IN THE HIGH COURT OF DELHI
AT NEW Delhi
CIVIL ORIGINAL
JURISDICTION
LETTERS PATENT APPEAL NO. 340 OF 2016
(Against the judgment and order in Writ Petition (C) No.
4229/2016)
R.P.
Luthra …
Appellant
Versus
Union of
India & Ors. …
Respondents
BRIEF ARGUMENT NOTE ON BEHALF OF THE Appellant.
1.
The petitioner is
constrained to submit the instant argument note, as he is not given due
opportunity raise his legal arguments before this bench during the hearing, and
further, as he is bound by the dictum and order of this Hon’ble Court for
submitting the written arguments. This argument note is in addition and
furtherance of the pleadings already made by the petitioner in the
WP(C)No.4229/2016 and the instant LPA, together with the oral arguments made
during the hearing.
2.
The petitioner is before
this Hon’ble Court on three dimensions, namely as a citizen, for whom the Part
three of the Constitution, the most sacrosanct rights are left without any
remedy under Article 32 of the
Constitution, as a lawyer, who is concerned about the independence of judiciary
and
as an eligible candidate for the appointment of judges to the Supreme Court of
India, whose right to equality before law, right to practice his profession and
right to life and liberty which includes dignified life as well are infringed.
3.
Article 14 of the
Constitution assures every citizen, equality before law and opportunity. Whereas
the petitioner, being an eligible candidate to be appointed as the judge of
Supreme Court of India, has been denied
and equal opportunity, by not considering his name for the said appointment.
The recommendation to the appointment of the judges of the Supreme Court of
India, which is under challenge under the instant appeal is done without giving
the petitioner an equal opportunity to be considered, and evaluated on merits
for such appointments. Whereas the said appointments are made without
considering the petitioner and hence in violation of his fundamental right to
equality before law.
4.
Article 16 of the constitution
assures every citizen of equality in matters of public employment, whereas the
petitioner is denied the said equality by way of being denied an opportunity to
prove his merits before the appointing authority and hence his Fundamental
Right is violated. The appointment as the judge of Supreme Court of India is a
public office under the state, to which the Fundamental Right rightly and
squarely applies. The petitioner is unduly discriminated against and hence the
said recommendation is void ab-initio and non-est in the eyes of law.
5.
Article 19(g) of the
constitution of India assures every citizen the right to practice any
profession, or to carry on any occupation, trade or business. Whereas the
petitioner being a lawyer, is denied an opportunity to practice his profession
as a judge, as he is denied unduly an opportunity to be considered for
appointment as a judge of Supreme Court of India. This is in violation of the
Fundamental Right of the petitioner. The petitioner’s right to practice and
profession is denied and taken away unduly and unjustly.
6.
Article 21 of the
Constitution ensures the right to life and liberty, which includes, not only
the vegetating stage of life, but by its all manifestations of dignity and
respect. Whereas the petitioner, being denied an opportunity to be considered
to the appointment of judges to the Supreme Court of India, has been infringed
with his dignity and respect, where, his caliber and merits are thrown to the
drains, without being evaluated. Whereas the petitioner in all aspect considers
himself to be eligible to be appointed as the judge of the Supreme Court of
India. It is not the non appointment of the petitioner which infringes his
Fundamental Right of life and liberty with its full bloom, but, surely the non
consideration of his name for the said appointment, and non evaluation of his
merits to such appointments. The present recommendations are made without any
yardstick of evaluating merits or any bench mark to ascertain the qualities and
intrinsic worth. Hence the petitioner’s Right to life with dignity and respect
is taken away without any due process of law.
The respondent, the state, has condemned the petitioner by denying him
an opportunity to be considered for the said recommendation and appointment,
and hence the said recommendation is in violation of his Fundamental Right
guaranteed under Article 21 of the Constitution of India.
7.
