IN THE SUPREME
COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. OF 2016
(D)No.7993/2016
IN THE MATTER OF
Mathews J. Nedumpara …PETITIONER
Versus
The
Union of India & Ors. …RESPONDENTS
SYNOPSIS
AND LIST OF DATES
The Petitioner is a
citizen of India and is a lawyer by profession, enrolled with the Bar Council
of Kerala in 1984, and in active practice since then. The instant Writ Petition is filed for the
enforcement of his fundamental rights as enshrined in Articles 14, 19 and even
21 of the Constitution, which the Petitioner asserts to be violated by the
judgments of this Hon'ble Court in Judges-2, Judges-3 and Judges-5, namely, the
majority judgment dated 16th October, 2015 in the NJAC case (Supreme Court Advocates on
Record Association v. Union of India and others), the orders dated 05.11.2015
& 19.11.2015 and the further orders dated 16.12.2015 passed by this Hon'ble
Court by which it brought back the collegium system in full swing even while in
its judgment dated 16th October, 2015 it was pleased to hold that
the collegium system has failed; that it has given room for many a genuine
grievances; that it required improvement and that the solution therefore is “glasnost”
and “perestroika”. Aggrieved by the judgment dated 16th
October, 2015, which meant this Hon'ble Court having entertained a challenge on
the Constitution (Ninety Ninth Amendment) Act, 2014 and the National Judicial
Appointment Commission Act, 2014, legislations in the realm of executive and
legislative policy, bringing in thereby the NJAC, a remedy which the
Parliament, which is the voice of the people, in its wisdom felt to be the
appropriate remedy to undo the mischief which the collegium system constitutes
to be, the Petitioner instituted a Writ Petition seeking a declaration that the
aforesaid judgments of the Supreme Court are void by recourse to the procedure
called review.
Since
review petitions are decided by circulation and are not listed for hearing in
the open Court, which for all practical purposes means the procedure of review
redundant, the Petitioner filed an application seeking the hearing of the review
petition in the open Court. To secure
such a hearing in the open Court, the Petitioner sought constitution of a Bench
by mentioning at 10.30 a.m. on 11 Jan 2016 before the Hon'ble Chief Justice of
India (CJI). Upon His Lordship being
pleased to direct the Petitioner to mention before Hon'ble Shri Justice J.S.
Khehar, who headed the Constitution Bench in the NJAC case, a request was made
to that effect before His Lordship in the open Court, but the said request was
declined. Thereupon the Petitioner mentioned
once again before the Hon'ble CJI, though in vain. Thereafter the Petitioner, placing faith in
the dictum nihil desperandum – never
despair – of Marcus Tullius Cicero, the greatest lawyer ever lived on the
planet, mentioned the matter before Hon'ble S/Shri Justices Jasti Chelameswar
and Kurian Joseph, but, the Petitioner is afraid to say, in vain. Thereafter the Petitioner mentioned once
again before Hon'ble Shri Justice Khehar on 08/02/2016 while His Lordship was
presiding over a Five-Judge Constitution Bench constituted to hear an issue
altogether different since the Petitioner’s review petition was, as per the
Cause List, listed at 1.30 p.m. on that day.
The said review petition was dismissed.
While
the Supreme Court Advocates on Record Association instituted the PIL seeking to
quash the Constitution (Ninety Ninth Amendment) Act, 2014 and the National
Judicial Appointment Commission Act, 2014, the instant Petitioner in Writ
Petition No.124 of 2015 sought a declaration that the judgments in Judges-2 and
Judges-3 cases are void; that the supreme Court is invested with no power to
declare what the law of the land is; that the power to declare what the law of
the land is in the exclusive domain of the legislature; that the concept that a
judgment of the Supreme Court constitutes to be the law of the land and that is
what is provided in Article 141 of the Constitution is a misconception; that
Article 141 only provides that a judgment of the Supreme Court in a case
between A and B, if it contains a ratio, is binding when similar dispute or
controversy arises between C and D as a precedent of great
authoritativeness and nothing more; and
that the judgments in Judges-2 and Judges-3 cases are wholly erroneous and
void, for, they are founded on the premise that Articles 141 invests in the
Supreme Court the power to declare what the law of the land is. However, in the judgment dated 16th
October, 2015, running into more than a thousand pages, there is not even a
whisper on merits about Writ Petition No.124 of 2015 wherein the Petitioner had
sought declarations as aforesaid; so too to the plea of the Petitioner that the
challenge of the Constitution (Ninety Ninth Amendment) Act, 2014 and the
National Judicial Appointment Commission Act, 2014 is wholly not maintainable,
the said Acts being legislations in the realm of executive and legislative
policy and hence non-justiciable. Hence
the instant Writ Petition (Civil).
The List of Dates
31.12.2014 Constitution (99th
Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014
are passed by the Parliament of India.
15.04.2015 Constitution
(99th Amendment) Act, 2014 and the National Judicial Appointment
Commission Act, 2014 are notified by the government of India as operational.
16.10.2015 The Constitution Bench of this
Hon’ble Court declared the Constitution (99th Amendment) Act, 2014
and the National Judicial Appointment Commission Act, 2014 as void and
unconstitutional.
03.11.2015 Further
sitting of the Constitutional Bench, after passing the final order and
judgment, for the improvement of the collegium system.
05.11.2015 The
Constitutional Bench of this Hon’ble Court, invite the public opinion on the
issue of improving the collegium system. 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 could not 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 under Order-I, Rule 8(2) of the code of Civil Procedure Code,
1908 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.
18 & 19.11.2015
Further sitting of the Constitutional Bench, hearing the public opinion.
19.11.2015 Further
orders of this Hon’ble Court by its Constitutional Bench for the revival of the
collegium, without causing any improvement, as
sought by the constitution Bench of this Hon’ble Court or suggested by
the public at large, reserving the order and concluding the hearing.
16.12.2015 Final
order of the Constitutional Bench of this Hon’ble Court, disposing of the
petitions, keeping the improvement of the collegium unfinished, and leaving to
the Union Government for the issue of Memorandum of Procedure for the
appointments Judges, and the expected and most promising ‘Perestroika’ and
‘Glasnost’ being dumped to the drains, and further allowing the imperfect
system of collegium to function, causing serious damage and prejudice to the
interest of the Nation as well as the independence and reputation of judiciary.
29.02.2016 The
instant Writ Petition (Civil) Filed.
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIA SEEKING DECLARATION AND OTHER RELIEFS.
