R. Gandhi, President, Bar Federation of Tamil Nadu and Pondicherry, High Court Buildings, Madras 600 104 vs The State of Tamil Nadu and another

Raju, J.—The above writ petition has been filed for the issue of a writ of certiorarified mandamus to call for and quash the proceedings of

the first Respondent in G.O. Ms. No. 1487, Home (Courts-II) dated 29.7.1989) and all the consequential appointments made based on the said

Government Order and to direct the Respondents to appoint Special Executive Magistrates/Judicial Magistrates Grade II/ Metropolitan Magistrate

only from persons having law degree, following the judgment reported in Narayanaswamy v. State of Tamil Nadu 1985 M.L.J. (Crl.) 453. The

Petitioner Mr. R. Gandhi is the President of the Bar Federation of Tamil Nadu and Pondicherry and also the President of Madras High Court

Advocates'' Association and has come up with this writ petition as a public interest litigation and also in his desire and anxiety to ensure the

maintenance of rule of law and to prevent the unhealthy practice of entrusting work of judicial adjudication to persons without proper qualification

or training in law. The Petitioner, in the affidavit, claims that whenever there is a threat of in-road by the Executive in the administration of justice,

the Petitioner''s Association has been questioning the same voicing their grievance against such unwarranted interference, that the impugned order is

patently in violation of a Division Bench judgment of this Court and also the provisions of Article 14 of the Constitution of India and that therefore,

the Majesty of law should be allowed to proceed in its majestic way and executives usurping of judicial function should be stopped.

It is averred in the affidavit in support of the writ petition that in exercise of the powers u/s 13 of the Code of Criminal Procedure 1973, the

Revenue Officials were conferred indiscriminately with judicial powers to act as Judicial Magistrates of Second Class for specific period and when

in the year 1982 the second Respondent proposed an amendment of Rule 3 of the Tamil Nadu Special Judicial Magistrates and Special

Metropolitan Magistrates'' Qualification Rules, 1974 by passing G.O. Ms. No. 2846, Home (Courts V) Department, dated 11.11.1982, there

was a challenge before this Court and a Division Bench of this Court had occasion to deal with the same and in the decision reported in

Narayanaswamy v. State of Tamil Nadu struck down Section 13(1) and Section 18(1) as well as Rule 3 of the Tamil Nadu Special Judicial

Magistrates Qualification Rules, 1974 (hereinafter referred to as the Rules) as violative of Article 14 of the Constitution of India. In so doing, the

Division Bench has held as hereunder:

We are also not able to see any intelligible differential distinguishing persons who hold or have held any post under the Government and those who

do not so hold or have held, any such post. The classification is not based or even attempted to be justified on exclusive or special qualities or

characteristics, which can be found only in those who hold or have any post under the Government, having regard to the object to secure an

expeditious administration of criminal justice. A judicial temperament and a disposition to render expeditious justice in criminal cases cannot be the

exclusive virtue of only those who hold or have held any post under the Government. Is it impossible to find such qualities in the other persons left

out? If the classification is to be justified on the ground of the so-called experience gained by a person who holds or has held any post under the

Government, it cannot be accepted that other persons who do not so hold or have held any post under the Government are all inexperienced and

unfit to discharge their functions as Special Judicial Magistrate or a Special Metropolitan Magistrate. The requirement of a Special Judicial

Magistrate or a Special Metropolitan Magistrate is an ability to understand, deal with and dispose of cases which are brought up before him and

from the point of view of competency to deal with and effectively dispose of such cases, the holding of any post or even the holding of any post

under the Government Appears to be totally irrelevant and immaterial especially when the object of the appointment and the conferment of powers

on persons as Special Judicial Magistrate or the Special Metropolitan Magistrate is with a view to relieve the stipendiary Magistrates of their

workload. Further, it may be that the post held by a person might have been in a Department of the Government which is not in any manner

concerned with the administration of criminal law. The kind of experience that is likely to have been acquired by a person during the period when

he holds or has held such an office would not in any manner assist him in effectively dealing with and disposing of cases relating to offences in his

capacity as a Special Judicial Magistrate or as a Special Metropolitan Magistrate. Therefore, the holding of any post under the Government does

not bear any reasonable relation whatever to the object of the legislation. There is no rational relation at all between the classification of persons, as

those who hold or have held any post under the Government and the others and the object, namely, the administration of criminal justice through

the Special Judicial Magistrates or the Special Metropolitan Magistrates. We are, therefore, clearly of the view that the classification is not only

arbitrary, but is irrational and is totally unrelated to the object with which appointments as Special Judicial magistrate or as Special Metropolitan

