IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 212 OF
2016
IN THE MATTER OF
Adv.Mathews J.Nedumpara …PETITIONER
Versus
1.
The Supreme Court of India,
through its Registrar General & Others …RESPONDENTS
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA SEEKING DECLARATION AND OTHER RELIEFS.
TO
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE
PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH
1.1. 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, Delhi, Kerala and Punjab and Haryana 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 all humility and 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 vendors 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 are some
exceptions and the world knows 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. The 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 as well, 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 the 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- 1,2 and 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&2 cases 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-1,2 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 were as infra:-
i.
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;
ii.
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 appointments 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;
iii.
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;
While the said Writ Petition was
pending, the NDA Government 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 December, 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.124/2015 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.
4.
In the meanwhile, certain first class 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, the
PIL had been castigated to be a “ravenous
wolf in sheep's clothing” by none other than legendary Krishna Iyer, one of the very architects of the said
benevolent jurisprudence. 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, hypnotized
the people of this country and ordinary lawyers and made them to think
otherwise.
5. 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 Association 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 Association 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.
6. “Brevity is the soul of wit”, said Shakespeare. The Petitioner begs to submit that the
Five-Judge Constitution Bench in NJAC case (WP(C) No.13/2015 with WP(C) No.124/2015, JT 2015 (10) SC 1), 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 only 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 JT 2015
(10) SC 1. A copy of the order dated
05.11.2015 by which suggestions from the public was sought is produced as Annexure P-1 page at ( 45 to 52)
7. 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 page at (53 to 68).
8. 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. Hence this writ petition.
9. 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 of their fundamental right guaranteed under Articles 14 and 16 of
the Constitution.
10.
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 has serious reservations in fixing any income limit, 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, is in favour of 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,2005 applicable to it. The
petitioner, along with M/s. R.P. Luthra, A.K.De, A.C.Philip, Anjan Sinha, et all
, members of the National Lawyers’ Campaign for Judicial Transparency and
Reforms met the Hon’ble Minister of law and justice, seeking appropriate steps
at the hands of the Government to undo the great public injury which the
judgment of the Supreme Court in NJAC case constitute to be and in particular,
to the members of the legal fraternity, nay the posterity or the generations of
the lawyers to come, of equal opportunities in the matter of elevation to the
office of the judges of the High Courts and Supreme Court which undoubtedly is
high constitutional public offices, of which all citizens are entitled to have
an equal opportunity under Article 16 of the Constitution. The petitioner received a communication dated 23.02.201
from the ministry of Law and Justice on this. 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,2005 as well.
11.
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.
12.
The
petitioner is leading a national campaign titled “the national lawyers campaign
for judicial transparency and reforms’’ to secure greater Transparency and
Accountability in the higher judiciary. The campaign has as its primary agenda
to strive for, leaving no stones unturned, to secure an open and transparent
selection and appointment of the judges of the Supreme Court and High Courts.
Accordingly, a delegation of the lawyers Campaign met the Hon’ble union law
minister on 16th of February 2016 demanding that the Government of
India should seek a review of the judgement of this court in the NJAC. Suffice
is to say that the irresistible impression which the Hon’ble Minister, who
entertained the delegation which was led by this humble petitioner, so too, M/S.
R.P.Luthra and A.K.Dey, was that the Government of India is committed to the
cause of greater transparency and accountability in higher judiciary.
13.
Considering
the larger issue, the Petitioner, has instituted, the instant Writ Petition
under Article 32 of the Constitution of India before this Hon’ble Court, on the
following amongst other :-
GROUNDS
A. The judgment dated 16th October, 2015
in WP(C) No.13/2015 with WP(C) No.124/2015, (JT 2015 (10) SC 1) declaring the
Acts as unconstitutional is void inasmuch as the said judgment impinges the
basic structure of the Constitution; it is one rendered without jurisdiction
and in violation of the principles of natural justice since this Hon'ble Court
happened to assume to itself the jurisdiction to embark upon an inquiry as to
whether or not the wisdom of the Parliament, and that too in absolute
unanimity, except a sole Member in the Rajya Sabha, and ratified by more than
20 States, is questionable or not. This
Hon'ble Court happened to do so since the learned Attorney General conceded, as
has been recorded in paragraphs 75 and 76 of the lead judgment at the hands of
Hon'ble Mr. Justice Khehar, that the challenge raised by the Supreme Court
Advocates on Record Association (SCAORA) and others “could only be accepted, if
it was shown, that the Parliament while exercising its plenary power to amend
the Constitution, had violated the ‘basic structure’ of the Constitution.” At the cost of repetition, it may be stated
that in paragraph 76 of the judgment it was recorded that it has been asserted
by the learned Attorney General that “the only scope for examination with
reference to the present constitutional amendment was, whether while making the
aforestated constitutional amendment, the Parliament had breached, any of the
‘basic features’ of the Constitution.”
