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How two Supreme Court decisions saved Justice DVSS Somayajulu’s appointment to the HC [Read Affidavit and Order]

Recently, a PIL was filed before the High Court of Judicature at Hyderabad, challenging the appointment of Justice D. V. S. S. Somayajulu, on the ground that the appointee was not qualified for appointment as mandated under Article 217(2) of the Constitution of India.

In the PIL, the petitioner stated that the appointee is an advocate from Visakhapatnam mofussil Bar in Andhra Pradesh and was neither a member of A. P. High Court Advocates’ Association nor a member of Telangana High Court Advocates’ Association. Since the appointee does not even have a Computer code, he was not even eligible for filing cases in the High Court. Hence it was prayed that a writ in the nature of writ of Quo-Warranto be issued declaring the appointment of Justice DVSS Somayajulu as an Additional Judge of High Court, in the year 2017 as illegal, arbitrary, violative of Article 217(2) of the Constitution of India.

The PIL was dismissed stating that the writ petition is mischievous, devoid of merits and is against the settled principle of law especially in light of the decision of Supreme Court in Prof. Chandra Prakash Agarwal v. Chaturbhuj Das Parikh and Mahesh Chandra Gupta v. Union of India. But it does throw up certain pertinent questions regarding the interpretation of Article 217(2) of the Constitution of India.

According to the petitioner in the PIL, for being appointed as a judge of the High Court, the person should not only be an Indian citizen but also have “at least ten years been an advocate of a High Court or of two or more such Courts in succession” as stated in Article 217(2) of the Constitution. The question thus arises as to whether an advocate, who practices in District Courts with no appearance before the High Court, is eligible to be appointed as a High Court Judge. But is seems that this is not the first time such question has arisen before the Courts.

The first case that arose for consideration was Prof. Chandra Prakash Agarwal v. Chaturbhuj Das Parikh. In a similar set of facts, a writ petition was filed before the High Court at Allahabad for issuance of a writ of quo warranto against the appointment of the respondent as a judge of the High Court citing Article 217(2) of the Constitution of India as bar for the appointment. It was urged that the expression “an advocate of a High Court” in Art. 217(2)(b) meant an advocate practicing in the High Court and not one practicing in a court or courts subordinate to-the High Court. For putting across such an interpretation, the language used in Art. 124(3) (Qualifications for appointment as a Judge of the Supreme Court) and in Art. 233(2) (Qualifications to be appointed as District Judge) was relied on to show that the Constitution has employed different language in connection with different purposes thereby making a deliberate distinction between “an advocate” and “an advocate of a High Court”. The former meaning an advocate practicing in a court or courts subordinate to the High Court and the latter meaning an advocate practicing in a High Court.

The difference in the language, it was contended, indicated that whereas a person to be appointed a district judge need be only an advocate of the prescribed standing, the one to be appointed a Judge either of a High Court or the Supreme Court must be an advocate who has practiced for the required number of years in a High Court or two or more High Courts in succession. It was further contended that such an indication is also furnished by the language of Art. 124(3) (a) and (b), in the sense that just as the expression “a judge of a High Court” in sub-cl. (a) must mean a Judge who has worked as a Judge in the High Court, the expression “an advocate of a High Court” must similarly mean an advocate who has practiced in a High Court. When a difference of opinion arose between Justices W. Broome and G. Kumar, the matter was referred to Justice Mathur, who had proceeded to dismiss the Writ Petition, who agreed with Justice Broome’s interpretation that the expression “an advocate of a High Court” meant an advocate enrolled as an advocate of a High Court, irrespective of whether on such enrolment he practiced in a High Court or a court or courts subordinate to the High Court.

The order of the High Court of Allahabad was assailed before the Supreme Court. The 5 judge bench of the Supreme Court, consisting of Justices S. M. Sikri, J. M. Shelat, V. Bhargava, G. K. Mitter and C. A. Vaidyalingam agreed with the reasoning of Justice Mathur and Justice Broome. The Court while referring to Section 4, 8 and 41 of the Legal Practitioners Act, 1879 held that advocates enrolled-under s. 41 were enrolled as advocates of a High Court and were entitled, once enrolled, to practise either in the High Court or courts subordinate to such High Court or both. There was thus no distinction between those who practiced in the High Court and those who practiced in the courts subordinate to such High Court. The Court also referred to the Indian Bar Councils Act, 1926, which, by virtue of its provisions, also created no distinction between such advocates.

The Court referring to the definition of ‘pleader of a high court’ in Government of India Act, 1915 and Government of India Act 1935, and drawing parallels to the expression ‘advocate of a High Court’ in Article 127(2) of the Act, held that the terms imply that a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practice in the High Courtand that “There is nothing an any of these provisions to indicate that an advocate of a High court can only be that advocate who has been practicing in the High Court.”

The Court negated the contention of the petitioner regarding the language used in Art. 233(2) and Art. 217(2)(b) holding that, “distinction, if any, between the words “an advocate” in Art. 233(2) and the words “an advocate of a High Court” in Art. 217(2)(b) has no significance in any event after the coming into force of the Advocate Act, 1961, as by virtue of s. 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.”