Magistrate are made and powers conferred upon them for discharging their functions as such, namely, the administration of criminal justice with

reference to petty criminal offences. We are also unable to appreciate how the argument based upon the experience of Government service could

be a justification for classification, for as pointed above, such experience may be totally unrelated to the sphere of the exercise of powers and

performance of duties as a Special Judicial Magistrate or as a Special Metropolitan Magistrate. We are, therefore, of the view that Ss.13(1) and

8(1) of the Code 1 in so far as they confined the appointment of and the conferment of powers of Special Judicial Magistrates or Special

Metropolitan Magistrates to any person who holds or has held any post under the Government, are arbitrary and violative of Article 14 of the

Constitution of India and have to be struck down.

Again, while concluding the decision, it has been observed as hereunder.

However, inasmuch as we have earlier held that Section 13(1) and 18(1) of the Code, in so far as they confined the appointment of and

conferment of powers of a Special Judicial Magistrate or a Special Metropolitan Magistrate to persons, who hold or have held any post under the

Government are arbitrary and violative of Article 14 of the Constitution of India, the Rules framed, particularly Rule 3 incorporating that

requirement u/s 13(1) and 18(1) of the Code, should also be declared to be invalid, as the Rule gives effect to the holding or past holding of a post

in a Department or service of the Central or the State Government in a scale of pay not lower than Rs. 750-50-1350. Therefore, Rule 3 of the

Rules in so far as it prescribed the holding or the past holding of a post under the Government in a scale of pay not lower than Rs. 750-50-1350 as

one of the conditions for eligibility for the appointment of and conferment of powers of a Special Judicial Magistrate or a Special Metropolitan

Magistrate, would also be invalid and liable to be struck down.

Relying upon the said decision, the impugned Government order is challenged in this writ petition. The impugned order reads as hereunder:

G.O. Ms. No. 1487 Home, (Courts-II) 29th July, 1989.

No. I/H/589/89 - In exercise of powers conferred by Section 21 of the Code of the Criminal Procedure, 1973, the Governor of Tamil Nadu

hereby appoints all the regular Taluk Tahsildars and Deputy Tahsildars including Special Deputy Tahsildars of all Districts as Special Executive

Magistrates in the Districts concerned for perennial period and confers on them all the powers exercised by an Executive Magistrate under the said

Code and also specifically empowers them to exercise the powers under Ss.133, 143 and 144 of the said Code.

Sd/- R. Nagarajan, Commr. and Secy. to Government

The grievance of the Petitioner is that implementing the impugned Government Orders about 20 officials in Tirunelveli District were notified as

Judicial Magistrates of Second Class and had the same published in the Tamil Nadu Government Gazette dated 8.8.1990 and that several other

Revenue Officials were also conferred with similar and identical nature of powers, with similar designation, and that allowing such persons without

basic qualification in law to hold the post of Special Judicial Magistrates would amount to making a laughing stock of administration of justice and

enforcement of law and that the said move is also opposed to the decision of the Supreme Court in Sampathkumar S.P. v. Union of India 1987

Writ L.R.1 S.C. The Petitioner contends in the affidavit that a person having a degree in law with required integrity and independence, reputation

and character, sincerity and devotion to work and possessing rich worldly experience from every walk of life alone can reasonably be expected to

be considered for appointment and not otherwise.