B. The entire challenge to the Acts made
in the Writ Petitions filed by SCAORA and others was founded on the spacious
premise that independence of judiciary is one of the basic structure of the
Constitution and in so far as the said Acts while enacting for NJAC, a
mechanism where under Judges will have no absolute monopoly in the selection,
appointment and transfer of Judges, will amount to impingement of the
independence of the judiciary, one of the most inalienable, transcendental and
primordial basic feature of the Constitution.
Stated in the simplest of simple words, the challenge to the Acts was on
the sole premise that independence of judiciary is at peril, nay, the basic
structure of the Constitution will be impinged; nothing more, nothing
less.
C. The doctrine of basic structure has
its foundation in the judgment of the Full Court of this Hon'ble Court in Kesavananda
Bharati v. the State of Kerala (1973) Supp. SCR 1. In Kesavananda Bharati, the
constitutionality of the Constitution (Twenty-fourth Amendment) Act, 1971 and
Constitution (Twenty-fifth Amendment) Act, 1971 was challenged on the premise
that the said amendments are violative of Part III of the Constitution, a
Chapter which deals about fundamental rights, of which the most pertinent is
Article 13 of the Constitution which declares that all pre-existing laws in so
far as they are in conflict with, so too all post-Constitution laws in so far
as they take away or abridge the rights conferred under Part III of the
Constitution, are void. In Kesavananda
Bharati the plea that the Constitution (Twenty-fourth Amendment) Act, 1971
and the Constitution (Twenty-fifth Amendment) Act, 1971 be declared to be void
because they violated the fundamental rights was not accepted. The said judgment, however, held that though
fundamental rights could be impinged by virtue of a Constitution amendment,
such impingement cannot be an absolute one, one which would totally take away
or eliminate the lives and liberties of citizens which are so sacrosanct and
could be construed to be the soul of the constitutional ethos. This Hon'ble Court while explaining the
proposition that the Parliament in exercise of its constituent power is
competent to curtail or limit the fundamental rights, keeping in mind the
directive principles of State policy, which has an equal position of prominence
in the constitutional scheme, held that it still shall not be entitled to
exercise its power of amendment in such a fashion as to totally destroy or
emasculate the Constitution or replace it with another. However, the doctrine of basic structure, on
the very face of it a proposition which none could find fault with, for, in Kesavananda
Bharati, so too in subsequent judgments of this Hon'ble Court, it was held
that republican democratic form of Government, Federal structure of the
Constitution, separation of powers, secularism, independence of judiciary, all,
constitute to be the basic structure of the Constitution, lost sight of the
fact that the doctrine of basic structure no way expands the horizons of the
concept of justiciability. Kesavananda Bharati invoked the jurisdiction
of the Supreme Court for enforcement of his fundamental right. The Supreme Court held that the Constitution
amendment, which was challenged, was valid, but it further held that the
Parliament even in exercise of its constituent amendment cannot take away or
completely destroy the fundamental rights.
D. The doctrine of basic structure in
itself is not justiciable. Nobody could
ever imagine to be invested with the right to come to a Court and seek a
declaration that a Constitution amendment or an Act of Parliament is void since
he perceives that the amendment or the Act impinges the basic structure. He or she needs to plead something more,
namely, that his or her fundamental rights are violated and the amendment or
the Act which has violated his or her fundamental rights is so drastic or
illegal that it not merely impinges his or her fundamental rights but it
completely destroys them. There thus a
violation of the basic structure of the Constitution and the Parliament in
exercise of its constituent power is not empowered to enact such a law can be
pleaded. Stated pithily, before and
after Kesavananda Bharati, to challenge the constitutional validity of a
Constitution amendment or an ordinary legislation there must exist a person
aggrieved and the person aggrieved must complain that by virtue of the
amendment or the legislation his fundamental right is violated. Kesavananda Bharati has, in fact,
contrary to the public perception, made the challenge on the ground of
violation of fundamental rights difficult, rather than easier. Kesavananda Bharati permits some
curtailment of fundamental rights. The
only bar is that such curtailment shall not be so drastic that it will
completely destroy the fundamental rights itself, for, the fundamental rights
constitute to be an inalienable, transcendental and primordial basic feature of
the Constitution. The Petitioner begs to
submit with utmost respect that in Kesavananda Bharati the Hon'ble
Judges went on to discuss the concept of basic structure of the Constitution
beyond what was required, which made the seeds of total misconception of the
said judgment blossom in the years to come.
In certain other judgments, namely, Minerva Mills v. Union of India (1980) 2 SCC 591, Madras Bar Association v.
Union of India, (2014) 10 SCC 1 and the NJAC case too, the fact that the
concept of basic structure was evolved with reference to a plea for enforcement
of fundamental rights was completely lost sight of and a new jurisdiction
founded on sand that a challenge to the constitutionality of a Constitution
amendment or an ordinary Act of Parliament will lie without there in existence
a person aggrieved and he claiming violation of his fundamental rights by
virtue of the Constitution amendment or the Act of Parliament, as in the
instant case.
