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THE
NATIONAL LAWYERS’ CAMPAIGN FOR
JUDICIAL
TRANSPARENCY AND REFORMS
304, Hari Chambers, 3rd Floor, 54/68 SBS
Marg, Near Lion Gate, Fort Mumbai- 400 023
#47,GL Sanghi Chambers Block, Supreme Court Campus, New Delhi-110 001
Cell # +91 98205 35428 , #+91 9769110823,
Off:01123381068
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Mathews J. Nedumpara
President
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A. C. Philip
Vice
President,
Delhi
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Ms. Sophia Pinto Vice President
Bangalore
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Mrs. Rohini M. Amin
Vice President
Mumbai
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Jacob Samuel
Vice president,
Cochin
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Navaneetha Krishnan T.
General Secretary
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Sir,
Enclosed,
please find the copy of the petition filed by Adv.Mathews J.Nedumpara before
the Hon’ble Supreme Court of India for the review of the judgment dated
16.10.2015 at the hands of the five-judge Constitution Bench, which struck down
the Constitution (99th
Amendment) Act, 2014 and the National Judicial Appointment Commission Act,2014.
The said
review petition is filed vide Diary
No.36948/2015 by him on 02nd Nov.2015 and is self explanatory.
New Delhi
02 Nov.2015 Sd/
(A.C.Philip,Adv.)
Vice
President, National Lawyers’ Campaign for Judicial Transparency and Reforms
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO. OF 2015
IN
REVIEW PETITION (CIVIL) NO. OF 2015
(DIARY NO.36948/2015)
IN
WRIT PETITION
(CIVIL) NO.124 OF 2015
BETWEEN
Mathews J.
Nedumpara. …PETITIONER
AND
Supreme Court of India
Through its Secretary General & Ors.
…RESPONDENTS
APPLICATION SEEKING HEARING OF
THIS
REVIEW PET` ` ~ ITION IN THE OPEN COURT
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE APPLICATION OF PETITIONER ABOVENAMED
MOST
RESPECTFULLY SHOWETH
1. The
Petitioner above named has filed the accompanying Petition seeking review of
the judgment and order dated 16.10.2015 passed by this Hon’ble Court in W.P.
(C) No.124/2015.
2. I
am (the Petitioner herein) constrained to file the instant Petition for the
declaratory remedies sought for therein since the declaratory and mandatory
remedies sought for in my Writ Petition instituted under article 32 were not
considered at all. This Hon’ble Court heard the distinguished Counsels for the
Petitioners in challenge of the 99th Constitutional Amendment and
the NJAC Act to the full pleasure of their souls. I have no grievance on that count. They are the men of great learning,
erudition, knowledge and experience.
However in support of the NJAC there were equally eminent celebrity
Lawyers led by Attorney General.
However, to err is human and the lesson which the history teaches us is
that eminent men, even his holiness the Pope, the Arch Bishops and Chief
Justices err and fail. It is said even
the Homer nods at times. Errare est human is today reckoned to be a truth universally,
even his holiness the Pope is fallible.
The learned Attorney General, Solicitor General and the distinguished
team of Lawyers with him, however erred, in my opinion, erred calamitously in
failing to point out to this Court that the PILs in challenge of NJAC are not
maintainable, thus, there exists no lis, the controversy is in the realm of
legislative/ executive policies in the matter of selection and appointment of
judges and that the question of this Court being invested upon a jurisdiction
whether the wisdom of the parliament in bringing in Constitutional 99th
Amendment and the NJAC Act to remedy the mischief arising out of the judges 2,
judges 3 cases, which had meant re-writing of the constitution and providing
for a mechanism of appointment of the judges of the Supreme Court and High
Courts in a manner diametrically opposite to the manner in which it was
provided for in the Constitution under Article 124 and 217. Since I was present in all the hearings for
31 days without exception, the grave failure on their part, as aforesaid, came
to my notice and I ventured at my level best at every occasion I could have
ever availed of, namely, when the court were to resume hearing or at the end of
the hearing that the whole hearing of the case has gone haywire and the core
issue, the preliminary issue, the question as to the very maintainability of
the WP, the very justciability of the issues, the very jurisdiction of this
Court to decide whether or not the said Acts are constitutional, is lost sight
of. I ventured to point out quoting
Horace “parturient montes, nascetur
ridiculus mus” - mountains are in labour
and what is brought out is a ridiculous mouse.
