IN THE SUPREME COURT OF
INDIA
MISCELLANEOUS
APPLICATION No.______________/ 2016
IN
WRIT PETITION
(CIVIL) NO. 295 OF 2016
In the Matter Between
Ashwini Kumar Upadhyay …Petitioner
Versus
Union
of India and Anr. …Respondent(s)
APPLICATION FOR INTERVENTION ON BEHALF OF APPLICANT
National Lawyers’ Campaign For
Judicial Transparency And Reforms
Through
A.C.Philip, it's Jt.Secretary …… Applicant/Addl. Respondent
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE APPLICATION OF
APPLICANT ABOVENAMED:-
MOST RESPECTFULLY SHOWETH:
1.
The
instant Applicant is a registered society working for the betterment of
judicial system and is approaching this court as a representative of it's
member lawyers and their litigants, where they have to face the court across
the length and breadth of the nation as a matter of profession. It is a Non-Governmental
Organization registered under the
Societies Registration Act, 1860 with the primary objective of greater transparency and accountability,
particularly in the higher judiciary and to usher in campaign for reforms which
will make the judiciary far more democratic and being in the service of the
common man. It is an organization primarily of the first generation lawyers who
hail from humble backgrounds, being the sons and daughters of the common man,
the farmers, the toiling class, the teachers, taxi drivers, small scale
traders, employees in the lower rungs of the Government and private sector, who
constitute 95% of the legal fraternity.
The applicant has a huge support base of lay people who consider that
the judiciary in India is far less transparent than it ought to be. Though the Judges enjoy enormous public
confidence, of which great erosion has happened in the recent past, they are
continued to be regarded as demigods and their words are treated as
gospel. Many of them have lived up to
the great confidence, faith and trust placed in them by the common man. Judges in India enjoy absolute immunity. The Contempt of Court laws, which are quite
often used against honest and outspoken persons have meant the lay people, nay,
the legal fraternity, refraining from speaking fearlessly against many an acts
and omissions on the part of the Hon'ble Judges of the higher judiciary. The concept of scandalizing the Court by
criticism thereof has its foundation that the independence of the judiciary is
maintained; the misconduct, nay, even corruption on the part of the Judges of
the higher judiciary are not allowed to be raised; the true state of affairs of
the higher judiciary is kept away from the knowledge of the common man, nay, he
is kept ignorant thereof on the premise that if he is allowed to know the same
his confidence in the institution will be lost. The fact that respect is to be
commanded and that the best way to deserve it, is by the quality of judgments
delivered, the impartiality and the independence, nay, the high morality, is
often lost sight of. The present system
leads, where the respected is demanded, not commanded.
2.
The applicant was formed since
it was felt by the ordinary lawyers that the collegium system of appointment of
Judges to the higher judiciary, one which is nothing but rewriting of the
Constitution, to keep political interference in judicial appointments
completely at bay, so too, to appoint the very best and most deserving Judges,
has totally failed and it has, instead, meant monopolizing the august office of
Judges of the higher judiciary by the kith and kin of sitting and former Judges of the Supreme Court and
High Courts, their juniors, 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 fact
that corruption in the higher judiciary is no longer
deniable but has assumed a proportion of high concern with the relatives and
friends of Judges acting as conduits who have amassed huge wealth within the
country and abroad, bringing back such money to India by ingenious methods and
said to have even invested in private airports and not an FIR could ever be
registered against a Judge without permission of the Hon'ble Chief Justice of
India etc., meant many of the ordinary lawyers being greatly concerned. The fact that there is no effective mechanism
whatsoever to address complaints of misconduct and malpractice on the part of
Judges of the higher judiciary; that the Judicial Standards and Accountability
Bill, 2012 introduced in the Parliament remaining in cold storage; that the
Hon'ble Judges were not forthcoming to welcome the said Bill, nay, they were
opposed to the same, made the concern of the ordinary lawyers further
aggravated. The fact that the “In House”
mechanism for addressing complaints against Judges of the higher judiciary,
namely, the Charter/Resolution called the “Restatement of Values of Judicial
Life” passed by the Supreme Court of India in its Full Court meeting held on
May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief
Justices’ Conference 1999, failed to take off also meant the ordinary lawyer,
nay, the lay man, informed about the affairs of the higher judiciary.
3.
