My esteemed brothers and sisters,
I write this to inform you that The National Lawyers Campaign for Judicial Transparency and Reforms will be holding an emergency General body meeting tomorrow ie 21st, Thursday at it's registered office at Hari Chambers, Fort, Mumbai to discuss the emergent steps to be taken to ensure that the selection and appointments to the august office of the Judges of the SC and HCs are conducted with a modicum of transparency, the ideal being notification of the vacancies and invitation of applications from all eligible, so too references from all stakeholders so that the judicial appointments are no longer monopolised by the kith and kin of the Judges of the SC and HCs and of senior lawyers and their friends and family members . You are requested to not only to be present and actively participate in the deliberations but also to bring like minded people who are genuinely concerned of open and transparent justice to the meeting.
🙏
Mathews J Nedumpara, President,
The National Lawyers Campaign for Judicial Transparency and Reforms,Mumbai.
👇👇
P.S.
Lay people,the common man, too are most welcome for they are the real masters and the judges only excersise the sovereign power invested in them as their delegates.
Tuesday, 19 January 2016
The National Lawyers Campaign for Judicial Transparency and Reforms will be holding an emergency General body meeting tomorrow ie 21st, Thursday at it's registered office at Hari Chambers, Fort, Mumbai
Monday, 18 January 2016
Who cares to protect the right of SLUM DWELLERS
The island of Mumbai is one of the most blessed islands in the whole world. The city of Bombay (now Mumbai) during the British times was considered to be one of the finest cities in the world. Governmental policies and the absolute apathy to address the basic needs of the people like shelter, drinking water, sanitation etc., have reduced the city to the worst city on earth, the most unlivable city in the world, the worst city according to a recent survey conducted by a reputed international agency.
Rex est procurator factuoram - it is the duty of the King to protect those who cannot protect themselves – is a fundamental principle of constitutional law. It is the duty of the State to provide for the basic amenities for the preservation of life, shelter, food and basic needs of clothing, sanitation and, in a modern society, health care, education, etc., to its subjects. The State of Maharashtra, however, instead of providing its subjects such basic amenities, like a devil – even that would not be a mild expression – renders homeless thousands of poor slum dwellers. That is what happened many times in the past. It took place in 1995, though unfathomable, under orders of this Hon'ble Court which is expected to render justice to the poor. The legendary Justice Krishna Iyer suffered a near heart shock after seeing the savage crime committed upon nearly four lakhs of slum dwellers in the name of preservation of Sanjay Gandhi National Park. What is practiced today is not environmental protection, but a savage attitude in the name of environment. Environmental protection requires sacrifice on the part of the rich, powerful and the mighty, who should avoid air-conditioned Court Halls and other luxuries so that the environment is protected. Lawyers, Barristers and Judges emulate Mahatma Gandhi and they all accept what that great soul did, whose all possessions were two loin clothes, two towels, a spinning wheel and a reading glass. It is a war on humanity to render the poorest of the people homeless, who have set up their shanties on dirty and marshy land, in the name of protection of mangroves. In Mumbai only a microscopic minority has their own homes; the vast majority either lives in slums or rented premises.
The right of self-preservation, the right of existence, the right to shelter, the right to livelihood to keep one’s body and soul together, the bare basic needs, and the right for clothing, are not only fundamental rights, but they also mean a fundamental duty vested in the State to provide them to those who out of their disability and deprivation are not able to secure for themselves.
Once again, the ruthless
authorities of Mumbai Municipal Corporation punished the poor slum dwellers of
Mumbai by demolishing their shanties and rendered them homeless. The abode of
about 70 families were
demolished by the Bombay Municipal Corporation and even now thousands of people
living in the most unthinkable, unimaginable and inhuman conditions are being
rendered homeless.
But a writ
petition moved by the slum dwellers through the President of National Lawyers’ Campaign
for Judicial Transparency and Reforms(NLC) Mr. Mathews J.Nedumpara, Supreme
Court lawyer, seeking direction to the
authorities to provide immediately alternative accommodation to them as also
humanitarian assistance such as food, water, clothing and medicines was disposed
without any positive reliefs by a Division Bench of Bombay High Court which virtually
rendered the poor slum dwellers and
their families homeless and thrown to utter poverty and misery.
National Judicial Appointments Commission Act 2014-A retrospective
Appointment of Judges
of the Supreme Court and High Courts is an executive function invested in the
executive. Since the coming into force
of the Constitution of India, the executive has been exercising the said
function in consultation with the Chief Justice of India (CJI), the Chief
Justices of the High Courts and other functionaries as contemplated in Articles
124 and 217 of the Constitution.
The
President of India means the President acting on the aid and advice of the
Council of Ministers. The said system
undoubtedly worked well in the first two decades since independence. In the third decade since independence, it is
a matter of history, the Government headed by Indira Gandhi in many ways tried
to meddle with the system. In 1981
certain Writ Petitions were instituted by S.P. Gupta and others challenging the
transfer of Judges of High Courts; so too non-confirmation of the tenure of
certain Additional Judges, which led to the pronouncement of the judgment in S.P. Gupta v. Union of India, AIR 1982
SC 149, popularly known as the Judges-1 case.
In the said case, the Judges who were transferred and whose tenure was
not extended were active participants in the lis and, therefore, the Writ
Petition in so far as enforcement of their purported rights is concerned was
maintainable. The Supreme Court affirmed
what the framers of the Constitution had envisaged, namely, that appointment of
Judges is an executive function to be exercised by the executive in
consultation with the CJI and other functionaries. So far the constitutional scheme in the realm
of appointment of Judges worked well, except for the supersession of certain
Judges, which was wholly inappropriate.
However, the constitutional
scheme in the matter of appointment of Judges came to be torpedoed with the
judgment of the Nine-Judge Constitution Bench in Supreme Court Advocates-on-Record v. Union of
India, (1993) 4 SCC 441, otherwise known as the
Judges-2 case. The Supreme Court Advocates-on-Record (SCAORA) had no locus
standi to maintain the said Writ Petition.
However, its locus standi was not questioned apparently since in
Judges-1 case, the Attorney General had conceded the locus standi of the Petitioners/Interveners
therein. The fact that in Judges-1 case
the parties aggrieved, namely, the Judges were the parties aggrieved and there
was a lis was lost sight of in Judges-2 case and apparently because the locus
standi in Judges-1 case was conceded, in Judges-2 case the locus standi of SCAORA,
who had no locus standi to maintain the said petition, happened to be not questioned at all only because the Attorney
General and those who represented the State Governments failed to raise the
contention that SCAORA has no locus standi to maintain the Writ Petition, a
so-called PIL, for, a PIL to be maintained there must exist a “person
aggrieved” and where there is no person aggrieved complaining infringement of
his fundamental rights, no petition under Article 32 of the Constitution can be
maintained. However, the Nine-Judge
Constitution Bench in Judges-2 case was misled to assume a jurisdiction which
was not invested in it and it went on to deliver the judgment by which the
right to appoint Judges was usurped to themselves.