As a citizen, a
responsible citizen of India, the petitioner always cherishes for and
independent judiciary, evolved out of the merit oriented appointments. Whereas
the instant recommendations and appointments are made without any such
yardstick to evaluate the merits and any bench mark to ascertain the qualities.
The petitioner emphasis that, even for the appointment of a class-4 staff or
even for appointing a sweeper, the benchmark and yardsticks for ascertaining
the merits, together with a transparent selection process is available at every
state opportunities. Whereas the present recommendations of appointments to the
higher judiciary goes without any such evaluation of merits, which is in
violation of the Fundamental Rights available to the petitioner as a citizen.
Whereas the petitioner is denied an opportunity to defend his Fundamental
Rights before the Hon’ble Supreme Court of India under Article 32 of the
Constitution of India, as the remedy available to the petitioner for any
violation of his Fundamental Rights are to be addressed by the Supreme Court.
The petitioner can derive the remedy under Article 32 of the Constitution, if
and only if the Supreme Court of India is a Court with merits, having been
appointed with meritorious individuals with impeccable character and integrity.
As the present recommendations are without ascertaining any of such qualities
or qualifications or merits, the petitioner is left with no remedy for the
violations of Fundamental Rights guaranteed under Part-III of the Constitution
of India. The rights of the appellant can be enforced, only if the forum is
meritorious and qualified. Whereas the present recommendations are without
ascertaining the best merits available, but only after considering the limited
persons, personally known to the recommending body. It has neither declared the
vacancies, not called any applications from the eligible candidates or the
persons of merits. Apart from the personal knowledge and intimacy of the
recommending body, there is nothing on record to satisfy the institutional
integrity of the appointments. For this, and many more grounds, the petitioner
relies upon the entire judgment in ‘Centre
for PIL and Anr Vs. UOI and Anr. (AIR 2011 SC 1267)’
and also the
other judgments cited in the Writ Petition. To repeat, the petitioner relies
upon each words of the said judgment for his submissions. As a citizen of
India, the appellant is entitled to have the best merits in service to the
nation from the available pool, and the denial of such meritorious judiciary to
the appellant and the nation as a whole is denying him the independent
judiciary, which is a primordial, inalienable and transcendental basic
structure of the Constitution of India.
8.
The
appointment to the Supreme Court of India is not a promotion to be done on
seniority, but a fresh appointment to be made on merits. Hence each and every
judge/advocate/jurist who fulfils the criteria laid down in Article 124 of the
Constitution of India is eligible for appointment to the Supreme Court of
India, and the denial of opportunity to the others who are not considered is
denial of best merits and caliber in service to the nation and therefore
violative of the Fundamental Rights of the appellant to have the best judges to
the judiciary. The recommendation for direct appointment to the Supreme Court
of India is denial of such opportunity to the eligible judges of the various
High Courts who are not considered for the impugned recommendations. In a fresh appointment to the Supreme Court of
India, there is no role to the seniority to play, but only the merits shall be
the basis of consideration. The failure to consider the merits out of the
available pool of High Court Judges, including the Chief Justices, irrespective
of their seniority, is a denial of the appellant as a citizen of India, his
Fundamental Rights to have the best and meritorious judges so as to remedy any
violation of the rights guaranteed under part-III of the Constitution of
India. The said issue is mutatis
mutandis holds with the appointments of judges of High Courts as well. The magistrates and others holding judicial
offices are denied opportunities in a similar manner, which are also violative
of the Fundamental Rights assured under Part-III of the Constitution. In the
said circumstances the petitioner is left with no remedy under article 32 of
the constitution.
9.
The
recommendation of the Collegium of the Supreme Court of India is not to be
considered as a sacrosanct, untouchable and hallowed act of judiciary, but a
fallible act of executive, as the act of recommending and appointing any office
of the Union of India is an executive action, which remains as executive action
irrespective of the fact that it is done by the person holding which chair. The
said executive action is subject to judicial review, in accordance with the
judgment by 13 judge bench in Kesavananda Bharati v. the State of Kerala (1973)
Supp. SCR 1, which lays down that the judicial review is the basic structure of
the Constitution of India. The said fallacies are well admitted by the Supreme
Court in various judgments, including the judgment commonly known as NJAC
judgment.
