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2015 DIGILAW 169 (UTT)

M. C. PANT v. UNION OF INDIA

2015-03-24

ALOK SINGH, SERVESH KUMAR GUPTA

body2015
JUDGMENT : Hon. Alok Singh J (Oral). Mr. M.C. Pant, a practicing Advocate of this Court and former President of the High Court Bar Association, petitioner, in person, submits that he is not challenging the vires and legality of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014. 2. Mr. M.C. Pant, petitioner, in person and Mr. P.S. Bisht, Standing Counsel for Union of India, stated at bar that in other matters pending before the Hon’ble Apex Court, vires of both the Acts are under challenge and Mandamus sought in the present case is not subject matter of those petitions pending before the Hon’ble Apex Court. 3. Mr. M.C. Pant, petitioner, in person, submits that he is seeking a writ of Mandamus commanding the respondents to make appointment of Judge(s) in this Court only in the light of recommendations made by the National Judicial Appointments Commission and not to adopt any other method except the one given in the Constitution (Ninety-ninth Amendment) Act, 2014 read with the National Judicial Appointments Commission Act, 2014. Petitioner is seeking further writ of Mandamus commanding the respondent to frame relevant Rules and Regulations to give effect to the provisions of the National Judicial Appointments Commission Act, 2014. 4. Mr. M.C. Pant, petitioner, in person, while referring to Article 368 of the Constitution of India, vehemently contends that the moment His Excellency President of India accords his assent to the Bill, the Constitution shall stand amended in the terms of the Bill, therefore, amended provisions of the Constitution (Ninety-ninth) Amendment Act and provisions of the National Judicial Appointments Commission Act 2014 should be given effect from the date, consent is accorded and Government should not wait for the formal notification of the Act in the Official Gazette. 5. To appreciate the submission of Mr. M.C. Pant, petitioner, in person, Article 368 of the Constitution of India and Section 3 (13) of the General Clauses Act, 1897 are being reproduced hereinunder: “368. Power of Parliament to amend the Constitution and procedure therefor: (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. Power of Parliament to amend the Constitution and procedure therefor: (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in— (a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in article 13 shall apply to any amendment made under this article. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” “Section 3 (13): “Commencement” used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force.” 6. Perusal of Section 13 (3) of the General Clauses Act would demonstrate that “commencement” used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force. 7. Sub Clause (2) of Article 368 of the Constitution of India would demonstrate that the Constitution shall stand amended in accordance with the terms of the Bill. 8. Since Bill to carry out the 99th amendment in the Constitution has been proved by the majority of both the Houses and has been ratified by the Legislatures of not less than one-half of the States by resolution and His Excellency President of India has accorded his consent, therefore, Constitution shall be deemed to have been amended, in accordance with the terms of the provisions of the Bill. However, as per sub-Section (2) of Section 1 of the Constitution (Ninety-ninth Amendment) Bill / Act, amended provisions shall come into force, on such date, the Central Government, may by notification in the Official Gazette, appoint. 9. A combined reading of Article 368 (2) of the Constitution of India, Section 1 (2) of the Constitution (Ninety-ninth Amendment) Act, 2014, Section 1 (2) of the National Judicial Appointments Commission along with Section 3 (13) of the General Clauses Act, would demonstrate that the Acts shall commence from the date of their notification and not prior to it. 10. Moreover, a Constitutional Bench of Hon’ble Apex Court in the case of Dr. Rai Shivendra Bahadur Vs. Governing Body of the Nalanda College, Bihar Sharif and others reported in AIR 1962 SC 1210 has held that Mandamus can be issued to enforce the existing legal right(s) or to command the Authorities to do something in accordance with existing law. The judgment of the Constitutional Bench of Hon’ble Apex Court in the case of Dr. Rai Shivendra Bahadur (supra) was also relied upon by yet another Constitutional Bench of Hon’ble Apex Court, in paragraph 52, in the case of Secretary, State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1 . 11. Since both the Acts have yet not been notified, therefore, no provision of either of the Acts has yet been put into operation. 12. There is another aspect of the matter. Mr. Uma Devi reported in 2006 (4) SCC 1 . 11. Since both the Acts have yet not been notified, therefore, no provision of either of the Acts has yet been put into operation. 12. There is another aspect of the matter. Mr. P.S. Bisht, Standing Counsel for Union of India, submitted that as per Amended Article 124C of the Constitution of India, by the Constitution (Ninety-ninth Amendment) Act, 2014 and as per Section 13 of the National Judicial Appointments Commission Act, 2014 neither Regulations nor Rules have been enacted, so far, nor Commission has been appointed so far, therefore, Mandamus sought that appointment may be made on the recommendation of the National Judicial Appointments Commission Act, 2014 is not available to the petitioner. 13. We find force in the submission of Mr. P.S. Bisht, learned Standing Counsel for Union of India. 14. In view of the reasons discussed hereinbefore, Mandamus sought is not available to the petitioner, therefore, at this stage, petition is premature and is hereby dismissed. 15. CLMA Nos. 2501 and 2644 of 2015 also stand disposed of accordingly.