The judgment in Judges-2
case meant the rewriting of the Constitution, the very destruction of its basic
structure. The power of the executive
under Articles 124 and 217 to appoint Judges in consultation with the CJI and
other functionaries was taken away from it by a judicial coup and was invested
in a collegium to be presided over by the CJI.
It meant a scheme of things where the Judges appointed themselves,
unheard in the annals of history, wholly contrary to the concept of separation
of powers and the concept of basic structure, a doctrine which is exclusive to
Indian constitutional jurisprudence. If
separation of power is one of the basic structures of the Constitution of
India, then the judgment in Judges-2 case meant the very guillotining thereof. The Government of the day, the political
leadership, the Bar and the public at large, except legendary Justice Krishna
Iyer, failed to take serious notice of the very rewriting of the Constitution,
the very destruction of one of the basic features of the Constitution, namely,
separation of power, the judiciary usurping to itself the function of
appointment of Judges, which is an executive function and involves no element
of adjudication of a lis. It is
difficult to be fathomed, so painful and sad, that the Government of the day,
instead of seeking a review of the judgment in Judges-2 case and secure undoing
of the great damage done to the Constitution, literally endorsed the
destruction of the Constitution and the concept of balance by seeking a
Presidential Reference, which led to the judgment in In re Special Reference 1
of 1998, AIR 1999 SC 1, subsequently came to be known as the Judges-3
case. In Judges-3 case, the then
Attorney General in express terms made it clear that the Government was not
seeking any review of the judgment in Judges-2 case.
The judgments in Judges-2
and Judges-3 cases, as aforesaid, meant destruction of the constitutional
scheme of separation and balance of powers, which meant an era of the judiciary
appointing themselves and as days passed appointing their kith and kin. The higher judiciary today consists
dominantly of the elite, 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 said elite class
who monopolize the Bench appointed/designated their own kith and kin, juniors,
family members and friends as Senior Advocates which has led to a scenario
where the Bench and Bar are dominated by a few dozens of families and 95% of
the legal fraternity, sons and daughters of common men, farmers, taxi drivers,
teachers, who have no Godfather, share only 5% of the revenue from the legal
profession which the elite class has reduced to an industry. The colonial concept of Queen’s Counsel,
which unfortunately finds a statutory recognition in Sections 16 and 23 of the
Advocates Act, with a different dress code for the so-called Senior Advocates,
meant classification of lawyers into two categories, a caste system, and
apartheid in legal profession. The
National Lawyers’ Campaign for Judicial Transparency and Reforms, of which the
Plaintiff is a member/sympathizer, has made some research on the subject and
has collected certain data which will substantiate the Plaintiff’s belief that
in the collegium system the Judges have mainly appointed their own kith and kin.
The Parliament, which
took notice of the mischief which the judgments in Judges-2 and Judges-3 cases
meant, prescribed a remedy, namely, to bring into existence a National Judicial
Appointment Commission (NJAC) in which the judiciary will have the predominant
role with the CJI as its Chairman and two senior most Judges of the Supreme
Court as its members. Thus three out of
the six members of the NJAC envisaged are Judges. Out of the remaining three members, two
eminent persons are to be selected by a Committee to be headed by the Prime
Minister, CJI and Leader of the Opposition and the third the Law Minister. If one were to find fault with the NJAC, it
could only be that it is a Commission in which Judges have absolute
domination. Yet, S/Shri Fali S. Nariman,
Anil Diwan, Rajeev Dhawan and the so-called stalwarts of the legal profession,
using their clout, challenged the Constitution (Ninety-ninth
Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014
(the Acts, for short) by instituting Writ Petitions titled as PILs, “ravenous
wolves in sheep's clothing”, to borrow an expression from legendary Justice
Krishna Iyer, using the forum SCAORA the Bar
Association of India.
The aforesaid Acts were
legislations in the realm of executive/ legislative policy and were not
justiciable. The said Acts did not,
directly or indirectly, infringe anybody’s fundamental rights. If at all the said Acts infringed anybody’s
fundamental rights, it would be the Judges of the Supreme Court and Judges of
the High Courts. SCAORA and the Bar Association of India ought to have said so candidly
if the real reason to institute the said petitions was infringement of the
fundamental rights of the Judges, but they have not pleaded so. Yet, the Supreme Court entertained their Writ
Petitions. The Attorney General was duty
bound to question the maintainability of the said Writ Petitions on the premise
that (a) the said Acts are non-justiciable, they being in the realm of
executive and legislative policy, (b) SCAORA and the Bar Association of India
have no locus standi to maintain the said petitions inasmuch as in the
petitions they did not complain violation of their fundamental rights and
without such a plea no petition under Article 32 of the Constitution could be
maintained and (c) the petitions cannot be termed as PILs, for, there could be
no PIL without there in existence a “person aggrieved” who is unable to invoke
the jurisdiction of the Court due to his poverty, ignorance,
illiteracy and other
disadvantages. Shri Mathews J. Nedumpara,
President of the National Lawyers’ Campaign for Judicial Transparency and
Reforms, who appeared before the Supreme Court as a party in person supporting
the Acts and seeking a declaration that the judgments in Judges-2 and Judges-3
cases are void and that the NJAC Act ought to be notified and appointment of
Judges ought to be made in accordance therewith, though made repeated efforts
to raise the aforesaid preliminary objections, the Plaintiff begs to submit
with utmost respect, the Constitution Bench which heard the said Writ Petitions
paid no heed to his pleas. Shri
Nedumpara submitted a detailed argument note primarily raising the very
non-maintainability of the PILs; that the said Acts are non-justiciable; that
the PILs are a gross abuse of the process of the Court, for, there is no person
aggrieved etc., but in the judgment dated 16th October, 2015 running
into more than thousand pages no notice thereof was taken.
The Constitution Bench which
heard the NJAC case was a coram non judice, for, the issue involved in the PILs
was non-justiciable. Even if it was
justiciable, the Presiding Judge and other members of the Constitution Bench
were disqualified from hearing the case because if the collegium system is allowed
to be resurrected by striking down the said Acts, they would have been members
thereof. Nemo iudex in sua causa or nemo debet
esse judex in propria causa - no one can be judge in
his own cause, is a fundamental principle of law. The Constitution Bench was hearing a
controversy of which they are a party.
Even the concept of doctrine of necessity cannot blindly be accepted as
a justification for violation of the said first principle of natural
justice. However, in the instant case
there was no question of the doctrine of necessity, for, a Bench of 11 Judges
could have been constituted without any one of such a Bench ever becoming a
member of the collegium, if it were to be resurrected, or of the NJAC if it
were to be constituted.
