REVIEW PETITION (CIVIL) NO. OF 2015
WRIT PETITION (CIVIL) NO. 13 OF 2015
Supreme Court Advocates – on – Record
Association andanother … Petitioner
Versus
Union of India … 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.
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
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 thedelegatees/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 Chelameswarin 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 ShriFaliNariman, 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:-
(a) 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;
(b) 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:
(i) Transparency
(ii) Collegium Secretariat
(iii) Eligibility Criteria
(iv) Complaints
(c) That the requirement to hear the public at large was before the
case was heard and decided and not subsequent thereto; and
(d) 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 FaliNariman and his
colleagues, each of which is against the first principle of constitutional law, in
challenge of the impugned Acts:-
(i) 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
KesavanandaBharativ. the State of Kerala (1973)Supp. SCR 1,
Minerva Mills v. Union of India (1980) 2SCC 591, WamanRao 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.
(ii) The distinguished FaliNariman and other legal luminaries
contended that in KesavanandaBharati 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. ShriFaliNariman 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 KesavanandaBharati,
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 ShriFaliNariman 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.SCAORAdid 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 FaliNariman 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 KesavanandaBharati? 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/ShriParasaran, 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.Sublatofundamento, 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:
a) 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 as so how to improve the
collegium system which the five judge constitutional bench in its
judgment dated 16/19/2015 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 BY FILED BY
(A.C.Philip) (Mathews J.Nedumpara)
Advocate Party in person
New Delhi,
Drawn on :
Filed on :
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