Youth Bar Association Of India And Another vs Union Of India And Others

Ramesh Ranganathan, CJ

This writ petition is filed seeking a direction to the respondents to decide the petitioner's representation dated 27.12.2017; to quash the letter dated 23.04.2018, in so far as it does not prescribe any time frame for considering the urgent necessity to bring an amendment to the Constitution of India with regards raising the upper age limit of High Court judges at par with Judges of the Supreme Court; and to enlarge the scope of the present writ petition and mould the relief, as this Court may deem fit and proper, in the peculiar facts and circumstances of the present case, and in the larger public interest.

The first petitioner is an association of Advocates practicing law, and is a Society registered under the Society Registration Act, 1860, with its registered office at Haldwani in Nainital District. The second petitioner is the President of the first petitioners' association. The jurisdiction of this Court has been invoked by them in larger public interest in view of, what they claim, is an urgent need to enhance the age of retirement of judges of the High Court from 62 to 65 to tackle the mounting arrears of cases in Courts.

The writ affidavit states that there are 43 lakh cases pending in the 25 High Courts in the Country; the Constitution (One Hundred and Fourteenth (Amendment Bill), 2010 was introduced in the Lok Sabha to amend Articles 217 and 224 of the Constitution of India, and to increase the upper age limit of the judges of the High Court; and one of the measures, by which this problem of mounting arrears can be tackled, is by increasing the age of retirement of High Court Judges from 62 to 65 at par with the retirement age of the judges of the Supreme Court. The affidavit refers to the age of retirement in the High Court of Australia to be 70 years, in the Supreme Court of Canada to be 75 years, in the Supreme Court of Ireland to be 70 years, in the Supreme Court of Israel to be 70 years, in the Supreme Court of New Zealand to be 68 years, in the Supreme Court of South Africa to be 70 years, and in the U.K. Supreme Court to be 75 years.

Article 217 of the Constitution of India relates to the appointment and conditions of the office of Judges of the High Court and, under clause(1) thereunder, every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office until he attains the age of 62 years. Increase in the upper age limit of retirement of judges of the High Court, from 62 to 65 years, would require Article 217 of the Constitution to be amended.

Mr. S. Bhupendra Singh, learned counsel appearing on behalf of the petitioner, would submit that the first petitioner was informed by the Under Secretary to the Government of India, Ministry of Law and Justice, by letter dated 23.04.2018, that the Constitution (One Hundred and Fourteenth Amendment) Bill, 2010, introduced in the Lok Sabha on 25.08.2010, had lapsed; at present there is no proposal with the Government to bring back this Bill; and the Government would consider the matter further at an appropriate stage. Learned Counsel would further submit that the Assistant Legal Advisor, Ministry of Law Justice had, by his letter dated 09.07.2018, informed that the representation submitted by the second petitioner on 07.12.2017 to the Department of the Justice, on the subject matter relating to the upper age limit for holding office of High Court Judges came within the ambit of the Department of Justice, and the application/representation was being transferred in original with the request for consideration and taking necessary action as deemed appropriate.

Increase in the upper age limit of High Court Judges from 62 to 65 years, would necessitate an amendment to the Constitution of India. The power to amend the Constitution lies only with Parliament, that too in the exercise of its constituent power. No mandamus can be issued by the High Court directing Parliament or the State Legislatures to make laws i.e. plenary legislation, much less to amend the Constitution. While we may not be understood to have expressed any opinion on the merits of the submissions urged on behalf of the petitioner, and whether the upper age limit should or should not be enhanced from 62 to 65 years, we see no reason to entertain this writ petition since grant of the relief, sought for in the writ petition, would require us to issue a mandamus to Parliament to amend the Constitution which this Court, in the exercise of its jurisdiction under Article 226 of the Constitution, would not do.

Leaving it open to the petitioner to avail such other remedies as are available to them, the writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs.