IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO. OF 2015
(DIARY NO.___________/2015)
IN
WRIT PETITION (CIVIL) NO.124 OF 2015
BETWEEN
Mathews J. Nedumpara. …PETITIONER
AND
Supreme Court of India
Through its Secretary General & Ors. …RESPONDENTS
affidavit
I, Mathews J. Nedumpara, Advocate and the Petitioner-in- Person in the above Writ Petition, do hereby solemnly affirm and state as follows:-
1. I am constrained to swear to the instant affidavit, which constitutes to be evidence in support of the accompanying application, seeking recall/review of the order dated 19th November, 2015 passed by this Hon'ble Court on concluding the hearing of the Petitioners in the above Writ Petitions, which were disposed of by the common judgment and order dated 16th October, 2015, and the public at large on the ways and means to improve the collegium system which this Hon'ble Court was pleased to hold to have failed in toto and which is purported to have been restored/revived as a fallout of the judgment dated 16th October, 2015 holding the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short) as unconstitutional and void. This Hon'ble Court by its order dated 19th November, 2015 was pleased to observe as above, namely, that pending further orders in terms of the hearings held on 18th and 19th November, 2015 after inviting suggestions and opinions as to the ways and means by which the collegium system, an offspring of the judgments in Judges-2 and Judges-3 cases, could be improved, the said system would stand restored/revived.
2. It is only appropriate to state here that I was constrained to file Review Petition (Diary No.36948/2015) seeking a declaration that the judgment dated 16th October, 2015 is rendered per incuriam and is void ab initio; that the aforesaid Acts are constitutional, for, the said enactments are non-justiciable, they being in the realm of legislative policy; that by no stretch of imagination the said Acts can ever be said to violate the fundamental or legal rights of anyone, except the Chief Justices of the High Courts, so too the Hon'ble Judges of the Supreme Court, who might consider their incumbency as the Chief Justice/Judge of the High Court or of the Supreme Court invest a right in them for elevation as a Judge of the Supreme Court or the Chief Justice of India, as the case may be.
3. In the above Writ Petition, while I having marshalled my little mite in support of the aforesaid Acts, pleading that the said Acts are in the realm of legislative policy which is not justiciable, for, none could ever claim that his or her fundamental right is violated thereby, the Writ Petitions in challenge of the said Acts are without any legs to stand because no PIL could lie unless there exists a person aggrieved who is unable to institute a petition to enforce his remedy out of his illiteracy, poverty and other disadvantages or a determinative class of persons; and that the said legislations reflect the need/will of the people because the legislature alone is presumed to know the deficiency or mischief from which the then prevailing system of appointment of Judges by the mechanism of collegium suffers and the said Acts are the remedy which the Parliament in its constituent power has prescribed to undo the deficiency or mischief in the matter of appointment of Judges, and the Courts are duty bound to respect the will of the people reflected through the aforesaid enactments which have received the unanimous approval of both the Houses of the Parliament, with the sole exception of a lawyer-turned-politician, so too have received the assent of 28 Legislative Assemblies. The Constitution Bench, however, in its judgment running into 1040 pages failed to make even a reference to the said pleas. As far as my petition WP(C) No.124/2015 is concerned, whereby I have sought a declaration that the judges-2 & 3 cases are void abinitio, nay rendered per incurium and that Presidnet of India is liable to make appointments in terms of Article 124 and 217, un-influenced by the judgments in judges-2 & 3 cases which are void, that the vacancies be notified, applications from all eligible candidates be invited, an open and transparent selection be made, since, the office of the judges of the superior courts being a public office to which article 14 and 16 of the Constitution are applicable, nay imperatively, at least to briefly mention what were the pleas I have made in my case and too deal with them offering reasons for either accepting or rejecting the same, this court in its judgment dated 16/10/2015, I must state with utmost pain and anguish that this court failed to even mention a word as to what the prayers in my case were, what were the contentions I raised castigating the judges 2 & 3 cases, the collegium an affspring thereof, so too the contentions I put forward in support of the NJAC and questioning the very justiciability/maintainability of the challenge against the Constitution (99th Amendment ) Act,214, so too the NJAC Act,2014, which Ld.Attorney Genera so too legal lumineries, representing the state Governments, failed to raise, to do so was their bounden duty. I had further pleaded that the judgments in Judges-2 and Judges-3 cases are void ab initio and rendered per incuriam, the said judgments being no judgments interpreting or construing Articles 124 and 217 of the Constitution concerning appointment of Judges of the Supreme Court and High Courts but meant rewriting of the Constitution under the disguise of interpretation. I have supported the said enactments apart from the constitutional jurisprudence but for the practical reason, as well, producing along with my Writ Petition a progeny syndrome chart in support of my plea that the mechanism of Judges appointing themselves, a creation of the Judges-2 and Judges-3 cases, has meant the office of the Judges of the Supreme Court and High Courts being monopolized by the kith and kin of sitting and former Judges of the Supreme Court and High Courts, Chief Ministers, Governors et al and the so-called doyens of the Bar who are in the forefront in challenge of the said Acts, a make believe that by the said Acts by which the monopoly of the collegium system is sought to be whittled down a bit amounts to interference with the independence of the judiciary. The said enactments, which reflect the will of the people, are only a small measure in the province of bringing into some element of transparency, so too participation of the civil society, in the matter of appointment of Judges to the higher judiciary.
