Article 142 can never be invoked in a case like this, says Attorney General

The Supreme Court in exercise of its powers under Article 142 of the Constitution to do substantial justice cannot extend the tenure of a retiring judge as such an order would be in conflict with the statutory provisions, argued the Attorney General G.E. Vahanvati on Tuesday.

Making his submissions before a Bench of Justices B.S. Chauhan and S.A. Bobde, hearing the writ petitions filed by Tamil Nadu Chief Minister Jayalalithaa and three others, the Attorney General, appearing for Karnataka, said “the Article 142 can never be invoked in a case like this.”

Mr. Vahanvati said “retirement age of judges are fixed as per statutory provisions. You can’t pick and choose a person and give extension to him. The High Court can’t do it as there is a public policy behind the retirement age of a judge. When there is a law, the order passed by this court should be consistent with the law. Tomorrow a litigant will come and tell this court that my case is pending before a High Court judge who is due to retire at the age of 62 and say his tenure should be extended to complete his case. This will set a bad precedent.”

Assailing the petitioners’ argument, the AG said there was no legal right on the accused that his/her case should be heard by a particular case or to be argued by a particular prosecutor. This argument was unheard of, he said and added that the petitioners should face the consequences if the judge was to retire or the new prosecutor was to be appointed.”

Justifying the order revoking the appointment of Bhavani Singh as special public prosecutor for conducting the trial in the disproportionate cases against the petitioners, he said it came to light that the then acting Chief Justice had recommended Mr. Bhavani Singh for being appointed as the SPP though his name was not suggested in the four names sent by the State government. Further the AG said the former SPP B.V. Acharya’s resignation was accepted by the ACJ within few days of his assuming office.

To a question from Justice Bobde, why no objection was raised, the AG said “since the then ACJ said Mr. Bhavani Singh be appointed.., the previous government did not raise any objection. This would not mean that the present government did not have any right to raise any objection once it came to light that there was no effective consultation. In deference to your order September 6 we approached the present Chief Justice of the Karnataka High Court for withdrawing the earlier order and he had passed a detailed order.”

The AG also drew the court’s attention to the representation made by the petitioners to the CJ that the State’s request for withdrawing Mr. Singh should not be accepted and said the CJ considered this aspect as well while passing his order.

In his order the CJ had said “..it appears that the unilateral decision of the [then] acting Chief Justice and action of the State government in appointing Mr. Bhavani Singh as SPP was not strictly in accordance with the directions of the Supreme Court.”

He rejected the petitioners’ argument that the CJ was sitting in appeal over the ACJ’s order. When Justice Bobde observed that it was strange that the same government which did not object Mr. Singh’s initial appointment was opposing his appointment now, the AG said if the process of appointment was vitiated and improper the government had the power to revoke such appointment in consultation with the Chief Justice which had been done in this case.

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