Jyoti Prakash Mitter v. UNION OF INDIA — 1967 DIGILAW 184 (CAL)

JUDGMENT 1. THIS case has assumed historic importance for reasons more than one. This is the first case where the president's power under clause (3) of article 217 has been exercised to determine the age of a High Court Judge, after the insertion of that clause by the fifteenth Amendment of the Constitution, and the first case where the interpretation of that provision has been called far. 2. THE instant case has a long history behind it, travelling through various courts and Benches, over a controversy which arose in the year 1961, in this way : the petitioner was appointed an additional Judge of the Calcutta High court in 1949 and made permanent on 21.1.50. He then gave his date of birth as the 27th December 1904, and in 1956, he declared it formally. In 1959, the Government of India, in pursuance of an anonymous letter, sought to re-open the question of the petitioner's age, pointing out that a higher age than that which had been declared by the petitioner, was stated in his Certificate for the Matriculation Examination. Thereafter, the Government of India held the petitioner's correct date of birth to be the 27th December 1901, and, in pursuance of that decision, the Home Secretary to that Government wrote to the petitioner on 16.5.61, asking him to demit his office after Court hours on the 26th December 1961 [vide text of the order at page 179 of (1) AIR 1963 Cal 178 and p. 490 of (2) AIR 1963 Cal. 483 ], in accordance with the decision of the government of India as to the age of the petitioner, on the basis of his Matriculation certificate granted by the Patna University and as published in the Bihar and Orissa Gazette of 26.6.18; and the records of the U.K. Civil Service commission relating to the Indian civil Service Examination of 1923. This opened what I call the first chapter of the litigation, leading up to (3) AIR 1965 SC 961 . We are now on the second chapter, starting from after the said decision of the Supreme Court, the stages in the first chapter were as follows: (i) A proceeding under article 226 of the Constitution before the Punjab high Court in November, 1961. We are now on the second chapter, starting from after the said decision of the Supreme Court, the stages in the first chapter were as follows: (i) A proceeding under article 226 of the Constitution before the Punjab high Court in November, 1961. In this petition, the petitioner prayed for a declaration against the Union of India that he was entitled to hold his office till 27.12.64 (when he would attain 60 years, according to the date of birth declared by himself) and a writ in the nature of Mandamus to restrain the respondent not to give effect to its decision conveyed by the Home Secretary's letter of 16.5.61, referred to earlier. The Punjab High Court issued Rule on 16.11.61 but discharged it as not maintainable on 4.12.61. (ii) Failure of the petitioner to obtain special leave from the Supreme Court to appeal against the preceding order of the Punjab High Court [vide (4) AIR 1964 SC 1636 (1638)]. (iii) A petition under article 226 before Banerjee, J., of the Calcutta High court under article 226, presented on 2.1.62 (Matter No. 11 of 1962. It appears that a copy of the letter of the Home Secretary of 16.5.61 had been forwarded to the Chief Justice of the Calcutta High Court and, in pursuance thereof, the latter withdrew the orderlies of the petitioners and gave directions that no cases would appear in the Daily List in the petitioner's court from after the Christmas Vacation, on the assumption that the petitioner retired on 27.12.61, as directed by the Government of India [vide (1) AIR 1963 Cal. 178 (181)]. This led the petitioner to bring the petition under article 226 before banerjee, J., asking for appropriate writs to compel the Chief Justice of the High court (who was the sole respondent)to treat him as continuing in office even after 27.12.61 and to allocate judicial work to the petitioner, urging that the decision of the Government of India, in pursuance of which the Chief Justice had been so acting, was illegal, arbitrary and unconstitutional, and that the chief Justice had no jurisdiction to act upon the same in the manner he had done. Banerjee, J., however, dismissed the petition in limine on 3.1.62, by a judgment, reported as (1) J. P. Mitter v. H. K. Base, AIR 1963 Cal. 178 : 66 CWN 211. Banerjee, J., however, dismissed the petition in limine on 3.1.62, by a judgment, reported as (1) J. P. Mitter v. H. K. Base, AIR 1963 Cal. 178 : 66 CWN 211. (iv) Appeal against the order of Banerjee, J., to a Divisional Bench of this High Court, under the Letters Patent. There was difference of opinion between the two learned Judges (G. K. Mitter and Laik, JJ.- vide (5) AIR 1963 Cal. 183 : 67 CWN 662. (v) The said appeal was, accordingly, referred to a Special Bench of three judges. The Special Bench of three judges (P. N. Mookerjee, S. P. Mitra and R. N. Dutt, JJ.) allowed the appeal and directed that a Rule should issue in favour of the petitioner [vide (2) 67 CWN 664 (691) : AIR 1963 Cal. 483 ]. (vi) Appeal before the Supreme Court against the preceding decision of the Special Bench, by the Chief Justice of the Calcutta High Court, which was dismissed by the Supreme Court on 14.10.63 [vide (4) Himansu v. Jyoti prakash, AIR 1964 SC 1636 ]. At this stage, I must mention a change in the constitutional background which took place when the appeal before the Supreme Court was being argued [vide p. 1642 of (4) AIR 1964 SC 1636 : 1 SCA 347]. On the 6th of Oct, 1963 i.e., only a week before the Supreme court could pronounce its judgment on the appeal from the decision of the Special bench in the matter of Rule nisi, the Constitution (Fifteenth Amendment)Act, 1963 was passed and assented to by the President, by which was inserted clause (3) to article 217, in the following terms: "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. " (vii) The appeal against the judgment of the Special Bench of this Court having been dismissed by the Supreme Court, Rule nisi was issued on 28. 3. 63 against the Chief Justice of this Court, as directed by the Special Bench. (viii) The Rule was then heard by a Special Bench of five Judges of this court (P. N. Mookerjee, Mallik, Banerjee, das Gupta and Chatterjee, JJ.. 3. 