Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
JYOTI PRAKASH MITTER
DATE OF JUDGMENT21/01/1971
BENCH:
SHAH, J.C. (CJ)
BENCH:
SHAH, J.C. (CJ)
SIKRI, S.M.
BHARGAVA, VISHISHTHA
HEGDE, K.S.
GROVER, A.N.
DUA, I.D.
CITATION:
1971 AIR 1093 1971 SCR (3) 483
1971 SCC (1) 396
CITATOR INFO :
D 1974 SC2192 (147)
D 1982 SC 149 (709,718,876,1005)
RF 1982 SC1029 (6)
RF 1991 SC 564 (5)
ACT:
Constitution of India, 1950, Arts. 132(1) & 217(3)-Grant of
leave to Supreme Court against judgment of single Judge of
High Court-When permissible-Procedure to be followed by
President when acting under Art. 217(3).
Natural Justice-If party effected entitled to personal
hearing.
HEADNOTE:
Article 217(3) of the Constitution incorporated by the 19th
Amendment Act, was given retrospective effect from January
26, 1950, and hence, all questions relating to the age of a
Judge of a High Court had to be decided by the President
after consultation with the Chief Justice of India. The
respondent raised a dispute regarding his age claiming that
his date of birth was December 27, 1904, and not December
27, 1901.
The Secretary of the Ministry of Home Affairs drew up a note
tracing. the history of the dispute and invited the
President to determine the age of the respondent. The note
was submitted through the Minister of Home Affairs and Prime
Minister. The President then called upon the: respondent to
make such representation as he may wish to make and to
produce such evidence as he may desire. Thereafter, all
communication to and from the respondent, his
representations to the President and documentary evidence on
which he relied, were all submitted through the Secretary of
the Ministry of Home Affairs. The respondent made a request
for oral hearing in his various communications. He
protested against the reference by the Ministry of Home
Affairs to the Director of the Central Forensic Institute of
the documents submitted by him and requested that the
originals may be returned to him to enable him to have them
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examined by an independent expert. In reply to that letter
the Secretary of Ministry of Home Affairs wrote that the
procedure to be followed and the opportunities to be given
to the respondent depended entirely upon the discretion of
the President and the question of returning the documents
produced by the respondent did not arise at that stage. The
respondent was also informed that the question whether he
should have an opportunity of filing expert evidence will be
considered later and that he would be given an opportunity
to put forward his case about the evidentiary value of the
documents produced by him and that any decision thereon
would be arrived at by the President after affording him
reasonable opportunity in that behalf. After receiving the
report of the Director of the Central Forensic Institute the
President referred the question to the Chief Justice of
India for his advice on the procedure to be adopted and the
Chief Justice gave his advice to the President. The copies
of the reports of the Director, Central Forensic Institute,
were forwarded by the Home Secretary to the respondent with
a forwarding letter by which the respondent was informed
that if he had any comments to make on the opinion expressed
by the Director they may be submitted and if the respondent
desired he may also adduce evidence in rebuttal in the form
of expert opinion supported by appropriate affidavits within
one-
484
month. The respondent submitted that the evidence tendered
was conclusive in his favour and there was no question of
adducing any further evidence or any evidence in rebuttal.
He also requested the President to grant him an audience for
the purpose of deciding the question of his age.
The President then referred the matter to the Chief Justice
of India asking him for his advice and the Chief Justice of
India, after considering the evidence in the matter,
recommended that the age of the respondent be decided on the
basis that the respondent was born on December 27, 1901.
The file relating to the matter was received in the
President’s Secretariat and was sent to the Secretary,
Ministry of Home Affairs. The Secretary recorded a note
requesting the Minister of Home Affairs, to recommend to the
President that the age of the respondent may be determined
in accordance with the advice of the Chief Justice ;of
India, and the Home Minister and the Prime Minister
countersigned that endorsement. The file then was placed
before the President and on the same day he recorded his
decision that he accepted the advice tendered by the Chief
Justice of India and decided that the age of the respondent should be de
termined on the basis that he was born on 27th
December 1901. The decision was communicated to the
respondent by the Secretary, Ministry of Home Affairs.
The respondent then moved a writ petition in the High Court
and a single Judge of the High Court allowed the petition
on the grounds :
(1) that the function of President was quasi-judicial and
he was not given sufficient time and opportunity to exercise
his independent judgment on the question before him; (2)
that the President had not given a personal hearing to the
petitioner; (3) that the President had taken into account
extraneous matters viz., the recommendation of the Home
Minister and the Prime Minister.
The appellant then asked for a certificate and a certificate
was granted under Art. 132(1) of the Constitution.
HELD : (1) A single Judge of a High Court may, in
appropriate cases, certify that the case involves a
substantial question of law as to the interpretation of the
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Constitution. But such a certificate is intended to be
given in very exceptional cases where a direct appeal is
necessary in view of the grave importance of the case or an
early decision of the ,case must, in the larger interest of
public or for similar reasons. be reached. The present case
was not one in which a certificate should have been asked
for or granted by the single Judge. Against the decision of
the single Judge, an appeal lay to the Divisional Bench of
the High Court under Letters Patent; and, the respondent
could not, on the date of the order be reinstated because he
had already passed 62 years of age,
1496 G-H; 497 A-B]
[The matter was however examined on merits since the appeal
was before this Court-]
(2) The President in performing the functions under Art.
217(3) is invested with the judicial power of great
significance which has a bearing on the independence of
judges of the High Courts. In the exercise of this power
even the slightest suspicion or appearance of misuse of that
power should be avoided. Even in the matter of serving
notices and asking for representation from judge of the
High Court, when question of his age is raised, the
President’s Secretariat should ordinarily be
485
the channel and the President should have consultation with
the Chief Justice of India as required by the Constitution;
and there must be no interposition of any other body or
authority in the consultation between the President and the
Chief Justice. Further, normally, an opportunity for an
oral hearing should be given to the judge were age is in
question, though there is nothing in the Article which
requires that the Judge should be given a personal hearing
by the President and it is in the President’s discretion to
do so in appropriate cases. The question should be decided
by the President on consideration of such materials as may
be placed by the Judge concerned and the evidence against
him after the same is disclosed to him. In such a matter
the President cannot act on the advice of his Ministers.
