NATIONAL LAWYERS' CAMPAIGN (Reg:MH/MUM/1701/2015/GBBSD): November 2015

Monday 23 November 2015

SC refused to hear the plea of R P Luthara based on a blog

NEW DELHI: The Supreme Court today dismissed a plea challenging a Delhi High Court verdict rejecting a PIL seeking CBI probe into the allegation of former apex court judge Justice Markandey Katju that a former CJI had made "improper compromises" to allegedly favour a Madras High Court judge despite adverse intelligence report against him.

"We do not see any infirmity in the order passed by the Delhi High Court. The special leave petition is dismissed," a bench comprising Chief Justice H ..

Wednesday 18 November 2015

nuances of Collegium in light of the suggestions received

eme Court today directed the Central government to submit a draft memorandum of procedure setting out the nuances of Collegium in light of the suggestions received from the public.

The Constitution Bench, which is hearing the case, gave an oral direction to this effect. The direction was given despite reservations expressed by the lawyers including Attorney General Mukul Rohatgi and Senior Advocate KK Venugopal that it might not be possible to alter the current memorandum of procedure, which was framed pursuant to a decision of the 9 judge Bench in the Second and Third judges case.

Today was the first hearing in the matter after the Court had decided to invite suggestions from the public on how the Collegium system of appointments could be improved.

When the matter was taken up today, the Central government’s law officers informed the court that around 3,500 suggestions were received from different people, including lawyers, NGOs, citizens and retired judges. Attorney General Mukul Rohatgi told the Court that even a sitting Supreme Court judge had given suggestions.

Rohatgi then proceeded to state the crux of the suggestions. He submitted that the main take away from the public’s suggestions was the lack of transparency in the functioning of Collegium.

“The overwhelming response is towards more transparency in the sense that people should get to know about vacancies and there must be some publicly know criteria for selection. Suggestions seem to suggest that transparency can be achieved by inviting applications from interested candidates and through nominations.”

Rohatgi submitted that the filtering that takes place at the entry level is what is most critical and “if the entry level is good, then elevations will, automatically be good”.

He also emphasised on the need to bring judges and lawyers from the district courts to the Bench.

“Lawyers practising in district courts rarely appear in High Courts and hence are not considered for appointment as High Court judges. Many judges who are appointed to High Court have never conducted a criminal trial or know the nuances of Civil Procedure Code, yet sit in judgment over such cases”, he said.

Fali Nariman submitted that besides all these reforms, judges are bound to conduct themselves differently.

“Nowadays judges say, ‘If he can, why can’t I’. I am sorry but you can’t. Judges have to live differently.”

Both Nariman and Rohatgi also argued that the difference in the retirement age of High Court judges and Supreme Court judges should be done away with.

“I see High Court judges kowtowing to Supreme Court judges when I go to conferences, seminars etc. and it is because of this 62 and 65 [age of retirement]. High Court judges go on addressing Supreme Court judges as “your lordships”, said Nariman.

Justice Chelameswar responded to this by stating that the problem was much deeper.

“There are other reasons for it. Even in judgments of High Courts, we find ‘Hon’ble Supreme Court’ being used”, he said.

Rohatgi then submitted that if changes are made, it should be done by way of amending the Memorandum of Procedure and not by way of a judicial decision as the latter will create confusion and ambiguity. Various Senior Advocates also submitted that the current Memorandum of Procedure has been put in place pursuant to 9 judge Bench decisions and a 5 judge Bench might not be able to alter it and the whole exercise will have to be carried out within the framework put in place by the earlier judgments.

Rohatgi also submitted that the Collegium should function in the interim since vacancies have risen to about 40 percent, thereby affecting justice dispensation.

The Court then took a recess and reassembled at 12 noon to convey its decision.

It directed that the Centre should submit a draft Memorandum of Procedure and other issues including whether it will need to be approved by the Chief Justice of India will be considered after the same has been submitted.

The Court also gave the following broad parameters for framing the Memorandum:

Secretariat
An open ended selection process (so that judges and advocates from district courts can be considered)
Different criteria for different High Courts
Method for evaluation of complaints – complaints about integrity of judges to be investigated by the Executive and complaint pertaining to competence to be looked into by the judiciary.
Subsequently, other lawyers were given a chance to put forth their suggestions. Additional Solicitor General Pinky Anand, Senior Advocates including Gopal Subramanium, Arvind Datar, Anil Divan and KK Venugopal made oral submissions.

During the course of these arguments, a number of lawyers once again demanded that they should also be heard. Their grievance was that the court was only hearing those lawyers nominated by the Committee comprising Fali Nariman, Mukul Rohatgi and BCI Chairman Manan Kumar Mishra.

The court has agreed to consider this request. The hearing will continue tomorrow.

Tuesday 17 November 2015

NLC, convened a press conference today 17/11/15 at 16:00 Hrs at Plenary Hall of The Indian Law Institute demanding The constitutional bench of the Supreme Court be pleased to

ESS RELESE

The NLC, convened a press conference today at 16:00 Hrs at Plenary Hall of The Indian Law Institute demanding The constitutional bench of the Supreme Court be pleased to:

A. Hear the review application at the hands of its president Adv.Mathews J.Nedumpara seeking review/recall of the judgment dated 16^th October, 2015 of the Constitutional Bench in the NJAC case holding the Constitution (99^th Amendment) Act,2014 and the NJAC Act,2014 to be void;

B. recall its order dated 5^th November, 2015 limiting the hearing on the four points specified therein as so how to improve the collegium system which the five judge constitutional bench in its judgment dated 16/10/2015 was pleased to hold it to be opaque and unworthy as one which had resulted in corruption and nepotism and instead to seek opinions and suggestions from the public at large as to how the NJAC which is yet to be tested, and of which no deficiency or mischief are proved, could be further improved and strengthened so that the most suitable and eligible alone are appointed as the judges of the High Courts and Supreme Court;

C. and further that the time for the public to submit their suggestions and representations be extended, for, the time given was too short and that too in the midst of the Diwali holidays that the public at large who wanted to make their submissions and suggestions are denied of their valuable right to do so;

D. to hear the unsung lawyers, who are never ever heard and particularly since if the unsung lawyers were heard the judgment dated 16/10/2015, which was rendered per-in curium (in ignorance of law) wouldn’t have been passed, nay, to discontinue the practice hither to followed namely only hearing the so called legal luminaries. Or to put in simple words, hear lay people and ordinary lawyers.

The NLC demand the Attorney General to stand by the will of the people, speak fearlessly for the NJAC.

