Judgment :- (N.K. JAIN, ACTING CHIEF JUSTICE) I.1. This Public Interest Litigation petition has been filed by VOICE Consumer Care Council, represented by its Founder Trustee, praying to issue a writ of declaration, declaring Article 217(3) of the Constitution of India as amended by Constitution 15th Amendment as unconstitutional, violative of basic structure, inconsistent with Articles 124 (4) and 217(1) of the Constitution of India, and the President cannot exercise the discretion under Article 124 (2A). 2. Office has pointed out some objections regarding the question of maintainability as to how the P.I.L. petition is maintainable. On the endorsement of the learned counsel, the matter is posted before this Court for deciding the question of maintainability. 3. Learned counsel appearing for the petitioner submitted that the validity of the provisions of the Article can be challenged by any public or anybody representing to save the rule of law and the judiciary. 4. Learned counsel for the petitioner submits that the petitioner is a voluntary consumer organisation registered under the Trusts Act and to raise voice of the genereal public in the legal manner, and the petitioner, a practising advocate, is “founder Trustee. It is further represented that the organisation has voiced some Public Interest Litigation matter and they have been taken on file by the Courts and one such matter is pending before the Honble Supreme Court of India also. 5. Learned counsel further submitted that when once a Judge is appointed and a tenure is fixed, he cannot be removed without following proper procedure of impeachment. The President of India cannot exercise his discretion under Art. 124 (2A) of the Constitution. It is further submitted that no occasion has arisen earlier to challenge the 15th Amendment, though 36 years have passed but, now due to this communication, he has challenged the same. He relied on the observations of Mr. H.M. Seervai, Senior Advocate, which had been made after the decision of Jyoti Prakash v. Chief Justice , (A.I.R. 1965 S.C. 961). A portion of the Commentary runs as follows: “.. He relied on the observations of Mr. H.M. Seervai, Senior Advocate, which had been made after the decision of Jyoti Prakash v. Chief Justice , (A.I.R. 1965 S.C. 961). A portion of the Commentary runs as follows: “.. Since the age given for the purpose of appearing at various examinations is relevant to the person qualifying for them, the Constitution should provide that the age given by a Judge when appearing for a qualifying professional examination shall be treated as the age of that Judge and shall be gazetted on the date of appointment and the age so gazetted shall be conclusive proof of his age for the purpose of Articles 124 and 217..” 6. We have heard the learned counsel for the petitioner and perused the materials on record including the decision of Union of India v. Jyoti Prakashs case reported in 1971 SC 1093. 7 In an appropriate case, this Court, on satisfaction can pass an order/direction in Public Interest Petition, filed by an individual. But, at the same time, PIL petition cannot be used for a political gain, for mere publicity or for his own cause/benefits. So far as the Organisation/Trust is concerned, there must be a resolution to challenge the grievances which affect the aims and objects and welfajre of the organisation/Trust, further authorising by a resolution, a person to challenge the same, in the Court of law. It is also to be seen that any organisation, once formed without its continuance and complying with its by-laws and other requirements as per law for its existence on the date of filing the writ, cannot challenge. So also, a self-proclaimed trust cannot agitate any issue, without satisfying the Court that the same is within the purview qf its aims and objections, in the garb of PIL. 8. In the instant case, the petitioner has not filed any Memorandum containing the aims and objects of the organisation/trust. It has also not been alleged that one of the aims and objects of the organisation/trust is to challenge any notification issued on the ground of vires. No resolution of the members of the Trust has been filed. Learned counsel has not filed any authority/resolution that he has been authorised to file this petition. It has only been averred that the Organisation/Trust is to take care of the consumer activities and raise voice of the general public in the legal manner. No resolution of the members of the Trust has been filed. Learned counsel has not filed any authority/resolution that he has been authorised to file this petition. It has only been averred that the Organisation/Trust is to take care of the consumer activities and raise voice of the general public in the legal manner. This is not sufficient to have a locus standi to challenge the notification on the ground of even vires after 36 years; when the aggrieved person has not challenged the same. Otherwise also, it is to be seen as to whether the organisation/trust is in existence and is complying with as per the Trust Deed and the other requirements as per law. It is further to be seen whether an advocate/senior advocate can become a trustee or the member of the organisation/trust without informing the Bar Council of Tamil Nadu, under the relevant rules. So, the petitioner without placing any material to satisfy the Court, cannot take advantage, that his work was appreciated and a PIL was entertained by the Supreme Court, admittedly when these points were not raised and considered earlier. Otherwise also, this petition is not maintainable on the same analogy, as per the decision rendered in Ashok Reddys case reported in 1994 (2) SCC 303 . 