Legal Services and Laws of Sri Lanka
SLR - 1983 Vol.1, Page No - 203
VISUVALINGAM AND OTHERS
LIYANAGE AND OTHERS
SAMARAKOON, Q.C., C.J.,
SMARVANANDA, J., WANASUNDERA, J.,
WIMALARATNE, J., RATWATTE, J.,
SOZA, J., RANANSINGHE, J.,
ABDUL CADER J., AND RODRIGO, J.
S.C. APPLICATION NO.47/83,
26 to 30,1983.
October 3 to 5, 1983.
Sixth Amendment to the Constitution - Is the one month time limit for taking oaths mandatoryordirectory-Computationof
one month - Interpretation of mutatis - mutandis clause - Non compliance by the judges -Didtheyceasetoholdoffice?
Article 157A (7) read with Article 165 and 169 (12) Time limit for the decision -Whether mandatory or directory? Article126
(5) - Article 35 - Proceedings - Oaths and Affirmations Ordinance. - section 12 and Section 5 of the Judicature Act.
In purported compliance with Article 157 A (7) read with Article 165 and 169 (12) oftheConstitutionasamendedbythe
Sixth. Amendment which came into force on 8th August 1983, the Judges of the Supreme Court and Court of Appeal took theoath
set out in the Seventh Schedule to the Bill before another Judge of the SupremeCourttheJudgesofwhicharealsoex
officio J. Ps in terms of section 45 of the judicature Act, well within the time limit of one month stipulatedintheBill
and the Act.
In the course of hearing application No. 47 of 1983 on September 8, 1983 the questionaroseWhetherthejudgeshadmade
sufficient compliance with the requirement of Section 157(A) of the Constitution that the judges oftheSupremeCourtand
the Court of Appeal should take their oaths in terms oftheSeventhschedulebeforethePresident.Thesittingswere
On the 15th September 1983 all the judges received fresh letters of appointments and took their oaths under the 4thand7th
Schedules afresh. On resumption of the sittings thequestionarosewhetherthehearingshouldbedenovoormerely
continued. The state argued that proceedings should be started de novo because the judges has ceased to holdofficeon9th
September 1983 and had been re-appointed afresh on 15th September, 1983. The present bench of nine judges was constitutedto
hear this question.
The question for determination were whether
(1) the judges of the Supreme Court and the Court of Appeal ceased to hold office in terms ofthesixthamendmenttothe
(2) the requirement in Article 126 of the Constitution that a decision be made withintwomonthsofthefillingofthe
petition is mandatory or directory
(3) the President's act of making a fresh appointment of the judges was an executive act not questionable in a Court of Law
(4) the court is precluded from investigating
matters that happened prior to the fresh appointments made on the 15th September,
Held (Ranasinghe. ,J. and Rodrigo, J. dissenting):
(1) The principles of interpretation that govern ordinary law are equally applicable to the provisions oftheConstitution.
For the purpose of deciding whether a provision in a Constitution is mandatory one must have regard also to theaims,scope
and object of the provision. The mere use of the word"shall"doesnotnecessarilymaketheprovisionmandatory.The
provisions of Article 157(A) sub-article 7(a) of the Sixth Amendment which requires the oath prescribed therein tobetaken
and subscribed before such person or body if any as is referred to in the article namely before His Excellency thePresident
is directory and default does not attract the sanction prescribed by Article 165 of the Constitution.
(2) Article 126 (5) of the Constitution whichstatesthattheSupremeCourtshallhearandfinallydisposeofthe
application made under that Article within two months of the filing of such petition is directory only and not mandatoryand
failure by the Supreme Court to dispose of the application within the prescribed period will not nullify the petition orthe
(3) Actions of the executive are not above the law and certainly can be questioned in a CourtofLaw.Article35ofthe
Constitution provides only for the personal immunity of the President during his tenure of officefromproceedingsinany
Court. The President cannot be summoned to Court to justify his actions.Butthatisafarcryfromsayingthatthe
President is acts cannot be examined by a of law. Though the president is immunefromproceedingsinCourtapartywho
invokes the acts of the President in his support Will to bear the burden of demonstrating thatactsofthepresidentare
warranted by lawthe seal of the President by itself will not be sufficient to discharge that burden.
(4) (per Samarakoon, C.J.)
A month in terms of section 3 of the interpretation ordinance means " calendar month". A calendar month isreckonednotby
counting the days but by looking at the calendar. The space oftimefromadayinonemonthtothedaynumerically
corresponding to that day in the following month is a calendar month.
(5) The phrase mutatis mutandis means with necessary alterations in point of detail.
(6) On application of the principal governing the interpretation of the phrase of mutatis mutandis, the requirementtotake
the oath before the President is not mandatory but directory.
(7) The requirement to take the oath in terms of the seventh schedule within one month of the date of the comingintoforce
of the sixth Amendment was mandatory but this was complied with and therefore the judges did not cease to hold office.
Cases referred to :
(1)Ramhari vs Nilmoni Das A.I.R. 1952Calcutta 184,186.
(2)State of U.P.V Babu Ram A.I.R. 1961 (SC) 765.
(3)Touriel vs. Internal Affairs Southern Rhodesia (1946) S.A.L.R. (A.D.) 535, 544.
(4)Motilal v. Commissioner of Income Tax A.I.R. 1951 Nagpur 224.
(5)K.M. Words V.I.T. Commissioner A.I.R 1953 A.I.R. 1953 Punjab 300.
(6)Burne v. Munisamy 21 N.L.R. 193,195
(7)The Highland Tea company of ceylon Ltd., v. Jinadasa 35 C.L.W. 47.
(8)Dodds v. Walker  2 All. E.R. 609 H.L.
(9)Lissenden v. Bosh Ltd.  A.C. 412,  1 All ER 405,412.
(10)Evans v. Bartlam  2 All ER 646, 652.
(11)Nippon Monkwa Kabushiki Kaisha v. Dawson's Bank Ltd.  1 LL L R, 147,150.
(12)Bank of England v. Cutler  2 KB 208,234.
(13)Maritime Electric Co. Ltd., v. General Diaries Ltd.,  A.C. 610.
(14)Southend-on-Sea Corporation v. Hodgson Ltd,  1 All Er page 46 1 Q.B 416.
(15)Johnson v. Moraton  3 All ER 37,47,49.
(16)Hunt v. Hunt (1862) 31 L.J. Ch. 161, 178.
(17)National westminister Bank Ltd. v. Halesowen Press works Ltd.  1 All ER 641,652.
(18)Burton v. United States 195 us 205.
(19)Customs & Excise Commissioner v. Hebson Ltd.  2 Lloyds Law Rep. 382.
(20)Society of Medical Officers of Health v. Hope 1 All ER 317.
(21)N.W. Gas Corporation v. Manchester Corporation  3 All ER 442.
(22)Welch v. Nagy  1KB 455.
(23)Basheshar Nath v. Commissioner of Income Tax AIR 1959 SC 149.
(24)Ram Gopal v. National Housing Corporation AIR 1969 Allahabad 278.
(25)Bhaskar Moharana v. Arjun Moharana AIR 1962 Orissa 167.
(26)Kushi Ram Raghunath Sahai v. Commissioner of Income Tax A.I.R. 1953 (Punjab) 300.
(27)Touriel v. Minister of internal Affairs Southern Rhodesia SALR (1946) AD 535.
(28)The Liverpool Borough Bank v. Turner (1860) 30 LJ Ch. 379.
(29)In re C.P. Motor Spirit Act 1939 A.I.R. 4 Fed. Ct.p. 1,5.
(30)Kunasingham v. Ponnambalam 54 NLR 36.
(31)Imperial Tea Company Ltd., v. Aramady 25 N.L.R. 327.
(32)Scadding v. Lorant (1851) 3 H.L.C. 418, 10 ER 164.
(33)R. v. Bedford Level Corporation (1805) 6 East 356, 368.
(34)Bhaskara Pillai v. The State of (Travancore Cochin ) 382 (1950).
(35)De Bussche v. Alt (1878) 8 Ch. D. 286 (CA)
S. Nadesan Q.C. with S. Mahenthiran And S.H.M. Reeza for petitioners.
S. Aziz, Deputy Solicitor General with P.Karunaratne, S.C. for 1st , 2nd and 3rd respondents.
October 20, 1983.
Here is a classicexample of the uncertainties of litigation and the vicissitudesofhumanaffairs.Theannalsofthe
Supreme Court do not record such a unique event and I venture to hope, there never will be such aneventintheyearsto
come. It behaves me therefore to set out in detail the events that occurred in their chronological order.
On the 29th July 1983 the President of the Republic forwarded to the Chief Justice eight copies ofaBillentitled"Sixth
Amendment to the Constitution" which the Cabinet of Ministers considered urgent in the national interest in terms ofArticle
122(1) of the Constitution. The Supreme Court considered this Bill on the 3rd August and tendered its adviceonittothe
President and the Speaker. This Bill was passed by Parliament with some amendments and was certified by theSpeakeronthe
8th August. Each of the Judges of the Supreme Court took the oath set out in the Seventh Schedule to the Bill beforeanother
Judge of the Supreme Court. Similarly each of the Judges of the Court of Appeal took the said oath beforeanotherJudgeof
the same Court. At this juncture I might mention that the Judges of the Supreme Court and Court of Appeal are exofficioJ.
Ps. in terms of section 45 of the Judicature Act. The oaths of the Judges of the Court of Appeal were takenondatesprior
to the 4th September, 1983, and the oaths of the Judges of the Supreme Court were taken before- 31st August, 1983. Theywere
all well within the time limit of one month stipulated in the Bill and the Act.
