The assent of the Governor is not required for the ratification of an amendment to the Constitution by the State Legislatures under Article 368 of the Constitution.

( 1 ) THIS is an application by Shri Jatin Chakra-vorty, a membsr of the West Bengal Legislative Council, for the issue of a writ in the nature of 'giro Warranto', restraining the respondents from acting as a Judge of the High Court of Calcutta and from exercising the duties and functions of a Judge. There are five respondents to this application. The first is the present Chief Justice cf this Court and the retraining four are puisne Judges.

( 2 ) IN this application, the petitioner challenges the validity of the Constitution (Fifteenth Amendment) Act 1963 which came Into operation on the 6th October 1963, and which inter alia amended Article 217, in Ch. V, Part VI of the Constitution.

( 3 ) PREVIOUS to the amendment, a Judge of a High Court held office until he attained the age of sixty years. By the amendment, the retiring age has been increased to sixty two. Under the old provision, the respondents attained their retiring ages as follows: 1. The Chief Justice -------- 1st March 1964. 2. Mr. Justice U. C. Law -------- 30th December 1963. 3. Mr. Justice D. N. Das Gupta ------ 1st Jan. 1964.

( 4 ) MR. Justice P. C. Mallick ------ 12th March 1964.

( 5 ) MR. Justice S. K. Niyogi ------ 1st February 1964, It follows that, but for the amendment of the Constitution by the Fifteenth Amendment, they would all have retired by now. They are all exercising their functions as Judge by reason of that extension in their tenure of office, caused by the said amendment. 4. The argument is that the said amendment of the Constitution has not been brought about in accordance with law. If that is so, then the respondents have already reached their retiring age and can no longer exercise their judicial office. 5. I might at once state that the form of the prayer is defective. In an application for the issue of a writ in the nature of 'quo Warranto', a rule nisi should be prayed for, calling upon a respondent to show to the satis-faction of the Court, as to under what right or authority he was holding a public office, and if he failed to show the same, why the Court should not command him to desist from doing so. This is required by the rules of this Court in the Writ Jurisdiction. However, this defect may be said to be a formal one.

( 6 ) THE petitioner attacks the Fifteenth Amendment of the Constitution. Part 20 of the Constitution consists of only one Article, namely, Article 368, which lays down the procedure for amendment of the Constitution. The relevant provisions of the said Article run as follows :"368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill. Provided that if such amendment seeks to make any change in. . . . . (b ). . . . . Chapter V of Part VI. . . . the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent. "

( 7 ) FOR the facts upon which this petition is founded, the petitioner relies upon a number of letters exchanged between Mr. J. p. Mitter and the Secretary, Asst. Secretary or Under-Secretary of a number of Legislative Assemblies, Councils, Governors and Sadar-i-Riyasat of various States. Mr. Krishna Menon appearing for the petitioner informs me! that at the relevant time there were 14 States in the Indian Union. From the materials disclosed, it appears that seven States (Madras, Punjab, Orissa, Gujarat, Mysore, Bihar and Jammu and Kashmir) passed resolutions r