Thursday 29 October 2015

Review Petition by Mathews J.Nedumpara before SCI in NJAC Judgment dated.16.10.2015

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO.          OF 2015
IN
WRIT PETITION (CIVIL) NO.124 OF 2015


BETWEEN                              
Mathews J. Nedumpara.                                                   …PETITIONER

AND
Supreme Court of India
Through its Secretary General & Ors.                 …RESPONDENTS 

PETITION UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA SEEKING REVIEW OF THE JUDGMENT AND ORDER DATED 16.10.2015 PASSED BY THIS HON’BLE COURT IN W.P. (C) NO.124 of 2014.      

To
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF PETITIONER ABOVENAMED
MOST RESPECTFULLY SHOWETH

1.       The Review Petitioner is a citizen of India and has been practicing as a lawyer for the last three decades.  He was Petitioner in Writ Petition No.124 of 2015, which was disposed of along with the above batch of Writ Petitions.

2.       Though it is said that iura novit curia – the Court knows the laws – and there is no need to plead law, it has become imperative to briefly delve into the concept of review, for there can be no other concept which is more misunderstood than the concept of review as known in common law, which stands embodied in Order XLVII, Rule 1 of the Civil Procedure Code (CPC), nay, the concept of judicial review or the concept of appeal.  It is a fundamental principle of law that a Court or Tribunal duly constituted acting within the jurisdiction invested in it, does not fail to exercise its jurisdiction or does not act in excess of its jurisdiction or acts in conformity with the principles of natural justice and not in violation of the express statutory provisions or in ignorance thereof, can bind the parties to a dispute by its decision, whether it decides rightly or wrongly, and its decision constitutes to be res judicata estoppel.  Stated still simply, the concept of rule of law is founded on the principle that a Court or Tribunal acting as aforesaid can bind the parties to a dispute even by an erroneous decision which constitutes to be res judicata,  and unless the statute provides for an appeal, a mechanism for correction of the decision, howsoever grave may be the error committed by the Court or Tribunal and the injury resulting therefrom the party aggrieved by the judgment, order or decree has to suffer, for jurisdiction means jurisdiction to bind a party to the dispute even by an erroneous decision.  That is the substance of the concept of res judicata estoppel.  The reason behind the concept of res judicata estoppel is interesto republico ut  sit finis  litium – it is in the interest of the State that there be an end to litigation – and nemo debet bis vexari pro uno et eadem causa – “no individual should be sued more than once for the same cause”.

3.       While a judicial decision, be it right or wrong, is final and binding and constitutes to be res judicata estoppel, there is an exception to the said rule.  The doctrine of res judicata applies only if the judgment, decree or order of a Court or Tribunal is not vitiated by an error apparent on the face of the record.  “Errors apparent on the face of the record”, contrary to the common misconception, are errors of law and not of fact or even mixed question of fact and law.  Where a judgment, decree or order of a Court or Tribunal is vitiated by errors apparent on the face of the record, namely, where the a Court or Tribunal has acted beyond its jurisdiction, nay, where it has no jurisdiction over the subject matter, nay, where the Court or Tribunal has failed to hear the parties to the dispute or has failed to observe the principles of natural justice or where it has acted in ignorance or violation of express statutory provisions, the judgment, decree or order so passed constitutes to be no res judicata estoppel.  On the other hand, such judgment, decree or order is null and void ab initio, which never ever existed in the eye of law, stillborn and non est in law.

4.       The Code of Civil Procedure (CPC), which is nothing but the codification of the common law principles, nay, Order XLVII Rule 1 thereof, has expressly incorporated in it the concept that a judgment, decree or order of a Court or Tribunal which is vitiated by errors apparent on the face of record, constitutes to be no res judicata, and it can be declared to be so or held to be void by the procedure of review.  It is only appropriate to extract Order XLVII Rule 1 CPC as infra:-

ORDER XLVII- REVIEW

“        1. Application for review of judgment— (1) Any person considering himself aggrieved —

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”

Besides providing that a judgment, decree or order which is a nullity, being vitiated by errors apparent on the face of record, Order XLVII Rule 1 CPC also provides that a judgment, decree or order, which is a nullity and constitutes no res judicata estoppel, on facts, as well, distinct from law, can be declared to be so by recourse to the procedure of review.  This is manifest from the words “from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made” employed in sub-rule (c) of Rule (1) of Order LXVII, CPC.   It is a fundamental principle of law that if a Court or Tribunal had entered into a finding, order or decree based on important matter or evidence which was not available before it, such an order or decree constitutes to be no cause of action estoppel or eve issue estoppel.  The doctrine of estoppel has no application where a party to a lis, who has suffered a judgment or order or decree against him, had no knowledge of the important matter or evidence which had it been available and known to him he would have unfailingly produced and in which case the Court or Tribunal would not have passed the judgment or order or decree which it has allowed itself to pass.  The judgment, decree or order of a Court or Tribunal, which was rendered without the important matter or evidence which had a bearing on the controversy under adjudication, is no judgment, decree or order in the eye of law and such a judgment, decree or order constitutes no res judicata estoppel, it being rendered without the relevant evidence before it.

