The independence of the judiciary would not be imperilled when the Parliament, State Legislature and the executive seek service of the Judges sitting or retired to uphold the Constitution and to give effect to the Directive I Principles of the State Policy.
(2001) AIR(Kerala) 140 : (2001) 1 ILR(Kerala) 116 : (2000) 3 KLT 771
KERALA HIGH COURT
DIVISION BENCH
( Before : A.V. Savant, C.J; K.S. Radhakrishnan, J )
THOPPIL SREEKUMAR AND ETC. — Appellant
Vs.
STATE OF KERALA AND OTHERS — Respondent
O.P. No’s. 19447 and 21205 of 2000
Decided on : 06-09-2000
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 8
Constitution of IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more, 1950 – Article 124(4), Article 124(5), Article 125(2), Article 14, Article 193, Article 193A, Article 217, Article 217(1), Article 22, Article 22(4), Article 22(7), Article 221, Article 36, Article 37, Article 38, Article 39, Article 40, Article 41, Article 42, Article 46, Article 48, Article 50, Article 51, Article 59, Article 65
Consumer Protection Act, 1986 – Section 16(1), Section 20(1)
Employees State Insurance Act, 1948 – Section 2(12)
Industrial Disputes Act, 1947 – Section 7
Kerala Lok Ayukta Act, 1999 – Section 3, Section 3(3)
Kerala Panchayat Raj (Amendment) Act, 1999 – Section 271F, Section 271G, Section 271H, Section 271I, Section 271J, Section 271K, Section 271L, Section 271M, Section 271N, Section 271O, Section 271P, Section 271Q, Section 271R
Kerala Panchayat Raj Act, 1994 – Section 271G(9)
Kerala Public Mens Corruption (Investigations and Inquiries) Act, 1987 – Section 4, Section 4(2)
Kerala State Commission for Backward Classes Act, 1993 – Section 3(2)
Narcotic Drugs and Psychotropic Substances ActNarcotic Drugs and Psychotropic Substances Act A substance used to treat moderate to severe pain. Narcotics are like opiates such as morphine and codeine, but are not made from opium. They bind to opioid receptors in the central nervous system. Narcotics are now called opioids.
The Schedule of Narcotic Drugs and Psychotropic Substances Act 2021
Evidentiary value of statement under section 67 of Narcotic Drugs and Psychotropic Substances Act 1985
Controlled Narcotic Drugs, its salts and preparations NDPS Act
How Does Marijuana(Ganja) Affect a Person’s Brain and Life?
List of Indian Acts, 1985 (NDPS) – Section 9
Protection of Human Rights Act, 1993 – Section 21(2), Section 3(2)
Cases Referred
Regional Director, Employees’ State Insurance CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. Vs. High Land Coffee Works of P.F.X. Saldanha and Sons and Another, (1991) 3 JT 325 : (1991) 2 SCALE 221 : (1991) 3 SCC 617
Sukumar Mukherjee Ors. Vs. State of West Bengal and another, AIR 1993 SC 2335 : (1993) 4 JT 308 : (1993) LabIC 2035 : (1994) 1 LLJ 94 : (1993) 3 SCALE 260 : (1993) 3 SCC 723 : (1993) 1 SCR 339 Supp
Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Limited and Another, AIR 1983 SC 239 : (1982) 2 SCALE 1193 : (1983) 1 SCC 147 : (1983) 1 SCR 1000
His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225 : (1973) SCR 1 Supp
Nixon M. Joseph and Another Vs. Union of India (UOI) and Others, AIR 1998 Ker 385
Counsel for Appearing Parties
R. Sivadasan and P. Gopinathan Nair, in O.P. No. 19447 of 2000 and T.P. Kelu Nambiar, M.R. Rajendran Nair and Jayadevan S. Nair, in O.P. No. 21205 of 2000, for the Appellant; M.K. Damodaran, General, P. Sukumaran Nair, N.N. Sugunapalan, Bechu Kurian Thomas, P.C. Sasidharan, S. Parameswaran and Unnikrishnan, for the Respondent
JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
A.V. Savant, C.J.—Heard all the learned Counsel; Sri. Kelu Nambiar, Sri M.R. Rajendran Nair, and Sri. Sivadasan for the Petitioners, Sri. S. Venkita Subramania Iyer amicus curiae, Sri S. Parameswaran for the intervenors supporting the Petitioners; Sri M.K. Damodaran, learned Advocate General for the State of Kerala, Sri P. Sukumaran Nair, Sri P.C. Sasidharan, Sri N.N. Sugunapalan, and Sri Bechu Kurian Thomas for the Respondents.
2. By consent, these petitions were heard together and are disposed of by this common judgment.
3. What is challenged before us is the constitutional validity of some of the provisions of Chapter XXV-B, which has been newly inserted in the Kerala Panchayat Raj Act, 1994, by Kerala Panchayat Raj (Amendment) Act, 1999 (Act No. 13 of 1999), (for short, “Act”) which came into force with effect from 24th March, 1999. Under the newly inserted Chapter XXV. B of the Act, an institution of Ombudsman consisting of seven persons (for short, “Ombudsman”) has been created %The object of constituting the said Ombudsman is “to conduct a de-tailed enquiry regarding any proceedings of the Local Self Governing Bodies and the public servants holding office under it, concerning corruption, mal-administration or defects in the administration and settle such complaints u/s 271Q of the Act”. In the newly inserted Chapter XXV. B under the heading “Ombudsman for the Local Self Governing Bodies”, Section 271F, G, H, I, J, K, L, M, N, O, P, Q and R have been incorporated dealing with several aspects of Om-budsman for the local self governing bodies. The newly inserted provisions deal with the following aspects: Section 27IF: Definitions; Section 271G: Formation, term of office and conditions of service of the Ombudsman; Section 271H: Removal of a Member; Section 271- I: Employees of Ombudsman; Section 271J: Functions of Ombudsman; Section 27 IK: Powers of Ombudsman; Section 271L: Service of Government Departments; Section 271M: De- tailed enquiry; Section 27 IN: Enquiry trial; Section 271O: Cases now pending to be transferred to the Ombudsman; Section 27IP: Commencement of prosecution; Section 271Q: Disposal of complaints; and Section 271R: Procedure to be decided.
4. Counsel for the Petitioners have raised five contentions. The first is that, conferring the status of a Judge of the High Court on all the seven members of the Ombudsman, by virtue of Section 271G(9) was wholly arbitrary and impermissible and was contrary to the provisions of Articles 217 and 221 of the Constitution of India, dealing with the appointment and conditions of office of Judge of a High Court and salaries etc. of the Judges of the High Court. In this behalf, it is contended that the State Legislature lacks legislative competence in so far as it has purported to confer the status of a High Court Judge on all the seven members of the Ombudsman constituted u/s 271G of the Act. Counsel appearing for the Petitioners fairly stated that, while there could be no objection to providing the salary, allowances and pension, payable to the Judges of the High Court, to the members of the Ombudsman, conferring the status on all of them equivalent to that of a Judge of a High Court is wholly impermissible in the scheme of the constitutional provisions. Hence, the validity of Clause (9) of Section 271G of the Act to the extent of conferring the status equivalent to that of Judge of High Court has been challenged Section 271-G reads as under:
271G: Formation, term of office and conditions of service of the Ombudsman:
(1) The Government shall, in accordance with the conditions of this Act, form an authority named “Ombudsman” through gazette notification with effect from the date specified in it for conducting detailed and general enquiry regarding any proceeding of the local self governing bodies and the public servants holding office under it, that contains corruption, mal-administration or defects in their administration and to settle such complaints u/s 271Q.
(2)The Governor shall, on the advice given by the State Chief Minister, apoint the members of the Ombudsman, and its Chairman shall be the member mentioned in Sub-section (3) who is or was a Judge of the High Court.
(3)Of the persons appointed as members in the Ombudsman.-
(a) one shall be a person who is or was a Judge of the High Court.
(b) two shall be persons holding the post of a District Judge in the judicial department.
(c) two shall be officers not below the rank of a Government Secretary.
(d) two shall be ‘respectable and honest’ persons engaged in social service.
But for appointing a person who is a Judge of the High Court or who is a District Judge as members of the Ombudsman, permission of the Chief Justice of High Court of Kerala shall be obtained and for appointing persons engaged in social service as members, the leader of the opposition in the legislative assembly of Kerala shall be consulted.
(4) A person appointed as member in the Ombudsman for the local self governing body shall, before assuming his office make and subscribe an oath or affirmation in the form given below before the Governor or before the person appointed by him for this purpose.
I, AB having been appointed as a member in the Ombudsman for local self governing bodies as per the Kerala Panchayat Raj Act, 1994 do swear in the name of GodGod People in most cultures believe in the existence of supernatural beings and other supernatural concepts. God is attributed to both anthropomorphic properties (“listens to prayers”) and non-anthropomorphic properties (“knows everything”). Conceptualizing God is associated with willingness to get the COVID-19 vaccine or Vaccine hesitancy. Pope requested people not to practice “Jesus is my vaccine”. For the Jewish, family (Avestan universal) god became national God: I am the God of Abraham, and the God of Isaac, and the God of Jacob,”(ex 3:15). See Ishwar. /solemnly affirm, that I will have true faithFaith πίστει. and allegiance to the Constitution of India and that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour or affection or illwill.
