Amicus Curiae:The Role and Relevance in the Adversarial System

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)

The jural profile of Amicus Curiaeis traceable to Anglo-American Common Law extending from as far back as the fourteenth Century, and Roman Law¹.  The role and appearance of Amicus Curiae became a standard feature of litigation during the twentieth Century². “Historically, Amicus Curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and advises the court in order that justice may be done, rather than to advocate a point of view so that a case may be won by one party or another.”³

The adversarial system or adversary system is the legal system found in the common law countries including our country. In the adversarial system, in contrast to inquisitorial approach, two advocates represent their parties’ case or position before a Judge who hears the matter. The adversarial system is the two-sided structure placing the plaintiff or prosecutor on the one side and the defendant or the accused on the other. Thus in an adversarial procedure, each party produces his own evidence tested by cross-examination by the other side and the judge sits like an umpire and decides the case only on the basis of such material as may be produced before him by both parties.

We have been following adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule.  It has become a part of our conscious as well as sub-conscious thinking that every judicial proceeding must be cast in the mould of adversarial procedure. The adversarial procedure has become a part of our legal system because it is embodied in the Code of Civil Procedure and the Indian Evidence Act⁴.

The present justice-system needs to be galvanized to systemic change in the present day vague status of  Amicus Curiae by defining the parameters of amicus activity to assure justice and to act in the public interest.  In many cases, the Court acts upon the assumption of the possession of inherent power keeping the contours of the amicus concept nebulous and within the realm of judicial discretion. One such illustrative example is found in the judgment dated 05.12.2019 in O.P.(CAT) No.207 of 2019 (A.Anilkumar v. Union of India & Ors.)reported in 2019 (4) KLT SN  59 C.No.76). In the above case, the writer of this Article was appearing for the petitioner and the contesting respondent was represented by a Senior Advocate. The Union of India was represented by the Assistant Solicitor General of India, the State Government was represented by the Senior Government Pleader and the Union Public Service Commission was represented by the Standing Counsel. It is worthy of attention that no party in the above case remained unrepresented and no party was placed at a disadvantage on account of non-representation by advocates and the parties had proper and meaningful assistance of legal Counsel. The matter was argued elaborately for two working days by the Counsel appearing on all sides and the case was reserved for judgment on 04.09.2019. The judgement was pronounced on 05.09.2019. From the judgment it is seen that an advocate was allowed to argue as Amicus Curiae. There was no unrepresented or unaddressed position of law or overlooked precedent or facts which put any of the parties of the case to any disadvantage for inviting an Amicus Curiae to argue the case. No Amicus Curiae was appointed with notice to the counsel for the parties and no arguments were made by the Amicus Curiae in the presence of the Counsel appearing for the parties before the case was reserved for judgment. Thus the Counsel appearing for the parties did not get an opportunity to make counter arguments to the arguments of the Amicus Curiae. In the absence of unrepresented position, there was no discernible reason why the amicus curiae was appointed and allowed to argue the case.  The  judgement does not reveal what issues were posed and on what issues amicus participation was found needed and allowed.  In the judgement there is no indication that legal questions were not squarely presented by a live controversy for the propriety of inviting an amicus to argue the case. The only reference in the judgement about the amicus participation is that the amicus curiae deserves rich encomium. It was an unusual procedure traversing beyond Court’s power of judicial review of the Order of the Tribunal which is subject to scrutiny before a Division Bench of the High Court.  Such impropriety in the use of amicus curiae is an attempt at ‘judicial overreach’ and strikes at the legitimacy of the judicial process. The purpose of this Article is to unfold the reach and range of Amicus Curiae.  The focus is on the legal parameters of using Amicus Curiae device, its extra-special role in the adversarial system, and the jurisdictional limitations in appointing Amicus Curiae in judicial review proceedings.                                                                  

Amicus Curiae’srole is not to render service pro bono publico or as public interest legal service. Amicus Curiae may assist the court by providing an adversarial presentation when either side is not represented or when only one point of view is represented.  Amicus Curiaecan supplement when both sides are represented but not effectively or adequately and thereby leading to injustice.  Amicus Curiae may also draw the attention of the Court to broader legal or policy implications which may escape the Court’s consideration. The role play of Amicus Curiae is that of an impartial assistant to the Court and as Lord Justice Singleton thought, ‘a helper in the administration of justice’ whose task, is to assist in reaching ‘a proper result in the dispute between the parties’. Amicus Curiae is not given the status of a named party or real party in interest. Amicus Curiae also cannot take the control of the controversy in an adversarial fashion.  Amicus Curiae activity can neither be equated with that of the parties to the litigation nor adorn full party status. Necessarily, Amicus Curiaeis not competent to initiate legal proceedings, file pleadings or otherwise exercise the rights of any of the litigants. The role ascribed to the Amicus Curiaeby the Court is the objective assistance and the duty of Amicus Curiae is to assist the Court with regard to the case and not with regard to any particular petitioner/party⁵.  The traditional concept of amicus activity has to change its profile, its process, its range and gaze and must be co-related to our legal system.  It is needed to improve the system of legality.

Article 39A of the Constitution, falling under Part IV-Directive Principles of State Policy is a fundamental constitutional directive and an interpretative tool for Article 21 which is a distinct fundamental right providing protection of life and personal liberty. The fundamental right under Article 21 includes detenu’s right to consult with legal advisor of his choice for any purpose, not necessarily limited to defence in criminal proceedings but also for securing relief from preventive detention or filing a Writ Petition or prosecuting any claim or proceeding, civil or criminal and is obviously included in the right to live with human dignity and is also part of personal liberty. Article 22 (1) of the Constitution of India mandates that no person shall be denied the right to consult and to be defended by, a legal practitioner of his choice. Section 303 of the Code of Criminal Procedure confers on a person accused of an offence before a Criminal Court, right to be defended by a pleader of his choice.  Section 304 has been incorporated in the Code of Criminal Procedure directing the Court to assign a Pleader for the defence of the accused at the expense of the State where it appears to the Court that the accused has no sufficient means to engage a pleader for his defence.  Thus right to free legal assistance is made available in cases where offences are punishable with substantive sentence of imprisonment and not when punishable with fine only.