5.       Stated in brief, the doctrine of res judicata has two exceptions, namely, (a) where a judgment, decree or order or a Court or Tribunal is vitiated by errors apparent on the face of the record ad where the error made is a legal error and where the error means only an error of law, not on fact, and (b) where a judgment on facts, which does not constitute res judicata, for the important matter or evidence which was essential for adjudication of the dispute, was not before the Court and the party has suffered a judgment is guilty of no lapses or negligence because such material or evidence was discovered subsequent to the decree and was not within his knowledge and even where he had exercised all diligence could not have produced it before the Court.  The relief of declaration of nullity, which the Review Petitioner seeks through the procedural remedy of recall/review, has to be judged from the grounds on which the review could be sought as detailed above.

6.       While eminent lawyers and jurists and commentators write for and against, hailing and criticizing the judgment of the Five-Judge Constitution Bench judgment of the Supreme Court in the NJAC case delivered on the 16th of October, 2015, the lay people with whom the Review Petitioner interacts, for, there are almost 4,000 members of the 50 Whatsapp groups on judicial transparency, say:  “In civic books we have learnt that legislatures/Parliament make the law and Judges adjudicate disputes and interpret the law in accordance with law for the purpose of adjudication of the disputes”.  The ordinary man is puzzled, how could the five Hon'ble Judges of the Supreme Court, nay, four Hon'ble Judges, for, one Hon'ble Judge dissented, declare that the will of the people spoken through their elected representatives, and in the NJAC case with absolute unanimity, except for Shri Ram Jethmalani, enacted and ratified by 28 States, the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short), be scuttled because the four Hon'ble Judges in their wisdom felt that the method of appointment of Judges contemplated under the said Acts is not wise enough. The layman knows not much of the concept of judicial review or the basic structure of the Constitution.  All that he knows is that in a democracy, the people acting through their representatives, their delegatees, will decide what the law of the land ought to be and if a majoritarian law violates the fundamental or legal rights of a citizen or a class of citizens they could approach the Court and seek a declaration that such a law is void.  The lay people with whom the Review Petitioner interacted in so large numbers, as aforesaid, who have studied law in schools/colleges as a part of their curriculum, say, social studies, are unanimous in their opinion that the Judges of the Supreme Court sitting as Judges over a controversy of which they are one of the parties failed to be impartial, just and fair.  They consider the NJAC case as a deceptive/clever attempt on the part of the Supreme Court to retain the power of appointing themselves which they have been enjoying for the last more than 22 years with practically little resistance or accountability.  Though a few among the lay people would consider that the tussle is between the executive and the judiciary, many of them consider it to be a tussle between “we, the people” and the Hon'ble Judges of the Supreme Court because the tussle of power between the Parliament and the judiciary is indeed a tussle between the judiciary and “we, the people”, whom the Parliament represents.

7.       However, having read almost every article on the subject and having attended the entire 31 days of hearing of the NJAC case in the Supreme Court, this humble Review Petitioner is at great bewilderment, if not in simmering anger.  The question is why the distinguished Attorney General, the Solicitor General; and the erudite and scholarly Hon'ble Judges failed to notice what the layman has no difficulty to discern.  The simple question is who is empowered to make the law for the land; the Judges or the Parliament?  The lay people who have studied a bit of law in school curriculum have no difficulty to answer the said question; for him the question is not complex; the Parliament alone can enact the law of the land; declare what it ought to be.  But the distinguished lawyers believed that the Supreme Court can declare the law of the land, forgetting the fact that Article 141 of the Constitution in unmistakable terms states that “the law declared by the Supreme Court shall be binding on all courts within the territory of India.”  Article 141, which is nothing but adoption/reincarnation of Section 212 of the Government of India Act, 1935.  The Review Petitioner begs to extract Section 212 as infra:-

“212. The law declared by the Federal Court and by any judgment of the Privy Council shall, so far as applicable, be recognised as binding on, and shall be followed by, all courts in British India, and, so far as respects the application and interpretation of this Act or any Order in Council thereunder or any matter with respect to which the Federal Legislature has power to make laws in relation to the State, in any Federated State.”


The Review Petitioner, for ready reference, quotes below Article 141 of the Constitution:-

“141. Law declared by Supreme Court to be binding on all courts.-

The law declared by the Supreme Court shall be binding on all courts within the territory of India.”  


Article 141 gives a constitutional status to the doctrine of stare decisis, nay, precedent, and nothing more.  The Constitution does not at all contemplate that the Supreme Court, or for that matter any Court, is invested with the jurisdiction to declare/enact a law for the land.  It is preposterous to think that the Supreme Court is invested with the jurisdiction to declare what the law of the land is.  The reason is simple.  If the Supreme Court were to be invested with such a jurisdiction, then before it decides any question of law where its decision is going to bind the whole country, it should issue notice to the entire nation and patiently hear whomsoever intends to participate in the hearing.  To hear the entire nation on any question of law which will affect their rights and liberties is impossible.

8.       Though neither the Supreme Court nor the High Courts nor any other Court could embark upon a hearing and declare what the law of the land is, Courts have been doing precisely that for long and, since the invention of the jurisprudence of PIL, which legendary Justice Krishna Iyer lamented to be a “ravenous wolf in sheep's clothing”, day in and day out by the Supreme Court and various High Courts of the country.  The reason for this Himalayan error, which has not received public attention, is the difference associated with the concept of what is and what is not justiciable.  The Court’s duty is to adjudicate disputes where a “person aggrieved” for violation of his constitutional, fundamental or legal rights, liberties, estates etc., seeks enforcement of his rights.  Therefore, the existence of a “person aggrieved” is the foundation of a lis and in common law access to justice was confined only to the person aggrieved.  In India, out of poverty, ignorance, illiteracy and many other similar disadvantages whose fundamental or legal rights are infringed – the undertrial prisoners, bonded labourers et al – could not on their own invoke the jurisdiction of the Constitutional Courts.  By evolving a jurisdiction called PIL, legendary Judges like P.N. Bhagwati, Y.V. Chandrachud, M.N. Venkatchaliah et al, by relaxing the concept of locus standi, made it possible for some public spirited person acting pro bono publico to take up the cause of such aggrieved persons.  That is how the jurisdiction of PIL was conceived and PIL thus understood was wholly legitimate, well within the concept of jurisprudence.  PIL thus meant the concept of judicial review a reality to the poor and helpless.  The remedy in PIL thus sought was for enforcement of the rights of a person aggrieved, but as time passed, particularly in Judges-2, Judges-3 and the present Judges-4 (NJAC) cases, the elementary principles of jurisprudence, nay, the need for a “person aggrieved” for a PIL to be understood was lost     sight of.


9.       With utmost respect and with great humility, the Review Petitioner would put the blame on legendary justice Bhagwati; for, His Lordship went on to discuss the concept of locus standi in Judges-1 case (S.P. Gupta v. Union of India, AIR 1982 SC 149) wherein the concept of locus standi was conceded.  In the said case, a Judge whose tenure as Additional Judge was not extended, engaged a lawyer and was a party to the lis.  Therefore, the Attorney General did not question the maintainability of the Writ Petitions clubbed together.  Justice Bhagwati in unmistakable terms made it clear that the PIL would lie only where there exists a person aggrieved whose fundamental and legal rights are infringed and out of his poverty and other disadvantages is unable to approach the Court himself, who could be represented by a person acting pro bono publico, nay, there ought to exist a justiciable lis.  In reality, as time passed, the said principle laid down by Justice Bhagwati is misunderstood to be as one conferring locus standi on any busybody to litigate upon issues which are non-justiciable.  The classic example is Judges-2 case.  In that case, there was no justiciable issue at all; there was no “person aggrieved”; yet, in the said case instituted by the Supreme Court Advocates on Record Association (SCAORA), neither the Attorney General nor Shri Parasaran who represented the Government raised the question of the very non-maintainability of the Writ Petition, the so-called PIL.  In Judges-3 case too, the said issue was not raised or discussed.