“THE SLOGAN OF NLC IS WHY IMPROVE THE FAILED COLLEGIUM, IMPROVE THE NJAC”

(Adv.A.C.Philip)

Vice President,

THE NATIONAL LAWYERS’ CAMPAIGN FOR

JUDICIAL TRANSPARENCY AND REFORMS

NATIONAL LAWYERS' CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS.

(Regd.No.MH/MUM/1701/2015/GBBSD)

President: Adv.Mathews J.Nedumpara:09820 535428(M)...02222 626432(o)

Vice President: A.C.Philip: 09769110823(M)

General Secretary: Navaneetha Krishnan T.: 08080 874007(M)

Office(Delhi Branch): #47,Lawyers Chambers, Supreme Court Campus,New Delhi-1

E- Mail: nlcfjtar@gmail.com

Press Meet Today

THE NATIONAL LAWYERS’ CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS 304, Hari Chambers, 3^rd Floor, 54/68 SBS Marg, Near Old Custom House , Fort Mumbai- 400 023 #47,GL Sanghi Chambers Block, Supreme Court Campus, New Delhi-110 001 E-Mail: nlcfjtar@gmail.com, mathewsjnedumpara@gmail.com Cell # +91 98205 35428 , #+91 9769110823, Off:01123381068
Mathews J. Nedumpara President	A. C. Philip Vice President, Delhi	V.K.Adhikarai Vice President Kolkata	Mrs. Rohini M. Amin Vice President Mumbai	R.P.Luthra President, Delhi Chapter	Navaneetha Krishnan T. General Secretary

Respected Chief Editor/ Editor/Sir/Madam,

THE NATIONAL LAWYERS’ CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS

MEETING THE PRESS

at 16:00 Hrs Today (17.Nov.2015)

at Plenary Hall of The Indian Law Institute,

Bhagavan Das Road,

Near Supreme Court Campus,

On the issues related to the

“CONSTITUTION, APPOINTMENT OF JUDGES TO HIGHER JUDICIARY AND PUBLIC HEARING”

The president of the campaign, Mr. Mathews J. Nedumpara has consented to address the meet.

All are welcome, to participate in and raise questions on the issue.

Yours faithfully,

1. R.P. Luthra

2. A.K.De

3. A.C.Philip

4. B.K.Adhikari

5. Mrs. Rohini M. Amin

APPLICATION FOR RECALL OR REVIEW OF THE ORDER DATED 5TH NOVEMBER, 2015 PASSED BY THIS Hon'ble Court PREFERRED BY THE Petitioner IN Writ Petition No.124 OF 2015 SEEKING A DECLARATION THAT THE JUDGMENTS IN Judges-2 AND Judges-3 CASES ARE VOID; THAT THE Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014; AND THAT APPOINTMENTS OF Judges IN TERMS THEREOF BE MADE.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO. OF 2015
IN
WRIT PETITION (CIVIL) NO.124 OF 2015

Mathews J. Nedumpara. …PETITIONER/APPLICANT

Versus

Supreme Court of India
Through Secretary General & Ors. …RESPONDENTS

APPLICATION FOR RECALL OR REVIEW OF THE ORDER DATED 5TH NOVEMBER, 2015 PASSED BY THIS Hon'ble Court PREFERRED BY THE Petitioner IN Writ Petition No.124 OF 2015 SEEKING A DECLARATION THAT THE JUDGMENTS IN Judges-2 AND Judges-3 CASES ARE VOID; THAT THE Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014; AND THAT APPOINTMENTS OF Judges IN TERMS THEREOF BE MADE.

TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA

THE HUMBLE APPLICATION OF PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH

1. Right to dissent is the very essence of democracy. Democracy also postulates people as the source of all powers, executive, legislative and judicial, and those who discharge such powers are the delegatees/trustees of the people. The concept of separation of powers is one of the basic features of the Indian Constitution. It also postulates that the executive of the day is accountable to the people through the Parliament and will exercise the sovereign function of the State. The Parliament will enact laws and the judiciary, which is invested with the power of judicial review, will act as a ‘checks and balances’ where the legislature and the executive fail to act within the constitutional ethos and limitations.

2. The power of judicial review is one of the most important basic features of the Constitution. It acts as a bulwark at the hands of the citizens against executive and legislative transgressions and excesses. Theoretically speaking, the power of judicial review is invested even in ordinary Civil Courts, for, it is competent to declare a statutory instrument as void. But, for all practical purposes, power of judicial review is exercised by High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution. Article 32 of the Constitution has invested a right in every citizen to access the Supreme Court for enforcement of his fundamental rights without recourse to any other Court. Though there can be no dispute that the power of judicial review is a very useful instrument to secure the legislative and executive acts within its domain and they do not resort to oppression and excesses, the power of judicial review today is so much abused by recourse to the benevolent jurisprudence called PIL that what is done in the name of judicial review results in the very opposite. Stated in simple words, the concept of judicial review is evolved to keep legislative and executive branch of the State within its legitimate domain. Judicial review was no way contemplated to destroy the concept of checks and balances and to invest in the judiciary the province of the executive and legislature or in substitution thereof. However, the judgments in Judges-2, Judges-3 and Judges-4 cases have done exactly the same and have undermined the very concept of judicial review itself, since, when the judiciary acts as if it is the legislature and the executive, nay, in substitution thereof, all at once, it results in a situation where there is no forum where the mechanism of judicial review could be sought against the executive and legislative acts at the hands of the higher judiciary.

