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Split verdict on plea against judge's superannuation

A division bench of the Madras high court has given a split verdict on a petition challenging article 217(3) of the Constitution which states that any dispute regarding the age of a judge shall be decided by the President in consultation with the chief justice of India. The President's decision is final.

While Acting Chief Justice N K Jain dismissed the public interest litigation filed by Voice (consumer care council) as not maintainable, Justice K P Sivasubramaniam said it was maintainable but dismissed it on merits, saying only the Supreme Court can decide on the validity of the article.

After the President determined on February 4 that Justice C Shivappa of the high court had completed 62 years, the age of superannuation, last December itself, a Voice petition challenging the notification was dismissed. Following this, the present petition was filed.

Justice Jain said the President was the only competent authority to determine the age of a high court judge. Jain added that in the present case, the petitioner could not challenge the notification when the aggrieved judge himself had not.

Justice K P Sivasubramaniam said a reading of the article definitely led to the conclusion that the executive had the final say in the matter and that how far the chief justice's consultative authority would prevail in a given case was open to doubt.

The question therefore arises whether such a procedure would be consistent with the basic feature of the independence of judiciary and separation of the judiciary from the executive, he added.

He said that since the highest judicial functionary should have the last word in the appointment of judges, it was inconceivable that the executive should subject a judge to scrutiny.

The executive could have nothing to do with matters pertaining to the judge's conditions of service. The judicial hierarchy should deal with these issues, he said.

He said it was pertinent that control of even the service conditions of the members of the subordinate judiciary lay with the respective high courts and that the control of the state was only symbolical. If that was the case, it was paradoxical to permit the executive to have a final say in a matter concerning judges of the high court, he said.

The validity of article 217(3) had not been called into question before the Supreme Court till now. Therefore, judicial discipline required that it should be for the highest court to go into the question of its validity, he concluded.

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