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 a citizen of India. He was
enrolled as an Advocate in the year 1984 with the Bar Council of Kerala and has
been in active practice since then. The
Petitioner begs to state, even at the risk of being misunderstood to be
praising himself, that during his practice as a lawyer over three decades, he
has had occasion to deal with almost all branches of law in the different
Courts in the country. Currently he
appears in the High Courts of Bombay, Delhi, Kerala and Punjab and Haryana and,
of late, in the Supreme Court of India, as well. The Petitioner, therefore, considers himself
to be eligible to apply for the august office of the Judge of a High Court of
the country or of the Supreme Court, while in all humility concedes at the same
breath with least hesitation that the authorities invested with the power of
selection and appointment of Judges under the Constitution of India may find
him ineligible for the post, which fact or finding he is too willing to accept
with all humility and grace.
2. The
Petitioner, who is leading a campaign titled ‘National Lawyers’ Campaign for
Judicial Transparency and Reforms’, has observed since the judgments of the
Supreme Court in Judges-2 and Judges-3 cases that selection and
appointment of Judges to the Supreme Court and High Courts have largely been of
the elite class of lawyers, namely, 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 Petitioner, with great amount of pain,
begs to further submit that Judges so appointed, who constitute to be the super
elite class among lawyers, in turn appointed their kith and kin, relatives and
friends as Senior Advocates. The fallout
thereof is disquieting. The sons and daughters
of common men, taxi drivers, teachers, farmers, small traders and vendors those
in the private and public sector in the lower rungs, who constitute to be 98%
of the legal fraternity, have no place anywhere near the higher echelons of
judicial office. However, there are some
exceptions and the world knows the reasons, the Godfathers and the connections
they had. With the Bench and the Bar,
the latter for all practical purposes means the elite class of lawyers
mentioned above, literally being under the monopoly of the elite upper class meant
another class, a miscellaneous or lower caste, of lawyers who are literal
untouchables in the sanctum sanctorum of the Temples of Justice. The casteism in the legal profession, though
not on the lines advocated by Manu, is a reality. The Petitioner believes that he has no reason
to hesitate to admit that he belongs to the untouchable class of lawyers who
have no Godfathers.
3. The
Petitioner is no great admirer of the system which was in prevalence prior to
1993 when the executive appointed Judges of the higher judiciary in
consultation with the Chief Justice of India (CJI) in the case of the Supreme
Court and the Chief Justices of the High Courts as well, in the case of High
Courts. But the collegium system, an
offspring of the judgments in Judges-2 and
Judges-3 cases, a mechanism to insulate
judicial appointments uninfluenced by extraneous considerations and to secure
appointment of the most deserving, has, far from achieving the said goal, led
to oligarchy, to borrow an expression of the legendary Justice Krishna Iyer,
who was the greatest critic of the collegium system. The painstaking study undertaken by the
Petitioner of the judgments in Judges-1,
Judges-2 and Judges-3 cases, so too the judgment of the Full Bench of the
Supreme Court in Kesavananda Bharati v. the State of Kerala (1973)
Supp. SCR 1, made him realize that the judgments in Judges-2 and Judges-3
cases are rendered per incuriam and
the judgment in Kesavananda Bharati, though one elevated to the status of Bible and Bhagwat Geeta and
therefore of which no criticism could be made, is a judgment against the basic
tenets of jurisprudence, and the judgments in Judges- 1,2 and 3 cases, to a large extent, are the products of the
mischief of the purported ratio of Kesavananda Bharati. The
Petitioner also realized that the sole reason for the national calamity, which
the judgments in Judges-2 and Judges-3 cases are, is the admission of
‘locus standi’ as to the maintainability of Judges-1&2 cases and the
concession made by the then Attorney General in Judges-3 case that the Government
of India is not seeking a review of the judgment in Judges-2 case as “the law
of the land”. The Petitioner,
accordingly, instituted a Writ Petition, namely, Writ Petition No.214, in the
Supreme Court in the month of April, 2014 seeking a declaration that the
judgments in Judges-1,2 and Judges-3 cases are void; that the
appointment of Judges has to be made in terms of the very text of the
Constitution; and that even if the judgments in Judges-2 and Judges-3
cases are to be held as good law, then also within the ambit of the said
judgments an open and transparent selection and appointment of Judges by
advertising the vacancies, inviting applications from public at large is
possible. The reliefs sought for in the
said Writ Petition were as infra:-
i.
the said judgments, in so far as they have meant tearing off of the Constitution in the name of
interpretation/construction of the said provisions, travel far beyond it and
are void and the constitutional provisions as framed by the Founding Fathers
and enacted into law continue to be in force and that it is absolutely possible
to make an open and transparent selection and appointment of Judges by
notification of the vacancies by advertisement and open selection pending
completion of the legislative process of amendment of the Constitution by
virtue of Constitution (121st Amendment) Bill, 2014 and enactment of
the National Judicial Appointment Commission Bill, 2014 into a law;
ii.
issue a writ of mandamus or any other appropriate writ, order or
direction, directing the Respondents, particularly the Union of India, the Hon'ble Chief Justice of India and the
Hon'ble Justices constituting the members of the collegium in the Supreme
Court, the Hon'ble Chief Justices of the High Courts and the Hon'ble Justices
constituting the members of the collegium in the High Courts to advertise the
vacancies of the posts of Judges of the Supreme Court and the High Courts,
invite applications from all eligible candidates as also recommendations and
references from all stakeholders, including the members of the Bar, Bar
Associations, sitting and retired Judges, leaders of political parties and
NGOs, which will ensure a large pool from which selection of Judges could be
made, diametrically opposite to the small pool of kith and kin of Judges and
those mostly connected with the Judges who constitute the collegium, as is the
present practice, notify the names and particulars of the candidates who are
found eligible and selected, invite objections, if any, from public at large so
that appointments in terms of Articles 124 and 217 of the Constitution of India
are made possible, even while retaining the mechanism of collegium, though the
Petitioner in no way endorses it, till the Constitution (121st Amendment) Bill, 2014 and the National Judicial
Appointment Commission Bill, 2014 become laws, the former having received the
assent of majority of the States;
iii.
issue a writ in the nature of prohibition or any other
appropriate writ, order or direction restraining and prohibiting the collegium
of the Supreme Court of India headed by the Hon'ble Chief Justice of India; so
too the collegiums of the High Courts headed by their respective Chief Justices
from making recommendation for appointment to the august office of the Judges
of the Supreme Court and the High Courts in the cabal manner, as is the present
case, without notification of the vacancies by advertisement and inviting
applications from all eligible candidates, references and recommendations from
the Members of the Bar, Bar Associations, sitting and retired Judges and the
public at large and without making public the names of the candidates who are
selected and further to restrict and prohibit the Union of India from
proceeding upon the recommendations, if any, under process, one rendered in a cabal
manner, till the Constitution (121st
Amendment) Bill, 2014 is ratified by majority of the States and becomes
a law; so too the National Judicial Appointment Commission Bill, 2014;
1.
