IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO. OF 2015
IN
WRIT PETITION (CIVIL) NO. 13 OF 2015
Supreme Court Advocates – on – Record
Association and another … 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.
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. 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 the delegatees/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 judicial element of the NJAC considers worthy to be appointed. Though Justice Chelameswar in 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 element 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 Shri Fali Nariman, 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:-
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;
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:
Transparency
Collegium Secretariat
Eligibility Criteria
Complaints
That the requirement to hear the public at large was before the case was heard and decided and not subsequent thereto; and
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 Fali Nariman and his colleagues, each of which is against the first principle of constitutional law, in challenge of the impugned Acts:-
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 Kesavananda Bharati v. the State of Kerala (1973)Supp. SCR 1, Minerva Mills v. Union of India (1980) 2 SCC 591, Waman Rao 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.
The distinguished Fali Nariman and other legal luminaries contended that in Kesavananda Bharati 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. Shri Fali Nariman 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 Kesavananda Bharati, 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 127 crores 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 Shri Fali Nariman 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.SCAORA did 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 finding even when it is wrong, provided it is within its jurisdiction. The remedy open to distinguished Fali Nariman 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 stilt. What exactly is the meaning of the concept of basic structure evolved by the Supreme Court in Kesavananda Bharati? 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 can be 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/Shri Parasaran, 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. Sublato fundamento, 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, 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:-
(To be quoted)
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. Hence, the instant application.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:
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; and the time for the public to submit their suggestions and representations be extended, for, the time given is too short and that too in the midst of the Diwali holidays;
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 :