63 against the Chief Justice of this Court, as directed by the Special Bench. (viii) The Rule was then heard by a Special Bench of five Judges of this court (P. N. Mookerjee, Mallik, Banerjee, das Gupta and Chatterjee, JJ.. There was again a difference of opinion,- the majority of 4 dismissed the petition under article 226 and discharged the Rule, - P. N. Mookerjee, J., dissenting [vide unreported Judgment, dated May 21, 1964 a copy of which has been presented before me at the hearing, by the petitioner]. (ix) Appeal by the petitioner to the supreme Court, by special leave, against the majority decision of the Special bench, just referred to. Disposal of the appeal by the Supreme Court on 9. 11. 64, on certain terms [(3) Jyoti Prakash v. Chief Justice, AIR 1965 SC 961 : 2 SCA 747], rejecting the view taken by the majority of the Special Bench. It transpired in course of the litigation in the first chapter that the letter issued by the Home Secretary on 16.5.61 had, in fact, been issued in pursuance of an order of the President made on 15.5.61. This order is referred to in the opening paragraph of (3) AIR 1965 SC 961 . It appears that after the correct date of birth had been determined by he Home Minister to be 27. 12. 01, it was proposed to convey to the Petitioner that, according to the aforesaid decision, the petitioner should demit his office on the afternoon of 26.12.61, placing before the President a note together with the draft of the letter which was eventually issued by the Home Secretary on 16. 5. 61. The proposal of the Home Minister was agreed to by the Prime Minister and then 'approved' by the President on 15.5.61. I shall have occasion to refer more fully to the text of the note just referred to and the nothings on the File which culminated in the order of 'approval' of the President, dated 15.5.61, which are fully set out at pages 39-42 of the cyclostyled copy of the unreported judgment of P. N. Mookerjee, J., dated May 21 and 22, 1964. In view of the fact that the Constitution (Fifteenth Amendment) Act, 1963 inserted, with retrospective effect, article 217 (3), and that this provision was relied upon by the Union of India to uphold the validity of the President's order dated 15.5.61, just mentioned, the Supreme Court was called upon to determine whether this order of the president, though made in 1961, could be upheld as a decision of the president under article 217 (3), in view of the fact that it was retrospective in operation. The Supreme Court negatived this contention, holding, inter alia, that - (a) A judge does not cease to be a Judge merely because a dispute has been raised about his age and the same is being considered by the President (p. 697, para. 24, ibid. (b) A decision of the Home Minister, even though it is made by the Home minister, after consulting the Chief Justice of India, and approved by the President, does not become a decision of the President under article 217 (3)[paragraph 26, ibid]. (c) The Executive could not determine the age of a High Court Judge, whether before or after the insertion of article 217 (3), inasmuch as that would impair the independence of the Judiciary (paragraph 29, ibid. (d) Nor could this be done by arbitration, even though directed by the president (paragraph 27, ibid. (e) The age of a High Court Judge can, however, be determined by the president, provided he complies with the following requirements, which follow from article 217 (3), expressly or impliedly - (i) that, before giving his decision, the President consults the Chief Justice of India, formally (paragraphs 21, 27, ibid); (ii) that the Judge in question is offered a reasonable opportunity to put before the President his contention, his version and his evidence, in accordance with the requirements of natural justice (paragraphs 21, 29, ibid. (f) Since the impugned order of the President of 15.5.61 did not comply with the foregoing requirements, it could not be upheld as a decision of the president in terms of article 217 (3). After this finding, normally, the Rule obtained by the petitioner should have been made absolute, with a direction upon the Union of India not to enforce the said order of the President. After this finding, normally, the Rule obtained by the petitioner should have been made absolute, with a direction upon the Union of India not to enforce the said order of the President. It appears from the concluding paragraph of the judgment (paragraph 31, ibid), however, that instead of urging for that order, the petitioner consented to an order to the effect that the matter would again be placed before the President for his formal decision in accordance with the requirements of article 217 (3), as interpreted by the Supreme Court. In the end, the Court gave the following direction -". . . . . 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 article 217 (3)". As to the consequences that would result from the fresh decision of the president as aforesaid, it appears that the Court recorded a consent order to the following effect: "both parties have agreed before us that - (i) 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 and will continue to be a Judge until he attains the age of superannuation ; (ii) on the other hand, if the decision of the President goes against the appellant, the said order of the Chief justice of the Calcutta High Court would be held to be valid and proper. " The instant petition before me opens the second Chapter, - being a sequel of the decision of the Supreme court, reported in (3) AIR 1965 SC 961 ,- a decision to which I shall have to refer frequently in course of my judgment, with reference to pages of the 1965 Supreme Court Volume of the All India Reporter. In pursuance of the direction in (3) AIR 1965 SC 961 , the Home Ministry initiated the steps for placing the matter over again before the President. Since the relevant File of the Home Ministry (Judl. In pursuance of the direction in (3) AIR 1965 SC 961 , the Home Ministry initiated the steps for placing the matter over again before the President. Since the relevant File of the Home Ministry (Judl. I/3/10/64) has been produced before me at the hearing, it would be convenient to refer to the important steps appearing from this File (hereinafter referred to as 'the File' with reference to pages of this File)-though, it must be said at the outset, all of the relevant materials contained herein were not disclosed to the petitioner until the File was produced in Court. (a) On 17.11.64, the Secretary of the Home Ministry drew up a note (pages 1-2), stating the history of the litigation up to the decision of the Supreme court in (3) AIR 1965 SC 961 , and invited the President to determine the age of the petitioner, under art. 217 (3), as a first step towards such determination, the President