I ventured to point out relying on Anisminic Ltd v Foreign
Compensation Commission, [1969]
2 AC 147, [1969] 2 WLR 163, that the issue involved here is a
jurisprudential question which is ‘going to’ the very jurisdiction and
competence of the Court to embark upon the correctness or otherwise of the said
acts which the parliament has enacted in exercise of its wisdom of which no one
has complained of any violation of fundamental right and, thus, not
justiciable. I ventured to point out
that the doctrine of impingement of the basic structure could be pressed into
service only where fundamental rights are violated. If there is no plea that fundamental rights
are violated, no question of invoking the doctrine of basic structure
arises. Keshavananda Bharathi laid down
a preposition that fundamental rights can be curtailed but it cannot be entirely
emasculated or abrogated. I must say in
all humility, I have gone through the entire judgment of the Supreme Court in
Keshavananda Bharathi, an voluminous one.
I may be forgiven if I dare to say that the said judgment, in the
circumstances then prevailed in, might have been justified. I may be forgiven in expressing my opinion
about Keshavananda Bharathi, though in all humilities, that the said judgment
did not lay down any new principle of law which was hither then not
enunciated. The quintessence of the
parity of the Constitution is primarily reaffirmation of the substantive law in
the realm of a subject ‘right to life, liberties and freedom’. The doctrine of basic structure is not in the
realm of substantive law. It is in the
realm of adjectival law. Rule of law is
in the realm of adjectival of law. You
need an impartial, independent, just and fair justice delivery system, just
laws and good Judges for the enforcement of remedies in the realm of
substantive law, namely, preservation of life, liberty, freedom properties,
estate, title, etc. This is how the
humble Petitioner would in all humility beg to state to have understood the
doctrine of basic structure.
3. I
gave a detailed argument notes raising all the contentions. It could be possible that my understanding of
law was all incorrect, my argument one without substance or force. At the fag end of the hearing I was given
hearing, however, before I could conclude my argument, nay not even before I
could formulate it and carry forward, the guillotine was applied. I feel I was unheard, though I feel sorry to
say something unpleasant, I was not heard.
A fair hearing was denied to me and I believe that the general
perception, so well rooted, that only celebrated Lawyers alone are heard to the
cheer of their heart is true. The words
I hear day in and day out that I will not be heard, today I heard it many times
that I will not be heard on 3rd of November, 2015, echo and echo in
my ears. I was not heard and in the
deliberance on the merits of the case there is no whisper whatsoever about my
contentions at all, not even a word. The
presiding Judge, while applying the guillotine while I was on my legs made a
solemn assurance that he will go through my argument notes and the documents
annexed therewith. That promise,
however, remains to be fructified. The
only way the injustice which has resulted in failing to afford me a fair
hearing and in failing to take notice of my contention could be undone is to
hear me in the open court. Hence the
accompanying application for hearing the Review Petition in the open Court of
the instant issue which is of transcendental, monumental and primordial
importance.
PRAYER
It is, therefore, most respectfully prayed
that this Hon’ble Court may graciously be pleased to :
a) allow this Application and hear the
accompanying Review Petition in open Court ; and
b) pass any such other order or
orders/directions as this Hon’ble Court may deem fit and proper in the interest
of justice.
DRAWN AND FILED BY
(Mathews
J.Nedumpara)
Petitioner-in-person
Chamber No.47, R.K. Jain Block
Supreme Court of India
New
Delhi-110001
Mob. 09820435428, 9769110823
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO. OF 2015
(DIARY NO.36948/2015)
IN
WRIT PETITION (CIVIL) NO.124 OF 2015
BETWEEN
Mathews J. Nedumpara. …PETITIONER
AND
Supreme
Court of India
Through
its Secretary General & Ors. …RESPONDENTS
PETITION UNDER ARTICLE 137 OF THE
CONSTITUTION OF INDIA SEEKING REVIEW OF THE JUDGMENT AND ORDER DATED 16.10.2015
PASSED BY THIS HON’BLE COURT IN W.P. (C) NO.124 of 2014.
To
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF PETITIONER ABOVENAMED
MOST RESPECTFULLY SHOWETH
1. The
Petitioner above named respectfully submits this Petition seeking review of the
judgment and order dated 16.10.2015 passed by this Hon’ble Court in W.P. (C)
No.124/2015.