10.     In Judges-4 (NJAC) case, this Review Petitioner raised the question of non-maintainability of the Writ Petition, the PIL.  He had filed a Writ Petition seeking a declaration that the judgment in Judges-2 case is void, for, it meant rewriting of the Constitution.  He also sought for a declaration that the provisions of the Constitution as originally enacted continue to be in the statute book in spite of the judgment in Judges-2 case.  The Review Petitioner filed an application for determination of the very maintainability of the PILs by SCAORA and the Bar Association of India and others as a preliminary issue and a declaration that the said PILs are not maintainable, for, the issues raised therein are not justiciable.  Unfortunately, the Hon'ble Supreme Court paid no heed to the said plea.  Though the Review Petitioner gave a detailed argument note maintaining that the PILs are not maintainable; that the legislations in question are a matter of policy; that the wisdom of the Parliament is not justiciable; that the Hon'ble Judges cannot sit in judgment over it; that Article 141 confers no jurisdiction on the Court to declare the law of the land; that what the law of the land can be enacted and declared by the Parliament alone; that a law enacted by the Parliament, unless it violates a citizen of his fundamental rights, cannot be questioned in a Court; and that assuming that the Acts in the NJAC case even distantly infringes anyone’s fundamental rights, it could only be the Judges of the High Courts who probably could be harbouring the theory of legitimate expectation and none else, the judgment, which runs into more than 1,000 pages, has failed to deal with the said pleas.  The Review Petitioner holds the Hon'ble Judges in the highest of esteem, regard and respect and begs to submit that the blunder of holding the Acts as unconstitutional has its foundation in the maxim nemo debet esse judex in propria causa – no one can be judge in his own cause.  When the Judges themselves for all practical purposes were the Review Petitioners and arbiters of the NJAC case, they being fallible human beings, though men of erudition, caliber and character, it was unreasonable for the Review Petitioner or other citizens of the country to expect them not to err and that is the reason why the Review Petitioner moved an application seeking recusal of Hon'ble Mr. Justice Anil R. Dave as the Presiding Judge and upon His Lordship’s recusal and substitution by Hon'ble Mr. Justice J.S. Khehar, for the latter’s recusal as well.

11.     The next question is what could be done now.  The Review Petitioner, an ordinary lawyer of limited resources, practicing in Mumbai, spent almost two months in Delhi to attending the hearing of the NJAC case. The reason, nay, the fire, which made it possible for the Review Petitioner to make such a sacrifice is the fact that the collegium, as Hon'ble Mr. Justice Kurian Joseph has acknowledged in his judgment, so too Hon'ble Mr. Justice Jasti Chelameswar, in paragraph 1 & 62 of his judgment, has been reduced to oligarchy, nepotism and large scale inbreeding. The said elite class of Judges mostly consist of kith and kin of sitting and former Judges of the Supreme Court and High Courts, celebrated lawyers, Chief Ministers, Governors et al and a few first generation lawyers who are all politically connected or are close to big industrial houses, which meant the sons and daughters of farmers, taxi drivers, rikshaw pullers, teachers – the common ordinary people– having place at all.  The NJAC has only one shortcoming with 50% of its members being the CJI and two his seniormost colleagues, which again meant a collegium system, though the presence of two eminent members of the civil society certainly would have made a difference.  The Review Petitioner submitted a progeny syndrome chart which showed who are the Judges of the higher judiciary, how they are connected to retired and sitting Judges etc.  But the 1,000 and odd pages judgment of the Constitution Bench could not find a place to accommodate the pleas of the Review Petitioner nor the said chart which is a result of research for many weeks.  There could not be a better expression to state what the judgment in the NJAC case meant than to quote Horace “Horace, parturient montes, nascetur ridiculus mus”.

12.     There is no way by which the collegium system could be improved – Judges appointing themselves, wielding the entire power of appointment is against the basic structure of the Constitution, a sacrosanct concept which the judgment in NJAC case made it appear to be nothing but a structure made of wax which Judges could mould in whatever shape they want.  The country is in dire straits; the Parliament’s laudable effort to establish the National Tax Tribunal sunk in the high seas, being hit by the iceberg called basic structure.  There is only one hope i.e. the Hon'ble Judges themselves realize in all humility that they are fallible and the NJAC judgment meant that they have erred grievously.  Even the Pope, once regarded as infallible, is no longer considered to be so.  If the powerful Catholic Church could accept the theory of fallibility, the Hon'ble Judges of the Supreme Court too should readily accept their fallibility and acknowledge that they have erred.  Hence, the instant Review Petition.

GROUNDS
          Grounds in support of the reliefs sought for are fairly elaborated in the statement of facts above and hence are not repeated.  The Review Petitioner respectfully submits that paragraphs 1 to 12 hereinabove may be read and treated as the grounds in support of the instant Writ Petition.  Nonetheless, the Review Petitioner begs to submit that:

(A)         The judgment dated 16th October, 2015 declaring the Acts as unconstitutional is void inasmuch as the said judgment impinges the basic structure of the Constitution; it is one rendered without jurisdiction and in violation of the principles of natural justice since this Hon'ble Court happened to assume to itself the jurisdiction to embark upon an inquiry as to whether or not the wisdom of the Parliament, and that too in absolute unanimity, except a sole Member in the Rajya Sabha, and ratified by more than 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 whereunder Judges will have no absolute monopoly in the selection, appointment and transfer of Judges, will amount to impingement of the independence of the judiciary, one of the most inalienable, transcendental and primordial basic feature of the Constitution.  Stated in the simplest of simple words, the challenge to the Acts was on the sole premise that independence of judiciary is at peril, nay, the basic structure of the Constitution will be impinged; nothing more, nothing less. 