was requested to -"authorise the Secretary, Ministry of Home Affairs, to issue notice in the matter to Sri J. P. Mitter as in the draft attached. "the draft referred to is to be found at pages 2-3n of the File. The note of the Secretary, with the request was submitted to the President through the home Minister and the Prime Minister and on 21.11.64, the President acceded to the request by signing the order at p. 1n., by which he directed the Secretary of the Home Ministry to call upon the petitioner to make "such representation as he may wish to make in the matter and produce such evidence as he may desire 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 27th December 1904. "(b) In compliance with the notice issued, accordingly, by the Home Ministry, on 24.11.64 (pages 60-62 of the petition), the petitioner, on 7.12.64, submitted his representation (pages 65-82 of the petition), with the forwarding letter at p. 5/c of the File. With the representation, he annexed photostat copies of the documents on which he relied namely, an almanac and a horoscope and some affidavit (vide p. 19 of the File. With the representation, he annexed photostat copies of the documents on which he relied namely, an almanac and a horoscope and some affidavit (vide p. 19 of the File. In the forwarding letter, the Petitioner prayed for an oral hearing before the President - (i) to adduce his evidence and to produce, in original, the documents in the Annexures ; and (ii) to make submissions in support of his case. He repeated these prayers in a letter addressed to the Secretary to the president the same day (p. 9n. of the file. (c) On 9.12.64, the Secretary of home Ministry wrote to the petitioner to send the originals of the annexures to his representation, for being placed before the President (p. 7n. On the same date, the Home Secretary also supplied to the petitioner a copy of his note of 17.11.64, seeking the determination of the President, and copy of the President's directive dated 21.11.64, in compliance with the request made by the petitioner on 1.12.64 (p. 4n.), for copies of these documents. (d) On receipt of the copies just mentioned, the petitioner, on 10.12.64, submitted an additional representation (pp. 94-101 of the petition ; pp. 13-18n. of the File), stating that he had to make this additional representation inasmuch as the copies in question were not supplied to him when he was originally called upon to submit his representation (p. 99 of the petition. On the same date, the petitioner also submitted to the Home Secretary originals of the documents relied upon by him in his original representation. (e) On 14.12.64, the petitioner addressed a letter to the Secretary to the president, forwarding a copy of his additional representation, for being placed before the President, with a request that the original documents, which he had handed over to the Ministry of Home affairs, should be called for from that ministry for being placed before the president (p. 100 of the petition. (f) On 21.12.64, the Secretary to the Home Ministry sent a reply (p. 20/c of the File) to the letter addressed by the petitioner to the Secretary to the president on 7.12.64. The draft of the letter was, of course, shown to the Secretary of the President and the Chief justice of India before issue. In this letter, the petitioner was directed to send all the evidence that he wanted to rely upon, to the Home Secretary. The draft of the letter was, of course, shown to the Secretary of the President and the Chief justice of India before issue. In this letter, the petitioner was directed to send all the evidence that he wanted to rely upon, to the Home Secretary. It was also indicated that no oral evidence of witnesses would be received but that the petitioner was free to submit the affidavits of witnesses he relied upon. As to the personal hearing sought for by the petitioner, the reply was as follows : "as to the question of hearing you personally, the President will decide after considering the evidence produced by you whether any personal hearing would be necessary. Should he decide that you should be heard in person, you will be informed in due course. " (g) On the 31st December 1964, the originals of the horoscope and the almanac in Bengali which had been submitted by the petitioner were sent to the Director of the Central Forensic institute, Calcutta, by the Home Ministry, by the forwarding letter at p. 21n of the File, with the request that the horoscope and the entry in ink in the margin of the almanac should be examined "with a view to determine its genuineness with particular reference to (1) the age of the paper on which the horoscope had been prepared, (2)the age of the ink used, and (3) the age of the writing" with a similar report as to the genuineness of the entry in ink in the almanac. The forwarding letter also stated the matter in dispute and gave the versions of the petitioner and the Government as to the petitioner's date of birth. (h) On 4.1.65, the petitioner submitted 4 additional affidavits of witnesses including himself, wherein he stated 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 when the petitioner was a student at Oxford, -which must be long before he was appointed a Judge of the High Court. (i) Coming to know that the originals of the documents submitted by him to the Home Secretary had been sent to a forensic expert to test their genuineness, on 3.2.65, the petitioner wrote to the Home Secretary (p. 40n. of the file; pp. (i) Coming to know that the originals of the documents submitted by him to the Home Secretary had been sent to a forensic expert to test their genuineness, on 3.2.65, the petitioner wrote to the Home Secretary (p. 40n. of the file; pp. 112-3 of the petition), in which the petitioner - (1) protested against the reference of the documents to the expert, after obtaining them on the representation that they "were required to be placed before the President"; (2) asked for a copy of the order of the President by which such reference to the expert had been made ; (3) asked for copies of the correspondence or orders by which the procedure to be followed at the inquiry had been laid down ; (4) asked for copies of the correspondence between the Home Ministry and the expert to whom the documents had been sent; (5) suggested that had he been informed before the documents had been sent to the Government expert, the petitioner would have asked for a joint examination of the documents by experts nominated by both the parties and (6) asked for a return of the originals of