E. Since
the question of the non-maintainability of the above Writ Petitions, nay, the
question of the constitutionality of the Acts on the premise that it violates
the basic structure without there in existence a plea that the fundamental
rights of SCAORA and other Petitioners have been violated by virtue of the said
Acts, which the Petitioner raised, happened to be, the Petitioner begs to
submit with utmost respect, not taken notice of by this Hon'ble Court, since
the Petitioner did not receive any support from the learned Attorney General or
the Solicitor General, though had the said plea been supported by them and was
taken to its logic end, this Hon'ble Court would not have rendered the judgment
in question holding the said Acts as unconstitutional and void, being violative
of the basic structure of the Constitution.
The learned Attorney General and the Solicitor General, by failing to
raise the fundamental issue of non-justiciability of the said Acts without
there in existence anyone claiming or complaining that his or her fundamental
right is violated and such violation amounts to infringement of the basic
structure of the Constitution within the meaning of Kesavananda Bharati,
have, the Petitioner begs to submit with utmost respect, “invited” this Hon'ble
Court to go into and examine the wisdom of the Parliament in enacting the Acts
and substitute its/ Court’s wisdom with that of the Parliament by holding that
there is no wisdom in enacting the Acts.
The failure/refusal to support the plea of non-maintainability of the
Writ Petitions by the learned Attorney General and the Solicitor General was probably
the most important factor which has led the said Acts being struck down at the
hands of this Hon'ble Court and this Hon'ble Court, with utmost respect,
substituting the wisdom of the Parliament with its own judgment and rewriting of the Constitution, nay,
endorsing the rewriting of the Constitution by virtue of the judgments in
Judges-2 and Judges-3 cases.
F. Sublato
fundamento, cadit opus – the foundation being removed, the structure
falls. This Hon'ble Court had no
jurisdiction at all to entertain the plea on the challenge to the Acts. To repeat, the said Acts are legislations on
constitutional policy in the matter of appointment of Judges, which is not
justiciable at all. The learned Attorney
General and the Solicitor General failed to raise the plea of
non-maintainability of the Writ Petitions, for, no Writ Petition under Article
32 could be filed unless the party invoking the said jurisdiction claims
violation of his or her fundamental rights.
It was their duty while representing the Government, nay, the 125 crores
people of this country, to assert that neither SCAORA nor the Bar Association
of India, nay, none of the Petitioners who had challenged the validity of the
Acts, has claimed that their fundamental rights are infringed; that no Writ
Petition under Article 32 could have been maintained without such a plea; that
the PIL is wholly not maintainable inasmuch as for maintenance of a PIL there
ought to be a person aggrieved and the person aggrieved out of his poverty,
ignorance, illiteracy and other similar disadvantages is unable to approach
this Hon'ble Court. It was the duty of
the learned Attorney General and the Solicitor General to point out that, where
there is no person aggrieved in existence whose fundamental or legal rights are
said to have been infringed, no lis exists and no Writ Petition under Article
32 could be filed. In other words, the
Writ Petitions are upon the validity of a law which provided for a new
mechanism for appointment of Judges to the higher judiciary, which is in the
realm of legislative or executive policy and which by no stretch of imagination
could be said to involve violation of any fundamental rights of any of the
Petitioners and, admittedly, none has claimed such violation. It was the duty of the learned Attorney
General and the Solicitor General to have pointed out that nobody could ever
come to the Supreme Court alleging that if a mechanism as under the impugned
Acts is created for appointment of Judges and where Judges are appointed in
terms of the said mechanism, the Judges so appointed would be subservient to
the executive, that they will ever remain loyal to the executive Government,
and that the person who has instituted or may have reason to institute a legal
proceeding in the High Court or supreme Court in future will not get fair
justice and thereby his fundamental right is violated because the Judges
appointed under the NJAC will remain loyal to the executive Government who had
a role in their appointment. No person
whose sanity cannot be put to question will ever venture to make such a plea
and the Petitioners who have challenged the Acts have not, thankfully, made any
such plea in their petitions or in the arguments by the distinguished of the
distinguished counsel in the country engaged by them.
G. The
judgment of this court dated 16.10.15
which is sought to be declared as violative of the fundamental rights of the
petitioner and thus unconstitutional in
fact is the Judges-5 case, though popularly known as the Judges-4 case, which
has struck down the Acts and restored the collegium, a mechanism whereunder the
Judges appoint themselves. The
Petitioner may be forgiven in putting it bluntly that the said judgment is
nothing but entering into the act of legislation as if the Supreme Court is the
Parliament, nay, in substitution thereof.
By the instant judgment, the judgment in Judges-2 case, which is nothing
but rewriting of the Constitution, a judgment rendered per incuriam and which
is void ab initio, is restored. The net
effect of the judgments in Judges-2, Judges-3 cases and the current case is
literal death of democracy, the unkindest cut of the concept of
separation of power at its very root, the Court assuming the role of both the
Parliament and the executive, all at once, as if it is the Parliament and
the executive, nay, in substitution thereof.
