik & Ors., AIR 2002 SC 296, while dealing with a similar
situation held that judgment of a co-ordinate Bench or larger Bench is binding.
However, if a Bench of two Judges concludes that an earlier judgment of three
Judges is so very incorrect that in no circumstances it can be followed, the proper
course for it to adopt is to refer the matter to a Bench of three Judges
setting out, the reasons why it could not agree with the earlier judgment. If then
the Bench of three Judges also comes to the conclusion that the earlier judgment
of a Bench of three Judges is incorrect, reference to a Bench of five Judges is
justified.
10.
In
Union of India & Anr. v. Hansoli Devi, (2002) 7 SCC 273, this Court reiterated
the same view placing reliance upon its earlier judgment in Pradip Chandra
Parija (supra).
11.
However,
Mr. Ganguli dealing with the issue of locus standi of the Trust has submitted
that the petition may not be maintainable but it should be entertained because it
raises a large number of substantial questions of law. In order to fortify his submission
he places reliance upon a recent Constitution Bench judgment of this 6Court in
B.P. Singhal v. Union of India & Anr., (2010) 6 SCC 331 wherein while
dealing with the issue of removal of Governors, this Court held as under: "The
petitioner has no locus to maintain the petition in regard to the prayers
claiming relief for the benefit of the individual Governors. At all events,
such prayers no longer survive on account of passage of time. However, with regard
to the general question of public importance referred to the Constitution
Bench, touching upon the scope of Article 156(1) and the limitations upon the doctrine
of pleasure, the petitioner has the necessary locus." (Emphasis added) Thus,
Mr. Ganguli submits that considering the gravity of the issues involved herein,
the matter should be entertained.
12.
While
dealing with the issue of reference to the larger Bench, Mr. Ganguli has placed
a very heavy reliance of the recent order of this Court dated 30.3.2011 in
Civil Appeal Nos.4056-4064 of 1999 (Mineral Area Development Authority v. M/s.
Steel Authority of India & Ors.) wherein considering the issue of interpretation
of the Constitutional provisions and validity of the Act involved therein, a three
Judges Bench presided over by Hon'ble the Chief Justice has referred the matter
to nine Judges' Bench.
13.
At
this juncture, Mr. Ganguli as well as Mr. Vahanvati have submitted that even at
the stage of preliminary hearing for admission of the petition, the matter
requires to be heard by a larger Bench as this matter has earlier been dealt
with by a three Judges Bench and involves very complicated legal issues.
14.
In
view of the above, we place the matter before the Hon'ble Chief Justice for
appropriate directions.
..............................J.
(DEEPAK VERMA)
..............................J.
(DR. B.S. CHAUHAN)
New
Delhi,
April
4, 2011
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