 In order to achieve the objective enshrined in Article 39A of the Constitution the Legal Services Authorities Act, 1987 (Act 39 of 1987) has been enacted to constitute Legal Services Authorities to provide free and competent legal service to the weaker sections of the Society. Section 12 of the Act 39, 1987 lays down the criteria for giving legal services. Section 13 relates to entitlement to legal services to those who satisfy all or any of the criteria specified in Section 12. In exercise of the powers under Section 27 of the Act 39, 1987, the Central Government made National Legal Services Authority Rules, 1995. The Central Authority in exercise of the powers conferred by Section 29 of the Act 39, 1987 made the National Legal Services Authority (Legal Aid Clinics) Regulations, 2011.

A Scheme has been made called “Supreme Court Middle Income Group Legal Aid Scheme” to provide legal services to the Middle Income Citizens by Middle Income Group Legal Aid Society⁶.  The State Government in exercise of the power under Section 28 of the Act 39, 1987 have issued the Kerala Legal Services Authorities Rules, 1998. The State Authority in exercise of the power under Section 29A of the Act 39, 1987 framed the Kerala Legal Services Authority Regulations, 1998.

Rule 183(1) of the Kerala High Court Rules, 1971 mandates that an Advocate shall be engaged at the cost of the State to defend an accused person who has not engaged an Advocate and who is under sentence of death or has been called upon to show cause why a sentence of death should not be passed on him or in any appeal filed under
Section 417 of the Code where a sentence of imprisonment is imposable. In any other cases, an Advocate may be engaged at the cost of the State, if the Court considers it necessary in the interest of justice. Rule 183(2) of the Kerala High Court Rules, 1971 empowers the court, in other cases, to engage an Advocate if it considers it necessary ‘in the interest of justice’ to defend an accused applying the ejusdem generis rule.  These provisions manifest the intention to limit the requirement of providing an Advocate at the cost of the State only to an accused belongs to the weaker section of the society.  Under the spell of the interdict contained in the aforementioned provisions, there is statutory restraint on the High Court from granting audience to solicited Amicus Curiae for and on behalf of those who fall outside the categories of persons who are otherwise entitled to ‘legal service’ under those provisions. 

The Supreme Court in the decision inBandhua Mukti Morcha v. Union of India (1984 KLT Online 1212 (SC) abandoned the laissez faire approach in the judicial process where it involves a question of enforcement of fundamental rights for the purposes of making fundamental rights meaningful for the large masses of people.  A three Judge Bench of the Supreme Court in the above decision held that where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the Court. Therefore, when the poor persons come before the Court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the Court for the purpose of securing enforcement of their fundamental rights.  The Supreme Court went on to hold that the principles adumbrated in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must equally apply in relation to the exercise of the jurisdiction by the High Courts under Article 226 of the Constitution.  It has been further clarified that the High Courts under Article 226 are required to exercise the jurisdiction for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of the Statute and they need to be enforced as urgently and vigorously as fundamental rights. The above decision has been fully approved by a Constitution Bench of the Supreme Court in the decision inM.C.Metha v. Union of India.⁷

Articles 226 and 227 of the Constitution of India comprise of Civil and Criminal as well as other proceedings. ‘Civil proceedings’ would cover all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute and claims relief for breach thereof. In a ‘civil proceeding’ the powers of the High Court extends to issuing orders, writs or direction as may be considered necessary for enforcement of the fundamental rights and for any other purposes as well ⁸. The scope of the power conferred under Article 226 and 227 of the Constitution in a ‘civil proceeding’ is to advance justice and to see whether injustice has resulted on account of failure to enforce law or of any erroneous interpretation of law. In a supervisory jurisdiction the High Court is to ensure that statutory powers are not usurped, exceeded or abused and that duties owed to the public are duly performed.  There is no provision parallel to Section 482 of the Code of Criminal Procedure saving the inherent power previously existed or vested in the High Court in a ‘civil proceeding’.

Under Section 482 of the Code of Criminal Procedure, 1973 inherent power is conferred upon the High Court to be invoked in criminal jurisdiction. In the decision in Raghubir Soran v. State of Bihar⁹ the Apex Court has held that every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any Order for the purpose of securing the ends of justice.  The High Court while exercising supervisory jurisdiction of judicial review cannot claim or assert inherent power as it would involve a wrongful usurpation of authority.

The High Court is a superior court of record and Article 215 of the Constitution states that every High Court shall be a court of record meaning thereby all the original record of the Court will be preserved by the said Court and it shall have all the powers of such a superior court of record including the power to punish the contempt for itself.  The High Court has power to determine the question about its own jurisdiction. A conjoint reading of Section 108 of the Government of India Act, 1950, Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution of India makes it clear that every High Court by its own rules can provide for exercise of its jurisdiction, original or appellate. There is no law either saving the inherent power existed before the commencement of the Constitution or vesting inherent power on the High Court for the exercise of the supervisory jurisdiction  of judicial review under Articles 226 and 227 of the Constitution.    

