Madras High Court
A.D.C.Gurusamy vs Union Of India on 26 September, 2007
Bench: P.K.Misra, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/09/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR WRIT PETITION (MD) No.7976 of 2007 A.D.C.Gurusamy ... Petitioner vs. 1.Union of India, rep.by its Secretary of Law & Company Affairs, New Delhi-110 001. 2.Madras High Court, rep.by its Registrar General, High Court Building, Chennai. ... Respondents Writ petition under Article 226 of the Constitution of India praying for: (a)to close the High Court of Madras at the Principal Seat at Chennai as well as the Madurai Bench of Madras High Court till the sanctioned strength of judges are filled-up, since the Constitution of the High Court with sanctioned strength of High Court Judges is more fundamental Basic Frame Work or Basic Structure of the Constitution than Fundamental Rights enunciated in Part-III of the Constitution; (b)to declare that Sections 11, 12 and 15 of the Constitution (Seventh Amendment) Act are unconstitutional, highly discriminatory and arbitrary, null and void since they destroy and damage the basic structure and frame work of the Constitution; (c)consequently make a further declaration that the Judges already appointed as "Additional Judges" under Article 224 who continue to work as "Additional Judges" till today must be deemed to have been appointed as "Permanent Judges" under the WARRANT already issued to them by the President of India at the time of initial appointment, AND (d)If for any reasons, this Court has come to a conclusion that Sections 11, 12 and 15 of the Constitution (Seventh Amendment) Act 1956 are valid, litigant public pray for a declaration, in order to render judgment without fear or favour and in order to keep the independence of Judiciary that any "Additional Judge" dropped earlier to the Superannuation date is entitled to get full salary and all the benefits of a High Court Judge from the Union of India as well as from the State Government till he reaches the superannuation date he being the constitutional Functionary and justice be rendered. !For Petitioner ... Mr.A.D.C.Gurusamy Party-in-person. ^ :ORDER
(Order of the Court was made by P.K.MISRA,J) Heard Mr.A.D.C.Gurusamy, the petitioner in person. He has filed this writ petition with the following prayers.
"(a)to close the High Court of Madras at the Principal Seat at Chennai as well as the Madurai Bench of Madras High Court till the sanctioned strength OF judges are filled-up, since the Constitution of the High Court with sanctioned strength of High Court Judges is more fundamental Basic Frame Work or Basic Structure of the Constitution than Fundamental Rights enunciated in Part-III of the Constitution'
(b)to declare that Sections 11, 12 and 15 of the Constitution (Seventh Amendment) Act are unconstitutional, highly discriminatory and arbitrary, null and void since they destroy and damage the basic structure and frame work of the Constitution
(c)consequently make a further declaration that the Judges already appointed as "Additional Judges" under Article 224 who continue to work as "Additional Judges" till today must be deemed to have been appointed as "Permanent Judges" under the WARRANT already issued to them by the President of India at the time of initial appointment, AND
(d)If for any reasons, this Court has come to a conclusion that Sections 11, 12 and 15 of the Constitution (Seventh Amendment) Act 1956 are valid, litigant public pray for a declaration, in order to render judgment without fear or favour and in order to keep the independence of Judiciary that any "Additional Judge" dropped earlier to the Superannuation date is entitled to get full salary and all the benefits of a High Court Judge from the Union of India as well as from the State Government till he reaches the superannuation date he being the constitutional Functionary and justice be rendered."
2.The prayer No.(a) is, on the face of it, untenable and therefore does not require any serious consideration. Even though all efforts are expected to be made to fill-up all the vacancies, merely because there are vacancies in any High Court, including the Madras High Court, yet to be filled- up, the same cannot be a ground for issuing a direction that such High Court shall not function till the sanctioned strength of the Judges are filled-up. Therefore, such contention deserves to be rejected outright.
3.More serious prayer is contained in prayer No.(b). The petitioner is challenging the validity of the Seventh Constitution Amendment Act, 1956. More particularly he challenges the provisions contained in Sections 11, 12 and 15 of such Constitution Amendment Act. The main contention is to the effect that the said amendment of the Constitution contravenes the basic structure of the Constitution and therefore such amendment should be declared ultra vires by following the ratio of the decision of the Supreme Court in Kesavananda vs. State of Kerala, reported in AIR 1973 SC 1461.
