The Petitioner is a
citizen of India. He was enrolled as an
Advocate in the year 1984 with the Bar Council of Kerala and has been in active
practice since then. The Petitioner begs
to state, even at the risk of being misunderstood to be praising himself, that
during his practice as a lawyer over three decades, he has had occasion to deal
with almost all branches of law in the different Courts in the country. Currently he appears in the High Courts of
Bombay and Chandigarh and, of late, in the Supreme Court of India, as
well. The Petitioner, therefore,
considers himself to be eligible to apply for the august office of the Judge of
a High Court of the country or of the Supreme Court, while in all humility
concedes at the same breath with least hesitation that the authorities invested
with the power of selection and appointment of Judges under the Constitution of
India may find him ineligible for the post, which fact or finding he is too
willing to accept with great grace.
2. The Petitioner, who is leading a campaign
titled National Lawyers’ Campaign for Judicial Transparency and Reforms, has
observed since the judgments of the Supreme Court in Judges-2 and Judges-3
cases that selection and appointment of Judges to the Supreme Court and High
Courts have largely been of the elite class of lawyers, namely, 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. The Petitioner, with great amount of pain,
begs to further submit that Judges so appointed, who constitute to be the super
elite class among lawyers, in turn appointed their kith and kin, relatives and
friends as Senior Advocates. The fallout
thereof is disquieting. The sons and
daughters of common men, taxi drivers, teachers, farmers, small traders and venders
those in the private and public sector in the lower rungs, who constitute to be
98% of the legal fraternity, have no place anywhere near the higher echelons of
judicial office. However, there a few
exceptions and the world know the reasons, the Godfathers and the connections
they had. With the Bench and the Bar,
the latter for all practical purposes means the elite class of lawyers
mentioned above, literally being under the monopoly of the elite upper class
meant another class, a miscellaneous or lower caste, of lawyers who are literal
untouchables in the sanctum sanctorum of the Temples of Justice. Casteism in the legal profession, though not
on the lines advocated by Manu, is a reality.
The Petitioner believes that he has no reason to hesitate to admit that
he belongs to the untouchable class of lawyers who have no Godfathers.
3. The Petitioner is no great
admirer of the system which was in prevalence prior to 1993 when the executive
appointed Judges of the higher judiciary in consultation with the Chief Justice
of India (CJI) in the case of the Supreme Court and the Chief Justices of the
High Courts in the case of High Courts.
But the collegium system, an offspring of the judgments in Judges-2
and Judges-3 cases, a mechanism to insulate judicial appointments uninfluenced
by extraneous considerations and to secure appointment of the most deserving,
has, far from achieving the said goal, led to oligarchy, to borrow an
expression of legendary Justice Krishna Iyer, who was the greatest critic of the
collegium system. The painstaking study
undertaken by the Petitioner of the judgments in Judges-1, Judges-2 and Judges-3
cases, so too the judgment of the Full Bench of the Supreme Court in Kesavananda
Bharati v. the State of Kerala (1973) Supp. SCR 1, made him
realize that the judgments in Judges-2 and Judges-3
cases are rendered per incuriam and the judgment in Kesavananda Bharati, though one elevated to the status of Bible
and Bhagwat Geeta and therefore of which no criticism could be made, is a judgment
against the basic tenets of jurisprudence, and the judgments
in Judges-2 and
Judges-3 cases, to a large extent,
are the products of the mischief of the purported ratio of Kesavananda
Bharati. The Petitioner also realized that the sole
reason for the national calamity, which the judgments in Judges-2
and Judges-3 cases are, is the admission of locus standi as to the
maintainability of Judges-1 case and the concession made by the then Attorney
General in Judges-3 case that the Government of India is not seeking a review
of the judgment in Judges-2 case as “the law of the land”. The Petitioner accordingly instituted a Writ
Petition, namely, Writ Petition No.214, in the Supreme Court in the month of April,
2014 seeking a declaration that the judgments in Judges-2 and Judges-3 cases are
void; that the appointment of Judges has to be made in terms of the very text
of the Constitution; and that even if the judgments in Judges-2
and Judges-3 cases are to be held as good law, then also within the
