IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C)
NO.
___________OF 2016
Jacob
Samuel,aged 47 years
Kalluvalayathil
Puthen veedu,
Thazhakara,P.O,Mavelikara
Pin
690102
…
Petitioner
Versus
1. Union of India,
represented
by its Secretary
in
the Department of Justice,
New
Delhi 110 001.
2.
The Hon'ble Chief Justice of India,
represented
by the Registrar General,
Supreme
Court of India,
Tilak
Marg, New Delhi 110 001.
3.
The Collegium, Supreme Court of
India,
Supreme Court of India,
represented
by the Registrar General,
Supreme
Court of India,
Tilak
Marg, New Delhi 110 001.
4.
The Hon'ble Chief Justice,
represented
by the Registrar General,
High
Court of Kerala,
Ernakulam.
5.
The Collegium, High Court Of
Kerala,
represented
by the Registrar General,
High
Court of Kerala,
Ernakulam.
6.
The State of Kerala,
represented
by its Chief Secretary,
Trivandrum
. … Respondents
WRIT
PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.
TO
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE High Court OF KERALA
THE HUMBLE PETITION OF THE
PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH:
1. The instant Writ Petition is instituted
by the Petitioner for the enforcement of his fundamental rights guaranteed
under Part III of the Constitution of India and the rights entailed in him as a
citizen and as a lawyer; so also for enforcement of the remedies vested in him. The Petitioner believes that the concept of
equality before law and equal protection of law and the right to be treated
equally and fairly in the matter of appointment to the august office of the
Judges of the Supreme Court of India and the various High Courts, though a
constitutional mandate, is denied to him and hundreds of similar lawyers who
hail from humble backgrounds, like the Petitioner, and, therefore, it is
imperative to institute a Writ Petition as the instant one for the enforcement
of his own rights, so too to bring into public domain the infringement of the
right to be treated fairly which is denied to him and hundreds of others like
him. Having stated in brief the remedies
which are sought for in the instant Writ Petition as above, the Petitioner begs
to state the essential material facts, as infra:
2. The Petitioner enrolled as an Advocate
with the Bar Council of Kerala in the year 1997 and has, since then, been
practicing primarily in Courts and Tribunals subordinate to the High Court of Kerala
with occasional appearance in the High Court of Kerala. Though the Petitioner
would like to have started his career as a lawyer in the High Courts and Supreme
Court and aspired to climb the ladder of professional success, reputation and
wealth, nay, fame and privilege like any other lawyer who hails from the elite
class of lawyers, being 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, he was constrained to start
his practice in the subordinate Courts and Tribunals, for, he was born in
humble circumstances. 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, 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.
3. The
Petitioner is made to understand that the legal profession, as of late, has
been reduced to an industry which is monopolized by the elite and super elite
class of lawyers, namely, the kith and kin referred to above, who constitute 2%
of the legal fraternity. The judgment in Judges-2 case, by
which the collegium mechanism for appointment of Judges was introduced and Judges
appointing their kith and kin, so too of the celebrated lawyers and their
family members, the elite and super elite class of lawyers, has meant exclusion
of the less privileged class of lawyers who are sons and daughters of common
men, namely, the farmers, taxi drivers, Class IV employees, small traders etc.,
from being considered for selection and appointment as Judges of the superior
Courts. As aforesaid, the ordinary
lawyers, the first generation lawyers born in humble circumstances and thus not
able to start their career as a lawyer in the High Courts or Supreme Court, but
in the subordinate Courts and Tribunals, howsoever deserving they are, are
totally excluded from ever being considered for selection and appointment as
Judges of the higher judiciary. The
prevalent system of appointment of Judges through the mechanism of collegium,
which is wholly undemocratic, has led to oligarchy and nepotism. The Constitution (Ninety-ninth
Amendment) Act, 2014 and the National Judicial Appointment Commission Act,
2014, and the National Judicial Appointment Commission (NJAC) contemplated
under the latter Act, would have, in all probability, brought an end to the
current system of appointment of Judges where judicial appointment is allowed
to be monopolized by the elite class of lawyers. However, the Supreme Court by its judgment
dated 16th October, 2015 struck down the aforesaid Acts as
unconstitutional, though the said Acts being legislations in the realm of
executive and legislative policy were not justiciable at all. The NJAC case was a purported PIL, but no PIL
could ever have been instituted without there being a “person aggrieved”. It was indeed a coup d'état. However, the Petitioner does not intend to go
further into the said aspect, for, he believes that “a
Dharma which does not meet the practical requirement of life is not dharma, but
adharma”. The Petitioner, therefore, confines himself
to focus on one single point, namely, the denial to him, and as a necessary
corollary hundreds of other lawyers who primarily practice in the subordinate
Courts and Tribunals, of a fair opportunity to be considered for appointment as
a Judge of the High Court of Kerala.