Notwithstanding the declared finality of the order of the
President, this Court has jurisdiction in appropriate cases
to set aside the order, if it appears that it was passed on
collateral considerations or the rules of natural justice
were not observed, or that the President’s judgment was
coloured by. the advice or representation made by the
executive or if it was founded on no evidence. Appreciation
of the evidence however is entirely left to the President
and it is not for the courts to substitute their view. [504
F-H; 505 A-E]
(3) There is no substance in the contention of the
respondent that the decision was in truth rendered by the
Chief Justice of India and not by the President. The
President acted on the advice of the Chief Justice. He did
not surrender his judgment to the Chief Justice. [497 E-F]
(4) It is not a condition of the validity of the decision
by the President that the President and Chief Justice should
meet and discuss across a table the pros and cons of the
proposed action or, the value to be attached to any piece of
evidence laid before the President and made available to the
Chief Justice. Consultation contemplated by the Article
is not a dialogue. The President must, before deciding the
age of a Judge obtain the advice of the Chief Justice and
for that purpose he must make available all the evidence in
his possession to the Chief Justice and the Chief Justice
has to submit his advice to the President on that evidence.
The procedure followed in the present case of sending to the
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Chief Justice of India the file relating to the evidence
against the respondent and in his favour, and of obtaining
the advice of the Chief Justice, fully complied with the
constitutional requirements as to consultation with the
Chief Justice. [499 CF]
(5) Merely because the President was assisted by the
machinery of the Ministry of Home Affairs in serving notices
and receiving communications addressed to him it could not
be inferred that he was guided by that Ministry. No rules
had been framed regarding the inquiry to be made by the
President of India under Art. 217(3), and the President had
no secretarial facilities for serving notices and for taking
other steps in regard to the inquiries to be made under the
Article.
(6) There is nothing in the order to indicate that the
Minister of Home Affairs acted upon the request made by the
Secretary; he and the Prime Minister merely countersigned
the note. The argument that the Home Minister and the Prime
Minister signified their assent and thereafter the President
acted as if he was exercising his executive authority on the
advice of the Ministers has no force. The resident was not
swayed by anything which the Secretary to the Ministry of
Home Affairs had noted or by the signatures of the Minister
or the Prime Minister. The order shows that the President
was acting only on the advice of the Chief Justice and he
decided the age of the respondent on that basis.
486
Any irregularity in the procedure followed by the
Secretariat of the President and the Secretary of the
Ministry in sending the papers through the Ministers did not
affect the validity of the order made by President.
[498 G-H; 499 A-B]
(7) In the present case, the President had given ample
opportunities at various stages to the respondent to make
his representation. All evidence placed before the
President and considered by him was disclosed to the
respondent and he was given opportunity to make his
representation. The respondent cannot claim that the order
made without affording him an opportunity of personal
hearing is invalid, because, though the President is
performing a judicial function when he determines a dispute
as to the age of a Judge he is not a court. Moreover, there
was no likelihood of any bias or prejudice as no evidence
was placed before the President or considered by him which
was not disclosed, to the respondent.
[499 F-G; 500 A-G]
Surender Singh Kanda v. Govt. of the Federation of Malaya
[1962] A.C. 322, referred to.
(8) There is no substance in the claim of the respondent
that his request for an oral hearing was granted and that
therefore the order passed Without an opportunity of oral
representation was contrary to the rules of natural justice.
In the present case the record supports the view that the
President did not deem it necessary to give an oral hearing.
There were no complicated questions to be decided by the
President. The truth of the statements made by the
respondent had to be judged in the light of his past conduct
at various stages when he gave no evidence of the date of
his birth. If upon such evidence the President was of the
view that the disputed question may be decided without
giving him an opportunity of personal hearing this Court
cannot set aside the order on the ground that the order was
made without following rules of natural justice. [500 H; 501
A-G]
(9) There is no reliable evidence that the President
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treated the matter as. formal and allowed himself to be
guided by the advice of the Home Minister or that he
mechanically accepted the advice of the Chief Justice and
surrendered his own judgment to the Chief Justice of India.
No attempt was made to have the matter investigated in the
High Court as to when the papers were submitted to the
President and what consideration he gave to the advice,
whether (he made only a mechanical approach believing that
he was bound to accept the advice of his minis-
this Court. [502 A-F]
(10) There is no evidence that beside tendering advice to
the President in matters of procedure and final decision the
Chief Justice of India bad given any advice to the Ministry
of Home Affairs privately or otherwise. The argument that
the Chief Justice in tendering the advice was influenced by
extraneous considerations is not founded upon any materials
Placed before this Court. [502 F-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 52 of 1968.
Appeal from the judgment and order dated August 7, 8, 1967
of the Calcutta High Court in Civil Rule No. 1798(W) of
1966.
487
Jagadish Swarup, Solicitor-General, Ram Panjwani and S. P.
Nayar, for the appellant.
The respondent appeared in person.
The Judgment of the Court was delivered by
Shah, C. J. Joyti Prakash Mitter-hereinafter called ’the
respondent-was a candidate for the matriculation certificate
examination of the Bihar University, held in April, 1918.
In the Bihar Government Gazette declaring him successful the
age of the respondent was shown to be 16 years 3 months in
April 1918. The respondent offered himself as a candidate
for admission to the Indian Civil Service at an examination
held in 1963 by the United Kingdom Civil Service Commission.
On that occasion he declared that his date of birth was
December 27, 1901. The respondent joined the High Court Bar
at Calcutta in May 1931. On February 11, 1949 the
respondent was appointed an Additional Judge and on December
26, 1949 he was recommended for appointment as a permanent
Judge. He then declared that he was 45 years of age.
In 1956 the Government of India collected information re-
lating to the educational and other qualifications of the
Judges of the High Courts and their respective dates of
birth. The declaration made by the respondent that his date
of birth was December 27, 1904 was accepted. The Government
of India having received information that the true date of
birth of the respondent was December 27, 1901 commenced an
enquiry. On April 17, 1959 the Chief Justice of the High
Court of Calcutta asked the respondent to make a formal
statement relating to his date of birth. On May 27, 1959
the respondent wrote to the Chief Justice of the High Court,
Calcutta that his age entered in the matriculation
certificate was incorrect, and that he was shown to be three
years older than he actually was, because a true declaration
of his age would have prevented him from appearing for the
matriculation examination in 1918. The respondent also
tendered an affidavit of one Panchakari Banerjee that the
question of his age was discussed with Sir Arthur Trevor
Harries who was in 1949 the Chief Justice of the High Court
of Calcutta.
