WAS NJAC ACT JUSTICIABLE AT ALL AND WHAT IS THE ROAD AHEAD?

WAS NJAC ACT JUSTICIABLE AT ALL AND WHAT IS THE ROAD AHEAD?

While eminent lawyers and jurists and commentators write for and against, hailing and criticizing the judgment of the Five-Judge Constitution Bench judgment of the Supreme Court in the NJAC case delivered on the 16th of October, 2015, the lay people with whom the author of this article interacts, for, there are almost 4,000 members of the 50 Whatsapp groups on judicial transparency, say:  “In civic books we have learnt that legislatures/Parliament make the law and Judges adjudicate disputes and interpret the law in accordance with law for the purpose of adjudication of the disputes”.  The ordinary man is puzzled, how come the five Hon'ble Judges of the Supreme Court, nay, four Hon'ble Judges, for, one Hon'ble Judge dissented, declare that the will of the people spoken through their elected representatives, and in the NJAC case with absolute unanimity, except for Shri Ram Jethmalani, enacted and ratified by 20 States, the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short), be scuttled because the four Hon'ble Judges in their wisdom felt that the method of appointment of Judges contemplated under the said Acts is not wise enough. The layman knows not much of the concept of judicial review or the basic structure of the Constitution.  All that he knows is that in a democracy, the people acting through their representatives, their delegatees, will decide what the law of the land ought to be and if a majoritarian law violates the fundamental or legal rights of a citizen or a class of citizens they could approach the Court and seek a declaration that such a law is void.  The lay people with whom the author interacted in so large numbers, as aforesaid, who have studied law in schools/colleges as a part of their curriculum, say, social studies, are unanimous in their opinion that the Judges of the Supreme Court sitting as Judges over a controversy of which they are one of the parties failed to be impartial, just and fair.  They consider the NJAC case as a deceptive/clever attempt on the part of the Supreme Court to retain the power of appointing themselves which they have been enjoying for the last more than 22 years with practically little resistance.  Though a few among the lay people would consider that the tussle is between the executive and the judiciary, many of them consider it to be a tussle between “we, the people” and the Hon'ble Judges of the Supreme Court because the tussle of power between the Parliament and the judiciary is indeed a tussle between the judiciary and “we, the people”, whom the Parliament represents.

2. However, having read almost every article on the subject and having attended the entire 31 days of hearing of the NJAC case in the Supreme Court, this humble author is at great bewilderment, if not in simmering anger.  The question is why the distinguished Attorney General, the Solicitor General; and the erudite and scholarly Hon'ble Judges failed to notice what the layman has no difficulty to discern.  The simple question is who is empowered to make the law for the land; the Judges or the Parliament?  The lay people who have studied a bit of law in school curriculum have no difficulty to answer the said question; for him the question is not complex; the Parliament alone can enact the law of the land; declare what it ought to be.  But the distinguished lawyers believed that the Supreme Court can declare the law of the land, forgetting the fact that Article 141 of the Constitution in unmistakable terms states that “the law declared by the Supreme Court shall be binding on all courts within the territory of India.”  Article 141, which is nothing but adoption/reincarnation of Section Article 141 of the Constitution is the reincarnation of Section 212 of the Government of India Act, 1935.  The Petitioner begs to extract Section 212 as infra:-

“212. The law declared by the Federal Court and by any judgment of the Privy Council shall, so far as applicable, be recognised as binding on, and shall be followed by, all courts in British India, and, so far as respects the application and interpretation of this Act or any Order in Council thereunder or any matter with respect to which the Federal Legislature has power to make laws in relation to the State, in any Federated State.”
The Petitioner, for ready reference, quotes below Article 141 of the Constitution:-

“141. Law declared by Supreme Court to be binding on all courts.-

The law declared by the Supreme Court shall be binding on all courts within the territory of India.”  

Article 141 gives a constitutional status to the doctrine of stare decisis, nay, precedent, and nothing more.  The Constitution does not at all contemplate that the Supreme Court, or for that matter any Court, is invested with the jurisdiction to declare/enact a law for the land.  It is preposterous to think that the Supreme Court is invested with the jurisdiction to declare what the law of the land is.  The reason is simple.  If the Supreme Court were to be invested with such a jurisdiction, then before it decides any question of law where its decision is going to bind the whole country, it should issue notice to the entire nation and patiently hear whomsoever intends to participate in the hearing.  To hear the entire nation on any question of law which will affect their rights and liberties is impossible.

3. Though neither the Supreme Court nor the High Courts nor any other Court could embark upon a hearing and declare what the law of the land is, Courts have been doing precisely that for long and, since the invention of the jurisprudence of PIL, which legendary Justice Krishna Iyer lamented to be a “ravenous wolf in sheep's clothing”, day in and day out by the Supreme Court and various High Courts of the country.  The reason for this Himalayan error, which has not received public attention, is the difference associated with the concept of what is and what is not justiciable.  The Court’s duty is to adjudicate disputes where a “person aggrieved” for violation of his constitutional, fundamental or legal rights, liberties, estates etc., seeks enforcement of his rights.  Therefore, the existence of a “person aggrieved” is the foundation of a lis and in common law access to justice was confined only to the person aggrieved.  In India, out of poverty, ignorance, illiteracy and many other similar disadvantages whose fundamental or legal rights are infringed – the undertrial prisoners, bonded labourers et al – could not on their own invoke the jurisdiction of the Constitutional Courts.  By evolving a jurisdiction called PIL, legendary Judges like P.N. Bhagwati, Y.V. Chandrachud, M.N. Venkatchaliah et al, by relaxing the concept of locus standi, made it possible for some public spirited person acting pro bono publico to take up the cause of such aggrieved persons.  That is how the jurisdiction of PIL was conceived and PIL thus understood was wholly legitimate, well within the concept of jurisprudence.  PIL thus meant the concept of judicial review a reality to the poor and helpless.  The remedy in PIL thus sought was for enforcement of the rights of a person aggrieved, but as time passed, particularly in Judges-2, Judges-3 and the present Judges-4 (NJAC) cases, the elementary principles of jurisprudence, nay, the need for a “person aggrieved” for a PIL to be understood was lost sight of.

4. With utmost respect and with great humility, the author would put the blame on legendary justice Bhagwati; for, His Lordship went on to discuss the concept of locus standi in Judges-1 case (S.P. Gupta v. Union of India, AIR 1982 SC 149) wherein the concept of locus standi was conceded.  In the said case, a Judge whose tenure as Additional Judge was not extended, engaged a lawyer and was a party to the lis.  Therefore, the Attorney General did not question the maintainability of the Writ Petitions clubbed together.  Justice Bhagwati in unmistakable terms made it clear that the PIL would lie only where there exists a person aggrieved whose fundamental and legal rights are infringed and out of his poverty and other disadvantages is unable to approach the Court himself, who could be represented by a person acting pro bono publico, nay, there ought to exist a justiciable lis.  In reality, as time passed, the said principle laid down by Justice Bhagwati is misunderstood to be as one conferring locus standi on any busybody to litigate upon issues which are non-justiciable.  The classic example is Judges-2 case.  In that case, there was no justiciable issue at all; there was no “person aggrieved”; yet, in the said case instituted by the Supreme Court Advocates on Record Association (SCAORA), neither the Attorney General nor Shri Parasaran who represented the Government raised the question of the very non-maintainability of the Writ Petition, the so-called PIL.  In Judges-3 case too, the said issue was not raised or discussed.