I must now go back a few days in point of time. On the 22nd July, 1983, the Petitioners in this case (Application No.47of
1983) instituted this application against theRespondentscomplainingofaninfringementoftheirfundamentalrights
guaranteed by Article 14(l)(a) and (b) of the Constitution. This application was taken up for hearingbyaBenchofFive
judges of this Court on 8th September, 1983. The argument was not concluded on that day and was resumed on the next day.
Counsel for the Petitioners was making his submissions when one of my brother judges who was reading a copy of the Actwhich
had reached us two days earlier brought it to my noticethattheprovisionsofsection157AoftheActcontaineda
requirement that the judges of the Supreme Court and the court of Appeal should take their oathsintermsoftheSeventh
Schedule before the President which in fact had not been done by any of thejudges.Thejudgesofbothcourttherefore
considered this matter and wrote to the President, inter alia that in their opiniontheperiodofonemonthexpiredat
midnight on the same day (i.e. the 9th September ) and that they were thus prepared to take their oaths. There wasnoreply
from the President. However, I was informed by the Minister of justice that he had contacted thepresidentonthismatter
and he had been told that the President had been advised by the Attorney-General that the period of one month had expiredon
the 7th . In the result no oath could be administered. On Monday the 12th I was informedthattheCourtsofthesupreme
Court and Court of Appeal and the Chambers of all judges had been locked and barred and armed police guards hadbeenplaced
on the premises to prevent access to them. The judges had been effectively locked out.Ithereforecautionedsomeofmy
brother judges who had made ready to attend Chambers that day not to do so. I referred to this fact in myconversationwith
the Minister of justice on the morning of Monday the 12th and he while deprecating it, assuredmethathehadnotgiven
instructions to the police to take such action. I was made aware on Tuesday that the guards had been withdrawn.Thismatter
was referred to in the course of the argument and the Deputy Solicitor-General informed the Court that it was theactofa
"blundering enthusiastic bureaucrat." He apologized on behalf of the official and unofficial Bar. On the last day ofhearing
the Deputy Solicitor-General withdrew the apology and
substituted instead an expression of regret. The identity of the blundering bureaucrat was not disclosed to us.Howeverhis
object was clear -that was to prevent the judges from asserting their rights. I must now revert to the chronology ofevents.
On the 15th September all Judges of the Court of Appeal and Supreme Court received fresh lettersofappointmentcommencing
15th September. Two oaths were also administered to each. One was the oath of office in terms of the Fourth Scheduletothe
Constitution and the other was the oath in terms of the Seventh Schedule to the Sixth Amendment.
The Bench of five Judges then sat on the 19thSeptember to hear this application. CounselforthePetitionersvehemently
objected to proceedings de novo and contended that proceedings must continue from where it stopped on the9thSeptemberas
the judges had not ceased to hold office. I considered this a matter of the greatest importance andthereforereferredall
points in dispute to this Full, bench of nine Judges. The following issues were raised for decision:-
1. Did the Judges of the Supreme Court and the Courtof Appeal cease to hold office in terms of the Sixth Amendmenttothe
2. Is the requirement in Article 126 of the Constitution that a decision be made within twomonthsofthefilingofthe
petition mandatory or directory?
3. Is the President's act of making a fresh appointment of the judges an executive act not questionable in a Court of law?
4. Is this Court Precluded from investigating matters that happenedpriortothefreshappointmentsmadeonthe15th
Issues 3 and 4 were raised, as preliminary objections by the Deputy Solicitor General, but decided tohearallissuesand
make one final order. The hearing on these issues commenced on till 22nd September which is the final datefordecisionif
the provisions of Article 126(5) are mandatory. I shall now proceed to deal with the above mentioned issues.
The first question to be decided is whether the Judges of the Court of Appeal and the Supreme Court ceased to hold officeas
a direct result of the failure to observe the provisions of Article 157A of the Sixth Amendment read with Article 165 ofthe
Constitution. The relevant provisions of Article 157A read as follows:-
"(1) No person shall, directly or indirectly, in or outside Sri Lanka,support,espouse,promote,finance,encourageor
advocate the establishment of a separate State within the territory of Sri Lanka.
(2) No political party or other association or organisation shall have as one of its aims or objects the establishmentofa
separate State within the territory of Sri Lanka.
(7) Every officer or person who was or is required by, Article 53, Article 61 orArticle107orArticle165orArticle
169(12), to take and subscribeor to make and subscribe an oath or affirmative, every member of, or personintheservice
of, a local authority, Development Council, PradeshiyaMandalaya,GramodayaMandalayaorpubliccorporationandevery
attorney-at-law shall -
(a) if such officer or person is holding office on the date of coming into force of this Article, makeandsubscribe,or
take and subscribe, an oath or affirmation in the form set out in the Seventh Schedule, before such person orbodyifany,
as is referred to in that Article, within one month of the date on which this Article comes into force
(b) if such person or officer is appointed to such office after the coming into force of this Article, make and subscribeor
take and subscribe, an oath or affirmation, in the form set out in the Seventh Schedule, before such person or body, ifany,
as is referred to in that Article, within one month of his appointment to such office.
The provisions of Article 165 and Article 169(12) shall, , mutatis- mutandis apply to, and inrelationto,anypersonor
officer who fails to take and subscribe, or make and subscribe, an oath or affirmation as required by this paragraph".
Article 107(4) referred to in sub-article (7) stipulates that a Judge of the Supreme CourtorCourtofAppealshallnot
enter upon his duties of office until he takes and subscribes an oath in terms of the Fourth Schedule, before the President.
Article 165(1)of the Constitution reads thus-
"Every public officer, judicial officer and every other person as is required by the Constitution to take, anoathormake
an affirmation on entering upon the duties of his office, every holder of an office required ,under the existing law totake
an official oath and every person in the service of every local authority and of everypubliccorporationshalltakeand
subscribe the oath or make and subscribe the affirmation set out in the Fourth Schedule. Any suchpublicofficer,judicial
officer, person or holder of an office failing to take and subscribe such. oath or make and subscribe such affirmationafter
the commencement of the Constitution on or before such date as may be prescribed by the Prime Minister by order publishedin
the Gazette shall ceased to be in service or hold office."
It is contended that the failure of the Judges to take and subscribe their oath, before the President attractsthesanction
set out in Article 165 and thereby they ceased to hold office. It was submitted by theDeputySolicitor-Generalthatthis
was a mandatory provision while Counsel for the Petitioners contended that this was merely directory.
It is said that as a general rule "constitutional provisions are mandatory unlessbyexpressprovisionsorbynecessary
implication, a different intention is manifest. Some cases even go so far as to hold that all constitutionalprovisionsare
mandatory". (Bindra - interpretationof Statutes Edn 5 p. 860). But this proposition istoowidelystated.Nodoubt a
Constitution is paramount law, to the authority of which all subordinate laws are, and indeed mustbe,referable.Assuch
there is a bias towards command but over the years this rigid interpretation has given way to a broad andliberalapproach.
A Constitution is a "living and organic thing" ( Per Gwyer, C.J. In re MotorSpiritAct(29).Itembodies"theworking
principles for practical Government" and its "provisions cannot be interpreted and crippledbynarrowtechnicalities"per
Mukharji, J. in Ramhari vs. Nilmoni Das (1) The principles of interpretation that govern ordinary law are equallyapplicable
to the provisions of a Constitute. For the purpose of deciding whether a provision in a constitution ismandatoryonemust
have regard also to the aims, scope and object of the provision. The mere use of the word "shall" does notnecessarilymake
the provision mandatory. Subba Rao,J. in the case of State of U.P. vs. Babu Ram (2) stated the position thus-
"When a statute used the word 'shall', prima facie , it is mandatory , but the Court may ascertain the real intention ofthe
legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of theLegislature
the Court may consider, inter alia, the nature and the design of the statute, and the consequences whichwouldfollowfrom
construing it the one way or the other, theimpactofotherprovisionswherebythenecessityofcomplyingwiththe
provisions in question is avoided, the circumstance, namely, thatthestatuteprovidesforacontingencyofthenon-
compliance with the provisions, the fact that the non-compliance with the provisions is or is not visitedbysomepenalty,
the serious or trivial consequences that flow therefrom, and, above all, whethertheobjectofthelegislationwillbe
defeated or furthered."
The sole object of the Sixth Amendment is to prohibit the violation of the territorial integrity of Sri Lanka and therebyto
preserve a Unitary State. With that end in view it imposed penalties which are set out in Article 157A (3)(5) and (6) ofthe
amendment. There was a category of officers and persons who were required by the Constitution to take anoathintermsof
the Fourth Schedule. Their allegiance to a Unitary State was compellable. Therefore 157A(7) required them to take an oathin
terms of the Seventh Schedule within a month of the Article coming into force on pain of losing the office theyhold.These
are no doubt mandatory provisions. If the are not obeyed the whole purpose of the Sixth Amendment will be brought tonought.
But it is argued that requires the oath to be taken before a particular person is also mandatory, and thattheJudgesmust
take their oaths before the President. A clue to this problem is to be found in Article 165(l) whichmustbereadmutatis
mutandis with Article 157A(7). The Deputy Solicitor General stated that the only pertinent portionofArticle165(1)is
that an officer shall cease to hold office. He submitted that the mutation must be done in this manner delete allthewords
in Article 165(1) except the words "failing to take and subscribe such oath or make and subscribe such affirmation"andthe
words "shall cease to be in service or hold office" and for those words that have beendeletedsubstitutethewords"Any
such person or officer". So that the mutation results in the following article -
"Any such person or officer failing to take and subscribe such oath or make and subscribe such affirmation shall cease tobe
in service or hold office."