A suggestion made by the Chief Minister of West Bengal that
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the respondent may agree to abide by the decision of the
Chief Justice of India on the question of his true date of
birth was not accepted by him. The respondent also did not
furnish any material in support of his case that he was born
in December 1904. By order dated May 15, 1961 the President
of India on the recommendation of the Minister of Home
Affairs directed that the age
488
of the respondent be determined on the basis of the date of
birth declared in the matriculation certificate.
The respondent then moved a petition in the High Court of
Punjab at Delhi for a declaration that he was entitled to
’hold office till December 27, 1964 and for a writ of
mandamus restraining the Union of India from giving effect
to the order of the President. The petition was dismissed.
The respondent then filed a petition on January 2, 1962 in
the High Court of Calcutta impleading the Chief Justice of
the Court of Calcutta as a party respondent praying for, an
order directing the Chief Justice to treat him as continuing
in office till December 27, 1964 and "to assign judicial
work" to him. He urged that the decision of the Government
of India in pursuance of which the Chief Justice of the High
Court had acted was "illegal, arbitrary and uncon-
stitutional" and that the Chief Justice had no Jurisdiction
to act upon that decision. That petition was dismissed in
limine. But a Special Bench of the High Court in appeal
filed by the respondent directed that rule nisi be issued.
This Court dismissed an appeal against the order of the High
Court: Hon’ble Mr. Justice Himansu Kumar Bose, Chief
Justice, High Court, Calcutta and another v. Jyoti Prakash
Mitter(1). A Special Bench of five Judges of the Calcutta
High Court then heard the petition. The petition filed by
the respondent was ordered to be dismissed and the rule was
discharged. This Court in appeal against the order of the
High Court : Jyoti Prakash Mitter v. Hon’ble Mr. Justice
Himansu Kumar Bose, Chief Justice, High Court, Calcutta and
Another(2) gave certain directions. To appreciate the
reasons for making those directions it is necessary to take
into account certain developments.
When the appeal was pending in this Court, Art. 217 of the
Constitution was amended by the Constitution (Fifteenth
Amendment) Act, 1963 and cl. (3) was added thereto to the
following effect with retrospective effect
"If any question arises as to the age of a Judge of a High
Court, the question shall be decided by the President after
consultation with the Chief Justice of India and the
decision of the President shall be final."
Clause (1) of Art. 217 was also amended by the Constitution
(Fifteenth Amendment) Act, 1963, with effect from October 5,
1963 and the age of superannuation of Judges of tile High
Court was fixed at sixty-two years.
(1) A.I.R. [1964] S.C. 1636
(2) [1965] 2 S.C.R.53.
489
This Court held that cl. (3) of Art. 217 having
retrospective operation, validity of the order passed by the
President must be adjudged, in the light of cl. (3) of Art.
217 and since the Ministry, of Home Affairs had placed the
file before the President in accordance with the rules of
business, the procedure could not be assimilated to the
requirements of Art. 217(3). The Court observed
"The question concerning the age of the appellant
(respondent herein) on which a decision was reached by the
President on May 15, 1961, affects the appellant in a very
serious manner; and so, we think considerations of natural
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justice and fair-play require that before this question is
determined by the President, the appellant should be given a
chance to adduce his evidence. That is why we think that,
on the whole, it would not be possible to accept the
Attorney-General’s contention that the order passed by the
President on May 15, 1961, can be treated as a decision
within the meaning of Art. 217 (3). We ought to make it
clear that in dealing with the grievance of the appellant
that his evidence was not before the President at the
relevant time, we are not prepared to hold that his failure
or refusal to produce evidence at that stage should be
judged in the light of the retrospective operation of Art.
217(3). such a consideration would be totally inconsistent
with the concept of fair-play and natural justice which out
to govern the enquiry contemplated by Art. 217 (3);"
and that;
"The appellant has contended before us ’that if we hold that
the impugned decision of the President does not amount to a
decision under Art. 217 (3), he is entitled to have a formal
decision of the President in terms of- the said provision.
The Attorney-General has conceded that this contention of
the appellant is well founded. He, therefore, stated to us
on behalf of the Union of India that in case our decision on
the main point is rendered against the Union of India, the
Union of India will place the matter before the President
within a fortnight after the pronouncement of our judgment
inviting him to decide the question about the appellant’s
age under Art. 217 (3). Both parties have agreed before us
that in case the decision of the President is in favour of
the appellant, the appellant will be entitled to claim that
he has continued to be a Judge notwithstanding the order
passed by the Chief Justice of the Calcutta High Court
490
and will continue to be a Judge until he attains the age of
superannuation."
Thereafter the President of India directed the Secretary,
,Ministry of Home Affairs, to call upon the respondent to
"make ,such representation as he may wish to make in the
matter and produce such evidence as he may &.sire to produce
in support of .his claim that his correct age should be
determined on the basis of his date of birth being taken as
December 27, 1904", and after ,consulting the Chief Justice
of India by order dated September 29, 1965, determined the
date of birth of the respondent as .December 27, 1901.