As aforesaid, the Bar and the
Bench are monopolized by the elite class – members of a few scores of families. The Attorney General and the so-called legal
luminaries who represented the State Governments failed to raise the very
fundamental questions, namely, the very non-justiciability, the very lack of
locus standi of the Petitioners in the said PILs. The same has, therefore, in the judgment dated
16th October, 2015 in which no reference at all is made to the
fundamental question of non-maintainability and non-justiciability which Shri
Nedumpara has as a party in person tried to raise, he being present in the Court
on all the 31 days on which the NJAC case was heard. The judgment in the NJAC case is a
catastrophe; two legislations which have received the unanimous approval of
both the Houses of the Parliament and as many as 26 State Assemblies were
struck down not because they have violated the fundamental or constitutional or
legal right of anyone, but on the premise that they violated the basic
structure of the Constitution. The
judgment of the Supreme Court in the NJAC case; so too its judgment in Judges-2
and Judges-3; so too its judgment in Madras
Bar Association v. Union of India, (2014) 10 SCC 1, have reduced the
concept of basic structure of the Constitution to a wax, a concept which could
take any shape as the judges would please to.
The concept of basic structure is in the realm of adjectival law while
the fundamental right is in the realm of substantive law. If no fundamental right is violated there is
no room for invoking the doctrine of basic structure. The ratio of the judgment in Kesavananda
Bharati v. the State of Kerala (1973) Supp. SCR 1 is that
fundamental rights can be allowed to be infringed by an Act of Parliament, but
it should not be to the extent of total destruction thereof.
The power to declare the law
of the land is invested only in the Parliament.
Assuming that such power is invested in the Supreme Court, then the
Court is duty bound to hear the entire citizens of this country. It cannot that the right to be heard is confined
to legal luminaries, howsoever distinguished they could be, for, in the eye of
law, all citizens are equal. Prior to
the hearing of the NJAC case, the Supreme Court did not issue notice to the
public or hear them. The judgment so
rendered is a nullity. The calamity in
the judgments in Judges-2, Judges-3 and the NJAC cases happened only because
since independence the great legal luminaries mesmerized the legal fraternity
and the world at large that judgments of the Supreme Court are laws of the
land. Article 141, which states that “The law declared
by the Supreme Court shall be binding on all courts within the territory of
India”, only means that the judgments of
the Supreme Court are precedents and binding on all Courts and Tribunals of the
country. A precedent is a precedent,
which is applicable not to the parties to the cause but people who are not
parties to the lis; a precedent has to be culled out from the judgment; a
precedent is binding if the judgment is rendered per curiam, while a declaration
of law binds the parties to a proceeding, and binds them absolutely, even if it
is erroneous. There is a subtle but real
difference between a precedent and a declaration of law. To repeat, a precedent is binding when the
judgment is per curiam, whereas a declaration of law is binding, no matter
whether it is per curiam or per incuriam.
The judgments of the Supreme Court in Judges-2, Judges-4 and the NJAC
case, therefore, are liable to be declared as void and the aforesaid Acts are
liable to be declared as Acts of Parliament in the realm of executive and
legislative policy, which is not justiciable.
Since these issues involve the public at large, notice to them under
Order I Rule 8(2) of the Code of Civil Procedure is imperative.
Wednesday, 13 January 2016
APPLICATION FOR RECALL OR REVIEW OF THE ORDER DATED 5TH NOVEMBER, 2015 PASSED BY THIS HON'BLE COURT PREFERRED BY THE PETITIONER IN WRIT PETITION NO.124 OF 2015 SEEKING A DECLARATION THAT THE JUDGMENTS IN JUDGES-2 AND JUDGES-3 CASES ARE VOID; THAT THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014 AND THE NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014; AND THAT APPOINTMENTS OF JUDGES IN TERMS THEREOF BE MADE. THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
REVIEW PETITION (CIVIL) NO. OF 2015
WRIT PETITION (CIVIL) NO. 13 OF 2015
Supreme Court Advocates – on – Record
Association andanother … Petitioner
Versus
Union of India … Respondents
APPLICATION FOR RECALL OR REVIEW OF THE ORDER DATED 5TH
NOVEMBER, 2015 PASSED BY THIS HON'BLE COURT PREFERRED BY
THE PETITIONER IN WRIT PETITION NO.124 OF 2015 SEEKING A
DECLARATION THAT THE JUDGMENTS IN JUDGES-2 AND JUDGES-3
CASES ARE VOID; THAT THE CONSTITUTION (NINETY-NINTH
AMENDMENT) ACT, 2014 AND THE NATIONAL JUDICIAL
APPOINTMENT COMMISSION ACT, 2014; AND THAT APPOINTMENTS
OF JUDGES IN TERMS THEREOF BE MADE.
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF PETITIONER ABOVENAMED
MOST RESPECTFULLY SHOWETH
1. Right to dissent is the very essence of democracy. Democracy
also postulates people as the source of all powers, executive, legislative and
judicial, and those who discharge such powers are thedelegatees/trustees of
the people. The concept of separation of powers is one of the basic features
of the Indian Constitution. It also postulates that the executive of the day is
accountable to the people through the Parliament and will exercise the
sovereign function of the State. The Parliament will enact laws and the
judiciary, which is invested with the power of judicial review, will act as a
‘checks and balances’ where the legislature and the executive fail to act
within the constitutional ethos and limitations.
2. The power of judicial review is one of the most important basic
features of the Constitution. It acts as a bulwark at the hands of the citizens
against executive and legislative transgressions and excesses. Theoretically
speaking, the power of judicial review is invested even in ordinary Civil
Courts, for, it is competent to declare a statutory instrument as void. But, for
all practical purposes, power of judicial review is exercised by High Courts
under Article 226 and the Supreme Court under Article 32 of the Constitution.
Article 32 of the Constitution has invested a right in every citizen to access
the Supreme Court for enforcement of his fundamental rights without
recourse to any other Court. Though there can be no dispute that the power
of judicial review is a very useful instrument to secure the legislative and
executive acts within its domain and they do not resort to oppression and
excesses, the power of judicial review today is so much abused by recourse
to the benevolent jurisprudence called PIL that what is done in the name of
judicial review results in the very opposite. Stated in simple words, the
concept of judicial review is evolved to keep legislative and executive branch
of the State within its legitimate domain. Judicial review was no way
contemplated to destroy the concept of checks and balances and to invest in
the judiciary the province of the executive and legislature or in substitution
thereof. However, the judgments in Judges-2, Judges-3 and Judges-4 cases
have done exactly the same and have undermined the very concept of
judicial review itself, since, when the judiciary acts as if it is the legislature
and the executive, nay, in substitution thereof, all at once, it results in a
situation where there is no forum where the mechanism of judicial review
could be sought against the executive and legislative acts at the hands of the
higher judiciary.
