Suraz India Trust vs Union Of India & Anr

Suraz India Trust ..... Petitioner

Versus

Union of India & Anr. ..... Respondent(s)

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 vires 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

`concurrence'.

(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

2

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 9-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

(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?

4

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

6

Court 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

7

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

8