The legality of the procedure followed by the President in making the
order is challenged by the respondent. It is,
therefore, ,necessary to set out in some detail the various
steps taken before passing that order. On November 17, 1964
the Secretary of the ’Ministry of Home Affairs drew up a
note tracing the history of the .litigation upto the
decision of this Court, and invited the President to
determine the age of the respondent under Art. 217 (3). The
note of the Secretary was submitted to the President through
the Minister of Home Affairs and the Prime Minister. On
November 21, 1964 the President signed an order calling upon
the respondent to make such representation as he may wish to
make in the matter and to produce such evidence as he may
desire. The respondent submitted his representation on
December 7, 1964 and annexed therewith photostat copies of
two documents an almanac and a horoscope on which he relied
and certain affidavits. By his forwarding letter the
respondent prayed for an oral hearing before the President
to enable him "to adduce his evidence and to produce in
original the documents in the Annexures and to make
submissions in support of his case". The respondent
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repeated his request for oral hearing by a letter addressed
to the Secretary to the President on the same day. On
December 9, 1964 the Secretary to the Ministry of Home
Affairs wrote to the respondent asking him to send the
original documents copies of which "re annexures to his
representation to enable him-the Secretary to place them
before the President. On the same date, the Secretary to
the Ministry of Home Affairs also supplied to the respondent
a copy of his note dated November 17, 1964, seeking the
determination of the President, and copy of the President’s
directive dated November 21, 1964. After receiving the
copies the respondent by letter dated December 10, 1964
submitted an additional representation. On the same date
the respondent submitted to the Secretary, Ministry of Home
Affairs, documents in original relied upon by him in his
representation. On December 14, 1964 the respondent
addressed a letter to the Secretary to the President,
forwarding a copy of his additional representation, with
491
a request that representation together with the original
documents, which he had handed over to the Ministry of Home
Affairs, be called for from that Ministry and be placed
before the President. On December,21, 1964 the Secretary,
Ministry of Home Affairs sent a reply to the letter
directing the respondent to send all the. evidence that he
desired to rely upon and informing him that no oral evidence
of witnesses will be received, the respondent being free to
submit affidavits of witnesses. Referring to his request
for personal hearing it was stated in the letter that the
President will decide after considering the evidence
produced by the respondent whether any personal hearing
would be necessary, and that "should he decide that you
should be heard in person, you will be informed in due
course". On December 31, 1964 the originals of the
horoscope and the almanac submitted by the respondent were
sent to the Director of the Central Forensic Institute,
Calcutta by the Ministry of Home Affairs with the request
that the horoscope and the entry in ink in the margin of the
almanac be examined .,with a view to determine its
genuineness with particular reference to the age of the
paper on which the horoscope had been prepared; the age of
the ink used; and the age of the writing "with a similar
report as to the genuineness of the entry in ink in the
almanac. On January 4, 1965 the respondent submitted four
additional affidavits including his own affidavit affirming
that the writing on the margin of the almanac against the
date 12 Paus, 1311 B.S. was that of his maternal uncle,
Jadunath Bose, who had died \,\hen he the respondent was a
student of Oxford. By his letter dated February 3, 1965
addressed to the Secretary, Ministry of Home Affairs, the
respondent protested against the reference of the documents
to the expert, contending that the documents were obtained
from him on the representation that they "were required to
be placed before the President". The respondent demanded
that he be supplied a copy of the order of the President by
which such .reference to the expert had been made and also
copies of the correspondence between, the Home Ministry and
the forensic expert. He also requested that the originals
of the documents be returned to him so that he might have
them examined by an independent expert, who would, after his
examination, give evidence as to his opinion, by affidavit
or otherwise. In reply to that letter, the Secretary,
Ministry of Home Affairs wrote that the procedure to be
followed and the opportunities to be given to the respondent
depended entirely upon the discretion of the President and
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the question of returing the documents produced by the res-
pondent before determination of the matter, pending before
the President, did not arise at that stage. The respondent
was also informed that the question whether he should have
an Opportunity of filing expert evidence will be considered
in due course. He was also informed that the respondent
will be given an opportunity
492
to put forward his case about the evidentiary value of the
documents produced by him and any decision thereon would be
arrived at by the President after affording him reasonable
opportunities in that behalf.
There was some correspondence between the Director of the
Central Forensic Institute, Calcutta and the Ministry of
Home Affairs. The Commandant of the Institute opined that
it was " extremely difficult to solve dating problems in a
completely satisfactory manner". He initially sought
instructions whether he was at liberty to deface or mutilate
the documents, because the "test required could not be made
without extracting parts of the documents, but later wrote
that the mutilation of documents by the chemical test was
not desirable and moreover that by such application it would
not be possible to give an absolute date to the document.
Thereafter the Director reported on a "limited examination"
that could be carried out that it was not possible to give
any opinion relating to the age of the ink writing on the
almanac", but in his view the horoscope could not have been
written earlier than 1909, because the paper on which it was
written contained bamboo pulp which was not brought into the
use by the Titaghur Mills in the manufacture of paper before
1912. The Director said nothing about the age of the ink in
which the
After consultations between the Ministry of Home Affairs and
the Ministry of Law, the Home Ministry sent certain old
writings of the year 1904, 1949, 1950 and 1959, and
requested the Director to determine the age of the writing
of the disputed horoscope and marginal note in the almanac
by comparison. The Director on April 17, 1965 wrote that it
"was impossible to give any definite opinion by such
comparisons particularly when the comparison writings were
not made with the same ink on similar paper and not stored
under the same conditions as the documents under
examination", and that it "will not be possible for a
document expert, however reputed he might be, anywhere in
the world, to give any definite opinion on the probable date
of the horoscope and the ink writing in the margin of the
almanac".
After receiving the second report from the Director, the
Ministry of Law raised the question about the opportunity to
be given to the respondent before the President in the
enquiry for determining the age of the respondent under Art.
217 (3) . It was then decided to refer the question to the
Chief Justice of India for his advice. On July 24, 1965 the
Chief Justice of India advised the President about the
procedure to be adopted in the determination of the age of
the respondent. Thereafter pursuant to a
493
suggestion made by the Law Minister the Ministry of Home
Affairs wrote to the respondent on July 31, 1965 requiring
him to state the date or year of the horoscope. The
respondent by his letter dated August 4, 1965, stated that
it was not possible for him to give definitely the date or
year of the horoscope but he asserted that it was at least
in existence in the year 1921 when it was consulted on the
occasion of his marriage. On February 23, 1965 the
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respondent addressed a telegram to the President requesting
that an early decision of the question of his age may be
reached. On March 15, 1965 he addressed another telegram to
the President requesting leave to produce other documentary
evidence which he claimed may be available in East
Pakistan, but sometime thereafter he informed the Secretary,
Ministry of Home Affairs, that owing to lack of co-operation
on the part of the people in East Pakistan it was not
possible to get the evidence which was mentioned in his
letter to the President and that he must content himself
with the evidence he had already produced and which in his
view was "overwhelming". He further stated :
"You can, therefore, take it that I have no evidence to
produce on the subject of my age, unless I am driven to call
an expert or experts as indicated by me in my letter to you,
dated 3rd February, 1965".
On August 13, 1965, copies of the reports of the Director of
the Forensic Science Laboratory were forwarded by the Home
Secretary to the respondent with a forwarding letter by
which the respondent was informed that if he had any
comments to make on the opinion expressed by the Director
they may be submitted and that if the respondent desired he
may also adduce evidence in rebuttal in the form of expert
opinion supported by proper affidavit, and that the
comments, evidence and affidavits, if any, may be sent
within one month of the letter. On receipt of the letter of
the Home Secretary the respondent sent a telegram addressed
to the Home Secretary on September 1, 1965, praying that the
President may call for all papers and documents, if not
already sent for and grant him an audience, "If at all
necessary". The respondent also wrote a letter on that day
submitting that the evidence tendered by him was
"conclusive" and there was no question of adducing any
further evidence or any evidence in rebuttal. He also
submitted that the entry in the Bihar and Orissa Gazette
(declaring him successful at the matriculation examination)
was erroneous and concluded the letter that all relevant
documents be placed before the President, and that the
President "may be graciously pleased to grant "him" an
audience for the purpose of deciding the question of his
age".