9. No doubt, law inconsistent or in derogation of the Fundamental Rules can be held ultra vires or void to that extent. But at the same time a constitutional provision cannot be challenged with reference to another Constitutional provision on the ground of ultra vires. So also to remove repugnancy, if any, if the Constitution itself is amended subsequently, then impugned law become”, free from all bemish. That apart, law does not include Constitution. 10. The age of the Honble Supreme Court Judges was 62 before the amendment. While considering that issue only, the 15th Constitutional Amendment came into play and accordingly they have given effect to Article 217 (3) empowering power to Parliament to decide the age of Honble Judges of Supreme Court, and other provisions, which are self-content, remain in tact without changing the original procedure. The President is’ the only competent Authority to determine the age of a Judge of High Court. In the inst ant case, the age has been determined by the President, which has not been challenged by the aggrieved Judge himself. The President is’ the only competent Authority to determine the age of a Judge of High Court. In the inst ant case, the age has been determined by the President, which has not been challenged by the aggrieved Judge himself. In view of this, otherwise also, the petitioner organisation trust cannot take advantage of the Commentaries referred to above which is not a decision, to unsettle the settled propositions of law, in the garb of this PIL on the pretext of challenging the Constitutional vires, that too, after a long gap of 36 years, when aggrieved person has not challenged the issue/notification. It is also to be noted that on the earlier occasion, two writ petitions SR. No. 17878 and WMP SR No. 17880 of 1999 dated 11.3.99 and Writ A. No. 17 of 1999 dt. 6.4.99 pertaining to the same issue, had already been dismissed as not maintainable. We see no reason to differ with the same. 11. For the reasons stated above, the objections raised in the office note are upheld. The writ petition SR is dismissed as not maintainable. With Trust Deed filed after circulation of my order, with great respect I am unable to agree. The writ petition is not maintainable for the reasons already stated. K.P. Sivasubramaniam, J. II. 1. I had the privilege of going though the order of My Lord the Acting Chief Justice. Thougth I agree that the writ petition deserves to be ultimately dismissed, with due respect, I would do so on different reasons and grounds as dealt with below: 2. As regards the credentials of the petitioner/organisation to move this Public Interest Litigation (PIL); learned counsel had produced a copy of the Trust deed. Further we had recently dismissed another PIL filed by the very same organisation questioning the notification issued by the Central Government constituting Special Courts under the Prevention of Corruption Act, and dismissed it on the ground that on the same issue, matters were pending before the Supreme Court and therefore, this Court cannot interfere. We are now informed that the petitioner-organisation thereafter moved the Supreme Court and their petition had also been admitted. If so, there is no reason why the petitioner-organisation cannot maintain this PIL, more so, when the subject matter relates to the issue of independence of judiciary. 3. We are now informed that the petitioner-organisation thereafter moved the Supreme Court and their petition had also been admitted. If so, there is no reason why the petitioner-organisation cannot maintain this PIL, more so, when the subject matter relates to the issue of independence of judiciary. 3. In this PIL, the validity of Article 217(3) is being challenged and a writ of declaration is prayed for declaring Article 217(3) of the Constitution of India as amended by the Constitution 15th Amendment is unconstitutional and violative of the basic features of the Constitution; inconsistent with Article 124 (4) and 217(1) of the Constitution of India/discriminatory to Article 124(2)(A) of the Constitution of India, and cannot be exercised by the President of India after the deemed date of superannuation pursuant to the dertermination of the age dispute by the President under Article 217(3) of the Constitution of India. 4. Mr. K.M. Vijayan, learned counsel ‘ appearing for the petitioner had made it clear at the threshold that he is not dealing with the issue of the decision of the cempetent authority in the case of Mr. Justice Shivappa. In the affidavit also it is stated that the petitioner is not concerned with the validity of the said order as it would be for the concerned Judge to challenge the same. If so, his prayer that the power under Article 217(3) of the Constitution of India cannot be exercised after the deemed date of superannuation is purely hypothetical and academic and therfore, cannot be counteananced. 