(5)A member of the Ombudsman shall not be a member of the Parliament or the State Legislative Assembly and shall not hold any honorary post or any office of profit (except the Post of being a member) or shall not conduct any business or engage in any profession and accordingly a person appointed as member, who is not a High Court Judge or District Judge or a Government Secretary shall before assuming office,-
(a) if he is a member of the Parliament or any State Legislative Assembly or any local self governing body, resign such membership; or
(b) if he holds any honorary post or any office of profit, resign from such post; or
(c) if he is conducting any business; resign from conducting and supervising (except for discarding the ownership) such business or
(d) if he is engaged in any employment, stop attending to the same.
(6)A person shall not be eligible to be appointed as a member in Ombudsman if he has been a member of a political party-
(a) immediately before the commencement of the Act, if it is the first appointment after the commencement of this Act.
(b)within a period of five years immediately before the date on which the vacancy arose, if the appointment is a subsequent one.
(7) A person appointed as a member shall hold the office for a term of five years from the date on which he enters upon his office or until he attains the age of 65 years, whichever is earlier. Provided that-
(a) a member may by writing under his hand addressed to the Governor, resign his office and
(b) a member may be removed from his office in the manner provided in Section 271H.
(8)A person who holds the office as a member shall on the expiration of his term of office, be ineligible for re-appointment to that office, or for subsequent appointment to any other office Of profit under the Government of Kerala or any other Corporation, Company, Society or University under the control of the Government of Kerala.
Explanation:- Oh the expiration of the term of office as such a member, if a person automatically re-assumes his post as High Court Judge, District Judge in the Judicial Department, or Government Secretary, it cannot be considered as a subsequent appointment to an office of profit as referred to in this Sub-section.
(9)Amember shall have the status equivalent to that of a judge of the High Court of Kerala and shall be eligible for the same salary, allowance and position and the same conditions of service shall be applicable.
Provided that neither the allowance of a member nor other conditions of service shall be varied to his disadvantage after his appointment.
(10)Any vacancy in the post of the Chairman or member of Ombudsman does not make the proceedings of Ombudsman invalid.
(11)In the absence of the Chairman, the senior member among the members appointed from among the District Judges.
shall exercise the powers and perform the duties of the Chairman as long as the Chairman is absent.
5. The second contention is regarding the removal of a member of the Ombudsman as provided u/s 271H(1), where the same conditions as are applicable for the removal of a Judge of the High Court, as per the provisions of the Constitution of India, have been made applicable for removal of a member of Ombudsman, who was appointed from amongst Judges of the High Court. Challenge to Clause (1) of Section 271H is on the ground that the legislature has treated unequals as equals and has thus violated the mandate of Article 14 of the Constitution. Section 271H reads as under:
271H. REMOVAL OF A MEMBER
1. The same conditions that are applicable for the removal of a High Court Judge as per the provisions of the Constitution of India shall be for the removal of a member of Ombudsman who was appointed from among persons employed as High Court Judge.
2. For removing any other member on the basis of proven misconduct or inefficiency, majority of the total members of the Assembly shall be present and shall participate in the voting and such a member shall not be removed from the office without an order passed by the Governor on the representation submitted to him in the same session and supported by not less than 2/3rd of the members so voting.
3. The procedure for submitting a representation as per Sub-section (2) and for enquiring and taking evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 regarding the misconduct or inefficiency of a member shall be similar to the one provided in Judges Inquiry Act, 1968 (Central Act 51 of 1968) and the provisions of the Act shall be applicable with necessary modifications in the removal of a member, just as they are applicable in the removal of a Judge.
6. The challenge regarding Section 271H(1) is in respect of persons appointed under Clause (3)(a) of Section 271G, mentioned above. In so far as a sitting Judge of a High Court is to be appointed as Chairman of the Ombudsman, three contingencies were pointed out, viz., (i) a sitting Judge appointed for a period of five years after which he ceases to be a Chairman of Ombudsman but continues to be a Judge of the High Court till he attains the age of 62 years or otherwise ceases to be a Judge as per Article 217(1) of the Constitution; (ii) a sitting Judge of the High Court appointed as Chairman of the Ombudsman and thereafter ceases to be a Judge of the High Court, but continues to be the Chairman of Ombudsman; and (iii) a retired Judge of the High Court appointed as Chairman of Ombudsman. The grievance. is that in case of removal of the Chairman falling in any of the three categories mentioned above, the same procedure as is applicable for removal of a Judge of the High Court under Article 217(1) proviso (b) r/w Article 124(4) of the Constitution has been made applicable. Article 217(1) proviso, contemplates three different modes in which a Judge of the High Court may cease to hold office; (a) resignation; (b) removal and (c) elevation to Supreme Court or transfer to another High Court. These three modes are apart from the mode of superannuation on attaining the age of 62 years provided in Article 217(1) itself. Sub-clause (b) dealing with removal makes a reference to Article 124(4) dealing with the manner in which a Judge of the Supreme Court can be removed, on the ground of proved misbehaviour or incapacity. Clause (5) of Article 124 makes a reference to Parliament regulating the procedure for removal of a Judge under Article 124(4) which, in turn, takes us to the Judges (Inquiry) Act, 1968. The contention of the Petitioners is that, providing the same procedure of removal as is contemplated under Article 217(l)(b) r/w Article 124(4) for removal of a person appointed as a member of Ombudsman, if he was appointed while he was a Judge of a High Court, is wholly arbitrary and hit by Article 14 of the Constitution.
7. The third contention is in respect of Section 271H(3) of the Act. Section 271H, dealing with removal of a Member is reproduced above. What is contended before us is that the State Legislature cannot make the Judges (Inquiry) Act, 1968 applicable for the removal of a Member of the Ombudsman, who is not a Judge of the High Court at the timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) of his removal. The Judges (Inquiry) Act is a parliamentary enactment. It is applicable only to the Judges of the Supreme Court and the High Courts. The State Legislature, therefore, has no legislative competence to provide, as has been sought to be done by Section 271H(3), that for removal of other Members of the Ombudsman (other than a High Court Judge), the same procedure, as provided under the Judges (Inquiry) Act, will be applicable. This would lead to very strange results, say the Petitioners. The question of removal of a District Judge falling u/s 271G(3)(b) or a Secretary to Government falling u/s 271G(3)(c) or removal of two respectable and honest persons falling u/s 271G(3)(d) will have to be dealt with in the like manner as that of the removal of a Judge of the Supreme Court or of the High Court under the Judges (Inquiry) Act, 1968. The challenge, therefore, is on the ground of lack of legislative competence and arbitrariness.
8. We will first dispose of these three contentions before we go to the two subsidiary contentions. Sri. Damodaran, the learned Advocate General, invited our attention to the report of Dr. Satya Brata Sen Committee (for short, “Sen Committee Report”) which was constituted to study the aspect of de-centralisation of powers. The Committee constituted by the State Government submitted its report on 23rd December, 1997. Our attention was invited to several enactments containing similar provisions, viz., (i) Consumer Protection Act, 1986 [Act No. 68 of 1986]; (ii) Kerala Public Men’s Corruption (Investigations and Inquiries) Act, 1987; (iii) Protection of Human Rights Act, 1993; (iv) Kerala State Commission for Backward Classes Act, 1993; and (v) Kerala Lok Ayukta Act, 1999.
9. On the first question of conferring the status of a High Court Judge on all the seven members of the Ombudsman, we must make a reference to the law laid down by the Apex Court in T.N. Seshan Chief Election Commissioner of India v. Union of India with Cho S. Ramaswamy v. Union of India (1995) 4 SCC 611: (1995 AIR SCW 3341), (for short, T.N. Seshan’s case”] and in particular to the observations made in Para 34 at page 639-640; (of SCC): (AIR SCW 3361) which are as under:
34. One of the matters to which we must advert is the question of the status of an individual whose conditions of service are akin to those of the Judges of the Supreme Court. This seems necessary in view of the reliance placed by the CEC on this aspect to support his case. In the instant case some of the service conditions of the CEC are akin to those of the Supreme Court Judges, namley, (i) the provision that he can be removed from office in like manner and on like grounds as a Judge of the Supreme Court and (ii) his conditions of service shall not be varied to his disadvantage after appointment. So far as the first is concerned instead of repeating the provisions of Article 124(4), the draftsman has incorporated the same by reference. The second provision is similar to the proviso to Article 125(2). But does that confer the status of a Supreme Court on the CEC? It appears from the D.O. No. 193/34/32 dated 23-7-1992 addressed to the then Home Secretary, Shri Godbole, the CEC had suggested that the position of the CEC in the Warrant of Precedence needed reconsideration. This issue he seems to have raised in his letter to the Prime Minister in December 1991. It becomes clear from Shri Godbole’s reply dated 25-7-1992, that the CEC desired that he be placed at No. 9 in the Warrant of Precedence at which position the Judges of the Supreme Court figured. It appears from Shri Godbole’s reply that the proposal was considered but it was decided to maintain the CEC’s position at No. 11 along with the Comptroller and Auditor General of India and the Attorney General of India. However, during the course of the hearing of these petitions it was stated that the CEC and the Comptroller and Auditor General of India were thereafter placed at No. 9-A. At our request the learned Attorney General placed before us the revised Warrant of Precedence which did reveal that the CEC had climbed to position No. 9-A along with the Comptroller and Auditor General of India. Maintenance of the status of Judges of the Supreme Court and the High Courts is highly desirable in the nationale interest. We mention this because, of late, we find that even personnel belonging to other for a claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. equation with High Court and Supreme Court Judges merely because certain jurisdictions earlier exercised by those Courts are transferred to them not realising the distinction between constitutional and statutory functionaries. We would like to impress on the Government that it should not confer equivalence or interference with the Warrant of Precedence, if it is likely to affect the position of High Court, however pressing the demand maybe, without first seeking the views of the Chief Justice of India. We may add that Mr. G. Ramaswamy. learned Counsel for the CEC. frankly conceded that the CEC could not legitimately claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. to be equated with Supreme Court Judges. We do hope that the Government will take note of this and do the needful.