3. The Five-Judge Constitution Bench of the Supreme Court by its judgment dated 16th October, 2015 in the Judges-4 case was pleased to hold the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (“the impugned Acts”, for short) as unconstitutional and void. While quashing the impugned Acts, it also made it clear that the pristine constitutional provision as it was originally enacted, namely, Articles 124 and 217 of the Constitution, will not be revived as it is, but the said Articles as interpreted in the judgments in Judges-2 and Judges-3 cases will come into force. The Supreme Court in express terms declared that the collegium system of appointment of Judges, where the Judges appoint themselves, which in actual practice meant to be a wholly opaque and cabal system of appointment where primarily the kith and kin of sitting and former Judges of the Supreme Court and High Courts, powerful lawyers, Chief Ministers, Governors et al and a few first generation lawyers who are all politically connected or are close to big industrial houses are appointed to the total exclusion of the equally deserving sons and daughters of the common men, would revive.
4. The Supreme Court was pleased to declare the impugned Acts as unconstitutional, rejecting the express plea made in Writ Petition No.124 of 2015 that the controversy in question is concerning every citizen of this country and public notice be issued in terms of Order I Rule 8 of the Civil Procedure Code, so too to major political parties, Bar Associations and all stakeholders. The Supreme Court was pleased to declare the impugned Acts as unconstitutional on the ground that the presence of the Law Minister and two eminent members is destructive to the doctrine of “judicial supremacy”. It went on to hold that there is a possibility of the Prime Minister and the Leader of the Opposition who, along with the Chief Justice of India, are to elect the two eminent persons, resorting to trade off between them and the eminent members so elected along with the Law Minister stultifying the appointment of a person which the ‘judicialcomponent’ of the NJAC considers worthy to be appointed. Though Justice Chelameswar in his dissenting judgment, taking note of the very unlikely scenario of the Prime Minister and the Leader of the Opposition joining hands with the malicious design to silence the voice of the ‘judicial component’ of the NJAC, which constitutes to be 50% thereof, suggested that to obviate such a scenario ever occurring, a ScreeningCommittee could be conceived, limiting the choices of the eminent persons to be selected by the Committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India to those names selected by the Screening Committee, the majority of the Judges, however, paid no heed to the said suggestion and the impugned Acts were struck down as unconstitutional and the collegium system, a system castigated to be unworthy by all, even by Shri Fali Nariman, the most vocal critic of the NJAC, was allowed to be resurrected. As the Supreme Court of Pakistan did in the quite recent past, the Supreme Court, while quashing the said Acts, could have suggested ways and means by which the NJAC could have improved and the deficiencies it pointed out could have been left to be cured by the Parliament. But instead the Constitution Bench refused to pay any heed to the plea that the PILs in challenge of the impugned Acts is a litigation where every citizen of this country will find his stake involved and therefore notice to the public at large, Bar Associations and all stakeholders be issued, and after quashing the said Acts has, by order dated 5th November, 2015, invited suggestions from the public at large to improve the collegium system. In doing so, the Supreme Court, it must be stated with utmost respect, failed to take note of the following aspects:-

That the public at large cannot be asked to give their opinions and suggestions in a short span of 8 days and that too in the midst of Diwali Holidays;
If the opinion of the public at large is to be sought, then they should be free to make their opinion without putting any restrictions, for, in the order dated 5th November, 2015 the Supreme Court has said that the suggestions shall be confined to four aspects, namely:
Transparency
Collegium Secretariat
Eligibility Criteria
Complaints
That the requirement to hear the public at large was before the case was heard and decided and not subsequent thereto; and
While it was entirely legitimate to hear the public at large before the case was decided, to hear them after the decision of the case amounts to legislation in substitution of the Parliament, nay, even its constituent power.

5. The NJAC case is a classic example of how the Hon'ble Judges and the legal luminaries appearing for the PIL Petitioners and defending the Government are unconnected with the common man and simple realities of life. The following were the pleas of distinguished Fali Nariman and his colleagues, each of which is against the first principle of constitutional law, in challenge of the impugned Acts:-

The judgment of the Supreme Court is the law of the land.

This is a misconception. The Parliament alone can declare what is the law of the land. The job of the Supreme Court is only to interpret the Constitution and the law and the interpretation which it enters is only a precedent which is binding on the Courts and Tribunals of the country. Article 141, which is quoted below, expressly states so:-
“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.”

The Supreme Court cannot declare what the law of the land is because if it is invested with the power to do so, it must issue notice to the public at large and hear every citizen. That is not humanly possible and that is why the Parliament, the delegatee of the people, is invested with the jurisdiction to enact laws, nay, declare what the law of the land is. A judgment of the Supreme Court between A and B will bind only the said A and B. If any principle is evolved in such a decision, that principle alone is a precedent in another case between C and D. The concept of judicial review does not invest any power in the Supreme Court to quash and set aside an Act of Parliament, in the instant case a constitutional amendment. It will remain in the statute book, but since we respect the majesty of the Supreme Court, the legal principle so evolved is respected and the Act of Parliament could be said to be in a state of eclipse. If this be the undeniable constitutional principle, the judgments of the Supreme Court in Kesavananda Bharativ. the State of Kerala (1973)Supp. SCR 1, Minerva Mills v. Union of India (1980) 2SCC 591, Waman Rao v. Union of India, 1981 2 SCC 362, Judges-2 case, M. Nagaraj v. Union of India, (2006) 8 SCC 212 and I.R. Coelho (Dead) by LR v. State of Tamil Nadu &Ors.,(2007) 2 SCC 1, all, are in the realm of high precedential value, commanding great respect, but nothing more.

The legal luminaries, however, failed to see the obvious that the doctrine of “basic structure” enunciated in Kesavananda Bharati, known as the Fundamental Rights case, can have application only where a plea of violation of fundamental rights is raised. SCAORA had no case that its fundamental rights or those of its members are infringed. They failed to take notice of the fact that for a PIL to be maintained, the sine qua non is the existence of an “aggrieved person” and in the context of Article 32, the person so aggrieved must complain violation of his fundamental right/s. If there is no violation of fundamental rights, the jurisdiction under Article 32 cannot be invoked. In the instant case, SCAORA could not identify as to who is the person aggrieved and whom it represents. To repeat, for a PIL to be maintained, there ought to be a “person aggrieved”; he alone can seek a remedy and where a person aggrieved is unable to institute a petition to enforce his remedy out of his illiteracy, poverty and other disadvantages, any person acting pro bono publico can act on his or her behalf, nay, even a determinative class of persons. But, there must be a person aggrieved and the person aggrieved must suffer from a disadvantage or incapacity to approach the Constitutional Court and seek redressal. SCAORA could not have said that they represent the 127crores people of this country. If it were to so plead, the question will arise as to who has authorized it to file the PIL.

6. Though the NJAC case was argued for 31 days and celebrities like Shri Fali Nariman were heard unlimitedly to the fulfillment of their heart, denying a fair opportunity to the non-celebrity lawyers to plead their points in support of the NJAC, if two fundamental questions/preliminary issues were allowed to be raised by the unsung lawyers, there would have been no room for the so-called PILs to be heard, even for one full day. The challenge to the impugned Acts was liable to be rejected in limine for the simple reasons that (i) the said Acts/legislations were not justiciable at all. It is all about the legislative and executive policy as to how Judges of the superior Courts are to be appointed; it did not involve any lis, for, a lis would mean assertion of a right or obligation in his favour by one and denial of the same by the other; the need to determine the disputed right or obligation by conducting a trial, to put it very briefly. SCAORA did not claim that any of its fundamental or legal right is infringed; nor of any of its members; nor of anyone else. Therefore, the PIL by SCAORA was not maintainable; the issue involved was not justiciable at all. The wisdom of the Parliament in adopting a particular mechanism, namely, NJAC, even while there can be a better mechanism possible in the eyes of others, is not justiciable. The Parliament’s wisdom cannot be substituted by that of the Judges. Parliament is right even when it is wrong in matters of policy – in the same manner as the judgment of the Supreme Court is final and binding even when it is wrong, provided it is within its jurisdiction. The remedy open to distinguished Fali Nariman and company was to convince the political leadership or form public opinion to secure enactment of a law in the realm of appointment of Judges in the manner they would have wished. Instead of that, to resort to judicial review is wholly undemocratic and unethical, to say the least.