2. The
Review Petitioner is a citizen of India and has been practicing as a lawyer for
the last three decades. He was
Petitioner in Writ Petition No.124 of 2015, which was disposed of along with
the above batch of Writ Petitions.
3. Though it is said that iura novit curia – the Court knows the laws – and there is no
need to plead law, it has become imperative to briefly delve into the concept
of review, for there can be no other concept which is more misunderstood than
the concept of review as known in common law, which stands embodied in Order
XLVII, Rule 1 of the Civil Procedure Code (CPC), nay, the concept of judicial
review or the concept of appeal. It is a
fundamental principle of law that a Court or Tribunal duly constituted acting
within the jurisdiction invested in it, does not fail to exercise its
jurisdiction or does not act in excess of its jurisdiction or acts in
conformity with the principles of natural justice and not in violation of the express
statutory provisions or in ignorance thereof, can bind the parties to a dispute
by its decision, whether it decides rightly or wrongly, and its decision
constitutes to be res judicata estoppel.
Stated still simply, the concept of rule of law is founded on the
principle that a Court or Tribunal acting as aforesaid can bind the parties to
a dispute even by an erroneous decision which constitutes to be res
judicata, and unless the statute
provides for an appeal, a mechanism for correction of the decision, howsoever
grave may be the error committed by the Court or Tribunal and the injury
resulting therefrom the party aggrieved by the judgment, order or decree has to
suffer, for jurisdiction means jurisdiction to bind a party to the dispute even
by an erroneous decision. That is the
substance of the concept of res judicata estoppel. The reason behind the concept of res judicata
estoppel is interesto republico ut
sit finis litium – it is in the interest of the State
that there be an end to litigation –
and nemo debet bis vexari pro uno et
eadem causa – “no individual should be sued more than once for the
same cause”.
4. While
a judicial decision, be it right or wrong, is final and binding and constitutes
to be res judicata estoppel, there is an exception to the said rule. The doctrine of res judicata applies only if
the judgment, decree or order of a Court or Tribunal is not vitiated by an
error apparent on the face of the record.
“Errors apparent on the face of the record”, contrary to the common misconception,
are errors of law and not of fact or even mixed question of fact and law. Where a judgment, decree or order of a Court
or Tribunal is vitiated by errors apparent on the face of the record, namely,
where the a Court or Tribunal has acted beyond its jurisdiction, nay, where it
has no jurisdiction over the subject matter, nay, where the Court or Tribunal
has failed to hear the parties to the dispute or has failed to observe the
principles of natural justice or where it has acted in ignorance or violation
of express statutory provisions, the judgment, decree or order so passed
constitutes to be no res judicata estoppel.
On the other hand, such judgment, decree or order is null and void ab
initio, which never ever existed in the eye of law, stillborn and non est in
law.
5. The
Code of Civil Procedure (CPC), which is nothing but the codification of the
common law principles, nay, Order XLVII Rule 1 thereof, has expressly
incorporated in it the concept that a judgment, decree or order of a Court or
Tribunal which is vitiated by errors apparent on the face of record,
constitutes to be no res judicata, and it can be declared to be so or held to
be void by the procedure of review. It
is only appropriate to extract Order XLVII Rule 1 CPC as infra:-
ORDER XLVII -
REVIEW
“1.
Application for review of judgment— (1) Any person considering himself
aggrieved —
(a) by a decree or order from which an
appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal
is allowed, or
(c) by a decision on a reference from a
Court of Small Causes, and who, from the discovery of new and important matter
or evidence which, after the exercise of due diligence was not within his
knowledge or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent on the
face of the record of for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may apply for a review
of judgment to the Court which passed the decree or made the order.”