ambit of the said judgments an open and transparent selection and appointment
of Judges by advertising the vacancies, inviting applications from public at
large is possible. The reliefs sought
for in the said Writ Petition are as infra:-
a)
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 29 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;
b)
declare
that Articles 124 and 217 of the Constitution, in spite of the judgments of the
Supreme Court in Judges-2 and Judgers-3 cases, remain in the statute
book and that the said judgments, in so far as they have meant tearing off of the Constitution in the name of
interpretation/construction of the said provisions, travel far beyond it and
are void and the constitutional provisions as framed by the Founding Fathers
and enacted into law continue to be in force and that it is absolutely possible
to make an open and transparent selection and appointment of Judges by
notification of the vacancies by advertisement and open selection pending
completion of the legislative process of amendment of the Constitution by
virtue of Constitution (121st Amendment) Bill, 2014 and enactment of
the National Judicial
Appointment Commission Bill, 2014 into a law;
c)
issue a
writ of mandamus or any other appropriate writ, order or direction, directing the
Respondents, particularly the Union of India,
the Hon'ble Chief Justice of India and the Hon'ble Justices constituting
the members of the collegium in the Supreme Court, the Hon'ble Chief Justices
of the High Courts and the Hon'ble Justices constituting the members of the collegium
in the High Courts to advertise the vacancies of the posts of Judges of the
Supreme Court and the High Courts, invite applications from all eligible
candidates as also recommendations and references from all stakeholders,
including the members of the Bar, Bar Associations, sitting and retired Judges,
leaders of political parties and NGOs, which will ensure a large pool from
which selection of Judges could be made, diametrically opposite to the small
pool of kith and kin of Judges and those mostly connected with the Judges who
constitute the collegium, as is the present practice, notify the names and
particulars of the candidates who are found eligible and selected, invite
objections, if any, from public at large so that appointment s in terms of Articles
124 and 217 of the Constitution of India are made possible, even while
retaining the mechanism of collegium, though the Petitioner in no way endorses
it, till the Constitution (121st
Amendment) Bill, 2014 and the National Judicial Appointment Commission
Bill, 2014 become laws, the former having received the assent of majority of
the States;
d)
issue a
writ in the nature of prohibition or any other appropriate writ, order or
direction restraining and prohibiting the collegium of the Supreme Court of India
headed by the Hon'ble Chief Justice of India; so too the collegiums of the High
Courts headed by their respective Chief Justices from making recommendation for
appointment to the august office of the Judges of the Supreme Court and the
High Courts in the cabal manner, as is the present case, without notification
of the vacancies by advertisement and inviting applications from all eligible
candidates, references and recommendations from the Members of the Bar, Bar
Associations, sitting and retired Judges and the public at large and without
making public the names of the candidates who are selected and further to
restrict and prohibit the Union of India from proceeding upon the
recommendations, if any, under process, one rendered in a cabal manner, till the
Constitution (121st
Amendment) Bill, 2014 is ratified by majority of the States and becomes
a law; so too the National Judicial Appointment Commission Bill, 2014;
e)
pass any such other order or
orders/directions as this Hon’ble Court may deem fit and proper in the interest
of justice.
4. While the said Writ Petition was pending,
the Government of India, in terms of the promise made by it in its election
manifesto of an open and transparent selection and appointment of Judges to the
higher judiciary, brought in the Constitution (121st Amendment) Bill, 2014 and the National
Judicial Appointment Commission Bill, 2014.
The said Bills were passed by both the Houses of the Parliament,
received the assent of the President of India on 31st Dec.2014 and
became the Constitution (Ninety-ninth Amendment) Act, 2014 and the National
Judicial Appointment Commission Act, 2014 (the Acts, for short). However, they were not notified. The Petitioner accordingly instituted Writ
Petition No.________ in the Supreme Court seeking a mandamus to the Union of
India to notify the said Acts, frame rules and thereby make open and
transparent selection and appointment of Judges, allowing the long cherished
dream of the people a reality.
5. In the meanwhile, certain elite class of
lawyers, the so-called legal luminaries, mesmerized the people of this country
and ordinary lawyers to believe that a judgment of the Supreme Court in a case
between A and B is not merely a precedent when a case between C and D involving
the same issues, but is the “law of the land”; that it is not the Parliament
which declares the law of the land, but the Supreme Court, and filed petitions
under Article 32 of the Constitution titling them as PILs, which later came to
be known as the NJAC case. PIL as envisaged
by the legendary Judges like
P.N. Bhagwati, Y.V. Chandrachud, V.R. Krishna Iyer et al, only meant
that where a person whose constitutional and legal rights are infringed and who
out of his poverty, ignorance, illiteracy and other disadvantages is unable to approach
a constitutional Court, any person acting pro bono publico can, without any
express authority from the person aggrieved, act on his behalf. PIL only meant relaxation of the concept of locus standi to make
justice delivery system accessible to the poor, illiterate and such
others. However, PIL, today, which one of the greatest propounders of the said benevolent
jurisprudence as it was originally understood, had been castigated to be
reduced to a “ravenous wolf in sheep's clothing”. Thus, though PIL was not meant to be a device to substitute
the executive and legislature by Courts and the Courts to act as if it is the
executive, legislature and judiciary, all at once, the legal luminaries and
some among them, who are accused of running a Rs.500 crore PIL industry, mesmerized the people of this country and ordinary lawyers and made
them to think otherwise.
6. To invoke the jurisdiction of the Supreme
Court under Article 32 of the Constitution, there must be a “person
aggrieved”. One could be said to be a
person aggrieved where his fundamental rights are infringed. The Acts in question, the Petitioner begs to
submit, cannot be said to infringe the fundamental rights of anyone, for, the
said enactments are enactments in the realm of executive and legislative policy,
which are wholly non-justiciable. Yet,
the Supreme Court Advocates on Record Association (SCAORA) instituted a Writ
Petition under Article 32 seeking a declaration that the said Acts are
unconstitutional without a plea that their or their members’ fundamental rights
are violated. The learned Advocate
General was duty bound to raise the plea of non-maintainability of the said Writ
Petition, for, to repeat, for maintenance of a PIL there must be a person
aggrieved and SCAORA and the Bar Council of India, the Petitioners in the Writ
Petitions, have not stated who is the person aggrieved; that the only persons who can be said to be
aggrieved are the Judges of the High Courts and the Supreme Court who could be said
to be invested with a legitimate expectation, an equitable right, for elevation
as a Judge of the Supreme Court or as the Chief Justice of a High Court, but
they were not Petitioners in the Supreme Court; that SCAORA and the Bar Council
of India have not made any assertion that the said Writ Petitions were
instituted on behalf of such Judges who could not have, on their own,
instituted them for enforcement of their fundamental rights; and that the
controversy raised in the said Writ Petitions were in the realm of executive
and legislative policy and therefore not justiciable. The learned Attorney General, like his
predecessors in 1981, 1993 and 1998, by failing to raise the fundamental plea
that the challenge to the said Acts is not maintainable, invited the judgment
dated 16th October, 2015 at the hands of the Five-Judge Constitution
Bench of the Supreme Court holding that the said Acts are unconstitutional.
7. “Brevity
is the soul of wit”, said Shakespeare.
The Petitioner begs to submit that the Five-Judge Constitution Bench in
NJAC case took notice of the fact that the collegium system has failed; that it
is imperative to improve it and exhorted that it is time for “glasnost”
(openness) and “perestroika” (restructuring), and accordingly it invited
suggestions from Bar Associations, legal luminaries and the ultimate
stakeholders, the public at large. The
public at large responded to the call of the Supreme Court in an overwhelming
measure, though they were given a few days and that too in the midst of the
2015 Diwali Holidays to submit their opinions and suggestions in the realm of (i)
Transparency, (ii) Collegium Secretariat (iii) Eligibility Criteria and (iv)
Complaints. With utmost respect the Petitioner begs to submit that the supreme
Court realized that inviting suggestions from the public is in the realm of
legislation, though it did not expressly say so, and when opinions and
suggestions running into 15,000
pages from thousands of people are received it is impossible to decide which
opinion should be accepted or rejected.
A copy of the main judgment is not produced and the Petitioner begs to
refer to it since it has been reported in ________________.
A copy of the order dated 05.11.2015 by which suggestions from the
public was sought is produced as Annexure
P-1.