7. The blame for the seemingly frightening situation as a fallout of the judgment of the Supreme Court in Judges-4 case holding the impugned Acts as unconstitutional cannot entirely be put on the shoulders of the legal luminaries who abused the concept of “basic structure” to its hilt. What exactly is the meaning of the concept of basic structure evolved by the Supreme Court in Kesavananda Bharati? In the said case the Supreme Court held that Parliament is competent to enact a law which could alter or amend any of the Articles of the Constitution, including those concerning fundamental rights. Fundamental rights canbe curtailed, but such curtailment should not be to the extent of total abrogation of the same. It went on to hold that the concept of equality before law, equal opportunities before law, rule of law etc., should be the basic features of the Constitution. The doctrine of basic structure can have no application independent of fundamental rights. Fundamental rights fall in the realm of substantive law; basic structure falls in the domain of adjectival law. The concept of rule of law, democracy, equality before law, secularism etc., are the very inalienable, transcendental, monumental and primordial basic features of the Constitution to secure fundamental rights. In the instant case, there is no plea of violation of any fundamental rights and, therefore, the question of emasculation or abrogation or violation of the basic feature did not arise at all. However, the learned Attorney General (AG) failed to even raise the plea that the question of violation of the basic structure did not arise, for, there is not even a complaint that the impugned Acts result in violation of the fundamental rights of the PIL Petitioners or anyone else. If the Government, nay, the people of India, have lost the NJAC case, the blame therefor squarely falls on the AG, the Solicitor General and the legal luminaries who represented the States. It is not for the first time that the AGs/legal luminaries have failed to defend the Government, nay, the people. In Judges-1 case, the locus standi of the Petitioners was conceded, which cannot be found fault with because the Judges who were transferred or whose tenure was not extended were parties to the case. However, in Judges-2 case, it was the duty of the AG/Shri Parasaran, who argued for the Union of India, to raise the plea of non-maintainability of the petition, but it was not raised at all. In Judges-3 case, it was the duty of the Union of India to have questioned the correctness of the judgment in Judges-2 case, but the AG conceded that the correctness of Judges-2 case is not questioned. In Judges-4 case, the AG failed to assert that the judgments in Judges-2 and Judges-3 cases were rendered per incuriam. At no point the AG ever took the plea that the doctrine of basic structure has no application in the NJAC case. On the contrary, he conceded that he will succeed or fail depending upon the finding whether the impugned Acts impinge the basic structure or not.

8. It must be stated, sadly though, that the AG and the legal luminaries failed to comprehend the principles of constitutional law which a common man may have no difficulty to grasp. The common man understands that law making is within the province of the Parliament and interpretation of the law is in the realm of the judiciary. No one can go to a constitutional Court unless his fundamental or legal rights are infringed. While the Supreme Court is final in matters where rights and obligations are contested between the parties, the Parliament is supreme in so far as what policy of law is good for the country, and the wisdom of the Parliament reflects the will of the people and that will is final and no Court can sit in judgment over the wisdom of the Parliament in matters of executive and legislative policy unless the law so made is violative of the fundamental rights. Sublato fundamento, cadit opus. The judgments in Judges-2, Judges-3 and Judges-4 cases are founded on sand, nay, wax called the doctrine of basic structure which is amenable to be shaped in whatever manner the Judges could on the erroneous presumption that the right to interpret the Constitution is in the exclusive domain of the judiciary. The Supreme Court has seriously erred, nay, beyond imagination, in the Judges-4 case, preceded by Judges-3 and Judges-2 cases. The damage done is irreparable. Revival of the collegium, which the Court itself has found to be imperfect, in the place of the NJAC, which is yet to be experimented, means a catastrophe, nay, ‘courtostrophe’ to borrow an expression from legendary Justice Krishna Iyer. Hearing the public at large on the four points identified by the Court, namely, (i) Transparency (ii) Collegium Secretariat (iii) Eligibility Criteria and (iv) Complaints, is of no use now. The public ought to have been heard, if the Court ever felt it to be relevant, when the NJAC case was being heard for 31 days. An application to that effect was made, which is quoted as infra:-

‘issue notice to the public at large in terms of Order I Rule 8(2) of the Code of Civil Procedure, 1908; as also to the Hon'ble Chief Justices of the 24 High Courts in India through the Registrar General or such other officer empowered to receive process on behalf of the Hon'ble Chief Justices in terms of the Rule or practice in vogue’

As could be seen from above, though a request was made that public at large be heard in the PILs challenging the impugned Acts, it was not acceded to. Inviting suggestions from the public at large now and permitting those representing the stakeholders to argue the case will serve no useful purpose unless such hearing is on the question of NJAC versus Collegium, which will mean review of the entire case. The order dated 5th November, 2015, therefore, is liable to be recalled. The NJAC case has to be heard afresh. The judgment dated 16th October, 2015 is liable to be reviewed. The order dated 5th November, 2015 limiting the hearing on the aforesaid four points is liable to be recalled and the time for the public to submit their suggestions and representations is liable to be extended, for, the time given is too short and that too in the midst of the Diwali holidays. The most serious complaint about the collegium system of appointment of judges by judges themselves is that the judges except for a few exceptions abused it to its hilt, to their private gain. Today, the Supreme Court is literally the Sons Court of India, almost one-third of the judges, if not, more are the sons of the former judges. The statistics which the author could collate indicate that almost every judge who was appointed as such before the age of 46 were the sons, son-in-laws and nephews of the former judges, nay, their kith and kin. The Indian judiciary has been reduced to a family business, unfortunately, is the perception. The legal profession has been literally monopolized by the kith and kin of judges and powerful lawyers; either as judges or as senior lawyers. The ordinary lawyer, the sons and daughters of farmers, taxi drivers, teachers, small-time traders, the common man, all, stand completely excluded. There is no diversity. The collegium system is ill-conceived; it is illegitimate. By no means can it be improved. NJAC is the only solution. If NJAC is deficient, it ought to be improved. Suggestions ought to have been invited on improving the NJAC and not of the collegium. To err is human. The Supreme Court has erred. The pertinent question is: would the Hon’ble judges be gracious enough to hold the mirror unto them, introspect, and acknowledge that they have erred; erred grievously. If that happens which is the fond hope of the author, then, the hearing to be held on 18th and 19thinstant ought to be on: Why improve the opaque collegium, why not improve the NJAC?
Hence, the instant application.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