The Code of Civil Procedure is an Act of Parliament to consolidate  the laws relating to the procedure of the Courts of Civil Judicature.  Section 151 of the Code of Civil Procedure saves the inherent power of the Court to make such Orders as may be  necessary for the ends of justice or to prevent abuse of the process of the Court. The power relates to matters of procedure.  Explanation to Section 141 of the Code of Civil Procedure expressly provides that the expression “proceedings” does not include any proceeding under Article 226 of the Constitution.  Therefore, the inherent power of the Court recognized in Section 151 of the Code is expressly excluded from any proceeding under Article 226 of the Constitution.  \ Rule 150 of the Rules of the High Court of Kerala also does not confer upon the High Court inherent power while exercising power of judicial review under Article 226 and 227 of the Constitution of India.  Inevitably, exercise of inexistent inherent power by the High Court in a civil proceeding under Article 226 of the Constitution in conflict with what has been expressly provided in the Code or against the intentions of the Legislature would amount to acting outside the limits to the Court’s functions in judicial review proceedings and overstepping its jurisdiction under Articles 226 and 227 of the Constitution.

In the decision in Mohammed Ajmal Mohammad Amir Kasab v.. State of Maharashtra¹⁰it has been held that according to our system of law “The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in practice”. Signally, appointing amicus curiae in a civil proceeding under Articles 226 and 227 of the Constitution without the sanction of law and upon the assumption of the possession of inherent power to act ex debito justitiae is outside the jurisdiction, power and authority of the High Court.

It is not without significance to clarify that appointment of Amicus Curiae cannot be taken as a suo motuaction in exercise of the power of judicial review under Article 226 of the Constitution of India. Suo motupower is exercised for constitutional and legal violation adversely affecting the interests of the disadvantaged and destitute group.
Suo motuaction does not fall within the power of judicial review. “The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of the statutory authority is alleged.”¹¹ Therefore, appointment of Amicus Curiae cannot be made suo motu as in the case of taking cognizance of  infringement of violation of fundamental rights of the disadvantaged in matters relating to and involving in Public Interest Litigation.

Our Courts cannot by themselves invent a jurisdiction not conferred on them by the Constitution and the Legislature.  The Courts have to function within the established parameter and the Constitutional bounds. Decidedly, a law laying down the proper role of, the objectives, strategy and the criteria for appointment of Amicus Curiae by the judges is a desideratum. Amicus Curiae is to be deserved and preserved in matters of public importance or in which the interest of the public at large is involved and for seeking assessor-assistance where specialist knowledge and expert advice are called for in complex case situations. The role of Amicus Curiae in matters of public determination of certain medical questions that may arise in social security adjudication and other cases involving novel questions or matters of significant public import, is indispensable. Concomitantly, over reliance on Amicus Curiae briefs and submissions without sufficient vetting and without checking up hidden bias is likely to affect the decision making process and probable outcome of the case. Unregulated Amicus practice can exacerbate the qualities and constitutionality of the decision making. Increasing frequency without any rhyme or reason in soliciting Amicus participation has the tendency to transform its role as a ‘friend of the court’ to ‘friend of the party’ or ‘lobbyist of the Court’.  In this summons a renaissance in law-ways is necessitus to cast amicus silhouette. All that is needed is new law as a perspective-setter to set down the targets and methods of law governing Amicus Curiaein the adversary system.

Foot Note: 

1.   Earnest Angeli, The Amicus Curiae: American Development of EnglishInstitutions, 16 INT’L & COMP. LQ, 1017,1017 (1967).

2    Herbert Jacob, Justice in America: Courts, Lawyers and the Judicial Process (1984).

3.   Cmty. Ass’n for Restoration of Env’t (CARE) v. DeRuyter Bors. Dairy, 54F, Supp.2d 974, 975 (E.D.Wash.1999).

4.   Bandhua Mukti Morcha v. Union of India (1984 KLT OnLine 1212 (SC) = AIR 1984 SC 802) .

5.   Mukesh & Anr. v. State (NCT Delhi) (2016) 14 SCC 416. = 2017 (2) KLT SN 81 (C.No.114) SC.

6.   Middle Income Citizens by Middle Income Group Legal Aid Society 109, Lawyers’ Chamber, Post Office Wing, Supreme Court Compound, New Delhi-110 001.

7.   1987 (1) KLT OnLine 1011 (SC) = (1987) 1 SCC 395. 

8.   AIR 1954 SC 440.

9.   AIR 1964 SC 1.

10.  2012 (3) KLT SN 136 (C.No.142) SC = (2012) 9 SCC 1. (para 475).

11.  Roshina T.  v. Abdul Azeez (2018 (4) KLT 1353 (SC) = (2019) 2 SCC 329.

Gentleman Judge

(By Jayakumar K., Senior Advocate, High Court of Kerala)

When the sands of time trickle over a period of 62 years from the day he was born, an incumbent Judge of a High Court in India must lay down office. And so Mr. Justice C.K. Abdul Rehim, laid down office as Judge of The High Court of Kerala on the 2nd of May 2020.

Twice in the career of a Judge, the bench and the bar assemble in the Hon’ble Chief Justice’s Court; once at ascension of a Judge with hopes for the future and then again when the Judge retires, passing judgement upon the Judge on his judicial career. This time, however, the Pandemic made us hold the reference through video conferencing.

I do not intend to dwell in detail upon the biographical details of Justice Rehim since that has been done elsewhere during the reference.

Having known Justice Rehim for over three decades, first as a lawyer and then as a Judge for a little over 11 years, I thought a portrait of the man and the Judge is in order,for posterity.

As a lawyer he had outstanding forensic courage and he displayed this often by sticking to his point and driving it home with extra ordinary skill, resource, and adroitness, avoiding direct collision with the bench.  His talent and courage as well as his resource were displayed when fighting an apparently hopeless case. His lawyering skills were rewarded by being appointed by the Government as its Pleader in the High Court.

Long before he was raised to bench Justice Rehim was well known in public life for the active part he took in all contemporary movements-political, social, civic, and educational.  He was also active in the field of Fine Arts. His involvement in public life and trade union movement stood him in good stead when he was finally elevated to the bench in the year in 2009.

