The Revival of Ray II

Despite offers, I have not published 10,000 further words of Chief Justice A.N. Ray that educates me as it protects. His judgments at the Calcutta High Court or at the Supreme Court are his only songs that are praised or criticized. I bow down to the intelligence of Hon’ble Chief Justice Dipak Misra and Hon’ble Justice Dr. D.Y. Chandrachud. They have quoted Samsher Singh v. State of Punjab, (1974) 2 SCC 831 in their separate judgments in Govt. of NCT of Delhi v. Union of India, [Civil Appeal No. 2357 of 2017] with specific mention of Chief Justice A.N. Ray, that has not been the assured practice in several citations of Samsher in history. It is so often the case in this imperfect world, that a vital thought is not clothed in the most striking language until posterity plays the editor.

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Hon’ble Justice Dr. D.Y. Chandrachud:

“In Samsher Singh, Chief Justice A.N. Ray (speaking for the majority) opined that Ministers must accept responsibility for every executive act:

In England, the sovereign never acts on his own responsibility. The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the Constitutional head are not different.” 

In Samsher Singh, while dealing with the question whether the Governor as the Constitutional or the formal head of the State can exercise powers and functions of appointment and removal of members of the subordinate judicial service personally, Chief Justice A.N. Ray delivered the majority judgment, holding that:

“The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.” …

Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati, delivered a concurring opinion.”

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Perhaps it is absurd to imagine that when legal rules are well-understood litigation is unlikely to occur. Disputes never die. I wait for further mentions of Ray this year. 

 

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“Removal motion against CJI a remarkable piece of skullduggery”, 23/04/2018, Times of India