How To Legally Describe "A Constitutional Court"

2. As I am not well-versed in Constitutional Law, a question might legitimately be asked as to why then I am dealing with a subject pertaining to the Constitution of India. Well, as any other layman, I think, I too have the right to project my doubt in the expectation of getting the same unclouded. The purpose of this script is to invite the mature views of the veterans in the field such as experts, jurists, luminaries, legends, stalwarts etc. so that I need not entertain any more doubt or misapprehension in this area.

3. Now, let me come to the meat of the matter. In the case of the Supreme Court of India, Article 124 (1) of the Constitution of India, inter alia, states that there shall be a Supreme Court of India consisting of the Chief Justice of India and not more than (now after the last amendment) 30 other Judges.

NOTE BY THE AUTHOR:

While for the layman it may not look out of place to call the Supreme Court of India as the "Indian Supreme Court", the Apex Court of the country can only be the "Supreme Court of India", legally and constitutionally.

Article 124 (2) of the Constitution of India, inter alia, states that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal.

Article 124 (6) enjoins that every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

Form IV in the Third Schedule of the Constitution, inter alia, prescribes the form of the oath or affirmation to be made by the Judges of the Supreme Court. It reads as follows:-

(Rest of the form omitted by the author)

NOTE BY THE AUTHOR:

Here again it is "Supreme Court of India" and not Indian Supreme Court or merely "the Supreme Court".

4. With regard to the High Courts in the States, Article 214 of the Constitution of India says that there shall be a High Court for each State.

Article 217 (1), inter alia, states that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal.

Article 219 states that every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

Form VIII in the Third Schedule of the Constitution, inter alia, prescribes the form of the oath or affirmation to be made by the Judges of a High Court. It reads as follows:-

(Rest of the form omitted by the author)

So, it is a Judge of the High Court at/ of………………..,who is appointed and who takes oath or affirmation as such. If it is the appointment of a Judge of the High Court of Bombay, the oath or affirmation should, inter alia, say that the incumbent having been appointed as a Judge of the High Court of Bombay.

5. Let us now examine the warrant of appointment of a Judge of a High Court issued by the President of India. I take the warrant of appointment in my own case issued by the Shri A.P. J. Abdul Kalam, President of India. It reads as follows:-

The Court is described in the above warrant as the "Kerala High Court" and not the High Court of Kerala. In all similar warrants of appointment of other Judges of the High Court of Kerala also I have seen the High Court being described as the "Kerala High Court".

6. At the time of the swearing-in ceremony of the newly appointed Judge also, the Registrar General of the High Court will read the warrant of appointment issued by the President of India and the authorization issued by the Governor of Kerala authorizing the Chief Justice, High Court of Kerala to administer the oath of office to the newly appointed Judge. While reading out the warrant of appointment, the Registrar General, cannot, obviously, read the words "the Kerala High Court" occurring in the warrant as "the High Court of Kerala".

NOTE BY THE AUTHOR:

But in all fairness to the Governor's office, I have seen in all the gubernatorial authorization issued by the Governor, the High Court of Kerala is described as such correctly.

7. In all notifications issued by the Ministry of Law and Justice, Department of Justice, Jaisalmer House, New Delhi also the respective High Courts are described as "Bombay High Court", "Karnataka High Court" and so on. I am giving below two such recent notifications issued by the Ministry of Law and Justice.

The first notification is dated 30-06-2022 conveying the appointment of Shri. Justice Alok Aradhe as the Acting Chief Justice of the High Court of Karnataka consequent on the retirement of the Chief Justice. The second notification is one conveying the appointment of 9 new Judges as additional Judges in the High Court of Bombay. The following is the first of such notifications:-

(Emphasis supplied by the author)

The second notification is one dated 16-07-2022 which reads as follows:-

(Emphasis supplied by the author)

In the first of the notifications above, instead of stating "High Court of Karnataka", the words "Karnataka High Court" have been repeated twice. In the second notification instead of stating "High Court of Bombay", the words "Bombay High Court" have been used.

8. It is not known whether the first "warrant of appointment" by the President of India was originally drafted by a bureaucrat (with or without the approval of the President of India) or by the President himself. But, can the Presidential warrant and the notification issued by the ministry of law and justice, describe a High Court in a manner not envisaged by the Constitution of India ? According to me, they cannot. It is legally and constitutionally inelegant to describe, for instance, the "High Court of Bombay" as the "Bombay High Court" by a constitutional functionary, especially while issuing a constitutional document. In my humble opinion, it is a question of constitutional propriety, etiquette, conformity, observance and harmony.

Can a bad practice followed for more than seven decades, become legal and sacrosanct by the passage of time justifying its continuance, or should we not correct the mistake at least for the future ?

Let the knowledgeable and erudite members of the larger fraternity of law, articulate on this issue.

The author is a former Judge, High Court of Kerala