These days, challenge to the
constitutionality of an Act of Parliament, a statutory instrument, by way of a
PIL is a big industry. The applicant believe that the essence of a democracy is the right to criticize,
the right to dissent and the right to speak unpleasant truth, even about persons
who claim great respectability. The petitioner is of the view that the respect
and dignity of the judicial institution is preserved, not by it's ability to silence
the criticism under the unbridled tyranny of Contempt of Court Act, but by it's
ability to withstand criticism by the impeccable character and sterling impartiality
of the judges, who constitute the judiciary. The so-called legal luminaries assert from
rooftops that the judiciary in India is most powerful. They are true, but the question is, is it at
all desirable? The applicant begs to disagree. The Constitution never conceived such a
position. Today, with utmost respect,
this country is ruled by Judges. On all
matters, which exclusively fall in the domain of executive and legislative
policies, the fiat of the Supreme Court prevails. The Parliament cannot even create a National
Tax Tribunal; the National Tax Tribunal Act, 2005 was struck down as
unconstitutional by the Supreme Court in
Madras Bar Association v. Union of India,
(2014) 10 SCC 1. Both the Houses of the
Parliament and 21 State Legislatures could not by a unanimous amendment of the
Constitution establish a National Judicial Appointment Commission. All this is done in the name that the Act of
Parliament violates the basic structure of the Constitution; all this is done
by a procedure called PIL which has no foundation in jurisprudence or law. Elsewhere in the world, Parliament enacts the
law and the Parliament alone can declare what law of the land is. The Constitution of India too conceives the
same only. Article 141 merely states
that judgments of the Supreme Court are binding precedents; it does not say
that the judgments of the Supreme Court are declaration of law binding on all
citizens; it merely states that the judgments of the Supreme Court are binding
on Courts and Tribunals in the country. But, judiciary has imposed taxes, like National
Green Tribunal imposing an “environmental compensation charge” over and above
the municipal toll tax or the so-called green cess imposed by this Hon’ble
Court for the heavy diesel cars in Delhi, without any legislative
authority, without any money bill passed by any house of people’s
representatives, in total disregard to the Constitution, especially
Articles,265,109,110,117,198 & 199 of the Constitution of India. The
imposing of tax is the sole domain of the people’s representatives, to which
even the Council of State (Rajya Sabha) has no effective role to play, apart
from decorative. Elaborating these
issues would mean this petition becoming voluminous, an exercise which will
prove to be counter-productive. Therefore,
the applicant refrains from doing so. All
that the applicant beg to submit, even if one were to
conceive that the Supreme Court has the power to strike down an Act of Parliament in the realm of executive and
legislative policy (which involves no violation of fundamental rights), is that
it could be possible only after hearing the 129 crore people of this country.
4.
The
applicant has allowed it to be exposed that the concept of PIL has completely
been misunderstood. The applicant, with due apology, state in the fewest
possible words what the concept of PIL as infra.
5.
Right
to access is confined to a “person aggrieved”; he alone can seek a remedy and
where a person aggrieved is unable to institute a petition to enforce his
remedy out of his illiteracy, poverty and other disadvantages, any person
acting pro bono publico can act on his or her behalf, nay, even a determinative
class of persons. But, there must be a
person aggrieved and the person aggrieved must suffer from a disadvantage or
incapacity to approach the Constitutional Court and seek redressal.
6.