We have seen Judges of all hues. Justice Rehim always followed the middle path.
A practising lawyer who rises to judicial eminence by a facile and fluent tongue, cannot help talking, nor at times betraying too much knowledge of counsel, parties and even witnesses appearing before him. Justice Rehim could curb this tendency of the lawyer-judge and counsel always had their full say in his court. Even fledgling lawyers could argue without fear before Justice Rehim who was always benevolent towards juniors and respectful towards seniors. Counsel never had the grievance of not having been heard fully.  He was a Gentleman Judge. Justice Rehim was ever conscious of the fact that behind every lawyer standing before him there is an aggrieved human being who is the purpose behind this edifice of the law.

A noteworthy facet of Justice Rehim was his relationship with the bar even after he was raised to the bench.  Many are the instances where a lawyer after elevation became the tadpole that forgot its tail.  Not so, Justice Rehim.  In the entire period that he was on the bench, he was always there when the bar needed him. He also maintained his relationship with the members of the bar.  The law reports bear testimony to his scholarship, learning and vision.

Retirement, I am sure will not tire him.Justice Rehim’s forensic skills and his wide-ranging experience will be required in the field of Law and Public Administration.

Let us wish Justice Rehim an eventful, prosperous life post retirement with yet further contributions to Law and Public Life.

Sexual Harassment of Women at Workplaces
(Prevention,Prohibition and Redressal) Act, 2013 -- An Analysis

(By Sasisekhar Menon, Librarian, High Court of Kerala)

Enacted on the 23rd April, 2013 the Act became effective on the 9th December, 2013.The credit for specific guidelines on Sexual Harassment of women at workplaces in India goes to an NGO called “Vishaka”,that took a case of gangrape in Rajasthan to the Supreme Court, challenging the verdict of the High Court of Rajasthan.

The Supreme Court noted (1997 (2) KLT SN 72 (C.No.72) SC = AIR 1997 SC 3011:
(1997) 6 SCC 241 : 1997(5) SCALE 453) the lack of legal recourse against sexual harassment at workplaces. The guidelines issued in this case were to have statutory value until a proper law was enacted by the Parliament. Prior to the guidelines of 1997, such cases were dealt under Sections 354 and 509 of the Indian Penal Code. The Vishakha guidelines took the Parliament sixteen years to codify into a law. The Women and Child Development Ministry steered the SH Act,2013 and it became applicable to Government Offices, the Private sector ,NGOs and the unorganized sector. The Act made the employer responsible to prevent or deter acts of sexual harassment at the workplace, though the Act had shortcomings like giving the powers of a Civil Court to the Internal Complaints Committee (ICC) without specifying whether the members need to have a legal background.

   Section 2 (n) of the Act defines “sexual harassment” by including any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely :

(i)   Physical contact and advances; or

(ii)  A demand or request for sexual favours; or

(iii) Making sexually coloured remarks; or

(iv) Showing pornography; or

(v)  Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Section 2(o) of the Act defines “workplace”, as including :

(i)   Any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate government or the local authority or a government company or a corporation or a co-operative society.

(ii)  Any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

(iii) Hospitals or nursing homes;

(iv) Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(v)  Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer or undertaking such journey;

(vi) A dwelling place or a house.

In the year 2017,the Ministry of Women and Child Development launched an online complaint management system titled “Sexual Harassment Electronic Box (www.shebox.nic.in)for registering complaints related to sexual harassment of women at workplace. Those women who have already filed their complaints with the concerned committees constituted under the SH Act,2013,are also eligible to file their complaints over She-Box. As on 25th July,2019,the total number of complaints received through She-Box is 612 which includes 196 from Central Government, 103 from State Governments and 313 from private organizations.

 The Government of Kerala on 27th December,2019 has gazetted (Extraordinary No.3214; S.R.O.No.1012/2019) the Kerala Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act Grant-in-aid Rules,2019; as sub-section (1) of Section 8 of the SH Act,2013 provides that the Central Government may,after due appropriation made by Parliament by law in this behalf make to the State Governments,grants of such sums of money as the Central Government may think fit for being utilized for the payment of fees or allowances referred to in sub-section (4) of Section 7. Section 8(2) mandates the constitution of an agency for the same and Section 8(4) the conditions for keeping of the fund and audit of the said fund.

Sexual harassment is thus accepted as a human rights violation and is acknowledged as a violation of the Constitutionally guaranteed Fundamental Rights.

Few Judicial Pronouncements Prior to the 2013 enactment :

1) Rupan Deol Bajaj  v.  KPS Gill (1995 (2) KLT 830 (SC)).

After being dragged on for more than 18 years, the Supreme Court finally upheld the conviction of KPS Gill for his offence under Sections 354 and 509,I.P.C.,and the Court directed him to pay Smt.Bajaj, Rupees Two lakhs as compensation. This was the first instance where judiciary actually took a stand upholding Women’s Right.

2) Medha Kotwal Lele  v. Union of India(2012 (4) KLT SN 73 (C.No.55) SC = AIR 2013 SC 93).

 The Vishakha judgment was incorporated in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the Industrial Employment (Standing Orders) Rules, following the Supreme Court’s Order in this case.

3) Binu Tamta v.  High Court of Delhi(2013 (3) KLT OnLine 1111 (SC) = W.P.(C) No.162 of 2013.

 On 17th July, 2013, the Supreme Court approved of and accepted the Gender Sen-sitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (“GS Regulations 2013”) and directed the Supreme Court in its administrative jurisdiction to take note of the same and to arrange for the same to be promulgated. Later the Chief Justice of India, ordered via an official gazette notification in September, 2013 the “GS Regulations, 2013”as a comprehensive Code for prevention of sexual harassment of women within the precincts of the Supreme Court of India and for redressal of any complaints that may be lodged in the Supreme Court and contain certain provisions which are not contained in the Act.