(Emphasis ours)
The relevant observations in Para 34 of the judgment which we have underlined make it clear that it is not permissible to confer the status of a Judge of the High Court or the Supreme Court on personnel belonging to other for a without first seeking the views of the Honourable the Chief Justice of India. It is true that this has been said is respect of an executive action namely, the Warrant of Precedence, which was the issue before the Apex Court in T.N. Seshan’s case ( AIR 1995 SCW 3341). However, we fail to understand how the approach could be different when we are considering the provisions of Section 271G(9) in so far as the question of conferring the status equivalent to that of a Judge of the High Court on all the seven members of the Ombudsman is concerned.
10. On a query by the Court, the learned Advocate General fairly stated that in the present case, the views of the Honourable the Chief Justice of India were not sought at any time, before or after conferring the status of a Judge of the High Court on all the seven members of the Ombudsman. He, however, sought time to obtain instructions on this aspect of the matter as well as the other two contentions mentioned above. He has filed a statement dated 27th August, 2000 duly signed by Sri S.M. Vijayanand, Secretary, Local Self Government Department, Government of Kerala, which can putan end to the controversy regarding the three contentions mentioned above. In sub- stance, the State Government has conceded to the challenges raised on the three points mentioned above.
11.A perusal of the statement of Sri. Vijayanand would show that, on the first contention regarding conferring of status of a High Court Judge on all the seven members of the Ombudsman, the State Government is agreeable to initiate appropriate steps, including bringing a suitable legislation and restricting the benefit conferred by Clause (9) of Src. 271G only in so far as it concerns the salary, allowances and pension and the conditions of service as applicable to a serving Judge of the High Court. The reference to status of a Judge of the High Court is to be deleted in the proposed amendment. Section 271G(9) as it now stands, reads as under:
A member of the Ombudsman shall have the status equal to that of a Judge of the High Court of Kerala and shall be entitled to get the same salary, allowances and pension and the same conditions of service shall be made applicable.
(Emphasis ours)
Learned Advocate General has fairly stated that the State Government will take necessary steps by way of legislation to substitute the above provision by the following:
Section 271-G(9): A member shall be entitled for the same salary, allowances and pension and the same conditions of service as applicable to a serving Judge of the High Court.
The statement made by the learned Advocate General is accepted.
12. In the light of the observations of the Apex Court in T.N. Seshan’s case (AIR 1995 SCW 3341) (supra), we are of the view that conferring the status of a Judge of the High Court on all the members of the Ombudsman, as has been done by the opening words of Sub-section (9) of Section 271G, is wholly impermissible in the scheme of the constitutional provisions like Article 217 dealing with the appointment of a Judge of the High Court. Under Clause (1) of Article 217, every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. Such a person is to hold office until he attains the age of 62 years. In our view, it is only if a person is appointed in the manner indicated in Clause (1) of Article 217 that he can enjoy the status equal to that of a Judge of the High Court. Admittedly, as far as the Ombudsman is concerned, only a person falling u/s 271G(3)(a), in case he is a sitting Judge of the High Court, can be said to have been appointed after following the elaborate procedure laid down in Article 217(1). The appointment of the Ombudsman u/s 271G(2) is to be made by the Governor of the State on the advice given by the Chief Minister. Apart from the Judge of a High Court falling under Sub-section (3)(a) of Section 271G, there are two other persons under Sub-section (3)(b) who can be appointed as members, if they have held the post of a District Judge of that State. Under Sub-section (3)(c), two shall be officers not below the rank of a Government Secretary. Under Sub-section (3)(d), two shall be respectable and honest persons engaged in social service. If that be the composition of the seven member Ombudsman, it is not possible to accept the claim of the Respondents that all of them must have the status equal to that of a Judge of the High Court of Kerala. In our view, conferring such a status equal to that of a Judge of the High Court of Kerala on all the seven members comprising the Ombudsman will tantamount to treating unequals as equals and is, therefore, hit by the provisions of Article 14 of the Constitution of India. To the extent to which every member of the Ombudsman has been afforded the status of the Judge of the High Court of Kerala, Section 271(G)(9) will have to be struck down as violative of provisions of Article 14 of the Constitution.
13. The view that we have taken is now fortified by the stand taken by the learned Advocate General on the basis of the statement of Sri. Vijayanand, which is summarised in Para 11 above. It is however true that, a statement made by the Secretary cannot speak for the Parliament and the Parliament can never be before the Court. Once a statute leaves the Parliament House, the Court is the only authentic voice which may echo or interpret the Parliament’s words. The executive Government may place before the Court their understanding of what Parliament has said or intended to say or what they think was Parliament’s object and all the facts and circumstances which in their view led to the legislation. But, when the executive does this, it does not speak for Parliament. No act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive government. What the executive thinks cannot bind the Parliament. It is equally well settled that the validity of legislation is not to be judged merely by the affidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find. These princples are enunciated by the Apex Court in Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Limited and Another, . It would be useful to reproduce Para 26 of the judgment at page 254, as under:
26. Shri Ashok Sen drew pointed attention to the earlier affidavits filed on behalf of v. State of Bharat Coking Coal Company and commented severally on the alleged contradictory reasons given therein for the exclusion of certain coke oven plants from the Coking Coal Mines (Nationalisation) Act. But, in the ultimate analysis, we are not really to, concern ourselves with the hollowness or the self-condemnatory nature of the statements made in the affidavits filed by the Respondents, to justify and sustain the legislation. The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statements. They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said that it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court’s is the only authentic voice which may echo (interpret) the Parliament. This the Court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the Court their understanding of what Parliament has said or intended to say or what they think was Parliament’s object and all the facts and circumstances which in their view led to the legislation.’ When they do so, they do not speak for the Parliament. No Act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive government or because their (Government’s) spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do not and they cannot bind Parliament. Validity of legislation is not be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said. We have mentioned the facts as found by us and we do not think that there has been any infringement of the right guaranteed by Article 14.
14. As we have already indicated, independent of the statement made by the learned Advocate General on the basis of the statement of Sri. Vijayanand, we have come to the conclusion that, the relevant part of Section 271G(9), in so far as it confers the status on all the members of the Ombudsman equal to that of a Judge of the High Court of Kerala, is violative of the mandate of Article 14 of the Constitution. Coupled with the same, the statement of Sri. Vijayanand makes it clear that the situation needs to be remedied immediately. Needless to say that, it would be for the legislature to bring in appropriate legislation to that effect. We may only indicate that the statement of Sri. Vijayanand reflects the correct approach. In the result, the first contention of the Petitioner must be upheld. Hence, the words “shall have the status equivalent to that of a Judge of High Court of Kerala and” appearing at the beginning of Section 271G(9) of the Kerala Panchayat Raj Act, 1994 are declared as unconstitutional being violative of the mandate of Article 14 of the Constitution. If these words are excluded, Section 271G(9) would read as under, as stated by Sri. Vijayanand:
Section 271-G(9): A member shall be entitled for the same salary, allowance and pension and the same conditions of service as applicable to a serving Judge of the High Court.
The first contention is, therefore, upheld.
15. The statement of Sri. Vijayanand also concedes to the second challenge in respect of Section 271H(1). We have pointed out, in para 6 above, the three contingencies regarding the appointment of a Member falling u/s 271G(3)(a) viz., a person who is or was a Judge of the High Court. The three contingencies are: (i) a sitting Judge appointed for a period of five years after which he ceases to be a Chairman of Ombudsman but continues to be a Judge of the High Court till he attains the age of 62 years or otherwise ceases to be a Judge as per Article 217(1) of the Constitution; (ii) a sitting Judge of the High Court appointed as Chairman of the Ombudsman and thereafter ceases to be a Judge of the High Court, but continues to be the Chairman of Ombudsman; and (iii) a retired Judge of the High Court appointed as Chairman of Ombudsman. The challenge before us was on the ground that all the three contingencies arising under Sub-clause (a) need different treatment since the facts would differ and unequals have been treated as equals by making the same procedure applicable for the removal of a person, who is or was a Judge of the High Court and was appointed as a Member of the Ombudsman u/s 271G(3)(a). It is not possible to accept the Respondents’ contention that all the three contingencies/situations mentioned above can be treated in a like manner. In our view, treating these three situations in an identical manner, clearly smacks of arbitrariness and is, therefore, hit by the man date of Article 14 of the Constitution.
16. In his statement, Sri. Vijayanand has stated that the State Government proposes to take steps, if necessary by suitable legislation, and restrict the said provision in Section 271H(1) only if it relates to the removal of a member if he conitnues to be a Judge of the High Court at the time of his removal as a Member of the Ombudsman. Section 27H(1), as it stands today, reads as under:
Section 271-H(1): The conditions applicable under the Constitution of India for the; removal of a High Court Judge shall mutandis (sic-mutatis) mutandis apply in relation to the removal of a Member of Ombudsman appointed from among the Judges of the High Court.
(Emphasis ours)
The statement of Sri. Vijayanand makes it clear that the proposed change will be to the following effect:
Section 271-Hd): The conditions applicable under the Constitution of India for removal of a High Court Judge shall mutandis (sic mutatis) mutandis apply in relation to the removal of a Member of Ombudsman appointed from among the Judges of the High Court, if he continues to be a Judge of the High Court at the time of his removal from the Membership of Ombudsman.