3. The Five-Judge Constitution Bench of the Supreme Court by its
judgment dated 16th October, 2015 in the Judges-4 case was pleased to hold
the Constitution (Ninety-ninth Amendment) Act, 2014 and the National
Judicial Appointment Commission Act, 2014 (“the impugned Acts”, for short)
as unconstitutional and void.While quashing the impugned Acts, it also made
it clear that the pristine constitutional provision as it was originally enacted,
namely, Articles 124 and 217 of the Constitution, will not be revived as it is,
but the said Articles as interpreted in the judgments in Judges-2 and Judges-
3 cases will come into force. The Supreme Court in express terms declared
that the collegium system of appointment of Judges, where the Judges
appoint themselves, which in actual practice meant to be a wholly opaque
and cabal system of appointment where primarily the kith and kin of sitting
and former Judges of the Supreme Court and High Courts, powerful lawyers,
Chief Ministers, Governors et al and a few first generation lawyers who are
all politically connected or are close to big industrial houses are appointed to
the total exclusion of the equally deserving sons and daughters of the
common men, would revive.
4. The Supreme Court was pleased to declare the impugned Acts
as unconstitutional, rejecting the express plea made in Writ Petition No.124
of 2015 that the controversy in question is concerning every citizen of this
country and public notice be issued in terms of Order I Rule 8 of the Civil
Procedure Code, so too to major political parties, Bar Associations and all
stakeholders. The Supreme Court was pleased to declare the impugned
Acts as unconstitutional on the ground that the presence of the Law Minister
and two eminent members is destructive to the doctrine of “judicial
supremacy”. It went on to hold that there is a possibility of the Prime Minister
and the Leader of the Opposition who, along with the Chief Justice of India,
are to elect the two eminent persons, resorting to trade off between them and
the eminent members so elected along with the Law Minister stultifying the
appointment of a person which the ‘judicialcomponent’ of the NJAC
considers worthy to be appointed. Though Justice Chelameswarin his
dissenting judgment, taking note of the very unlikely scenario of the Prime
Minister and the Leader of the Opposition joining hands with the malicious
design to silence the voice of the ‘judicial component’ of the NJAC, which
constitutes to be 50% thereof, suggested that to obviate such a scenario ever
occurring, a ScreeningCommittee could be conceived, limiting the choices of
the eminent persons to be selected by the Committee consisting of the Prime
Minister, the Leader of the Opposition and the Chief Justice of India to those
names selected by the Screening Committee, the majority of the Judges,
however, paid no heed to the said suggestion and the impugned Acts were
struck down as unconstitutional and the collegium system, a system
castigated to be unworthy by all, even by ShriFaliNariman, the most vocal
critic of the NJAC, was allowed to be resurrected. As the Supreme Court of
Pakistan did in the quite recent past, the Supreme Court, while quashing the
said Acts, could have suggested ways and means by which the NJAC could
have improved and the deficiencies it pointed out could have been left to be
cured by the Parliament. But instead the Constitution Bench refused to pay
any heed to the plea that the PILs in challenge of the impugned Acts is a
litigation where every citizen of this country will find his stake involved and
therefore notice to the public at large, Bar Associations and all stakeholders
be issued, and after quashing the said Acts has, by order dated 5th
November, 2015, invited suggestions from the public at large to improve the
collegium system. In doing so, the Supreme Court, it must be stated with
utmost respect, failed to take note of the following aspects:-
(a) That the public at large cannot be asked to give their opinions
and suggestions in a short span of 8 days and that too in the
midst of Diwali Holidays;
(b) If the opinion of the public at large is to be sought, then they
should be free to make their opinion without putting any
restrictions, for, in the order dated 5th November, 2015 the
Supreme Court has said that the suggestions shall be confined
to four aspects, namely:
(i) Transparency
(ii) Collegium Secretariat
(iii) Eligibility Criteria
(iv) Complaints
(c) That the requirement to hear the public at large was before the
case was heard and decided and not subsequent thereto; and
(d) While it was entirely legitimate to hear the public at large before
the case was decided, to hear them after the decision of the
case amounts to legislation in substitution of the Parliament,
nay, even its constituent power.
5. The NJAC case is a classic example of how the Hon'ble Judges
and the legal luminaries appearing for the PIL Petitioners and defending the
Government are unconnected with the common man and simple realities of
life. The following were the pleas of distinguished FaliNariman and his
colleagues, each of which is against the first principle of constitutional law, in
challenge of the impugned Acts:-
(i) The judgment of the Supreme Court is the law of the land.
This is a misconception. The Parliament alone can declare what is
the law of the land. The job of the Supreme Court is only to interpret
the Constitution and the law and the interpretation which it enters is
only a precedent which is binding on the Courts and Tribunals of the
country. Article 141, which is quoted below, expressly states so:-
“141. Law declared by Supreme Court to be binding on all
courts.-
The law declared by the Supreme Court shall be binding on all courts
within the territory of India.”
The Supreme Court cannot declare what the law of the land is
because if it is invested with the power to do so, it must issue notice to
the public at large and hear every citizen. That is not humanly possible
and that is why the Parliament, the delegatee of the people, is
invested with the jurisdiction to enact laws, nay, declare what the law
of the land is. A judgment of the Supreme Court between A and B will
bind only the said A and B. If any principle is evolved in such a
decision, that principle alone is a precedent in another case between
C and D. The concept of judicial review does not invest any power in
the Supreme Court to quash and set aside an Act of Parliament, in the
instant case a constitutional amendment. It will remain in the statute
book, but since we respect the majesty of the Supreme Court, the
legal principle so evolved is respected and the Act of Parliament could
be said to be in a state of eclipse. If this be the undeniable
constitutional principle, the judgments of the Supreme Court in
KesavanandaBharativ. the State of Kerala (1973)Supp. SCR 1,
Minerva Mills v. Union of India (1980) 2SCC 591, WamanRao v.
Union of India, 1981 2 SCC 362, Judges-2 case, M. Nagaraj v. Union
of India, (2006) 8 SCC 212 and I.R. Coelho (Dead) by LR v. State of
Tamil Nadu &Ors.,(2007) 2 SCC 1, all, are in the realm of high
precedential value, commanding great respect, but nothing more.
(ii) The distinguished FaliNariman and other legal luminaries
contended that in KesavanandaBharati and other cases it was
held that independence of judiciary and separation of powers
are basic features of the Constitution and the Parliament even
in exercise of its constituent power is not empowered to enact
even a constitution amendment which will impinge or destroy
the basic feature or structure of the Constitution. It was argued
that the impugned Acts impinge the independence of judiciary,
a basic structure of the Constitution and, therefore, they are
liable to be declared as void. ShriFaliNariman further
contended that a PIL will lie at the hands of the Supreme Court
Advocates on Record Association (SCAORA) for a declaration
that the impugned Acts are void.