the documents so that he might have them examined by an independent expert, either in India or abroad, who would, after his examination, give evidence as to his opinion, by affidavit or otherwise. (j) In reply to the preceding letter of the petitioner, the Home Secretary wrote the letter at p. 42n. of the File. He did not send any copy of any order having been made by the President on any of the matters referred to in the petitioner's letter but stated - (1) What procedure was to be followed and what opportunities were to be given to the petitioner "are entirely dependent upon the discretion of the president as has been pointed out by the supreme Court." (2) "the question of returning the documents produced by you before the determination of the matter, now pending before the President, is completed does not arise at this stage. " (3) "the question of your offering any expert evidence would be considered in due course. " (3) "the question of your offering any expert evidence would be considered in due course. " (4) "there is no doubt that you will be given an opportunity to put forward your case about the evidentiary value of the documents produced by you and any decision thereon would certainly be arrived at by the President after affording you reasonable opportunities in this behalf. " (k) In the meantime, some correspondence took place between the Forensic institute and the Home Ministry. In his letter of 5.1.65 (p. 37n.), the commandant of the Institute wrote that "it is extremely difficult to solve dating problems in a completely satisfactory manner", and then sought for 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. No reply having been forthcoming, on 20.1.65, the Director of the Institute, Mr. Iyengar wrote to the Joint Secretary of the Home Ministry (p. 38n.)that mutilation of the documents by the chemical test suggested in the earlier letter was not desirable. "moreover, by such application it will not be possible to give an absolute date to the document". He, therefore, intimated that he was applying other modes of examination and that he would submit his report, on hearing from the Home Ministry. Thereupon, the Home Ministry, on 1.2.65, requested the Director "to send your report to the extent of the limited examinations you consider possible" (p. 39n).. The Director, Mr. lyengar, therefore, submitted "my report on limited examination that could be carried out" (pp. 43n.-45n.. In this report of 12.2.65, which we may call his first report he stated that - (i) It was "not possible to give any opinion as to the age of the ink writing on the almanac. " (ii) "it appears that the horoscope could not have been written earlier than 1969", because the paper on which it was written contained bamboo pulp, which was not brought into use for the making of paper earlier than 1912, by the Titaghur Paper Mills. He said nothing about the age of the ink in which the horoscope had been written. (1) On receipt of this first report from Dr. He said nothing about the age of the ink in which the horoscope had been written. (1) On receipt of this first report from Dr. Iyengar, there was inter-departmental consultation between the home Ministry and the Law Ministry, in course of which the Law Minister, on 19.2.65, advised that the age of the writings on the horoscope and almanac should be ascertained from the Director of the Institute by sending him some admitted writings of the years 1904, 1949, 1950 and 1959 (p. 18 of the File. The object was to compare the age of the ink used in the disputed documents with other contemporaneous documents, as will appear from the note of the joint Secretary of the Home Ministry of 27.2.65 (p. 20 of the File. The Home Ministry, accordingly, sent a Top Secret letter to the Director, forwarding some old writings of 1904, 1949, 1950 and 1959 and requested him to determine the age of the writings of the disputed horoscope and marginal note in the almanac, by comparison (p. 53n of the File. The reply of Dr. Iyengar, dated 17.4.65, is significant from many points of view (p. 58n.. He writes - (i) "it is impossible to give any definite opinion by such comparisons particularly when the comparison writings are not made with the same ink on similar paper and not stored under the same conditions as the documents under examination. " (ii) ". . . . . . 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. " (iii) "i invite your attention to your letter. . . . dated 31st December 1964 (vide p. 21n. of the File), where it is stated that Sri Mitter claims that the horoscope was prepared at the time of his birth in December 1904. My detailed report sent to Secretary, Ministry of home Affairs. . . . . . dated 12th February 1965 (pp. 43n.-45n.) furnishes clear scientific evidence against this claim. The horoscope could almost certainly not have been prepared in 1904. As bamboo was used as paper-making material. . . . . . for the first time in 1912 the horoscope could not have been prepared before this date. . . . . . dated 12th February 1965 (pp. 43n.-45n.) furnishes clear scientific evidence against this claim. The horoscope could almost certainly not have been prepared in 1904. As bamboo was used as paper-making material. . . . . . for the first time in 1912 the horoscope could not have been prepared before this date. " (m) After the second report was received, the Law Ministry raised the question as to what opportunities should now be given to the petitioner before the President to come to his determination under article 217 (3) (pp. 23-26 of the File. It was decided to refer the question to the Chief Justice of India for his 'advice' and this had the approval of the President (p. 27. On 24.7.65, the Chief Justice of India gave his advice as to the procedure to be adopted hereafter (pp. 28-29 of the File. When the matter came up before the law Minister again (p. 30), the Minister suggested that the date or year of the horoscope should be ascertained from the petitioner himself. The Home ministry accordingly wrote to the petitioner on 31.7.65 (p. 61n. of the File) and the reply of the petitioner, dated 4.8.65 p. 64n), was 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. He also stated that his parents had died in 1932-33 and the maker of the horoscope had also died two years ago, as supported by the affidavit of Keshab Rakshit who was the manager of the family estate. (n) In the meantime, the petitioner became impatient of the delay in the disposal of the matter and on 23.2.65 he sent a telegram direct to the President for an early decision of the question of his age (p. 50/c of the File), and on 15.3.65 he sent another telegram to the President for leave to produce further documentary evidence which was stated to be available from East Pakistan (p. 56/c of the File. On 28.4.65, however, he wrote to the Secretary, home Affairs, to say that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get that evidence which was mentioned in his letter to the President, he added,-"I must, therefore, content myself with the evidence I have already produced which I consider overwhelming. You can, therefore, take it that I have no further 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" (pp. 59-60/c. (o) On 13.8.65, the two reports of the Director of the Forensic Science Laboratory were forwarded by the Home secretary to the petitioner with a forwarding letter (p. 66/c of the File; p. 122 of the petition), by which the Petitioner was informed that - (1) "if you have any comments to make on the opinion expressed by the director, they may be sent to me" ; (2) "you may also adduce evidence in rebuttal, if you so desire, in the form of expert opinion supported by proper affidavits"; (3) "your comments, evidence and affidavits, if any, may be sent within one month of the receipt of this letter. " copies of the three documents which showed that his date of birth was the 27th December 1901 were also forwarded with this letter to the petitioner, - (a) relevant extracts from the Bihar and Orissa Gazette of 26.6.18, (b) a letter from the Civil Service Commission, London, (c) regulations for examination for the Indian Civil Service. (p) On receipt of the preceding letter of the Home Secretary the petitioner sent a telegram to the President (p. 69/c)and a letter to the Home Secretary (p. 71/c of the File and p. 128 of the petition) on the same date - 1. 9. 65. In the telegram, he stated-"reports of Dr. N. K. Iyengar as to family almanac and my horoscope support that case I have throughout made and corroborate the evidence tendered. . . . . . earnestly pray that your gracious self be pleased to call for all papers and documents, if not already sent, and to grant me an audience, if at all necessary. " these statements were elaborated in the letter as follows: (a) "Dr. . . . . . earnestly pray that your gracious self be pleased to call for all papers and documents, if not already sent, and to grant me an audience, if at all necessary. " these statements were elaborated in the letter as follows: (a) "Dr. Iyengar's report supports the case I have throughout made and corroborate the evidence I have tendered. It will be my submission to the President of India that my evidence as to the question of my age is conclusive. Accordingly, there is no question of adducing any further evidence or any evidence in rebuttal. " The statement that was made in the home Ministry's letter to Dr. Iyengar dt. 31.12.64 that "Sri Mitter claims that the horoscope was prepared at the time of his birth in December, 1904", was wholly incorrect and that as far back as 1961 he had, in his writ petition before the Punjab High Court, stated that the horoscope in question was prepared "while the Petitioner was but a few years old". Hence, Dr. Iyengar's conclusion that the horoscope could not be prepared before 1912 or, at the earliest, 1909, was not inconsistent with the Petitioner's statement in the writ petition referred to inasmuch as the Petitioner was only a few years old in 1909 or 1912, if born in 1904. (b) As to the entry in the Bihar and Orissa Gazette, the Petitioner stated that the copy of the extract sent by the Home Ministry did not tally with the photograph of the entry in the gazette of the same date which the petitioner had in his possession. He also reiterated the statement he had made in his first representation to the president that in the absence of the records of the School where the Petitioner had been educated an entry in the gazette giving the age of the candidate did not furnish any basis for determining the correct age of the person. He also reiterated his earlier statement that there was no requirement under the civil Services Regulations to make any declaration of the age of a candidate and that the letter from the Civil Service commission could not constitute primary evidence, so as to override the contemporary evidence tendered by the petitioner as to the date of his birth. He also reiterated his earlier statement that there was no requirement under the civil Services Regulations to make any declaration of the age of a candidate and that the letter from the Civil Service commission could not constitute primary evidence, so as to override the contemporary evidence tendered by the petitioner as to the date of his birth. At the end, the Petitioner added that since a considerable time had elapsed since the decision of the Supreme Court, "all relevant documents be now placed before the President of India. He may be graciously pleased to grant me an audience for the purpose of deciding the question of my age. " (r) Upon receipt of the foregoing letter of the petitioner the File was submitted to the President and the president, on 16.9.65, referred it to the chief Justice of India - "I would be grateful for the advice of the Chief Justice of India on the question that has arisen as to the age of Shri J. P. Mitter" (p. 36 of the File. (s) The Chief Justice of India, on 28.9.65, recorded on the file his advice that the question about the petitioner's age "should be decided on the basis that he was born on 27.12.1901" (pp. 37-40. The Chief Justice of India forwarded the file direct to the President but it appears from the noting at page 41 of the File that the "secretary to the President" sent the File to the Secretary of the Home Affairs "for putting it up to the Home Minister before it is submitted to the President. " the Home Secretary, accordingly, on 29.9.65, put up the matter before the home Minister with the following note -"a summary of the case will be found at slip 'z'. The Chief Justice of India has offered his advice in his minute from p. 37/n. after going into the relevant material. H. M. may recommend to the President that the age of Sri J. P. Mitter may be determined in accordance with the advice of the Chief justice of India. The Chief Justice of India has offered his advice in his minute from p. 37/n. after going into the relevant material. H. M. may recommend to the President that the age of Sri J. P. Mitter may be determined in accordance with the advice of the Chief justice of India. " the Home Minister and thereafter the Prime Minister countersigned the above note to signify their assent and thereafter the matter was presented before the President on the same date, i.e., 29.9.65, and the President recorded his decision as follows : "I accept the advice tendered by the chief Justice of India and decide that the age of Shri J. P. Mitter should be determined on the basis that he was born on the 27th December 1901. 