The file of the respondent’s case was then submitted to the
President. On September’ 16, 1965 the President referred
the
494
matter to the, Chief Justice of India asking him for his
advice. On September 28, 1965 the Chief Justice recommended
that the age of the respondent be decided on the basis that
the respondent was born on December 27, 1901. The Chief
Justice set out in detail all the evidence including the
reports of Dr. Iyengar, Director of the Central Forensic
Science Laboratory, Calcutta bearing on the dispute as to
the true date of birth of the respondent. The Chief Justice
of India thereafter observed :
".......... the question which the President has to decide
is whether the date of Mr. Mitter’s birth mentioned on the
occasions when he appeared for the Matriculation Examination
as well as for the Indian Civil Service Examination, is
incorrect; and that would naturally turn upon whether it is
shown that the entry in ink on the margin of the almanac
showing that Mr. Mitter was born on 27-12-1904, was
contemporaneously made and is correct as alleged by him.
The horoscope on which Mr. Mitter relies, refers to the date
and time of his birth, but that does not help Mr. Mitter
very much, because it is obviously based upon information
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given to Jyotish-Sastri Shri Jogesh Chandra Deba Sarma on
the basis of the entry in the almanac. I have carefully
considered the reports made by Dr. Iyengar, the comments on
them made by Mr. Mitter, the affidavits on which Mr. Mitter
relies, and the almanac and the horoscope on which he bases
his case. I have also taken into account all the other
relevant facts relating to the past history of this dispute,
the conduct of Mr. Mitter, the grounds on which he
challenged the earlier orders passed in this matter, and I
have come to the conclusion that it is not shown
satisfactorily that the entry in ink on the margin of the
almanac was made contemporaneously and is correct as alleged
by Mr. Mitter. I am, therefore, unable to accept his case
that the date of his birth which was shown at the time when
he appeared for the Matriculation Examination as well as for
the I.C.S. Examination "was exaggerated".
I would, therefore, advised the President to hold that Mr.
Mitter has failed to show that he was born on 27-12-1904 and
not on 27-12-1901; and that the question about his age
should be decided on the basis that be was born on 27-12-
1901".
The file containing the advice was then returned to the Pre-
sident. It appears however that after the file was received
in the President’s Secretariat, it was sent to the
Secretary, Ministry of
495
Home Affairs for putting it up before the Home Minister
before submitting it to the President. The Home Secretary
on September 29, 1965 put up the matter before the Home
Minister with the following endorsement :
"A summary of the case will be found at slip ’Z’. The Chief
Justice of India has offered his advice in his
minute........ after going into the relevant material, H.M.
(Home Minister) may recommend to the President ,that the age
Shri J. P. Mitter may be determined in accordance with the
advice of the Chief Justice of India."
Home Minister and the Prime Minister countersigned that
endorsement. The file was then placed before the President
on the same day i.e. September 29, 1965. The President
recorded his decision that he accepted "the advice tendered
by the Chief Justice of India and "decided" that the age of
Sri Jyoti Parkash Mitter should be determined on the basis
that he was born on the twenty-seventh December nineteen
hundred and one".
The Secretary, Ministry of Home Affairs communicated the
decision of the President to the respondent. On October 15,
1965 the respondent addressed a letter to the President
praying that the decision which had been made without
affording him an audience should be reopened and that he
should be granted an audience in the presence of the Chief
Justice of India and a representative of the Home Ministry.
The Home Secretary informed the respondent that the
President’s decision was final and could not be reopened.
He also pointed out that though the respondent was offered
the opportunity of commenting on the opinion of the
Government expert, he-the respondent-had by his letter of
September 1, 1965 declined that offer.
On August 3, 1966, the respondent moved the petition out of
which this appeal arises claiming a writ in the nature of
mandamus commanding the Union of India (i) to act and
proceed in accordance with law, (ii) to rescind, recall and
withdraw the purported decision of the President conveyed to
him by the Secretary to the Government of India in his
letter dated October 13, 1965 and (iii) to forbear from
giving effect or further effect to the, purported decision
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of the President.
The petition was heard by D. D. Basu, J. After an elaborate
discussion of the history of the dispute and decisions of
the Courts in India and abroad, under diverse heads, the
learned Judge concluded :
that".......... the impugned order of the President, the
purport of which was communicated to the petitioner
496
(respondent) by the letter of the Home Secretary, dated ’13-
10-1965 is not a ’decision’ of the President in term of Art.
217 (3), because-
A. Whether the function is quasi-judicial or admini-
strative he acted as recommended by the Home Minister and
the Prime Minister, who are extraneous to the function under
Art. 217 (3);
B. The function being quasi-judicial-
(i) the President was not given sufficient time and
opportunity to exercise his independent judgment on the
question before him;
(ii) the petitioner was not given a personal hearing before
the President, as called for by the circumstances of the
case.
C. The jurisdiction of this Court to interfere on the
above grounds is not barred by the finality under Art. 217
(3)".
He directed the Union of India not to give effect to the
order ,of the President as communicated by the letter of the
Home Secretary dated October 13, 1965. The learned Judge
observed that ,-the Union of India, may, if so advised,
place the matter before the President again, within two
months from the date of the judgment, inviting him to decide
the age of the respondent in accordance with Art. 217 (3).
On behalf of the Union of India a prayer for a certificate
under Art. 132(1) of the Constitution was made. Observing
that the case involved a substantial question of law as to
the interpretation of article 217(3) of the Constitution,
D.D. Basu, J. granted the certificate prayed for under Art.
132 (1) of the Constitution. This appeal is filed pursuant
to that certificate.