5. In Judges-4 (NJAC) case, this author raised the question of non-maintainability of the Writ Petition, the PIL.  He had filed a Writ Petition seeking a declaration that the judgment in Judges-2 case is void, for, it meant rewriting of the Constitution.  He also sought for a declaration that the provisions of the Constitution as originally enacted continue to be in the statute book in spite of the judgment in Judges-2 case.  The author filed an application for determination of the very maintainability of the PILs by SCAORA and the Bar Association of India and others as a preliminary issue and a declaration that the said PILs are not maintainable, for, the issues raised therein are not justiciable.  Unfortunately, the Hon'ble Supreme Court paid no heed to the said plea.  Though the author gave a detailed argument note maintaining that the PILs are not maintainable; that the legislations in question are a matter of policy; that the wisdom of the Parliament is not justiciable; that the Hon'ble Judges cannot sit in judgment over it; that Article 141 confers no jurisdiction on the Court to declare the law of the land; that what the law of the land can be enacted and declared by the Parliament alone; that a law enacted by the Parliament, unless it violates a citizen of his fundamental rights, cannot be questioned in a Court; and that assuming that the Acts in the NJAC case even distantly infringes anyone’s fundamental rights, it could only be the Judges of the High Courts who probably could be harbouring the theory of legitimate expectation and none else, the judgment, which runs into more than 1,000 pages, has failed to deal with the said pleas.  The author holds the Hon'ble Judges in the highest of esteem, regard and respect and begs to submit that the blunder of holding the Acts as unconstitutional has its foundation in the maxim nemo debet esse judex in propria causa – no one can be judge in his own cause.  When the Judges themselves for all practical purposes were the Petitioners and arbiters of the NJAC case, they being fallible human beings, though men of erudition, caliber and character, it was unreasonable for the author or other citizens of the country to expect them not to err and that is the reason why the author moved an application seeking recusal of Hon'ble Mr. Justice Anil R. Dave as the Presiding Judge and upon His Lordship’s recusal and substitution by Hon'ble Mr. Justice J.S. Khehar, the latter’s recusal.

6.         The next question is what could be done now.  The author, an ordinary lawyer of limited resources, practicing in Mumbai, spent almost two months in Delhi to attending the hearing of the NJAC case. The reason, nay, the fire, which made it possible for the author to make such a sacrifice is the fact that the collegium, as Hon'ble Mr. Justice Kurian Joseph has acknowledged in paragraph __ of his judgment, so too Hon'ble Mr. Justice Jasti Chelameswar, in paragraph __ of his judgment, has been reduced to oligarchy, nepotism and large scale inbreeding. The said elite class of Judges mostly consist of kith and kin of sitting and former Judges of the Supreme Court and High Courts, celebrated lawyers, Chief Ministers, Governors et al and a few first generation lawyers who are all politically connected or are close to big industrial houses, which meant the sons and daughters of farmers, taxi drivers, teachers – the common ordinary people– having place at all.  The NJAC has only one shortcoming with 50% of its members being the CJI and two his seniormost colleagues, which again meant a collegium system, though the presence of two eminent members of the civil society certainly would have made a difference.  The author submitted a progeny syndrome chart which showed who are the Judges of the higher judiciary, how they are connected to retired and sitting Judges etc.  But the 1,000 and odd pages judgment of the Constitution Bench could not find a place to accommodate the pleas of the author nor the said chart which is a result of research for many weeks.  There could not be a better expression to state what the judgment in the NJAC case meant than to quote Horace “Horace, parturient montes, nascetur ridiculus mus”.

7. There is no way by which the collegium system could be improved – Judges appointing themselves, wielding the entire power of appointment is against the basic structure of the Constitution, a sacrosanct concept which the judgment in NJAC case made it appear to be nothing but a structure made of wax which Judges could mould in whatever shape they want.  The country is in dire straits; the Parliament’s laudable effort to establish the National Tax Tribunal sunk in the high seas, being hit by the iceberg called basic structure.  There is only one hope i.e. the Hon'ble Judges themselves will realize in all humility that they are fallible and the NJAC judgment meant that they have erred grievously.  Even the Pope, once regarded as infallible, is no longer considered to be so.  If the powerful Catholic Church could accept the theory of fallibility, the Hon'ble Judges of the Supreme Court too should readily accept their fallibility and acknowledge that they have erred.  A petition for review of the judgment in the NJAC case is the only answer.
Mathews J. Nedumpara, Advocate