The judgments in Judges-2 and Judges-3 cases and the above petitions
have resulted in a ridiculous scenario where Articles 124 and 217 of the
Constitution are to be read diametrically opposite to what they state, which
has meant cutting the concept of judicial review at its very root. The question which now arises and for which
no satisfactory answer could ever be offered is that if the Court were to act
as the executive and the legislature, where will a person aggrieved, who
intends to seek judicial review of the executive or legislative action, go to
seek remedy. It is not the Acts which
impinge the so-called holy cow, the basic structure, but it is the judgments in
Judges-2 and Judges-3 cases and in the above petitions which have caused the
severest blow and irreparable damage to the concept of basic structure.
H. The
concept of basic structure is wholly misunderstood. It has been detailed above, but at the cost
of repetition it is submitted that nobody could ever be heard to invoke Article
32 on the premise that the basic structure of the Constitution is
impinged. He has to come with a plea
that the Constitution amendment or an ordinary law, whatever be it, results in
violation of his fundamental rights and the violation is so grave, is so
fundamental, that it is beyond the permissible domain of abrogation of the
fundamental rights that so long as the Constitution remains it cannot be
allowed to happen. Unless there is such
a plea, no writ under Article 32 will lie.
The Writ Petitions by SCAORA and the Bar Association of India and
others, so too the National Tax Tribunal case and the innumerable PILs where
busy bodies assume the role of the Attorney General and speak of public
interest are all instituted on a misconception of the doctrine of basic
structure and the concept of PIL.
I.
This Hon'ble Court listed the
above petitions on 3rd November, 2015 to device ways and means by which the
collegium system could be improved. With
utmost respect, the Petitioner begs to submit that the said exercise has no
foundation in jurisprudence, nay, constitutional law. This Hon'ble Court in doing so acted as if it
is the Parliament exercising its constituent/legislative power. Nobody could deny that Supreme Court today is
a fortress. An ordinary lawyer finds it
difficult to get entry; passes are restricted; no pass is issued to the general
public unless he is able to show that he has a case listed; assuming that a
lawyer or litigant who is interested in partaking in the deliberations of this
Hon'ble Court on 3rd November, 2015, he will not be able to enter the Court
Hall and if he is able to do so, he will not be heard. Distinguished of the distinguished lawyers,
with utmost respect and with an apology the Petitioner begs to submit, have
monopolized the right to audience. The
Petitioner with more than 31 years at the Bar, pursuing his Writ Petition with
great amount of zeal and fire, found himself difficult to be heard. The Petitioner was not heard in any meaningful
way. Had he been heard and allowed to
raise the question of justiciability of the issue, elaborated above, the
judgment in question would not have been delivered. The course of history would
have been different. The plea of
non-maintainability and non-justiciability is so important and even if it were
to be rejected, it ought to have been allowed to be argued and was required to
be rejected by giving reasons. The
judgment of this Hon'ble Court running into more than 1000 pages is silent
about it since this Petitioner was not really heard. When a party to a proceeding was not heard,
the judgment becomes null and void.
J. The judgment dated 16th October, 2015
is void ab initio since the Constitution Bench was disqualified from hearing
the case. When a Constitution Bench was
first constituted with Hon'ble Mr. Justice Anil R. Dave as the Presiding Judge,
the Petitioner had to seek His Lordship’s recusal with a heavy heart and great
amount of hesitation, but he did so because he felt that it was his duty to do
so. Thereafter the Constitution Bench was reconstituted with Hon'ble Mr.
Justice J.S. Khehar, one of the most respected, distinguished and erudite
Judges with heavenly qualities, as the Presiding Judge. The Petitioner had to seek His Lordship’s recusal
since he felt that if the Constitution Bench were to strike down the Acts and
give a new lease of life to the collegium system, then His Lordship, the
Petitioner begs to submit with utmost and great hesitation would be seen to
have, though wholly unwittingly it could be, struck down the Acts and given
rebirth to the collegium system, which was interred with its bones by virtue of
the impugned Acts, and becoming a member of the powerful collegium which
appoints Judges of the Supreme Court and High Courts. The fundamental principle, namely, nemo iudex
in sua causa or nemo debet esse judex in propria causa - no one can be judge in
his own cause – stands violated. It is a
fundamental principle that where a Judge is biased, even where such bias is
non-conscious, sub-conscious or unconscious, as in the instant case where His
Lordship Hon'ble Mr. Justice Khehar would not have even in the wildest of his
dreams ever thought of himself being a member of the collegium writing a
judgment so as to secure a place for himself.
With utmost respect, nay, with greater amount of hesitation, the
Petitioner begs to submit that had NJAC been in place, which certainly would
have been the position but for the judgment sought to be reviewed, Hon'ble Mr.