The issue cropped up before the Supreme Court again in the year 2009 in the case of Mahesh Chandra Gupta v. Union of India, when a practicing advocate, filed a Writ Petition under Article 226 of the Constitution before the Allahabad High Court on 18.8.2008 challenging the appointment of an Additional Judge of the Allahabad High Court on the ground that he was not eligible for such an appointment by virtue of Article 217(2) of the Constitution as he lacked basic eligibility qualification i.e he had not practiced as an advocate for at least ten years in the Allahabad High Court and that he did not hold Judicial Office of a judicial service subordinate to Allahabad High Court. The Allahabad High Court filed a transfer petition before the apex court and the matter was transferred to it.

The Apex Court while examining Art. 217(2) of the Constitution considered whether “actual practice” as against “right to practice” was the prerequisite constitutional requirement of the eligibility criteria under the Article. The Court held that whereas Article 217(1), dealt with “who should be elevated”, Article 217(2) dealt with the question as to “who could be elevated”. The Court held that enrollment of an advocate under the 1961 Act comes in the category of “who could be elevated” whereas the number of years of actual practice put in by a person comes into the category as to “who should be elevated” . The Bench of Justices S. H. Kapadia and Aftab Alam while citing in approval the judgment of the Supreme Court in Prof. Chadra Prakash Agarwal, traced the legal history of the Legal Practitioners Act, 1879, the Indian Bar Councils Act, 1926 and the Advocates Act, 1961, and held,

Thus, it becomes clear from the legal history of the 1879 Act, 1926 Act and 1961 Act that they all deal with a person’s right to practice or entitlement to practice. The 1961 Act only seeks to create a common Bar consisting of one class of members, namely, Advocates. Therefore, in our view, the said expression “an advocate of a High Court” as understood, both, pre and post 1961, referred to person(s) right to practice. Therefore, actual practice cannot be read into the qualification provision, namely, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as “an advocate of the High Court”. The substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on “right to practice” and not actual practice.

As regards the usage of the term “an advocate of a High Court” in Article 217(2)(b) by the Constitution makers, the Court held that the term is used to confine the qualification for appointment as a Judge of a High Court to only one instead of four categories that were present prior to the enactment of the Advocates Act, 1961. As regards the term “two or more such courts in succession” in Article 217(2)(b), the Court held that the same is not of much relevance as “prior to the 1961 Act, when a person was an advocate enrolled in a High Court, the words “in succession” suggested that a person enrolled in more than one High Court could not multiply his years of enrolment by the number of courts in which he stood enrolled”.

It seems the entire position has been settled both in practical terms as well as in judicial terms. Practically, precedents have been set, including the elevation of Justice Alagiriswamy, (from the Madurai Bar), Justice K. A. Sengottuvelan (from the Coimbatore Bar), Justice K. M. Natarajan and Justice V. Kanagaraj (both from the Salem Bar) to the Madras High Court. Justice Alagiriswamy went on to retire as a Judge of the Supreme Court.

The High Court of Judicature at Hyderabad came down heavily on the petitioners and observed,

After referring to all the aforementioned decisions of the Supreme Court whereunder the issue has already received approval in a particular way, the learned Counsel for the petitioners raised three contentions before us, namely, (1) that the interpretation given in those cases were a dishonest interpretation of law; (2) that a dishonest interpretation of the Constitution cannot be taken to be law; and (3) that in any case, such a dishonest interpretation cannot be taken to be a binding precedent.


Quoting a passage from H. M. Seervai in his Book “Constitutional Law of India” the learned counsel for the petitioners contended that the whole theory of precedents proceeds on the basis that the judgments become binding precedents, only if they had been delivered honestly.

The Court further observed,

The learned counsel for the petitioners also invited our attention to several quotable quotes from eminent men such as Dr. B. R. Ambedkar, Sir John Panrell et al, to buttress his contention as to how law is to be interpreted. But judicial discipline demands that we follow judicial precedents and not proverbs and quotations, irrespective of the wisdom found in those quotes and irrespective of the greatness of people who said them. In fine, we find that the writ petition is mischievous and completely devoid of merits. The contention that this Court should declare the decisions of two Constitution Benches of the Supreme Court as illegal, is abhorring, atrocious and obnoxious. Therefore, this writ petition is dismissed as not maintainable.

The judicial precedents seem to be settled by virtue of the decisions of the Court in Prof. Chandra Prakash Agarwal and Mahesh Chand Gupta, whereby the Court interpreted the term “advocate of the High Court” in Article 217(2) of the Constitution, as indicating any person whose name is enrolled on the State Bar Council being regarded as an advocate of the High Court irrespective of the fact that the advocate was actually practicing before the High Court or not.

Read the Affidavit filed by the Petitioners below:

Read the Order of the High Court of Judicature at Hyderabad below:

 

 

HT to Baddam Aravind Reddy and Manav Gecil Thomas, Advocates at High Court of Judicature at Hyderabad.

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