The first Respondent has filed a counter affidavit contending that Section 21 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)

enables the first Respondent to appoint Executive Magistrates known as Special Executive Magistrates for particular areas or for the performance

of the particular function and confers such of the powers as are conferrable under the Code on Executive or Sub Executive Magistrates as the

Government may deem fit and it is only in that context, the Government have appointed all regular Tahsildars and Deputy Tahsildars including

Special Tahsildars of all districts as Special Executive Magistrates for period of one year from time to time. Reference is also made to the Division

Bench judgment referred to above and it is stated that against the said judgment a SLP No. 8383/84 has been filed and while granting leave, the

appeal has been numbered as Civil Appeal No. 1276/86 and by an order dated 7.4.1986 stay of the operation of the judgment has been granted.

In view of that factual position and having regard to the provisions contained Section 21 of the Code of Criminal Procedure, the first Respondent

would try to justify their action. It is also pleaded that according to the Rules in force in Revenue Subordinate Services, a Deputy Tahsildars has to

undergo Magisterial Training for 6 months and in order to depute them for Magisterial Training, the State Government requested the High Court to

confer the powers of the Special Judicial Magistrate u/s 13 of the Code of Criminal Procedure on such Deputy Tahsildar for a period of 6 months.

The second Respondent also has filed a counter affidavit. In the counter affidavit, while narrating the historical background of the matter to

which reference has already been made including the making of a reference to the relevant Rules and the provisions of the Code as well as the

earlier Division Bench judgment and the orders of the Apex Court, it is contended that since the order of the High Court has been stayed by the

Supreme Court, Ss.13(1) and 18(1) and Rule of the said Rules are to be considered to be in force and therefore, the impugned proceedings are in

accordance with law. It is also stated that some of the Service Rules including the Rules governing declaration of probation of the officers of the

Indian Administrative Service, oblige the candidates undergoing District training, including exercise of Magisterial powers and that therefore, in the

absence of such conferment of powers and authorisation in favour of abovesaid category of officers for exercising Magisterial powers, it would

create inconvenience to the officers concerned and hinder the confirmation and promotional prospects and therefore, it also became necessary for

the second Respondent to confer such powers of Special Magistrates at the request of the Government upon the Officers of the Executive

belonging to the category referred to above.

Mr. R. Gandhi who has argued the matters as party in person, invited our attention to the earlier Division Bench judgment of this Court, the

subsequent pronouncement of the Apex Court already referred to supra, and yet another decision of a Division Bench of this Court in

Balachandran v. Union of India 1992 W.L.R. 302.

Mr. P. Chandrasekar, learned Additional Government Pleader appearing for the Respondents, while reiterating the stand taken already in the

counter affidavit, contended that so long as Section 21 of the Code of Criminal Procedure remains unchallenged, no exception could be taken to

the impugned order and that at any rate, the decision of the Division Bench in Balachandran v. Union of India 1992 W.L.R. 302 cannot be said to

support the cause of the Petitioner in the manner in which it is now sought to be projected.

In Sampathkumar S.P. v. Union of India 1987 Writ L.R.1 (S.C.), the Apex Court deprecated every move in any form to interfere with the

independence of the Judiciary from executive pressure or influence secured under the Constitution of India and also the appointing of persons to

judicial posts or vest with judicial powers to the members of the executive who very much depend upon the goodwill and favourable stance of the

executive since such move would be likely to effect the independence and impartiality of the adjudicating authority itself. In Balachandran v. Union

of India 1992 W.L.R. 302 a Division Bench of this Court, though repelled a challenge to Section 10-E of the Companies Act 1956, yet struck

down the Rules which enabled the Constitution of a Board with adjudicatory powers with Administrative Members enabling them to discharge

judicial function exclusively.