4. Even those elite class of lawyers, the
rich and the super rich, who have monopolized the legal profession, would
concede that the subordinate Courts and Tribunals where original proceedings
are instituted and trial is conducted is the very foundation of the edifice
called administration of justice. Though
there is no definite statistics available, the Petitioner believes that he
could with all confidence assert that 80% of the lawyer fraternity practice in
the subordinate Courts and Tribunals and those who practice in the High Courts and
Supreme Court would hardly be 20%. These
20% of lawyers who constitute to be the elite and super elite class of lawyers
begin their career as a lawyer in the High Court or Supreme Court. Under the current system of appointment of
Judges by”invitation”, only lawyers who are practicing in the High Courts and
Supreme Court alone are considered. Any
fair-minded person, without hesitation, will concede that it cannot be that
talent in the legal profession is the exclusive province of those upper class,
the elite lawyers, who exclusively practice in the High Courts or the Supreme
Court. Legal talent equally, if not more
matching than these elite class of lawyers, is available among those who
practice in the subordinate Courts and Tribunals, nay, they could even excel
those practicing in the High Courts because most of the High Courts are not
invested with original jurisdiction, except in the realm of Writ Petitions,
Company Petitions etc., and no trial at all is conducted. On the contrary, in the subordinate Courts
and Tribunals where original proceedings are instituted, be it civil or
criminal, trials are conducted, arguments are to be advanced on appreciation of
evidence and interpretation as to the questions of law involved and, therefore,
a lawyer practicing in the subordinate Courts and Tribunals, when it comes to
his competence as a lawyer and sharpening of legal skills, has greater
opportunity than those practicing in the High Courts and the Supreme Court
where only mere arguments are advanced.
The point sought to be emphasized here is that lawyers practicing in the
subordinate Courts and Tribunals are not inferior to those practicing in the
High Courts and the Supreme Court. On
the contrary, they could far excel their counterparts practicing the High
Courts and the Supreme Court. At any
rate, both classes are required to be treated as equal. However, when it comes to the question of
selection and appointment by the current mechanism of selection by “invitation”,
the lawyers practicing in the subordinate Courts and Tribunals are totally
ignored. The reason is simple. Judges of the Supreme Court and High Courts
do not know them because they do not appear before them, at least not
regularly. The solution to this great
injustice meted out to the Petitioner and the likes who exclusively practice in
the subordinate Courts and Tribunals is simple, namely, notification of
vacancies of Judges of the Supreme Court and High Courts, invite applications
from all eligible candidates, references from all stakeholders, namely, sitting
and retired Judges, Bar Associations, and conduct some kind of screening which
could include even some preliminary examination, as well. Had the National Judicial Appointment
Commission been allowed to take birth and be functional, the Petitioner
believes that the Commission would have certainly brought into existence a
transparent system of selection and appointment of Judges of the higher
judiciary, of which the paramount is invitation of applications. However, the NJAC was aborted – thanks to the
legal “luminaries” like M/s. Fali S. Nariman, Anil Diwan, and the like, the
super elite class of lawyers who could use the Supreme Court Advocates on
Record Association as a pawn to subserve their own vested interests. The less said the better.
5. Sublato fundamento, cadit
opus – the foundation
being removed, the structure falls. The
merits and talent of lawyers who practice in the subordinate Courts and
Tribunals are not recognized, they ignored and ill-treated and that has great
amount of damage to the hierarchy of Courts which is primordial of which the
foundation is the subordinate Courts. 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 5 hereinabove
may be read and treated as the grounds in support of the instant Writ Petition.