(Emphasis ours)
We accept the statement made by the learned Advocate General on the basis of the above statement of Sri. Vijayanand. Oh the analogy of the reasoning stated in paras 13 and 14 above, the Petitioners succeed on the second contention as well.
17. Even in respect of the third contention regarding Section 271H(3) making the procedure under the Judges (Inquiry) Act, 1968 applicable for removal of other Members of the Ombudsman, the statement of Sri. Vijayanand concedes the challenge. Section 271H(3) has been reproduced above. The statement is to the following effect:
The procedure prescribed under the Judges (Inquiry) Act, 1968 for removal of a Judge invites interalia, the junction of the Parliament of India and the Speaker and necessitates the availing of the services of a sitting Judge of the Supreme Court, one from among the Chief Justice of High Courts and a lead ingjurist and, such other cumbersome proceedings which the State Legislature may not be competent to prescribe or command. In fact, what has been intended by the Section is that the procedure similar to the one prescribed under the Judges (Inquiry) Act, 1968 should be adopted by appropriate legislation. It is submitted that such legislation will be brought about at the earliest.
It is clear from the above statement that for the removal of members of the Ombudsman other than a High Court Judge, what the Legislature really intended was not to make the procedure prescribed under the Judges (Inquiry) Act, 1968 applicable, but similar procedure to be laid down by appropriate legislation is to be made applicable. Thus, it has now been clarified that for the removal of a member of the Ombudsman appointed u/s 271G(3)(a), namely a Judge of the High Court, the procedure applicable for the removal of a Judge of the High Court as laid down in the Constitution will be applicable. However, for the removal of other members of the Ombudsman falling under Sub-clause (b), (c), or (d) of Section 271G(3), suitable legislation would be brought to provide for the procedure which will be similar to the one prescribed under the Judges (Inquiry) Act, 1968. We accept the statement made by the learned Advocate General on the basis of the above statement. Hence, the Petitioners succeed on the third contention as well on the same analogy as indicated in paras 13 and 14 above.
18. We wish to make it clear that on the above three contentions, we were inclined to accept the Petitioners’ challenge on the pleadings before us. The matter was adjourned to enable the learned Advocate General to obtain instructions, as stated in para 10 above and the statement of Sri. Vijayanand was filed, which only fortified our views on the three contentions mentioned above. We have referred to the law laid down by the Apex Court in the case of Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Limited and Another, Bearing this in mind, we have no hesitation in accepting the three contentions as mentioned above.
19. The fourth contention is that the appointment of as many as seven members in the Ombudsman is wholly unnecessary and will put an unbearable burden on the State Exchequer. This amounts to excessive spending by the State and such excessive indulgence results in arbitrary waste beyond the limits of rationality as envisaged in the Constitutional scheme. It is further contended that appointment of a seven member Ombudsman is far in excess of the actual requirement of the institution. The reply to this contention is to be found in the counter-affidavit filed by Smt. Leelakumari, B., Additional Secretary to Government, wherein it has been stated that the” composition of seven member Ombudsman was made on the basis of the recommendation of the Sen Committee..
20. We may, in this behalf, point out that there are 991 Grama Panchayats, 152 Block Panchayats, 14 District Panchayats, 55 Municipalities and three Corporations in the State. Thus, there are as many as 1215 local self governing bodies, the working of which is to be overseen by the Ombudsman which has jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. to conduct a detailed enquiry regarding any proceedings of the said local self governing bodies and the public servants serving in them, in respect of corruption, mal-administration or defects in the administration and settle the complaints u/s 271Q.
21. We will now reproduce the relevant portion of the report of the Sen Committee under sub-heading, “Ombudsman” in para- graphs 3.33.1 to 3.33.5. It reads as under:
3.33.1 While tribunals would concentrate on appeals from decisions taken in exercise of regulatory authority, there is need for another institution to investigate the field of administrative activity, i.e. to investigate independently complaints from individuals and groups and even the Government relating to defective administration by the local bodies. Here the Ombudsman system would be very appropriate. It is a cost free mechanism for a complainant and is essentially investigative in character which is often conducted in private according to appropriate principles decided by the Ombudsman itself. Ombudsman can go into the reasonableness of a decision. Ombudsman can follow up complaints which relate to action or inaction. It can also take up matters relating to internal administration which need not necessarily affect any Individual’s interest. The Ombudsman system goes beyond the judicial process, as. after redressal of a grievance it can choose to monitor the behaviour of the local authority concerned and it can point out systemic deficiencies and suggest improvements..
3.33.2 In India, an institution to check corruption was recommended by the Administrative Reforms Commission based on which the Lokpal Bill was published in 1968 by the Government of India. Lok Ayuktas exist in several States in the country. The Government of Kerala has recently announced its intention to set up a Lok Ayukta. So the question may arise whether the Lok Ayukta should not take care of the LSG Is as well. Hence it is clarified that the Ombudsman system envisaged by the Committee on Decentralisation of Powers is not a parallel institution to the proposed Lok Ayukta. Lok Ayuktas focus on corruption, mostly in punishing corruption which can be only after the event. Of course this has the deterrent effect as well. But Ombudsman would focus on the process of administration continuously and wil be empowered to check wrong doings at the initial stages itself. Of course unlike the traditional Ombudsman system which gains its power from the moralMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality. authority and respect bestowed on it. the system suggested for the local bodies would have more teeth in enforcing its decisions, The system can take care of the ordinary grievances of the citizen which often relates to disregard of the due process in rendering a service or deciding on a claim. At the same time, it can probe into have the advantage of easy and almost informal access to the lay public. Another advantage special to the Ombudsman is the inherent power to observe the functioning of administration and suggest reforms. Thus it is a far more comprehensive institution that the Lok Ayuktas and needs to be set up for covering only the LSG Is in recognition of the distinctive character of the functioning of LSG Is, The system may be headed by a judicial officer of the rank of a High Court Judge and assisted by two judicial officers of the rank of District. Judges, two officers with administrative experience of the rank of Secretary to Government and two eminent public men whose credibility is beyond doubt. For selecting public men, it is suggested that the Government should get the concurrence in writing of the Leader of Opposition in the Legislative Assembly so that the office is kept beyond political differences.
3.33.3 The committee recommends the setting up of an Ombudsman system in Kerala to cover all the LSG Is which has to be headed by a judicial officer of the rank of a High Court Judge and assisted by two judicial officers of the rank of District Judges, two officers with administrative experience of the rank of Secretary to Government and two eminent public men whose credibility is beyond doubt. For selecting public men it is suggested that the Government should get the concurrence in writing of the Leader of Opposition in the Legislative Assembly so that the office is kept beyond political differences.
3.33.4 The Ombudsman can act on complaints from elected members or citizens or on reference by audit authorities or Government or initiate proceedings suo motu. It should have the power to pass awards to compensate losses sustained by LSG Is or individuals and to redress grievances. Where the alleged irregularity is found to be a criminal offences, the Ombudsman may refer such cases to the Courts. For effective functioning the Ombudsman needs to have the power to conduct inquiries through any governmental system using any official. This should be on the lines of the Election CommissionElection Commission The Electoral Commission is the independent body which oversees elections and regulates political finance in the UK. Voters in England, Scotland and Wales now need to show photo ID to vote at polling stations Federal Election Commission. using officials for conducting elections. It should be clearly stipulated that while carrying out the directions of the Ombudsman all officials and agencies would be deemed to be working under the Ombudsman and any dereliction of duty would be treated as contempt of CourtContempt of Court Failure to obey a court order. A disregard of, or disobedience to, the rules or orders of a judicial body or an interruption of its proceedings by disorderly behavior or insolent language. Civil Contempt: Noncompliance with a court order or rule that affects another person; punishment is administered to compel compliance..
3.33.5 In sum it is evident that the two institutions recommended to be created, would go a long way in upholding the rights of the citizen even while protecting the autonomy of the elected body against possible intrusion by the executive. The quasi-judicial bodies would provide the new checks and balances required to make the system work with greater efficiency. Two new chapters are proposed to be introduced in the Act with Sections 271F to 271R and Sections 271S to 271U respectively.
(Emphasis ours)
The above recommendations make it clear that the Ombudsman is visualised as a far more comprehensive institution than Lok Ayukta and the Sen Committee itself had recommended the composition of seven, viz. headed by a judicial officer of the rank of a High Court Judge, assisted by two judicial officers of the rank of District Judges, two officers with administrative experience of the rank of Secretary to Government and two eminent public men whose credibility is beyond doubt.
22. That apart, Mr. Rajendran Nair, the learned Counsel, who raised this contention, frankly stated that he could not give any details about the alleged disproportionate expenditure which is likely to be incurred on account of the Ombudsman comprising seven members. There are no pleadings, no details, no statistics of the expenditure involved on this count. In our view, whether the institution of Ombudsman should consist of seven members or less is not a matter for this Court to decide. It is a matter within the realm of the Legislature’s policy making depending upon the need for a particular number of members comprising the said institution. It is not as if the Legislature has acted arbitrarily in appointing seven members. The expert committee on decentralisation of powers – Sen Committee, has submitted a comprehensive report recommending the composition of seven members. We have reproduced the relevant recommendations in paragraph 21 above.