(C)         The doctrine of basic structure has its foundation in the judgment of the Full Court of this Hon'ble Court in Kesavananda Bharati v. the State of Kerala (1973) Supp. SCR 1.  In Kesavananda Bharati, the constitutionality of the Constitution (Twenty-fourth Amendment) Act, 1971 and Constitution (Twenty-fifth Amendment) Act, 1971 was challenged on the premise that the said amendments are violative of Part III of the Constitution, a Chapter which deals about fundamental rights, of which the most pertinent is Article 13 of the Constitution which declares that all pre-existing laws in so far as they are in conflict with, so too all post-Constitution laws in so far as they take away or abridge the rights conferred under Part III of the Constitution, are void.  In Kesavananda Bharati the plea that the Constitution (Twenty-fourth Amendment) Act, 1971 and the Constitution (Twenty-fifth Amendment) Act, 1971 be declared to be void because they violated the fundamental rights was not accepted.  The said judgment, however, held that though fundamental rights could be impinged by virtue of a Constitution amendment, such impingement cannot be an absolute one, one which would totally take away or eliminate the lives and liberties of citizens which are so sacrosanct and could be construed to be the soul of the constitutional ethos.  This Hon'ble Court while explaining the proposition that the Parliament in exercise of its constituent power is competent to curtail or limit the fundamental rights, keeping in mind the directive principles of State policy, which has an equal position of prominence in the constitutional scheme, held that it still shall not be entitled to exercise its power of amendment in such a fashion as to totally destroy or emasculate the Constitution or replace it with another.  However, the doctrine of basic structure, on the very face of it a proposition which none could find fault with, for, in Kesavananda Bharati, so too in subsequent judgments of this Hon'ble Court, it was held that republican democratic form of Government, Federal structure of the Constitution, separation of powers, secularism, independence of judiciary, all, constitute to be the basic structure of the Constitution, lost sight of the fact that the doctrine of basic structure no way expands the horizons of the concept of justiciability. Kesavananda Bharati invoked the jurisdiction of the Supreme Court for enforcement of his fundamental right.  The Supreme Court held that the Constitution amendment, which was challenged was valid, but it further held that the Parliament even in exercise of its constituent amendment cannot take away or completely destroy the fundamental rights. 
(D)         The doctrine of basic structure in itself is not justiciable.  Nobody could ever imagine to be invested with the right to come to a Court and seek a declaration that a Constitution amendment or an Act of Parliament is void since he perceives that the amendment or the Act impinges the basic structure.  He or she needs to plead something more, namely, that his or her fundamental rights are violated and the amendment or the Act which has violated his or her fundamental rights is so drastic or illegal that it not merely impinges his or her fundamental rights but it completely destroys them.  There thus a violation of the basic structure of the Constitution and the Parliament in exercise of its constituent power is not empowered to enact such a law 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 sought to be reviewed in fact is the Judges-5 case, though popularly known as the Judges-4 case, which has struck down the Acts and restored the collegium, a mechanism whereunder the Judges appoint themselves.  The Petitioner may be forgiven in putting it bluntly that the said judgment is nothing but entering into the act of legislation as if the Supreme Court is the Parliament, nay, in substitution thereof.  By the instant judgment, the judgment in Judges-2 case, which is nothing but rewriting of the Constitution, a judgment rendered per incuriam and which is void ab initio, is restored.  The net effect of the judgments in Judges-2, Judges-3 cases and the current case is literal death of democracy, the unkindest cut of the concept of separation of power at its very root, the Court assuming the role of both the Parliament and the executive, all at once, as if it is the Parliament and the executive, nay, in substitution thereof.  The judgments in Judges-2 and Judges-3 cases and the above petitions have resulted in a ridiculous scenario where Articles 124 and 217 of the Constitution are to be read diametrically opposite to what they state, which has meant cutting the concept of judicial review at its very root.  The question which now arises and for which no satisfactory answer could ever be offered is that if the Court were to act as the executive and the legislature, where will a person aggrieved, who intends to seek judicial review of the executive or legislative action, go to seek remedy.  It is not the Acts which impinge the so-called holy cow, the basic structure, but it is the judgments in Judges-2 and Judges-3 cases and in the above petitions which have caused the severest blow and irreparable damage to the concept of basic structure.

