Holding

The President’s determination of the age of a High Court Chief Justice is a judicial function under Article 217(3) to be exercised on the advice of the Chief Justice of India, rendering a writ of mandamus impermissible.

Summary

Anand Kumar filed Special Leave Petitions challenging the method by which the age of the Chief Justice of the Andhra Pradesh High Court, K. Bhaskaran, was determined. The petitioners sought a writ of mandamus to compel the President of India to decide the matter, arguing that the Council of Ministers should be involved. The Supreme Court examined whether the determination of a High Court judge's age under Article 217(3) of the Constitution is a judicial function of the President, to be exercised on the advice of the Chief Justice of India, and thus beyond the purview of the Council of Ministers under Article 74. Relying on the precedent set in Union of India v. Jyoti Prakash Mitter, the Court held that the President’s role is judicial and that no writ of mandamus lies. Consequently, the Special Leave Petitions were dismissed.

Issues considered

Whether the determination of the age of a Chief Justice or High Court judge under Article 217(3) is a judicial function of the President of India.
Whether the President must act on the advice of the Chief Justice of India rather than the Council of Ministers in such matters.
Whether a writ of mandamus can be issued to compel the President to decide the age of a High Court Chief Justice.

Legislation cited

Constitution of Indias. Article 217(3), s. Article 74

Subjects

Constitution of IndiaArticle 217(3)Article 74President of IndiaChief Justice of Indiaage determinationjudicial functionwrit of mandamusHigh CourtSupreme Court

Judgment

A ANAND KUMAR
v.
SRI KATTALI BHASKARAN & ORS.

JANUARY 19, 1988

B [A.P. SEN, E.S. VENKATARAMIAHANDL.M. SHARMA,JJ.J

Constitution of India, 1950-Articles 74, 217(3)-Determination
of age of Chief Justice or Judge of High Court to be decided by the
President of India as a constitutional functionary in consultation with t~e
Chief Justice of India-Such a question is beyond the reach of Council
of Ministers.
c
The appellant rai.ed the question as regards the determination of age
of the Chief Justice of Andhra Pradesh High Court, in these Special Leave
Petitions filed against the Judgment and Order of the Andhra Pradesh
High Court dismissing in limine the Writ Appeal• against the order of
D dismissal of the Writ Petitions by a Single Judge of the High Court.

In the course of the proceedings, thi• Court, on January 8, 1988,
made certain queries to which the Additional Solicitor General furni•hed
information broadly on the following lines:

E That a view in the matter will be taken by the President oflndia after
the advice of Chief Justice of India is made available, and that all relevant
files have been submitted to the Chief Justice of India along with the
opinion as to the effect of the judgment pronounced by the Andhra
Pradesh High Court.

F In view of the information made available, this Court dismissed the
Special Leave Petitions and, --\-

HELD:!. The matter as to the age of the retired Chief Justice or a
sitting Judge of a High Court is a judicial function of the President of
- India, which has to be discharged in accordance with the special provisions
G made under Article 217(3) of the Constitution. [730C-D]

2. Such a question as to the age of the Chief Justice or a Judge,
under Article 217(3) of the Constitution, is beyond the reach of the Council r
I
of Ministers under Article 74 of the Constitution. [7300-EI

H Union of India v. Jyoti Prakash Mitter, [197113 SCR 483, followed.
728
ANAND KUMAR v. KATIALI BHASKARAN 729

3. Since the President of India, in compliance with Article 217(3), A
has referred the question as to the age of Shri K. Bhaskaran, Chief Justice
of Andhra Pradesh High Court, to the Chief Justice of India for his opi-
nion, no Writ of Mandamus can lie. [7308]

4. The President of India as a constitutional functionary has
discharged hi• duties under Article 217(3) and the decision must rest B
on the advice of the Chief Justice of India and not the Council of Mini•-
ters. [730C]

CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) Nos. 12-12A of 1988.

