- (1.) In response to the queries made by this court by its order dated 8/01/1988 Shri Kuldeep Singh, learned Additional Solicitor General has furnished the relevant information as under: (1 In the matter of the age of Shri Justice K. Bhaskaran, chief justice of the Andhra Pradesh High court, the advice and comments of the chief justice of India were sought in terms of Article 217 (3 of the Constitution of India. The files containing all the relevant papers were referred to the chief justice of India on 28/09/1987. (2 The chief justice of India on 29/12/1987 desired to have an opinion as to the effect of the judgment pronounced by the Andhra Pradesh High court concerning the matter of the age of the chief justice Bhaskaran. The opinion was made available to the chief justice of India on 6/01/1988. The chief justice of India on 11/01/1988 indicated further course of action in the matter. The file has been re-submitted to the chief justice of India on 16/01/1988 for his further advice. (3 A view in the matter will be fallen by the President of India after the advice of the chief justice of India is made available.
(2.) In view of the foregoing, it is clear that the President of India in compliance with Article 217 (3 of the Constitution of India has referred the question as to the age of Shri K. Bhaskaran, the chief justice of the Andhra Pradesh High court to the chief justice of India for his opinion. That being so, no writ of mandamus can lie. 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 the Union of India v. Jyoti Prakash Mitter , 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 Article217 (3 of the Constitution is beyond the reach of the council of Ministers under Article 74 of the Constitution.
(3.) J. C. Shah, C. J. , speaking for the Constitution bench has laid down the law in these words : It is necessary to observe that the President in whose name all executive functions of the Union are performed is by Article 217 (3 invested with judicial power of great significance which has bearing on the independence of the judges of the higher courts. The President is by Article 74 of the Constitution the constitutional head who acts on the advice of the council of Ministers. .;