The legal luminaries, however, failed to see the obvious that the
doctrine of “basic structure” enunciated in KesavanandaBharati,
known as the Fundamental Rights case, can have application only
where a plea of violation of fundamental rights is raised. SCAORA
had no case that its fundamental rights or those of its members are
infringed. They failed to take notice of the fact that for a PIL to be
maintained, the sine qua non is the existence of an “aggrieved person”
and in the context of Article 32, the person so aggrieved must
complain violation of his fundamental right/s. If there is no violation of
fundamental rights, the jurisdiction under Article 32 cannot be invoked.
In the instant case, SCAORA could not identify as to who is the
person aggrieved and whom it represents. To repeat, for a PIL to be
maintained, there ought to be a “person aggrieved”; he alone can seek
a remedy and where a person aggrieved is unable to institute a
petition to enforce his remedy out of his illiteracy, poverty and other
disadvantages, any person acting pro bono publico can act on his or
her behalf, nay, even a determinative class of persons. But, there
must be a person aggrieved and the person aggrieved must suffer
from a disadvantage or incapacity to approach the Constitutional
Court and seek redressal.SCAORA could not have said that they
represent the 127crores people of this country. If it were to so plead,
the question will arise as to who has authorized it to file the PIL.
6. Though the NJAC case was argued for 31 days and celebrities
like ShriFaliNariman were heard unlimitedly to the fulfillment of their heart,
denying a fair opportunity to the non-celebrity lawyers to plead their points in
support of the NJAC, if two fundamental questions/preliminary issues were
allowed to be raised by the unsung lawyers, there would have been no room
for the so-called PILs to be heard, even for one full day. The challenge to the
impugned Acts was liable to be rejected in limine for the simple reasons that
(i) the said Acts/legislations were not justiciable at all. It is all about the
legislative and executive policy as to how Judges of the superior Courts are
to be appointed; it did not involve any lis, for, a lis would mean assertion of a
right or obligation in his favour by one and denial of the same by the other;
the need to determine the disputed right or obligation by conducting a trial, to
put it very briefly.SCAORAdid not claim that any of its fundamental or legal
right is infringed; nor of any of its members; nor of anyone else. Therefore,
the PIL by SCAORA was not maintainable; the issue involved was not
justiciable at all. The wisdom of the Parliament in adopting a particular
mechanism, namely, NJAC, even while there can be a better mechanism
possible in the eyes of others, is not justiciable. The Parliament’s wisdom
cannot be substituted by that of the Judges. Parliament is right even when it
is wrong in matters of policy – in the same manner as the judgment of the
Supreme Court is final and binding even when it is wrong, provided it is
within its jurisdiction. The remedy open to distinguished FaliNariman and
company was to convince the political leadership or form public opinion to
secure enactment of a law in the realm of appointment of Judges in the
manner they would have wished. Instead of that, to resort to judicial review
is wholly undemocratic and unethical, to say the least.
7. The blame for the seemingly frightening situation as a fallout of
the judgment of the Supreme Court in Judges-4 case holding the impugned
Acts as unconstitutional cannot entirely be put on the shoulders of the legal
luminaries who abused the concept of “basic structure” to its hilt. What
exactly is the meaning of the concept of basic structure evolved by the
Supreme Court in KesavanandaBharati? In the said case the Supreme
Court held that Parliament is competent to enact a law which could alter or
amend any of the Articles of the Constitution, including those concerning
fundamental rights. Fundamental rights canbe curtailed, but such curtailment
should not be to the extent of total abrogation of the same. It went on to hold
that the concept of equality before law, equal opportunities before law, rule of
law etc., should be the basic features of the Constitution. The doctrine of
basic structure can have no application independent of fundamental rights.
Fundamental rights fall in the realm of substantive law; basic structure falls in
the domain of adjectival law. The concept of rule of law, democracy, equality
before law, secularism etc., are the very inalienable, transcendental,
monumental and primordial basic features of the Constitution to secure
fundamental rights. In the instant case, there is no plea of violation of any
fundamental rights and, therefore, the question of emasculation or abrogation
or violation of the basic feature did not arise at all. However, the learned
Attorney General (AG) failed to even raise the plea that the question of
violation of the basic structure did not arise, for, there is not even a complaint
that the impugned Acts result in violation of the fundamental rights of the PIL
Petitioners or anyone else. If the Government, nay, the people of India, have
lost the NJAC case, the blame therefor squarely falls on the AG, the Solicitor
General and the legal luminaries who represented the States. It is not for the
first time that the AGs/legal luminaries have failed to defend the Government,
nay, the people. In Judges-1 case, the locus standi of the Petitioners was
conceded, which cannot be found fault with because the Judges who were
transferred or whose tenure was not extended were parties to the case.
However, in Judges-2 case, it was the duty of the AG/ShriParasaran, who
argued for the Union of India, to raise the plea of non-maintainability of the
petition, but it was not raised at all. In Judges-3 case, it was the duty of the
Union of India to have questioned the correctness of the judgment in Judges-
2 case, but the AG conceded that the correctness of Judges-2 case is not
questioned. In Judges-4 case, the AG failed to assert that the judgments in
Judges-2 and Judges-3 cases were rendered per incuriam. At no point the
AG ever took the plea that the doctrine of basic structure has no application
in the NJAC case. On the contrary, he conceded that he will succeed or fail
depending upon the finding whether the impugned Acts impinge the basic
structure or not.
8. It must be stated, sadly though, that the AG and the legal
luminaries failed to comprehend the principles of constitutional law which a
common man may have no difficulty to grasp. The common man
understands that law making is within the province of the Parliament and
interpretation of the law is in the realm of the judiciary. No one can go to a
constitutional Court unless his fundamental or legal rights are infringed.
While the Supreme Court is final in matters where rights and obligations are
contested between the parties, the Parliament is supreme in so far as what
policy of law is good for the country, and the wisdom of the Parliament
reflects the will of the people and that will is final and no Court can sit in
judgment over the wisdom of the Parliament in matters of executive and
legislative policy unless the law so made is violative of the fundamental
rights.Sublatofundamento, cadit opus.The judgments in Judges-2, Judges-3
and Judges-4 cases are founded on sand, nay, wax called the doctrine of
basic structure which is amenable to be shaped in whatever manner the
Judges could on the erroneous presumption that the right to interpret the
Constitution is in the exclusive domain of the judiciary. The Supreme Court
has seriously erred, nay, beyond imagination, in the Judges-4 case,
preceded by Judges-3 and Judges-2 cases. The damage done is
irreparable. Revival of the collegium, which the Court itself has found to be
imperfect, in the place of the NJAC, which is yet to be experimented, means
a catastrophe, nay, ‘courtostrophe’ to borrow an expression from legendary
Justice Krishna Iyer. Hearing the public at large on the four points identified
by the Court, namely, (i) Transparency (ii) Collegium Secretariat (iii) Eligibility
Criteria and (iv) Complaints, is of no use now. The public ought to
have been heard, if the Court ever felt it to be relevant, when the NJAC case
was being heard for 31 days. An application to that effect was made, which
is quoted as infra:-
‘issue notice to the public at large in terms of Order I
Rule 8(2) of the Code of Civil Procedure, 1908; as also to the
Hon'ble Chief Justices of the 24 High Courts in India through
the Registrar General or such other officer empowered to
receive process on behalf of the Hon'ble Chief Justices in
terms of the Rule or practice in vogue’
As could be seen from above, though a request was made that public at
large be heard in the PILs challenging the impugned Acts, it was not acceded
to. Inviting suggestions from the public at large now and permitting those
representing the stakeholders to argue the case will serve no useful purpose
unless such hearing is on the question of NJAC versus Collegium, which will
mean review of the entire case. The order dated 5th November, 2015,
therefore, is liable to be recalled. The NJAC case has to be heard afresh.