recall its judgment dated 16th October, 2015 passed in the above Writ Petitions and PILs; hear the said petitions afresh; recall its order dated 5th November, 2015 limiting the hearing on the four points specified therein as so how to improve the collegium system which the five judge constitutional bench in its judgment dated 16/10/2015 was pleased to hold it to be opaque and unworthy as one which had resulted in corruption and nepotism and instead to seek opinions and suggestions from the public at large as to how the NJAC which is yet to be tested, and of which no deficiency or mischief are proved, could be further improved and strengthened so that the most suitable and eligible alone are appointed as the judges of the High Courts and Supreme Court; and further that the time for the public to submit their suggestions and representations be extended, for, the time given was too short and that too in the midst of the Diwali holidays that the public at large who wanted to make their submissions and suggestions are denied of their valuable right to do so;

b)pass any such other order or orders/directions as this Hon’ble Court may deem fit and proper in the interest of justice.

DRAWN AND FILED BY

(Mathews J.Nedumpara)
       Petitioner/Applicant-in-person
       Chamber No.47
Supreme Court of India
      New Delhi-110001.
     Mob. 09820435428

New Delhi,
Drawn on :
Filed on :

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO. OF 2015
IN
WRIT PETITION (CIVIL) NO.124 OF 2015

Mathews J. Nedumpara. …PETITIONER/APPLICANT

Versus

Supreme Court of India
Through Secretary General & Ors. …RESPONDENTS

AFFIDAVIT
I, Mathews J. Nedumpara, Advocate, Chamber No.47, Supreme Court of India, New Delhi, do hereby solemnly swear and affirm as follows :

1.That I am the Petitioner/Applicant in the above mentioned case and I am fully conversant with the facts and circumstances of the case. Hence, I am competent to swear to this Affidavit.

2.That I have gone through the accompanying Application for recall of the order of this Hon’ble Court dated 05.11.2015. The contents of the said Application are true and correct. No part of it is false and nothing material has been concealed therein.

DEPONENT
Verification
I, the above named Deponent, do hereby verify and state that the contents of Affidavit are true and correct to my knowledge and belief. No part of it is false and nothing is concealed therefrom.
Verified at New Delhi on this the 17th day of November, 2015.

DEPONENT

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO. OF 2015
IN
WRIT PETITION (CIVIL) NO.124 OF 2015

Mathews J. Nedumpara. …PETITIONER/APPLICANT

Versus

Supreme Court of India
Through Secretary General & Ors. …RESPONDENTS

I N D E X

Sl. No.
Particulars
Page Nos.

1.
Application for recall of the order dated 05.11.2015 passed by this Hon’ble Court in W.P. (C) No.124/2015, with Affidavit.

2.
Annexure-A1 Copy of the order dated 05.11.2015 passed by this Hon’ble Court in W.P. (C) No.124/2015 and other connected cases.

FILED BY

(Mathews J.Nedumpara)
       Petitioner/Applicant-in-person
       Chamber No.47
Supreme Court of India
      New Delhi-110001.
     Mob. 09820435428

New Delhi,
Filed on :

Saturday 14 November 2015

Why Improve the Opaque Collegium, why not improve the NJAC?

Right to dissent is the very essence of democracy. Democracy also postulates people as the source of all powers, executive, legislative and judicial, and those who discharge such powers are the delegatees/trustees of the people. The concept of separation of powers is one of the basic features of the Indian Constitution. It also postulates that the executive of the day is accountable to the people through the Parliament and will exercise the sovereign function of the State. The Parliament will enact laws and the judiciary, which is invested with the power of judicial review, will act as a ‘checks and balances’ where the legislature and the executive fail to act within the constitutional ethos and limitations.

4. The Supreme Court was pleased to declare the said Acts as unconstitutional, rejecting the express plea made by the author in Writ Petition No.124 of 2015 that the controversy in question is concerning every citizen of this country and public notice be issued in terms of Order I Rule 8(2) of the Civil Procedure Code, so too to major political parties, Bar Associations and all stakeholders. The Supreme Court was pleased to declare the said Acts as unconstitutional on the ground that the presence of the Law Minister and two eminent members is destructive to the doctrine of “judicial supremacy”. It went on to hold that there is a possibility of the Prime Minister and the Leader of the Opposition who, along with the Chief Justice of India, are to elect the two eminent persons, resorting to ‘tradeoff’ between them and the eminent members so elected along with the Law Minister stultifying the appointment of a person which the ‘judicial component’ of the NJAC considers worthy to be appointed. Though Justice Chelameswar in his dissenting judgment, taking note of the very unlikely scenario of the Prime Minister and the Leader of the Opposition joining hands with the malicious design to silence the voice of the ‘judicial component’ of the NJAC, which constitutes to be 50% thereof, suggested that to obviate such a scenario ever occurring, a Screening Committee could be conceived, limiting the choices of the eminent persons to be selected by the Committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India to those names selected by the Screening Committee, the majority of the Judges, however, paid no heed to the said suggestion and the said Acts were struck down as unconstitutional and the collegium system, a system castigated to be unworthy by all, even by Shri Fali Nariman, the most vocal critic of the NJAC, was allowed to be resurrected. As the Supreme Court of Pakistan did in the quite recent past, the Supreme Court, while quashing the said Acts, could have suggested ways and means by which the NJAC could have been improved and the deficiencies it pointed out could have been left to be cured by the Parliament. But instead the Constitution Bench refused to pay any heed to the plea that the PILs in challenge of the said Acts is a litigation where every citizen of this country will find his stake involved and therefore notice to the public at large, Bar Associations and all stakeholders be issued, and after quashing the said Acts has, by order dated 5th November, 2015, invited suggestions from the public at large to improve the collegium system. In doing so, the Supreme Court, it must be stated with utmost respect, failed to take note of the following aspects:-

The judgment of the Supreme Court is the law of the land.

This is a misconception. The Parliament alone can declare what is the law of the land. The job of the Supreme Court is only to interpret the Constitution and the law and the interpretation which it enters is only a precedent which is binding on the Courts and Tribunals of the country. Article 141, which is quoted below, expressly states so:-
“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.”

