IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED110.2013 CORAM THE HON'BLE MR.R.K.AGRAWAL, THE ACTING CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN W.P.No.24907 of 2013 and M.P.No.1 of 2013 V.Vasanthakumar .. Petitioner Vs. 1.The Secretary to Government, Union of India, Parliament House, New Delhi-110 001. 2.The Secretary to Government, Ministry of Parliamentary Affairs, No.92, Parliament House, New Delhi. 3.The Secretary to Government, Ministry of Law and Justice, Legislative Department, Dr.Rajendra Prasad Road, Shastri Bhawan, New Delhi. .. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the respondents to take immediate effective measures to pass ".The Constitution (One Hundred and Fourteenth Amendment) Bill, 2010"., in to an Constitutional Amendment Act and to notify the same in the manner known to law within a time frame to be fixed by this Court and consequently, direct the respondents to implement the report of National Commission to review the working of the Constitution dated 31.3.2002 and 14th, 230th report of the Law Commission of India, forthwith in respect to enhancement of retirement age of the Hon'ble Judges of the Supreme Court and High Courts to 68 and 65 years respectively in the light of the petitioner's representation dated 13.08.2013 and 16.08.2013. For Petitioner : Mr.V.Vasanthakumar Party-in-Person ORDER
The petitioner is an Advocate, practicing before this Court and other Subordinate Courts and Tribunals and he filed this Public Interest Litigation praying for the issuance of a Writ of Mandamus directing the respondents to take immediate and effective measures to pass ".The Constitution (One Hundred and Fourteenth Amendment) Bill, 2010"., in to an Constitutional Amendment Act and to notify the same in the manner known to law, within a time frame to be fixed by this Court and consequently, direct the respondents to implement the report of the National Commission to Review the Working of the Constitution dated 31.3.2002 and 14th, 230th report of the Law Commission of India, forthwith in respect to enhancement of retirement age of the Hon'ble Judges of the Supreme Court and High Courts to 68 and 65 years respectively in the light of the petitioner's representation dated 13.08.2013 and 16.08.2013.
2. The petitioner, in the affidavit filed in support of the writ petition, avers that he is an M.L. in Constitutional and International Law and he obtained the said Post Graduate Degree from the University of Madras. The petitioner would state that originally under Article 217(1) of the Constitution of India, the age of retirement of High Court Judges was fixed at 60 years and as per the amendment made in the year 1963, the age of retirement was increased to 62 years. The Constitution (114th Amendment) Bill, 2010 was introduced in the Lok Sabha on 25.08.2010, by and under which the age of retirement of Permanent Judges, Additional Judges and Acting Judges of High Court sought to be increased from 62 to 65 years and the Bill was referred to a Parliamentary Standing Committee by the Hon'ble Chairman of Rajya Sabha on 15.09.2010 and thereafter, the Bill is pending in the House of the Parliament.
3. The petitioner apprehends that as per Article 107(5) of the Constitution of India, the Constitution (114th Amendment) Bill, 2010 would lapse on the dissolution of the present House of People since the said Bill was introduced in the Lok Sabha, whose tenure expires during May 2014. It is also averred by the petitioner that by virtue of the resolution passed by the Ministry of Law, Justice and Company Affairs (Department of Legal Affairs) on 22.02.2000, the ".National Commission to Review the Working of the Constitution". was constituted under the Chairmanship of Hon'ble Mr.Justice M.N.Venkatachaliah, Chief Justice of India (Retired) and the said Commission has given its report dated 31.03.2002, recommending among other things that the age of retirement of Judges of Supreme Court be raised to 68 years and that of High Court be raised to 65 years respectively. The petitioner has also cited the age of retirement of High Court and Supreme Court Judges in Canada, Ireland, Israel, New Zealand and United Kingdom, wherein the age of retirement varies from 68 to 75 years and in United States, the Judges of the Supreme Court can serve till their lifetime. Since no steps have been taken to pass the above said Bill in the Lok Sabha, the petitioner submitted representations dated 13.08.2013 and 16.08.2013 to the respondents 2 and 3 and though the said representations were acknowledged, nothing had taken place either to send a reply or introduce the Bill in Lok Sabha, the petitioner came forward to file this writ petition, as a Public Interest Litigation.
4. The petitioner/party-in-person submitted that the above said Bill is in tune with the recommendation made by the National Commission to Review the Working of the Constitution, but nothing had taken place to get it passed in the Lok Sabha and this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, is having power to issue appropriate direction, directing the respondents to do so.
5. This Court has perused the materials placed before it and also considered the submissions made by the petitioner/party-in-person.