Under Art. 132 (1) of the Constitution an appeal lies to the
Supreme Court from any judgment, decree or final order of a
High Court, whether in a civil, criminal or other
proceedings, if, the High Court certifies that the case
involves a substantial question of law as to the
interpretation of the Constitution. A single Judge of the
High Court may in appropriate cases certify that the case
involves a substantial question of law as to the
interpretation of the Constitution. But such a certificate
is intended to be given in very exceptional cases where a
direct appeal is necessary and in view of the grave
importance of the case an early decision of the case must in
the larger interest of the public or similar reasons be
reached. This case was not one in which a certificate
should have-
497
been asked for or granted. Against the decision of the
learned Judge,, an appeal lay to a Division Bench of the
High Court under the Letters Patent and no reason was
suggested for not moving the High Court. The order of the
President was made in 1961. The respondent could not on
the date of the order be reinstated because he was even on
his case more than 62 years of age. Since, however, a
certificate was asked for on behalf of the Union of India
and has been given, we have not thought it necessary to
vacate the certificate and to ask the Union to have resort
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to the normal remedy of an appeal to the High Court.
Article 217 (3) incorporated by the Fifteenth Amendment Act
in the Constitution was given retrospective effect from
January 26, 1950. On that account all question arising as
to the age of a Judge of the High Court had to be decided by
the President after consultation with the Chief Justice of
India. A dispute, relating to the age of the respondent who
was a Judge of a High Court in India was raised and the
President of India after consultation with the Chief Justice
of India decided that question. Normally judicial power
must be exercised by the authority in whom that power is
vested. But under Art. 217(3) power to decide the question
as to the age of a Judge of the High Court has to be
exercised after consultation with the Chief Justice of
India.
There is no substance in the contention of the respondent,
who argued his case personally that the decision was in
truth rendered by the Chief Justice of India and not by the
President. The President has expressly recorded that he
accepted the advice tendered by the Chief Justice of India
and that he decided that the age of the respondent be
determined on the basis that the respondent was born on the
twenty-seventh December nineteen hundred and one. The
President acted on the advice of the Chief Justice; he did
not surrender his judgment to the Chief Justice. The order
of the President is not open to challenge on the ground that
he did not reach his own conclusion.
It was, then urged that in rendering his decision there was
no consultation between the President and the Chief Justice
as required by the Constitution; that the President was
guided by the Minister of Home Affairs and by the Prime
Minister; that the President did not apply his mind to the
evidence in the case: that it was obligatory upon the
President to grant to the respondent an oral hearing and
since hp, did not do so the order was liable to be declared
invalid; that in any case the respondent had requested on
several occasions that an opportunity be given to him of an
oral hearing before deciding the case and that the case was
otherwise one in which an oral bearing should have been
given; that the executive was closely associated with the
President in making
498
the Ministry of Home Affairs, and the papers were sent by
the ’Chief Justice of India to the President but were
diverted by the Secretary to the President to the Ministry
of Home Affairs and after they were received with the advice
of the Chief Justice of India they were considered by the
Minister of Home Affairs and the Prime Minister and it was
only after they assented to the advice of the Chief Justice
of India that the papers were submitted to the President and
that the part played "by the Chief Justice of India was
contrary to all principles of natural justice".
We do not propose to deal with those contentions in the se-
quence in which they were urged before us for many of those
contentions overlap. It is true that the notice requiring
the respondent to show cause was issued pursuant to the
papers being submitted to the President and the notice was
in fact sent by the, Secretary to the Ministry of Home
Affairs. But we do not think that because the President was
assisted by the machinery of the Ministry of Home Affairs in
serving notices, and receiving communications addressed by
him it can be inferred that he was guided by that Ministry.
Apparently no rules have been framed regarding the enquiry
to be made by the President of India under Art. 217 (3).
This was the first case which arose in which the question of
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age of a Judge of the High. Court had to be decided. The
President has no secretarial facilities for serving notices
and for taking other steps in regard to enquiries to be made
under Art.. 217 (3).
After the Chief Justice of India sent the file of papers
with his advice to the President, the papers were not
immediately submitted to the President but were, sent to the
Ministry of Home Affairs. The Secretary recorded a note
requesting the Minister of Home Affairs to recommend to the
President that the age of the respondent may be determined
in accordance with the advice of the Chief Justice of India.
The Minister for Home Affairs and then the Prime Minister
placed their initials below the note. There is nothing in
the order that the Minister for Home Affairs acted upon the,
request made by the Secretary; he merely countersigned
papers and sent them- to the Prime Minister who also
countersigned the note. The argument that the Home Minister
and the Prime Minister signified their assent and thereafter
the President acted as if be was exercising the executive
authority on the advice of his Ministers has no force.
There is no reason to think that the. Minister for Home
Affairs or the Prime Minister acted in pursuance of the
request made, by the Secretary. There is again nothing in
the order of the President which may suggest that he was
swayed by anything which the Secretary to the Ministry of
Home Affairs bad noted or by the signatures of the Minister
for Home Affairs
499
or the Prime Minister. The terms of the order of the
President are clear : they show that the President was
acting on the advice of the Chief Justice of India and that
he decided the age of the respondent on that basis. Any
irregularity in the procedure, followed by the Secretary to
the President and the Secretary, Ministry of Home Affairs,
in sending the papers through the Minister of Home Affairs
and the Prime Minister as if the matter dealt with was
executive in character, does not, in our judgment, affect
the validity of the order made by the President or vitiate
it on the ground that he was guided by the Minister for Home
Affairs or by the Prime Minister.
The argument that there was no consultation between the
Chief Justice of India and the President is also without
substance. Consultation contemplated by the Constitution is
not a , dialogue. Under Art. 217(3) the President is
required to consult the Chief Justice of India before
determining the question as to the age of a Judge of the
High Court. The President must before deciding the age of a
Judge under Art. 217 (3) obtain the advice of the Chief
Justice of India. For obtaining that advice the President
undoubtedly must make available all the evidence in his
possession to the Chief Justice of India. The Chief Justice
has to submit his advice to the President on that evidence.
It is not a condition of the validity of the decision by the
President that the President and the Chief Justice should
meet and discuss across a table the pros and cons of the
proposed action, or the value to be attached to any piece of
evidence laid before the President and made available to the
Chief Justice. The procedure followed in the present case
of sending to the Chief Justice of India the file of papers
relating to the evidence against the respondent and in his
favour, and of obtaining his advice fully complied with the
constitutional requirements as to consultation with the
Chief Justice of India when he rendered his advice to the
President.
The President had given ample opportunities at diverse
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stages to the respondent to make his representation. All
evidence placed before the President when he considered the
question as to the age of the respondent was disclosed to
him and he-respondent-was given an opportunity to make his
representation thereon. There is nothing in cl. (3) of Art.