Justice Khehar as of today would not have any role in the appointment and
transfer of Judges, but since the NJAC is, if the Petitioner were to borrow an
expression from Shakespeare, “interred with its bones” by virtue of the said
judgment and since by a stroke of a pen the Constitution Bench could do so and
resurrect the collegium system, which is universally castigated to be an opaque
and non-transparent one, His Lordship Hon'ble Mr. Justice Khehar is part of the
collegium and His Lordship has a pre-eminent role in the appointment and
transfer of Judges of the Supreme Court and High Courts. The Petitioner is afraid to say that an
“informed onlooker”, nay, even an ordinary man, nay, the 125 crores people of
this country, may consider the judgment rendered by this Hon'ble Court as void,
being in conflict with the maxim nemo potest esse simul actor et judex – “no
one can be at once suitor and Judge”.
K. The doctrine of nemo debet esse judex
in propria causa – no one can be judge in his own cause – is equally applicable
for the entire Constitution Bench which heard the above petitions. It is incorrect to say that the plea of
recusal made by the Petitioner was confined to Hon'ble Mr. Justice Dave and
Hon'ble Mr. Justice Khehar. The
Petitioner tendered in the open Court a chart showing that a Bench of not nine
but eleven Hon'ble Judges, who will never be a part of the collegium nor of the
NJAC, for, they will superannuate before they could reach that position by
virtue of seniority, could have been constituted. The judgment at the hands of the entire Bench
is, therefore, vitiated by violation of the first principle of natural justice,
namely, nemo debet esse judex in propria causa, and is liable to be declared as
void.
L. The only saving grace in the
aforesaid judgment is acceptance of the fact of total lack of transparency,
opaqueness, oligarchy, nepotism and all sorts of vices where sunlight, which is
the greatest disinfectant, is not allowed to enter is taken notice of by
Hon'ble Mr. Justice Kurian Joseph quite eloquently in his judgment, concurring
though, so too by Hon'ble Mr. Justice Jasti Chelameswar, and the willingness of
the Constitution Bench to further the case on the question of ways and means by
which the collegium system could be improved.
The collegium is incapable of being improved, for, its shortcomings are
so fundamental and incurable. The
Petitioner considers that the following steps could go a long way in making the
working of the collegium system far better.
They are:
M. Creation of a Secretariat/Commission
under the administrative control of the Hon'ble Chief Justice of India and the
Chief Justices of the High Courts, which is provided with all facilities,
infrastructure, requisite finance, and empowered to act as a Judicial
Appointment Commission. Such Commission
should be brought under the purview of the Right to Information Act, 2005 and
it should conduct its business transparently;
N. The Commission should notify the
vacancies of Judges in the Supreme Court and High Courts at least six months
before the vacancies occur. Notification
of the vacancies should also provide for filling up of the same by open
selection for which the first step is to invite applications from all eligible
candidates, invite references from all stakeholders, the Bar Associations, the
public at large, of whom they consider to be most suitable. The collegium/Commission should fix the
qualifications and the minimum and upper age limit. Though the Constitution has prescribed the
qualification as 10 years of practicing as a lawyer or as a Judge, the collegium/Commission
appointed by the collegium could fix it to be 15 years. The minimum age limit could be fixed at 45
years and the maximum at 55. In case the
number of applications is too large, then the collegium/ Commission should fix
a further standard for screening/short-listing the candidates. When it comes to the competence and
experience of lawyers who have applied for and could be considered for
appointment, it could be possible that it may vary from State to State because
there can be no match for the lawyers practicing in Delhi, Mumbai etc., with
those practicing in far off High Courts, without meaning any belittling the
lawyer fraternity of any Bar. The zone
of selection need not be confined to the Bar of a particular High Court. Appointing a lawyer of a North Indian High
Court in a South India High Court and vice-versa will not only foster greater
national integration, but also will mean an answer to the complaints of
favouritism and nepotism, which is so widespread. Whether a Secretariat/Commission for each
High Court or a common selection Secretariat at the national level under the
command of the collegium of the Supreme Court is a matter which by a method of
“trial and error” alone can tell. However,
currently a mechanism of State level Secretariat could be thought of.
O. Once the candidates are short-listed
for selection, which ideally should be double the number of vacancies, the
short-listing should be made known to the Bar and the public at large so that
opinions in favour and against could be received and the collegium can take a
final call. Though the open and
transparent method of selection, as aforesaid, is likely to offer some
difficulty, for, it could be possible that lawyers who have a flourishing
practice may consider it embarrassing to be put to public scrutiny. Such inhibitions are all likely to vanish
into thin air once it is accepted that in a constitutional democracy,
appointments to the august office of the Judges of the Supreme Court and High
Courts cannot be made in an opaque and cabal manner. Viewed from another angle, a lawyer who is
willing to subject himself to public scrutiny, a lawyer who has nothing to hide
and no skeleton to be tumbled out of his cupboard, alone should be appointed as
a Judge. Like the Caesar’s wife, a Judge
should be above suspicion.