I cannot agree. This is not a mutation but a mutilation ofArticle165.ThemajorpartofArticle165(1)isthereby
abandoned. Mutatis mutandis means "with necessary alterations in pointofdetail"(Wharton'sLawLexicon).Theprecise
significance and limits of the effect that should be given to the words was set out in thecaseof'Tourielvs.Internal
Affairs Southern Rhodesia (3) as follows:-
"Though the phrase mutatis mutabdis is not infrequently used in statutes and in other legal documents, there seemstobea
dearth of authority as to its precis significance, and the limits of the effect that should be given to it. mutandum',being
the gerundive form of the Latin verb muto , is, according to the meaning given to thegrammaticaltermgerundive'inthe
Oxford 'New English Dictionary','a verbal adjective, of the nature of a passive participle, expressing the idea ofnecessity
or fitness'. The question, therefore, arises whether, in deciding as to, the effect of the expression mutatismutandis'the
test to be applied for the purpose of ascertaining in any particular case what are mutanda' is 'necessity' or.'fitness'.I
think the answer to this question must be that necessity is the test, and that considerations of fitness arenotsufficient
to justify a change, as a change which the expression mutatis mutandis requires to be made, unless they are so cogentasto
establish necessity. It fitness in a less strict sense, i.e., fitness not sufficient in degree to shownecessity,werethe
test to be applied for the purpose of ascertaining what changesarerequiredinordertogivedueeffecttomutatis
mutandis' , a wide field would be opened up for speculation in many cases where this expression is used, and therewouldbe
room for great differences of opinion as to whether particular changes were, or were not'. fittingwith the resultthatin
the case of any provision taken from the context of one Act and applied for the purpose of another mutatismutandis',there
would be serious risk of uncertainty as to how it was to be construed in the context of the Act into which ithadbeen,so
to speak, transplanted."
In the case of Motilal vs. Commissioner of Income Tax (4) the Court was called on to apply certain Rules oftheIncomeTax
Appellate Tribunal Bombay mutatis mutandis' to the provisions of section 66 of the Income TaxActof1922.Section66(1)
reads as follows:-
"Within sixty days of the date upon A he is served with notice of an order under sub-s.(4) of S.33 the assessee .... may,by
application in the prescribed form, ... require the Appellate Tribunal to refertotheHighCourtanyquestionoflaw
arising out of such order, and the Appellate Tribunal shall within ninety days ofthereceiptofapplicationdrawupa
statement of the c and refer it to the High Court."
Rule 36 provided that Rules 7 and 8 shall apply mutatis mutandis to an application under section 1 ofsection66.Rules7
and 8 read thus-
"7(l) A memorandum of appeal to the Tribunal shall be presented by the appellant in person or by an agenttotheRegistrar
at the head quarters of the Tribunal at Bombay, or to an officer authorised in this behalfbytheRegistrar,orsentby
registered post addressed to the Registrar or to such officer.
(2) A memorandum of appeal sent by postundersub-r.(1)shallbedeemedtohavebeenpresentedtotheRegistrar
.............. on the day on which it is received in the office of Tribunal at Bombay .....
8. The Registrar shall endorse on every memorandum of appeal the date on which it is presented,ordeemedtohavebeen
presented under R.7."
The application requiring the Tribunal to refer the matter to the High Court was received on the 63rd day and a pleainbar
was taken. The Court upheld this plea and construed the rules thus -
"(8) In reading Rr.7and 8 mutatis mutandis.' every effort should be made to adapt everypartoftheserulesforthe
purposes of the application. It is not permissible to leave out any portion arbitrarily. The Rules do not say thatsub-r.(2)
of R.7 should be left out, and hence every effort must be made to see thatthatsub-rulealsocanbeadaptedsuitably.
Reading Rr.7 and 8 in the light of R.36 we get the following result:
7(1) An application under S.66(1) of the Act shall be presented by the applicant in person or by an agenttotheRegistrar
or sent by registered post addressed to the, Registrar .......
(2) An application under S.66(1) of the Act sent by post under sub-r.(1) shall bedeemedtohavebeenpresentedtothe
Registrar on the day on which it is received in the office of the Tribunal in Bombay .......
8. The Registrar shall endorse on every application under S.66(l) the date on which it is presented ............It istrue
that the word presentation' is not used in S.66(1)-. But when the legislaturefixedaperiodof60daysinwhichthe
assessee (or the Commissioner) may 'require' the Tribunal to refer to a question of law, thelegislaturecertainlyhadin
mind a terminus ad quem of the period. It is an elementary rule of construction of statutesthatthejudicatureintheir
interpretation have to discover and act upon the mens or sententia legis Normally, Courtsdonotlookbeyondtheliters
legis, and in this case it is not necessary to do any more."
The Court expressly refused to leave out part arbitrarily and made onlyonealteration.This methodwasapprovedand
repeated by Kapur J. in K.M. Works vs. I.T. Commissioner (5). He stated that thephrasemutatismutandispermitted"only
such verbal changes to be made in the rules mentioned in Rule 36 aswouldmaketheprinciplesembodiedintheserules
applicable, to applications under sub- section (1) of section 66." This fact appearstohaveescapedthenoticeofthe
draftsman of the Sixth Amendment.
If necessity, and not fitness, be the test and if the principles of Article 165 are to be maintained thentheonlychanges
in Article -165(1) that can be Made are-
1. To substitute "Seventh Schedule" for the words "Fourth Schedule" and
2. To substitute the words "within one month of the date on which this Article comes into force" forthewords"afterthe
commencement of the constitution on or before such date as may be prescribed by the Prime Minister by Order published inthe
The Deputy Solicitor General contended that "as much as the form is important the manner too is important". If importanceis
the guide then form, manner and time are all important. But what the law requires to be done is to applytheprovisionsof
Article 165 to Article 157A. They are
(1) the oath,
(2) the time limit, and
(3) the sanction, I, i.e the loss of office.
There is nothing else that could be considered. The person before whom the oathistobetakenfindsnoplaceinthe
provisions of Article 165(l). It is found only in Article 157A. There is therefore no justification for the additionofthe
words "before the President". Such an amendment can be made by the Legislature only. in the result the words "shall ceaseto
hold office" apply only to the failure to take the oath within one month and has no application tothepersonbeforewhom
the path has to be taken. To my mind this is a clear indication that this last provisionisdirectoryandnotmandatory.
There is another factor which confirms me in this view. Article 165(l) is one of theTransitionalProvisionsandinthis
case applies to persons who are holders of office and have already taken an oath before entering upon theirdutiesandthe
oath in terms of the Seventh Schedule was merely meant to permit continuance in office. The objectoftheSixthAmendment
was to bind the persons to allegiance to a Unitary State and to abjure separatism. This has been achievedbythe formof
the oath and to a certain extent by the time limit of one month.
The Deputy Solicitor General contended that the oaths taken by the Judges before their fellow Judges are not legallybinding
or valid even though Judges of the Court of Appeal and Supreme Court are ex-officio J.Ps. intermsofsection45ofthe
Judicature Act (Vide the Fifth Schedule). He added that the requirement to take the oath before thePresidentismandatory
His reason for stating this needs to be quoted verbatim:
"The reason for this is not far to seek. The Head of State as repository of certain aspects of the people'sSovereigntyhas
a constitutional obligation to obtain from the Judges their allegiance. The personal allegiance which the Judges owed tothe
Sovereign in the days of the Monarchy is continued to the present day where the allegiance is owed to the Head oftheState
as representing the State. The Head of the State is entitled to ensure that the allegiance is manifested openlyandinhis
This is a startling proposition. Sovereignty of the People under the 1978 Constitution is one and indivisible.Itremains
with the People. It is only the exercise of certain powers of the Sovereign that are delegated under Article 4asfollows:-
(a) Legislative power to Parliament
(b) Executive power to the President
(c) Judicial power through Parliament to the Courts.
Fundamental Rights (Article 4(d)) and Franchise (Article 4(e)) remainwiththePeopleandtheSupremeCourthasbeen
constituted the guardian of such rights. (Vide Chapter XVI of the Constitution). I do not agreewiththeDeputySolicitor
General that the President has inherited the mantle of a Monarch and that allegiance is owed to him. Theoathintermsof
the Fourth Schedule which the Judges were required to take or affirm in terms ofArticle107(4)sworeallegiancetothe
Second Republican Constitution and the Democratic Socialist Republic of Sri Lanka. I cannot therefore acceptthisreasoning
of the Deputy Solicitor General.
The next reason he gives is that a J.P. has never been knowntoadministeraConstitutionalOaths,andjudgesofthe
Superior Courts have always taken their oaths before the President. Let me deal first with the first part of theseargument.
Chapter VIII of the Constitution deals with a Cabinet of Ministers and the President is a memberoftheCabinet.Italso
Provides for the appointment of Deputy Ministers, a Secretary to the Cabinet, and a Secretary for eachoftheMinisteries.