While
the said Writ Petition was pending, the NDA Government in terms of the promise made by it in its
election manifesto of an open and transparent selection and appointment of
Judges to the higher judiciary, brought in the Constitution (121st Amendment) Bill, 2014 and the National
Judicial Appointment Commission Bill, 2014.
The said Bills were passed by both the Houses of the Parliament,
received the assent of the President of India on 31st December, 2014
and became the Constitution (Ninety-ninth Amendment) Act, 2014 and the National
Judicial Appointment Commission Act, 2014 (the Acts, for short). However, they were not notified. The Petitioner accordingly instituted Writ
Petition No.124/2015 in the Supreme Court seeking a mandamus to the Union of
India to notify the said Acts, frame rules and thereby make open and
transparent selection and appointment of Judges, allowing the long cherished
dream of the people a reality.
4. In the meanwhile, certain first class lawyers, the so-called
legal luminaries, mesmerized the people of this country and ordinary lawyers to
believe that a judgment of the Supreme Court in a case between A and B is not
merely a precedent when a case between C and D involving the same issues, but
is the “law of the land”; that it is not the Parliament which declares the law
of the land, but the Supreme Court, and filed petitions under Article 32 of the
Constitution titling them as PILs, which later came to be known as the NJAC
case.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, the PIL had been castigated to be a “ravenous
wolf in sheep's clothing” by none other than legendary Krishna Iyer, one of the
very architects of the said benevolent jurisprudence. Thus, though PIL was not meant to be a device
to substitute the executive and legislature by Courts and the Courts to act as
if it is the executive, legislature and judiciary, all at once, the legal
luminaries and some among them, who are accused of running a Rs.500 crore PIL
industry, hypnotized the people of this country and ordinary
lawyers and made them to think otherwise.
5. To
invoke the jurisdiction of the Supreme Court under Article 32 of the
Constitution, there must be a “person aggrieved”. One could be said to be a person aggrieved
where his fundamental rights are infringed.
The Acts in question, the Petitioner begs to submit, cannot be said to
infringe the fundamental rights of anyone, for, the said enactments are
enactments in the realm of executive and legislative policy, which are wholly
non-justiciable. Yet, the Supreme Court
Advocates on Record Association (SCAORA) instituted a Writ Petition under
Article 32 seeking a declaration that the said Acts are unconstitutional
without a plea that their or their members’ fundamental rights are
violated. The learned Advocate General
was duty bound to raise the plea of non-maintainability of the said Writ
Petition, for, to repeat, for maintenance of a PIL there must be a person
aggrieved and SCAORA and the Bar Association of India, the Petitioners in the
Writ Petitions, have not stated who is the person aggrieved; that the only persons who can be said to be
aggrieved are the Judges of the High Courts and the Supreme Court who could be
said to be invested with a legitimate expectation, an equitable right, for elevation
as a Judge of the Supreme Court or as the Chief Justice of a High Court, but
they were not Petitioners in the Supreme Court; that SCAORA and the Bar
Association of India have not made any assertion that the said Writ Petitions
were instituted on behalf of such Judges who could not have, on their own,
instituted them for enforcement of their fundamental rights; and that the
controversy raised in the said Writ Petitions were in the realm of executive
and legislative policy and therefore not justiciable. The learned Attorney General, like his
predecessors in 1981, 1993 and 1998, by failing to raise the fundamental plea
that the challenge to the said Acts is not maintainable, invited the judgment
dated 16th October, 2015 at the hands of the Five-Judge Constitution
Bench of the Supreme Court holding that the said Acts are unconstitutional.
6. “Brevity is the soul of wit”, said
Shakespeare. The Petitioner begs to
submit that the Five-Judge Constitution Bench in NJAC case (WP(C) No.13/2015 with
WP(C) No.124/2015, JT 2015 (10) SC 1), took notice of the
fact that the collegium system has failed; that it is imperative to improve it
and exhorted that it is time for “glasnost” (openness) and “perestroika”
(restructuring), and accordingly it invited suggestions from Bar Associations,
legal luminaries and the ultimate stakeholders, the public at large. The public at large responded to the call of
the Supreme Court in an overwhelming measure, though they were given only a few
days and that too in the midst of the 2015 Diwali Holidays to submit their
opinions and suggestions in the realm of (i) Transparency, (ii)
Collegium Secretariat (iii) Eligibility
Criteria and (iv) Complaints. With utmost respect the Petitioner begs to submit
that the Supreme Court realized that inviting suggestions from the public is in
the realm of legislation, though it did not expressly say so, and when opinions
and suggestions running into 15,000 pages from thousands of people are received
it is impossible to decide which opinion should be accepted or rejected. A copy of the main judgment is not produced
and the Petitioner begs to refer to it since it has been reported in JT 2015
(10) SC 1. A copy of the order dated
05.11.2015 by which suggestions from the public was sought is produced as Annexure
P-1 page at ( 45 to 52)
7.
As to be reminded
of the words of Horace, parturient
montes, nascetur ridiculus mus, the
Supreme Court, the Petitioner salutes its sagacity and wisdom in realizing that
the task of inviting opinions and suggestions from the public at large as to
the ways and means by which the collegium system could be improved and acting
upon those suggestions is too cumbersome/onerous, by order dated 16.12.2015
directed the Government of India to prepare a Memorandum of Procedure for
appointment of Judges to the higher judiciary in consultation with the
CJI. A copy of the order
dated 16.12.2015 is produced as Annexure P-2 page at (53 to 68).
8.
The aforesaid Acts,
by which a mechanism for appointment of Judges of the higher judiciary by NJAC
in substitution of the collegium system, which has failed entirely and has
resulted in oligarchy, corruption and nepotism, were held to be
unconstitutional by the judgment dated 16th October, 2015. The NJAC was aborted and the collegium system
is restored. The Government has not
filed any petition seeking review of the said judgment. The only review petition is the one which has
been filed by the Petitioner. The
Petitioner in all humility concedes that he is so inconsequential that his
efforts to secure a review of the judgment dated 16th October, 2015
and restore the NJAC is a near impossibility.
The Petitioner, therefore, considers that it is only prudent on his part
to accept the burial of the NJAC as a fait accompli and to pursue some other
feasible means to secure the mandate of Articles 14 and 16 of the Constitution
a reality. Hence this writ petition.