217 which requires that the Judge whose age is in dispute,
should be given a personal hearing by the President, The
President may in appropriate cases in the exercise of his
discretion give to the Judge concerned an oral hearing but
he is not bound to do so. An order made by the President
which is declared final by cl. (3) of Art. 217 is not
invalid merely because no oral hearing was given by the
President to the Judge concerned. An Opportunity to make
representation to the Judge, after apprising him of the
evidence which was likely to be used
500
against him and consideration of the representation and the
evidence comply with the requirements of Art. 217 (3). The
respondent it is true did make requests that the President
should give him an oral hearing. The respondent claims that
his request was granted and he remained under an impression
that he would be given an oral hearing, and the order made
without granting him an opportunity of an oral
representation was contrary to the rules of natural justice.
By his representation dated December 7, 1964, the respondent
had requested that he be given an oral hearing before the
President and an opportunity to adduce his evidence and to
produce in original the documents, viz. an almanac and a
horoscope, and to make submission in support of his case.
IL- repeated that request in the letter addressed to the
Secretary to the President also on the same day. In reply
thereto by letter dated December 21, 1964, the Secretary to
the Ministry of Home Affairs informed the respondent that no
oral evidence of witnesses would be received but the
respondent was free to submit the affidavits of Witnesses as
he relied upon. Regarding his request for the personal
hearing the respondent was informed that the President will
decide after considering the evidence whether any personal
hearing was necessary. He was also informed that should the
President decide that the respondent should be heard in
person, he will be informed in due course. Again in reply
to the letter written by the respondent on January 4, 1965,
the Secretary to the Ministry of Home Affairs informed the
respondent that the procedure to be followed and the
opportunities to be given to the respondent were entirely to
depend upon the direction of the President and the res-
pondent will be given an opportunity to put forward his case
about the evidentiary value of the documents produced by him
and any decision thereon would be arrived at by the
President after affording him reasonable opportunities in
that behalf. By his letter dated April 28, 1965, to the
Secretary, Ministry of Home Affairs, ,the respondent stated
that he had no further evidence to produce on the subject of
his age, beside the evidence he had already produced. By
his telegram dated September 1, 1965, the respondent
requested the President to send for the papers and
documents, if not already sent for, and, to grant him an
audience "if at all necessary". But in his letter
addressed to the Secretary of the Ministry of Home Affairs
on the same day he stated that all the papers may be placed
before the President and the President may be "pleased to
grant an audience for the purpose of deciding the question
of his age."
Article 217 (3) does not guarantee a right of personal
hearing. In a proceeding of a judicial nature, the basic
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rules of natural justice must be followed. The respondent
was on that account entitled to make a representation. But
it is not necessarily an inci-
501
dent of the rules of natural justice that personal hearing
must be given to a party likely to be affected by the order.
Except in proceedings in Courts, a mere denial of
opportunity of making an oral representation will not,
without more, vitiate the proceeding. A party likely to be
affected by a decision is entitled to know the evidence
against him, and to have an opportunity of making a re-
presentation. He however cannot claim that an order made
without affording him an opportunity of a personal hearing
is invalid. The President is performing a judicial function
when he determines a dispute as to the age of a Judge, but
he is not constituted by the Constitution a Court. Whether
in a given case the President should give a personal hearing
is for him to decide. The question is left to the
discretion of the President to decide whether an oral
hearing should be given to the Judge concerned. The record
amply supports the view that the, President did not deem it
necessary to give an oral hearing. There were no
complicated questions to be decided by the President. On
the one hand there was the evidence of the matriculation
certificate and the representation made by the respondent
before the Board of Commissioners in the United Kingdom when
the respondent submitted himself for being admitted to the
Indian Civil Service Examination. On the other hand there
was the evidence of the assertion made by the respondent
that he was born on December 27, 1904, which was sought to
be supported by the almanac with an entry in the margin, a
horoscope, an affidavit of Panchkari Banerjee, Secretary to
the then Chief Justice Sir Arthur Trevor Harries in which it
was stated that the question about the age of the respondent
was discussed with the Chief Justice. The truth of the
statements made by the respondent had to be judged in the
light of his conduct, that he gave no evidence of the date
of his birth when he was appointed permanent Judge of the
High Court, nor when in 1960 opportunity was given to him to
furnish material in support of his contention regarding his
age. If upon this evidence the President was of the view
that the disputed question may be decided without giving an
opportunity of personal hearing, this Court cannot set aside
the order on the ground that the order was made without
following the rules of natural justice.
It was urged that the President left India in the afternoon
of September 29, 1965 on a tour of East European countries
and that he had not sufficient time to consider the advice
tendered by the Chief Justice of India and of going through
all the evidence which was placed before him and of giving
any judicial consideration to the matter before him. Having
regard to the "strict-time-table" which was required to be
observed, it was urged that the President treated the matter
as formal, and guided by the advice of the Home Minister and
the Prime Minister he mechanically accepted
502
the advice of the Chief Justice of India and surrendered his
own judgment to the judgment of the Chief Justice of India.
But on this part of the case there is no reliable evidence.
No such ground was raised in the High Court. In this Court
in the affidavit in reply filed by the respondent on
February 24, 1967 in answer to the additional affidavit of
the Union of India the respondent stated two new grounds (I)
that the Chief Justice of India had privately advised the
Ministry of Home Affairs as to the conduct of the enquiry or
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reference under Art. 217 (3) of the Constitution and he was
on that account disentitled to tender advice to, or to be
consulted by, the President under Art. 217 (3), and that the
"part played by the Chief Justice of India relative to the
reference was against all principles of natural justice and
fair play and vitiated his own purported advice to the
President as well as the purported decision of the President
rendering the purported decision a nullity"; and (2) that
"the President of India left New Delhi shortly after noon on
September 29, 1965, on a tour of East European countries and
Ethopia and that shortly before his departure a relative to
the said reference was placed before him for his signature
in token of his purported decision as to "the respondent’s
age with the recommendation of the Prime Minister and the
Home Minister to determine the age of the respondent in
accordance with the advice of the Chief Justice of India".
He annexed thereto a copy of the daily edition of the
Statesman dated September 30. 1965, evidencing the departure
of the President as aforesaid and his purported decision as
to the question of the age of the respondent before his
departure for Europe. But no attempt was made to have the
matter investigated in the High Court as to when the papers
were submitted to the President and what consideration he
gave to the advice, whether he made only a mechanical
approach believing that he was bound to accept the advice of
his Ministers. These are matters which cannot be canvassed
for the first time in this Court.