6. In A.K.Roy v. Union of India and Others [(1982) 1 SCC271, the writ petition was filed under Article 32 of the Constitution of India, challenging the validity of the National Security Ordinance, 1980 (11 of 1980) and certain provisions of National Security Act, 1980 (Act 65 of 1980) which replaced the Ordinance. The primordial ground of attack was to the power of President/Governor to issue an ordinance and the act of the Government in not bringing into force the amendment in Section 3, whereby the Article 22 was amended. The Hon'ble Supreme Court of India has taken into consideration as to the issuance of a Writ of Mandamus directing the Central Government to bring into force Section 3, whereby Article 22 of the Constitution was amended and by majority of 3:2, upheld the constitutional validity of Section 1(2) of 44th Amendment and the powers of Parliament to delegate its authority to an outside agency and it has been further held that no Mandamus could be issued to the Central Government to bring into force the Act.
7. In Common Cause v. Union of India and Others [(2003) 8 SCC250, the facts of the case would disclose that Delhi Rent Bill, 1994 was introduced in the Rajya Sabha on 26.08.1994 and was passed in the Rajya Sabha unanimously on 29.05.1995 and it was tabled in the Lok Sabha, wherein it was unanimously passed on 03.06.1995 and the Presidential assent was given to the Bill on 23.08.1995 and the Delhi Rent Act, 1995 was notified on 23.08.1995, however the Parliament did not fix the date with effect from, which the Act would come into operation and it was left to the discretion of the Central Government to notify the date. Since the Central Government did not notify the date, Common Cause filed a writ petition before the High Court of Delhi in Public Interest, praying for issuance of a Writ of Mandamus directing the Union of India to forthwith and without delay issue a notification in the Official Gazette, as contemplated under Section 1(3) of the Act notifying the date on which the said Act shall come into force in its present form. The writ petition came before a Division Bench of Delhi High Court and there was a split verdict. One learned Judge has allowed the writ petition, where the other learned Judge did not agree with the same and therefore, the matter was referred to a third Judge. The third learned Judge did not agree with the view taken by either of the Judges and he held that since the response of the Central Government is already known, Courts did not issue infructuous writs which are of an academic nature and having held as above, directed the listing of the matter before the Division Bench for appropriate orders. Before the Division Bench, the Central Government filed an affidavit reporting compliance and the writ petition was disposed of and an oral Leave was granted to file an appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court of India has taken into consideration its earlier decisions including A.K.Roy's case (cited supra) and Aeltemesh Rein v. Union of India [(1988) 4 SCC54, wherein it has been held that Mandamus cannot be issued to issue a notification to bring into Section 30 of the Advocates Act, 1961 and another decision in Union of India v. Shree Gajanan Maharaj Sansthan [(2002) 5 SCC44, was also considered wherein it was held as follows: ".It, therefore, became necessary to leave the judgment to the executive as to when the law should be brought into force. When enforcement of a provision in a statute is left to the discretion of the Government without laying down any objective standards, no writ of mandamus could be issued directing the Government to consider the question whether the provision should be brought into force and when it can do so. Delay in implementing the will of Parliament may draw adverse criticism but on the data placed before us, we cannot say that the Government is not alive to the problem or is desirous of ignoring the will of Parliament.". The Hon'ble Supreme Court of India, after considering the facts of the case and its earlier decisions held that no mandamus can be issued directing the Central Government to issue notification under Section 1(3) of the Advocates Act, 1961, and however, direction can be issued to the Government to consider within a reasonable time.
8. In the case on hand, the petitioner prays for consideration and disposal of his representation dated 13.08.2013 and 16.08.2013, by and under which, he requires the respondents to take immediate and effective measures and pass the Constitutional (114th Amendment) Bill, 2010, by way of amendment to the Constitution and to notify the same in the manner known to law within the stipulated time. In the light of the ratio laid down in the above cited decisions, this Court is of the view that no Writ of Mandamus can be issued directing the respondents to introduce the above said amendment in Lok Sabha and assuming that the said Bill is going to be introduced in the Lok Sabha, still voting has to take place and the outcome of the same, may not be known and in that event, issuance of a Writ of Mandamus will only be a futile exercise.
9. Hence, for the reasons assigned above, this writ petition is dismissed at the admission stage itself. No costs. Consequently, the connected miscellaneous petition is closed. [R.K.A. ACJ.]. [M.S.N, J.]. 1.10.2013 Index : No Internet : Yes Note to Office: Issue order copy on 7.10.2013 jvm To 1.The Secretary to Government, Union of India, Parliament House, New Delhi-110 001. 2.The Secretary to Government, Ministry of Parliamentary Affairs, No.92, Parliament House, New Delhi. 3.The Secretary to Government, Ministry of Law and Justice, Legislative Department, Dr.Rajendra Prasad Road, Shastri Bhawan, New Delhi THE HON'BLE THE ACTING CHIEF JUSTICE, J., AND M.SATHYANARAYANAN, J.
jvm Pre-Delivery Order in W.P.No.24907 of 2013 1.10.2013