23. In this view of the matter, it is not possible to accept the fourth contention in respect of the alleged disproportionate expenditure merely because of the institution comprising seven members. It is not possible to strike down a legislation merely because, though the legislation is valid, it is likely to be used for an unauthorised or a political purpose as contended by the Petitioners. In this behalf, a reference may be made to the observations of the Apex Court in para 38 of the judgment in Sukumar Mukherjee Ors. Vs. State of West Bengal and another, , which is as under:
38. It is also incorrect to contend that the said provision is bad because it is likely to be utilised for victimisation. If atransferis motivated by a desire to victimise any person, the specific transfer can always be challenged in a Court of law. However, no provision can be struck down on the ground that although it is valid, it is likely to be used for an unauthorised purpose.
(Emphasis ours)
In view of the above, the fourth contention is rejected.
24. The fifth and the last contention is that if Judges of the High Court accept appointment as Chairman of the institution of Ombudsman, it is likely to affect the independence of judiciary. The argument is that, a Judge of the High Court accepting a post retirement benefit must always be viewed with suspicion and this would necessarily result in the independence of judiciary being eroded. We must hasten to add, in fairness to all the learned Counsel that, none of them has made any allegation nor did they suggest anything against the second Respondent, who when appointed, was a Judge of this Court. The second Respondent was sworn in on 23rd June, 2000 as the Chairman of the Ombudsman and he retired as Judge of this Court on 4th July, 2000.
25. The reply of the learned Advocate General and other Respondents is that, appointing retired Judges of the High Court and even of the Supreme Court on various Commissions, Tribunals etc. is an accepted notion in our country. Sri. Damodaran invited our attention to the five statutes mentioned above namely, (i) Consumer Protection Act, 1986; (ii) Kerala Public Men’s Corruption (InvestigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. and Inquiries) Act, 1987; (iii) Protection of Human Rights Act, 1993; (iv) Kerala State Commission for Backward Classes Act, 1993; and (iv) Kerala Lok Ayukta Act, 1999. In each of these statutes, the person appointed as Chairman or President is either a retired Judge or Chief Justice of a High Court and, in some cases, even a Judge of the Supreme Court or a retired Chief Justice of India. In the Consumer Protection Act, 1986, the State Commission is to be headed by a President, who is or has been a Judge of a High Court, as provided u/s 16(l)(a) of that Act. u/s 20(l)(a) of that Act, the National Commission is to be headed by a person, who is or has been a Judge of the Supreme Court. In the Kerala Public Men’s Corruption (Investigation and Inquiries) Act, 1987 (since repealed) Section 4 provided for the constitution of the Commission. Section 4(2) contemplated the Chairman of the Commission being a person who holds or has held the office as Judge of the Supreme Court or of a High Court. Under the Protection of Human Rights Act, 1993, the Chairperson of the National Human Rights Commission has to be a person who has been a Chief Justice of the Supreme Court. Section 3(2) of that Act provides that the Commission shall consist of- (a) a Chairperson who has been a Chief Justice of the Supreme Court; (b) one Member who is, or has been, a Judge of the Supreme Court; (c) one Member who is, or has been, the Chief Justice of a High Court; (d) two members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights. Similarly, u/s 21(2) of that Act, State Human Rights Commission shall consist of- (a) a Chairperson who has been a Chief Justice of a High Court; (b) one Member who is, or has been, a Judge of a High Court; (c) one Member who is or has been, a district Judge in that State; (d) two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights. Under the Kerala State Commission for Backward Classes Act, 1993, Section 3(2)(a) provides that the Commission shall consist of a Chairperson who is, or has been, a Judge of the Supreme Court or of a High Court. Under the Kerala Lok Ayukta Act, 1999, Section 3 provides that a Lok Ayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court. u/s 3(3), an Upa-Lok Ayukta has to be a person who has held the post of a Judge of a High Court.
26. A perusal of the above provisions in five different enactments would make it clear that our Legislatures have followed the practice of appointing retired Judges belonging to the higher judiciary to head a Commission or Tribunal or be Member thereof. The Respondents contend that, it is with a view to inspiring public confidence in the working of such institutions/Commissions /Tribunals that the services of siting/retired Judges belonging to higher judiciary are requisitioned. It is common ground that Judges bring to bear upon their duties as Chairpersons, Presidents or Members of these fora, the training and expertise acquired by them over a period of years which ensures a judicious approach in the redressal of grievances before these fora. It is, therefore, difficult to accept the Petitioners contention that merely because a sitting or a retired Judge belonging to the higher judiciary is appointed on a Commission or a Tribunal or as Chairman of the Ombudsman, it would result in the independence of the judiciary being eroded and, hence, such a provision must be struck down as unconstitutional.
27. On the question of declaring a provision in a statute as unconstitutional, the learned Advocate General invited our attention to a passage from Justice G.P. Singh’s Interpretation of Statutes, 7th Edn., Page 33. Under the heading: “State to be construed to make it effective and workable” it is stated as under:
The Courts strongly lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative “on the principle ex- ; pressed in the maxim: ut res magis valeat I quam pereat”. It is an application of this principle that Courts while pronouncing upon the constitutionality of a statute start with a presumptionPresumption An inference of the truth or falsehood of a proposition or fact that stands until rebutted by evidence to the contrary. in favour of constitutionality and prefer a construction which keeps the statute within the competence of the Legislature. The importance of the principle can be judged from the fact that there is hardly any reported decision, where a state may have been declared void for sheer vagueness, although theoretically it may be possible to reach such a conclusion in case of “absolute intractability of the language used”, or when “it is impossible to resolve the ambiguity”, i.e., when the language is absolutely meaningless. As laid down by FAREWELL, J. “unless the words were so absolutely senseless that I, could do nothing at all with them, I should be bound to find some meaning, and not to declare them void for uncertainty”. Lord Denning approving FAREWELL, J., stated the principle thus: “But when a statute has some meaning even though it is obscure, or seveal meanings; even though it is little to choose between them, the Courts have to say what meaning the statute is to bear, rather than reject it as a nullity”. And it was said by LORD DUNEDIN: “It is our duty to make what we can of statutes, knowing that they are meant to be operative, and not inept, and nothing short of impossibility should in my judgment allow a Judge to declare a statute unworkable”. The principle was reiterated by him in a later cases where he observed: “A statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable”. The Courts will therefore reject that construction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used. “If the choice is between two interpretations”, stated VISCOUNT SIMON, L.C. “the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result”. The Courts may complain that the enactment is “mind twisting” or an “enigma” yet they do not readily concede that no meaning can be given to it. and in their comity with the Legislature, they strive hard to give meaningful life to legislative enactments and avoid cadaveric consequences. “It is not an adequate discharge of duty”, said HOLMES, J., “for Courts to say: we see what you are driving at, but you have not said it, therefore we shall go on as before”. So the Courts are at least now, when purposive construction is gaining momentum, very reluctant to hold that Parliament has achieved nothing by the language it used when it tolerably plain what is wished to achieve.
(Emphasis ours)
28. On the question of likelihood of the independence of judiciary being eroded due to Judges accepting post retirement benefits, it is useful to refer to the debates in the Constituent Assembly of India (dated 7th June. 1949), Volume VIII, page 676. In the draft Constitution, Article 193-A was sought to be introduced in the following terms:
Mr. President: There is notice of an amendment that a new article, Article 193-A be introduced, by Professor K.T. Shah, amendment No. 2624.
Prof. K.T. Shah: Mr. President, Sir, I beg to move:
That the following new Article 193-A after Article 193 be added:
193-A No one who has been a Judge of the Supreme Court, or of the Federal Court or any High Court for a period of 5 years continuously shall be appointed to any executive office under the Government of India or the Government of any State in the Union, including the office of an Ambassador, Minister, Plenipotentiary, High Commissioner, Trade Commissioner Consul, as well as of a Minister in the Government of India or under the Government of any State in the Union.
Sir, this is part of the principle which I have been trying to advocate, namely the complete separation and independence of the judiciary from the executive. One way by which the executive has tried in the past to tempt the highest judicial officers is by holding out the prospect of more dazzling places on the executive side which would be offered to those who were more convenient or amenable to their suggestions.
Shri H.V. Kamath and Prof. Shibban Lal Saksena supported the amendment suggested by Prof. K. T. Shah as will be evident from their comments at pages 677 and 678 respectively.
29. However, when the President of the Constituent Assembly called upon Dr. Ambedkar to express his views on the motion made by Prof. Shah, Dr. Ambedkar opposed the motion. Referring to, the doctrine of separation of the judiciary from the executive, Dr. Ambedkar emphasised the fact that it only contemplated that a person, while he is holding a judicial office, must not hold any post which involves executive power. Similarly while a person is holding an executive office he must not simultaneously hold a judicial office. But the motion had different implications. Dr. Ambedkar referred to the fact that in India, unlike in Great Britain and the United States, Judges were expected to quit office at a comparatively early age. The question of a Judge of the higher judiciary seeking another office after retirement seldom arose either in Great Britain or in the United States. A mention was also made of the fact that in United States the pension of the Supreme Court Judge was the same as his salary. In EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”. also, it was stated, the pension was nearly 70% of the salary of the Judges of the higher judiciary. There was some discussion thereafter as to whether the motion proposed by Prof. Shah was meant only for sitting Judges or retired Judges. Ultimately, however, the amendment was negatived at page 679 of the Debates.
30. In Sir William Wade’s Administrative LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis., Seventh Edition, and the following observations appear at pages 74 and 75 in respect of the institution of Ombudsman:
The Ombudsman: tribune of the people.