14.
The instant Writ is
not barred by the by the doctrine of estoppel res judicata.
15.
The Petitioner states
that requisite Court-fee of Rs. 250/- as per Rules has been paid.
16.
The Petitioner states
that there is no period of limitation for preferring this Petition and hence
the same is within limitation.
17.
The Petitioner states
that the Petitioner has no other efficacious alternative remedy than to prefer
the instant Writ Petition under Article 32 of the Constitution of India.
18.
That the Petitioner crave leave to add, amend or alter any of the
foregoing grounds with the permission of this Hon’ble Court.
19.
That the Petitioner have no other alternative efficacious remedy except
by moving the present writ petition under Article 32 of the Constitution of
India. The petitioner has instituted a number of writ petitions dwelling on the
same or substantially same subject matter involving the same or substantially
same cause of action. However in none of the said writ petitions namely diary
No.__/2014 and Writ Petition NO. 124/2015 the
issues which the petitioner sought to canvas in the instant writ petition has
been adjudicated. The instant writ petition is not barred by the doctrine of
estoppels res judicata. The petitioner has filed a petition for the review of
the judgment of this court in WP(C) No.124/2015 being Review Petition
No.1451/2016 and the same was dismissed on 16th February 2016 by a
non speaking order without affording an opportunity to be heard, despite in the
said review petition, all the plea was that the judgment of this court dated
16.10.2015 was one without jurisdiction being in the realm of executive/
legislative policy which are non justiciable.
PRAYERS
It is,
therefore, most respectfully prayed that this Hon’ble Court may graciously be
pleased to:
(a)
declare that the august offices of the Judges of the Supreme Court and
High Courts are high constitutional public offices and every citizen of India,
if eligible and competent, is, as a matter of right, entitled to aspire for
selection and appointment to the same and the judgments of this Hon'ble Court
in Judges-2, Judges-3 and Judges-5, namely, the majority judgment dated 16th
October, 2015 in the NJAC case [Supreme
Court Advocates on Record Association v. Union of India and others, WP(C) No.13/2015 with
WP(C) No.124/2015, (JT 2015 (10) SC 1)], in so far as they abrogate the said right, are
unconstitutional and void; so too the
collegium system of selection and appointment of Judges, an offspring of the
judgments in the aforesaid cases which provide for an opaque and nontransparent
system where only the kith and kin of Judges, their juniors and the elite class
of lawyers are appointed to the deprivation of equally deserving members of the
Bar who have no chance at all to be so selected and appointed;
(b)
declare that the judgments of this Hon'ble Court in Judges-2, Judges-3
and Judges-5, namely, the majority judgment dated 16th October, 2015
in the NJAC case (Supreme Court
Advocates on Record Association v. Union of India and others WP(C)
No.13/2015 with WP(C) No.124/2015, JT 2015 (10) SC 1) are rendered per incuriam
since the controversy “adjudicated” therein is one which is non-justiciable,
the same being in the realm of matters of executive and legislative policy not
involving violation of any fundamental or legal right of the petitioners in the
PILs in which the said judgments were rendered;
(c)
declare that Articles 124 and 217 of the Constitution of India, as
originally enacted and amended by the Constitution (Ninety Ninth Amendment)
Act, 2014, continue to remain in the statute book and appointments of judges of
the Supreme Court and High Courts are
liable to be made in accordance therewith and that the judgments of this
Hon'ble Court in Judges-2, Judges-3 and Judges-5, namely, the majority judgment
dated 16th October, 2015 in the NJAC
case (Supreme Court Advocates on Record Association v. Union of India
and others) are liable to be declared as rendered per incuriam;
(d)
without prejudice to prayers (a), (b) and (c) hereinabove, declare that
selection and appointment of Judges of the Supreme Court and High Courts cannot
be made except by notifying the vacancies and inviting applications from all
eligible candidates; so too references from all stakeholders, including Judges,
Bar Associations, Bar Councils and the public at large, namely, in an open and
transparent manner;
(e)
issue a writ in the nature of injunction or prohibition, restraining and
prohibiting Respondent Nos. 2 & 6 from making any recommendations/ appointments
of Judges of the Supreme Court and High Courts without notification of their
vacancies and invitation of applications from all eligible candidates; so too
references from all stakeholders, including Judges, Bar Associations, Bar
Councils and the public at large;
f)
Pass such other order or
orders as the circumstances of the case may require.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER
PRAY:
FILED BY
Drawn
by:
Mathews J.Nedumpara
Advocate
APPENDIX
CONSTITUTION OF
INDIA
21. Protection of life and personal
liberty.-
No person shall be deprived of his life
or personal liberty except according to procedure established by law.
32. Remedies for enforcement of rights
conferred by this Part.-
(1) The right to move the Supreme Court
by appropriate proceedings for the enforcement of the rights conferred by this
Part is guaranteed.