If the Supreme Court can lay down the
policies, it cannot be by hearing a few elite lawyers. But, unfortunately, without notice to the
public at large and without hearing them, entirely behind their back, decisions
on matters of executive and legislative policies involving no violation of
fundamental rights are taken and the last such instance is the NJAC case. Ordinary lawyers are convinced that the elite
class of lawyers in the Supreme Court is a self-serving class and, therefore, a
time has come for a campaign where the ordinary lawyers take the leadership,
standing shoulder to shoulder with the ordinary people. The applicant, therefore,
came into existence and its objectives are quoted infra:-
(a)
Advertisement of
vacancies of Judges of the higher judiciary, invitation of applications and
references , open and transparent selection and appointment, instead of the
current system of appointment by invitation where only the elite and super
elite are invited, in a democratic legitimacy in the matter of selection and
appointment of Judges;
(b)
Creation of a Judicial
Ombudsman or such other mechanism as is contemplated in the Judicial Standards
and Accountability Bill, 2012 or the Charter/Resolution called the “Restatement of Values of Judicial Life”
passed by the Supreme Court of India in its Full Court meeting held on
May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief
Justices’ Conference 1999 or any other meaningful mechanism where grievances
against Judges could be addressed;
(c)
Audio/video-recording
of proceedings of all Courts and Tribunals and in particular the Supreme Court
and High Courts, which will ensure transparency and accountability;
(d)
Reintroduction of the
transfer policy, which was described by the Seven-Judge Constitution Bench in
Judges-1 case as a panacea for allegations of favouritism and conflict of
interest where a lawyer is elevated as a Judge of the very same High Court
where he has been practicing;
(e)
Bring an end to the “Uncle
Judge Syndrome” by transferring Judges whose immediate relatives are
practicing in the very same Court;
(f)
Abolition of the
practice of designation of Advocates as a Senior Advocates or, at least,
introduction of a common dress code for all lawyers, including those who are
designated as Senior Advocates;
(g)
Repeal of Contempt of
Courts Act, 1971, for the said Act constitutes to be the one single obstacle
which has rendered freedom of speech enshrined in Article 19 of the
Constitution redundant. In none of the
civil law countries, the law of contempt exists. In England, in the 19th Century
itself, contempt by scandalizing a Court
was declared to be obsolete;
(h)
Introduce a transparent
mechanism in the appointment of Standing Counsel/Panel Advocates/Legal Officers
for Central and State Governments, Statutory Bodies, Public Sector Undertakings
etc., so that the prevailing system of nepotism, political favour etc., are
brought to an end;
(i)
Simplification of
procedures to make the judiciary as an institution for the common man rather
than it being meant to be for the Judges and elite lawyers.
7.
As aforesaid, the applicant came into existence for the ordinary class of lawyers, who
constitute 95% of the legal fraternity, who felt that there is no forum to
speak for them and to ensure that they are treated equally and fairly. The collegium system of appointment of Judges
to the higher judiciary meant total exclusion of the ordinary class of lawyers,
the sons and daughters of the common man, from being considered. In a system where the Judges appointed
themselves, they chose to appoint their kith and kin and the elite. The Parliament brought the aforesaid Acts and
thereby sought to make a reality the universal concept of an Independent
Judicial Appointment Commission, where neither the executive nor the judiciary
has a determinative say, but the selection is founded on merit and character by
invitation of applications and references.
It was inconceivable that the legal luminaries would en-bloc oppose the
same. They might have felt that the said
Acts, which will open up equal opportunities in the appointment to the higher
judiciary to the sons and daughters of the common man, would mean their
determinative say in such appointments would be lost forever and hence they
used the Supreme Court Advocates on Record Association (SCAORA) as a pawn to
achieve the said object and, in fact, succeeded in securing a declaration at
the hands of this Hon'ble Court that the said Acts are unconstitutional. If the so-called legal luminaries had a right
to speak against the said Acts, thousands and thousands of ordinary lawyers and
millions of lay people too had a right to assert that the said Acts are the
will of the people and are constitutional, and no right will lie because it
infringed nobody’s fundamental right, but, on the contrary, their enactment it
is a matter of legislative policy which fell in the exclusive domain of the
Parliament. The plea is that if legal
luminaries could seek a declaration that the aforesaid Acts are
unconstitutional, the ordinary lawyers, the lay people, also have a right to
seek a declaration that the said Acts are constitutional and that if the
validity of the said Acts could be questioned, then all those who support and
oppose the same – millions and millions on each side – have a right to be
heard. This Hon'ble Court realized, even
while it asserted that it has a right to decide whether the said Acts are
violative of the basic structure of the Constitution and was pleased to do so,
that to improve the collegium system, which this Hon'ble Court by the judgment
in the NJAC case revived, the public at large ought to be heard. In a way that was a realization that the said
Acts are not justiciable, though such a realization dawned upon it subsequent
to the declaration that the said Acts are unconstitutional.
8.
By order dated 05.11.2015, passed
in the above Writ Petition [WP(C) No.13/2015], this Hon'ble Court was pleased
to invite suggestions from the public at large for improvement of the collegium
system of appointment of Judges responded to it; suggestions running into
thousands of pages were received. This
Hon'ble Court, though it did not say so in so many words, realized that hearing
the public at large is an impossibility and that the course of action embarked
upon by it, is nothing but legislation, and it found itself to be on crossroads
as to whom to be heard and whose opinions are to be listened, and disposed of
the NJAC case directing the Government to frame a Memorandum of Procedure (MoP)
for appointment of Judges to the higher judiciary.
9.