8. As to be reminded of the words of Horace, parturient
montes, nascetur ridiculus mus, the Supreme Court, the
Petitioner salutes its sagacity and wisdom in realizing that the task of
inviting opinions and suggestions from the public at large as to the ways and
means by which the collegium system could be improved and acting upon those
suggestions is too cumbersome/onerous, by order
dated 16.12.2015 directed the Government of India to prepare a Memorandum of
Procedure for appointment of Judges to the higher judiciary in consultation
with the CJI. A copy of the
order dated 16.12.2015 is produced as Annexure
P-2.
9. The aforesaid Acts, by which a mechanism
for appointment of Judges of the higher judiciary by NJAC in substitution of
the collegium system, which has failed entirely and has resulted in oligarchy,
corruption and nepotism, were held to be unconstitutional by the judgment dated
16th October, 2015. The NJAC
was aborted and the collegium system is restored. The Government has not filed any petition
seeking review of the said judgment. The
only review petition is the one which has been filed by the Petitioner. The Petitioner in all humility concedes that
he is so inconsequential that his efforts to secure a review of the judgment
dated 16th October, 2015 and restore the NJAC is a near
impossibility. The Petitioner,
therefore, considers that it is only prudent on his part to accept the burial
of the NJAC as a fait accompli and to pursue some other feasible means to
secure the mandate of Articles 14 and 16 of the Constitution a reality.
10. The
august offices of the Judges of the Supreme Court and High Courts are public
offices of great esteem and sanctity.
Every lawyer, nay, every citizen of this country, who satisfies the
qualifications and criteria prescribed under Articles 124(3) & 217(2) of
the Constitution, is entitled to aspire for selection and appointment to the
said posts, and to be selected and appointed if the authorities invested with
such function find him eligible and suitable.
The Petitioner begs to submit that he commits no crime in harbouring a
thought that there should exist a system where he could also apply for and be
selected and appointed as a Judge, if eligible, and whether he is eligible or
suitable ought to be determined by certain eligibility criteria or standard
prescribed. It is the duty of the
authority invested with the power to make selection and appointment that it
makes such appointment in an open, transparent, non-arbitrary, just and fair
manner so that not merely the Petitioner but hundreds and thousands of lawyers
across the breadth and width of the country, who consider themselves to be
eligible for the post, are not denied their fundamental right guaranteed under
Articles 14 and 16 of the Constitution.
11. The
judgment dated 16th October, 2015 recognizes and holds that certain
rules or regulations ought to be made in the matter of selection and
appointment of Judges of the higher judiciary and accordingly invited
suggestions and opinions from the public at large identifying or confining to
four core areas, namely, (i) Transparency, (ii) Collegium
Secretariat, (iii) Eligibility Criteria and (iv) Complaints. If rules and regulations or Memorandum of
Procedure, no matter by what name it is known, no matter whether it is
statutory or non-statutory or merely executive, it is absolutely necessary that
its draft so made is made known to the public at large. The Petitioner is aged 57 years. Assuming that the age limit is fixed at 55
years, he may have a grievance. Assuming
that the age limit is kept at 60 years, he may not have any grievance. But the Memorandum of Procedure unfailingly
ought to prescribe the eligibility criteria, including the upper and lower age
limit, the income limit, though the Petitioner is against the same, etc. The most pointed accusation against the
collegium system of appointment is that it is absolutely cabal, which meant the
exalted office of the Judges of the higher judiciary being literally monopolized
by the kith and kin of Judges, and the vast majority of lawyers who have no
connections with the members of the collegium are left out; they do not even
come to know that vacancies of Judges are being filled up. The word
“invitation” is the most scandalous one, for, it has meant only the kith and kin of
sitting and former Judges of the Supreme Court and High Courts, celebrated
lawyers, et al being invited to occupy the august office. In other words, the greatest demand of the
legal fraternity, the civil society, the public at large, is that vacancies in
the office of the Judges of the Supreme Court and High Courts be notified,
invitations and references from all eligible be called for, the selection
procedure should be made wholly transparent, minutes of the proceedings of the
collegium be open to the public and in particular through the Right to
Information Act. The order dated 16.12.2015
by which the Constitution Bench directed the Government of India to frame a Memorandum of
Procedure in consultation with the CJI has not given any directions even in the
realm of notifying the vacancies and inviting applications/references from
