Supreme Court of India
SURAZ INDIA TRUSTversusUNION OF INDIA AND ANR.
- Citation
- 2011 INSC 260
- Decided
- 4 April 2011
- Disposal
- Matter referred to larger bench
Holding
The petition raises substantial constitutional questions and therefore should be referred to a larger bench for consideration.
Summary
The Suraz India Trust, a Rajasthan public trust, filed a writ petition under Article 32 of the Constitution seeking review of two Supreme Court judgments that had affirmed the primacy of the collegium in appointing Supreme Court and High Court judges. The trust contended that those judgments effectively amended Article 124(2), which provides only for presidential appointment after consultation, and that such amendment can only be effected by Parliament under Article 368. It raised numerous constitutional questions, including the existence of a collegium, the meaning of "consultation" versus "concurrence", and its own locus standi to challenge the judgments. The Attorney General supported the petition but argued that a two‑Judge bench could not review a nine‑Judge decision and that the petition might be non‑maintainable. Citing precedents that larger‑bench decisions bind smaller benches and that matters of great constitutional importance may be referred, the Court held that the issues required consideration by a larger bench. Accordingly, the matter was placed before the Chief Justice for appropriate directions, i.e., referred to a larger bench.
Issues considered
- Whether the Supreme Court judgments declaring the collegium system amount to a judicial amendment of Article 124(2) of the Constitution
- Whether a collegium system for appointment of Supreme Court and High Court judges exists under the Constitution
- Whether the Constitution can be amended by judicial interpretation or only by Parliament under Article 368
- Whether the word 'consultation' in Article 124(2) implies 'concurrence'
- Whether the trust has locus standi to seek review of the judgments under Article 32
- Whether the matter should be heard by a larger bench given the constitutional significance
Legislation cited
- Constitution of Indias. Article 124(2), s. Article 32, s. Article 368
- Rajasthan Public Trust Act, 1959
Subjects
Judicial reviewCollegium systemAppointment of judgesConstitutional amendmentArticle 124Article 32Public trustLocus standiLarger bench referral
Judgment
[2011) 4 S.C.R. 224
A SURAZ INDIA TRUST
v.
UNION OF INDIA AND ANR.
(Writ Petition (C) No. 204 of 2010)
APRIL 4, 2011
8
[DEEPAK VERMA AND DR. B.S. CHAUHAN, JJ.]
Constitution of India, 1950:
c Article 124(2) - Appointment of Supreme Court and High
court Judges - Writ petition - The petitioner sought review of
a judgment by nine Judges' Bench of Supreme Court whereby
the Court declared the primacy of the col/egium in the matter
of appointment of the Judges of the Supreme Court and the
High Courts - The plea of petitioner was that by the judicial
0
verdicts in the two cases, Article 124(2) was practically
amended, although amendment to the Constitution could only
be done by Parliament in accordance with the procedure laid
down in Article 368 of the Constitution - Held: Even at the
E stage of preliminary hearing for admission of the petition, the
matter is required to be heard by a larger Bench as this matter
was earlier dealt with by a three Judges Bench and involved
very complicated legal issues - Matter placed before the
Hon'ble Chief Justice for appropriate directions.
F Advocate on Record Association v. Union of India & Ors.
(1993) 4 SCC 441; Special Reference No.1 of 1998 (1998)
7 SCC 739; Coir Board Ernakulam & Anr. v. Indira Devai P.S.
& Ors. (2000) 1 SCC 224; Bangalore Water Supply &
Sewerage Board v. A Rajappa (1978) 2 SCC 213; Pradip
G Chandra Parija & Ors. v. Pramod Chandra Patnaik & Ors. AIR
2002 SC 296; Union of India & Anr. v. Hansoli Devi (2002) 7
SCC 273; B.P. Singhal v. Union of India & Anr. (2010) 6 SCC ·
331 - referred to.
H 224
SURAZ INDIA TRUST v. UNION OF INDIA AND ANR. 225
Case Law Reference: A
(1993) 4 sec 441 referred to Para 1
(1998) 7 sec 739 referred ·to Para 1
'
(2000) 1 sec 224 referred to Para 8 B
(1978) 2 sec 213 referred to · Para 8
AIR 2002 SC 296 referred to Para 9
(2002) 7 sec 273 referred to Para 10
c
(2010) s sec 331 referred to Para 11
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
204 of 2010.
Under Article 32 of the Constitution of India. D
G.E. Vahanvati, A.G., A.K. Ganguli, (A.C.}, Bharat Sangal
(A.C) R.R. Kumar Suraj Daiya (Petitioner-In-Person) for the
appearing parties.
The following order of the Court was delivered E
ORDER
1. This writ petition has been filed under Article 32 of the
Constitution by the present petitioner claiming itself to be the F
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 G
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. H
226 SUPREME COURT REPORTS [2011) 4 S.C.R.
A 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.
B Meanwhile, we also sought a~sistance of the learned Attorney
General for India.
3. Shri A.K. · Ganguly, learned senior Advocate, has
submitted:
c 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
D appointed by the President by warrant under his hand ana
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.
E 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:
F
(i) for any Collegium in Article 124(2).
(ii) The word used in Article 124(2) is 'consultation', and
not 'concurrence'.
G (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 bound to consult only the
five seniormost Judges of the Supreme Court.
H 4. That by the judicial verdicts in the aforesaid two cases,
SURAZ INDIA TRUST v. UNION OF INDIA AND ANR. 227
Article 124(2) has been practically amended, although A
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
8
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 C
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 D
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 E
124(2) of the Constitution?
(2) Whether there is any 'Collegium' system for
appointing Supreme Court or High Court Judges!::
the Constitution?
F
(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 G
appointed by mutual discussions and mut1.1al
consensus between the judiciary and the executive;
or whether the judiciary can alone appoint Judges
of the Supreme Court and High Courts?
H
228 SUPREME COURT REPORTS [2011] 4 S.C.R.
A (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
B
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)?
c (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
D 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
E
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
F 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,
G 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 ofi
H any of its fundamental rights;
. SURAZ INDIA TRUST v. UNION OF INDIA AND ANR. 229
(b) Petitioner has no locus st•.mdi to seek review of the A
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 B.
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 Emakulam & Anr. v. Indira Devai P.S. & c,
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:- D
"The judgment delivered by the seven learned Judges of
t~ngalore 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 qf the larger Bench. The appeals E
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 F
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 G
. matter to a Bench of three Judges setting out, the reasons why
· ·it could not agree with the earlier judgment. lf1 then, the Benett
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. H
230 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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 i.n Pradip Chandra Parija (supra).
11. However, Mr. Ganguli dealing with the issue of locus
8 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
C & 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
D 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."
E
(Emphasis added)
Thus, Mr. Ganguli submits that considering the gravity of
the issues involved herein, the matter should be entertained.
F 12. While dealing with the issue of reference to the larger
Bench, Mr. Ganguli has pl~ced 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. Mis. Steel Authority of India & Ors.) wherein considering the
G 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
H
SURAZ INDIA TRUST v. UNION OF INDIAAND ANR. 231
have submitted that even at the stage of preliminary hearing A
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 Judges Bench and involves very complicated legal
issues.
B
14. In view of the above, we place the matter before the
Hon'ble Chief Justice for appropriate directions.
D.G. Matter referred to larger bench.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Judicial review"Sign in to search