As could be seen from the order
dated 16.12.2015, in the said writ petition, passed by this Hon'ble Court,
based on the opinion sought from the public at large, this Hon'ble Court felt
that the MoP should provide for improvement of the collegium system of
appointment of Judges in four areas, namely:
(i) Transparency,
(ii) Collegium Secretariat,
(iii) Eligibility Criteria and
(iv) Complaints.
In this respect, the applicant are reminded of the words of Horace, parturient montes,
nascetur ridiculus mus – mountains will be in labour, and an
absurd mouse will be born inasmuch as the entire matter was back to square one,
once again. No transparency- no
secretariat-no eligibility criteria-no complaints-A heavenly system with serene
peace and harmony, by excluding the commons out of the corridors.
10. The aforesaid
Acts, which have received the unanimous support of both the Houses of the
Parliament and as many as 21 State Legislatures, were quashed and set aside by
the majority judgment of this Hon'ble Court in its judgment dated 16th
October, 2015, and an independent Judicial Appointment Commission envisaged
thereby was not allowed to take its birth. The collegium system, which this
Hon'ble Court itself found to be a total failure, a synonym for favourtism,
nepotism, non-transparent, oligarchy and secrecy, was revived. Since the then Hon'ble Chief Justice of India
(CJI) Shri H.L. Dattu refused to be involved in the selection of two eminent
persons who were to be part of the Selection Committee on the premise that the
constitutionality of the Acts are under challenge, for more than six months
from the day, the said Acts were notified till the judgment in the NJAC case
came, no appointments were made. At that time nobody ever complained that
there is mounting pendency of cases, and thus the process shall be expedited.
But in contra, the moment the NJAC was declared unconstitutional, the demands
were raised from many corners that the nation is suffering from the pendency of
cases, and justice shall be delivered faster. It is to understand that the
cases piled not just after the delivery of judgment in NJAC(Judges-5) case, but
the accumulation of many a years. The need of the hour is to deliver justice,
not merely disposing off the cases by any unworthy appointments effected
through cabal and opaque mechanism, resulting into striking at the very root of
the judicial independence. Any single wrong appointment to the higher judiciary
is going to adversely affect the independence of judiciary. Because the
independence of judiciary is it's independence to decide the interparty
disputes without any favoritism or partiality. The wrong appointment, if
effected in the name of expediting the disposal of cases will hamper the
justice and it's institution. The collegium
system, where under the Judges enjoy absolute power to appoint their kith and
kin and, therefore, arguably could have caused no delay in the appointment of
Judges, it is believed, could not make timely appointments due to ‘pulls and
strings’. The collegium system could not even resolve something which probably
could have offered no difficulty, namely, timely appointments, for, they need
to consult none except themselves; they need not hear any complaints because
the world outside does not know who are being appointed till the Warrant of
Appointment is issued. Everything is
done in a most cabal, non-transparent and secret manner.
11.
As aforesaid, the total
ban/suspension of appointment of Judges to the higher judiciary, added with the
backlog in existence when the said Acts were brought into force, meant many
High Courts in the country functioning with less than 50% to 70% of their
Judge-strength; it also meant a few vacancies in the Apex Court. This resulted in total breakdown of the
justice delivery system, for, the suspension of appointments for more than six
months meant the last straw in the camel’s back. To the present Hon'ble CJI, whom the applicant consider to be the
noblest of CJIs the country ever had and a person of unquestionable integrity,
nobility and erudition, the scenario was heartbreaking. Same is the position with any citizen who has
a concern for the nation. There cannot
be two opinions that appointments of Judges to the higher judiciary cannot
brook any delay. The applicant too are in complete agreement with the Hon'ble CJI; so too that of
any righteous man, be it from the judiciary, the Bar or the lay people. But the question of equal importance, if not
of greater importance is, could the nation afford further appointments to be made
by the collegium in a most non-transparent way, which has meant the higher
judiciary becoming the exclusive province of those lawyers who belong to the
elite class, the kith
and kin of sitting and former Judges of the Supreme Court and High Courts,
their juniors, 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?
12.
The applicant
submit that in the matter of appointment of Judges to the higher judiciary,
there is no diversity at all. The applicant is no great
supporters of the system of appointment prior to the judgment in Judges-2 case when the executive had the
predominant role. But at that time also
it was the voice of the judiciary which used to prevail, the views of the
brothers in robes. The question,
therefore, which arises today is whether, in the garb of shortage of Judges in
such enormous proportion where admittedly some of the high Courts have only 50%
of their Judge strength, which has led to a breakdown of the justice delivery
system, the collegium could be allowed to make further appointments or, even if
heaven were to fall, should not diversity and transparency in judicial
appointments be obtained. The Hon'ble
CJI spoke in the open Court on 11th August, 2016 and again on 15th August, 2016
on the lawns of this Hon'ble Court that in view of the emergent situation that
certain High Courts are working with almost 50% of the Judge strength, without
bringing in any improvement to the collegium system in terms of the judgment in
the NJAC case, appointments should be made.