4.As per Section 11 of such Amendment Act, the proviso to Article 216 was deleted. Prior to such deletion, the proviso read as follows:
"Provided that the Judges so appointed shall at no time exceed in number such maximum number as the President may from time to time, by order fix in relation to that Court."
We do not find any ground, whatsoever, to come to even a prima facie conclusion that by deletion of such proviso, the basic structure of the Constitution has been altered in any manner.
5.Under Section 12 of such Constitution Amendment Act, Article 217 was amended. As per the original provision contained in Article 217, it was provided that Judges would hold office until the age of 60 years. After the amendment, the effect of the provision is that a permanent Judge holds office until he attains the age of 62 years, whereas an Additional or Acting Judge holds office for the term indicated in Article 224. This is only a consequential amendment and it also does not per se affect the basic structure of the Constitution in any manner.
6.The main grievance is relating to amendment of Article 224 which is effected by Section 15 of such Constitution Amendment Act. As per the original provision, there was provision for appointment of only Adhoc or Acting Judges and there was no provision for appointment of any Additional Judge. The provision regarding appointment of Acting or Adhoc Judges was deleted and instead provision was made for appointment of Additional Judges for a period upto 2 years.
7.According to the petitioner, since the Object and Reasons for the Seventh Amendment Act was to give effect to States Reorganisation Act, there was no necessity to make any amendment relating to appointment of Additional Judges or to amend other provisions contained in Articles 216, 217 and 224.
8.The Statement of Objects and Reasons of the Bill indicates:
"In order to implement the scheme of States reorganisation, it is necessary to make numerous amendments in the constitution with effect from the 1st October, 1956. This Bill seeks to make these amendments and also some other amendments to certain provisions of the constitution relating to the High Courts and High Court Judges, the executive power of the Union and the States, and a few entries in the legislative lists."
9.Thereafter, the Objects and Reasons relating to different provisions of Bill No.29/1956 proceeds to give the Objects and Reasons on different clauses. Such Objects and Reasons relating to Clauses 10, 11 and 12 which relate to amendment of Articles 216, 217 and 224 respectively are extracted here under:
"Clause 10.--Article 216 empowers the President to appoint to a High Court as many judges as he may from time to time deem it necessary and also to fix the maximum number of judges for each High Court by a separate order. The proviso is of little significance from the practical point of view, since the order fixing the maximum may be changed by the President whenever necessary. The appointment of additional and acting judges for which provision is sought to be made in clause 14 will also involve either frequent modifications in the order or a fixation of the maximum number at a high figure. It is, therefore, proposed to omit the proviso to article 216.
Clause 11.--The amendment of clause (1) of article 217 proposed in this clause is consequential on the proposal to provide for the appointment of additional and acting judges for limited periods. Clause 12.--An important factor affecting the selection of High Court Judges from the bar is the total prohibition contained in article 220 on practice after their retirement from the bench. It is proposed to revise the article so as to relax this complete ban and permit a retired judge to practice in the supreme Court and in any High Court other than the one in which he was a permanent judge."
We do not find anything in such Objects and Reasons which would support the contention of the petitioner that by the above amendments the basic structure of the Constitution was sought to be amended.
10.The petitioner further contended that by making appointment of Additional Judges for a period not exceeding two years, a signal is given as if the particular judge is under probation or scrutiny and this ultimately affects the independence of the judiciary, which can be considered to be one of the basic structure of the Constitution of India.
11.As per the provisions contained in the Constitution, all the service conditions applicable to a permanent judge are also applicable to an Additional Judge, save and except the fact that the tenure of an Additional Judge is only for two years, whereas the tenure of a permanent Judge is till the age of retirement, which is 62 years as per the present provisions. However, because of this, it cannot be said that the independence of judiciary is likely to be whittled down to such an extent so that one can come to the inexorable conclusion that s basic structure of the Constitution is violated.
12.The other contention raised by the petitioner is to the effect that the procedure contemplated in Article 368 of the Constitution of India for effecting amendment to Chapter-V, Part-VI of the Constitution having not been followed, such amendment must be taken to be non-est. In this context, the specific contention of the petitioner is to the effect that as per the procedure contemplated under the proviso, the amendment has to be carried out by special majority of 2/3rd of the Members present and voting and thereafter such amendment should also be ratified by the majority of the State Legislatures before placing the same for assent before the President of India. It is his contention that in this case the assent of the President was obtained first and thereafter the matter was sent to different State Legislatures for obtaining ratification, which is not contemplated in Article 368. The petitioner has placed reliance upon the decision of the Supreme Court in Kihota Hollohon v. Zachilhu, reported in AIR 1993 SC 412 in support of his contention that unless the procedure contemplated under Article 368 is followed, the amendment cannot be considered to be a part of the Constitution.