4. I had at the very outset, pointed out that the PILs in challenge of the said Acts are not justiciable and, on the contrary, even if they are assumed to be justiciable then the constitutionality of the challenge so raised cannot be decided without notice to the public at large which includes political parties, Bar Associations, Bar Council of India, to mention a few. However, I was not allowed to raise my pleas; I was shot down. Whenever I rose to assert that the justiciability of the PILs should be decided first, that if the same is justiciable then every citizen of the country is entitled to be heard, and that if it is a PIL then every citizen is in the status of a Petitioner, to repeat, I was silenced. I attended the hearing of the NJAC case right from the beginning, every day, though it was manifest that only one opinion, namely, an opinion in support of the challenge on the vires of the said Acts is welcome and it always appeared to me, though I could be wrong, that the legal luminaries who came in large number in challenge of the said Acts, nay, even those who are supposed to be in defence of the said Acts representing the Union of India and various State Governments, all, to please the Hon'ble Judges kept on asserting and asserting propositions which are against the basic concept of democracy, separation of powers, equality before law, nay, equality in the matter of public appointments; that Judges alone are empowered to interpret the Constitution and the interpretation so given is the law of the land, while within the meaning of Article 141 the opinion of the Supreme Court on a question of law will only constitute to be a ratio decidendi, a precedent, which is binding on all Courts and Tribunals, provided it is rendered per curiam and not per incuriam; that judicial primacy, which later metamorphed into judicial supremacy, as the basic structure of the Constitution and their such arguments, which could curry favour with the Hon'ble Judges, for, Judges after all are men with all frailties like common citizens, resulted in the judgment dated 16th October, 2015. It was the duty of the learned Attorney General (AG), and he was repeatedly requested to raise the plea that the whole challenge on the said Acts founded on the doctrine “basic structure” is a superstructure built on sand, for the concept of basic structure could be invoked only where a challenge is made on the Constitution amendment on the premise that it is in violation of the fundamental rights. In Kesavananda Bharati v. the State of Kerala (1973) Supp. SCR 1, it was held that every Article of the Constitution, including those concerning fundamental rights, could be amended, but such amendment should not mean total abrogation of the Constitution, meaning thereby that the abridgment of the fundamental rights even by a Constitution amendment has some limitations. The learned AG, however, did not at all raise the plea that the challenge of the said enactments on the premise of violation of basic structure has no legs to stand, for, the Petitioners in the PILs have no plea that the said enactments are in violation of the fundamental rights of the Petitioners or any person or any determinative class of persons.
5. This Hon'ble Court did not afford me a reasonable hearing, though as a Petitioner I am entitled to present my case, even while it has heard senior lawyers in support of the challenge to the said Acts though they had not instituted any petition at all. Section 23 of the Advocates Act, which I beg to quote infra, has led to a situation where the Supreme Court is literally under the monopoly of lawyers designated as Senior Advocates. As a Petitioner appearing in person, I was entitled to be heard. I was granted only 20 minutes to argue and before I could expand my contention that the PILs are not maintainable; that the question of basic structure has no application, for, it could come into play where there is an allegation of violation of fundamental rights, guillotine was applied. All that I was permitted was to supplant my arguments which was aborted at the very beginning itself, as aforesaid, by submitting an argument note. I gave a detailed argument note raising all the aforesaid contentions, but in the judgment dated 16th October, 2015 there is not even a whisper about my petition, not to speak of what I had argued, so too the issues raised in the argument note. It was in the above background that I had to file an application (Diary No.36948/2015) for review of the judgment dated 16th October, 2015. As aforesaid, the said review application was for a declaration that the judgment dated 16th October, 2015 is void; so too the further hearing which was scheduled to be held on 3rd November, 2015 as to the ways and means by which the collegium system could be improved.