The judgment dated 16th October, 2015 is liable to be reviewed. The order
dated 5th November, 2015 limiting the hearing on the aforesaid four points is
liable to be recalled and the time for the public to submit their suggestions
and representations is liable to be extended, for, the time given is too short
and that too in the midst of the Diwali holidays. The most serious complaint
about the collegium system of appointment of judges by judges themselves
is that the judges except for a few exceptions abused it to its hilt, to their
private gain. Today, the Supreme Court is literally the Sons Court of India,
almost one-third of the judges, if not, more are the sons of the former judges.
The statistics which the author could collate indicate that almost every judge
who was appointed as such before the age of 46 were the sons, son-in-laws
and nephews of the former judges, nay, their kith and kin. The Indian
judiciary has been reduced to a family business, unfortunately, is the
perception. The legal profession has been literally monopolized by the kith
and kin of judges and powerful lawyers; either as judges or as senior
lawyers. The ordinary lawyer, the sons and daughters of farmers, taxi drivers,
teachers, small-time traders, the common man, all, stand completely
excluded. There is no diversity. The collegium system is ill-conceived; it is
illegitimate. By no means can it be improved. NJAC is the only solution. If
NJAC is deficient, it ought to be improved. Suggestions ought to have been
invited on improving the NJAC and not of the collegium. To err is human. The
Supreme Court has erred. The pertinent question is: would the Hon’ble
judges be gracious enough to hold the mirror unto them, introspect, and
acknowledge that they have erred; erred grievously. If that happens which is
the fond hope of the author, then, the hearing to be held on 18th and
19thinstant ought to be on: Why improve the opaque collegium, why not
improve the NJAC?
Hence, the instant application.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously
be pleased to:
a) review its judgment dated 16th October, 2015 passed in the
above Writ Petitions and PILs; hear the said petitions afresh;
recall its order dated 5th November, 2015 limiting the hearing on
the four points specified therein as so how to improve the
collegium system which the five judge constitutional bench in its
judgment dated 16/19/2015 was pleased to hold it to be opaque
and unworthy as one which had resulted in corruption and
nepotism and instead to seek opinions and suggestions from
the public at large as to how the NJAC which is yet to be
tested, and of which no deficiency or mischief are proved, could
be further improved and strengthened so that the most suitable
and eligible alone are appointed as the judges of the High
Courts and Supreme Court; and further that the time for the
public to submit their suggestions and representations be
extended, for, the time given was too short and that too in the
midst of the Diwali holidays that the public at large who wanted
to make their submissions and suggestions are denied of their
valuable right to do so;
b) pass any such other order or orders/directions as this Hon’ble Court
may deem fit and proper in the interest of justice.
DRAWN BY FILED BY
(A.C.Philip) (Mathews J.Nedumpara)
Advocate Party in person
New Delhi,
Drawn on :
Filed on :
Bijoy Krishna Adhikari, WP in SC
WRIT PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF
Bijoy Krishna Adhikari,
Advocate, adult, Indian Inhabitant,
residing at _____________________ …PETITIONER
1. The Supreme Court of India,
Tilak Marg,
New Delhi 110 001, represented by
its Registrar General.
2. The Union of India,
represented by its Secretary,
Department of Legal Affairs,
____________________
New Delhi- 110 001.
3. The President,
Supreme Court Bar Association,
Supreme Court of India,
New Delhi 110 001.
4. The President/Secretary,
Supreme Court Advocates on Record
Association, Supreme Court of India,
New Delhi 110 001.
5. The Chairman,
Bar Council of India,
21, Rouse Avenue,
Institutional Area,
New Delhi-110 002.
6. The Chairman,
Law Commission of India,
14th Floor, Hindustan Times House,
Kasturba Gandhi Marg,
New Delhi-110 001.
7. Attorney General Of India,
10, MotiLal Nehru Marg,
New Delhi-110 01.
8. The Solicitor General of India,
A-47, Kailash Colony,
New Delhi-110 048.
9. Ms. Indira Jaising,
Advocate,
_____________________________ …RESPONDENTS
PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA.
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. The Petitioner is an Advocate enrolled with the Bar
Council of Kolkata in the year ___________ and has
been practicing since then in the various Courts and
Tribunals in the country, including this Hon'ble Court and
various High Courts. The Petitioner is instituting the
instant Writ Petition for the enforcement of his
fundamental and legal rights, for the writ jurisdiction
under Articles 32 and 226 of the Constitution is available
besides the original jurisdiction in the Civil Court as a
Court of record and Court of plenary jurisdiction
empowered and duty bound to embark upon any
controversy of a civil nature under the sun. Though the
forum of ordinary Civil Court is certainly available to the
Petitioner, he considers that invocation of the
jurisdiction of this Hon'ble Court under Article 32 would
be more appropriate.
2. The instant Writ Petition is instituted by the Petitioner,
as aforesaid, for enforcement of his constitutional and
legal remedies, though the issue which the Petitioner
raises here is of paramount public interest; so too an
issue where every lawyer who is not designated as a
Senior Advocate and who has been subjected to unfair
and discriminatory treatment in all conceivable ways and
in particular in Courts and Tribunals where their
arguments are not listened with due weightage, not
because the questions of law and facts they raise are
less worthy of such weightage but for the mere reason
that such arguments are advanced by a lawyer who is
not designated as a Senior Advocate is equally
concerned. In short, the instant Writ Petition is one
involving larger public interest and not merely one
involving infringement of the Petitioner’s constitutional
and legal rights, but still it is not a PIL. PIL as
envisaged by the legendary Judges like P.N. Bhagwati,
Y.V. Chandrachud, V.R. Krishna Iyer et al, only meant
that where a person whose constitutional and legal
rights are infringed and who out of his poverty,
ignorance, illiteracy and other disadvantages is unable
to approach a constitutional Court, any person acting
pro bono publico can, without any express authority
from the person aggrieved, act on his behalf. PIL only
meant relaxation of the concept of locus standi to make
justice delivery system accessible to the poor, illiterate
and such others. However, PIL, today, which one of the
greatest propounders of the said benevolent
jurisprudence as it was originally understood, had been
castigated to be reduced to a “ravenous wolf in sheep's
clothing”.