29.9.65. " (vide Ann. Y to the additional counter-affidavit of the Deputy Secretary of the home Secretary. This order of the President, determining the age of the petitioner, was not supplied to the petitioner, when the communication at p. 133 of the petition-p. 75/c of the File was sent to him. It (Ann. Y) has been furnished in, course of the hearing before me, with the Additional affidavit of the Deputy Secretary of the Home Ministry as late as the 23rd February 1967 together with a copy of the advice tendered by the chief Justice of India (Ann. X) to the president in that behalf. (t) As just staled, after the President recorded his decision, the Home secretary communicated to the petitioner the purport of that decision by his letter dated (p. 133 of the petition) as follows : "I write to inform you that the President has, after consultation with the chief Justice of India, decided that you should be treated as having reached the age of sixty years on the twenty-seventh December nineteen hundred and sixty-one on the basis that you were born on the 27th December 1901. . . . " (ii) Before the petitioner received the foregoing communication from the home Secretary, the petitioner was apprised of the fact through the Press that the President had made a decision adverse to him. . . . " (ii) Before the petitioner received the foregoing communication from the home Secretary, the petitioner was apprised of the fact through the Press that the President had made a decision adverse to him. He, therefore, by his letter of the 15th October 1965 (p. 132 of the petition) addressed to the President prayed that his decision, which had been made without offering 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. (v) On 10.11.65, the Home Secretary, informed the petitioner (p. 134 of the petition) that the President's decision was final and could not be reopened. It was added that though offered the opportunity of commenting on the opinion of the Government expert, the petitioner had by his letter of 1.9.65 (p. 128), declined that offer. (w) On 26.7.66, the petitioner demanded justice by his notice at p. 136 of the petition, and on 3.8.66, he brought the instant petition under article 226 against the Union of India. 3. The substantial ground in the petition, as in his demand for justice, is that the impugned order of the President does not constitute a decision in terms of article 217 (3) of the Constitution. The other grounds urged will appear from my judgment. The petitioner prays, inter alia, that the respondent should be directed not to give effect to the impugned order. 4. The Union of India opposes the petition by its affidavit-in-opposition dated 3.10. 66. Subsequently, an additional affidavit-in-opposition was filed on 23.2.67, to which the petitioner submitted his rejoinder on 24.2.67. I shall deal with the various points urged on either side, under separate heads. The learned Advocate-General has placed a number of hurdles in the way of the petitioner towards the merits. The first of these is that this court has no jurisdiction to entertain the instant petition. The question of jurisdiction. 5. THE jurisdiction of this court has been questioned both from the substantive and adjective points of view [paragraphs 3 (a)- (b) of the counter-affidavit]. 6. (A) The question as to the territorial jurisdiction may be disposed of with a fewer words. The question of jurisdiction. 5. THE jurisdiction of this court has been questioned both from the substantive and adjective points of view [paragraphs 3 (a)- (b) of the counter-affidavit]. 6. (A) The question as to the territorial jurisdiction may be disposed of with a fewer words. It has been urged that the impugned determination by the President having been made at Delhi and acted upon by the Union of India having its seat there, the High Court of Calcutta has no jurisdiction to question the validity of the impugned order. This might have been the law on the point prior to the insertion of clause (1a) in article 226 of the Constitution, by the Constitution (Fifteenth Amendment) Act, 1963, with effect from 6. 10. 63. But the new clause says-" (1a) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any high Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such government or authority or the residence of such person is not within those territories. " We have, therefore, to find out whether the petitioner's cause of action arose, even in part, within the territorial jurisdiction of the Calcutta High Court. 7. IT is evident from the decision in (3) AIR 1965 SC 961 that the previous decision of the Government of India in pursuance of which the Chief justice of the Calcutta High Court asked the petitioner to retire from his office with effect from 27.12.61 was reopened by the Supreme Court on the finding that the decision of the Government of India on the basis of which that order of the Chief Justice of the Calcutta high Court had been made could not be upheld as an order of the President under article 217 (3), even though that provision had been given retrospective effect. It is clear that so long as a valid order under article 217 (3) was not made, the petitioner must be deemed to have continued in his office until he retained the age of superannuation according to the date of birth as it had so far been accepted. It is as a result of the impugned order at p. 133 of Ann. It is as a result of the impugned order at p. 133 of Ann. A to the petition, dated 13.10.65, that the petitioner's service as Judge of the Calcutta high Court has terminated and that is how the cause of action for the present petition has arisen in part in Calcutta, even though the order itself might have been issued at Delhi. 8. This preliminary point must, therefore, fail. (B) From the substantive stand-point, the learned Advocate-General contended that to entertain this petition would be to question the propriety of what the President, the Head of the state, has done, and to grant any relief to the petitioner would amount to compelling the President to do it once again according to the directions of this court ; but this could not be done because the President is not subject to the jurisdiction of this court. Since this argument has been advanced with all seriousness, I beg to be excused for dealing with it at the basic level. 