(H)         The concept of basic structure is wholly misunderstood.  It has been detailed above, but at the cost of repetition it is submitted that nobody could ever be heard to invoke Article 32 on the premise that the basic structure of the Constitution is impinged.  He has to come with a plea that the Constitution amendment or an ordinary law, whatever be it, results in violation of his fundamental rights and the violation is so grave, is so fundamental, that it is beyond the permissible domain of abrogation of the fundamental rights that so long as the Constitution remains it cannot be allowed to happen.  Unless there is such a plea, no writ under Article 32 will lie.  The Writ Petitions by SCAORA and the Bar Association of India and others, so too the National Tax Tribunal case and the innumerable PILs where busy bodies assume the role of the Attorney General and speak of public interest are all instituted on a misconception of the doctrine of basic structure and the concept of PIL.

(I)            This Hon'ble Court has listed the above petitions on 3rd November, 2015 to device ways and means by which the collegium system could be improved.  With utmost respect, the Petitioner begs to submit that the said exercise has no foundation in jurisprudence, nay, constitutional law.  This Hon'ble Court in doing so will be acting as if it is the Parliament exercising its constituent/legislative power.  If it is allowed to happen, it will cause unthinkable damage to the Indian democracy.  Nobody could deny that Supreme Court today is a fortress.  An ordinary lawyer finds it difficult to get entry; passes are restricted; no pass is issued to the general public unless he is able to show that he has a case listed; assuming that a lawyer or litigant who is interested in partaking in the deliberations of this Hon'ble Court on 3rd November, 2015, he will not be able to enter the Court Hall and if he is able to do so, he will not be heard.  Distinguished of the distinguished lawyers, with utmost respect and with an apology the Petitioner begs to submit, have monopolized the right to audience.  The Review Petitioner with more than 31 years at the Bar, pursuing his Writ Petition with great amount of zeal and fire, found himself difficult to be heard.  The Review Petitioner was not heard in any meaningful way.  Had he been heard and allowed to raise the question of justiciability of the issue, elaborated above, the judgment in question would not have been delivered. The course of history would have been different.  The plea of non-maintainability and non-justiciability is so important and even if it were to be rejected, it ought to have been allowed to be argued and was required to be rejected by giving reasons.  The judgment of this Hon'ble Court running into more than 1000 pages is silent about it since this Petitioner was not really heard.  When a party to a proceeding was not heard, the judgment becomes null and void.

(J)                       The judgment dated 16th October, 2015 is void ab initio since the Constitution Bench was disqualified from hearing the case.  When a Constitution Bench was first constituted with Hon'ble Mr. Justice Anil R. Dave as the Presiding Judge, the Petitioner had to seek His Lordship’s recusal with a heavy heart and great amount of hesitation, but he did so because he felt that it was his duty to do so. Thereafter the Constitution Bench was reconstituted with Hon'ble Mr. Justice J.S. Khehar, one of the most respected, distinguished and erudite Judges with heavenly qualities, as the Presiding Judge.  The Petitioner had to seek His Lordship’s recusal since he felt that if the Constitution Bench were to strike down the Acts and give a new lease of life to the collegium system, then His Lordship, the Petitioner begs to submit with utmost and great hesitation would be seen to have, though wholly unwittingly it could be, struck down the Acts and given rebirth to the collegium system, which was interred with its bones by virtue of the impugned Acts, and becoming a member of the powerful collegium which appoints Judges of the Supreme Court and High Courts.  The fundamental principle, namely, nemo iudex in sua causa or nemo debet esse judex in propria causa - no one can be judge in his own cause – stands violated.  It is a fundamental principle that where a Judge is biased, even where such bias is non-conscious, sub-conscious or unconscious, as in the instant case where His Lordship Hon'ble Mr. Justice Khehar would not have even in the wildest of his dreams ever thought of himself being a member of the collegium writing a judgment so as to secure a place for himself.  With utmost respect, nay, with greater amount of hesitation, the Petitioner begs to submit that had NJAC been in place, which certainly would have been the position but for the judgment sought to be reviewed, Hon'ble Mr. Justice Khehar as of today would not have any role in the appointment and transfer of Judges, but since the NJAC is, if the Petitioner were to borrow an expression from Shakespeare, “interred with its bones” by virtue of the said judgment and since by a stroke of a pen the Constitution Bench could do so and resurrect the collegium system, which is universally castigated to be an opaque and non-transparent one, His Lordship Hon'ble Mr. Justice Khehar is part of the collegium and His Lordship has a pre-eminent role in the appointment and transfer of Judges of the Supreme Court and High Courts.  The Petitioner is afraid to say that an “informed onlooker”, nay, even an ordinary man, nay, the 125 crores people of this country, may consider the judgment rendered by this Hon'ble Court as void, being in conflict with the maxim nemo potest esse simul actor et judex – “no one can be at once suitor and Judge”.