Besides providing that a judgment, decree or order
which is a nullity, being vitiated by errors apparent on the face of record,
Order XLVII Rule 1 CPC also provides that a judgment, decree or order, which is
a nullity and constitutes no res judicata estoppel, on facts, as well, distinct
from law, can be declared to be so by recourse to the procedure of review. This is manifest from the words “from the
discovery of new and important matter or evidence which, after the exercise of
due diligence was not within his knowledge or could not be produced by him at
the time when the decree was passed or order made” employed in sub-rule (c) of
Rule (1) of Order LXVII, CPC. It is a
fundamental principle of law that if a Court or Tribunal had entered into a
finding, order or decree based on important matter or evidence which was not
available before it, such an order or decree constitutes to be no cause of
action estoppel or eve issue estoppel. The doctrine of estoppel has no application
where a party to a lis, who has suffered a judgment or order or decree against
him, had no knowledge of the important matter or evidence which had it been
available and known to him he would have unfailingly produced and in which case
the Court or Tribunal would not have passed the judgment or order or decree
which it has allowed itself to pass. The
judgment, decree or order of a Court or Tribunal, which was rendered without
the important matter or evidence which had a bearing on the controversy under
adjudication, is no judgment, decree or order in the eye of law and such a
judgment, decree or order constitutes no res judicata estoppel, it being
rendered without the relevant evidence before it.
6. Stated
in brief, the doctrine of res judicata has two exceptions, namely, (a) where a
judgment, decree or order or a Court or Tribunal is vitiated by errors apparent
on the face of the record ad where the error made is a legal error and where
the error means only an error of law, not on fact, and (b) where a judgment on
facts, which does not constitute res judicata, for the important matter or
evidence which was essential for adjudication of the dispute, was not before
the Court and the party has suffered a judgment is guilty of no lapses or
negligence because such material or evidence was discovered subsequent to the
decree and was not within his knowledge and even where he had exercised all
diligence could not have produced it before the Court. The relief of declaration of nullity, which
the Review Petitioner seeks through the procedural remedy of recall/review, has
to be judged from the grounds on which the review could be sought as detailed
above.
7. While eminent lawyers and jurists and commentators write
for and against, hailing and criticizing the judgment of the Five-Judge
Constitution Bench judgment of the Supreme Court in the NJAC case delivered on
the 16th of October, 2015, the lay people with whom the Review
Petitioner interacts, for, there are almost 4,000 members of the 50 Whatsapp
groups on judicial transparency, say:
“In civic books we have learnt that legislatures/Parliament make the law
and Judges adjudicate disputes and interpret the law in accordance with law for
the purpose of adjudication of the disputes”.
The ordinary man is puzzled, how could the five Hon'ble Judges of the
Supreme Court, nay, four Hon'ble Judges, for, one Hon'ble Judge dissented,
declare that the will of the people spoken through their elected
representatives, and in the NJAC case with absolute unanimity, except for Shri
Ram Jethmalani, enacted and ratified by 28 States, the Constitution
(Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment
Commission Act, 2014 (the Acts, for short), be scuttled because the four
Hon'ble Judges in their wisdom felt that the method of appointment of Judges
contemplated under the said Acts is not wise enough. The layman knows not much
of the concept of judicial review or the basic structure of the Constitution. All that he knows is that in a democracy, the
people acting through their representatives, their delegatees, will decide what
the law of the land ought to be and if a majoritarian law violates the
fundamental or legal rights of a citizen or a class of citizens they could approach
the Court and seek a declaration that such a law is void. The lay people with whom the Review
Petitioner interacted in so large numbers, as aforesaid, who have studied law
in schools/colleges as a part of their curriculum, say, social studies, are unanimous
in their opinion that the Judges of the Supreme Court sitting as Judges over a
controversy of which they are one of the parties failed to be impartial, just
and fair. They consider the NJAC case as
a deceptive/clever attempt on the part of the Supreme Court to retain the power
of appointing themselves which they have been enjoying for the last more than
22 years with practically little resistance or accountability. Though a few among the lay people would consider
that the tussle is between the executive and the judiciary, many of them
consider it to be a tussle between “we, the people” and the Hon'ble Judges of
the Supreme Court because the tussle of power between the Parliament and the
judiciary is indeed a tussle between the judiciary and “we, the people”, whom
the Parliament represents.
8. However, having read almost every
article on the subject and having attended the entire 31 days of hearing of the
NJAC case in the Supreme Court, this humble Review Petitioner is at great
bewilderment, if not in simmering anger.
The question is why the distinguished Attorney General, the Solicitor
General; and the erudite and scholarly Hon'ble Judges failed to notice what the
layman has no difficulty to discern. The
simple question is who is empowered to make the law for the land; the Judges or
the Parliament? The lay people who have
studied a bit of law in school curriculum have no difficulty to answer the said
question; for him the question is not complex; the Parliament alone can enact
the law of the land; declare what it ought to be. But the distinguished lawyers believed that
the Supreme Court can declare the law of the land, forgetting the fact that
Article 141 of the Constitution in unmistakable terms states that “the law declared by the
Supreme Court shall be binding on all courts within the territory of India.”