Few Judicial Pronouncements after the Enactment of the SH Act, 2013:

1) InAdditional District and Sessions Judge, ‘X’ v. Registrar General, High Court
of Madhya Pradesh & Ors.(2015 (1) KLT SN 49 (C.No.67) SC = AIR 2015 SC 645 = (2015) 4 SCC 91 : 2014 (14) SCALE 238).

   The Supreme Court on 18-12-2014, held that by not strictly abiding by procedure contemplated under “in-house procedure” evolved by the Supreme Court, the Chief Justice of the High Court of Madhya Pradesh introduced serious infirmities in investigative process assigned to three-member committee and thus the Writ Petition was disposed leaving the matter to the Chief Justice of India to reinitiate investigative process, under “in-house procedure”.

2) In P.S.Malik v. High Court of Delhi & Ors. (2019 (3) KLT OnLine 3138 (SC) =
2019 (11) SCALE 242 : 2019 (3) Crimes 357(SC).

 The Supreme Court on 21.8.2019 held,

(i)   There was no error in the decision of the Full Bench of the High Court of Delhi, suspending the Petitioner (Addl.District Judge, Dwarka, New Delhi) and initiate the inquiry proceedings against Petitioner (Para 22),and

(ii)  The right of appeal is given to an aggrieved person only when report is submitted under Section 13 to the employer. The Court held, “No prejudice could be held to be caused to the Petitioner by non-supply of the Preliminary Inquiry Report. Thus, the submission of the Petitioner that due to non-supply of Preliminary Inquiry Report, the proceedings had been vitiated, was not accepted.(para 25)”.

3) Ms.Sunita Thawani’s case :

In a very recent judgment in 2020, the Supreme Court (disposed the S.L.P. filed by Sunita Thawani) upholding the Delhi High Court judgment of July, 2019 whereby the Supreme Court refused to entertain an appeal seeking protection for complainants and witnesses in sexual harassment at workplace cases from victimization or retaliation by the accused or organizations involved, as the SH Act does not have any provision mandating protection for victims and witnesses. The Supreme Court however granted the Petitioner the liberty, “to work out her remedy in accordance with law, including by making representation before the authorities concerned”. The High Court of Delhi had earlier dismissed the plea, stating the Petitioner was effectively seeking the creation of a new offence under the head of “retaliation”, something which the Act has not provided. It had concluded that Ms.Thawani’s plea was “fundamentally misconceived”.

Pausing the Tick of the Clock of Limitation –An Overview

(By S.K.Premraj  Menon, Advocate, High Court of Kerala)

a. Vide the Writ Petition (Civil) No. 3 of 2020, the Supreme Court of India has taken suo motu cognizance of the situation arising out of the challenge faced by our country on account of the COVID-19 virus and the resultant difficulties that may be faced by the litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under special laws (both Central and/or State). Vide the order dt. 23rd March 2020 - In Re Cognizance For Extension of Limitation (2020 SCC OnLine SC 343), to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including the Supreme Court, it has been orderedthat a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended with effect from 15^th March 2020 till further order(s) to be passed by the Court in the present proceedings. The Court while exercising the power under Article 142 read with Article 141 of the Constitution of India declared that this order was a binding one within the meaning of Article 141 on all Courts/Tribunals and authorities. Vide this order, the Apex Court has virtually stopped the pendulum swing of the clock of limitation from 15^th March 2020till its final order, the legality of which is truly debatable. Going by the Apex Court order, limitation shall be extended with effect from 15^th March 2020 until further orders, meaning thereby that the period of lockdown would be wholly excluded while computing the period of limitation, thus recompensing a litigant for the time lost due to the lockdown. The true intent of the Supreme Court has been clearly indicated that it isto obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings.

b. Limitation entails fixing or stipulating a timeframe for initiation of a legal action. Section 2(j) of the Limitation Act, 1963 reads :

2. Definitions

(j) ‘Period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.

Section 3 of the Limitation Act, 1963 reads :

3: Bar of limitation

(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.

(2) For the purpose of this Act

(a) A suit is instituted

(i) In an ordinary case, when the plaint is presented to the proper officer;

(ii) In the case of a pauper, when his application for leave to sue as a pauper is made ;
and

(iii) In the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator.

(b) Any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted.

(i) In the case of a set off, on the same date as the suit in which the set off is pleaded ;

(ii) In the case of a counter claim, on the date on which the counter claims is made in Court ;

(c) An application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.

Section 4 of the Limitation Act, 1963 reads :

4. Expiry of prescribed period when Court is closed

Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens.

Explanation - A Court shall be deemed to be closed on any day within the meaning of this Section if during any part of its normal working hours it remains closed on that day.

Section 9 of the Limitation Act, 1963 reads :

9. Continuous running of time

Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.

Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.

Section 29(2) of the Limitation Act, 1963, reads :