On the plea that the Chief Justice of India had improperly
advised the Minister of Home Affairs as to the conduct of
enquiry and the reference, and on that account he had
disentitled himself to tender any advice to the President
also no allegation was made in the petition and no argument
was raised in the High Court. There is no evidence that
beside tendering advice to the President in matters of
procedure and the final decision, the Chief Justice of India
had given any advice to the Ministry of Home Affairs
privately or otherwise. The argument that the Chief Justice
of India in tend,--ring the advice was influenced by
extraneous considerations is not founded upon any materials
placed before this Court and must be rejected.
The respondent invited our attention to a judgment of the
Judicial Committee in B. Surinder Singh Kanda v. Government
503
of the Federation of Malaya.(1). In that case the
Commissioner of Police Malaya passed an order dismissing one
Kanda, an Inspector of Police, on the ground that at an
inquiry before an adjudicating officer Kanda was found
guilty of failing to disclose evidence at a criminal trial.
Kanda contended that after the coming into force of the
Constitution of Malaya that power was only in the Police
Service Commission, to which the, Commissioner was a
subordinate authority and that failure to supply him a copy
of the report of the board of inquiry which contained
matters highly prejudicial’to him and which had been sent to
and read by the adjudicating officer before he sat to
inquire into the- charge, amounted to a failure to afford
the appellant Kanda "a reasonable opportunity of being
heard", in answer to the charge within the meaning of
article 135 (2) of the Constitution of Malaya and to a
denial of natural justice. Lord Denning who delivered the
judgment of the Judicial Committee considered the question
whether the hearing by the adjudicating officer was vitiated
because that officer was furnished with the report without
inspector Kanda being given any opportunity of correcting or
contradicting it. Before the High Court of Malaya the
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question posed was whether there was a real likelihood of
bias, that is "an operative prejudice, whether conscious or
unconscious" on the part of the adjudicating officer. The
Court of Appeal held that there was no likelihood of bias.
In the opinion of Lord Denning however the proper approach
to the case was different. "The rule against bias is one
thing. The right to be heard is another. Those two rules
are the essential characteristics of what is often called
natural justice. They are the twin pillars supporting it.
But they are separate concepts and are governed by separate
considerations. In the present case Inspector Kanda
complained of a breach of the second. He said that his
constitutional right had been infringed. He had been
dismissed without being given a reasonable opportunity of
being heard.
If the right to be heard is to be a real right which is
worth anything, it must carry with it a right in the accused
man to know the case which is made against him. He must
know what evidence has been given and what statements have-
been made affecting him : and then he must be given a fair
opportunity to correct or contradict them. It follows of
course, that the Judge or whoever has to adjudicate must not
hear evidence or receive representations from one side
behind the back of the other. The court will not inquire
whether the evidence or representations did work to his
prejudice. Sufficient that they might do so. The court
will not go into the likelihood of prejudice. The risk of
it is enough. No one who has lost a case will believe
(1) [1962] A.C. 322.
504
he has been fairly treated if the, other side has had access
to the Judge without his knowing ".
Relying upon the observation the respondent contended that a
likelihood of prejudice is sufficient to vitiate the
proceedings. But in this case we do not think that there
was any likelihood of bias or of prejudice. All evidence
which the President had to consider had been placed before
him at diverse stages. When the notice to show cause was
issued, the President had prima facie material before him.
Thereafter certain other evidence was collected and that was
also placed before the President. it is not suggested that
any evidence against the respondent was not disclosed to
him. The principal argument raised by the respondent was
that the President himself did not determine the question
relating to the age of the respondent because he surrendered
his judgment to the Chief Justice of India or that he was
persuaded to reach his conclusion only because the Home
Minister and the Prime Minister had countersigned the
notation made by the Secretary of the Ministry of Home
Affairs. We do not think that the President had heard any
evidence or received any representation from one side behind
the back of the other. If he had done so the question
whether any representation was made which worked to the
prejudice of the respondent would arise. The Court will not
then consider the question whether the representation had in
fact worked to his prejudice. A reasonable possibility may
be sufficient. In the present case no evidence was placed
before the President or considered by him which was not
disclosed to the respondent. The principle in B. Surinder
Singh Kanda’s case(1) has therefore no application.
It is necessary to observe that the President in whose name
all executive functions of the Union are performed is by
Art. 217 (3) invested with judicial power of great
significance which has bearing on the independence of the
Judges of the higher Courts. The President is by Art. 74 of
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the Constitution the constitutional head who acts on the
advice of the Council of Ministers in the exercise of his
functions. Having regard to the very grave consequences
resulting from even the initiation of an enquiry relating to
the age of a Judge, our Constitution makers have thought .
it necessary to invest the power in the President. In the
exercise of this power if democratic institutions are to
take root in our country, even the slightest suspicion or
appearance of misuse of that power should be avoided.
Otherwise independence of the judiciary is likely to be
gravely imperilled. We recommend that even in the matter of
serving notice and asking for representation from Judge of
the High Court where a question as to his age is raised, the
President’s Secretariat should ordinarily be the channel,
(1) [1962] A.C. 322.
505
that the President should have consultation with the Chief
Justice of India as required by the Constitution and that
there must be no interposition of any other body or
authority, in the consultation between the President and the
Chief Justice of India. Again we are of the view that
normally an opportunity for an oral hearing should be given
to the Judge whose age is in question, and the question
should be decided by the President on consideration of such
materials as may be placed by the Judge concerned and the
evidence against him after the same is disclosed to him.
The President acting under Art. 217(3) performs a judicial
function. of grave importance under the scheme of our
Constitution. He cannot act on the advice of his Ministers.
Notwithstanding the declared finality of the order of the
President the Court has jurisdiction in appropriate cases to
set aside the order, if it appears that it was passed on
collateral considerations or the rules of natural justice
were not observed, or that the President’s judgment was
coloured by the advice or representation made by the
executive or it was founded on no evidence. But this Court
will not sit in appeal over the judgment of the President,
nor will the, Courts determine the weight which should be
attached to the evidence. Appreciation of evidence is
entirely left to the President and it is not for the Courts
to hold that on the evidence placed before the President on
which the conclusion is founded, if they were called upon to
decide the case they would have reached some other
conclusion.
The appeal is allowed. Having regard however to the circum-
stances of the case, we direct that there will be no order
as to costs.
Y.P. Appeal
allowed.
506