3. The legal status of the Respondents is manifest from the
very cause title. Nonetheless, it may be stated that the
Supreme Court of India through its Registrar General is
arraigned as a party Respondent since in the instant
Writ Petition the constitutional validity of Sections 16
and 23 of the Advocates Act, 1961 (“Act”, for short) is
challenged; so too of Rule __ of the Rules framed by the
Supreme Court of India in exercise of its powers under
Section __ of _____________/Article __ of the
Constitution of India. The Union of India is arraigned as
a party since no declaratory remedy that a statutory
provision/instrument is void could be sought without it
being made a party; so too the learned Attorney
General. The Supreme Court Bar Association and the
Supreme Court Advocates on Record Association are
arraigned as Respondents because, in the Petitioner’s
humble opinion, they are necessary and proper parties,
for, their views on the issue raised herein are of
paramount importance, be it in support or against. The
same reason equally applies to the Bar Council of India
and the Law Commission. Ms. Indira Jaising is made a
party since she, claiming to be acting in pro bono
publico, though manifestly only exposing the cause of a
few Advocates, who had secured recommendations of
five Hon'ble Judges of this Hon'ble Court and despite
such recommendations were not designated as Senior
Advocates as the Hon'ble Chief Justice of India felt it
more appropriate that a voting system would be moiré
fair, has filed a Writ Petition under Article 32 of the
Constitution, which has since been numbered as 454 of
2015 under the caption “PIL”, which is pending. The
Petitioner considers it only appropriate to implead in the
instant Writ Petition the learned Advocate Generals of
the various States, but craves leave of this Hon'ble
Court to do so in due course.
4. The Advocates Act, 1961 (“Act”, for short), which was
enacted to give effect to the recommendations made by
the All India Bar Committee in the year 1953, taking
also into account the recommendations of the Law
Commission in the realm of judicial administration,
provides for establishment of an All India Bar Council,
integration of the Bar into a single class of legal
practitioners known as Advocates, prescription of
uniforms and qualifications for admission into the
profession of law, creation of autonomous Bar Councils,
one for all India and the other for the individual States.
The Act also provided for division of Advocates into two
classes, one as “Senior Advocates” and the other as
“Advocates”, based on merit. The words “based on
merit” [where exactly are these words appearing? The
words appearing in sub-Section (2) of Section 16 are “by
virtue of his ability, standing at the Bar or special
knowledge or experience in law”] are very important to
be noticed. The Act, in enacting Section 16, which
provides for division of lawyers as Senior and other
Advocates, has chosen to adopt the system prevalent
prior to independence when neither Constitution of India
nor Articles 14, 19 and 21 thereof were in existence.
The division of lawyers as upper class and lower class is
a vintage of the feudal system. Legal profession was
considered to be a noble one, for only the feudal lords
alone took up the said profession and all lawyers and
Judges were the elite, the feudal lords, the blue blooded
aristocratic class. Mahatma Gandhi had dealt with about
it briefly in his autobiography “My Experiments With
Truth”. All the Queen’s counsel were recognized as
Senior Counsel who, by tradition, were elevated as
Judges. The legal profession in India too, during the
pre-independence era, was primarily dominated by the
elite, the feudal lords, the upper class and the rich.
Dr. B.R. Ambedkar was the sole exception.
5. The Petitioner begs to refer to the recommendations of
the Law Commission of India; so too of the All India Bar
Committee which, if one were to make an objective
reading, contain no justification for continuation of the
English tradition of Queen’s counsel and others. The
said recommendations, which offer no rational basis for
division of Advocates into two classes, unfortunately,
happened to be enacted into law by virtue of Sections 16
and 23 of the Act. Section 16, which permits the
division of lawyers into two classes, is extracted below
for ready reference:-
“16. Senior and other advocates. –
namely, senior advocates and other advocates.
designated as senior advocate if the Supreme Court or a
High Court is of opinion that by virtue of his ability, standing
(1) There shall be two classes of advocates,
(2) An advocate may, with his consent, be
at the Bar or special knowledge or experience in law he is
deserving of such distinction.
practice, be subject to such restrictions as the Bar Council of
India may, in the interest of the legal profession, prescribe.
senior advocate of that Court immediately before the
appointed day shall, for the purposes of this section, be
deemed to be a senior advocate:
an application before the 31st December, 1965, to the Bar
Council maintaining the roll in which his name has been
entered that he does not desire to continue as a senior
advocate, the Bar Council may grant the application and the
roll shall be altered accordingly.”
(3) Senior advocates, shall in the matter of their
(4) An advocate of the Supreme Court who was a
Provided that where any such senior advocate makes
6. Under the English tradition, the Queen’s counsel
representing the realm had always a right of pre-
audience. By virtue of Section 23 of the Act, the said
practice came to be enacted as the law of the country.
The Petitioner has no qualm about it. Under Section 23,
the Attorney General; so too the Solicitor General,
Additional Solicitor General and Advocate Generals are
invested with the right of pre-audience. Sub-sections
(1) to (4) of Section 23 deal with the right of pre-
audience which they enjoy. The Petitioner has no
quarrel about it, but in addition to the right of pre-
audience given to them by virtue of sub-Section (5) of
Section 23, “Senior Advocates” too shall have right of
pre-audience over other Advocates. The said provision
strikes Articles 14, 19 and 21 of the Constitution, which
are to be read together, at their very root. Apart from
the Law Officers representing the Central and State
Governments, as aforesaid, lawyers who are designated
as Senior Advocates, by virtue of Section 16 and sub-
Section (5) of Section 23 of the Act, enjoy a right of pre-
audience over other Advocates. The said provisions
mean cementing further the casteism, the menace of
upper class and lower class, a curse of the country for
centuries, being allowed to be statutorily recognized in
the legal provision. The ramification thereof to state it
to be catastrophic is an understatement. Section 23 of
the Act is extracted for ready reference as infra:-
“23. Right of pre-audience. –
(1) The Attorney General of India shall have pre-audience
over all other advocates.
(2) Subject to the provisions of sub-section (1), the
Solicitor-General of India shall have pre-audience over all
other advocates.
(3) Subject to the provisions of sub-sections (1) and (2),
the Additional Solicitor-General of India shall have pre-
audience over all other advocates.
(3A) Subject to the provisions of sub-sections (1), (2)
and (3), the second Additional Solicitor-General of India
shall have pre-audience over all other advocates.
(4) Subject to the provisions of sub-section (1), (2), (3)
and (3A) the Advocate General of any State shall have pre-
audience over all other advocates, and, the right of pre-
audience among Advocates-General inter se shall be
determined by their respective seniority.