9. This argument overlooks the express provisions of the second proviso to article 361 (1) of our Constitution and, further, suffers from the obsession of the Hobbesian Leviathan and the politico-theological doctrine of the Divine right of Kings which lay at the foundation of monarchical absolutism in England which was transmitted to India through Imperialism. But the fathers of our Nation have replaced that imperialism by a Republican form of Government prescribed by the Constitution of Free India. Our president is the Head of our State not by virtue of birth but because of the love and admiration of the multitude of this sub-continent. He is not there by sufferance or because of fear, but as "the majesty of the people incarnate" (cf. Borgan, Government of the People, p. 118), As such he is worthy of respect from the administrator, legislator and Judge alike. In England, it was held that the prerogative writs cannot issue against the Crown itself because it cannot be proceeded against in contempt which is the sanction to enforce obedience to such writ [(6) R. v. Powell, (1841) 1 QB 352 (361)]. In England, it was held that the prerogative writs cannot issue against the Crown itself because it cannot be proceeded against in contempt which is the sanction to enforce obedience to such writ [(6) R. v. Powell, (1841) 1 QB 352 (361)]. The doctrine was so extended by the aid of the maxim 'king can do no wrong' that mandamus was not available even against a public servant or any other agent of the Crown [(7) R. v. Secretary v. State, (1891) 2 QB 326 (334) CA], unless constituted a separate legal entity by statute. In the result, a person aggrieved by the action of the Crown or its servants could expect any relief only ex gratia, as a suppliant, by the undemocratic procedure of a Petition of right, until the maxim 'king can do no wrong' was exploded by Parliament after three hundred years of struggle, by enacting the Crown Proceedings act, 1947. 10. The Constitution of India also offers personal immunity to the Heads of the State, namely, the President and the Governors of States, but it is not founded on such technical and narrow grounds ; to subject the constitutional heads of the State to the jurisdiction of the courts for their official acts would be contrary to the very republican system which has been set up by the Constitution. But this is not to render the individual who is affected by any such act remediless. A steadfast adherence to that ideal, to-day, would not defile but hallow the 'image of India' and instal it in the foremost rank in the democratic world. The second proviso to article 361 says -"provided further that nothing in the clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State. "this proviso makes it clear that the personal immunity of the head of the state does not bar any suit being brought or any writ being issued against the government, where the suit or proceeding would have been otherwise maintainable against the Government. In cases in which action lies against the government the action of the President or the Governor, as the case may be, may, therefore, be scrutinised by the courts in order to give relief to the individual against the Government. 11. In cases in which action lies against the government the action of the President or the Governor, as the case may be, may, therefore, be scrutinised by the courts in order to give relief to the individual against the Government. 11. TO do so would be to show no disrespect to the President but only to demonstrate that his acts are impersonal and that the Government of this country under the Constitution is a 'government of laws, not of men'. These words, put into the Massachussets Declaration of rights by John Adams, are not peculiarly American, but form the crux of the political and judicial system which has been adopted, in its essence, by the makers of our Constitution. 12. THAT indeed is the precise meaning of the expression 'rule of Law' which stands at she foundation of the constitutional system adopted by us, -a meaning not often realised by many who utter the expression as a slogan. The concept of Rule of Law, necessarily involves Judicial Review, - not to enthrone the Judiciary over the Executive or the Legislature, - but for the purpose of maintaining the Law, which is "the King" in a Republican country, as thomas Paine asserted, with all seriousness (see Corwin, the Higher Law background of American Constitutional law, 42 Harv. Law Review, 149. Even in a regime of absolute monarchy, this was the answer of Chief Justice Coke to the ambitious James I who claimed to dispense Justice by virtue of his Divine right and Wisdom in the case of (8) Prohibitions Del Roy, (607), to which I shall advert presently. In deciding causes against the state, in particular, a Judge has often to choose between allegiance to his oath and judicial conscience on the one hand and allegiance to his employer on the other ; between the grace of his Creator and the pleasure of the 'power that be', but he can ill afford to forget that at the foundation of his office lies his solemn pledge "to uphold the Constitution and the laws" "without fear or favour. " Nor can he turn a deaf ear to what the most celebrated of judges ever born said at a time when the darkest of clouds loomed over Justice and the Rule of Law -". . . . . . " Nor can he turn a deaf ear to what the most celebrated of judges ever born said at a time when the darkest of clouds loomed over Justice and the Rule of Law -". . . . . . true it was, that God had endowed His Majesty with excellent science, and great endowments of nature ; but His Majesty that not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience. . . . . . . . ; that the law was the golden met-wand and measure to try the causes of the subjects. . . . . . . ; with which the King was greatly offended and said, that then he should be under the law, which was treason to affirm. . . . . . ; to which I said, that bracton saith, quod Rex debet esse sub homine, sed sub Deo et lege. " [coke, C. J. in Prohibitions del Roy, (1607) 12 co. Rep. 63. ] 13. MORE curiously, in performing its task to maintain the Rule of Law, courts have sometimes to interfere with what would otherwise appear to be the will of the Legislature itself. But that, as has been said by Shastri, C. J., of our Supreme Court [(9) State of Madras v. V. G. Rao, (1952) SCR 597 (605)], is done "not in a crusader's spirit," but because it has, under the Constitution of the realm, the duty to do so. Even under an unwritten Constitution, similar is the apology for interference with legislative ants in proper cases and at the proper stage - as offered by the court of Appeal in (10) R. v. Electricity commissioners, (1924) 1 KB 171 (213)-"if that be the true view of the statute, the interference of the Court in such a case as this, and at this stage, so far from being even in the most diluted sense of the words a challenge to its supremacy, wilt be of assistance to parliament. It will relieve each House to some extent at least from the risk of having presented to it for approval by resolution schemes which go beyond the powers committed by the statue to the Commissioners who made them. . . . . . . . ". 