eligible candidates. The Petitioner is
an ordinary Advocate; he has no connections with the higher ups; he knows
nothing about what happens in the higher echelons of power. But he is made to understand that the
Ministry of Justice, which has formulated or is formulating the Memorandum of
Procedure, has not included in it notification of the vacancies to the legal
fraternity, nay, the public at large, and invitation of applications/
references from members of Bar Associations and general public, though at the
hearing of the NJAC case the learned Attorney General, time and again,
reiterated that the Government is in favour of advertisement of vacancies and
open selection so too total openness of the method of selection and
appointment, and make the Right to Information Act applicable to it. The legal fraternity, nay, the public at
large, is kept in total darkness as to the ways and means by which the
collegium system could be improved, which should reflect in the Memorandum of
Procedure which is said to be under discussion with the CJI. The Petitioner is made to understand that the
Memorandum of Procedure has failed to translate the need of the hour, namely, “glasnost” and
“perestroika”, which will be achieved only if the following are
incorporated in the Memorandum of
Procedure in unmistakable terms:-
(i) Notification
of vacancies;
(ii) Invitation
of applications from lawyers who are considered to be eligible; so also
references from Bar Associations, lawyers and even public at large as to whom
they consider to be eligible and deserving;
(iii) Short-listing
of applications/references so received;
(iv) Notify
to the legal fraternity and the public at large the names which are
short-listed;
(v) Provide
for a mechanism for dealing with complaints against the names short-listed;
(vi) Provide
for the composition of the Collegium Secretariat;
(vii) Give
access to documents/minutes of the collegium, including application of Right to
Information Act, as well.
12. It is possible that the apprehensions
expressed by the Petitioner above that the Government is not considering
inclusion of the above points in the Memorandum of Procedure, that the
Memorandum of Procedure under preparation or which has already been prepared
means no tangible improvement of the collegium system, which was condemned by
all, may not be true, for, for the Petitioner cannot claim any sanctity to his
source of information, in which case this Writ Petition may become infructuous
and the Petitioner will have to seek leave of this Hon'ble Court to withdraw
the same. If, on the contrary, what the
Petitioner has heard from informal, not so reliable sources, is true and the
collegium system is restored without any improvement with no amount of “glasnost” and
“perestroika” and the same continues to be the cabal system as
before, then the Petitioner is entitled to seek a mandamus at the hands of this
Hon'ble Court directing the Government of India to incorporate in the Memorandum of Procedure the requirements
enumerated above, which will make the collegium system transparent and will
afford an opportunity to all those who are eligible and deserving to apply for
the post of Judges of the higher judiciary.
Hence, the instant Writ Petition.
GROUNDS
Grounds
in support of the reliefs sought for are fairly elaborated in the statement of
facts above and hence are not repeated.
The Petitioner respectfully submits that paragraphs 1 to 12 hereinabove
may be read and treated as the grounds in support of the instant Writ Petition.
13. Petitioner craves leave of this Hon’ble Court
to add to, alter, amend and/or modify any of the aforesaid grounds as and when
required.
14. The Petitioner states that he has no other efficacious
alternative remedy than to prefer the instant Writ Petition.
15. The Petitioner has not filed any other
Petition before this Hon’ble Court seeking such similar relief as being sought
in this Petition.
P R A Y E R
It
is, therefore, this Hon’ble Court may graciously be pleased to:
a)
issue a
writ of mandamus or any other appropriate writ, order or direction, directing Respondent
No.10, Union of India to incorporate in the Memorandum of Procedure, under
preparation or already prepared, for appointment of Judges to the higher
judiciary the following requirements, namely:
(i) Notification of vacancies;
(ii) Invitation
of applications from lawyers who are considered to be eligible; so also
references from Bar Associations, lawyers and even public at large as to whom
they consider to be eligible and deserving;
(iii) Short-listing
of applications/references so received;
(iv) Notify
to the legal fraternity and the public at large the names which are
short-listed;
(v) Provide
for a mechanism for dealing with complaints against the names short-listed;
(vi) Provide
for the composition of the Collegium Secretariat;
(vii) Give
access to documents/minutes of the collegium, including application of Right to
Information Act, as well.
b)
---------------------
c) pass
such other order or orders as this Hon’ble Court may deem fit and proper under
the facts and circumstances of the case.
DRAWN
& FILED BY
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