The applicant
consider that the contrary view is more valid; if the higher judiciary is
allowed to be completely manned by Judges who are from a small pool of the kith
and kin of Judges, you will be creating a judiciary which is a class apart from
the common man and the elite class of Judges who are socially and economically
very different from the ordinary class of lawyers and citizens, a class of
Judges who will not be able to empathize with the cause of the poor, the common
man. Therefore, the applicant would submit that
even if heavens were to fall, let it fall and no further appointments to the
august office of the higher judiciary be made without a just and transparent
system of selection and appointment is brought into existence.
13.
The applicant
would like to make it abundantly clear that the NLC, the applicant, believes that if the
executive Government is allowed to have a big say in the appointment of Judges
to the higher judiciary, that will mean those who are highly connected with the
executive, the political leadership and its supporters and sympathizers being
rewarded by judicial appointments. It
has happened in the rest of the world; it has happened in this country too,
though on a negligible level. Nobody
could dispute that appointment of Judges by the collegium system is a synonym
for favouritism, nepotism and oligarchy. An independent Judicial
Appointment Commission, as reflected in the Acts, was the will of the people,
sadly though the said Acts were set aside.
However, the applicant
does not think that, that is the end of the road. The order dated 16.12.2015 passed by this Hon'ble Court in WP(C)
No.13/2015 has given a road map for improvement of the collegium system of
appointment of Judges. It is within that
road map to advertise vacancies, invite applications, establish a Secretariat
to scrutinize those applications, short-list the same, select the candidates on
a tentative basis, notify such selection to the public at large, invite objections
and complaints, if any, from the public, etc., all to be done in a transparent
manner, making it expressly clear that the entire mechanism is amenable to the
provisions of the Right to Information Act, 2005. The answer to the current scenario, nothing
short of an emergency, is to not insist upon appointment in a secretive and
cabal manner, which is the synonym for the current collegium system, but to
embrace change/s.
14.
The applicant is an association of the non-elite class of lawyers, the first generation
lawyers who have no Godfathers to secure them anointed as a Judge of the
Supreme Court or a High Court. The
ordinary lawyers consider that they commit no crime in aspiring to become a
Judge of the higher judiciary, while at the same time consider that the
competent authority who find them to be wholly unsuitable, unmeritorious and
reject their candidature, they will accept that fait accompli with all
grace. The applicant is asserting all these to make it clear that they are entitled to
invoke the jurisdiction of this Hon'ble Court under Article 32 of the
Constitution which is available only where the rights enshrined in Part III
thereof are infringed. Since many
appointments of Judges to the higher judiciary are made since the judgment in
the NJAC case without bringing in any transparency in terms of the order of
this Hon’ble Court dated 16.12.2015 in WP(C) No.13/2015, the applicant apprehend
that many more such appointments are all likely to be made without effecting
any improvements to the collegium system of appointment suggested in the said
order. The applicant’s apprehensions stand further aggravated in view of the recent
public statements at the hands of the Hon'ble CJI that the collegium could not
tolerate any more delay in the appointment of Judges and that the Government is
duty bound to clear forthwith the names of Judges sent by the collegium by
resort to a secret selection. Hence, the
instant application is for enforcement
of the fundamental rights of the members of the applicant organisation, for equal treatment and equal opportunity for selection and
appointment as Judges of the higher judiciary, through a transparent mechanism,
and further to seek that the collegium of appointments abides by the order of
this Hon’ble Court.
15.