Article 141, which is nothing but adoption/reincarnation of Section 212 of the Government of India Act, 1935. The Review Petitioner begs to extract Section
212 as infra:-
“212. The law declared by the Federal Court and by any
judgment of the Privy Council shall, so far as applicable, be recognised as
binding on, and shall be followed by, all courts in British India, and, so far
as respects the application and interpretation of this Act or any Order in
Council thereunder or any matter with respect to which the Federal Legislature
has power to make laws in relation to the State, in any Federated State.”
The Review Petitioner, for
ready reference, quotes below Article 141 of the Constitution:-
“141. Law declared by Supreme Court to be binding on all courts.-
The law declared
by the Supreme Court shall be binding on all courts within the territory of
India.”
Article 141
gives a constitutional status to the doctrine of stare decisis, nay, precedent,
and nothing more. The Constitution does
not at all contemplate that the Supreme Court, or for that matter any Court, is
invested with the jurisdiction to declare/enact a law for the land. It is preposterous to think that the Supreme
Court is invested with the jurisdiction to declare what the law of the land
is. The reason is simple. If the Supreme Court were to be invested with
such a jurisdiction, then before it decides any question of law where its
decision is going to bind the whole country, it should issue notice to the
entire nation and patiently hear whomsoever intends to participate in the
hearing. To hear the entire nation on
any question of law which will affect their rights and liberties is impossible.
9. Though
neither the Supreme Court nor the High Courts nor any other Court could embark
upon a hearing and declare what the law of the land is, Courts have been doing
precisely that for long and, since the invention of the jurisprudence of PIL,
which legendary Justice Krishna Iyer lamented to be a “ravenous wolf in sheep's clothing”, day in and day out by
the Supreme Court and various High Courts of the country. The reason for this Himalayan error, which
has not received public attention, is the difference associated with the concept
of what is and what is not justiciable.
The Court’s duty is to adjudicate disputes where a “person aggrieved”
for violation of his constitutional, fundamental or legal rights, liberties,
estates etc., seeks enforcement of his rights.
Therefore, the existence of a “person aggrieved” is the foundation of a
lis and in common law access to justice was confined only to the person
aggrieved. In India, out of poverty,
ignorance, illiteracy and many other similar disadvantages whose fundamental or
legal rights are infringed – the under trial prisoners, bonded labourers et al
– could not on their own invoke the jurisdiction of the Constitutional
Courts. By evolving a jurisdiction
called PIL, legendary Judges like P.N. Bhagwati, Y.V. Chandrachud, M.N.
Venkatchaliah et al, by relaxing the concept of locus standi, made it possible
for some public spirited person acting pro bono publico to take up the cause of
such aggrieved persons. That is how the
jurisdiction of PIL was conceived and PIL thus understood was wholly
legitimate, well within the concept of jurisprudence. PIL thus meant the concept of judicial review
a reality to the poor and helpless. The
remedy in PIL thus sought was for enforcement of the rights of a person
aggrieved, but as time passed, particularly in Judges-2, Judges-3 and
the present Judges-4 (NJAC) cases,
the elementary principles of jurisprudence, nay, the need for a “person
aggrieved” for a PIL to be understood was lost sight of.
10. With utmost respect and with great humility, the Review
Petitioner would put the blame on legendary justice Bhagwati; for, His Lordship
went on to discuss the concept of locus standi in Judges-1 case (S.P. Gupta v.
Union of India, AIR 1982 SC 149) wherein the concept of locus standi was
conceded. In the said case, a Judge
whose tenure as Additional Judge was not extended, engaged a lawyer and was a
party to the lis. Therefore, the
Attorney General did not question the maintainability of the Writ Petitions
clubbed together. Justice Bhagwati in unmistakable terms made it clear that the
PIL would lie only where there exists a person aggrieved whose fundamental and
legal rights are infringed and out of his poverty and other disadvantages is
unable to approach the Court himself, who could be represented by a person
acting pro bono publico, nay, there ought to exist a justiciable lis. In reality, as time passed, the said
principle laid down by Justice Bhagwati is misunderstood to be as one
conferring locus standi on any busybody to litigate upon issues which are non-justiciable. The classic example is Judges-2 case. In that case,
there was no justiciable issue at all; there was no “person aggrieved”; yet, in
the said case instituted by the Supreme Court Advocates on Record Association
(SCAORA), neither the Attorney General nor Shri Parasaran who represented the
Government raised the question of the very non-maintainability of the Writ
Petition, the so-called PIL. In Judges-3 case too, the said issue was
not raised or discussed.