14. NOR are the Judges themselves above the Rule of Law. Under the anglo-Saxon system of justice which we have adopted, a Judge looks not to the face of the suitors before him nor of those who are likely to be affected by his awards but to the scriptures to administer which he has taken his oath. It is from this fountain of immutable justice that sprang a case like (11) Dimes v. Grand Junction Canal Company, (1852) 3 HLC 758, where a decree of the Lord Chancellor Cottenham, in a chancery suit, was quashed on the ground that the Lord Chancellor had an interest in the plaintiff company, unknown to the defendant, even though "no one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern. " The Judges of the king's Bench who advised that the very existence of the interest made the derision of the Lord Chancellor voidable were unanswered by the fact that the lord Chancellor was the most powerful dignitary under the English system,-stalking over all the three branches of the Government, - the head of the Judiciary to whose recommendation all the other Judges owe their appointment, the Chairman of the Upper House of the legislature and a member of the Cabinet which wield the Executive power. (C) Fortunately for us, maintainability of proceedings against the union of India for an order made by the President, even in his quasi-judicial capacity, is not without a precedent in our Reports. Kapur Singh, a member of the Indian Civil Service was dismissed by the President, after an inquiry made against him under the Public Servants (Inquiries) Act, 1850. This order of the President was challenged by the civil Servant by a petition under article 226 of the Constitution on the ground, inter alia, that he had not been given a reasonable opportunity within the meaning of article 311 (2) and the case went on appeal to the Supreme Court. This order of the President was challenged by the civil Servant by a petition under article 226 of the Constitution on the ground, inter alia, that he had not been given a reasonable opportunity within the meaning of article 311 (2) and the case went on appeal to the Supreme Court. Though the Court dismissed the appeal [vide the Report in (12) (1960) 1 SCA 680, which reproduces the judgment in full] on the merits on the ground that the requirements of natural justice had not been violated in the facts of the case (p. 698), it was assumed that 'natural justice' had to be complied with in the proceedings (pp. 695, 698) before the president could award any punishment under article 311 (2), and nobody did suggest that the impugned order was immune from the jurisdiction of the court under article 226 because it had been made by the President. 15. (D) It will be evident from the supreme Court judgment in (3) AIR 1965 SC 961 , itself that relief can be given to the petitioner without issuing a command upon the President to revise his decision. From that judgment it would appear that in 1961 too, though it was the Home Minister who had decided the dale of birth of the petitioner, he also obtained an endorsement of "approved" from the President (p. 968. But the Supreme Court held that this did not amount to a 'decision' of the president within the meaning of article 217 (3). Eventually, therefore (p. 968), the Court passed the following order-". . . . . 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 of the appellant's age under article 217 (3)". 16. THERE is no reason why this court cannot pass an order against the government of India, if that Government be subject to its jurisdiction and if the petitioner succeeds on the merits to establish that the impugned order too, does not constitute a 'decision' of the president under article 217 (3). (C) Learned Advocate-General, however, contends that, by the insertion of article 217 (3), the Constitution has, excluded a Judge of a High court from the protection of the words 'any person' in the proviso to article 361 (3). (C) Learned Advocate-General, however, contends that, by the insertion of article 217 (3), the Constitution has, excluded a Judge of a High court from the protection of the words 'any person' in the proviso to article 361 (3). Such a contention, however, would, apart from any other consideration, impute to those who brought about the amendment a flagrant discrimination against a Judge of a High Court, for the corresponding provision regarding a Judge of the Supreme Court, in article 124 (2a), has been made dependent upon parliamentary legislation which has not been so far undertaken and may never be undertaken as there is no machinery provided by the Constitution to compel the initiation of such legislation. 17. IF the decision of the President under article 217 (3) be completely non-justiciable, another unreasonable intention shall have to be imputed to the authors of article 217 (3), namely, that the position of the Judges of the highest tribunals, instead of being the most secure and independent, as was sought to be ensured by other provisions of the original Constitution, such as tenure on good behaviour subject only to impeachment, guaranteeing salary etc, against legislative interference, - would be less enviable than that of a man in the street, for, while the latter has the right to have his age, when questioned by anybody else in the world, determined by a court of law. the Judge will have to submit to the non-justiciable award of the President, made in camera, -even where it appears not to be a decision in conformity with the requirements of the constitutional provision which empowers the President in this behalf. If the position was like that the Supreme Court itself, in (3) AIR 1965 SC 961 , could not possibly refer the matter again for a proper decision of the President under article 217 (3).