The Supreme Court cannot declare what the law of the land is because if it is invested with the power to do so, it must issue notice to the public at large and hear every citizen. That is not humanly possible and that is why the Parliament, the delegatee of the people, is invested with the jurisdiction to enact laws, nay, declare what the law of the land is. A judgment of the Supreme Court between A and B will bind only the said A and B. If any principle is evolved in such a decision, that principle alone is a precedent in another case between C and D. The concept of judicial review does not invest any power in the Supreme Court to quash and set aside an Act of Parliament, in the instant case a constitutional amendment. It will remain in the statute book, but since we respect the majesty of the Supreme Court, the legal principle so evolved is respected and the Act of Parliament could be said to be in a state of eclipse. If this be the undeniable constitutional principle, the judgments of the Supreme Court in Kesavananda Bharati v. the State of Kerala (1973)Supp. SCR 1, Minerva Mills v. Union of India (1980) 2 SCC 591, Waman Rao v. Union of India, 1981 2 SCC 362, Judges-2 case, M. Nagaraj v. Union of India, (2006) 8 SCC 212 and I.R. Coelho (Dead) by LR v. State of Tamil Nadu &Ors.,(2007) 2 SCC 1, all, are in the realm of high precedential value, commanding great respect, but nothing more.

The distinguished Fali Nariman and other legal luminaries contended that in Kesavananda Bharati and other cases it was held that independence of judiciary and separation of powers are basic features of the Constitution and the Parliament even in exercise of its constituent power is not empowered to enact even a constitution amendment which will impinge or destroy the basic feature or structure of the Constitution. It was argued that the impugned Acts impinge the independence of judiciary, a basic structure of the Constitution and, therefore, they are liable to be declared as void. Shri Fali Nariman further contended that a PIL will lie at the hands of the Supreme Court Advocates on Record Association (SCAORA) for a declaration that the impugned Acts are void.
The legal luminaries, however, failed to see the obvious that the doctrine of “basic structure” enunciated in Kesavananda Bharati, known as the Fundamental Rights case, can have application only where a plea of violation of fundamental rights is raised. SCAORA had no case that its fundamental rights or those of its members are infringed. They failed to take notice of the fact that for a PIL to be maintained, the sine qua non is the existence of an “aggrieved person” and in the context of Article 32, the person so aggrieved must complain violation of his fundamental right/s. If there is no violation of fundamental rights, the jurisdiction under Article 32 cannot be invoked. In the instant case, SCAORA could not identify as to who is the person aggrieved and whom it represents. To repeat, for a PIL to be maintained, there ought to be a “person aggrieved”; he alone can seek a remedy and where a person aggrieved is unable to institute a petition to enforce his remedy out of his illiteracy, poverty and other disadvantages, any person acting pro bono publico can act on his or her behalf, nay, even a determinative class of persons. But, there must be a person aggrieved and the person aggrieved must suffer from a disadvantage or incapacity to approach the Constitutional Court and seek redressal. SCAORA could not have said that they represent the 127 crores people of this country. If it were to so plead, the question will arise as to who has authorized it to file the PIL.

6. Though the NJAC case was argued for 31 days and celebrities like Shri Fali Nariman were heard unlimitedly to the fulfillment of their heart, denying a fair opportunity to the non-celebrity lawyers to plead their points in support of the NJAC, if two fundamental questions/preliminary issues were allowed to be raised by the unsung lawyers, there would have been no room for the so-called PILs to be heard, even for one full day. The challenge to the said Acts was liable to be rejected in limine for the simple reasons that (i) the said Acts/legislations were not justiciable at all. It is all about the legislative and executive policy as to how Judges of the superior Courts are to be appointed; it did not involve any lis, for, a lis would mean assertion of a right or obligation in his favour by one and denial of the same by the other; the need to determine the disputed right or obligation by conducting a trial, to put it very briefly. SCAORA did not claim that any of its fundamental or legal right is infringed; nor of any of its members; nor of anyone else. Therefore, the PIL by SCAORA was not maintainable; the issue involved was not justiciable at all. The wisdom of the Parliament in adopting a particular mechanism, namely, NJAC, even while there can be a better mechanism possible in the eyes of others, is not justiciable. The Parliament’s wisdom cannot be substituted by that of the Judges. Parliament is right even when it is wrong in matters of policy – in the same manner as the judgment of the Supreme Court is final and binding even when it is wrong, provided it is within its jurisdiction. The remedy open to distinguished Fali Nariman and company was to convince the political leadership or form public opinion to secure enactment of a law in the realm of appointment of Judges in the manner they would have wished. Instead of that, to resort to judicial review is wholly undemocratic and unethical, to say the least.

7. The blame for the seemingly frightening situation as a fallout of the judgment of the Supreme Court in Judges-4 case holding the said Acts as unconstitutional cannot entirely be put on the shoulders of the legal luminaries who abused the concept of “basic structure” to its hilt. What exactly is the meaning of the concept of basic structure evolved by the Supreme Court in Kesavananda Bharati? In the said case the Supreme Court held that Parliament is competent to enact a law which could alter or amend any of the Articles of the Constitution, including those concerning fundamental rights. Fundamental rights can be curtailed, but such curtailment should not be to the extent of total abrogation of the same. It went on to hold that the concept of equality before law, equal opportunities before law, rule of law etc., should be the basic features of the Constitution. The doctrine of basic structure can have no application independent of fundamental rights. Fundamental rights fall in the realm of substantive law; basic structure falls in the domain of adjectival law. The concept of rule of law, democracy, equality before law, secularism etc., are the very inalienable, transcendental, monumental and primordial basic features of the Constitution to secure fundamental rights. In the instant case, there is no plea of violation of any fundamental rights and, therefore, the question of emasculation or abrogation or violation of the basic feature did not arise at all. However, the learned Attorney General failed to even raise the plea that the question of violation of the basic structure did not arise, for, there is not even a complaint that the said Acts result in violation of the fundamental rights of the PIL Petitioners or anyone else. If the Government, nay, the people of India, have lost the NJAC case, the blame therefor squarely falls on the AG, the Solicitor General and the legal luminaries who represented the States. It is not for the first time that the AGs/legal luminaries have failed to defend the Government, nay, the people. In Judges-1 case, the locus standi of the Petitioners was conceded, which cannot be found fault with because the Judges who were transferred or whose tenure was not extended were parties to the case. However, in Judges-2 case, it was the duty of the AG/Shri Parasaran, who argued for the Union of India, to raise the plea of non-maintainability of the petition, but it was not raised at all. In Judges-3 case, it was the duty of the Union of India to have questioned the correctness of the judgment in Judges-2 case, but the AG conceded that the correctness of Judges-2 case is not questioned. In Judges-4 case, the AG failed to assert that the judgments in Judges-2 and Judges-3 cases were rendered per incuriam. At no point the AG ever took the plea that the doctrine of basic structure has no application in the NJAC case. On the contrary, he conceded that he will succeed or fail depending upon the finding whether the said Acts impinge the basic structure or not.