All of them must take an oath in terms of the Fourth Schedule before they enter upon theirduties.(VideArticle53).No
person is designated to administer the oath. But such an oath to be binding must be taken before a person recognisedbylaw
as one empowered to administer a binding oath. It has been customary for the Ministers and Deputy Ministers to take theoath
before the President who is an ex-officio J.P. (Vide Fifth Schedule to the Judicature Act). Ipresumetheotherofficials
also are sworn into office by a J.P. The various Public Officers appointed under Chapter IX are required totakeasimilar
oath (Vide Article 61). No person is designated to administer such oath. For this oath to be binding it is sufficientifit
is administered by a J.P. Members of Parliament take an oath before Parliament (Vide Article 63). Parliamentdulyassembled
is presided over by the Speaker and in his absence by the Deputy Speaker or the Chairman of Committees.Whoeverisinthe
chair administers the oath. He is an ex-officio J.P. (Vide Fifth Schedule to Judicature Act).TheJudgestaketheiroath
before the President who is an ex officio J.P. and similarly the President takes his oathbeforetheChiefJusticeora
Judge of the Supreme Court who are ex-officio J.Ps. It is not a Democrat coincidencethattheyareJ.Ps.Theyareso
appointed for the reason that they have a constitutional duty to administer an oath. It is customary in this country totake
oaths before a J.P. or Commissioner of Oaths unless it is mandatory to take it before a particularJ.P. ofstanding.Oaths
required by Article 53 and Article 61canbeadministeredbyanyJ.P.Itisthereforenotcorrecttostatethat
Constitutional oaths are never administered by J.Ps. Judges of the Superior Courts have taken their oathsofofficebefore
the President. Section 133 of the FirstRepublican, Constitution of 1972 did not require it. Article 107(4)oftheSecond
Republican Constitution of 1978 required it. But this, as I have already stated. is not mandatory in respect of theoathin
the form out in the Seventh Schedule.In the circumstances such an oath taken before a J.P. empowered by lawtoadminister
an oath is a perfectly valid Oath.
The Deputy Solicitor General also referred us to the provisionsofsection12oftheOathsandAffirmationOrdinance
(Cap.17) which is a reference to commissioners of Oaths. Section 12 authorises a Commissioner of Oaths to administer anoath
"in all cases which an oath, affirmation or affidavit is commonly administered or taken before a J.P." He seeks tointerpret
this provision by reference to the provisions of section 84 of the Courts ordinance. But this we are not permitted to dofor
the simple reason that the Courts Ordinance was repealed. Section 12 of Cap.17 therefore stands alone.WhataretheOaths
and Affirmation that are commonly Administered by a J.P.? We cannot look to particular instancesinaStature.Thewords
"commonly administered" I understand to mean "ordinarily to administered" in day to day affairs of the community. Manytypes
of Oaths are required by law as well as by private business. It is common knowledge that when any citizen desires to makean
oath or affirmation he must necessarily go to a J. P or a commissioner of Oaths. Unless thelawexpresslyprescribessome
other manner of making such oath or affirmation. In the absence of suchcompulsionofoathistakenbeforeaJ.P.or
commissioner of Oaths. It was not mandatory for a Judge to taketheoathintermsoftheSixthAmendmentbeforethe
president. He was entitled to swear or affirm in any other manner recognised by the law, viz. before a J.P. In theresultI
hold that the judges of the Court of Appeal and supreme court did not cease to hold office in terms of Article 165(1) ofthe
The next question to consider is the question of the time limit of one month. Counsel for the Petitioner has stated thatthe
opinion expressed by the Judges in the letter to the President dated 9th September stating that the9thSeptemberwasthe
last date for taking the oath in terms of theSeventhSchedulewasaconsideredopinionoftheSupremeCourtona
constitutional matter, and the Supreme Court being the final authorityontheinterpretationoftheConstitution,that
opinion was binding on all persons in the country including thePresident.Iamunabletoacceptthispropositionas
correct. We did not sit as the Supreme Court to consider and decide a disputed constitutional issue or the interpretationof
a particular provision of the Constitution. We sat with the majority of the members of theCourtofAppealtodiscussa
matter arising out of our own contract of service and expressed an opinion which was personal to each of us.Wehadbefore
us information which showed that the AttorneyGeneral'sopinion,asexpressedtotheGovernment,consideredthe7th
September as the final date. We were of the opinion that the last day was the 9th September. I nowfindthatneitherside
was correct. The final date appears to be the 8thSeptember."Month"intermsofsection3(p)oftheInterpretation
Ordinance (Cap.2) means "Calendar month". A Calendar month is reckoned not bycountingthedaysbutbylookingatthe
Calendar. "The space of time from a day in one month to the day numerically correspondingtothatdayinthefollowing,
month is a Calendar month." Burne vs. Munisamy (6), 'The Highland Tea Company of Ceylon Ltd. vs. Jinadasa (6) andDoddsvs.
Before I deal with the preliminary issues I desire to deal with the issue raised on the time limit of two months setoutin
Article 126(5) which states that the Supreme Court "Shall hear and finally dispose of any petition or referencewithin two
months of the filling of such petition or the making of such reference". The Deputy Solicitor-
General submitted that this provision was mandatory so that even a fault of the Court is no excuse.Anexaminationofthe
relevant provisions of the Constitution indicates thatthisprovisionismerelydirectory.FundamentalRightsarean
attribute of the Sovereignty of the People. The constitution commands that they "Shall be respected, secured and advancedby
all the organs of Government and shall not beabridged,restrictedordeniedsaveinthemannerandtotheextent
(thereinafter) provided" (Article 4(d)). It is one of the inalienable rights of Sovereignty (Article 3). By Article 17every
person is given the right to apply to the Supreme Court to enforce such right against the executiveprovidedthecomplains
to Court within one month of the infringement or threatened infringement (Article 126). These provisions conferarighton
the citizen and a duty on the Court. If that right was intendedtobelostbecausetheCourtfailsinitsdutythe
constitution would so have provided. It has provided no sanction of any kind in case of such failure. To my mind it wasonly
an injunction to be respected and obeyed but fell short of punishment if disobeyed. Iofopinionthattheprovisionsof
Article 126(5) are directory are not mandatory. Any other construction would deprive a citizen of his fundamentalrightfor
no fault of his. While I can read into the constitution a duty on the Supreme Court to act in a particular way I cannotread
into it any deprivation of a citizen's guaranteed right due to circumstances beyond his control.
I shall now deal with the two preliminary objections. The Deputy Solicitor-General contendsthatthejudgesareestopped
from denying that they now function on a fresh appointment issued by the President on the 15th September. It is correctthat
such letters of appointment were issued to each judge on the 15th after two oaths were taken by each. They aretheoathin
terms of the Fourth Schedule and the oath in terms of the Seventh Schedule. Counselforthepetitionercontendsthatan
estoppel cannot operate because the judges had no choice as they had been locked out. There is no doubt that Judges hadbeen
denied access tothe Courts and Chambers by a show of force. There is also no gainsaying thatthisacthaspollutedthe
hallowed portals of these Courts and that stain can never be erased. But it is unthinkable that Judges should pend anexcuse
against estoppel on the act of a blundering bureaucrat. Prima facie judges would be estopped. They cannot both approbateand
reprobate or to use a "descriptive phrase" they cannot blow hot and cold. Vide Lord Atkin in Lissenden Vs. Bosch Ltd. (9)If
it was as simple as that then I would have had no hesitation in holding with the contention of the State. But this goesmuch
deeper. It is a constitutional matter and it is contended that the judges cannot decide whether ornottheyweredejure
Judges on the 9th September and that they cannot decide any matter concerning their appointmentasJudges.InShortthey
cannot look into facts that existed or occurred befiore the 15th September. I have already stated thatthejudgesdidnot
cease to hold office and therefore on the 15th September at the time fresh letters of appointment were issuedtheywerede
jure Judges. Apart from the fact that there is no estoppel against the statute there is the larger and moreimportantissue
vis a vis the Supreme Court. To deny it the right to rule on constitutional issues istodenytheexclusivejurisdiction
conferred on the Supreme court in constitutional matters. What is pleaded as an estoppel against the judges is in realityan
estoppel against the Supreme Court. I have no hesitation in dismissing the two preliminary objections.
In view of the foregoing reasons I am of opinion that the Judges of the Supreme Court and Court of Appeal didnotceaseto
hold office by reason of the provisions of Article 157A of the SixthAmendment.Further,thatthelimitoftwomonths
Prescribed in Article 126(5) is directory and not mandatory.
S. SHARVANANDA, J.,
The matters referred to the FullBenchinvolveimportantquestionswhichconcernthejurisdiction,dignityandthe
independence of the Supreme Court and of the Court of Appeal of the Republic of Sri Lanka. In dealing with thequestionswe
must keep in, mind that the objectivity of our approach itself may incidentally be in issue. It is therefore in aspiritof
detached objective inquiry which is a distinguishing feature of judicial process, that we needtofindananswertothe
questions that are raised. It is essential to deal with the problem objectively and impersonally. If ultimatelywecometo
the conclusion that the contention advanced before us by Mr. Nadesan is erroneous, we willnothesitatetopronounceour
determination against that submission. On the other hand if we ultimately reach the conclusion that the proposition urgedby
Mr. Azeez, for the Attorney-General cannot be sustained, we will not falter to pronounce a verdictaccordingly.Indealing
with problems of constitutional importance and significance it is essential that we should proceed todischargeourduty,"
without fear or favour, affection or ill-will," and with the full consciousness that it is our solemn duty and obligationto
uphold the Constitution of the democratic Socialist Republic of Sri Lanka (1978).