9. The
august offices of the Judges of the Supreme Court and High Courts are public
offices of great esteem and sanctity.
Every lawyer, nay, every citizen of this country, who satisfies the
qualifications and criteria prescribed under Articles 124(3) & 217(2) of
the Constitution, is entitled to aspire for selection and appointment to the
said posts, and to be selected and appointed if the authorities invested with
such function find him eligible and suitable.
The Petitioner begs to submit that he commits no crime in harbouring a
thought that there should exist a system where he could also apply for and be
selected and appointed as a Judge, if eligible, and whether he is eligible or
suitable ought to be determined by certain eligibility criteria or standard
prescribed. It is the duty of the
authority invested with the power to make selection and appointment that it
makes such appointment in an open, transparent, non-arbitrary, just and fair
manner so that not merely the Petitioner but hundreds and thousands of lawyers
across the breadth and width of the country, who consider themselves to be
eligible for the post, are not denied of their fundamental right guaranteed
under Articles 14 and 16 of the Constitution.
10. The
judgment dated 16th October, 2015 recognizes and holds that certain
rules or regulations ought to be made in the matter of selection and
appointment of Judges of the higher judiciary and accordingly invited
suggestions and opinions from the public at large identifying or confining to
four core areas, namely, (i) Transparency, (ii) Collegium
Secretariat, (iii) Eligibility Criteria and
(iv) Complaints. If rules and
regulations or Memorandum of
Procedure, no matter by what name it is known, no matter whether it is
statutory or non-statutory or merely executive, it is absolutely necessary that
its draft so made is made known to the public at large. The Petitioner is aged 57 years. Assuming that the age limit is fixed at 55
years, he may have a grievance. Assuming
that the age limit is kept at 60 years, he may not have any grievance. But the Memorandum of Procedure unfailingly
ought to prescribe the eligibility criteria, including the upper and lower age
limit, the income limit, though the Petitioner has serious reservations in fixing any income limit, etc. The most pointed accusation against the
collegium system of appointment is that it is absolutely cabal, which meant the
exalted office of the Judges of the higher judiciary being literally
monopolized by the kith and kin of Judges, and the vast majority of lawyers who
have no connections with the members of the collegium are left out; they do not
even come to know that vacancies of Judges are being filled up. The word
“invitation” is the most scandalous one, for, it has meant only the kith
and kin of sitting and former Judges of the Supreme Court and High Courts,
celebrated lawyers, et al being invited to occupy the august office. In other words, the greatest demand of the
legal fraternity, the civil society, the public at large, is that vacancies in
the office of the Judges of the Supreme Court and High Courts be notified,
invitations and references from all eligible be called for, the selection
procedure should be made wholly transparent, minutes of the proceedings of the
collegium be open to the public and in particular through the Right to
Information Act. The order dated
16.12.2015 by which the Constitution Bench directed the Government of India to
frame a Memorandum of Procedure in
consultation with the CJI has not given any directions even in the realm of
notifying the vacancies and inviting applications/references from eligible
candidates. The Petitioner is an
ordinary Advocate; he has no connections with the higher ups; he knows nothing
about what happens in the higher echelons of power. But he is made to understand that the
Ministry of Justice, which has formulated or is formulating the Memorandum of
Procedure, is in favour of notification
of the vacancies to the legal fraternity, nay, the public at large, and invitation
of applications/ references from members of Bar Associations and general
public, though at the hearing of the NJAC case the learned Attorney General,
time and again, reiterated that the Government is in favour of advertisement of
vacancies and open selection; so too total openness of the method of selection
and appointment, and make the Right to Information Act,2005 applicable to it. The
petitioner, along with M/s. R.P. Luthra, A.K.De, A.C.Philip, Anjan Sinha, et all
, members of the National Lawyers’ Campaign for Judicial Transparency and
Reforms met the Hon’ble Minister of law and justice, seeking appropriate steps
at the hands of the Government to undo the great public injury which the
judgment of the Supreme Court in NJAC case constitute to be and in particular,
to the members of the legal fraternity, nay the posterity or the generations of
the lawyers to come, of equal opportunities in the matter of elevation to the
office of the judges of the High Courts and Supreme Court which undoubtedly is
high constitutional public offices, of which all citizens are entitled to have
an equal opportunity under Article 16 of the Constitution. The petitioner received a communication dated 23.02.201
from the ministry of Law and Justice on this. The legal fraternity, nay, the public at
large, is kept in total darkness as to the ways and means by which the
collegium system could be improved, which should reflect in the Memorandum of
Procedure which is said to be under discussion with the CJI. The Petitioner is made to understand that the
Memorandum of Procedure has failed to translate the need of the hour, namely, “glasnost”
and “perestroika”, which will be
achieved only if the following are incorporated in the Memorandum of Procedure in unmistakable terms:-
(i) Notification of
vacancies;
(ii) Invitation of
applications from lawyers who are considered to be eligible; so also references
from Bar Associations, lawyers and even public at large as to whom they
consider to be eligible and deserving;
(iii) Short-listing of
applications/references so received;
(iv) Notify to the legal
fraternity and the public at large the names which are short-listed;
(v) Provide for a
mechanism for dealing with complaints against the names short-listed;
(vi) Provide for the
composition of the Collegium Secretariat;
(vii) Give access to
documents/minutes of the collegium, including application of Right to
Information Act,2005 as well.
11. It is
possible that the apprehensions expressed by the Petitioner above that the
Government is not considering inclusion of the above points in the Memorandum
of Procedure, that the Memorandum of Procedure under preparation or which has
already been prepared means no tangible improvement of the collegium system,
which was condemned by all, may not be true, for, for the Petitioner cannot
claim any sanctity to his source of information, in which case this Writ
Petition may become infructuous and the Petitioner will have to seek leave of
this Hon'ble Court to withdraw the same.
If, on the contrary, what the Petitioner has heard from informal, not so
reliable sources, is true and the collegium system is restored without any
improvement with no amount of “glasnost”
and “perestroika”
and the same continues to be the cabal system as before, then the Petitioner is
entitled to seek a mandamus at the hands of this Hon'ble Court directing the
Government of India to incorporate in the Memorandum of Procedure the
requirements enumerated above, which will make the collegium system transparent
and will afford an opportunity to all those who are eligible and deserving to
apply for the post of Judges of the higher judiciary.
12. The
petitioner is leading a national campaign titled “the national lawyers campaign
for judicial transparency and reforms’’ to secure greater Transparency and
Accountability in the higher judiciary. The campaign has as its primary agenda
to strive for, leaving no stones unturned, to secure an open and transparent
selection and appointment of the judges of the Supreme Court and High Courts.
