THE NATIONAL LAWYERS’ CAMPAIGN FOR
JUDICIAL TRANSPARENCY AND REFORMS
304, Hari Chambers, 3rd Floor, 54/68 SBS Marg, Near Lion Gate, 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
Ms. Sophia Pinto Vice President
Bangalore
Mrs. Rohini M. Amin
Vice President
Mumbai
Jacob Samuel
Vice president,
Cochin
Navaneetha Krishnan T.
General Secretary
AN OPEN LETTER
3rd November, 2015
To
1. Hon'ble Shri Narendra Modi,
Prime Minister of India, New Delhi.
2. Hon'ble Shri Arun Jaitley,
Finance Minister,
Government of India, New Delhi.
3. Hon'ble Shri V. Sadananda Gowda,
Law Minister, New Delhi.
4. Hon'ble Shri Mallikarjun Kharge,
Leader of the Opposition,
44, Parliament House,
New Delhi 110 001.
Hon'ble Sirs,
Sub: Replacement of learned Attorney General Shri Mukul Rohatgi for his total failure to defend the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014, nay, abdication of the duty owed to the Government, nay, the 125 crores of people of the country.
1. The instant is a letter which we wished never to pen, though ever since the hearing of the NJAC case it appears to be an inevitable one. It is a matter of great agony and pain to address a letter as the instant one for us, devotees of Gandhian principle of non-violence, not merely in deeds but in words – spoken and written, but where there is a duty to speak, silence is a crime.
2. We write this letter with enormous amount of mental strain, for, we do not intend to attack or cause pain to anyone. The grievance we make, a sharp one, for, the duty we call our conscience, for, in the larger public interest if one were to cause some private injury, between the two the former ought to be opted.
3. We, the campaigners, ordinary lawyers, have long been demanding, though our cries fell in the wilderness, for greater diversity in the appointment of Judges to the higher judiciary, which could be possible where vacancies are notified, applications/references are invited and an open and transparent selection is conducted. The system of Judges appointing themselves prevalent since 1993 has meant, with great pain we have to point out, monopolizing the august office of Judges of the higher judiciary by the 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. Certain families have monopolized the higher judiciary with even five members from one family, with sons and nephews in the same High Court, and some former Judges securing elevation of all his juniors. Judicial appointments conducted in an opaque and cabal manner meant it being the monopoly of the kith and kin of those mentioned above. It meant the concept of diversity being completely jeopardized; it meant inbreeding. Even in the animal and plant kingdoms nature abhors inbreeding. Diversity of DNA is the sole guarantee against extinction. It is the diversity of DNA which offers strength to animals and plants to defend from viral and bacterial attacks. There are certain plant varieties where inbreeding is prevalent, but many such varieties are extinct.
4. We, campaigners, even in our wildest of dreams do not intend to cause any aspersions on the competence or eligibility of any of the Judges of the Supreme Court or High Courts who are kith and kin of Judges and others. They are men of impeccable integrity, sterling character, great erudition, intellect, patience and wisdom. We literally worship them. At the same time, in all humility, we maintain that had the judicial appointments been made in an open and transparent manner, there would have been far greater diversity and the Supreme Court would have many Krishna Iyers. Today we have the very best Judges, but had there been an open system which allowed diversity, we would have attained still higher degree of excellence when it comes to the quality, competence, philosophy, wisdom, knowledge and erudition. India today is not what it was in the late 1940s when the Constituent Assembly debated appointment of Judges; India today is not what it was in 1993 when the Judges-2 case was decided; India today in 2015 is very different. We live in the electronic era. Ninety nine per cent of the population of the country feels devastated by the NJAC judgment. Except S/Shri Fali S. Nariman, Rajeev Dhawan, Anil Diwan, a few lawyers in the corridors of the Supreme Court and a few other disgruntled men opposed to the Modi Government, who mistakenly think that the NJAC is the Modi Government’s brainchild, the rest of the country hail the NJAC.
5. The judgment of the Supreme Court in the NJAC case running into more than 1000 pages means that what legislative or administrative policy the country should adopt could not be decided by the 125 crores people of this country through their elected representatives, but by four Hon'ble Judges of the Supreme Court because legendary Fali Nariman and company have persuaded them to think that the people of this country are not mature enough to decide what is good for them, that Judges alone could decide what is in the best interest of the people and that the wisdom of the Judges prevails over the wisdom of the people. The judgment in the NJAC case is a monologue, a narration of one side of a coin. The consequences are frightening; in the name of a concept called “basic structure”, which has been reduced to nothing but to be a structure made of wax which can take shape in whatever form the Judges like to mould it by their interpretative exercise, a manifestly absurd proposition that the people of this country cannot enact a law providing for a mechanism for appointment of Judges to the higher judiciary with participation of the civil society has been propounded. Look at the absurdity in another case where the Supreme Court held that establishment of the National Tax Tribunal will violate the basic structure.Now, to bring some minor changes to set up a Tax Tribunal to bring in existence a Judicial Commission, nothing short of a revolution is an option.