Ombudsman is a Scandanavian word meaning officer or Commissioner. In its special sense it means a Commissioner who has the duty of investigating and reporting to Parliament on citizens’ complaints against the Government. An Ombudsman requires no legal powers except powers of inquiry. In particular, he is in no sense of Court of appeal and he cannot alter or reverse any government decision. His effectiveness derives entirely from his power to focus public and parliamentary attention upon citizens grievances. But publicity based on impartial inquiry is a powerful lever. Where a complaint is found to be justified, an Ombudsman can often persuade a Government department to modify a decision or pay compensation in cases where the complainant unaided would get no satisfaction. For the department knows that a public report will be made and that it will be unable to conceal the facts from Parliament and the press. The consciousness of the Ombudsman’s vigilance has a healthy effect on the whole administration, making it more sensitive to public opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. and to the demands of fairness.
The essence of the Ombudsman’s technique is to receive the complaint informally, to enter the government department, to speak to the officials and read the files, and to find out exactly who did what and why. No formal procedure is involved at any stage, nor is any legal sanction in question. The system can be adopted with short and simple legislation, or even merely administratively, and countries with written constitutions have no need to amend them. This ready adaptability is another of the reasons for the ombudsman’s world-wide appeal.
As his name implies, the ombudsman first appeared in Scandinavia. Sweden has had the institution, in a somewhat special form, for over a century and a half. But it was as established in Denmark after 1954 that it suddenly captured the attention of other countries, largely as a result of the missionary spirit of the first Danish ombudsman. The first British country to adopt it was New Sealand, which established an ombudsman (under that name) in 1962. His reports soon showed the success of the experiment, and a similar institution was proposed for Britain. Despite doubts whether so personal an institution would be practicable in a large country, and despite doctrinal objections based on ministerial responsibility, an ombudsman for the United Kingdom was instituted by the Parliamentary Commissioner Act, 1967.
31. Prof. Walter Gellhorn, Betts Professor of Law, Columbia University, in his paper on “The Ombudsman’s Relevance to American Municipal Affairs” in the American Bar Association Journal, February, 1968, Vol. 54, has discussed the advantage and disadvantages of the system. The Ombudsman has been portrayed by some persons as a white knight who can eliminate municipal corruption and bring about near-miraculous solutions to persistent problems. Best forget about these ideas, Professor Gellhorn warns. But he declares that there are several possible advantages that might flow from the use of a municipal ombudsman, and he specifies what they are.
32. S.V. Anderson has defined Ombudsman in Encyclopaedia Britannica, 1968 edition as “a legislative commissioner for the investigation of citizens’ complaints of bureaucratic abuse.” It is common knowledge that the institution of Ombudsman originated in Sweden. Provision was made for it in the Swedish Constitution of 1809. Finland adopted the institution in 1919 and Denmark made provision for it in the Constitution in 1953. In 1962 Norway appointed an Ombudsman for Civil Affairs. The same year witnessed a country in the Commonwealt -L New Zealand – adopting the institution.
33. In De Smith, Woolf and Jowell’s Judicial Review of Administrative Action, Fifth edition, at page 41 the following pas- sage appears:
Ombudsmen.
History.
Long before some of the developments described above arose, the concept of an Ombudsman for Britain came to attract interest. Situations where decisions by departments directly affecting individuals were taken without any statutory requirement of a hearing by a Tribunal or at an inquiry- Crichel Down was such a situation-had lain outside the terms of reference of the Franks Committee. Political representations made to Ministers about the decisions taken in their names were liable to be ineffective because the true facts might be unknown (even, sometimes, to the Ministers themselves) or because of the circumstances in which the representations were made. In 1958, the year following the publication of the Franks Report, the Danish Ombudsman (for Parliamentary Commissioner for Civil and Military Administration) made a lecture tour of Britain, describing his duties of surveillance over administration. His visit stimulated further investigations. In 1960 Justice, the British branch of the International Commission of Juristis, commissioned and inquiry into the existing means for investigating complaints against administrative acts and decisions where there was no Tribunal or other statutory procedure available for dealing with the complaints. The inquiry, which was conducted by Sir John Whyatt working under a small committee, was also to be directed to the consideration of possible reforms, with particular reference to the institution of the Ombudsman. In 1961 the Whyatt Report recommended, inter alia, the appointment of a Parliamentary Commissioner with a status comparable to that of the Comptroller and Auditor-General and with functions similar (but far from identical) to those of the Danish Ombudsman.
34. The discussion in paragraphs 26 to 33 above makes it clear that the function of an Ombudsman is to enquire into citizens’ grievances and by resorting to judicial and/ or quasi judicial process, try to redress the same. It is, therefore, necessary that a person who functions as an Ombudsman must be judicially trained to sift the grain from the chaff, to separate truth from falsehood and impartially come to an objective judicious conclusion. It is here that the requirement of a person who is trained as a Judge and has worked as a Judge assumes importance since it inspires confidence of the citizens who approach the Ombudsman with their grievances. In our view, therefore, no objection can be taken to a sitting or a retired Judge ofthe High Court accepting this office as the Chairman of Ombudsman. Indeed, it would serve the larger public interest if the Ombudsman is headed by a sitting or a retired Judge of the High Court. Without a Judge of the higher judiciary as the Chair- man of the Ombudsman, it is unlikely that the findings recorded by the Ombudsman would achieve the desired public confidence and acceptance.
35. The learned Advocate General has contended that a Judge of the higher judiciary accepting assignments other than regular Court duties is an accepted phenomenon not only in this country but also in other countries. He invited our attention to certain text books and writings on the subject. In “Judicial Independence, The Contemporary Debate” by Shimon Shetreet, Hebrew University of Jerusalem and Jules Deschenes, Superior Court of Quebee, 1985 edition, the following observations appear at page 23:
Attitudes towards extra-judicial activities vary from one jurisdiction to another in Australia. In some jurisdictions, including Victoria, the judiciary declines to take part in such executive bodies as Royal Commissions of Inquiry, law reform commissions and the like, on the ground that the judicial function is limited to the determination of controversies between the Government and citizens, or citizens and citizens. This view has support among individual Judges in other jurisdictions, although in some States there is a well developed tradition of Judges taking part in such bodies. In Australia, the doctrine of the separation of powers has taken the’ form of strictly separating the federal judiciary from other arms of Government. But this has not prevented the appointment of Sir John Latham, while remaining Chief Justice of the High Court, to the post of Envoy Extraordinary and Minister Plenipotentiary to Japan from 1940 to 1941. Nor did it prevent Sir Owen Dixon, whilst remaining a Justice of the High Court, from accepting the post of Minister in Washington from 1942 to 1944. In 1950, Sir Owen Dixon also acted as United NationsUNO The main bodies of the United Nations are the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the UN Secretariat. All were established under the UN Charter when the Organization was founded in 1945. It has 193 members. Mediator in Kashmir. Judges ofthe Federal Court and of the Family Court have also accepted exeuctive appointments, including Director-General of the Australian Security Intelligence Organisation. Ambassador at Large on Nuclear Energy, and Chairman of the Royal Commission on Human Relationships.
A distinction must be drawn between extra-judicial activities which are incidental to Crown service and those which have a personal and/or commercial character. Judges join clubs, both social and sporting, various associations and the like. However, they are not members of political, trade union or associated organizations, nor do they accept directorships of companies or activity in commercial life beyond, in some cases, shareholding. Some Judges even dispose, on appointment, of all shareholdings against the possibility of a conflict of interests.
While serving as Judges, Judges will not be involved in a private law practice. Differing views are held concerning the writing of books. Books of fiction are typically written under pseudonyms. Books on legal subjects are sometimes published by Judges, particularly if an earlier edition was written whilst they were at the Bar. Some Judges hold the view that they ought not to write or publish such books under their name, once appointed, lest the book attract an apparent authority which it ought not to have. Judges can be appointed as arbitrators under Arbitration Acts. But, they are not, while serving as Judges, available as private arbitrators, except pursuant to legislative authority.
(Emphasis ours)
36. In “The Role of Courts in Society” edited by Shimon Shetreet, 1988 edition, Chapter 26 “Judges as Chairman of Commissions of Inquiry” at page 344 it has been observed that in England pursuant to the English Act of 1921 it has been the practice for Tribunals to consists of members of the judiciary and eminent leading counsel with a senior Judge acting as the Tribunal’s Chairman. The Royal Commission on Tribunals of Inquiry under the Chairmanship of Lord Justice Salmon, observed in its report published in 1966 that “the present practice of appointing a Chairman from amongst the judiciary is unlikely to be departed from. Lord Salmon’s report further argues that “without a Judge of high standing as Chairman, it is unlikely that the findings of Tribunals would achieve the same measures of public confidence and acceptance as they have in the past”. This argument seems to be unanswerable according to the learned author Dr. Zeev Segal. The relevant observations are as under:
Judges Chairing Inquiries.
Referring to the absence of sufficient procedural protection afforded to parties before the Tribunal, and to the investigative powers that it possesses, a Tribunal of inquiry was described as being “a powerful locomotive running without rails”. Given this description, a question of primary importance will be: who can be regarded as the best possible driver to steer the commission in its delicate task of finding out the truth with minimum cause of injustice to the individuals under inquiry?