Accordingly, a delegation of the lawyers Campaign met the Hon’ble union law
minister on 16th of February 2016 demanding that the Government of
India should seek a review of the judgement of this court in the NJAC. Suffice
is to say that the irresistible impression which the Hon’ble Minister, who
entertained the delegation which was led by this humble petitioner, so too, M/S.
R.P.Luthra and A.K.Dey, was that the Government of India is committed to the
cause of greater transparency and accountability in higher judiciary.
13. Considering
the larger issue, the Petitioner, has instituted, the instant Writ Petition
under Article 32 of the Constitution of India before this Hon’ble Court, on the
following amongst other :-
GROUNDS
A.
The judgment dated 16th October, 2015 in WP(C) No.13/2015 with
WP(C) No.124/2015, (JT 2015 (10) SC 1) declaring the Acts as unconstitutional
is void inasmuch as the said judgment impinges the basic structure of the
Constitution; it is one rendered without jurisdiction and in violation of the
principles of natural justice since this Hon'ble Court happened to assume to
itself the jurisdiction to embark upon an inquiry as to whether or not the
wisdom of the Parliament, and that too in absolute unanimity, except a sole
Member in the Rajya Sabha, and ratified by more than 20 States, is questionable
or not. This Hon'ble Court happened to
do so since the learned Attorney General conceded, as has been recorded in
paragraphs 75 and 76 of the lead judgment at the hands of Hon'ble Mr. Justice
Khehar, that the challenge raised by the Supreme Court Advocates on Record
Association (SCAORA) and others “could only be accepted, if it was shown, that
the Parliament while exercising its plenary power to amend the Constitution,
had violated the ‘basic structure’ of the Constitution.” At the cost of repetition, it may be stated
that in paragraph 76 of the judgment it was recorded that it has been asserted
by the learned Attorney General that “the only scope for examination with
reference to the present constitutional amendment was, whether while making the
aforestated constitutional amendment, the Parliament had breached, any of the
‘basic features’ of the Constitution.”
B.
The entire challenge to the Acts made in the Writ Petitions
filed by SCAORA and others was founded on the spacious premise that
independence of judiciary is one of the basic structure of the Constitution and
in so far as the said Acts while enacting for NJAC, a mechanism where under
Judges will have no absolute monopoly in the selection, appointment and
transfer of Judges, will amount to impingement of the independence of the
judiciary, one of the most inalienable, transcendental and primordial basic
feature of the Constitution. Stated in
the simplest of simple words, the challenge to the Acts was on the sole premise
that independence of judiciary is at peril, nay, the basic structure of the Constitution
will be impinged; nothing more, nothing less.
C.
The doctrine of basic structure has its foundation in the
judgment of the Full Court of this Hon'ble Court in Kesavananda Bharati v.
the State of Kerala (1973) Supp. SCR 1.
In Kesavananda Bharati, the constitutionality of the Constitution
(Twenty-fourth Amendment) Act, 1971 and Constitution (Twenty-fifth Amendment)
Act, 1971 was challenged on the premise that the said amendments are violative
of Part III of the Constitution, a Chapter which deals about fundamental
rights, of which the most pertinent is Article 13 of the Constitution which
declares that all pre-existing laws in so far as they are in conflict with, so
too all post-Constitution laws in so far as they take away or abridge the rights
conferred under Part III of the Constitution, are void. In Kesavananda Bharati the plea that
the Constitution (Twenty-fourth Amendment) Act, 1971 and the Constitution
(Twenty-fifth Amendment) Act, 1971 be declared to be void because they violated
the fundamental rights was not accepted.
The said judgment, however, held that though fundamental rights could be
impinged by virtue of a Constitution amendment, such impingement cannot be an
absolute one, one which would totally take away or eliminate the lives and
liberties of citizens which are so sacrosanct and could be construed to be the
soul of the constitutional ethos. This
Hon'ble Court while explaining the proposition that the Parliament in exercise
of its constituent power is competent to curtail or limit the fundamental
rights, keeping in mind the directive principles of State policy, which has an
equal position of prominence in the constitutional scheme, held that it still
shall not be entitled to exercise its power of amendment in such a fashion as
to totally destroy or emasculate the Constitution or replace it with
another. However, the doctrine of basic
structure, on the very face of it a proposition which none could find fault
with, for, in Kesavananda Bharati, so too in subsequent judgments of
this Hon'ble Court, it was held that republican democratic form of Government,
Federal structure of the Constitution, separation of powers, secularism,
independence of judiciary, all, constitute to be the basic structure of the
Constitution, lost sight of the fact that the doctrine of basic structure no
way expands the horizons of the concept of justiciability. Kesavananda
Bharati invoked the jurisdiction of the Supreme Court for enforcement of
his fundamental right. The Supreme Court
held that the Constitution amendment, which was challenged, was valid, but it
further held that the Parliament even in exercise of its constituent amendment
cannot take away or completely destroy the fundamental rights.
D.
The doctrine of basic structure in itself is not justiciable. Nobody could ever imagine to be invested with
the right to come to a Court and seek a declaration that a Constitution
amendment or an Act of Parliament is void since he perceives that the amendment
or the Act impinges the basic structure.
He or she needs to plead something more, namely, that his or her
fundamental rights are violated and the amendment or the Act which has violated
his or her fundamental rights is so drastic or illegal that it not merely
impinges his or her fundamental rights but it completely destroys them. There thus a violation of the basic structure
of the Constitution and the Parliament in exercise of its constituent power is
not empowered to enact such a law can be pleaded. Stated pithily, before and after Kesavananda
Bharati, to challenge the constitutional validity of a Constitution
amendment or an ordinary legislation there must exist a person aggrieved and
the person aggrieved must complain that by virtue of the amendment or the
legislation his fundamental right is violated.
Kesavananda Bharati has, in fact, contrary to the public
perception, made the challenge on the ground of violation of fundamental rights
difficult, rather than easier. Kesavananda
Bharati permits some curtailment of fundamental rights. The only bar is that such curtailment shall
not be so drastic that it will completely destroy the fundamental rights
itself, for, the fundamental rights constitute to be an inalienable,
transcendental and primordial basic feature of the Constitution. The Petitioner begs to submit with utmost
respect that in Kesavananda Bharati the Hon'ble Judges went on to
discuss the concept of basic structure of the Constitution beyond what was
required, which made the seeds of total misconception of the said judgment
blossom in the years to come. In certain
other judgments, namely, Minerva Mills v. Union of India (1980) 2 SCC 591, Madras Bar Association v.