(K)         The doctrine of nemo debet esse judex in propria causa – no one can be judge in his own cause – is equally applicable for the entire Constitution Bench which heard the above petitions.  It is incorrect to say that the plea of recusal made by the Petitioner was confined to Hon'ble Mr. Justice Dave and Hon'ble Mr. Justice Khehar.  The Petitioner tendered in the open Court a chart showing that a Bench of not nine but eleven Hon'ble Judges, who will never be a part of the collegium nor of the NJAC, for, they will superannuate before they could reach that position by virtue of seniority, could have been constituted.  The judgment at the hands of the entire Bench is, therefore, vitiated by violation of the first principle of natural justice, namely, nemo debet esse judex in propria causa, and is liable to be declared as void.
(L)          The only saving grace in the aforesaid judgment is acceptance of the fact of total lack of transparency, opaqueness, oligarchy, nepotism and all sorts of vices where sunlight, which is the greatest disinfectant, is not allowed to enter is taken notice of by Hon'ble Mr. Justice Kurian Joseph quite eloquently in his judgment, concurring though, so too by Hon'ble Mr. Justice Jasti Chelameswar, and the willingness of the Constitution Bench to further the case on the question of ways and means by which the collegium system could be improved.  The collegium is incapable of being improved, for, its shortcomings are so fundamental and incurable.  That the very effort of this Hon’ble court to continue with the sitting even after the judgment is delivered in a writ petition is unprecedented and ultravires the constitutional mandate, in violation of the doctrine of separation of poweres,w hich is a basic structure of the constitution and hence is not amendable even by the parliament under Article 368 of the Constitution. The doctrine of separation of powers envisages that the law making powers are vested with the legislature and not with the 5-judge bench of the Hon’ble Supreme Court of India. The effort of this Hon’ble Court to function as a superior body even to the elected parliament is in violation of the oath of office of the judges, who are duty bound to function in accordance with the constitution, and the instant effort to continue with the legislative process after declaring the law as passed by the elected representative of the people of India is a effort to become a Supreme authority in the nation , which can cause irreparable damage to the Democracy and rule of law. Even in wildest of imagination it is impossible to understand that this Hon’ble Court can assume itself the autocratic , tyrannical and dictatorial powers to scuttle democratic institutions and declare itlef to be the supreme authority to exercise the executive and legislative functions under the self appointed jurisdiction of PIL, which stand in total violation of the Supreme Court Rules and the various judgments of this Hon’ble Court itself. The concept of PIL is not a mask for this Hon’ble Court to encroach upon the legislative and executive fuctions, by destroying the separation of powers,w hich itself is a Basic Structure of the Constitution. The terminology of “separation of powers” has been vitiated by being molded into “independence of judiciary, which is a misnomer and later by the instant judgment  into “ Supremacy of Judiciary” and hence to create the constitution itself, inth e name of interpreting the constitution. If this process of making the law, by this Hon’ble Court, by encroaching into the executive and legislative functions, without being accountable to the people of India, claiming that the people of India are not mature enough as a civil society is an affront to the nation as a whole, which has a history of oldest civilization in the world, having withstood the foreign invasions, conducted the independence struggle, as well as the ordeals of  emergency to protect the democratic form of governance. This Hon’ble Court cannot ignore the fact that it itself is the offspring of the constitution, which is parented by the civil society of this nation. The way in which the people of India shall be governed shall be left to the people of India only, and not by the 5 judges, who assumes themselves the tyranny of making the constitution, without any authority. Even if as a matter of hypothesis it is considered tht theis Hon’ble bench is most benevolent to the people of India, it amounts to dictatorship, may be benevolent dictatorship, as the power exercised by it is not accountable to the people of India or their elected representatives. In course of time, as the individuals change, it can even lead to most oppressive dictatorship, as well, to which even the present judges will be reeling, post-retirement. As the parliamentary democracy is the basic structure of the Constitution, as declared by this Hon’ble Court, in Kesavananda Bharati v. the State of Kerala (1973) Supp. SCR 1. , the dictatorial sitting by this Bench to make constitution is without authority and hence ultravires. The judiciary which appoints itself is not the ruler of the nation, neither as an executive, nor as the legislature. Any such effort is a mockery of the constitution and that of the people of the nation. The nation has experienced the fallibility of judiciary during the emergency and it was the civil society of the nation, which protected the democracy of the nation out of their valuable sacrifices. The process of judges appointing themselves, leading to nepotism and widespread inbreeding of progeny judges syndrome, coupled with assuming the executive and legislative powers, leads to the death of democracy and establishment of oligarchy.   The independence, sovereignty and democracy of the republic  and it's people, earned by many sacrifices cannot be surrendered by the nation to a dictatorship, even if it is termed as judiciary under the shadow of judicial supremacy.  The parliamentary democracy, being the basic structure of the Constitution, is not complimentary to the judicial supremacy, whereas both are antithesis to each other. Both cannot co-exist in a single nationhood. Hence this Hon’ble Court may refrain itself from venturing into law making effort. Hence  the further sitting of this Hon’ble Bench without a cause of action, person aggrieved and locus standi, to venture into the legislative functions is ultravires the constitution and hence in violation of the oath of office of the Hon’ble Judges, and hence this court is duty bound to refrain graciously from such venture, in the greater interest of nation. The review petitioner relays upon the following judgments for the above propositions.
a.        State of Kerala Vs. Mathai Varghese.AIR 1987 SC 33.
b.      Sukhdev Singh Vs.Union Territory AIR. 1987 P&H at Page 9.
c.       Sulochana Amma Vs.Narayanan Nair AIR.1994 SC 152 at page 156.
d.      Gauri Shankar Gaur Vs.State of UP.AIR 1994.SC, 169 at Page 177.
e.       Bharat Hari Singhania Vs. Commissioner of Wealth Tax.-AIR.1994. SC.1355 at Page.1365.
f.       H.Shiva Rao Vs.Cecillia Pereria AIR 1987 SC 248 at Page 250.
M.     Even in the event of the unthinkable that this Hon’ble Court continue with the effort to legislate itself, the Petitioner considers that the following steps could go a long way in making the working of the collegium system far better.  They are:


a)      Creation of a Secretariat/Commission under the administrative control of the Hon'ble Chief Justice of India and the Chief Justices of the High Courts, which is provided with all facilities, infrastructure, requisite finance, and empowered to act as a Judicial Appointment Commission.  Such Commission should be brought under the purview of the Right to Information Act, 2005 and it should conduct its business transparently;
b)      The Commission should notify the vacancies of Judges in the Supreme Court and High Courts at least six months before the vacancies occur.  Notification of the vacancies should also provide for filling up of the same by open selection for which the first step is to invite applications from all eligible candidates, invite references from all stakeholders, the Bar Associations, the public at large, of whom they consider to be most suitable.  The collegium/Commission should fix the qualifications and the minimum and upper age limit.  Though the Constitution has prescribed the qualification as 10 years of practicing as a lawyer or as a Judge, the collegium/Commission appointed by the collegium could fix it to be 15 years.  The minimum age limit could be fixed at 45 years and the maximum at 55.  In case the number of applications is too large, then the collegium/ Commission should fix a further standard for screening/short-listing the candidates.  When it comes to the competence and experience of lawyers who have applied for and could be considered for appointment, it could be possible that it may vary from State to State because there can be no match for the lawyers practicing in Delhi, Mumbai etc., with those practicing in far off High Courts, without meaning any belittling the lawyer fraternity of any Bar.  The zone of selection need not be confined to the Bar of a particular High Court.  Appointing a lawyer of a North Indian High Court in a South India High Court and vice-versa will not only foster greater national integration, but also will mean an answer to the complaints of favouritism and nepotism, which is so widespread.  Whether a Secretariat/Commission for each High Court or a common selection Secretariat at the national level under the command of the collegium of the Supreme Court is a matter which by a method of “trial and error” alone can tell.  However, currently a mechanism of State level Secretariat could be thought of.

c)      Once the candidates are short-listed for selection, which ideally should be double the number of vacancies, the short-listing should be made known to the Bar and the public at large so that opinions in favour and against could be received and the collegium can take a final call.  Though the open and transparent method of selection, as aforesaid, is likely to offer some difficulty, for, it could be possible that lawyers who have a flourishing practice may consider it embarrassing to be put to public scrutiny.  Such inhibitions are all likely to vanish into thin air once it is accepted that in a constitutional democracy, appointments to the august office of the Judges of the Supreme Court and High Courts cannot be made in an opaque and cabal manner.  Viewed from another angle, a lawyer who is willing to subject himself to public scrutiny, a lawyer who has nothing to hide and no skeleton to be tumbled out of his cupboard, alone should be appointed as a Judge.  Like the Caesar’s wife, a Judge should be above suspicion.

PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

a)            review the judgment and order dated 16.10.2015 passed by this Hon’ble Court in W.P. (C) No.124/2015 ; and
b)           pass such other order or orders as the circumstances of the case may require.

    
   DRAWN BY                                            FILED BY


(A.C.Philip)                                            (Mathews J.Nedumpara)
  Advocate                                                           Party in person


New Delhi.
Drawn on :
Filed on :

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