10.
The
Union of India, the first respondent herein was duty bound to take every step
to eliminate the corruption element in recommendations and appointments, which
includes nepotism and favoritism, and unfortunately, there is nothing on record
to suggest that there is any step taken towards such end.
11.
The
recommending authority failed to ensure the lawfulness and legality of its
decision. The said recommendations are in violation of the judgments of the
Supreme Court of India, specifically the NJAC judgment and the Judges-2 and Judges-3
judgments. Admittedly, even till date the process as suggested by the NJAC
judgment is not complete. The suggestions called from the public to which even
the appellant has submitted valuable suggestions, have been put to drains in
violation of the judgment of the constitutional Bench of the Supreme Court.
12.
The
impugned judgment speaks in volume that the appellant was denied the right of
equality of pleadings before the single judge, and hence resulted in violation
of Article 14,19 and 21 of the Constitution of India, including other legal
rights. Hence the petitioner has no
remedy other than this appeal.
13.
The
appellant respectfully submits that, though, appellant in writ petition was
rightly prevented to urge the prayers for setting aside the judgments of the
Supreme Court and therefore appellant withdrew prayers (C) and(d) in the Writ
petition and despite that the ld. Single Judge was please d to deal with the
prayer (c) and (d) also, that too, without any submissions and without
affording any opportunity to meet with the cited judgments.
14.
Hence
petitioner submits his written arguments on this point also as below.
15.
The instant appeal
involves (a) simple practical issues and (b) complicated legal issues, both
concerning appointment to the august office of the Judges of the Supreme Court
and High Courts. The Appellant believes in
the saying of Mahatma Gandhi that “a
Dharma which does not meet the practical requirement of life is not dharma, but
Adharma”. Therefore, in the above
Writ Petition, in which he raised both simple practical questions and
complicated theoretical issues, he preferred to address the Hon'ble Court on
the simple questions of great practical import.
The simple question which he raised was, what is the real issue which
should dominate the discussion on the question of appointment of Judges to the
higher judiciary; of the two questions, what is more relevant, who has greater
or real say in the appointment of Judges, whether the Government or the
Judiciary or the other question, namely, who all be the real appointing
authority. The Appellant felt that the
core issue is, who indeed are appointed and who indeed has his fundamental or
legal rights at stake? The plea of the
Appellant was that no matter whether the Government has primacy or the
Judiciary has supremacy in the matter of appointment of Judges, in the ultimate
analysis it is all about whom among the eligible lawyers/Judges who are
appointed. The plea of the Appellant,
founded on statistics, is that in a system where the Judges have been
appointing themselves, only 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, nay, the elite
class, are appointed, which meant denial of equal opportunity for consideration
and appointment of lawyers who do not belong to the family of Judges, big
lawyers or highly politically connected, the sons and nephews of former Chief
Ministers, Governors, et al.
16.
The plea of the Appellant
was that while he does not claim any right to be appointed as a Judge, he
satisfying the qualification prescribed by the Constitution, he is entitled to
be considered for appointment as a Judge of a High Court, nay, even of the
Supreme Court along with the hundreds, if not thousands, who are similarly
eligible and equally, if not more, qualified and competent. His plea was that the office of the Judges of
the High Courts and Supreme Court are public offices of great import and he,
and for that matter the ordinary class of lawyers who are not the kith and kin
of Judges and others, commits no sin in entertaining the ambition to become a
Judge of the High Court or of the Supreme Court or in firmly believing that he
ought to have an equal opportunity to be considered. The Appellant wants to make it abundantly
clear that he does not claim that he has any right to be appointed, but that
he, so too thousands of others who are equally eligible, has a right to apply
for judgeship. The right to be
considered is distinct from the right to be appointed. While the Appellant asserts the former, he
concedes that no such right is invested in him in the latter.