29. Savings

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

c. The power of the Apex Court to have extended the period of limitation with effect from 15^th March 2020 until further orders could be viewed from two different angles. To support the foresaid order, the following judgments would appear supportive. In L.C.Golak Nath & Ors. v. State of Punjab & Anr. (1967 KLT OnLine 1230 = AIR 1967 SC 1643), speaking for an eleven Judges’ Bench of the Apex Court, Chief Justice K.Subba Rao defined the expression ‘declared’ as being wider than the words ‘found or made’. He went on to hold that to declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. If so, we do not see any acceptable reason why it, in declaring the law in supersession of the law declared by it earlier, could not restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise that were effected on the basis of the earlier law. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. In K.Veeraswami v. Union of India(1991) 3 SCC 655), a Constitution Bench of the Supreme Court has stated that the Supreme Court has been a law maker, albeit, in Holmes’s expression, ‘interstitial’ law maker. Indeed, the Court’s role today is much more. It is expanding beyond dispute settling and interstitial law making. It is a problem solver in the nebulous areas. More recently, in Nidhi Kaim & anr. v. State of M.P. & Ors.(2016 (3) KLT OnLine 2153 (SC) = AIR 2017 SC 986), a three Judges’ Bench of the Supreme Court opined that there cannot be any defined parameters, within the framework whereof, this Court would exercise jurisdiction under Article 142 of the Constitution. The complexity of administration, and of human affairs, would give room for the exercise of the power vested in this Court under Art.142, in a situation where clear injustice appears to have been caused, to any party to a lis. In the absence of any legislation to the contrary, it would be open to this Court, to remedy the situation.Certainly, the question arises whether these dicta clothe the Apex Court to exercise its plenary powers, under Articles 141 and 142 and effectively pause the clock of limitation which ticks for every litigant, for the period starting from 15^th March 2020, until further orders, for the purpose of achieving complete justice. On a comprehensive analysis of the forecited judgments, it is clear that Article 142 of Constitution of India empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any matter pending before it. Article 142(1) neither confers a fresh source of power to the Supreme Court for creating new law nor creates an independent basis of jurisdiction, but it acts supplementary to Articles 32 and 136 of the Constitution of India. Basically the power enshrined under Article 142 of Constitution of India is an inherent power of Apex Court. Thus it can be safely concluded that power under Article 142(1) is a repository of the unenumerated power which has been left ‘undefined and uncatalogued’ so that ‘it remains elastic enough to be moulded to suit in the given situation’. There are cases where the Apex Court has laid down guidelines and directions in areas with legislative vacuum and that such exercise was essential to fill the void in the absence of suitable legislation to cover the field, like in Vishaka v. State of Rajasthan
(1997 (2) KLT SN 72 (C.No.72) SC = AIR 1997 SC 3011) for an effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places and Vineet Narain v. Union of India(1998 (1) KLT OnLine 1110 (SC) = (1998) 1 SCC 226) regarding C.B.I. investigations and CVC functioning. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr.(2005 (1) KLT OnLine 1107 (SC) = (2005) 3 SCC 284), the Apex Court went on to hold that Article 142 is an important constitutional power granted to the Apex Court to protect the citizens. In a given situation when laws are found to be inadequate for the purpose of grant of relief, the Court can exercise its jurisdiction under Article 142 of the Constitution. It was reiterated that directions issued by the Supreme Court under Article 142 form the law of the land in the absence of any substantive law covering the field and such directions ‘fill the vacuum’ until the legislature enacts substantive law. Also pertinent are to advert to the guidelines and directions issued by the Supreme Court in various other cases to safeguard, implement and promote fundamental rights, in the absence of legislative enactments. To quote a few are Lakshmi Kant Pandey v. Union of India(1984 KLT OnLine 1203 (SC) =
(1984) 2 SCC 244) regarding adoption of minor children by foreigners,Delhi Judicial Service Association & Ors. v. State of Gujarat & Ors.(1991 (2) KLT OnLine 1007 (SC) =
(1991) 4 SCC 406) regarding the procedures to be followed in the case of arrest and detention of a judicial officer, Union Carbide Corporation v. Union of India(1991 (2) KLT OnLine 1026 (SC) = (1991) 4 SCC 584) regarding compensation in the Bhopal Gas Leak
Disaster, Supreme Court Advocates-on-Record Association & Anr. v. Union of India
(1993 (2) KLT OnLine 1103 (SC) = (1993) 4 SCC 441) devising a specific procedure called ‘Collegium System’ for the appointment and transfer of High Court Judges,Common Cause v. Union of India (1996 (2) KLT SN 9 (C.No.8) SC = AIR 1996 SCC 929) regulating collection, storage and supply of blood for blood transfusions, M.C.Mehta v. State of Tamil Nadu
(1997 (1) KLT OnLine 1004 )SC) = (1996) 6 SCC 756) enforcing the prohibition on child labour and In Re Destruction of Public & Pvt. Prop. v. State of A.P. & Ors.(2009 (2) KLT 552 (SC) =
AIR 2009 SC 2266) regarding suo motucognizance of incidents of mass damage to public property and for setting up a machinery to investigate and award compensation.It is the judiciary which infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society ; thus, by making and moulding the law, takes part in the work of creation and this is much more true in the case of interpretation of the Constitution as held by the seven Judges’ Bench of the Apex Court inS.P.Gupta & Ors. v. Union of India & Ors.(1982 KLT OnLine 1002 (SC) = AIR 1982 SC 149), wherein it was further held that the judiciary has therefore a socio-economic destination and a creative function. It has, to use the words of Granville Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice.