I agree with the Chief Justice, for the reasons stated by him, that the provision of Article 157(A) Sub-Article 7(a)ofthe
Sixth Amendment which requires the oath prescribed therein to be taken and subscribed before "such person or body,ifany",
as is referred to in that Article (Article 107), namely before His Excellency the President, is directory andnotmandatory
and a default thereof does not attract the sanction prescribed by Article 165 of the Constitution, and that since theJudges
of the Supreme Court and of the Court of Appeal had duly taken the oath in the form set out in the seventh Schedule inTerms
of the Oaths Ordinance (Ch.17), Before another judge of the respective Court, prior to the expiry of one month from thedate
on which the Sixth Amendment came into force, their failure to take their said oath before thePresident did notresultin
their ceasing to hold office on the termination of the said one month. In my view submission of the Deputy solicitorgeneral
that the judges of the Supreme court and of the court of Appeal ceased to hold office intermsofArticle165(1)ofthe
Constitution on midnight of 7th or of 78th day of September 1983, is not well founded and is erroneousthere wasnochange
in the legal status of the judgesthe judges continue to functionwith all legitimacy as judges de jure oftherespective
courts, without any break, conceptually or otherwise, from the 8th day of September 1983 onwards.
It was urged by the Deputy Solicitor General that the judges by accepting the fresh appointment issued bythePresidenton
15th September acquired a new lease of life and are now functioning in pursuance of the said letters of appointmentandare
estopped from denying that they derive their authority from the fresh appointment and from canvassing theproprietyofthe
The Deputy Solicitor General founded his argument on the fact thaton15thSeptember1983thejudgesacceptedwithout
protest fresh letters of appointment dated 15th September 1983 fromthe President.HeSubmittedthatthisconductis
explicable only on the basis that the Judges had resigned themselves to the position that they had ceased to hold officeand
had elected to acceptfrom the President fresh letters of appointment.Heinvokedtheprinciplethatapersoncannot
approbate and reprobate at the same time in support of his proposition of estoppel.
The law of estoppel is satisfactorily stated in Halsbury's Laws of England, 2nd Ed.Vol.13,para452atpage400inthe
following words :
"Where one has either by words or conduct made to another a representation of fact, either with knowledgeofitsfalsehood
or with the intention that it should be acted upon,orsoconductshimselfthatanotherwouldasareasonableman,
understand that a certain representationoffactwasintendedtobeactedon,andthatotherhasactedonsuch
representation and altershispositiontohisprejudice,anestoppelarisesagainstthepartywhohasmadethe
representation, and he is not allowed to aver that the fact is
otherwise than he represented it to be."
The principle that a person may not approbate and reprobate is a species of estoppel intermediate between estoppel byrecord
and estoppel by conduct.
"The phrases "approbating and reprobating" or "blowing hot and cold" must be taken toexpress,first,thatthepartyin
question is to be treated as having made an election from whichhecannotresile,andsecondly,thathewillnotbe
regarded.......as having so elected unless he has taken a benefit under or arising out of thecourseofconductwhichhe
has first pursued and with which his present action is inconsistent" - Per Evershed M.R., (1950) 2 A.E.R. 549 at 552.
"The doctrine of approbation and reprobation requires for, its foundation, inconsistency of conduct, as where aman,having
accepted a benefit given to him by a judgment cannot allege the invalidity of the judgment.whichconfersthebenefit"-
Lord Russel in Evans Vs Bartlam (10).
"In cases where the doctrine of approbation and reprobation does apply, the person concernedhasachoiceoftworights
either of which he is at liberty to accept, but not both. Where the doctrine does apply if thepersontowhomthechoice
belongs irrevocably and with knowledge adopts the one, he cannot afterwards assert the other," Per LordAtkininLissenden
Vs. Bosch Ltd.,(9).
A person cannot adopt two inconsistent positions, he cannot affirm and disaffirmhe ispresumedtowaiveonerightand
elect to adopt the other. This doctrine of waiver looks chiefly to the conduct and position of thepersonwhoissaidto
have waived in order to see whether he has "approbated", so as to prevent him from reprobating - whether hehaselectedto
get some advantage to which he would not otherwise have been entitled, so as to deny him a later election to the contrary.
"This doctrine of estoppel by representation forms part of the law ofevidenceandsuchestoppel,exceptasabarto
testimony has no operation or efficacy whatsoever. Its sole office is either to place an obstacle in the way of a casewhich
might otherwise succeed, or to remove an impediment out of the way of a case which might otherwise fail" Spencer Bower -The
Law relating to Estoppel by Representation - 2nd Edition pages 6-7.
No cause of action arises upon an estoppel.
It only precludes a person from denying the of some representation previously made by him.
"It may (if established) assist a plaintiff in enforcing a cause ofactionbypreventingadefendantfromdenyingthe
existence of some fact, the existence of which would destroy a cause of action." Per Lord Russel in NipponMonkwakabushiki
Kaisha vs. Dawson's Bank Ltd.(11).
The representation relied upon as an estoppel is, in itselfnodirectoraffirmativeevidenceofanytitleorright
whatsoeverit can only be used to prevent the opposite party from denying the title or right.Itcannotpreventathird
party from doing so, and therefore can confer no legal title.
"It is true that a title by estoppel is only good against the person estopped and imports from its veryexistencetheidea
that there is no real title at all ." Per Farwell, L.J in. Bank of England vs. Cutler (12).
The plea of estoppel raised by the Deputy solicitor General involves the admission that the letters of appointment issuedon
15thSeptember, do not in fact confer or establish a legal title, though it is not open to the Judges who acceptedthemto
make that assertion. On this view of the Deputy Solicitor General's argument, Mr. Nadesan was justifiedinsubmittingthat
his client who is a third party is not bound by this estoppel and that it is opentohimtodemonstratethatthelegal
authority of the Judges to function as such Judges does not stem from the letters of appointment granted on15thSeptember,
but from their original letters of appointment and that, at all relevant times, they functioned de jure.
Assuming that the acceptance of the letters of appointment dated 15th September, from the President lends itself tospelling
out a representation, sufficient factually to support a plea of estoppel by conduct (there are difficultiesinthewayof
such assumption) the question then arises whether such plea can be sustained in law. This doctrineofacquiescence,waiver
or estoppel is based on principles of justice and equity and hence is limited in its operation.
Spencer Bower at page 140 states lucidly the limits of the doctrine.
"Just as it is a good affirmative defence toanactiononacontractthatitcannotbeperformedwithoutdirectly
contravening the provisions of a statute and that, by enforcing it or otherwise judicially treating it asvalid,anycourt
would be sanctioning and condoning such contravention, so also it is a good affirmative answertoacaseofestoppelby
representation that any closure of the representor's mouth would result in a like judicial recognition of, and connivanceat
a statutory illegality. The private rights and interests of the individual must yield in suchcircumstancestothehigher
rights and interests of the State. In accordance with these paramount considerations of public policy, it has been heldthat
no estoppel can be allowed which will preclude the representor from asserting and bringing to the noticeoftheCourtthe
statutory illegality of such acts, proceedings and instruments as are sought to be validated by the estoppel put forward."
The law precludes a Court from allowing an estoppel, if to do so would be to act inthefaceofastatuteandtogive
recognition through the admission of one of the parties to a state of affairs, which the law has positivelydeclaredisto
not to subsist. A party cannot set up an estoppel in the face of a statute. Thus a corporation on which thereisimposeda
statutory duty to carry out certain acts in the interest of the public cannot preclude itself byestoppelbyconductfrom
performing its duty and asserting legal rights accordingly. See Maritime Electric Co. Ltd. vs. General Dairies Ltd. (13)and
Southend-on-sea Corporation vs. Hodgson Ltd.(14). Given a statutory obligation of an unconditional character it isnotopen
to a court to allow the party bound by that obligation to be barredfrom carrying it out by the operationofanestoppel.
The question whether an estoppel is to be allowed or not, depends on whether an enactmentorruleorlawrelied onis
imposed in the public interest or "on grounds of a general public Policy."
(See Re a Bankruptcy notice - Per Atkin, L.J. (1924) 2 Ch. 76 at 97)
"The truth is that it can no longer be treated as axiomatic that in the absence of explicit language the Courtswillpermit
a contracting out of the provisions of an Act of Parliament where that Act, though silent as to the positionofcontracting
out, nevertheless is manifestly passed for the protection of a class of persons who donotnegotiatefromapositionof
equal strength, but in whose well-being there is a public as well as a private interest. Such acts are not necessarily tobe
treated as simply "Jus prose introductum", as "a private remedy and a private right" which an individual member of theclass
may simply bargain away by reason of his freedom of contract", Per Lord Hailsham in Johnson vs Moraton (15).
"Quilbet potest renunciare juri pro se introducto" (any one may at his pleasure renounce thebenefitofastipulationor
other right introduced entirely in his own favour). This maxim has no application inamatterwherethepublichavean
interest. See Brooms' Legal Maxims, 10th Ed. page 481.
"An individual may renounce a law made for his special benefit." It was pointed out by Lord Westbury in Hunt vs. Hunt,(16),
that the words "pro se" were introduced into the maxim to show that no man can renounce a right ofwhichhisdutytothe
public or the claims of society forbid the renunciation.
"The key, however to the interpretation of the maxim lies, as Lord Simon of Glaisdale pointed outinNationalWestminister
Bank Ltd. vs. Halesewen Press Works Ltd. (17),in discovering whether the particularlibertyorrightconferredbythe
statute or rule of law is entirely for the benefit of the person purporting to renounce it . If there is a public as wellas
a private interest, a contrary Latin maxim applies."