9. As could be seen from above, though a request was made that public at large be heard in the PILs challenging the said Acts, it was not acceded to. Inviting suggestions from the public at large now and permitting those representing the stakeholders to argue the case will serve no useful purpose unless such hearing is on the question of NJAC versus Collegium, which will mean review of the entire case. The order dated 5th November, 2015, therefore, is liable to be recalled. The NJAC case has to be heard afresh. The judgment dated 16th October, 2015 is liable to be reviewed. The order dated 5th November, 2015 limiting the hearing on the aforesaid four points is liable to be recalled and the time for the public to submit their suggestions and representations is liable to be extended, for, the time given is too short and that too in the midst of the Diwali holidays.

The most serious complaint about the collegium system of appointment of judges by judges themselves is that the judges except for a few exceptions abused it to its hilt, to their private gain. Today, the Supreme Court is literally the Sons Court of India, almost one-third of the judges, if not, more are the sons of the former judges. The statistics which the author could collate indicate that almost every judge who was appointed as such before the age of 46 were the sons, son-in-laws and nephews of the former judges, nay, their kith and kin. The Indian judiciary has been reduced to a family business, unfortunately, is the perception. The legal profession has been literally monopolized by the kith and kin of judges and powerful lawyers; either as judges or as senior lawyers. The ordinary lawyer, the sons and daughters of farmers, taxi drivers, teachers, small-time traders, the common man, all, stand completely excluded. There is no diversity. The collegium system is ill-conceived; it is illegitimate. By no means can it be improved. NJAC is the only solution. If NJAC is deficient, it ought to be improved. Suggestions ought to have been invited on improving the NJAC and not of the collegium. To err is human. The Supreme Court has erred. The pertinent question is: would the Hon’ble judges be gracious enough to hold the mirror unto them, introspect, and acknowledge that they have erred; erred grievously. If that happens which is the fond hope of the author, then, the hearing to be held on 18th and 19th instant ought to be on: Why improve the opaque collegium, why not improve the NJAC?

Mathews J Nedumpara, President, The National Lawyers’ Campaign for Judicial Transparency and Reforms(Regd), Mumbai
+91 9820535428/9447165651

Friday 13 November 2015

APPLICATION FOR RECALL OR REVIEW OF THE ORDER DATED 5TH NOVEMBER, 2015 PASSED BY THIS Hon'ble Court PREFERRED BY THE Petitioner IN Writ Petition No.124 OF 2015 SEEKING A DECLARATION THAT THE JUDGMENTS IN Judges-2 AND Judges-3 CASES ARE VOID; THAT THE Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014; AND THAT APPOINTMENTS OF Judges IN TERMS THEREOF BE MADE.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

REVIEW PETITION (CIVIL) NO. OF 2015
IN
WRIT PETITION (CIVIL) NO. 13 OF 2015

Supreme Court Advocates – on – Record
Association and another … Petitioner

Versus

Union of India … Respondents

To
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH

4. The Supreme Court was pleased to declare the impugned Acts as unconstitutional, rejecting the express plea made in Writ Petition No.124 of 2015 that the controversy in question is concerning every citizen of this country and public notice be issued in terms of Order I Rule 8 of the Civil Procedure Code, so too to major political parties, Bar Associations and all stakeholders. The Supreme Court was pleased to declare the impugned Acts as unconstitutional on the ground that the presence of the Law Minister and two eminent members is destructive to the doctrine of “judicial supremacy”. It went on to hold that there is a possibility of the Prime Minister and the Leader of the Opposition who, along with the Chief Justice of India, are to elect the two eminent persons, resorting to trade off between them and the eminent members so elected along with the Law Minister stultifying the appointment of a person which the judicial element of the NJAC considers worthy to be appointed. Though Justice Chelameswar in his dissenting judgment, taking note of the very unlikely scenario of the Prime Minister and the Leader of the Opposition joining hands with the malicious design to silence the voice of the judicial element of the NJAC, which constitutes to be 50% thereof, suggested that to obviate such a scenario ever occurring, a ScreeningCommittee could be conceived, limiting the choices of the eminent persons to be selected by the Committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India to those names selected by the Screening Committee, the majority of the Judges, however, paid no heed to the said suggestion and the impugned Acts were struck down as unconstitutional and the collegium system, a system castigated to be unworthy by all, even by Shri Fali Nariman, was allowed to be resurrected. As the Supreme Court of Pakistan did in the quite recent past, the Supreme Court, while quashing the said Acts, could have suggested ways and means by which the NJAC could have improved and the deficiencies it pointed out could have been left to be cured by the Parliament. But instead the Constitution Bench refused to pay any heed to the plea that the PILs in challenge of the impugned Acts is a litigation where every citizen of this country will find his stake involved and therefore notice to the public at large, Bar Associations and all stakeholders be issued, and after quashing the said Acts has, by order dated 5th November, 2015, invited suggestions from the public at large to improve the collegium system. In doing so, the Supreme Court, it must be stated with utmost respect, failed to take note of the following aspects:-

The judgment of the Supreme Court is the law of the land.

This is a misconception. The Parliament alone can declare what is the law of the land. The job of the Supreme Court is only to interpret the Constitution and the law and the interpretation which it enters is only a precedent which is binding on the Courts and Tribunals of the country. Article 141, which is quoted below, expressly states so:-
“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.”

The Supreme Court cannot declare what the law of the land is because if it is invested with the power to do so, it must issue notice to the public at large and hear every citizen. That is not humanly possible and that is why the Parliament, the delegatee of the people, is invested with the jurisdiction to enact laws, nay, declare what the law of the land is. A judgment of the Supreme Court between A and B will bind only the said A and B. If any principle is evolved in such a decision, that principle alone is a precedent in another case between C and D. The concept of judicial review does not invest any power in the Supreme Court to quash and set aside an Act of Parliament, in the instant case a constitutional amendment. It will remain in the statute book, but since we respect the majesty of the Supreme Court, the legal principle so evolved is respected and the Act of Parliament could be said to be in a state of eclipse. If this be the undeniable constitutional principle, the judgments of the Supreme Court in Kesavananda Bharati v. the State of Kerala (1973)Supp. SCR 1, Minerva Mills v. Union of India (1980) 2 SCC 591, Waman Rao v. Union of India, 1981 2 SCC 362, Judges-2 case, M. Nagaraj v. Union of India, (2006) 8 SCC 212 and I.R. Coelho (Dead) by LR v. State of Tamil Nadu &Ors.,(2007) 2 SCC 1, all, are in the realm of high precedential value, commanding great respect, but nothing more.

