'Glaring Unconstitutionality': Madras High Court On Staying TN Amendments On VC Appointment; Berates Sr Advocate For 'Lecture' On Judicial Discipline

The vacation bench of Justice GR Swaminathan and Justice V Lakshminarayan remarked that the unconstitutionality and repugnancy in the State amendments were so glaring and obvious that the court could not shut its eyes.

“The unconstitutionality and repugnancy vitiating the impugned amendment Acts is so glaring and obvious that we cannot shut our eyes. We are convinced that the impugned amendments are ex-facie unconstitutional. If an unconstitutional process is allowed to proceed, it would cause irreparable injury and public interest would suffer,” the court said.

The court noted that in previous cases, the courts have granted quo warranto in cases where the Vice-Chancellors were appointed in breach of UGC Regulations. Noting that the balance of convenience was in favour of staying the unconstitutional legislation, the court ordered the same. At the same time, the court made it clear that it was not staying the amendment in toto and was only staying that part of the legislature which took away the power of the Governor to make appointments.

“We are therefore of the view that the balance of convenience is in favour of staying an unconstitutional legislation. In fact, we do not propose to stay the operation of the amending Acts in toto. We confine ourselves to staying that part of the legislation which takes away the power of the Governor to make the appointment. In fact, we do not even propose to stay the constitution of the search committees. If interim stay is granted, the position that originally obtained will revive,” the court said.

It may be noted that the stay was ordered by the vacation bench despite protests by Senior Advocate P Wilson contending that there was no urgency in petitions. The court, in its order recorded that while it was true that the bench was sitting as Vacation Bench judges, access to justice should always be available and when an advocate complains of an unconstitutional legislation, the court could not shut its eyes.

“It is true that the High Court is on Vacation and that we are sitting as Vacation Bench Judges. To us, it should not make any difference. The Hon'ble Chief Justice of India has observed that Court Vacation sittings should be rechristened 'partial working days'. We take inspiration from the said observation. Judges can be on vacation, Courts should not be on vacation. Access to justice should always be available. When an advocate complains that an unconstitutional legislation has been passed, we cannot shut our eyes. That is why we propose to intervene then and there,” the court said.

The bench also took exception to an argument made by Wilson that the court was virtually reviewing the decision of the Supreme Court in Tamil Nadu Governor's case. The bench said that it had highest regard for the decision of the Supreme Court and did not need lectures from Wilson on judicial discipline. The court noted that when the Supreme Court passed the orders in the Governor's case, it was not concerned with the legality of the impugned legislation made by the State.

“Shri P.Wilson made a preposterous submission that we were virtually reviewing the decision of the Hon'ble Supreme Court rendered in State of Tamil Nadu -Vs- The Governor of Tamil Nadu. No submission can be more outrageous than this. We are mindful of our position. We know that we have to give the highest respect to any decision of the Hon'ble Supreme Court. We do not need lectures from Shri P.Wilson on this score. We believe in judicial discipline,” the bench remarked.

The court also defended its decision rejecting an adjournment request made by Wilson in light of the pendency of a transfer petition in the Supreme Court. The court said that the SC had not injuncted the bench from taking up the case and thus it could not accede to the request made for adjournment. The bench noted that when it has noted that the impugned amendments are against the law laid down by the Supreme Court, it could not mechanically adjourn the plea.

“If the Hon'ble Supreme Court had orally injuncted us from taking up this case and the same had been brought to our notice, we would have unhesitatingly kept our hands off. But, no such development has taken place. That is why we are unable to accede to the request made by the learned Advocate General for adjourning the case. We are on short point. When we notice that the impugned amending Acts fall foul of the law laid down by the Hon'ble Supreme Court, we are unable to mechanically adjourn the proceedings. It is this primary consideration that impels us to grant interim relief,” the bench said.