(5) Subject as aforesaid-
(i) Senior advocates shall have pre-audience over
other advocates; and
(ii) The right of pre-audience over senior advocates
inter se and other advocates inter se shall be determined by
their respective seniority.”
7. The casteism prevalent in the legal profession meant
that the elite class of, say 5000, could monopolize 95%
of the revenue from the legal profession, which today is
nothing but an industry, the Petitioner is extremely
painful to say so, and which is cornered by 5% of the
legal fraternity. The said 5% are the elite class
consisting of 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
voice of the other first generation lawyers, the sons and
daughters of ordinary citizens, farmers, school teachers,
taxi drivers etc., who come from far flung villages of the
country and who had not the privilege of being educated
in public schools, is never heard. The high judiciary in
India, be it elevation of an Advocate as a Judge of the
Supreme Court or of a High Court or designation of an
Advocate as a Senior Advocate, has been allowed to be
vitiated by private interest, the interest of 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.
8. Section 23 (5) of the said Act, which confers a privilege
upon a Senior Advocate for pre-audience over other
Advocates, is in patent violation of the principles of
equality before law under Article 14 and right to practise
any profession, or to carry on any occupation, trade or
business under Article 19. The Petitioner’s experience
as a lawyer of ___________ years’ standing convinces
him that “lower caste” lawyers who come from humble
backgrounds, who have studied in vernacular language,
sons and daughters of farmers, school teachers, taxi
drivers etc, far excel the elite class of lawyers who are
designated as Senior Advocates when it comes to depth
of knowledge, elegance and style of drafting etc. He can
cite hundreds of examples in this regard. But such
talented lawyers - merely because they have no
godfather, they are not the kith and kin of Judges and
other elites, they do not belong to the chambers of
celebrated lawyers – are never allowed to blossom and
their talents are nipped in the bud itself. It is time that
the cabal system of designation of a lawyer as a Senior
Advocate is dispensed with and all lawyers are treated
equally. By doing so, no heaven will fall; all that could
happen is to bring an end to the inbreeding. If the
current system of the kith and kin of sitting and former
Judges of the Supreme Court and High Courts,
celebrated lawyers, Chief Ministers, Governors et al,
monopolizing the august office of the Judges of the
higher judiciary, so too being designated as Senior
Advocates, will continue, then the Indian judiciary will
be deprived of the diversity of genes which alone could
provide immunity to the corpus of the legal
profession/judiciary to protect itself from the diseases
such as corruption, nepotism and malpractices. Neither
in animal kingdom nor in plants inbreeding is permitted;
it is against the very law of the nature. It is worthwhile
to note that certain species like elephant foot, nay, even
banana plants have become extinct because of
inbreeding, being divested itself of its vital diverse
genes, which alone could have protected it from the viral
attacks. (Paragraphs 7 and 8 above are from the letter
to Ms. Jaising, with suitable editing)
9. The Petitioner has not filed any other Petition/Appeal/
Application before this Hon’ble Court or any other High
Court seeking similar reliefs as are sought in this Writ
Petition.
It is, therefore, most respectfully prayed that this Hon’ble
Court may graciously be pleased to:
a) declare that Section 16 of the Advocates Act,
1961, which permits division of lawyers as Senior
Advocates and other Advocates, which in other
words means upper class and lower class lawyers,
and sub-Section (5) of Section 23 thereof, which
confers upon the Senior Advocates, who often
represent the cause of the elite, the rich and the
powerful and at times are pitted against the poor
and the hapless, a right of pre-audience over other
Advocates, are unconstitutional and void inasmuch
as such division/classification of lawyers into two
classes and discriminatory treatment of affording
pre-audience to one class of lawyers are violative
of the equality clause, nay, the very basic structure
of the Constitution, so too Articles 19 and 21,
which are to be read together with Article 14
thereof;
b) declare that Rule __ of the _____________ framed
by the Supreme Court of India in exercise of the
powers conferred upon it under
________________ by which an Advocate is
designated as a Senior Advocate is void ab initio;
c) declare that designation of an Advocate as a Senior
Advocate in terms of Section 16 of the Advocates
Act, 1961 and Rule __ of the _____________
framed by the Supreme Court of India in exercise
of the powers conferred upon it under
________________ by which an Advocate is
designated as a Senior Advocate and in the case of
State Bar Councils the Rules made by the various
High Courts are void ab initio inasmuch as once
Section 16 of the Advocates Act, 1961 is declared
to be void, as a necessary consequence thereof, all
designations as Senior Advocates made since 1961
till date are also liable to be declared as void,
sublato fundamento, cadit opus – the foundation
being removed, the structure falls;
d) declare that the right of pre-audience given to
Senior Advocates in terms of sub-Section (5) of
Section 23 of the Advocates Act, 1961 is
unconstitutional and void and further to grant a
writ of injunction or prohibition against granting
such right of pre-audience or any other privilege to
Advocates designated as Senior Advocates; and
e) pass such further and other orders as this Hon’ble
Court may deem fit and proper in the facts and
circumstances of the case as also in the interest of
justice.
DRAWN BY FILED BY
(MATHEWS J. NEDUMPARA) (RABIN MAJUMDER)
Advocate Advocate for the Petitioner
New Delhi
Drawn on : __.10.2015
Filed on : __.10.2015
Hence this Writ Petition.
WRIT PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF
Bijoy Krishna Adhikari ... PETITIONER
The Supreme Court of India & Ors. … RESPONDENTS
ADVOCATE FOR THE PETITIONER : RABIN MAJUMDER
Sl. No. Particulars Page Nos.
1. Listing Proforma
2. Synopsis and List of Dates
3. Writ Petition with Affidavit
WRIT PETITION (CIVIL) NO. OF 2015
IN THE MATTER OF
Bijoy Krishna Adhikari ... PETITIONER
The Supreme Court of India & Ors. … RESPONDENTS
I, Bijoy Krishna Adhikari, Advocate, residing at
__________________, presently having come down to Delhi,
do hereby solemnly swear and affirm as follows:-
1. That I am the Petitioner in the above mentioned
case and I am fully conversant with the facts and
circumstances of the case. Hence, I am competent to swear
to this Affidavit.
2. That the accompanying Writ Petition containing
paragraphs 1 to __ at pages to and Synopsis at pages
B to have been drafted by our Counsel on our instructions.
I have read and understood the contents of the same,
which are true and correct to the best of my knowledge and
belief. No part of it is false and nothing material has been
concealed therein.
3. That the Annexures filed along with the Writ
Petition are true and correct copies of their respective
originals, which form part of the records of the Courts below.
(There are no annexures, please)
Verification
I, the above named Deponent, do hereby verify and state that
the contents of this Rejoinder Affidavit are true and correct to
my knowledge and belief. No part of it is false and nothing is
concealed therefrom.
Verified at New Delhi on this the __ day of October, 2015.
DEPONENT
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