CONSTITUTIONAL LAW

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Is Article 217(3), an Exception to Article 74(1) of the Constitution of India?
by Mrs Pooja Jha*

Cite as : (2001) 5 SCC (Jour) 11

Article 217(3) of the Indian Constitution lays down that if any question arises as to the age of a Judge of a High Court, it shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. Clause (3) was inserted by the Constitution (Fifteenth Amendment) Act, 1963 when the case of Jyoti Prokash Mitter v. Chief Justice of Calcutta High Court1  was pending in the Supreme Court. A Constitution Bench of the Supreme Court disposed of the appeal with a direction to determine de novo the age of the appellant in accordance with Article 217(3) of the Constitution. Accordingly the President decided the age and aggrieved by the decision of the President, Shri Jyoti Prokash Mitter approached the Calcutta High Court. A Single Judge allowed the petition. On appeal by the Union of India, a six-Member Bench of the Supreme Court set aside the Single Judge's order and held that the President cannot act on the advice of his Council of Ministers when acting under Article 217(3)2 . Shah, C.J. speaking for the six-Judge Bench observed as follows:

"The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers."3 (emphasis supplied)

The net result of this decision is that Article 217(3) becomes an exception to Article 74(1) of the Constitution4 . It is submitted that there are only two exceptions to the rule contained in Article 74(1). The first exception is governed by conventions of the Constitution. In the matter of appointment of the Prime Minister, for example, Article 74(1) has no application.

The second exception is contained in Article 103 of the Constitution. Article 103(1) says that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.

Clause (2) of Article 103 requires that before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

The words "shall act according to such opinion" occurring in Article 103(2) excludes the applicability of Article 74(1) in matters falling under clause (1) of Article 103. Chief Justice Ray in Samsher Singh case5  explained the position thus:

"27. Our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. Under this system the President is the constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. Article 103 is an exception to the aid and advice of the Council of Ministers because it specifically provides that the President acts only according to the opinion of the Election Commission. This is when any question arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102."6 (emphasis supplied)

In handing down this decision the Supreme Court overruled Bk. Sardari Lal v. Union of India7 , wherein a Constitution Bench of five Judges held that the satisfaction required under Article 311(2) Second Proviso clause (c) is the personal satisfaction of the President. The Supreme Court in Samsher Singh case5 thus affirmed that the President is required to act in accordance with the aid and advice of his Council of Ministers. Krishna Iyer, J. in his concurring judgment (for himself and Bhagwati, J.) doubting the correctness of the ratio in Union of India v. Jyoti Prokash Mitter2  observed:

"In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct."8  (emphasis supplied)

In Anand Kumar v. Kattail Bhaskaran9 , a three-Judge Bench of the Supreme Court has however, followed the principle laid down in Mitter case and observed10 

"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 Justice of India and not the Council of Ministers. As laid down in Union of India v. Jyoti Prokash Mitter2 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 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." (emphasis supplied)

Apparently, the three-Judge Bench followed Mitter case2 without noticing Samsher Singh case5.

It is therefore felt that Article 217(3) is not an exception to Article 74(1) and the correct constitutional position is that the President has to act according to the aid and advice of his Ministers when he acts under Article 217(3) of the Constitution.

*   M.A., M.L., Research Scholar, Department of Legal Studies, International Law and Constitutional Law, University of Madras. Return to Text

1. AIR 1965 SC 961 Return to Text
2. Union of India v. Jyoti Prokash Mitter, (1971) 1 SCC 396 Return to Text
3. Ibid at pp. 410-11 Return to Text
4. Art. 74(1) lays down that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President, who shall, in the exercise of his functions, act in accordance with such advice. Return to Text
5. Samsher Singh v. State of Punjab, (1974) 2 SCC 831. It was a seven-Judge Bench which rendered this decision. Return to Text
6. Ibid at p. 840 Return to Text
7. (1971) 1 SCC 411 Return to Text
8. (1974) 2 SCC 831 at p. 882. It is relevant to note that in Maru Ram v. Union of India, (1981) 1 SCC 107 (a five-Judge Bench decision) Krishna Iyer, J. (for himself, Chandrachud, C.J. and P.N. Bhagwati, J.) held that the Governor is but a shorthand expression for State Government and the President is an abbreviation for the Central Government. Return to Text
9. (1988) 2 SCC 50 Return to Text
10. Ibid at pp. 51, 52 Return to Text