d. Now looking from the other angle, in the words of Benjamin Cardozo, a Judge is not a legislator in general but highlights how the Judge does legislate new law in close cases to fill gaps between existing rules. The prescribed period of limitation stand extended with effect from 15^th March 2020 till further order(s) to be passed by the Court after lifting the lockdown. In case the prescribed period of limitation to file any petitions/applications/suits/appeals/all other proceedings had expired during the period mentioned in the Supreme Court order, the same would be required to be filed on the day when the Court reopens after the lockdown is lifted, in accord with Section 4 of the Limitation Act, 1963. The Apex Court has consciously invoked its inherent powers under Article 142 of the Constitution of India, being well aware that such extension of limitation is not stipulated within the scope of Section 4 of the Limitation Act, 1963, going beyond the statutory benefit, in effect, suspending the period of limitation for all filings, though used the word ‘extended’. A Court is not open merely because it is physically open. A Court is not merely a building with rooms. One cannot lose sight of the fact that the ongoing COVID-19 pandemic has forced unprecedented measures on the movement of people across the country, even bringing the functioning of Courts and Tribunals to a grinding halt. Social distancing is being preached across India to combat the everyday increasing threat of COVID-19. In fact on 24^th March 2020, the Central Government took the much-needed measure and announced a 21 days complete lockdown in the country, which was subsequently extended. Considering the present scenario, the Courts have become physically inaccessible. When the COVID-19 restrictions prevented parties from filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation, though in a highly technical sense, it could be said that the Court was not closed according to the Court calendar, but for all practical and legal purposes, it needs to be deemed as closed. This is why the Explanation to Section 4 deals with the situation like the present one, where although the Court may not be actually closed, it must be deemed to be closed, if during any part of its normal working hours, it remains closed on that day for any particular reasons and the restrictions imposed by the present lockdown. In Ajay Gupta v. Raju @ Rajendra Singh Yadav (2016 (3) KLT OnLine 2035 (SC) = AIR 2016 SC 3284), without much discussions, the Apex Court went on to state thatwhat is permitted under Section 4 of the Limitation Act, 1963 is the period coming under Court holiday. Whether a litigant can resort to the benefit of Section 4 too remains contentious. True, there may be practical difficulties as the litigants would be constrained to rush to Courts once the lockdown is lifted, sans having had a reasonable opportunity to have access to legal advice and meticulously settle their pleadings due to the restrictions of the lockdown, causing severe prejudice to them. Section 9 of the Limitation Act, 1963 postulates continuous running of time, holding that where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it. The proviso thereto does not take in its fold, the present situation. But that by itself cannot be construed to be a vacuum for the reason that nowhere in the Limitation Act, 1963, the legislature has granted any special concession for extending time in the time of a like crisis. Also relevant is to note that the Constitution does not clothe the Supreme Court with any additional reservoir of powers to meet such exigencies, especially when there is a statute which governs the limitation.

e. The extraordinary powers under Article 142 was brought about to bridge the gap created by any insufficient law so as to meet the ends of justice, grant of which is met out by passing an ‘enforceable decree or order’ by the Supreme Court. Article 142, for the very first time, came under light of interpretation in the Constitution Bench decision in Prem Chand Garg & Anr. v. Excise Commissioner, U.P. & Ors. (1963 KLT OnLine 1238 (SC) =
AIR 1963 SC 996) which added a rider to the exercise of extraordinary powers by laying down that though the powers are very wide, and the same can be exercised for doing complete justice in any case, the Court cannot even under Article 142(1) make an order plainly inconsistent with the express statutory provisions of substantive law. This view was endorsed by a nine Judges’ Bench in Naresh Shridhar Mirajkar & anr. v. State of Maharashtra & Anr.(1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) and was reiterated by a seven Judges’ Bench in A.R. Antulay v. R.S. Nayak(1988 (1) KLT OnLine 1012 (SC) = AIR 1988 SC 1531). As held by the Constitution Bench in Supreme Court Bar Association v. Union of India (1998 (1) KLT SN 84 (C.No.85) SC = (1998) 4 SCC 409), the plenary powers under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power, exists as a separate and independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent ‘clogging or obstruction of the stream of justice’. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed a powers which authorize the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to ‘supplant’ substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. A three Judges’ Bench in State of Punjab & ors. v. Rafiq Masih (White Washer)(2014 (3) KLT SN 42 (C.No.52)SC = (2014) 8 SCC 883) held that Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorized into one, in the nature of moulding of relief and the other, as the declaration of law. ‘Declaration of Law’ as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest Court of the land. Of late, a three Judges’ Bench of the Supreme Court in Union of India v. State of Maharashtra & Ors.
(2019 (4) KLT OnLine 2053 (SC) = AIR 2019 SC 4917), surveying plethora of precedents held that Article 142 cannot be applied to encroach upon the field reserved for the legislature. Legislative power can be exercised only by the legislature or its delegate and none else.In Union of India & Anr. v. Deoki Nandan Aggarwal(1992 (2) KLT OnLine 1008 (SC) =
AIR 1992 SC 96), it was held that it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. The Supreme Court in Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Ltd. & Anr.(1999 (2) KLT SN 52 (C.No.56) SC = (1999) 6 SCC 82) went on to hold that it is not the function of the Court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The Courts admittedly interpret law and do not make laws. Personal views of the Judges presiding the Court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The function of the Court is only to expound the law and not to legislate.

f.Vis-à-viscondonation of delay in special statutes, in Singh Enterprises v.
Commissioner of Central Excise, Jamshedpur & Ors.(2008 (1) KLT SN 62 (C.No.65)SC = (2008) 3 SCC 70), the Apex Court had considered the provisions of Section 35 of the Central Excise Act, 1944 which also limited the jurisdiction of the Commissioner of Appeals to condone the delay in filing an appeal, beyond a period of 30 days. The Court upheld the view that there was no power to condone the delay after expiry of the said period of 30 days. This was referred in Oil and Natural Gas Corporation Ltd. v. Gujarat Energy Transmission Corporation Limited & Ors.(2017 (1) KLT OnLine 2092 (SC) = (2017) 5 SCC 42), wherein a three Judges’ Bench of the Supreme Court considered the question whether the Supreme Court could condone the delay in filing the appeal underSection 125 of the Electricity Act, 2003, beyond the period as specified therein, wherein the proviso was clear that
the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Referring to its earlier decisions, the Apex Court held that the delay beyond the specified period could not be condoned, holding that the Act is a special legislation within the meaning of Section 29 (2) of the Limitation Act, 1963 and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that the Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution.

g. Overall, though it was a commendable and praiseworthy approach by the Supreme Court, with the litigants looking forward for further clarifications in near future, it does open doors for much legal debates on the core issue as to whether the Supreme Court has the power to issue such an all-encompassing order invoking Article 142 of the Constitution of India, rendering Sections 2 (j), 3, 4, 9 and 29 (2) the Limitation Act, 1963 otiose. Provisions of many
special statutes which prescribe the period of limitation too would be thrown overboard. Though a laudable one, this order arguably transgresses the clear language of the Limitation Act, 1963 and also the special statutes prescribing their periods of limitation, the ramifications of which ripple would tide over a period of time.