Per Lord Hailsham at page 47 of (1978) 3 A.E.R. 37. (15)-
It is clear that the rule expressed in the maxim, has no applicability if the matter of an alleged private waiver isonein
which the public has an interest.
Article 107 of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978 provides :
(1) "Every Judge of the Supreme Court and Court of Appeal Shall be appointed by the President oftheRepublicbywarrant
under his hand.
(2) Every such Judge shall hold office during good behaviour and shall not be removed except by anorderofthePresident
made after an address of Parliaments, supported by a majority of the total number of Members of Parliament(includingthose
not present) has been presented to the President for such removalon the ground of proved misbehavior or incapacity.
Provided that no resolution for the presentation of such an address shall be entertained by theSpeakerorplacedonthe
Order Paper of Parliament unless notice of such resolution is signed by not less thanonethirdofthetotalnumberof
Members of Parliament and sets out full particulars of the alleged misbehavior or incapacity."
The main aspirations of the Constitution are set down in its luminouspreamble.Ruleoflawisthefoundationofthe
Constitution and independence of the judiciary andfundamentalhumanrightsarebasicandessentialfeaturesofthe
Constitution. It is a lesson of history that the most valued constitutionalrightspre-supposeanindependentjudiciary,
through which alone they can be vindicated. There can be no free society without law,administeredthroughanindependent
judiciary, It is and should be the pride of a democratic government that it maintains andupholdsindependentcourtsof
justice where even its own acts can be tested. The supremacy oftheConstitutionisprotectedbytheauthorityofan
independent judiciary to act as the interpreter of the Constitution. So solicitous were the framers oftheConstitutionto
make the position of the judges independent and entrenched that they invest them with the status ofirremovabilitysaveon
the limited grounds and manner specifically set out in its provisions. The Judges of the Supreme Court and oftheCourtof
Appeal, unlike public Officers of whatever rank, do not hold office during pleasure. The Constitutionendeavourstosecure
the independence of the judiciary by setting up well-known mechanisms to assure their security of tenure. The vitalneedof
security of tenure can scarcely be over-emphasised. It issignificantthattheArticle107appearsunderthecaption
"independence of the Judiciary". A Judge of the Supreme Court or of the Court of Appeal is entitled to hold officeuntilhe
attains the age of 65 or 63 respectively (Article 107(5)). He is not removable by the Executive theonlywayhecanbe
removed is by an order of the President in terms of Article 107(2). Of course he may resign his office-resignationisa
voluntary act different in quality and is far from removal.
Article 108 provides that their salaries shall be determined by Parliament and are charged on to theConsolidatedFundand
that the salary payable to and pension entitlement of a Judge of the said Courts shall not be reduced after hisappointment.
It is manifest that these provisions are designed to safeguard the independence of the Judges by affording themsecurityof
tenure. These provisions have not been put into the Constitution merely for the individual benefit of the Judges theyhave
been put there as a matter of public Policy. The security of tenure of Judges has been vouched to the Judges,notonlyfor
their own protection but for the protection of the State itself. The framers of the Constitution had Considered it tobein
the interest of the public and not merely of the individual Judges that their security of tenureshouldbesacrosanctand
sanctioned by the Constitution. The office of a Judge has become a matter of status rather than a creation of acontract.A
Judge of the Supreme Court or the Court of Appeal canceasetoholdofficeonlyintermsoftheprovisionsofthe
Constitution and not by operation of any rule of estoppel. InthisperspectivethesubmissionoftheDeputySolicitor
General that the Judges should be deemed to have ceased to hold their office and to have elected on 15th September toaccept
fresh letters of appointment appears to be jarring and is untenable. The doctrine of estoppel invoked by him is out ofplace
in the area of constitutional provisions. The provision of the Constitution that confronts the estoppelrepresentsaState
policy to which the Courts must give effect. The interest of the public, despite any rule of evidence asbetweenthemselves
that the Judges and the President may have created by their conduct, is supreme. The basic concept ofjudicialindependence
would be exposed to very great jeopardy if rules of estoppel are permittedtomodifyit.TheJudges,oncetheyaccept
appointment under Article 107(l)) of the Constitution are not free to contract out of the provisions of the Constitutionand
waive the constitutional protection which is warranted to them in order to protecttheirintegrityandimpartiality.Any
such waiver is null and void. Hence no rule ofestoppelorofapprobationandreprobationprecludestheJudgesfrom
referring their title to their office to their original lettersofappointmentwhichhadbeenissuedtothembythe
President on the terms and conditions of Article 107 of the Constitution.
In view of the conclusion that the Judges had not vacated their office by reason of their omissiontotaketheprescribed
oath before the President in terms of Article 157(A)(7) read with Article 165 of the Constitution, Article 107ordainsthat
their original letters of appointment continue to be valid and binding and that the judges may continue to hold officeuntil
they are removed under Article 107(2) or reach their age of retirement. The new letters of appointment grantedonthe15th
September 1983 do not supersede the original letters of appointment and do not in any way detract from thelegalimportof
the earlier letters.
In my view, the Judges did not cease to hold office on the 9th September but continued to hold office without anybreakand
the proceedings of both 8th and 9th September are valid on the basis that the Judges who heard the proceedings weredejure
I agree also with the Chief Justice in his reasoning and conclusion that Article 126(3) of the Constitution that theSupreme
Court should hear and finally dispose of the application made under that Article within two monthsofthefilingofsuch
petition is directory only and not mandatory, and that failure by the Supreme Court to dispose of the application withinthe
prescribed period will not nullify the petition.
We have heard conflicting arguments on the computation of the time limit of one month prescribedbyArticle157(A)7(a)of
the Sixth Amendment. Counsel for the petitioner submitted that the 9th September was the last date fortakingtheoathin
terms of 7th Schedule, while the Deputy Solicitor General submitted that the 7th September was the, last date, though hewas
prepared to concede that, according to authorities, 8th September can also be regarded as the last dateofthemonth.The
authorities 'relied upon by parties edify us on how the period of a month is computed .in ordinary parlance, intheEnglish
Common Law, in commercial transactions and under the English Interpretation Act but no authority was cited by either sideon
how when a month is stipulated in a written Constitution, the period is to be calculated. In view of thefactthatIhave
already held that the Judges had lawfully taken oath in terms of the Schedule prior to the 7th September. andtheirdefault
in taking the said oath before the President within the prescribed time would not have the consequence oftheirceasingto
hold their office, the question whether the month stipulated by the Sixth Amendment ended on the 7thor9thSeptember,is
not of material importance to call for a pronouncement thereon and I do not propose to determine that question as itisnot
"it is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to thedecision
of case." Burton vs. United States (18).
Before concluding my judgment I must refer to a preliminaryobjectionraisedbytheDeputySolicitorGeneral.Itwas
contended by the Deputy Solicitor General that this Court is precluded from directly or indirectlycallinginquestionor
making a determination on any matter relating to the performance of the official acts of thePresident.Hesupportedthis
objection by reference to Article 35 of the Constitution. I cannotsubscribetothiswideproposition.Actionsofthe
executive are not above the law and can certainly be questioned in a Court of Law. Rule of Law will be found wantinginits
completeness if the Deputy Solicitor General's contention in its wide dimension is to beaccepted.Suchanargumentcuts
across the ideals of the Constitution as reflected in itspreamble.AnintentiontomakeactsofthePresidentnon-
justiciable cannot be attributed to the makers of the Constitution. Article 35 of theConstitutionprovidesonlyforthe
personal immunity of the President during his tenure of office fromproceedingsinanyCourt.ThePresidentcannotbe
summoned to Court to justify his action. But that is a far cry from saying that the President's acts cannot be examined bya
Court of Law. Though the President is immune from proceedings in Court a party who invokes the acts of the Presidentinhis
support will have to bear the burden of demonstrating that such acts of the President are warranted by lawthe sealofthe
President by itself will not be sufficient to discharge that burden.
I have seen the judgment of the Chief Justice and, while I agree generally with many of the conclusions hehasreached,it
seems desirable, however, that I should briefly clarify my own position on some of the matters that were argued before us.
First, I would like to emphasise that the issues before us are undoubtedly ofgreat constitutionalimportancehavingfar-
reaching consequences in the working of the Constitution. Being matters of constitutional law andinparticular,affecting
the authority of the judges and the jurisdiction of the SupremeCourt,theseissues,becauseoftheirimportance,had
necessarily to be disposed of on the first occasion they were raised or brought to our notice. What is in issue isadirect
challenge to the authority and jurisdiction of the Supreme Court in the hearinganddisposalofamatter,beforeThese
issues arise inescapably for consideration, for they could have been raised at any time - at alaterstageofeventhese
same proceedings or in any of the other cases which had been left incomplete on 8th September, 1983.