(2) The Supreme Court shall have power
to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers
conferred on the Supreme Court by clause (1) and (2), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this
article shall not be suspended except as otherwise provided for by this
Constitution.
124. (1) There shall be a
Supreme Court of India consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven2 other
Judges.
(2) Every Judge of the Supreme Court shall be
appointed by the President by warrant under his hand and seal [on the
recommendation of the National Judicial Appointments Commission referred to in
article 124A] and shall hold office until he attains the age of sixty-five
years:
[Provided that]—
(a) a Judge may,
by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner
provided in clause (4).
[(2A) The age of a Judge of the Supreme Court shall be
determined by such authority and in such manner as Parliament may by law
provide.]
(3) A person shall not be qualified for appointment as a
Judge of the Supreme Court unless he is a citizen of India and—
(a) has been for at least five years a Judge of a High
Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High
Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished
jurist. Explanation I.—In this clause “High Court” means a High Court which
exercises, or which at any time before the commencement of this Constitution
exercised, jurisdiction in any part of the territory of India. Explanation
II.—In computing for the purpose of this clause the period during which a
person has been an advocate, any period during which a person has held judicial
office not inferior to that of a district judge after he became an advocate
shall be included.
(4) A Judge of the Supreme Court shall not be removed
from his office except by an order of the President passed after an address by
each House of Parliament supported by a majority of the total membership of
that House and by a majority of not less than two-thirds of the members of that
House present and voting has been presented to the President in the same
session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of the
misbehaviour or incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme
Court shall, before he enters upon his office, make and subscribe before the
President, or some person appointed in that behalf by him, an oath or
affirmation according to the form set out for the purpose in the Third
Schedule. (7) No person who has held office as a Judge of the Supreme Court
shall plead or act in any court or before any authority within the territory of
India. 1[124A. (1) There shall be a Commission to be known as the National
Judicial Appointments Commission consisting of the following, namely:—
(a) the Chief
Justice of India, Chairperson, ex officio;
(b) two other
senior Judges of the Supreme Court next to the Chief Justice of India—Members,
ex officio;
(c) the Union Minister in charge of Law and
Justice—Member, ex officio;
(d) two eminent persons to be nominated by the committee
constiting of the Prime Minister, the Chief Justice of India and the Leader of
Opposition in the House of the People or where there is no such Leader of
Opposition, then, the Leader of single largest Opposition Party in the House of
the People— Members: Provided that one of the eminent person shall be nominated
from amongst the persons belonging to the Scheduled Caste, the Scheduled
Tribes, Other Backward Classes, Minorities or Women: Provided further that an
eminent person shall be nominated for a period of three years and shall not be
eligible for renomination.
(2) No act or proceedings of the National Judicial
Appointments Commission shall be questioned or be invalidated merely on the ground
of the existence of any vacancy or defect in the constitution of the
Commission.”
“124B. It shall be the duty of the National
Judicial Appointments Commission to—
(a) recommend persons for appointment as Chief Justice of
India, Judges of the Supreme Court, Chief Justices of High Courts and other
Judges of High Courts;
(b) recommend transfer of Chief Justice and other Judges
of High Courts from one High Court to any other High Court; and
(c) ensure that the person recommended is of ability and
integrity.”
“124C. Parliament may, by law, regulate the
procedure for the appointment of Chief Justice of India and other Judges of the
Supreme Court and Chief Justices and other Judges of High Courts and empower
the Commission to lay down by regulations the procedure for the discharge of
its functions, the manner of selection of persons for appointment and such
other matters as may be considered necessary by it.]”
“127.
(1) If at any time
there should not be a quorum of the Judges of the Supreme Court available to
hold or continue any session of the Court, 1[the National Judicial Appointments
Commission on a reference made to it by the Chief Justice of India, may with
the previous consent of the President] and after consultation with the Chief
Justice of the High Court concerned, request in writing the attendance at the
sittings of the Court, as an ad hoc Judge, for such period as may be necessary,
of a Judge of a High Court duly qualified for appointment as a Judge of the
Supreme Court to be designated by the Chief Justice of India.
(2) It shall be
the duty of the Judge who has been so designated, in priority to other duties
of his office, to attend the sittings of the Supreme Court at the time and for
the period for which his attendance is required, and while so attending he
shall have all the jurisdiction, powers and privileges, and shall discharge the
duties, of a Judge of the Supreme Court.”
“128. Notwithstanding anything in this Chapter
[the National Judicial Appointments Commission] may at any time, with the
previous consent of the President, request any person who has held the office
of a Judge of the Supreme Court or of the Federal Court 3[or who has held the
office of a Judge of a High Court and is duly qualified for appointment as a
Judge of the Supreme Court] to sit and act as a Judge of the Supreme Court, and
every such person so requested shall, while so sitting and acting, be entitled
to such allowances as the President may by order determine and have all the
jurisdiction, powers and privileges of, but shall not otherwise be deemed to
be, a Judge of that Court:
Provided that nothing in this article shall be deemed to
require any such person as aforesaid to sit and act as a Judge of that Court
unless he consents so to do.”