Merely achieving the statistical bench marks are not the
objective and constitutional responsibility of the judiciary. The petitioner
believes that the statistical tools shall remain as a tool only and not the
sole objective of the judicial system in the nation. Of course, delivering of 1
justice will be far better than delivering 100 injustices. Merely for the
purpose of reducing the number of the pending cases, the judicial system cannot
dispose off the cases, through judges appointed who are not meritorious and
impartial. What is more important is delivery of justices, and the disposal of
cases and brow beating on it by statistical analysis is always secondary. The cabal system of appointments which
supports the nepotism and inbreeding, which has crept into the judicial
appointment system, which remains an undeniable truth, is against the delivery
of justice but can only cause the independence of judiciary being surrendered
to personal interests of a group peoples and their caucus. Whereas the
petitioner humbly submits that the Nation and it's people are paramount and not
the interest of it's organ. Interest of an organ and it's people cannot grow beyond
the interest of the Nation, however big and essential the organ be. The
following judgments, and the pronouncements by this Hon’ble Court, even though
damaged the edifice of constitution, has made many verbal expositions, which
are quoted as below. The applicant, even
when seeks the modifications of the said judgments, is quoting the below propositions
and philosophies from the same judgments, to bring to the notice of this Hon’ble
Court, how glaring is the cleavage between the words and the actions in
reality.
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-3 Case) says that:-
"(7)
Non-appointment of anyone recommended, on the ground of unsuitability must be
for good reasons, disclosed to the Chief Justice of India to enable him to
reconsider and withdraw his recommendation on those considerations. If the
Chief Justice of India does not find it necessary to withdraw his
recommendation even thereafter, but the other Justice of the Supreme Court who
have been consulted in the matter are of the view that it ought to be
withdrawn, the non-appointment of that person for reasons to be recorded, may
be permissible in the public interest.
If the non-appointment in a rare case, on this ground, turns out to be a
mistake, that mistake in the ultimate public interest is less harmful than a
wrong appointment. However, if after due consideration of the reasons
disclosed to the Chief Justice of India, that recommendation is reiterated by
the Chief Justice of India with the unanimous agreement of the Judges of the
Supreme Court consulted in the matter, with reasons for not withdrawing the
recommendation, then that appointment as a matter of healthy convention ought
to be made. (Emphasis supplied)
16.
Further
the same judgment of this Hon’ble Court by 9 judge bench reiterates the need
for absence of absolute discretion to any of the authorities in it's decision making,
which is a deterrence against arbitrariness. Whereas the instant methodology
practically adopted by the collegium in appointments are resulting in absolute
discretion, within a total opaque system, without any record of proceedings,
leading into a drawing room decision making, causing serious prejudice to the
interest of the Nation, in the pseudo name of judicial independence. It is
again in the total violation of the judgment of this Hon’ble Court in the said
judgment, which is quoted as below:-
“The rule of law envisages the area of discretion
to be the minimum requiring only the application of known principles or
guidelines to ensure non-arbitrariness, but to that limited extent, discretion
is a pragmatic need. Conferring discretion upon high functionaries and,
whenever feasible, introducing the element of plurality by requiring collective
decision, are further checks against arbitrariness. This is how idealism and
pragmatism are reconciled and integrated, to make the system workable in a satisfactory
manner. Entrustment of the task of appointment of superior Judges to high
constitutional functionaries; the greatest significance attached to the view of
the Chief Justice of India, who is best equipped to assess the true worth of
the candidates for adjudging their suitability; the opinion of the Chief
Justice of India being the collective opinion formed after taking into account
the views of some of his colleagues; and the executive being permitted to
prevent an appointment considered to be unsuitable, for strong reasons
disclosed to the Chief Justice of India, provide the best method, in the
constitutional scheme, to achieve the
constitutional purpose without conferring absolute discretion or veto upon
either the judiciary or the executive, much less in any individual, be
he the Chief Justice of India or the Prime Minister.”(Emphasis supplied)
17.
Even
when the said judgment has in clear terms laid down that the said consultative
process shall be formal and in writing, the member of the collegium has confirmed
on record that the consultative process by which the collegium recommended the
names of the judges to be appointed in a very casual and informal manner
without any effective and cogent consultation, which undermines the interest of
the nation and it's people. It is in total violation of the order of the 9
judge bench of this Hon’ble Court in 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), which is quoted as below:
“The Chief Justice of India, for the formation of
his opinion, has to adopt a course which would enable him to discharge duty
objectively to select the best available persons as Judges of the Supreme Court
and the High Courts. The ascertainment of the opinion of the other Judges by
the Chief Justice of India and the Chief Justice of the High Court, and the expression of their opinion, must be
in writing to avoid any ambiguity.” (Emphasis supplied)
……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
"(9) In order to
ensure effective consultation between all the constitutional functionaries
involved in the process, the reasons for disagreement, if any, must be
disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involved,
including all the Judges consulted, must
be in writing and the Chief Justice of the High Court, in the case of
appointment to a High Court, and the Chief Justice of India, in all cases, must
transmit with his opinion the opinion of all Judges consulted by him, as a part
of the record.” (Emphasis supplied).