5. The prayer that Article 217(3) of the Constitution of India is “discriminatory to Article 124(2A) of the Constitution of India” is also without any basis. There is no discrimination since two Articles deal with different categories of authorities, one, of the Judges of the High Court and the other, of the Judges of the Supreme Court. Merely because the provision and procedure relating to the removal of a Judge by a Parliamentary process as contemplated under Article 124(4) and (5) with reference to the Supreme Court Judges is made applicable to ‘High Court Judges also, it cannot lead to a statutory or Constitutional compulsion that with reference to other matters also, both authorities should be treated on par. The Legislature in its wisdom has specified the two different modes of resolving disputes arising over the age of the Judges, one, for the Supreme Court and the other, for the High Court. The validity of either one of the two modes should be tested on the strength or weakness of the respective procedure. The mere fact that two different modes are adopted for two different categories cannot result in rendering them discriminatory or unconstitutional. Therefore, I am unable to sustain the prayer of the petitioner in the said context. 6. The larger and main issue which is posed for consideration is whether Article 217(3) of the Constitution of India is violative of the basic features of the Constitution. 7. In this context I am unable to share the view that the validity of Article 217(3) of the Constitution of India cannot be challenged. It is a provision inserted by the 15th Amendment and therefore, cannot be considered to be an original provision of the Constitution immune from challenge. Nor can its retrospective application elevate and equate it to be treated as part and parcel of the basic structure of the Constitution. More so, if the Amendment is found to result in affecting the basic structure. Therefore, I hold that the provision is open to challenge subject to the petitioner making out a proper case against its validity. 8. The crux of the petitioners objection is that it empowers the Executive to tamper with the conditions of the service and continuity in service of a Judge of a High Court after his appointment, thus exposing the Judges to everlasting threat from the Executive. All that is required is a complaint from an adversary and the Judge is placed under the mercy of the Executive. The provision, in so far as it empowers the President of India to decide the matter, according to learned counsel, is nothing but a lever to the Executive and with the result tenure of the Judge is subjected to interference by the Executives whims and fancies. According to learned counsel, the independence of the Judiciary is one of the basic features of the Constitution and there fore, the Amendment affects the functioning of a Judge without fear or favour and hence should be declared as unconstitutional. 9. I have considered the submissions of learned counsel with the seriousness which the issue deserves. According to learned counsel, the independence of the Judiciary is one of the basic features of the Constitution and there fore, the Amendment affects the functioning of a Judge without fear or favour and hence should be declared as unconstitutional. 9. I have considered the submissions of learned counsel with the seriousness which the issue deserves. It is true that the Supreme Court in a number of its landmark decisions have repeatedly emphasised that the independence of the Judiciary is part of the basic structure of the Constitution and Article 50 of the Constitution signifies separation of Judiciary from the Executive as a basic feature of the Consitution — Vide judgments of the S.C. reported in 1992 (2) S.C.C. 428 ( Shri Kumar Padma Prasad v. Union of India ) and 1993 (4) S.C.C. 441 S.C. Advocates on Record Association v. Union of India ) among other earlier rulings. 10. A reading of Article 217(3) of the Constitution of India definitely leads an irresistible conclusion that the Executive has a say in the matter and in fact, the final say in the matter. How far the consultative authority of His Lordship the Chief Justice of India would prevail in a given case is open to doubt. The scheme of the provision does not envisage any binding force in the opinion of the Chief Justice of India. In fact, in the case before the Constitution Bench in Union of India v. Jyoti Prakash Miner ( 1971 (1) S.C.C. 396 ) the grievance was that the decision was actually taken by the Chief Justice of India and not by the President of India. The Supreme Court held that the President had acted on the advice of the Chief Justice and he did not surrender his judgment to the Chief Justice of India. The question therefore, arises whether such a procedure would be consistent with the basic feature of independence of Judiciary and separation of the Judiciary from the Executive. Article 217(3) of the Constitution of India was inserted by virtue of the 15th Amendment in the year 1963. That was a time when great men hoped that “Many things which cannot be written in a Constitution are done by conventions.” The above quoted statement of Dr. Article 217(3) of the Constitution of