13.In the above decision of the Supreme Court, it was found that even though ratification by State Legislature was required, no such ratification had been obtained. Under such circumstances, the Supreme Court held such particular amendment to be non-existent. In the present case, there is no categorical material on record to indicate that in fact the ratification by the State Legislatures was been obtained only after the amendment Bill had been signed by the President. The petitioner relied upon the answer given by the Joint Secretary of Rajya Sabha relating to the questions put by the petitioner under Section 6 of the Rights to Information Act, 2005. The answer given by the authority indicates that the amendment had been made by following the procedure contemplated under Article 368 by obtaining special majority in both the Houses and also thereafter by obtaining the ratification from 13 states as indicated in Annexure-II to such reply. From such reply, it is difficult to agree with the contention of the petitioner that in fact such ratification by the 13 State Legislatures was obtained after the Presidential assent.
13.In this context, it is necessary to quote the questions posed by the petitioner, which are extracted here under.
"1.Whether the Bill No.29 of 1956 was passed with simple majority of the members present and voting in the Lok Sabha as well as in the Rajya Sabha? Or
2.Whether the Bill No.29 of 1956 was passed with the Special majority of not less than two-third of the members of the Rajya Sabha present and voting? Or
3.In addition to the Special Majority of not less than two thirds of the members present in both Houses present and voting and that whether the Bill No.29 of 19956 was ratified by Legislature of States by resolution. Full particulars of the States Legislatures who had ratified the Bill No.29 of 1956, before obtaining the assent of the President is required.
4.I request you, sir, to furnish full particulars of the procedure adopted by both Houses of Parliament, as well as ratification, by States Legislatures before obtaining the assent of President."
14.The answers to such queries, as furnished by the petitioner, indicate:
"(i)the Constitution (Seventh Amendment) Bill, 1956, which was introduced in the Lok Sabha on the 18th April, 1956, was transmitted to Rajya Sabha after being passed by the Lok Sabha on 27th April, 1956.
(ii)as the Bill sought to make changes in some of the provisions mentioned in the proviso article 368(2) of the Constitution, it was passed by the Rajya Sabha with Special Majority, i.e. by a majority of the total membership of the House and by a majority of not less than two-thirds of the members of the House present and voting. The Bill was also ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures;
(iii)every stage of the Bill i.e. the motion for consideration, clause by clause consideration and the motion that the Bill be passed was carried out with special majority. The results of the division on different stages of the Bill are placed below at Annexure-1;
(iv)though the process of ratification of the Bill by the States was coordinated by the Ministry of Law, as intimated to us by them, the names of the States ratifying the Bill are placed at Annexure-2."
Annexure-2 to such information indicates that Legislatures of 13 States had ratified the Constitution Seventh Amendment Bill, 1956.
15.From the answers given in the context of above questions, it can not be concluded that in fact the ratification by 13 State Legislatures was after the Presidential assent. In fact, the petitioner had not posed any specific question as to whether ratification was obtained before or after the Presidential assent. On the other hand, he had sought for "Full particulars of the States Legislatures who had ratified the Bill No.29 of 1956, before obtaining the assent of the President is required". It is obvious that the petitioner had made a request to furnish him with a list of States, whose legislatures had ratified the Bill before Presidential assent rather than after the assent. The answer furnished indicates that 13 State Legislatures as per the list had ratified the Bill. In the context of the questions and the answers, the inevitable conclusion is that ratification had been obtained before the Bill was placed before the President for assent. Therefore, we are unable to accept the contention of the petitioner that the procedure contemplated under Article 368 had not been followed. Moreover, there is presumption attached to the official act in such matters. In the absence of any specific material to the contrary, we are unable to accept the contention raised by the petitioner.
16.For the aforesaid reasons, we do not find any merit to admit the writ petition,,which is accordingly rejected at the stage of admission. Connected M.P.(MD)No.1 of 2007 is also dismissed.
gb.
To:
1.The Secretary of Law & Company Affairs, Union of India, New Delhi-110 001.
2.The Registrar General, Madras High Court, High Court Building, Chennai.