6. 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.
7. The
Petitioner states that he has no other efficacious alternative remedy than to
prefer the instant Writ Petition.
8. 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, most respectfully prayed that this Hon’ble Court may graciously be
pleased to:
a)
declare that the current system of appointment of
Judges to the higher judiciary, namely, the Supreme Courts and High Courts, by “invitation”,
instead of applications and references, has meant 80% of the legal fraternity,
namely, the lawyers practicing in the subordinate Courts and Tribunals and who
make an occasional appearance in the superior Courts in the appeal or revision
in the cases which they handled in the subordinate Courts, being completely
excluded from consideration for appointment to the august office of the Judge of the higher
judiciary despite they being in no manner inferior in competence and talent to
the lawyers who exclusively practice in the superior Courts, and that to afford
an equal opportunity to them, vacancies of Judges of the higher judiciary are
required to be notified and applications are to be invited from all eligible
candidates, so too references from all stakeholders;
b)
issue a writ of mandamus or any other appropriate
writ, order or direction, commanding and directing the Respondents to notify
the vacancies in the august office of Judges of the High Courts and the Supreme
Court of India, invite applications from all eligible candidates, so too
references from all stakeholders, including sitting and retired Judges, Bar
Associations etc.;
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.
Dated this the 5th
day of April 2016
P.BIJIMON
Advocate for the petitioner
Jacob
Samuel
IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C)
NO.
___________OF 2016
Jacob
Samuel … Petitioner
Versus
Union of
India & Ors. … Respondents
I N D E X
|
Sr.
No
|
Particulars
Documents
|
Page No.
|
|
1.
|
synopsis
|
|
|
2.
|
Memorandum of Writ Petition
|
|
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3.
|
Affidavit
|
|
Dated this the 5th day of April 2016
P.BIJIMON
Advocate for the
Petitioner
IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C)
NO.
___________OF 2016
Jacob
Samuel … Petitioner
Versus
Union of
India & Ors. … Respondents
AFFIDAVIT
I, Jacob Samuel,aged 47 years,Kalluvalayathil Puthen
veedu,
Thazhakara,P.O,Mavelikara -690102 do hereby solemnly
affirm and state as follows
1. I am the petitioner in the above writ
petition and I am fully competent to swear the above affidavit.
2. The above writ petition
is filed to issue a writ of
mandamus or any other appropriate writ, order or direction, commanding and
directing the Respondents to notify the vacancies in the august office of
Judges of the High Courts and the Supreme Court of India, invite applications
from all eligible candidates, so too references from all stakeholders,
including sitting and retired Judges, Bar Associations etc. and such other
remedies.
3. I have not filed any
other writ petition seeking similar relief before this Hon’ble court and there
is no annexures filed along with this writ petition
All what is
stated above are true and correct to the best of my knowledge belief and
information
Dated this the 5th day of
April 2016
JACOB
SAMUEL
Deponent
Solemnly
affirmed and signed before me by the deponent who is personally known to me in
my office at Ernakulam on this the 5th day of April 2016.
P.BIJIMON
Advocate for the Petitioner
IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C)
NO.
___________OF 2016
Jacob
Samuel … Petitioner
Versus
Union of
India & Ors. … Respondents
SYNOPSIS
The
instant Writ Petition is instituted by the Petitioner for the enforcement of
his fundamental rights guaranteed under Part III of the Constitution of India
and the rights entailed in him as a citizen and as a lawyer; so also for
enforcement of the remedies vested in him.
The Petitioner believes that the concept of equality before law and
equal protection of law and the right to be treated equally and fairly in the
matter of appointment to the august office of the Judges of the Supreme Court
of India and the various High Courts, though a constitutional mandate, is
denied to him and hundreds of similar lawyers who hail from humble backgrounds,
like the Petitioner, and, therefore, it is imperative to institute a Writ
Petition as the instant one for the enforcement of his own rights, so too to
bring into public domain the infringement of the right to be treated fairly
which is denied to him and hundreds of others like him.
Dated this the 5th of
April 2016
BIJIMON
Advocate for the petitioner
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