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.
No comments:
Post a Comment