……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
“Necessarily,
the opinion of all members of the collegium in respect of each recommendation
should be in writing. The ascertainment of the views of the senior most
Supreme Court Judges who hail from the High Courts from where the persons to be
recommended come must also be in writing. These
must be conveyed by the Chief Justice of India to the Government of India along
with the recommendation. The other views that the Chief Justice of
India or the other members of the collegium may elicit, particularly if they
are from non-Judges, need not be in writing, but it seems to us advisable that
he who elicits the opinion should make a memorandum thereof, and the substance
thereof, in general terms, should be conveyed to the Government of India.”
(Emphasis supplied).
Once
the Supreme Court Collegium, which is the ex-officio appointment of the senior
most sitting judges of the this Hon’ble Court, headed by the Chief justice of
India in the administrative capacity
shows scant regard to the judgment of this Hon’ble Court, the rule of law and
the Constitutional democracy is at the verge of deconstruction. It can lead the
nation into chaos, the administration of justice into grinding halt and
existence of Nation into whirlwind. Hence, the said judgment even laid down the
situation, where in the non-appointment of recommendations are justified. To
quote from the above referred judgment,
“Some instances when
non-appointment is permitted and justified may be given. Suppose the final opinion
of the Chief Justice of India is contrary to the opinion of the senior Judges
consulted by the Chief Justice of India and the senior Judges are of the view
that the recommended is unsuitable for stated reasons, which are accepted by
the President, then the non-appointment of the candidate recommended by the
Chief Justice of India would be permissible."...
Whereas
the effective consultation is not taking place, and what is the recommendation
in the name of collegium is informal drawing room manipulations in practical
terms, the said principles laid down by this Hon’ble Court through it's
judicial pronouncements goes to the winds, in total violation of the
Constitutional obligation under Article 144, which reads as follows:
“144. All authorities, civil and judicial, in the
territory of India shall act in aid of the Supreme Court.”
Whereas the judges-2 case (Supreme Court Advocates-on-Record Association v.
Union of India, (1993) 4 SCC 441) had reiterated that the recommendations and appointments
shall be “Intended to secure
the independence of the judiciary and the appointment of the best men available
with undoubted credentials”, the present violations of the pronouncements of
this Hon’ble Court has resulted in the loss of credentials and credibility for
the entire judicial institution itself, which is otherwise supposed to be
sacrosanct. It cannot be restored by ‘shooting the messengers’, but by credible
reformations as reiterated in the judges-5 case (Supreme Court Advocates-on-Record
Association v. Union of India and Others (JT 2015 (10) SC 1),
2015(5)GLT(SC)12,
2015(11)SCALE1.) by a 5 judge constitutional bench of this
Court:
“All told, all was and is not well. To that extent,
I agree with Chelameswar, J. that
the present Collegium system lacks transparency, accountability and objectivity.
The trust deficit has affected
the credibility of
the Collegium system, as
sometimes observed by the civic society.
Quite often, very serious allegations and many a time not unfounded
too, have been raised that its approach has
been highly subjective.
Deserving persons have been ignored wholly for
subjective reasons, social and other
national realities were overlooked, certain appointments were purposely delayed
so as either to benefit vested choices
or to deny such benefits to the less
patronised, selection of patronised or favoured persons were made in
blatant violation of
the guidelines resulting
in unmerited, if not, bad
appointments, the dictatorial attitude of the
Collegium seriously
affecting the self-respect
and dignity, if not, independence
of Judges, the court, particularly the
Supreme Court, often being styled as the
Court of
the Collegium, the looking
forward syndrome affecting impartial assessment,
etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for
a deep introspection
as to whether
the institutional trusteeship has kept up the expectations of
the framers of the Constitution. Though one would not like to
go into a detailed analysis of
the reasons, I feel that
it is not
the trusteeship that failed, but the frailties of the trustees and the
collaborators which failed the
system. To me,
it is a
curable situation yet.
There is no healthy system in practice. No doubt,
the fault is not wholly of
the Collegium. The
active silence of the
Executive in not
preventing such unworthy
appointments was actually one of
the major problems. The Second and Third Judges Case had provided effective
tools in the hands of the Executive to
prevent such aberrations. Whether ‘Joint
venture’, as observed
by Chelameswar, J.,
or not, the Executive seldom effectively used those
tools.