6. Accordingly, on 3rd November, 2015 when the above cases were listed for further hearing, I brought to the notice of this Hon'ble Court that my application for review as aforesaid has been instituted and, therefore, it is the said application which is to be heard first before the matter could be further heard as to the ways and means by which the collegium could be improved. I beg to say with utmost respect that the said plea was not heeded to and this Hon'ble Court went on to hear the lawyers appearing on both sides. At this juncture I intervened and pointed out to the Hon'ble Court that even assuming that the exercise of hearing parties on both sides as to the ways and means by which the collegium system could be improved, which meant this Court exercising the power of legislation, then the real stakeholders, the people at large, be heard and not merely the elite lawyers, the so-called legal luminaries occupying the front two rows of the Court Hall. This Hon'ble Court was pleased to accept the said proposition, though it was not recorded, and accordingly caused notice to be issued to the public at large inviting suggestions from them. This Hon'ble Court, however, was pleased to limit suggestions from the public on four areas, namely, (i) Transparency, (ii) Collegium Secretariat, (iii) Eligibility Criteria and (iv) Complaints. In other words, this Court did not give a free hand to the public to make suggestions on the question as to how the appointment of Judges to the higher judiciary ought to be made – whether by the mechanism of NJAC and, if it is so, what is the nature of improvement which the public would consider appropriate, but, instead, to make it an acceptance of the public at large of the collegium system as a fait accompli and the means alone by which the collegium system could be improved. In other words, what the Court thought for was not a referendum as to whether the public would prefer the NJAC or the collegium. With utmost respect, the Court chose to predetermine the collegium as the only mechanism by which Judges could be appointed and took the acceptance of the public as a fait accompli and then sought the approval of the public at large on the collegium system of appointment, which is neither comprehended by the Constitution nor by any law of the land, but the choice which the Judges made all on their own. The only parties who are participants to the collegium system of appointment of Judges are the legal luminaries who occupy the front rows of the Court Hall who enjoy the privilege of pre-audience over other lawyers and the learned AG who failed to assert the exclusive jurisdiction of the Parliament to enact laws, including the power to amend the Constitution and conceded usurpation of the constituent and legislative powers invested in the Parliament by the Court. The Judges-2 case meant rewriting of the Constitution and creation of the collegium system which is amendment of the Constitution and the learned AG conceded such usurpation of the jurisdiction by this Hon'ble Court by stating in express terms that the Government of India is not seeking review of the judgment in Judges-2 case.
7. This Hon'ble Court, as aforesaid, by its order dated 3rd November, 2015 invited suggestions from the public at large as to the ways and means by which the collegium system could be improved, though the option given to them was restricted as above. More than 3,000 persons responded and their suggestions ran into thousands of pages. Thereafter this Hon'ble Court heard the lawyers on both sides, so too almost a dozen lawyers like me who in unmistakable terms expressed their total disapproval of the whole exercise, namely, the failure of the learned AG to raise the question of justiciability of the challenge to the Acts, his participation in the exercise of this Hon'ble Court, as aforesaid, in inviting suggestions from the public at large, which was nothing but an exercise in the realm of legislation. I made it expressly clear that I considered that the judgment dated 16th October, 2015 is void ab initio; so too the further hearing contemplated therein to hear the “legal luminaries” as to how the collegium system could be improved; so too the order dated 3rd November, 2015 inviting suggestions from the public in a truncated manner, as aforesaid, all beyond the jurisdiction conferred on this Hon'ble Court under Article 32 of the Constitution, which is neither executive nor legislative, as a Court which adjudicates disputes involving enforcement of fundamental rights.