11. In Judges-4 (NJAC) case, this Review
Petitioner raised the question of on-maintainability of the Writ Petition, the
PIL. He had filed a Writ Petition
seeking a declaration that the judgment in Judges-2
case is void, for, it meant rewriting of the Constitution. He also sought for a declaration that the
provisions of the Constitution as originally enacted continue to be in the
statute book in spite of the judgment in Judges-2
case. The Review Petitioner filed an
application for determination of the very maintainability of the PILs by SCAORA
and the Bar Association of India and others as a preliminary issue and a
declaration that the said PILs are not maintainable, for, the issues raised
therein are not justiciable.
Unfortunately, the Hon'ble Supreme Court paid no heed to the said plea. Though the Review Petitioner gave a detailed
argument note maintaining that the PILs are not maintainable; that the
legislations in question are a matter of policy; that the wisdom of the
Parliament is not justiciable; that the Hon'ble Judges cannot sit in judgment
over it; that Article 141 confers no jurisdiction on the Court to declare the
law of the land; that what the law of the land can be enacted and declared by
the Parliament alone; that a law enacted by the Parliament, unless it violates
a citizen of his fundamental rights, cannot be questioned in a Court; and that
assuming that the Acts in the NJAC case even distantly infringes anyone’s
fundamental rights, it could only be the Judges of the High Courts who probably
could be harbouring the theory of legitimate expectation and none else, the
judgment, which runs into more than 1,000 pages, has failed to deal with the
said pleas. The Review Petitioner holds
the Hon'ble Judges in the highest of esteem, regard and respect and begs to
submit that the blunder of holding the Acts as unconstitutional has its
foundation in the maxim nemo debet esse judex in propria causa
– no one can be judge in his own cause.
When the Judges themselves for all practical purposes were the Review
Petitioners and arbiters of the NJAC case, they being fallible human beings,
though men of erudition, caliber and character, it was unreasonable for the
Review Petitioner or other citizens of the country to expect them not to err
and that is the reason why the Review Petitioner moved an application seeking
recusal of Hon'ble Mr. Justice Anil R. Dave as the Presiding Judge and upon His
Lordship’s recusal and substitution by Hon'ble Mr. Justice J.S. Khehar.
12. The next question is what could be done now. The Review Petitioner, an ordinary lawyer of
limited resources, practicing in Mumbai, spent almost two months in Delhi to
attending the hearing of the NJAC case. The reason, nay, the fire, which made
it possible for the Review Petitioner to make such a sacrifice is the fact that
the collegium, as Hon'ble Mr. Justice Kurian Joseph has acknowledged in his
judgment, so too Hon'ble Mr. Justice Jasti Chelameswar, in paragraph 1 & 62
of his judgment, has been reduced to oligarchy, nepotism and large scale
inbreeding. The said elite class of Judges mostly consist of 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, which
meant the sons and daughters of farmers, taxi drivers, rikshaw pullers,
teachers – the common ordinary people– having no place at all. The NJAC has only one shortcoming with 50% of
its members being the CJI and two his senior most colleagues, which again meant
a collegium system, though the presence of two eminent members of the civil
society certainly would have made a difference.
The Review Petitioner submitted a progeny syndrome chart which showed
who are the Judges of the higher judiciary, how they are connected to retired
and sitting Judges etc. But the 1,000
and odd pages judgment of the Constitution Bench could not find a place to
accommodate the pleas of the Review Petitioner nor the said chart which is a
result of research for many weeks. There
could not be a better expression to state what the judgment in the NJAC case
meant than to quote Horace “Horace, parturient montes, nascetur ridiculus mus”.
13. There is no way by which the collegium system could be
improved – Judges appointing themselves, wielding the entire power of
appointment is against the basic structure of the Constitution, a sacrosanct
concept which the judgment in NJAC case made it appear to be nothing but a
structure made of wax which Judges could mould in whatever shape they
want. The country is in dire straits;
the Parliament’s laudable effort to establish the National Tax Tribunal sunk in
the high seas, being hit by the iceberg called basic structure. There is only one hope i.e. the Hon'ble
Judges themselves realize in all humility that they are fallible and the NJAC
judgment meant that they have erred grievously.