“217.
(1) Every Judge of a High Court shall be appointed by the
President by warrant under his hand and seal 1[on the recommendation of the
National Judicial Appointments Commission referred to in article 124A], the
Governor of the State, and, in the case of appointment of a Judge other than
the Chief Justice, the Chief Justice of the High Court, and [shall hold office,
in the case of an additional or acting Judge, as provided in article 224, and
in any other case, until he attains the age of [sixty two years]]: Provided
that—
(a) a Judge may,
by writing under his hand addressed to the President, resign his office;
(b) a Judge may be
removed from his office by the President in the manner provided in clause (4)
of article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being
appointed by the President to be a Judge of the Supreme Court or by his being
transferred by the President to any other High Court within the territory of
India.
2) A person shall not be qualified for appointment as a
Judge of a High Court unless he is a citizen of India and—
(a) has for at least ten years held a judicial office in
the territory of India; or
(b) has for at least ten years been an advocate of a High
Court or of two or more such Courts in succession;
Explanation.— For the purposes of this clause—
[(a) in computing the period during which a person has
held judicial office in the territory of India, there shall be included any
period, after he has held any judicial office, during which the person has been
an advocate of a High Court or has held the office of a member of a tribunal or
any post, under the Union or a State, requiring special knowledge of law;]
[(aa)] in computing the period during which a person has
been an advocate of a High Court, there shall be included any period during
which the person 3[has held judicial office or the office of a member of a
tribunal or any post, under the Union or a State, requiring special knowledge
of law] after he became an advocate;
(b) in computing the period during which a person has
held judicial office in the territory of India or been an advocate of a High
Court, there shall be included any period before the commencement of this
Constitution during which he has held judicial office in any area which was
comprised before the fifteenth day of August, 1947, within India as defined by
the Government of India Act, 1935, or has been an advocate of any High Court in
any such area, as the case may be.
(3) If any question arises as to the age of a Judge of a
High Court, the question shall be decided by the President after consultation
with the Chief Justice of India and the decision of the President shall be
final.]”
“218. The provisions of clauses (4) and (5) of article
124 shall apply in relation to a High Court as they apply in relation to the
Supreme Court with the substitution of references to the High Court for
references to the Supreme Court.”
“222.
(1) The President may, 5[on the recommendation of the
National Judicial Appointment Commission referred to in article 124A], transfer
a Judge from one High Court to any other High Court .
(2) When a Judge has been or is so transferred, he shall,
during the period he serves, after the commencement of the Constitution
(Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be
entitled to receive in addition to his salary such compensatory allowance as
may be determined by Parliament by law and, until so determined, such
compensatory allowance as the President may by order fix.]”
“224.
(1) If by reason of any temporary increase in the
business of a High Court or by reason of arrears of work therein, it appears to
the President that the number of the Judges of that Court should be for the
time being increased, 3[the President may, in consultation with the National
Judicial Appointments Commission, appoint] duly qualified persons to be
additional Judges of the Court for such period not exceeding two years as he
may specify.
(2) When any Judge
of a High Court other than the Chief Justice is by reason of absence or for any
other reason unable to perform the duties of his office or is appointed to act
temporarily as Chief Justice, 3[the President may, in consultation with the
National Judicial Appointments Commission, appoint] a duly qualified person to act
as a Judge of that Court until the permanent Judge has resumed his duties.
(3) No person appointed as an additional or acting Judge
of a High Court shall hold office after attaining the age of 4[sixty-two
years].]”
“224A. Notwithstanding anything in this Chapter,
6[the National Judicial Appointments Commission on a reference made to it by
the Chief Justice of a High Court for any State, may with the previous consent
of the President] request any person who has held the office of a Judge of that
Court or of any other High Court to sit and act as a Judge of the High Court
for that State, and every such person so requested shall, while so sitting and
acting, be entitled to such allowances as the President may by order determine
and have all the jurisdiction, powers and privileges of, but shall not
otherwise be deemed to be, a Judge of that High Court: Provided that nothing in
this article shall be deemed to require any such person as aforesaid to sit and
act as a Judge of that High Court unless he consents so to do.]”
“231.
(1)
Notwithstanding anything contained in the preceding provisions of this Chapter,
Parliament may by law establish a common High Court for two or more States or
for two or more States and a Union territory.
(2) In relation to
any such High Court,— hall, in relation to any rules, forms or tables for
subordinate courts, be construed as a reference to the Governor of the State in
which the subordinate courts are situate; and
(c) the references
in articles 219 and 229 to the State shall be construed as a reference to the
State in which the High Court has its principal seat: Provided that if such
principal seat is in a Union territory, the references in articles 219 and 229
to the Governor, Public Service Commission, Legislature and Consolidated Fund
of the State shall be construed respectively as references to the President,
Union Public Service Commission, Parliament and Consolidated Fund of India.]”
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