Reportable

IN THE SUPREME COURT OF  INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 204 OF 2010

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