6. The judgment in the NJAC case, on the face of it, is absurd, we must say with utmost respect, nay, great pain and agony. The Judges cannot be blamed entirely; the blame primarily lies with the Attorney General. The campaigners had in the open Court, so too by repeatedly writing to the Attorney General, the Hon'ble Prime Minister, the Hon'ble Law Minister et al, requested that the following fundamental issues be raised, nay, the very non-maintainability of the Writ Petition be raised. Had the following issues been raised, the Supreme Court would have passed a different judgment, one upholding the NJAC. The issues are:
a) Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are non-justiciable; the said Acts being matters of executive and legislative policy. The said Acts, even in the wildest of imagination, cannot be said to violate the fundamental or legal rights of any citizen, not even an Association, for, no legal or fundamental rights are violated and no petition under Article 32 of the Constitution could be maintained. Where there is a legal injury, there is a remedy, and where there is no legal injury at all, nobody could seek any legal remedy.
b) The nonsense petition, a so-called PIL, at the hands of the Supreme Court Advocates on Record Association (SCAORA) is no PIL at all, for, a PIL to be maintained there should be a “person aggrieved” or a group of persons and they out of their poverty, ignorance, illiteracy and similar disadvantages are unable to institute a petition on their own. SCAORA is not an Association with such incapacities to institute a petition by itself. Therefore, the PIL filed by them is not at all a PIL, but a Writ Petition, which could have been maintained if it could claim that any of its fundamental rights is violated, but it had not pleaded so.
c) Who is the real person aggrieved? SCAORA has named none. Assuming it to be the 125 crores people of India, including us, the campaigners, who authorized it to file a PIL? Unquestionably, none.
d) The judgments in Judges-2 and Judges-3 cases were void; it meant rewriting of the Constitution; the said judgments were rendered per incuriam. Only the Parliament in its constituent power could do so and not the Supreme Court in exercise of its power of construction or interpretation. If a judgment on its very face is contrary to the Constitution, it is the Constitution which will prevail and not an erroneous judgment, like the judgments in Judges-2 and Judges-3 cases, which are required to be declared as one rendered per incuriam.
e) Under Article 141 of the Constitution, the Supreme Court does not lay down the law of the land. The concept that the Supreme Court lays down the law of the land is a misconception, though deep rooted. A judgment of the Supreme Court is only a stare decisis or a precedent; it is binding only between the parties to the lis and for the rest of the world it is a precedent, not law of the land stricto sensu, and only the Parliament can declare the law of the land.
7. As could seen from the above, the people of the country lost the NJAC case, for, the case was after all SCAORA v. “We, the people”, because the learned Attorney General and his team failed to raise even the preliminary objection as to the maintainability of the PIL by SCAORA. Had they raised the said plea and lost, then it would have been a different thing. The learned Attorney General and his team, instead, conceded the maintainability of the petition. The very same mistake Mr. Parasaran did in Judges-2 case where he did not at all question the maintainability of the PIL at the hands of SCAORA.
8. What is the way ahead? The Hon'ble Judges have posted the case on 3rd November, 2015 for further hearing to find out ways and means to improve the collegium system. But that is no remedy; it is an exercise in futility, if we were to quote Horace: “parturient montes, nascetur ridiculus mus” – mountains will be in labour, and an absurd mouse will be born (all that work and nothing to show for it). The Judges are honourable men and certainly they would be too willing to introspect and accept that they have erred, if they are convinced. If the learned Attorney General could do that, the nation will be indebted to him. But the question is whether his ego will permit him to graciously accept his Himalayan blunder in failing to raise the preliminary issue in spite of our having begged with him to raise it. The Government should file a review petition. The Hon'ble Judges too will take notice of the fact that the euphoria of 16th October, 2015 when the sycophants hailed the NJAC judgment has vanished; as days pass by, there is greater and greater criticism of the judgment. Ordinary people, law students, ordinary lawyers, Judges – sitting and retired – and the informed public at large have come forward to ventilate their anger, frustration and disillusion of a much needed reform in the realm of transparency and accountability being allowed to be reduced to a dust. These campaigners, ordinary people, raise their concern in anguish in the total reluctance of the higher judiciary to accept the aspirations of Young India of the electronic era for a transparent judiciary. They feel that Judges are against everything in the realm of transparency and accountability, be it video-recording of Court proceedings, be it declaration of assets by them, be it right to information. We part with the words:
“Our beloved Prime Minister, Hon'ble Shri Narendra Modiji, we, the people of India, the common men, who have elected you to power, demand greater transparency in higher judiciary, video-recording of Court proceedings, declaration of assets by Judges, right to information and open and transparent selection of Judges to the higher judiciary.”
We mean no confrontation with the Judges. The Government should try to achieve its goal in such a way as not to give any impression that it is on a confrontation with the judiciary. We, campaigners, are no confrontationists; we respect the judiciary; we stand by the judiciary; we believe the judiciary is the guardian and protector of the lives and liberties of the citizens; we salute the judiciary for the yeoman services it did for the country over the last 55 years. There were some wrong decisions like the instant one, but they are all exceptions.
9. Institute a review petition in the Supreme Court against the NJAC judgment; salvage the NJAC even if it means replacing the learned Attorney General whose failure to even raise the preliminary issues of non-justiciability and non-maintainability of the PIL, is primarily responsible for the NJAC case being lost.
With respectful regards,
Yours sincerely,
(Mathews J. Nedumpara)
President
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)
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
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