Therefore,
the Collegium system needs to
be improved requiring a
‘glasnost’ and a ‘perestroika’, and hence the case needs to be heard further in
this regard.”
18.
But
no glasnost has taken place, no perestroika has been initiated, but the
appointments are going on as usual in a cabal, opaque, casual and unaccountable
manner to breed nepotism and favoritism. Not even the Memorandum of Procedure
exists for the purpose of appointments. All in a vacuum and behind the iron
curtains, where only the selected few in the system has access. It negates the
existence of all others who have no godfathers in the system to get access to
the drawing rooms of the decision makers. This judgment clearly lays down that
the executive is duty bound to prevent unworthy appointments. There is no room
for the blame game in the constitutional responsibility, for which the entire
blame for the logjam and mistrust is shifted to one organ, and the authority is
shifted in the opposite direction. Both needs to flow in consonance to each other,
leading to constitutional trust and harmony.
It is when the executive uses
the tools with it to block the violation of constitutional mandate by the
constitutional authorities itself and labours to establish the verdicts of this
Hon’ble Court, in letter and spirit, the members of the collegium is not
supposed to break the constitutional comity and arm twist the executive, by
judicial pronouncements to cause constitutional mistrust and stalemate. It's
the duty of the constitutional authorizes to respect the constitution and the
judicial pronouncements, and the body being constituted out of sitting judges
does not give any reason to willfully disobey the judgments pronounced by this
Hon’ble Court in exercise of it's judicial authority. The same judge, while
pronouncing the judicial decision lays down the ratios and on the other side
while exercising administrative side authorities in the ex-officio capacity
blatantly violates the said ratios leads the entire nation in to chaos and
disarray. Even shocking is the case of the judges-4 case (Suraz
India Trust Vs. Union of India & Anr. (2012) 13 SCC 497-B), where this Hon’ble Court had on 04.04.2011 by
order referred the given issues to a Larger Bench, and the said Bench has never
been constituted, which is another instance of disrespect to the judicial
system. More than half a decade has passed since then. Surely the number of
pending cases are mounting.
19.
The
Collegium of the Supreme Court of India, being an authority within the
territory of India is constitutionally bound under Article 144 of the
Constitution to act in aid of this Hon’ble Court in implementing it's orders
and judgments in letter and spirit and
in no way, to subvert or vitiate it.
20.
It
is time that the cabal system of appointment of judges to the higher judiciary
is dispensed with and all lawyers are treated equally. By doing so, no heaven will fall; all that
could happen is to bring an end to the inbreeding. If the current system of the kith and kin of
sitting and former Judges of the Supreme Court and High Courts, celebrated
lawyers, Chief Ministers, Governors et al, monopolizing the august office of
the Judges of the higher judiciary, so too being designated as Senior
Advocates, will continue, then the Indian judiciary will be deprived of the
diversity of genes which alone could provide immunity to the corpus of the
legal profession/judiciary to protect itself from the diseases such as
corruption, nepotism and malpractices.
Neither in animal kingdom nor in plants inbreeding is permitted; it is
against the very law of the nature. It
is worthwhile to note that certain species like elephant foot yam, nay, even
banana plants became extinct because of inbreeding, being divested itself of
its vital diverse genes, which alone could have protected it from viral attack.
21.
The
applicant finds the instant petition as an opportunity before this Hon’ble Court
to clean the in house and brush aside the variations and aberrations effected by the judges-2,3 & 5 cases to
the Constitutional mechanism of appointing judges to the higher judiciary and further
ensure that the mechanism of appointment to the higher judiciary is made in a
manner where all eligible are equally placed to claim for it and the appointments
are effected only to the persons of merits and integrity of character, not
based on the grapevine behind the iron curtains of so called ‘independence of
judiciary’, but based upon the credible benchmarks and yardsticks. This is a
golden opportunity before this Hon’ble Court to amend the past and look forward
for an appointment mechanism which is independent of both political and
judicial interferences. The applicant, together with the nation seeks that the
aberrations congregated under the present system of appointment be rectified by
this Hon’ble Court through the instant writ petition. Hence this application.
PRAYER
It is most humbly prays that this Hon’ble Court may
graciously be pleased to:
(a)
allow
the applicant to be intervened as
additional Respondent/party in the Writ Petition(Civil) No. 295/2016,
before this Hon’ble Court;
(b)
pass
such further and other orders as the nature and circumstances of the case may
require.
[_________________________]
Advocate on record for the Applicant