6. Though the NJAC case was argued for 31 days and celebrities like Shri Fali Nariman were heard unlimitedly to the fulfillment of their heart, denying a fair opportunity to the non-celebrity lawyers to plead their points in support of the NJAC, if two fundamental questions/preliminary issues were allowed to be raised by the unsung lawyers, there would have been no room for the so-called PILs to be heard, even for one full day. The challenge to the impugned Acts was liable to be rejected in limine for the simple reasons that (i) the said Acts/legislations were not justiciable at all. It is all about the legislative and executive policy as to how Judges of the superior Courts are to be appointed; it did not involve any lis, for, a lis would mean assertion of a right or obligation in his favour by one and denial of the same by the other; the need to determine the disputed right or obligation by conducting a trial, to put it very briefly.SCAORA did not claim that any of its fundamental or legal right is infringed; nor of any of its members; nor of anyone else. Therefore, the PIL by SCAORA was not maintainable; the issue involved was not justiciable at all. The wisdom of the Parliament in adopting a particular mechanism, namely, NJAC, even while there can be a better mechanism possible in the eyes of others, is not justiciable. The Parliament’s wisdom cannot be substituted by that of the Judges. Parliament is right even when it is wrong in matters of policy – in the same manner as the judgment of the Supreme Court is final and finding even when it is wrong, provided it is within its jurisdiction. The remedy open to distinguished Fali Nariman and company was to convince the political leadership or form public opinion to secure enactment of a law in the realm of appointment of Judges in the manner they would have wished. Instead of that, to resort to judicial review is wholly undemocratic and unethical, to say the least.

7. The blame for the seemingly frightening situation as a fallout of the judgment of the Supreme Court in Judges-4 case holding the impugned Acts as unconstitutional cannot entirely be put on the shoulders of the legal luminaries who abused the concept of “basic structure” to its stilt. What exactly is the meaning of the concept of basic structure evolved by the Supreme Court in Kesavananda Bharati? In the said case the Supreme Court held that Parliament is competent to enact a law which could alter or amend any of the Articles of the Constitution, including those concerning fundamental rights. Fundamental rights can be curtailed, but such curtailment should not be to the extent of total abrogation of the same. It went on to hold that the concept of equality before law, equal opportunities before law, rule of law etc., should be the basic features of the Constitution. The doctrine of basic structure can have no application independent of fundamental rights. Fundamental rights fall in the realm of substantive law; basic structure falls in the domain of adjectival law. The concept of rule of law, democracy, equality before law, secularism etc., are the very inalienable, transcendental, monumental and primordial basic features of the Constitution to secure fundamental rights. In the instant case, there is no plea of violation of any fundamental rights and, therefore, the question of emasculation or abrogation or violation of the basic feature did not arise at all. However, the learned Attorney General (AG) failed to even raise the plea that the question of violation of the basic structure did not arise, for, there is not even a complaint that the impugned Acts result in violation of the fundamental rights of the PIL Petitioners or anyone else. If the Government, nay, the people of India, have lost the NJAC case, the blame therefor squarely falls on the AG, the Solicitor General and the legal luminaries who represented the States. It is not for the first time that the AGs/legal luminaries have failed to defend the Government, nay, the people. In Judges-1 case, the locus standi of the Petitioners was conceded, which cannot be found fault with because the Judges who were transferred or whose tenure was not extended were parties to the case. However, in Judges-2 case, it was the duty of the AG/Shri Parasaran, who argued for the Union of India, to raise the plea of non-maintainability of the petition, but it was not raised at all. In Judges-3 case, it was the duty of the Union of India to have questioned the correctness of the judgment in Judges-2 case, but the AG conceded that the correctness of Judges-2 case is not questioned. In Judges-4 case, the AG failed to assert that the judgments in Judges-2 and Judges-3 cases were rendered per incuriam. At no point the AG ever took the plea that the doctrine of basic structure has no application in the NJAC case. On the contrary, he conceded that he will succeed or fail depending upon the finding whether the impugned Acts impinge the basic structure or not.

8. It must be stated, sadly though, that the AG and the legal luminaries failed to comprehend the principles of constitutional law which a common man may have no difficulty to grasp. The common man understands that law making is within the province of the Parliament and interpretation of the law is in the realm of the judiciary. No one can go to a constitutional Court unless his fundamental or legal rights are infringed. While the Supreme Court is final in matters where rights and obligations are contested between the parties, the Parliament is supreme in so far as what policy of law is good for the country, and the wisdom of the Parliament reflects the will of the people and that will is final and no Court can sit in judgment over the wisdom of the Parliament in matters of executive and legislative policy unless the law so made is violative of the fundamental rights. Sublato fundamento, cadit opus. The judgments in Judges-2, Judges-3 and Judges-4 cases are founded on sand, nay, wax called the doctrine of basic structure which is amenable to be shaped in whatever manner the Judges could on the erroneous presumption that the right to interpret the Constitution is in the exclusive domain of the judiciary. The Supreme Court has seriously erred, nay, beyond imagination, in the Judges-4 case, preceded by Judges-3 and Judges-2 cases. The damage done is irreparable. Revival of the collegium, which the Court itself has found to be imperfect, in the place of the NJAC, which is yet to be experimented, means a catastrophe, to borrow an expression from legendary Justice Krishna Iyer. Hearing the public at large on the four points identified by the Court, namely, (i) Transparency (ii) Collegium Secretariat (iii) Eligibility Criteria and (iv) Complaints, is of no use now. The public ought to have been heard, if the Court ever felt it to be relevant, when the NJAC case was being heard for 31 days. An application to that effect was made, which is quoted as infra:-

(To be quoted)

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

review its judgment dated 16th October, 2015 passed in the above Writ Petitions and PILs; hear the said petitions afresh; recall its order dated 5th November, 2015 limiting the hearing on the four points specified therein; and the time for the public to submit their suggestions and representations be extended, for, the time given is too short and that too in the midst of the Diwali holidays;

b) pass any such other order or orders/directions as this Hon’ble Court may deem fit and proper in the interest of justice.

DRAWN BY FILED BY

(A.C.Philip) (Mathews J. Nedumpara)
Advocate Party in person

New Delhi,
Drawn on :
Filed on :