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Report No. 176

2.8.9 Whether the Chief Justice of India or the Chief Justice of the High Court are 'persona designata.

In one of the responses to the Consultation Paper, it was urged that the 'Chief Justice of India' and the 'Chief Justice of the High Court' are only acting as a 'persona designata' when they are exercising power under section 11 to appoint arbitrators and this they are doing in the their 'personal capacity' and not in their official capacity and also not as constitutional functionary and that such orders are not amenable even to judicial review under any statute, (appellate or revisional)/or even under Art. 226 of the Constitution of India.

If the Chief Justice of India or the Chief Justice of the High Court are not even administrative authorities but are passing orders under sec. 11 in their personal capacities, that may exclude a remedy even under Art. 226 of the Constitution of India. The Commission, in fact, felt that if these authorities were acting as 'personal designata', it could even insert an Explanation in Sec. 11 that these authorities must be deemed to be excising powers as 'persona designata' so that there would be no scope of court intervention even under Art. 226.

Such a situation would be ideal and would be much better than a situation where the orders were treated as 'administrative' or even as 'judicial'. But the difficulty here is that the Supreme Court in Konkan Railway No. 1 has clearly held that the orders under Sec. 11 are "administrative" in nature and it has also held that a Writ of Mandamus could issue to the Chief Justice of India or the Chief Justice of the High Court or their nominees. It is, therefore, difficult to bring the orders down to a level of orders passed by these Judges in their private capacity. Our attention was invited to the decision of the Supreme Court in Central Talkies Ltd. vs. Dwarka Prasad (AIR 1961 SC 606) and to the following passage therein:

"A 'persona designata' is a person who is pointed out or described as an individual as opposed to a person ascertained as a member of a class, or as filling a particular character (see Osborne's Concise Law Dictionary, 4th Ed., p.253)".

The Supreme Court observed:

"In the words of Schwabe CJ in Parthasaradhi Naidu vs. Kotewara Rao, ILR 47 Mad 369 (AIR 1924 Mad. 561) (FB), personae designatae are 'persons selected to act in their private capacity as Judges" It is this latter passage that is relied upon to say that the Chief Justice of India or the Chief Justices of the High Courts are 'persona designata'.

But, in our view, the passage cannot help if one keeps in mind the reasons as to why in section 11 Chief Justice is designated as the authority to appoint arbitrators - namely that in their constitutional capacity, any appointment of arbitrator by them would inspire greater confidence. In our view, it cannot be said that the 'Chief Justice of India' or the 'Chief Justice of High Court' is chosen to act under sec. 11 not in his capacity as a Judge but only in his private capacity as a Judge.

In the opinion of the Commission, it is not possible to accept that the legislature chose the Chief Justice of India or the Chief Justice of the High Court in Sec. 11 de hors their Constitutional status as Judges of the superior courts. These high functionaries appear to have been specially chosen because of their office and the idea was to infuse greater confidence in the procedure for appointment of arbitrators and in particular, to assure foreign nationals or companies who may be parties to international arbitration agreements (when the seat of arbitration is in India) about the independence and fairness of the arbitrators appointed by these high functionaries.

In that background, it is difficult to accept that these high ranking judicial functionaries were chosen in Sec. 11 not in recognition of their Constitutional office. In the very case in General Talkies, the plea that the 'District Magistrate' was invested with powers under the UP (Temporary) Control of Rent and Eviction Act (3 of 1947) as persona designata was rejected.

The Arbitration and Conciliation (Amendment) Bill, 2001 Back

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