Order
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 the Rajasthan Public Trust Act, 1959. It has been established in the legal arena for the larger public interest. The Trust's motto is to challenge those provisions of law which are ultra virus and unconstitutional. Basically the petitioner has sought the review of the judgment by a nine-Judge Bench of this Court in Supreme Court Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441; so also in Special Reference No. 1 of 1998, In re (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 along with Mr Bharat Sangal to assist the Court as amicus curiae. The petition raises a large number of complicated issues. Meanwhile, we also sought assistance of the learned Attorney General for India.
3. Shri A.K Ganguli, 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:
“124. (2) 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) Of 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 the High Court as he deems necessary for the purpose, and is not bound to consult only the five seniormost Judges of the Supreme Court.
4. That by the judicial verdicts in the aforesaid two cases, Article 124(2) has been practically amended, although amendment to the Constitution can only be done by Parliament in accordance with the procedure laid down in Article 368 of the Constitution of India.
5. That under Article 124(2) while appointing a Supreme Court Judge, the President of India has to consult the Chief Justice of India, but he may also consult any other Supreme Court Judge and not merely the four seniormost Judges. Also, the President of India can even consult a High Court Judge, whereas, according to the aforesaid two decisions the President of India cannot consult any Supreme Court Judge other than the four seniormost Judges of the Supreme Court, and he cannot consult any High Court Judge at all.
6. Shri Ganguli submits that the matter is required to be considered by a larger Bench as the petition raises the following issues of constitutional importance:
(1) Whether the aforesaid two verdicts viz. the seven-Judge Bench and nine-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 the Supreme Court or High Court Judges in the Constitution?
(3) Whether the Constitution can be amended by a judicial verdict or can it 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 the High Court Judges redundant while appointing a Supreme Court Judge despite the fact that it is permissible on the clear language of Article 124(2)?
(7) Whether the clear language of Article 124(2) can be altered by judicial verdicts and instead of allowing the President of India to consult such Judges of the Supreme Court as he deems necessary (including even junior Judges) only the Chief Justice of India and four seniormost Judges of the Supreme Court can alone be consulted while appointing a Supreme Court Judge?
(8) Whether there was any convention that the President is bound by the advice of the Chief Justice of India, and whether any such convention (assuming there was one) can prevail over the clear language of Article 124(2)?
(9) Whether the opinion of the Chief Justice of India has any primacy in the aforesaid appointments?
(10) Whether the aforesaid two decisions should be overruled by a larger Bench?
7. Mr G.E Vahanvati, learned Attorney General for India, supports the petitioner contending that the aforesaid judgments require reconsideration. However, he also submits:
(a) A writ petition under Article 32 is not maintainable at the behest of a trust as the trust cannot claim violation of any of its fundamental rights;
(b) The 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 a nine-Judge 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 v. Indira Devai P.S (2000) 1 SCC 224 this Court while dealing with a similar reference by a Bench of two Judges doubting the correctness of seven-Judge Bench judgment in Bangalore Water Supply & Sewerage Board v. A. Rajappa (1978) 2 SCC 213 held as under: (Indira Devai case (2000) 1 SCC 224)
“2. The judgment delivered by the seven learned Judges of this Court in Bangalore Water Supply case (1978) 2 SCC 213 does not, in our opinion, require any reconsideration on a reference being made by a two-Judge Bench of this Court, which is bound by the judgment of the larger Bench.
3. The appeals shall, therefore, be listed before the appropriate Bench for further proceedings.”
9. The Constitution Bench of this Court in Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1, AIR 2002 SC 296, while dealing with a similar situation held that the judgment of a coordinate 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 v. Hansoli Devi (2002) 7 SCC 273, this Court reiterated the same view placing reliance upon its earlier judgment in Pradip Chandra Parija (2002) 1 SCC 1, AIR 2002 SC 296.
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 Court in B.P Singhal v. Union of India (2010) 6 SCC 331 wherein while dealing with the issue of removal of Governors, this Court held as under:
“15. 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 on the recent order of this Court dated 30-3-2011 in Mineral Area Development Authority v. SAIL (2011) 4 SCC 450 wherein considering the issue of interpretation of the constitutional provisions and validity of the Act involved therein, a three-Judge Bench presided over by the Hon'ble Chief Justice has referred the matter to a nine-Judge Bench.
13. At this juncture, Mr Ganguli as well as Mr Vahanvati have submitted that even at the stage of preliminary hearing for admission of the petition, the matter requires to be heard by a larger Bench as this matter has earlier been dealt with by a three-Judge Bench and involves very complicated legal issues.
14. In view of the above, we place the matter before the Hon'ble the Chief Justice for appropriate directions.