Can the Courts Add Words to the Constitution ?

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

The judgment of the High Court of Kerala in John K.Illikkadan v. Union of India
(2020 (1) KLT OnLine 1087 (W.A.No.107 of 2020)indeed raises number of doubts, if not poignant questions providing an opportunity for excellent examination and exercise in the interpretation of the Constitution of India.

Article 217(2) reads as follows:-

“(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”.

The qualifications prescribed under the supreme document of the country are not available to be altered, amended, added or subtracted. That however, is precisely what the High Court has upheld in the case referred to above. The High Court has taken the following view:-

“The appellant, admittedly, has crossed the age of 58½ years when a vacancy due to him had arisen.  The learned Standing Counsel also produced before us various recommendations made by the Collegium of the Hon’ble Supreme Court, wherein there is a specific reference to the age limit of 58½ years, insofar as the District Judges are concerned.”

“The copy of the letter dated 24.09.2004 of the Ministry for Law and Justice, Government of India received by the Chief Justice of this Court was extracted in the impugned judgment.  It specifically speaks of the Chief Justice of India having observed that the recommendations made to fill up the vacancies set apart for Judicial Officers would be considered, only of those Judicial Officers, who have not crossed the age limit of 58½ years.”

This, in my humble and respectful submission amounts to adding words which are not available in the Constitution of India, in regard to basic qualifications for appointment as a Judge.  The people of the country have spoken through the Constitution what the qualifications the Judges going to sit in judgment over them should possess.  The final arbiter of the nation is its people.  No Court can add to any of the provisions of the Constitution.  This is far too well settled a proposition in the interpretation of statutes.  The Supreme Court has held that the Constitution is a living document and its interpretation will have to be made keeping in mind the objective of the Constitution-makers.  The Constitution does not prescribe any age limit for appointment of a Judge.  It only prescribes an outer limit to hold the office beyond an age.  Can that provision be supplemented by a so called policy evolved by the Supreme Court that District Judges beyond the age of 58 will not be considered for appointment?  Can that have statutory force? No circular, guideline, order or even statutory provision contrary to the mandate of the Constitution shall survive.  Very recently in relation to the 10th Schedule of the Constitution of India regarding disqualification of defecting members,this is what the Supreme Court said:

“It is clear that nothing can be added to the grounds of disqualification based on convenience, equity, logic or perceived political intentions.”(See Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly(2020) 2 SCC 595).

The Court relied on the principle earlier declared by it that when the law does not prescribe such a disqualification it cannot be imposed by Courts.  (See G.Narayanaswami v. G.Pannerselvam(1972 KLT OnLine 1138 (SC) = (1972) 3 SCC 717).  The Court observed:-

“We think that, by adding a condition to be necessary or implied qualifications of a representative of the graduates which the Constitution-makers, or, in any event Parliament, could have easily imposed, the learned Judge had really invaded the legislative sphere.  The defect, if any, in the law could be removed only by law made by Parliament”.

In the same year in N.S.Vardacharithe Supreme Court upheld the same principle. The Court said:

“Once a candidate possesses the qualifications and is not subject to any of the disqualifications specified in the law, he is qualified to be a candidate and any other consideration becomes irrelevant”.

It does not appear that the attention of the High Court has been drawn to the above principles evolved by the Apex Court from Charanjith Lal (1951) to S.R.Choudhary
(2001)in which the Supreme Court held that the will of the people cannot be permitted to be substituted to political expediency of the Prime Minister or the Chief Minister as the case may be.  Can what is forbidden to the elected in a democracy be permitted to the selected of the Supreme Court?  Years back, the Privy Council held “If the text is explicit, it is conclusive alike in what it directs and what it forbids”.

In the year 2004 in Manoj Narula v. Union of India (2014 (4) KLT SN 5 (C.No.5) SC =(2014) 9 SCC 1), the Supreme Court elaborated the principle of constitutional interpretation as follows:

“When there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, by interpretative process, it is difficult to read the prohibition into Article 75(1) or, for that matter, into Article 164 (1) of the Constitution to the powers of the Prime Minister or the Chief Minister in such a manner.  That would come within the criterion of eligibility and would amount to prescribing an eligibility qualification and adding a disqualification which has not been stipulated in the Constitution.  In the absence of any constitutional prohibition or statutory embargo, such disqualification cannot be read into Article 75(1) or Article 164(1) of the Constitution”.

It is unfortunate that even in regard to the applicability of the guidelines, selective discrimination is practised.  In the past particularly after 2004, number of persons crossing the age of 58 had been appointed. Some members of the Bar had held judgeship only for a brief period of three years before attaining the age of 62.  If the High Court or Supreme Court has evolved a rule, that must be applied alike and not to some alone. There cannot be a guideline applicable exclusively only to one of the two sources prescribed under the Constitution from which appointment can be made.  That will be palpably and plainly discriminatory. Besides it will leave the subordinate judiciary, the back-bone of our judicial frame-work desiderate and disgruntled leading to cascading demoralisation.  The attempt should be to pick up the best and not to pluck them out. Nobody can question the authority of those entrusted with the responsibility of choosing persons for appointment of Judges.  As rightly held by the Division Bench their discretion is not open to challenge and not even justiciable.  A lawyer moved the Madras High Court seeking appointment as Judge, which that Court rightly turned down.

Be it remembered courts function not on the strength of the purse and not also on the might of the sword, but on trust, confidence and credibility earned by their own impeccable track record.

In sum, one is constrained to say with great respect to the learned and eminent Judges that the judgment in Illikkadan, does not represent the correct constitutional law and needs re-visitation, though the rejection of the relief is correct, inevitably.