India was inserted by virtue of the 15th Amendment in the year 1963. That was a time when great men hoped that “Many things which cannot be written in a Constitution are done by conventions.” The above quoted statement of Dr. Rajendra Prasad, the President of the Constituent Assembly, was found to be not heeded by the functionaries entrusted with the Constitutional obligations according to the Supreme Court, in its judgment reported in 1993 (4) S.C.C. 441 supra. In the majority judgment after extracting Dr. Rajendra Prasads speech emphasizing that whatever the Constitution may or may not provide, the welfare of the country will depend upon the men who administer it, the Supreme Court observed as follows:— “ The need for judicial determination of this controversy has arisen only because the warning of Dr. Rajendra Prasad does not appear to have been duly heeded by the functionaries entrusted with the constitutional obligation of properly composing the higher judiciary, and ensuring its satisfactory functioning, for the administration of justice in the country. The adverse consequence of this failure is manifested in many ways.” 11. In that case, the issue which arose for consideration was the Constitutional requirements for appointing a Judge of the High Court under Article 217(1) of the Constitution of India. The earlier view of the Supreme Court reported in S.P. Guptas case (1981 (Suppl.) S.C.C. 87 holding that the opinion of the Chief Justice of India does not have primacy in the matter of appointments of Judges and that the primacy was with the Central Government, was reversed. Now by virtue of the Judgment in 1993 (4) S.C.C. 441 the settled proposition of law is that it is the Chief Justice of India who will have the primacy in the matter of appointment of judges. 12. Afortiori, if even in the matter of appointment of Judges it is the highest judicial functionary who should have the last word, it is rather inconceivable that a person after becoming a Judge should be subjected to scrutiny by the Executive. To borrow the expression of His Lordship Ahmadi, J. as he then was, (who in fact dissented with the majority view), the concept of judicial independence was deeply ingrained in our Constitution and “ the degree of independence is near total after a person is appointed and inducted into the judicial family. To borrow the expression of His Lordship Ahmadi, J. as he then was, (who in fact dissented with the majority view), the concept of judicial independence was deeply ingrained in our Constitution and “ the degree of independence is near total after a person is appointed and inducted into the judicial family. ” Therefore, if even at the pre-appointment stage the primacy shall be with the Chief Justice of India, it should follow that the Executive can have nothing to do with any post-appointment issue pertaining to the conditions of service of the Judges. It should be purely for the judicial hierarchy to deal with such issues and also subject to the legislative process visualised under Article 124(4) and (5) of the Constitution of India. It is pertinent to note that even with reference to the service conditions of the members of the Subordinate Judiciary, the entire control is vested with the respective High Courts and the control by the State is only symbolical-vide Article 235 of the Constitution of India. If so, it would be paradoxical to permit the Executive to have a final say in a matter concerning Judges of the High Court. It is true that the 15th Amendment came into force in 1963 more than 35 years back but its antiquity cannot justify its validity if the changing times would warrant a rethinking. 13. The above are some of my immediate impressions on a prima facie assessment of the admissibility of the above writ petition. The validity of Article 217(3) of the Constitution of India had not been called in question before the Supreme Court till now. The reasonings envisaged in the judgment of the Supreme Court in the context of Article 217(1) of the Constitution of India reported in 1993 (4) S.C.C. 441 supra, really warrants a detailed consideration. Yet I feel constrained from stating anything further in view of the judgment of the Supreme Court in 1971 (1) S.C.C. 396 supra. Even though in that judgment the Constitution Bench did not deal with the validity of Article 217(3) of the Constitution of India, yet it dealt with the efficacy and scope of the said provision. Therefore, judicial discipline requires that it would be for the highest Court to go into the question of its validity. 14. Therefore, I would hold the writ petition as maintainable, but dismiss. It on merits. W.P.SR. Therefore, judicial discipline requires that it would be for the highest Court to go into the question of its validity. 14. Therefore, I would hold the writ petition as maintainable, but dismiss. It on merits. W.P.SR. No. 21158 of 1999 and WMP SR. No. 21160/1999: — It is opined by the Honble The Acting Chief Justice that the Writ Petition SR. No. 21158/99 is dismissed as not maintainable. The Office Objection is upheld. The companion Judge agrees that the Writ Petition deserves to be ultimately dismissed holding that the Writ Petition is maintainable, but, to be dismissed on merits. ORDER: The Petition is dismissed.