Union of India, (2014) 10 SCC 1 and the NJAC case too, the fact that the
concept of basic structure was evolved with reference to a plea for enforcement
of fundamental rights was completely lost sight of and a new jurisdiction
founded on sand that a challenge to the constitutionality of a Constitution
amendment or an ordinary Act of Parliament will lie without there in existence
a person aggrieved and he claiming violation of his fundamental rights by
virtue of the Constitution amendment or the Act of Parliament, as in the
instant case.
E.
Since the question
of the non-maintainability of the above Writ Petitions, nay, the question of
the constitutionality of the Acts on the premise that it violates the basic
structure without there in existence a plea that the fundamental rights of
SCAORA and other Petitioners have been violated by virtue of the said Acts,
which the Petitioner raised, happened to be, the Petitioner begs to submit with
utmost respect, not taken notice of by this Hon'ble Court, since the Petitioner
did not receive any support from the learned Attorney General or the Solicitor
General, though had the said plea been supported by them and was taken to its
logic end, this Hon'ble Court would not have rendered the judgment in question
holding the said Acts as unconstitutional and void, being violative of the
basic structure of the Constitution. The
learned Attorney General and the Solicitor General, by failing to raise the
fundamental issue of non-justiciability of the said Acts without there in
existence anyone claiming or complaining that his or her fundamental right is
violated and such violation amounts to infringement of the basic structure of
the Constitution within the meaning of Kesavananda Bharati, have, the
Petitioner begs to submit with utmost respect, “invited” this Hon'ble Court to
go into and examine the wisdom of the Parliament in enacting the Acts and
substitute its/ Court’s wisdom with that of the Parliament by holding that
there is no wisdom in enacting the Acts.
The failure/refusal to support the plea of non-maintainability of the
Writ Petitions by the learned Attorney General and the Solicitor General was probably
the most important factor which has led the said Acts being struck down at the
hands of this Hon'ble Court and this Hon'ble Court, with utmost respect,
substituting the wisdom of the Parliament with its own judgment and rewriting of the Constitution, nay,
endorsing the rewriting of the Constitution by virtue of the judgments in
Judges-2 and Judges-3 cases.
F.
Sublato
fundamento, cadit opus – the foundation being removed, the structure
falls. This Hon'ble Court had no
jurisdiction at all to entertain the plea on the challenge to the Acts. To repeat, the said Acts are legislations on
constitutional policy in the matter of appointment of Judges, which is not
justiciable at all. The learned Attorney
General and the Solicitor General failed to raise the plea of
non-maintainability of the Writ Petitions, for, no Writ Petition under Article
32 could be filed unless the party invoking the said jurisdiction claims
violation of his or her fundamental rights.
It was their duty while representing the Government, nay, the 125 crores
people of this country, to assert that neither SCAORA nor the Bar Association
of India, nay, none of the Petitioners who had challenged the validity of the
Acts, has claimed that their fundamental rights are infringed; that no Writ
Petition under Article 32 could have been maintained without such a plea; that
the PIL is wholly not maintainable inasmuch as for maintenance of a PIL there
ought to be a person aggrieved and the person aggrieved out of his poverty,
ignorance, illiteracy and other similar disadvantages is unable to approach
this Hon'ble Court. It was the duty of
the learned Attorney General and the Solicitor General to point out that, where
there is no person aggrieved in existence whose fundamental or legal rights are
said to have been infringed, no lis exists and no Writ Petition under Article
32 could be filed. In other words, the
Writ Petitions are upon the validity of a law which provided for a new
mechanism for appointment of Judges to the higher judiciary, which is in the
realm of legislative or executive policy and which by no stretch of imagination
could be said to involve violation of any fundamental rights of any of the
Petitioners and, admittedly, none has claimed such violation. It was the duty of the learned Attorney
General and the Solicitor General to have pointed out that nobody could ever
come to the Supreme Court alleging that if a mechanism as under the impugned
Acts is created for appointment of Judges and where Judges are appointed in
terms of the said mechanism, the Judges so appointed would be subservient to
the executive, that they will ever remain loyal to the executive Government,
and that the person who has instituted or may have reason to institute a legal
proceeding in the High Court or supreme Court in future will not get fair
justice and thereby his fundamental right is violated because the Judges
appointed under the NJAC will remain loyal to the executive Government who had
a role in their appointment. No person
whose sanity cannot be put to question will ever venture to make such a plea
and the Petitioners who have challenged the Acts have not, thankfully, made any
such plea in their petitions or in the arguments by the distinguished of the
distinguished counsel in the country engaged by them.
G.
The judgment of
this court dated 16.10.15 which is
sought to be declared as violative of the fundamental rights of the petitioner
and thus unconstitutional in fact is the
Judges-5 case, though popularly known as the Judges-4 case, which has struck down
the Acts and restored the collegium, a mechanism whereunder the Judges appoint
themselves. The Petitioner may be
forgiven in putting it bluntly that the said judgment is nothing but entering
into the act of legislation as if the Supreme Court is the Parliament, nay, in
substitution thereof. By the instant
judgment, the judgment in Judges-2 case, which is nothing but rewriting of the
Constitution, a judgment rendered per incuriam and which is void ab initio, is
restored. The net effect of the judgments
in Judges-2, Judges-3 cases and the current case is literal death of democracy,
the unkindest cut of the concept of separation of power at its
very root, the Court assuming the role of both the Parliament and the executive,
all at once, as if it is the Parliament and the executive, nay, in substitution
thereof. The judgments in Judges-2 and
Judges-3 cases and the above petitions have resulted in a ridiculous scenario
where Articles 124 and 217 of the Constitution are to be read diametrically
opposite to what they state, which has meant cutting the concept of judicial
review at its very root. The question
which now arises and for which no satisfactory answer could ever be offered is
that if the Court were to act as the executive and the legislature, where will
a person aggrieved, who intends to seek judicial review of the executive or
legislative action, go to seek remedy.
It is not the Acts which impinge the so-called holy cow, the basic
structure, but it is the judgments in Judges-2 and Judges-3 cases and in the
above petitions which have caused the severest blow and irreparable damage to
the concept of basic structure.
H.
The concept of
basic structure is wholly misunderstood.
It has been detailed above, but at the cost of repetition it is
submitted that nobody could ever be heard to invoke Article 32 on the premise
that the basic structure of the Constitution is impinged. He has to come with a plea that the
Constitution amendment or an ordinary law, whatever be it, results in violation
of his fundamental rights and the violation is so grave, is so fundamental,
that it is beyond the permissible domain of abrogation of the fundamental
rights that so long as the Constitution remains it cannot be allowed to
happen. Unless there is such a plea, no
writ under Article 32 will lie. The Writ
Petitions by SCAORA and the Bar Association of India and others, so too the
National Tax Tribunal case and the innumerable PILs where busy bodies assume
the role of the Attorney General and speak of public interest are all instituted
on a misconception of the doctrine of basic structure and the concept of PIL.