Even the Pope, once regarded as infallible, is no longer considered to be
so. If the powerful Catholic Church
could accept the theory of fallibility, the Hon'ble Judges of the Supreme Court
too should readily accept their fallibility and acknowledge that they have
erred.
14. Thus,
being aggrieved by the aforesaid judgment and order of this Hon’ble Court dated
16.10.2015, the Petitioner has preferred the present Petition under Article 137
of the Constitution of India.
15. The
Petitioner is desirous of filing the present Petition on the following other -
G R O U N D S
Grounds in support of the
reliefs sought for are fairly elaborated in the statement of facts above and
hence are not repeated. The Review
Petitioner respectfully submits that paragraphs 2 to 13 hereinabove may be read
and treated as the grounds in support of the instant Writ Petition. Nonetheless, the Review Petitioner begs to
submit that:
A. The
judgment dated 16th October, 2015 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
28 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 whereunder
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 may 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 sought to be reviewed 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 has 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 will be acting as if it is the Parliament
exercising its constituent/legislative power.
If it is allowed to happen, it will cause unthinkable damage to the
Indian democracy. 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 Review 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
Review 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. That the very
effort of this Hon’ble court to continue with the sitting even after the
judgment is delivered in a writ petition is unprecedented and ultravires the
constitutional mandate, in violation of the doctrine of separation of powers,
which is a basic structure of the constitution and hence is not amendable even
by the parliament under Article 368 of the Constitution. The doctrine of
separation of powers envisages that the law making powers are vested with the
legislature and not with the 5-judge bench of the Hon’ble Supreme Court of
India. The effort of this Hon’ble Court to function as a superior body even to
the elected parliament is in violation of the oath of office of the judges, who
are duty bound to function in accordance with the constitution, and the instant
effort to continue with the legislative process after declaring the law as
passed by the elected representative of the people of India is a effort to
become a Supreme authority in the nation , which can cause irreparable damage
to the Democracy and rule of law. Even in wildest of imagination it is
impossible to understand that this Hon’ble Court can assume itself the
autocratic, tyrannical and dictatorial powers to scuttle democratic
institutions and declare itlef to be the supreme authority to exercise the
executive and legislative functions under the self appointed jurisdiction of
PIL, which stand in total violation of the Supreme Court Rules and the various
judgments of this Hon’ble Court itself. The concept of PIL is not a mask for
this Hon’ble Court to encroach upon the legislative and executive fuctions, by
destroying the separation of powers,w hich itself is a Basic Structure of the
Constitution. The terminology of “separation of powers” has been vitiated by
being molded into “independence of judiciary, which is a misnomer and later by
the instant judgment into “Supremacy of
Judiciary” and hence to create the constitution itself, in the name of
interpreting the constitution. If this process of making the law, by this
Hon’ble Court, by encroaching into the executive and legislative functions,
without being accountable to the people of India, claiming that the people of
India are not mature enough as a civil society is an affront to the nation as a
whole, which has a history of oldest civilization in the world, having
withstood the foreign invasions, conducted the independence struggle, as well
as the ordeals of emergency to protect
the democratic form of governance. This Hon’ble Court cannot ignore the fact
that it itself is the offspring of the constitution, which is parented by the
civil society of this nation. The way in which the people of India shall be
governed shall be left to the people of India only, and not by the 5 judges,
who assumes themselves the tyranny of making the constitution, without any
authority. Even if as a matter of hypothesis it is considered that this Hon’ble
bench is most benevolent to the people of India, it amounts to dictatorship,
may be benevolent dictatorship, as the power exercised by it is not accountable
to the people of India or their elected representatives. In course of time, as
the individuals change, it can even lead to most oppressive dictatorship, as
well, to which even the present judges will be reeling, post-retirement. As the
parliamentary democracy is the basic structure of the Constitution, as declared
by this Hon’ble Court, in Kesavananda Bharati v. the State of Kerala (1973)
Supp. SCR 1. , the dictatorial sitting by this Bench to make constitution
is without authority and hence ultravires. The judiciary which appoints itself
is not the ruler of the nation, neither as an executive, nor as the legislature.