The provisions of Section 21 on which heavy reliance has been placed by the Respondents, provides that the State Government may appoint,

for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates, for particular areas or for the performance

of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive

Magistrates, as it may deem fit. There is no controversy that on such appointments the officers were also conferred with the powers of Special

Judicial Magistrates or Special Metropolitan Magistrates by the High Court with appropriate powers under the Code of Criminal Procedure. The

fact that an appeal has been entertained by the Apex Court and leave has been granted does not efface the efficacy of the decision rendered by

this Court as a binding judicial precedent. Even assuming that the issue relating to the Constitutional validity of Ss.13 and 18 is pending before the

Apex Court, which would be well open to this Court without adjudicating on the Constitutional validity of the said provisions once over again to

entertain an adjudication on the Constitutional validity of the impugned Government Order, the impugned Government Order enables the Officers

appointed thereunder to exercise powers u/s 133, 143 and 144 of the Code. That apart, an Executive Magistrate is entitled by virtue of the

impugned notification to exercise other powers under the Code specifically conferred to enquire into the disputes relating to immovable properties

u/s 145 of the Code and to appoint receivers within the permissible limits. Powers u/s 107, 117, 123, 129, 130, 133 to 147, 167 (2A) and 174 of

the Code of Criminal Procedure which could be also be exercised by such notification have serious impact and repercussions as well as

consequences upon legal rights and in a sense upon some of even the fundamental rights secured to a citizen under the Constitution of India and

other laws in force. The question would be whether such powers should be permitted to be conferred upon persons who are part of the

Administrative Machinery of the Executive Government to be independently exercised in a manner detrimental to the rights of citizen without any

legal qualification or training that normally is required of a Judicial Officer exercising such and similar powers.

In my view, the ratio of the decisions referred to above would militate against the conferment of such powers and the impugned Government

order is liable to be struck down for the very same reasons and the ratio laid down by the Division Bench of this Court in Narayanaswamy v. State

of Tamil Nadu 1985 MLJ (Crl.) 453 as being violative of Article 14 of the Constitution of India. The appointment of persons who have no legal

qualification prescribed for manning judicial posts and such of those who are not even holding any degree in law is impermissible and it would be all

the more improper, illogical and arbitrary to designate Administrative Officers of the executive government. It would also run counter to the

conscience of the Constitution of India found expression in Article 50 of the Constitution which provides in unmistakable terms that the State shall

take steps to separate the Judiciary from the Executive in the public services of the State. Though the said provision forms part of the chapter

relating to the Directive Principles of State Policy the same could provide the touchstone with reference to which the reasonableness of the law

enacted or the orders passed by the State could be tested. The fact that some of the Service Rules governing government servants would prescribe

a Magisterial training is no justification to confer upon them exclusive powers irrespective of their qualifications or the reasonableness or propriety

of conferring such judicial powers upon administrative personnel for being exclusively exercised, while they continue to be part and parcel of the

members of the executive government. Whatever may be justification or otherwise to have provisions to enable them to be associated with such

exercise of powers to acquire a reasonable knowledge of those powers, there could be no justification in law to allow them to do so independently

and sitting exclusively unless they at least possess the required legal qualifications.

The fact that Section 21 enables the appointment of such officers is no escape for the Respondents to otherwise justify the Constitutionality of

an unconstitutional appointment or notification, particularly when a notification of the nature impugned is challenged as being unconstitutional or

invalid in law. The Constitutional validity of an order passed under a Section can itself be tested without even challenging the provisions of the Act

and the fact that the provisions of Section 21 is not challenged in the writ petition cannot give any cover of immunity to an otherwise

unconstitutional order made thereunder. The enabling powers u/s 21 have to be, in my view, reasonably construed so as to permit only the doing of

legitimate things or actions and not anything by appointing or designating any one of their choice. Placing of such restricted construction and reading

down of powers to ensure that the provisions expressed in general terms are well within the constitutional prescriptions and prohibitions, is a well

known rule of construction of Statutes and, therefore, I do not see any merit or substance in the above plea on behalf of the Respondents. The

content of powers and scope of Section 21 requires to be read down in the light of the decisions relied upon for the Petitioners.

For all the reasons stated above, the impugned proceedings stood vitiated not only as violative of Article 14 of the Constitution of India, but

also the decisions of this Court and the Apex Court referred to supra and consequently shall stand hereby quashed. The writ petition shall stand

allowed as prayed for. No costs.