I.
This Hon'ble Court
listed the above petitions on 3rd November, 2015 to device ways and means by
which the collegium system could be improved.
With utmost respect, the Petitioner begs to submit that the said
exercise has no foundation in jurisprudence, nay, constitutional law. This Hon'ble Court in doing so acted as if it
is the Parliament exercising its constituent/legislative power. Nobody could deny that Supreme Court today is
a fortress. An ordinary lawyer finds it
difficult to get entry; passes are restricted; no pass is issued to the general
public unless he is able to show that he has a case listed; assuming that a
lawyer or litigant who is interested in partaking in the deliberations of this
Hon'ble Court on 3rd November, 2015, he will not be able to enter the Court
Hall and if he is able to do so, he will not be heard. Distinguished of the distinguished lawyers,
with utmost respect and with an apology the Petitioner begs to submit, have
monopolized the right to audience. The
Petitioner with more than 31 years at the Bar, pursuing his Writ Petition with
great amount of zeal and fire, found himself difficult to be heard. The Petitioner was not heard in any meaningful
way. Had he been heard and allowed to
raise the question of justiciability of the issue, elaborated above, the
judgment in question would not have been delivered. The course of history would
have been different. The plea of
non-maintainability and non-justiciability is so important and even if it were
to be rejected, it ought to have been allowed to be argued and was required to
be rejected by giving reasons. The
judgment of this Hon'ble Court running into more than 1000 pages is silent
about it since this Petitioner was not really heard. When a party to a proceeding was not heard,
the judgment becomes null and void.
J.
The judgment dated 16th October, 2015 is void ab initio since
the Constitution Bench was disqualified from hearing the case. When a Constitution Bench was first
constituted with Hon'ble Mr. Justice Anil R. Dave as the Presiding Judge, the
Petitioner had to seek His Lordship’s recusal with a heavy heart and great
amount of hesitation, but he did so because he felt that it was his duty to do
so. Thereafter the Constitution Bench was reconstituted with Hon'ble Mr.
Justice J.S. Khehar, one of the most respected, distinguished and erudite
Judges with heavenly qualities, as the Presiding Judge. The Petitioner had to seek His Lordship’s recusal
since he felt that if the Constitution Bench were to strike down the Acts and
give a new lease of life to the collegium system, then His Lordship, the
Petitioner begs to submit with utmost and great hesitation would be seen to
have, though wholly unwittingly it could be, struck down the Acts and given
rebirth to the collegium system, which was interred with its bones by virtue of
the impugned Acts, and becoming a member of the powerful collegium which
appoints Judges of the Supreme Court and High Courts. The fundamental principle, namely, nemo iudex
in sua causa or nemo debet esse judex in propria causa - no one can be judge in
his own cause – stands violated. It is a
fundamental principle that where a Judge is biased, even where such bias is
non-conscious, sub-conscious or unconscious, as in the instant case where His
Lordship Hon'ble Mr. Justice Khehar would not have even in the wildest of his
dreams ever thought of himself being a member of the collegium writing a
judgment so as to secure a place for himself.
With utmost respect, nay, with greater amount of hesitation, the
Petitioner begs to submit that had NJAC been in place, which certainly would
have been the position but for the judgment sought to be reviewed, Hon'ble Mr.
Justice Khehar as of today would not have any role in the appointment and
transfer of Judges, but since the NJAC is, if the Petitioner were to borrow an
expression from Shakespeare, “interred with its bones” by virtue of the said
judgment and since by a stroke of a pen the Constitution Bench could do so and
resurrect the collegium system, which is universally castigated to be an opaque
and non-transparent one, His Lordship Hon'ble Mr. Justice Khehar is part of the
collegium and His Lordship has a pre-eminent role in the appointment and
transfer of Judges of the Supreme Court and High Courts. The Petitioner is afraid to say that an
“informed onlooker”, nay, even an ordinary man, nay, the 125 crores people of
this country, may consider the judgment rendered by this Hon'ble Court as void,
being in conflict with the maxim nemo potest esse simul actor et judex – “no
one can be at once suitor and Judge”.
K.
The doctrine of nemo debet esse judex in propria causa – no one
can be judge in his own cause – is equally applicable for the entire Constitution
Bench which heard the above petitions.
It is incorrect to say that the plea of recusal made by the Petitioner
was confined to Hon'ble Mr. Justice Dave and Hon'ble Mr. Justice Khehar. The Petitioner tendered in the open Court a
chart showing that a Bench of not nine but eleven Hon'ble Judges, who will
never be a part of the collegium nor of the NJAC, for, they will superannuate
before they could reach that position by virtue of seniority, could have been
constituted. The judgment at the hands of
the entire Bench is, therefore, vitiated by violation of the first principle of
natural justice, namely, nemo debet esse judex in propria causa, and is liable
to be declared as void.
L.
The only saving grace in the aforesaid judgment is acceptance of
the fact of total lack of transparency, opaqueness, oligarchy, nepotism and all
sorts of vices where sunlight, which is the greatest disinfectant, is not
allowed to enter is taken notice of by Hon'ble Mr. Justice Kurian Joseph quite
eloquently in his judgment, concurring though, so too by Hon'ble Mr. Justice
Jasti Chelameswar, and the willingness of the Constitution Bench to further the
case on the question of ways and means by which the collegium system could be
improved. The collegium is incapable of
being improved, for, its shortcomings are so fundamental and incurable. The Petitioner considers that the following
steps could go a long way in making the working of the collegium system far
better. They are:
M.
Creation of a Secretariat/Commission under the administrative
control of the Hon'ble Chief Justice of India and the Chief Justices of the
High Courts, which is provided with all facilities, infrastructure, requisite
finance, and empowered to act as a Judicial Appointment Commission. Such Commission should be brought under the
purview of the Right to Information Act, 2005 and it should conduct its
business transparently;
N.
The Commission should notify the vacancies of Judges in the
Supreme Court and High Courts at least six months before the vacancies
occur. Notification of the vacancies
should also provide for filling up of the same by open selection for which the
first step is to invite applications from all eligible candidates, invite
references from all stakeholders, the Bar Associations, the public at large, of
whom they consider to be most suitable.