Any such effort is a mockery of the constitution and that of the people of the
nation. The nation has experienced the fallibility of judiciary during the
emergency and it was the civil society of the nation, which protected the
democracy of the nation out of their valuable sacrifices. The process of judges
appointing themselves, leading to nepotism and widespread inbreeding of progeny
judges syndrome, coupled with assuming the executive and legislative powers,
leads to the death of democracy and establishment of oligarchy. The independence, sovereignty and democracy
of the republic and it's people, earned
by many sacrifices cannot be surrendered by the nation to a dictatorship, even
if it is termed as judiciary under the shadow of judicial supremacy. The parliamentary democracy, being the basic
structure of the Constitution, is not complimentary to the judicial supremacy,
whereas both are antithesis to each other. Both cannot co-exist in a single
nationhood. Hence this Hon’ble Court may refrain itself from venturing into law
making effort. Hence the further sitting
of this Hon’ble Bench without a cause of action, person aggrieved and locus
standi, to venture into the legislative functions is ultravires the constitution
and hence in violation of the oath of office of the Hon’ble Judges, and hence
this court is duty bound to refrain graciously from such venture, in the
greater interest of nation. The review petitioner relays upon the following
judgments for the above propositions.
a. State of Kerala Vs. Mathai Varghese.AIR 1987
SC 33.
b. Sukhdev Singh Vs.Union Territory AIR. 1987
P&H at Page 9.
c. Sulochana Amma Vs.Narayanan Nair AIR.1994
SC 152 at page 156.
d. Gauri Shankar Gaur Vs.State of UP.AIR
1994.SC, 169 at Page 177.
e. Bharat Hari Singhania Vs. Commissioner of
Wealth Tax.-AIR.1994. SC.1355 at Page.1365.
f. H.Shiva Rao Vs.Cecillia Pereria AIR 1987 SC
248 at Page 250.
M. Even in the event of the unthinkable that this Hon’ble
Court continue with the effort to legislate itself, the Petitioner considers
that the following steps could go a long way in making the working of the
collegium system far better. They are:
a) 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;
b) 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.
c) 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.
PRAYER
It is, therefore, most
respectfully prayed that this Hon’ble Court may graciously be pleased to take
recourse to the procedure of review and:
a)
declare
that the lead judgment and order dated 16.10.2015 passed by this Hon’ble Court
in W.P. (C) No.124/2015, so too the dissenting judgment of even date, passed by
the Constitution Bench of this Hon'ble Court in the above Writ Petitions and
PILs are unconstitutional and void inasmuch as the challenge on the Constitution (Ninety-ninth Amendment) Act, 2014 and the National
Judicial Appointment Commission Act, 2014 is not justiciable; that it involves
no violation of the Petitioners’, or for that matter anyone’s, fundamental
rights; that the Petitioners have no locus standi to institute the PILs; that
the PILs are wholly not maintainable; and further that the declaration in the
lead judgment that the collegium system, which is the product of rewriting of
the Constitution by the Nine-Judge Constitution Benches of the Supreme Court in
Judges-2 and Judges-3 cases, as if the Court is the Parliament exercising its
constituent power, nay, acting in substitution of the Parliament, is revived
and it will effect appointment and transfer of Judges of the Supreme Court and
High Courts is unconstitutional and void;
b)
declare
that Articles 124 and 217 of the Constitution as originally enacted have always
been and even now continue to be in the statute book in its pristine form and
that the judgments in Judges-2 and Judges-3 cases
constitute judgments rendered per incuriam, which meant rewriting of the
Constitution by the Supreme Court for which it is not empowered and further
that the collegium system is liable to be restrained by a writ of injunction or
prohibition from making any appointment of Judges to the Supreme Court or High
Courts in terms of the judgments in Judges-2 and Judges-3 cases as also the current judgment under
review, and issue a writ of mandamus directing the Union of India to make
appointments to the higher judiciary in terms of Articles 124 and 217 of the
Constitution, as originally enacted;
c)
declare
that the instant Review Petition, which though filed as a petition for review,
is, indeed, an original proceeding under Article 32 of the Constitution in the
light of the declarations sought for as above in the open Court;
d) pass any such other order or orders/directions as this
Hon’ble Court may deem fit and proper in the interest of justice.
DRAWN BY FILED BY
(A.C.Philip) (Mathews
J.Nedumpara)
Advocate Party in person
New Delhi.
Drawn on :
Filed on :