The answer of the legal systems in Great Britain, Canada, Australia and Israel is clear: a Judge holding high judicial office. The English Act of 1921 lays down no requirements as to the composition of the Tribunal, but since 1948 it has been the practice for Tribunals to consist of members of the judiciary and eminent leading counsel, with a senior Judge acting as the Tribunal’s Chairman. The Royal Commission on Tribunals of Inquiry under the Chairmanship of Lord Justice Salmon, observed in its report published in 1966 that “the present practice of appointing a Chairman from amongst the judiciary is unlikely to be departed from”, but stated that “We consider however that this practice is of such importance that legislative steps should be taken to ensure that it shall always be followed.” The Report’s arguments seem to me to be powerful, “apart from the assurance that having a Judge as a Chairman gives to the public that the inquiry is being conducted impartially and efficiently”, the report reads,
…”it ensures that the powers of the Tribunal will be exercised judicially”, and I shall add reasonably, coupled with an effort to minimize the risk of personal harm to the individuals under inquiry, a danger inherent in an inquisitorial public inquiry. The “Salmon Report’s further argument that
“without Judge’ of high standing as Chairman it is unlikely that the findings of Tribunals would achieve the same measures of public confidence and acceptance as they have in the past”, seems to me to be unanswerable.
(Emphasis ours)
37. In ‘The Due Process of Law” by the Rt. Hon. Lord Denning, Master of the Rolls, 1980 edition,’ under Chapter 2 “Into the Conduct of Ministers”, the learned Law Lord has referred to Judge undertaking enquiries or chairing a committee referring to his own conducting the enquiry into the security situation arising as a result of the association of the Secretary of State for WarWar Whenever Christians wage a war, it is a Just war (City of God). Jesus asked his followers to purchase swords (Luke 22: 35-36). Those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility (Catechism 2265). Without Jihad there is no Islam. In Mahabharata, Krishna tried to stop the War imposed by Kurus. Lord Rama killed Ravan in the war to restore his wife. Deva and Asura battles are not available in Vedas., John Profumo, with Christine Keeler. In Chapter 2 at pages 67 and 68 the following observations appear:
So much for a Judge when he is acting as a Judge. But there are times when a Judge is invited by the Government of the day to undertake an inquiry or to chair a committee. He has then no special privilege or immunity. So it behoves him to act with circumspection. The Government usually asks a Judge to do such a task when it is in a quandary. There is public unease: and the only person who can be trusted to be impartial is a Judge. He is independent of the executive: and thus can speak his mind.
Thus I was called upon in June 1963. The Government was indeed in a quandary. The Secretary of State for War, The Rt. Hon. John Profumo, OBE, had resigned during the Whitsun recess. The Sunday Mirror had published a photographic copy of his letter to shristine(sic) Keeler. It started ‘Darling’ and ended ‘Love J’ The newspaper had paid her for it. Rumours spread like wildfire. Not only about Mr. Profumo and the Russian Naval Attache. But many other ministers also. Their morale was shaken to the core. The Security of the realm was said to be endangered. Nothing like it has been seen since Titus Oates spread his lies in 1678 when Macaulay tells us the capital and the whole nationNation A collective consciousness, founded in ancient origin within a geographic area, with definite history and heritage, culture and way of life, language and literature, food and clothing, coupled with a deep understanding of war and peace is to be known as a nation. Rasra is the Vedic word for it. was mad with hatred and fear’. The member of the House of Commons held a debate on Monday, 17 June 1963. On the Friday. 21 June 1963, the Prime Minister (Mr. Harold Macmillan) asked me to inquire into the security situation. Some have since said that, as a Judge, I should not have accepted the task – because of its political overtones, But I felt, and still feel, that when the security ofthe State was involved, it was my duty to do what I was asked. I still have a copy of my reply on 24 June, 1963:
‘Dear Prime Minister,
It is a great responsibility with which you have entrusted me – and I feel very apprehensive of my ability to carry it out. All I can say is that I will do my very best faithfully to perform the task.
Yours sincerely.
Denning’.
(Emphasis ours)
38. In his Commentary on the “Commissions of Inquiry: Practice and Principle” by J. Sarma Sarkar, a former Judge of the Calcutta High Court, the following observations have been made at page 31 under the heading “Government and Commission”:
The most important function ofthe Government under the Act is to select proper and suitable persons as members/Chair- man ofthe Commission. Experts with knowledge and experience .and public reputation need be appointed in all types of commission. But where allegations are made against the conduct or reputation of public men, members of the judiciary are usually appointed. Demand for retired Judges of the High Court or Supreme Court have been replaced by sitting Judges but even they are not spared bitter criticism and personal and motivated aspersions bv partisan partymen and the press such as against Lentin Commission. Kudal Commission. Thakkar Com- mission. (Emphasis ours)
39. On the question of the Judges of the Supreme Court or of the High Court discharging functions other than Court functions at the request ofthe President of India, we may also refer to the provisions of Part D of Second Schedule to the Constitution of India, to which our attention was invited by the learned Advocate General. Under the heading, “Provisions as to the Judges ofthe Supreme Court and of the High Courts”, Clause 11 of Part D reads as under:
11. In this Part, unless the context otherwise requires –
(a) the expression ‘Chief Justice’ included an acting Chief Justice, and a ‘Judge’ includes an ad hoc Judge;
(b) ‘Actual service’ includes –
(i) time spent by a Judge on duty as a Judge or In the performance of such other functions as he may at the request of the President, undertakes to discharge;
(ii) vacations, excluding any time during which the Judge4s absent on leave; and
(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.
In the light ofthe provisions of Article 125 of the Constitution dealing with salaries, etc. of Judges ofthe Supreme Court and Article 221 dealing with salaries etc. of the Judges ofthe High Court, it is clear that the words “actual service” defined in Clause 11(b) quoted above would include, the time spent by a Judge on duty as a Judge or in the performance of such other functions as he may, at the request of the President, undertake to discharge. Thus the constitutional scheme envisages a Judge of the Supreme Court or of the High Court discharging functions other than Court functions at the request of the President. No objection can, therefore, be taken to such a Judge discharging such functions at the request of the President on the ground that it is likely to adversely affect the independence of judiciary. The 5th and the last contention has, therefore, no merit and is accordingly rejected.
40. In view ofthe above, we may summarise our conclusions as under:
(i) On the first contention regarding conferring the states of a Judge of the High Court of Kerala on all the seven members of the Ombudsman by virtue of Section 271-G(9) of the Act, our conclusions are indicated in paragraphs 12, 13 and 14. We accordingly hold that the words, “shall have the status equivalent to that of a Judge of High Court of Kerala and” appealing at the beginning of Section 271-G(9) of the Kerala Panchayat Raj Act, 1994 are unconstitutional and are, therefore, struck down being violative of the mandate of Article 14 of the Constitution. As indicated at the end of para 14, consequential changes will have to be made.
(ii) On the second contention in respect of the removal of a person appointed as a member of the Ombudsman u/s 271-G(3)(a) namely, “a person who is or was a Judge of the High Court”, our conclusions are to be found in paragraphs 15 and 16. Accordingly, we hold that the three contingencies contemplated u/s 271- G(3)(a) of the Act cannot be dealt with in an identical manner. The three contingencies elaborated in paragraphs 6 and 15 and would need different treatment since they deal with unequals. For the reasons indicated in paragraphs 15 and 16, the second contention is upheld.
(iii) On the third contention regarding Section 271-H(3) making the procedure under the Judges (Inquiry) Act, 1968 applicable for removal of other members of the Ombudsman, our conclusions are in para 17. The third contention is, therefore, accepted.
(iv) On the fourth contention regarding the appointment of as many as seven members in the Ombudsman being wholly unnecessary and resulting in unbearable burden on the State exchequer, our conclusions are to be found in paragraphs 21 and 22. Accordingly, the fourth contention is re- jected.
(v) On the fifth contention regarding the likelihood of independent of judiciary being adversely affected as a result of Judges of the High Court accepting appointment as Chairman of the Ombudsman, our conclusions are to be found in paras 34 and 39. For the said reasons, the fifth contention is rejected.
Radhakrishnan, J.
41. I had the privilege of going through the judgment of the learned Chief Justice. Learned Chief Justice in his erudite judgment had already dealt with in extenso various arguments addressed at the Bar and has answered the question raised which I fully concur. I do not propose to deal with those matters over and again, however, I would like to add a few points of my own.
42. A contention was raised in the writ petition, that if Judges of the Higher Judiciary accept post-retirement assignments, that would affect the independence of the judiciary. It is difficult to accept this contention. In our Constitution though there is no express provision guaranteeing independence of the judiciary various provisions in the Constitution lead to the unmistakable conclusion that there would be separation of powers between the Legislature, Executive and the Judiciary. The only provision relating to separation of judiciary from executive is Article 50 ofthe Directive Principles of State Policy, which says that “the State shall take steps to separate the judiciary from the executive in the public services of the State”. The Supreme Court in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, , has said that separation of powers, legislative, executive and judicial and the independence of the judiciary are some of the basic features of our Constitution. I am of the view, if we scan through the various provisions in the Constitution of India there is sufficient indication to show that constitutional scheme permits and certain occasions demand service of the Judges of the higher judiciary so as to achieve the objectives enshrined in the Constitution. I may deal with some of the provisions which constitutionally requires the service of the Judges. Article 22 of the Constitution says that no person who is arrested shall be detained in custody without being informed, as soon as may be, ofthe grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to Court ofthe Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Article 22(4) is relevant for our purpose which is extracted below:
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
Parliament has enacted the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, an Act to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith. Section 9 of the Act deals with Advisory Boards. We may refer to Section 9(a) in this connection which is extracted below:
(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause(a) of Clause(4) of Article 22 of the Constitution.
Almost identical provisions we find in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Section 8 of the Act deals with Advisory Boards which says that for the purposes of Sub-clause (a) Clause (4) and Sub-clause (c) of Clause (7) of Article 22 ofthe Constitution the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause(a) of Clause (4) of Article 22 of the Constitution.
43. The functions ofthe Advisory Board so constituted is purely advisory. Constitution however, envisages that when the liberty of citizens is involved it is necessary that Advisory Board so constituted should be manned by Judges ofthe higher judiciary. It is also pertinent to note that Article 22(4) also permits persons who have been High Court Judges, to be members of the Advisory Board. The services rendered by Judges as members of the Advisory Board are voluntary.
44. Constitutional scheme also permits the Judge of the Supreme Court and High Court to perform such other functions than the functions they discharge as Judge of the Supreme Court and High Court. In this connection reference may be made on Clause 11 of II Schedule which is extracted below for easy reference.
11. In this Part, unless the context otherwise requires –
(a) the expression ‘Chief Justice’ includes an acting Chief Justice, and a ‘Judge’ includes an ad hoc Judge;
(b) ‘actual service’ includes –
(i) time spent by a Judge on duty as a Judge in the performance of such other functions as he may at the request of the President undertaken to discharge;
(ii) vacations, excluding any time during which Judge is absent on leave; and
(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.
Actual service includes the time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertaken to discharge. This would indicate that the Constitution has envisaged Judges performing such other functions at the request of the President. In order to appreciate this position it is relevant to have a look at the II Schedule of Constitution of India as a whole. Part A of the II Schedule deals with provisions as to the President and the Governors of the State. Article 59 deals with the conditions of President’s Office. It says that the President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments allowances and privileges as may be determined by Parliament by law and, until provisions in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule. Article 65 says that the Vice-President shall, during and in respect of, the period while he is so acting as, or discharging the functions of President, have all the powers and immunities, allowances and privileges as may be determined by Parliament by law and until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule. Part C deals with the provisions as to the Speaker and the Deputy Speaker of the House of the People and the Chairman and the Deputy Chairman ofthe Council of States and the Speaker and the Deputy Speaker of the Legislative Assembly and the Chairman and the Deputy Chairman ofthe Legislative Council of a State. Part E deals with the provisions as to the Comptroller and Auditor General of India. On a perusal of Part A, Part C and Part E we find that constitution does not envisage those dignatories to perform any other functions unlike Judges of the Supreme Court or High Court who have been included in Part D. On a comparison of Part A, Part C and Part E with Part D, I am of the view that the constitutional scheme envisages the Judges to perform other functions.
45. We have already referred to Clause (ii) of Part D earlier. Clause 11(b) states that actual service includes the time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertaken to discharge. The word ‘include’ is generally used as a word of extension. When used in an interpretation clause, it seeks to enlarge the meaning of the words or phrases occur- ring in the body ofthe statute. The Supreme Court in Regional Director, Employees’ State Insurance Corporation Vs. High Land Coffee Works of P.F.X. Saldanha and Sons and Another, examined the word ‘include’ employed in Section 2(12) of Employees State Insurance Act and held as follows (at P. 131 of AIR):
The word ‘include’ in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include.
The above mentioned provisions would indicate that the constitutional scheme permits the Judges to perform other functions as well over and above the constitutional functions to be discharged as Judges of the Superior Courts.
46. In this connection reference may be made to the. decision of a Full Bench of the Madras High Court in the matter of Mr. Hayles, Editor of ‘The Mail’, AIR 1955 Madras 1. In that case a High Court Judge was appointed as Industrial Tribunal. Reference was made to the abovementioned decision only to highlight the fact that the Judge of the Madras High Court was appointed as Industrial Tribunal u/s 7 of the Industrial Diputes Act, so as to resolve the dispute between the management and workers of Amalgamation Ltd., Madras, in their eleven concerns including ‘The Mail’ in which case the Full Bench has observed that the appointment of a Judge of the High Court to an Industrial Tribunal u/s 7 of the Industrial Disputes Act, does not alter the status of the Industrial Tribunal or equate it with the High Court itself. The proceedings before the Judge who constitutes the Industrial Tribunal are not proceedings of the High Court of which he is no doubt a Judge, and any contempt committed in relation to such proceeding would be contempt of that Industrial Tribunal. The above mentioned decision would also indicate that the Judges could perform functions other than that of Judge of a Court.
47. We may notice in this connection a decision of the Privy Council in The Colonial Bank of Australasia v. Willian (1874) LR 5 PC 417. In the above mentioned case Privy Council has examined the position of the Court of Mines of Victoria vis-a-vis the Supreme Court of that State. The Court of Mines was first created by the Statute of 1857, which was subsequently replaced by the Mining Statute of 1865. The Statute of 1865 created a Chief Judge ofthe Court of Mines, who was to be one of the Judges ofthe Supreme Court. Statutory provision was made for appeals to the Chief Judge against the decisions of the other Judges of the Court of Mines. Section 244 of the Mining Statute of 1865 provided that no proceedings under that Act should be removed or removable into the Supreme Court save and except in some other circumstances. Their Lordships of the Privy Council held that in relation to the Supreme Court, the Courts of Mines stood on the footing of inferior Courts.
48. Their Lordships further held that the power of the Supreme Court to issue a certiorari to the Court of Mines in respect of any proceedings under the Mining Statute of 1865 had been taken away by the Statute. But their Lordships also held at page 442 as follows:
It is, therefore, scarcely necessary to observe that the effect of this is not absolutely to deprive the Supreme Court of its power to issue writ of certiorari to bring up the proceedings ofthe inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the private clause in a statute, the Court of Queen’s Bench will grant a certiorari; but some of these “authorities establish, and m e are inconsistent with, the proposition, that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the Tribunal that made it, or of manifest fraud in the party procuring it.
That one of the Judges of the Supreme Court was a member of the Court of Mines, the Chief Judge of that Court in no way altered the status ofthe Court of Mines as an inferior Court. The Judge of the Supreme Court, who was appointed also a Judge of the Court of Mines, did not cany with him all the jurisdiction and powers ofthe Supreme Court when he discharged his statutory functions as the Chief Judge of the Court of Mines. The above mentioned decision would indicate that Judge of the Supreme Court of Victoria acted as Chief Judge of the Court of Mines, which was a Court created by Mining Statutes, 1865. The said course never found to be objectionable.
49. Incidentally we may notice that a learned Judge of this Court in Nixon M. Joseph and Another Vs. Union of India (UOI) and Others, , expressed some reservations in members of Higher Judiciary taking post-retirement assignments. According to the learned Judge such act would adversely affect the unique and revered position of the judiciary and will weaken it. The learned single Judge further held in such an event, the judiciary will be imperilled and consequently democracyDemocracy It is a power word. power rests with the ordinary Citizens. Only educated people understand power. A corrupt or controlled court system can cover failure of it. The religious concept is incompatible with it. Promise to spend more from the public treasury moves to Dictatorship.. According to the learned single Judge it is against this background that one needs to deliberate upon the desirabilty of Judges, particularly members ofthe higher judiciary taking up post-retirement jobs, be it in the private, Government or political domain. That judgment was however reversed in W.A. 2114 of 1998. It is profitable to extract a portion of the Division Bench judgment for our reference.
5. We are of the view that the sweeping observations made by the learned single Judge that the retired Judges make a bee-line for plum assignments; that they are running after office of profit and that they join political band-wagon, definitively affecting the unflinching faith ofthe people in the judiciary, are neither based on common experience nor on empirical knowledge nor are they consistent to the past history nor can they be said to be a universal truth. It may, at best, be the personal opinion of the learned single Judge. The observation ofthe learned single Judge “that it is well nigh impossible to presume that a Judge who cherished to make a mark in the political arena soon after demitting the office discharged his judicial functions, without political leaning, is far from reality and wholly unsupported by any material. It is nothing but his self opinionated declaration, wholly individualistic perception and his own philosophised statement. The Court should be loath to make derogatory observations against the fraternity of the Judges. This poses a great danger from within.
50. Learned Chief Justice has elaborately dealt with various provisions in the Consumer Protection Act, 1986, The Protection of Human Rights Act, 1993, Kerala State Commission for Backward’ Classes Act, 1993, Kerala Lok Ayukta Act, 1999 etc. and the provision relating to the appointment of members of Higher Judiciary to various posts. The purpose and object of those enactments justify the appointment of Judge.
51. The articles included in Part IV of the Constitution (Articles 36-51) contain certain directives which It shall be the duty of the State to follow both in the matter of administration as well as in the making of laws they embody the aims and objects of the State under the Republican Constitution. The legislations mentioned above enacted by the Parliament as well as State legislation so as to uphold the provisions of the Constitution and the Directive Principles of the State Policy, Judges cannot keep aloof from the nation building process. They have also a role to play for upholding the Constitution and the Directive Principles of the State Policy. It is not as if it is only for the legisla- tive or executive to implement the Laws so as to uphold the constitutional scheme. Judges as well as the legislative and the executive are part of the constitutional scheme. As I have already indicated the Constitution permits the Judges to discharge various functions over and above what has been as- signed to them as members of the judiciary.
52. I am in full agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. with the view of the learned Chief Justice that the independence of the judiciary would not be imperilled when the Parliament, State Legislature and the executive seek service of the Judges sitting or retired to uphold the Constitution and to give effect to the Directive I Principles of the State Policy.
53. We must place on record our appreciation of the able assistance rendered by the learned Advocate General Sri. M.K. Damodaran, Sri. Venkita Subramania Iyer the learned amicus curiae and all other learned Counsel.
54. Both the Original Petitions are accordingly disposed of in the light of the conclusions summarised in para 40 above.
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