From the Judgment and Order dated 18. 12.1987 of the Andhra
c
Pradesh High Court in W.A. Nos. 1649 and 1650of 1987.

P .N. Lekhi, M.K. Garg and Lokesh Kumar for the Petitioner.

Kuldeep Singh, Additional Solicitor General and Mrs. A. Subha- D
shini for the Respondents.

The following Order of the Court was delivered:

ORDER
E
In response to the queries made by this Court by its Order dated
January 8, 1988 Shri Kuldeep Singh, learned Additional Solicitor General
has furnished the relevant information as under:

(1) In the matter of the age of Shri Justice K. Bhaskaran, Chief
Justice of the Andhra Pradesh High Court, the advice and corn- F
ments of the Chief Justice of India were sought in terms of
Articles 217(3) of the Constitution of India. The files containing
all the relevant papers were referred to the Chief Justice of
India on 28th September, 1987.

J (2) The Chief Justice of India on 29th December, 1987 desired to G
have an opinion as to the effect of the judgment pronounced by
y the Andhra Pradesh High Court concerning the matter of the
age of the Chief Justice Bhaskaran. The opinion was made
available to the Chief Justice of India on 6th Jarmary, 1988. The
Chief Justice of India :on llth January, 1988 indicated further
course of action in the matter. The file has been resubmitted to · H
730 SUPRBIE COURT REPORTS 11988] 2 S.C.R.

the Chief Justice of India on J6th January, 1~·: '- · i: ·further
.A advice. : .,

(3) A view in the matter will be taken by the President of ·India
• after the advice of the Chief Justice oflndia is made available.

B. In view of the foregoing, it is clear that the President of India in
compliance with Article 217(3) of the Constitution of India has referred
the question as to the age of Shri K. Bhaskaran, the Chief Justice of the
Andhra Pradesh High Court to the Chief Justice of India for his opinion.
That being so, no writ of mandamus can lie. The President of India as a
constitutional functionary has discharged his duties under Article 217(3)
of the Constitution and the decision must rest on the advice of the Chief
c Justice· of India and not the Council of Ministers. As laid down in the
Union of India v. Jyoti Prakash Mitter,. (1971] 3 SCR at 503 & 504, the
. matter as to the age of the Chief Justice or a sitting Judge of a High Court
is a judicial function of the President of India, which has to be discharged
in accordance with the special provisions made under Article 217(3) of the
D Constitution. Such a question as to the age of the Chief Justice or a Judge
under Article 217(3) of the Constitution is beyond the reach of the
Council of Ministers under Article 74 of the Constitution.
y
'
J.C. Shah, C.J., speaking for the Constitution Bench has laid down
the law in these words: ·
E
, "It is necessary to observe that the President in whose name
all executive functions of the Union are performed is by Art.
217(3) invested with judicial power of great significance which
has bearing on the independence of the Judges of the Higher
Courts. The President is by Art. 74 of the Constitution the
Constitutional head who acts on the advice of the Council of
Ministers. . .........." '

The question as to the age of Shri K. Bhaskaran, the Chief Justice
-of the Andhfa Pradesh High Court must, therefore, be decided by the
President of India on the· advice of the Chief Justice of India as en joined
G by Article 217(3) of the Constitution in the light of the principles laid ~
down by this Court in Jyoti Prakash Mitter's, case. 1
The High Court, ii) our considered opinion, should have thrown out
the petition under Art. 226 of the Constitution at the very threshold
because the President of India was seized with the question under Article
H . 217(3) of the Constitution. Indeed, it appears from the judgment of the
ANAND KUMAR v. KATIALIBHASKARAN 731

High Court that when the learned counsel for the Union of India A
informed the Court that the President of India is seized with the ques-
tion, the counsel for the appellant conceded that the writ of quo
warranto is not maintainable.

The special leave petitions are accordingly dismissed.
B

I
. i
G.N. Petitions dismissed .

y