It was the position of the learned Deputy Solicitor General that we had ceased to be judges betweenthe8thSeptemberand
the 15th September 1983. He sought to argue that the gap between the 8th of September and the15thofSeptembercouldbe
bridged on the principle of de facto judges for a part of 48 of the judicatureAct.Noneoftheargumentsorcitations
relied on by him, I am afraid, has any direct application to the situation before us. It is therefore idletobelievethat
this issue involving the constitution and the jurisdiction of this court could have been glossed over and evaded orthatwe
should have proceed to hear thematterbeforeus,leavingasidethequestionofourveryjurisdictionwrappedin
I am in total agreement with the Chief justice in his reasoning and conclusion that the requirement that judgesshouldtake
their oath before the President is merely a directory provision. He has examined the relevantconstitutionalandstatutory
provisions with great roughness and rightly concluded that in circumstances such as this, whenever the lawhasrequiredan
oath to be administered in this country, it has always been administered by a person in his capacity either as ajusticeof
the Peace or as a Commissioner of Oaths. An oath administered byeitherofsuchpersons,irrespectiveofhisofficial
position, whether high or low, must have equal sanctity and operation in the eye of the law. It cannot beotherwiseforan
oath is an oath. That a Justice of the Peace holding a particular office or post is designated as the person before whomthe
oath should be taken in a given instances may have something to do with the dignity of the office of the personrequiredto
take the oath, or to give solemnity to the occasionbut I cannot see how that fact canincrease,diminishoraffectthe
sanctity of the oath, which has been solemnly taken inevery such case. But even in the of such designationswesearchin
vain for a consistent principle. Most of the Supreme Court Judges took their oaths before theChiefJusticeorabrother
judge. His Excellency the President took his oath, as he lawfully may, before a junior judge of the SupremeCourt.Thelaw
permits the Prime Minister or any Cabinet Minister to take his oath before an ordinary Justice of the PeaceorCommissioner
of Oaths. Every indication in the relevant provisions points to the fact that the requirement that the SupremeCourtjudges
should take their oath before the President is of a directory nature. The judges therefore, bytakingtheoathunderthe
event Schedule before the Chief Justice or before a brother judge before the expiry of thefirstweekofSeptember,have
substantially complied with the law.
In dealing with this particular question, Mr. Nadesan did not stop there but went much furtherandsoughttoanalysethe
relevant provisions of the Constitution in greater depth. It was his submission that, apart from whatever viewwemaytake
as to the nature of the conditions for taking the oath, a proper interpretation of the relevant provisions does not admitof
the view that a judge would automatically vacate his office or be removed therefrom byamerefailuretotaketheoath
prescribed by the Seventh Schedule. It was his submission that only a failure whichamountstoawilfulorcontumacious
refusal to take the oath, and not a mere omission, may, in appropriatecircumstances,provideagroundfordisciplinary
action against a judge. This argument appears to be of some substance.
The Chief Justice has already drawn our attention to the fact that Article 165(l), on which hinges the power of cessationof
office, is a transitional provision in the Constitution. It is a 'Provision dealing with a particular state ofaffairsthat
existed at the time of the coming into operation of the Constitution. These transitional provisions, as thenameindicates,
were designed primarily to connect the present state of affair with the past, so that the new Constitution couldbebrought
into operation without any dislocation. Article 165, at the time it came into operation,didnothavetodealwiththe
situation of officers already functioning or officiating in any post. Constitution started as it were with a clean slate.In
the case of appointments to offices newly created by the Constitution like Supreme Court Judges, a letter of appointmenthad
to be issued. Most public officers however continued under the new constitutional structure in practically the same formand
accordingly the provisions of Article 164 provided for the continuance in serviceofthepersonswhowereholdingsuch
offices at the time of the coming into operation of the Constitution This was tantamount to a letter of appointment.
Article 107(4) provides that a Supreme Court judge and a judge of the Court of Appeal,afterhisappointment,"shallnot
enter upon the duties of his office until he takes and subscribes or makes and subscribes before the President, theoathor
the affirmation set out in the Fourth Schedule" In the case of the President, Article 32(l) states that -
"The person elected or succeeding to the office of President shall assume office upon takingandsubscribingtheoathor
making and subscribing the affirmation, set out in the Fourth, Schedule .........."
In the case of Cabinet Ministers, Acting Ministers, Deputy Ministers, theSecretarytothecabinet,andSecretariesto
Ministries, Article 53 likewise provides that.
"A person appointed to any office referred to in this Chapter shall not enter upon the duties of his officeuntilhetakes
and subscribes the oath or makes and subscribes the affirmation set out in the Fourth Schedule."
"Article 61 makes similar provision for public officers.
It would therefore be evident that adistinctionhasbeendrawnintheConstitutionbetweenapersonreceivingan
-appointment - an entitlement to an office - and such appointee "entering upon the duties of his office",whichinvolvesa
further step to perfect and consolidate that appointment. What Article 165(1) provides is a bar or hurdle betweenthesetwo
stages involving the taking of an oath. Until that bar is surmounted, Article 165(1) states a person, althoughhemayhave
an entitlement to the office, "shall cease to be in service or hold office". But, it would be noted that at no time didthat
officer actually function in that office. He was never a functionary in the true sense of the word.
Article 165(1) therefore does not purport to deal with the case of a person who had already entered uponthefunctionsand
duties of his office. That is the case before us and the precise situation of the SupremeCourtjudges.Therecanbeno
serious objection to a person who delays entering upon his duties being told that he is nolongerwantedorthathehas
ceased to be in service or hold office. Such a person has not perfected his appointment. In fact, in such a casetheoffice
continues to remain vacant and it calls for a declaration of this. kind to enable a new appointment to be made. But itwould
be a very different thing to tell an officer functioning in an office (especially a judicial officer whose tenureofoffice
is assured), that he is no longer in office. In truth and fact that would amount to a vacation of office oraremovalfrom
office. proper term in that context wouldbetousetheword'vacate'.Thisword'vacate'howevercanusedina
comprehensive sense even to include both the stages indicated above. The wording of Article 165(1)thereforeisinadequate
to catch up the present situation.
The correctness of this view is to some extent borne out by the other provisions of Article 165
When we examine Article 165(2), we see that it provides thattheMinisterofPublicAdministration"may,inhissole
discretion, permit any public officer, judicial officer, person or holderofanofficetotaketheoathormakethe
affirmation after the prescribed date, if he is satisfied that the failure to take the oath or maketheaffirmationwithin
the timeprescribed was occasioned by illness or some other unavoidable cause. On histakingsuchoathor makingsuch
affirmation, he shall continue in service or hold offices as if he had taken such oath or made suchaffirmationwithinthe
time prescribed ......... "
Are not the above provisions more consistent with the position of the requirement of the oath taking being abarorfetter
on a person entitled to an office but who has not yet entered upon his duties rather than being the vacation of officeofa
person already officiating in a post and his being "reappointed" thereafter? In the first type of case mentionedabove,a
delay in taking office is not of great moment and could be rectified without givingrisetoanycomplications.So,this
power to remedy the situation on the two specified grounds can be safely entrusted to the Minister of PublicAdministration,
and such a provision violates no provision of the Constitution.
On the other hand, if this provisions is intended to apply to a person who had alreadyentereduponhisduties,thenit
gives rise to a number of important questions. I have already referred to the fact that In the case of ajudgetherewould
be a conflict between Article 165(1) and Article 107(2) which ensure him continuity of tenure. If a judge has ceased tohold
office, he cannot thereafter continue in office without a fresh appointment When the ConstitutionprescribesthePresident
as the appointing authority, could the Minister of Public Administration reinstate him or make suchanappointment?Isit
Administration should be the appointing authority and in his sole discretion be allowed to pick andchoosethejudgeswho
should continue in office and those who should not.
The distinction I have sought to draw can be tested by two obvious examples. First, let me take the caseofthePresident.
How would the President be affected in the event of a failure to take the Seventh Schedule oath? The President,whoisthe
Read of the State, the Head of the Executive and of the Government, and Commander-in-Chief of the ArmedForcesisselected
by the People at an election. Article 30(2) states that he "shall hold office for a term of sixyears".If,aftersucha
country-wide election and assumption of office, is it conceivable that the Legislature intended that the President shouldbe
made to vacate office merely because he has omitted to take the -new oath prescribed by the SeventhSchedule?Incidentally,
the Fourth Schedule oath taken by him is an undertaking to be faithful to theRepublicofSriLankaandtodefendthe
Constitution to the best of his ability. Article 2 of the Constitution already contains astatementregardingtheunitary
nature of the State. The present oath is only supplementary to it and an elaboration of that
Provisions, although the Sixth Amendment deals with other matters too.
In this connection an examination of the provisions in Article 38(1) can throw somelightontheresultingposition.It
deals with the vacation of office by the President. One of the grounds is -
"(d) if the person elected as President wilfully fails to assume within one month from the date of commencement ofhisterm
This provision is clearly referable to Article 32 where the President assumes office on taking the oath of office.Itwould
be observed even in this situation - which should be regarded as morethanamereentitlementsincethePresidenthas
already been elected by the whole of the people of Sri Lanka - it is onlyawilfulfailurethatcangiverisetothe
Let us now take the case of the judges of the Supreme Court. Article 107(2) states that a judge, once he beginstofunction
"................ shall hold office during good behaviour, and shall not be removed except by onorderofthePresident
made after an address of Parliament, supported by a majority of the total number of Members ofParliament(includingthose
not Present) has been presented to the president for such removal on the ground of proved misbehavior or incapacity."
This is the only provision in the Constitution dealing with the removal of a judge who isalreadyholdingoffice.Ifthe
wording of Article 165(1) is held to be appropriate to catch up the case of a functioning judge, it would thenbeinclear
conflict with the provision of Article 107(2), which is a special and specific provision. There is nothingintheamending
Article 157 A (7) as for example by the useorprefatorywordssuchas"notwithstandinganyotherprovisionofthe
Constitution" to show that this provision should prevail over any other provision of the Constitution. As in the case ofthe
President, is it conceivable that a judge, who may fail through an oversight or some mistake totaketheSeventhSchedule
oath, should have to vacate office?