8. This Hon'ble Court having sought suggestions from the public at large and they having responded in an overwhelming manner, as aforesaid, and thereby there happened to be a great wealth of suggestions and opinions as to the manner in which Judges of the superior Courts are to be appointed, which was what this Hon'ble Court by its order dated 3rd November, 2015 has sought for, was duty bound to pass certain orders as to how it would consider improvement of the collegium system. By order dated 19th November, 2015 this Hon'ble Court passed an order reserving the case for further orders on the suggestions and opinions from the public at large and further hearing on the ways and means to improve the collegium system, which was held on 18th and 19th November, 2015. A copy of the order dated 19th November, 2015 is produced as Annexure “A”. However, in the said order this Hon'ble Court made it clear that the collegium of the Supreme Court will be free to make further appointment of Judges. Nothing could be more calamitous and unthinkable, destined to cause irreparable damage to the institution of judiciary, nay its very death knell than the said order inasmuch as it meant restoration of the collegium system which even this Hon'ble Court in its judgment dated 16th October, 2015 had found to be opaque, arbitrary and having miserably failed to achieve the laudable purpose of appointing the very best tot the highest judicial office of this country. If collegiums were to continue appointments, the large number of Chief Justices and judges of the High Court, which constitute to be primary if not the only source, nay pool from which elevation to this court is to be made to the exclusion of, who are far more competent eligible and deserving, the country will be deprived of the very best of talent as judges of the Supreme Court. Even in animal and plant kingdom, the nature does not permit in breeding for if inbreeding were to be permitted the species would have lost its vital DNA to protect it against from diseases, nay the very extinction of the species. Therefore to allow further appointments to be made by recourse to the collegiums system will do irreparable damage to the institution of the superior judiciary, it being deprived of its vital DNAs to protect itself from the vices of nepotism, favouritism, corruption and all sorts of malpractices. The fact that 95% of the revenues of the legal profession, an industry today, is monopolized by 5% of the creamy layer of the lawyers, the vast majority of them constitute to be designated layers are the kith and kin of the former and sitting judges so too of the so called legal luminaries, speaks volumes about the great need and urgency in ensuring that the appointment to the Supreme Court and high Court is no longer be allowed to be monopolized by the creamy layer of the lawyers and it is open to equally and more deserving lawyers from humble backgrounds, with godfathers and family connections, the first generation lawyers who constitute to be great majority of the legal fraternity . The great damage which is all likely to be caused to the national interest if persons who are undeserving if appointed to this court, so too in the various high courts by recourse to the collegium which has allowed private interest, kinship and friendship and other extraneous considerations to prevail over national interests, the injury thereby to be done to the national interest can in no way be repaired. What ought to be primordial in the appointments of judges are of the national interest, and not the primacy and supremacy of the judiciary, a concept which is an affront to reason and the very basic tenants of democracy. If the order dated 19th November, 2015, making it clear that the collegium can continue to make appointments, is not recalled, it will mean death knell of the Indian judiciary. Hence, the accompanying application.
Solemnly affirmed at Delhi ]
on this the 02nd day of December, 2015.] Petitioner
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO. OF 2015
(DIARY NO.___________/2015)
IN
WRIT PETITION (CIVIL) NO.124 OF 2015
BETWEEN
Mathews J. Nedumpara. …PETITIONER
AND
Supreme Court of India
Through its Secretary General & Ors. …RESPONDENTS
(full cause title)
APPLICATION FOR RECALL OR REVIEW OF THE ORDER 19th november, 2015 PREFERRED BY THE Petitioner.
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
PRAYER
MOST RESPECTFULLY SHEWETH
For the reasons stated in the accompanying affidavit and those to be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court be graciously pleased to:
recall/review its order dated 19th November, 2015 passed in the Writ Petition(C) No.13/2015, in the above writ petition, so too in the connected PILs to the limited extend that this Hon’ble Court while adjourning the aforesaid cases, sine die, for pronouncement of orders after having heard even the public at large, in a sense, as to the ways and means by which the collegiums system of appointment of judges in vogue since 1993, which this court was pleased to hold to be opaque, non transparent, nay, has failed to achieve the noble cause of securing the appointment of the best of the talent available as judges, could be improved, in so far as, as if to make the very hearing it had conducted to improve the collegium to be frustrated, happened to make it clear in the order date 19/11/2015 that the “collegium” of this Hon’ble Court shall be free to make appointments of the judges in as much as the said clarification will amount to the death knell of the Indian judiciary for by the said observation this court has authorised though indirectly, may be even non consciously the collegium to make selection, nay, to make appointments, by recourse to the very same failed mechanism of collegium which is certain to cause irreparable damage to the institution of judiciary;
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
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