The collegium/Commission should fix the qualifications and the minimum
and upper age limit. Though the
Constitution has prescribed the qualification as 10 years of practicing as a
lawyer or as a Judge, the collegium/Commission appointed by the collegium could
fix it to be 15 years. The minimum age
limit could be fixed at 45 years and the maximum at 55. In case the number of applications is too
large, then the collegium/ Commission should fix a further standard for
screening/short-listing the candidates.
When it comes to the competence and experience of lawyers who have
applied for and could be considered for appointment, it could be possible that
it may vary from State to State because there can be no match for the lawyers
practicing in Delhi, Mumbai etc., with those practicing in far off High Courts,
without meaning any belittling the lawyer fraternity of any Bar. The zone of selection need not be confined to
the Bar of a particular High Court.
Appointing a lawyer of a North Indian High Court in a South India High
Court and vice-versa will not only foster greater national integration, but
also will mean an answer to the complaints of favouritism and nepotism, which
is so widespread. Whether a Secretariat/Commission
for each High Court or a common selection Secretariat at the national level
under the command of the collegium of the Supreme Court is a matter which by a
method of “trial and error” alone can tell.
However, currently a mechanism of State level Secretariat could be
thought of.
O.
Once the candidates are short-listed for selection, which
ideally should be double the number of vacancies, the short-listing should be
made known to the Bar and the public at large so that opinions in favour and
against could be received and the collegium can take a final call. Though the open and transparent method of
selection, as aforesaid, is likely to offer some difficulty, for, it could be
possible that lawyers who have a flourishing practice may consider it embarrassing
to be put to public scrutiny. Such
inhibitions are all likely to vanish into thin air once it is accepted that in
a constitutional democracy, appointments to the august office of the Judges of
the Supreme Court and High Courts cannot be made in an opaque and cabal
manner. Viewed from another angle, a
lawyer who is willing to subject himself to public scrutiny, a lawyer who has
nothing to hide and no skeleton to be tumbled out of his cupboard, alone should
be appointed as a Judge. Like the
Caesar’s wife, a Judge should be above suspicion.
14. That the
Petitioner have no other alternative efficacious remedy except by moving the
present writ petition under Article 32 of the Constitution of India. The
petitioner has instituted a number of writ petitions dwelling on the same or
substantially same subject matter involving the same or substantially same
cause of action. However in none of the said writ petitions namely diary No.__/2014
and Writ Petition NO. 124/2015 the issues which the petitioner sought to canvas
in the instant writ petition has been adjudicated. The instant writ petition is
not barred by the doctrine of estoppels res judicata. The petitioner has filed
a petition for the review of the judgment of this court in WP(C) No.124/2015
being Review Petition No.1451/2016 and the same was dismissed on 16th
February 2016 by a non speaking order without affording an opportunity to be
heard, despite in the said review petition, all the plea was that the judgment
of this court dated 16.10.2015 was one without jurisdiction being in the realm
of executive/ legislative policy which are non justiciable.
PRAYERS
It is, therefore, most respectfully prayed that this Hon’ble
Court may graciously be pleased to:
(a)
declare
that the august offices of the Judges of the Supreme Court and High Courts are
high constitutional public offices and every citizen of India, if eligible and
competent, is, as a matter of right, entitled to aspire for selection and
appointment to the same and the judgments of this Hon'ble Court in Judges-2,
Judges-3 and Judges-5, namely, the majority judgment dated 16th
October, 2015 in the NJAC case [Supreme
Court Advocates on Record Association v. Union of India and others, WP(C)
No.13/2015 with WP(C) No.124/2015, (JT 2015 (10) SC 1)], in so far as they
abrogate the said right, are unconstitutional and void; so too the collegium system of selection and
appointment of Judges, an offspring of the judgments in the aforesaid cases
which provide for an opaque and nontransparent system where only the kith and
kin of Judges, their juniors and the elite class of lawyers are appointed to
the deprivation of equally deserving members of the Bar who have no chance at
all to be so selected and appointed;
(b)
declare
that the judgments of this Hon'ble Court in Judges-2, Judges-3 and Judges-5,
namely, the majority judgment dated 16th October, 2015 in the
NJAC case (Supreme Court Advocates on
Record Association v. Union of India and others WP(C) No.13/2015 with WP(C)
No.124/2015, JT 2015 (10) SC 1) are rendered per incuriam since the controversy
“adjudicated” therein is one which is non-justiciable, the same being in the
realm of matters of executive and legislative policy not involving violation of
any fundamental or legal right of the petitioners in the PILs in which the said
judgments were rendered;
(c)
declare
that Articles 124 and 217 of the Constitution of India, as originally enacted
and amended by the Constitution (Ninety Ninth Amendment) Act, 2014, continue to
remain in the statute book and appointments of judges of the Supreme Court
and High Courts are liable to be made in
accordance therewith and that the judgments of this Hon'ble Court in Judges-2,
Judges-3 and Judges-5, namely, the majority judgment dated 16th
October, 2015 in the NJAC case (Supreme
Court Advocates on Record Association v. Union of India and others) are liable
to be declared as rendered per incuriam;
(d)
without
prejudice to prayers (a), (b) and (c) hereinabove, declare that selection and
appointment of Judges of the Supreme Court and High Courts cannot be made
except by notifying the vacancies and inviting applications from all eligible
candidates; so too references from all stakeholders, including Judges, Bar
Associations, Bar Councils and the public at large, namely, in an open and
transparent manner;
(e)
issue a
writ in the nature of injunction or prohibition, restraining and prohibiting
Respondent Nos. 2 & 6 from making any recommendations/ appointments of
Judges of the Supreme Court and High Courts without notification of their
vacancies and invitation of applications from all eligible candidates; so too
references from all stakeholders, including Judges, Bar Associations, Bar
Councils and the public at large;
f) Pass such other order or orders as the
circumstances of the case may require.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND
SHALL EVER PRAY:
Judges-1 case
|
S.P. Gupta
Vs. Union Of India & Anr. {1982
AIR 149 = 1982(2)SCR 365 = 1981 Suppl.
SCC 87 = 1981(4) SCALE 1975}
|
Judges-2 case
|
Supreme
Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441
|
Judges-3 case
|
Reference
By President of India Under Article 143(1) Of The ... vs Unknown
AIR
1999 SC 1= RLW 1999 (1) SC 168=1998 (5) SCALE 629= 1998 Supp 2 SCR 400
|
|
Judges-4 case
|
Suraz India Trust Vs. Union of India &
Anr. (2012) 13 SCC 497-B
|
|
Judges-5 case / NJAC Case
|
Supreme Court Advocates-on-Record
Association v. Union of India and Others (JT 2015 (10) SC 1)
|