Mr. Nadesan conceded that the requirement of taking the Seventh Schedule oath is nonethelessalegalrequirement,inthe
sense that where a person who is required to take the oath and has through negligence or oversight failed todoso,should
aL that stage be required to comply with the law. If however there is a wilful refuseltotaketheoath,thenthereis
undoubtedly a transgression of the law. But, even this would not lead to an automaticvacationofofficebutcouldonly
provide a ground for disciplinary action. A wilful refusal to take the oath could amount to misconductormisbehavior,but
not a mere omission or mistake. This, interpretation, eminently reasonable, prevents anyconflictarisingbetweenArticle
157 A (7) on the one hand and Articles 38 and 107(2) etc. on the other and would tend to reconcile the various provisionsof
the Constitution, rendering them harmonious in operation. Any other interpretation would resultinupsettinganumberof
basic concepts embodied in the Constitution.
I am therefore inclined to think that this is another reason, even morecogentthantheonereferredtobytheChief
Justice, for holding, as Mr. Nadesan contended, that the judges could not have functioned otherwise than asdejurejudges
during the period under consideration.
In regard to the defence of estoppel, waiver or the prohibition against approbation and reprobation (or in whatever waythat
defence is expressed) taken bylearned Deputy Solicitor General, in myopinionsuchadefenceisnottenableinthe
circumstances of the present case. let us remind ourselves again that the question before us is the very constitution ofthe
Supreme Court, the validity of the continuation of the service of the judges, and the legality of the acts of this courtand
the judges, and not with any private right of the judges as individuals.
An examination of the case law both local and from other jurisdictionsmakesitabundantlyclearthatthecourtshave
uniformly excluded the application of such a defence where an authority or person against whom the estoppel ispleadedowes
a duty to the public or a section of the public or even to some other individual againstwhomtheestoppelcannotfairly
operate. In the case of a constitutional provision such a presumption is generally inevitable.
Halsbury's Laws of England (4th Edn.) Vol. 16 at paragraph 1575 sets Out the legal Position in England. TheU.K.ofcourse
does not have a written Constitution.
"1515. Estoppel against Statute. The doctrine of estoppelcannotbeinvokedtorendervalidatransactionwhichthe
legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction whichis
denied to it by statute, or to oust the court's statutoryjurisdictionunderanenactmentwhichprecludestheparties
contracting out of its provisions. Where a statute, enacted for the benefit of a section of the public, imposesa duty ofa
positive kind, the person charged with the performance of the duty cannotbyestoppelbepreventedfromexercisinghis
statutory powers ............. "
Spencer Bower and Turner in their work Estoppel by Representation (2nd Edn.)atpage134dealwiththewaiverofthe
protection of a statute. Where a certain transaction or a course of action is illegal and void and absolutely prohibited,no
question of waiver can arise. In other cases it has been contended that a statutory provision forthebenefitofaparty
could be waived. They state :
". The soundness of this contention in any particular case, whether of express contract or of estoppel(fortheprinciples
which govern the former obviously govern the latter also) depends upon the question whether the right which isabnegatedis
the right of the party alone, or of the public also, in thesensethatthegeneralwelfareofthecommunity,orthe
interests of the class of persons whom it is the object of the law to protect, cannotbesecuredinthemannerintended
without prohibiting the waiver or estoppel. In the case of express contract towaiveithasalwaysbeenheldthatthe
doctrine embodied in the familiar formula, quilbet potest renuntiare juri pro se introducto, issubjecttothelimitation
that the renouncing party must be able to establish that the 'jus' was intended by the legislature for his benefitonlypro
se solo. If the public, or a class or section ofthecommunity,areinterested,aswellashimself,inthegeneral
observance of the conditions prescribed by statute, it has always been held on the ground of public policy that there canbe
no waiver, even by express contract or consent, of the right to such observance by any individual partybutwhere,onthe
other hand, no public interest, and no interest intended to be promotedorprotectedbythestatute,isintheleast
affected by the contract or consent to waive, and the matter is one whichconcernsthepartiesalone,suchcontractor
consent has never been interfered with, but on the contrary has always been enforced. So also, in cases of waiver byconduct
which gives rise to an estoppel, the same essential distinction has always been observed. On the one sideofthelineare
the cases where the estoppel or waiver, if allowed, would defeat the objects of the statute, and injure the interests ofthe
public, or of persons other than the immediate parties,andwherethereforetheaffirmativeanswerofillegalityhas
prevailed, and the estoppel has been defeated. On the other side of the line are the cases in which no interests, otherthan
those of the immediate parties, can possibly be affected by allowing theestoppel,whichaccordinglyhasinsuchcases
Estoppel as to Jurisdiction
142. Not even the plainest and most express contract or consent of a party tolitigationcanconferjurisdictiononany
person not already vested with it by the law of the land, or add to thejurisdictionlawfullyexercisedbyanyjudicial
tribunalit is equally plain that the same result cannot be achieved by conduct or inaction or acquiescence by theparties.
Any such attempt to create or enlarge jurisdiction is in fact the appointment of a judicial officerbyasubject,andas
such constitutes a manifest usurpation of the Royal prerogative ............. "
Vide Martime Electric Co. Ltd. vs. General Dairies Ltd.,
Customs & Excise Commissioner vs. Hebson Ltd..
Society of Medical Officers of Health vs. Hope.
N.W. Gas Board vs. Manchester Corporation.
South end-On-Sea Corporation vs. Hodgson (Wickford) Ltd.,
Welch vs. Nagy.
Even in the case of legal provisions which ostensibly appear to confer rights solelyinfavourofIndividuals,adeeper
analysis of the relevant constitutional or statutory provisions mightindicatethattheycontainanelementofpublic
interest or are really based on grounds of public policy. This is the view taken by the Indian SupremeCourtinregardto
the question of fundamental rights guaranteed by the Indian Constitution. The American courts however have taken adifferent
The leading Indian case on the subject is Basheshar Nath vs. Commissioner of Income Tax (23) inthatcaseS.R.DasC.J.,
Bhagwati J., Kapur J. and Subba Rao J. held that the fundamental right under Article 14 involved a matterofpublicpolicy
and could not be waived. Bhagwati J. and Subba Rao, J. were prepared to extendthepropositiontocoverallfundamental
The majority declined to follow the American decision. S.K,Das J. alone dissenting took the view that the doctrine ofwaiver
could apply in that case and that there was no such vital distinction betweentheAmericanandtheIndianConstitutions
necessitating a different treatment of the matter. Seervai in his well. known work Constitutional LawofIndia(2ndEdn.)
p.186 criticises the majority judgment. He writes -
"S.K.Das,J. dissented, holding that there were no such differences between the U.S. and theIndianConstitutionsaswould
make the doctrine of waiver applicable to the former and not to the latter. The correct test toapplytoeachfundamental
right was to inquire whether it conferred a right on a person primarily for his benefit. Ifitdid,thatrightcouldbe
waived. It is submitted that the view of S.K. Das,j. is correct".
This criticism, it would be seen is in no way directed against the legal principles applicable to waiverenunciatedearlier
in this judgment. The difference in views of the majority andthedissentingjudgeS.K.Dasappearstomenotoneof
principle but in the manner of their application to a given set of facts. Indian State Courts have followedthisjudgement.
Vide Ram Gopal vs. National Housing Corporation,.(24), Bhaskar Moharana vs. Arjun Moharana, (25).
The issues before us are undoubtedly matters of high constitutional law. How can it ever be contended that this isamatter
of private rights when our very status and our capacity to function as judges are in dispute? It is the view ofthelearned
Deputy Solicitor General that we had ceased to be judges between the 8th and 15th September 1983, althoughhewasprepared
to concede for the purpose of the application before us that on the 8th and 9thSeptembertheproceedingshadbeforeus
could be treated as valid on the principle of de facto judges. The challenge to out jurisdiction nevertheless remained.
The issues relating to the legality of the court, its judges and the acts performed by them are issues whichwhenpresented
leave us no choice but to decide them according to law by virtue of our position as judges whoareconstitutionallyvested
with the power and duty to decide such legal issues. Our powers of decision in this matter are alsoreferabletoalawful
authority we held from a time prior to 8th September which is reinforced if necessary by the appointment of15thSeptember.
1983. This fact is of decisive importance in this case. There can be no estoppel against an authority or power vestedinan
officer of State that is to be exercised in the interests of the People. Our decisionthatthejudgescontinuedtohold
office without interruption or break under the original letters of appointment finally concludes this matter.
The appointment of the 15th September, in my view, does not derogate from theauthoritywithwhichwehadbeenclothed
anterior to such date. In this context I would also like to remark that there is an ever present duty vested inallofus,
whether we be judges, public officers, or members of the public, to uphold the Constitution and to safeguardtherightsof
the People in whom alone the Sovereignty of the State is vested. It behaves all of us therefore to take such action whichwe
may consider lawful and proper to protect those rights and to ensure the smooth and harmonious functioning ofthemachinery
In view of the rulings given earlier as regards the directory nature of the requirement contained inArticle157Aandthe
effect of its non-compliance, it appears to me quit unnecessary to consider the question (whichwasreallyraisedbyMr.
Aziz and not by Mr. Nadesan) determining the last date for taking the oath prescribed by the seventhschedule.Astowhat
are the precise principles of the English law in regard to the computation of time, towhatextenttheyapplyorshould
apply here and as to how a constitutional provision relating to timeasiscontainedinArticle157A(7)shouldbe
interpreted are difficult question on which reasonable men can differ. In my view this question could be safelyleftfora
On the second question referred to this bench, I am again in agreement with the Chief Justice that the provisions ofArticle
126 are also directory and not, mandatory.