17.
A learned Single Judge,
however, did not address the above fundamental issues which the Appellant
argued. In all humility the Appellant
begs to submit that if the learned Single Judge were to consider this simple
plea of his, which has great practical import, His Lordship would have found it
difficult to deal with the same and decide it in the negative. The Appellant does not cast any aspersion on
the learned Single Judge; he considers the omission on the part of His Lordship
as wholly bona fide, arising out of inadvertence. Therefore, it is imperative that this Hon'ble
Court exercising appellate jurisdiction considers in all earnestness the plea
which the Appellant made before the learned single Judge and which was omitted
to be considered.
18.
The second plea urged by
the Appellant, but not argued, was the authoritativeness or otherwise of the
judgments of the Supreme Court in Judges-2, Judges-3 and Judges-5 (NJAC)
cases. There is an unknown judgment known
as Judges-4 case (Suraz India Trust Vs.
Union of India and Anr. (2012) 13 SCC 497-B) in which a Bench of three Hon'ble
Judges of the Supreme Court referred to a larger Bench for consideration of the
question as to the correctness of the judgments in Judges-2 and Judges-3 cases.
19.
The plea put forward by
the Appellant, but not argued, was that Article 141 of the Constitution does
not invest any power in the Supreme Court of India to declare the law of the
land. Article 141 only embodies the
concept of stare decisis/precedent.
However, 65 years after independence and particularly since the judgment
in Kesavananda Bharati v. the State of Kerala (1973) Supp.
SCR 1, the concept of stare decisis embodied in Article 141 has been
misunderstood to be as one having invested in the Supreme Court he power to
declare the law of the land as if it is the Parliament, forgetting the fact
that Parliament alone can declare what the law of the land ought to be. The Appellant also pleaded with utmost
respect that the judgment in Kesavananda Bharati (cited supra), though held in so high esteem, so much celebrated that
it is almost treated as the Geeta, Bible and Quran and, therefore, cannot b criticized
at all, has no foundation in jurisprudence.
The plea of the Appellant was that the judgment of the Eleven-Judge
Constitution Bench in Golaknath v. State
of Punjab AIR 1967 SC 1643, wherein
it was held that Parliament has no power to amend the law to take away the
fundamental rights of citizens is a far sound proposition than Kesavananda
Bharati in so far as the latter
judgment holding that the Parliament in its constituent power can abrogate the
fundamental rights, but not the basic structure. The Appellant’s plea was that the doctrine of
basic structure has no foundation in jurisprudence; it is not recognized
anywhere in the world; it is not part of the universal jurisprudence; it does
not find any mention in any treaties on jurisprudence. His plea was that the said proposition is one
which has no legs to stand. The reason
is simple. While the concept of judicial
review is recognized where fundamental right is infringed or violated, be it at
the hands of the legislature or executive, it will be inconceivable to consider
that the doctrine of basic structure is justiciable. The concept of rule of law
is founded on the principle ubi
jus, ibi remedium – where there is a right there is a remedy, which
envisages three things, namely, right, remedy and forum. A judicial review to enforce a fundamental
right will lie where there is violation of such a right. The person whose right is so violated, in
other words the person aggrieved, is entitled to the remedies which inure in
him in law and he is entitled to enforce his remedy in a competent Court or
Tribunal or forum. Kesavananda
Bharati did not envisage that
violation of basic structure will invest in any person a right to relief or a
forum to enforce it, but the later judgments of the Supreme Court in Judges-2, Minerva
Mills v. Union of India (1980)
2 SCC 591, M. Nagaraj & Ors.
v. Union of India & Ors. (2006) 8 SCC 212, I.R. Coelho (Dead) by LR v. State of Tamil Nadu & Ors., (2007) 2 SCC 1, Madras Bar Association (cited supra) etc.,
all, conceive a right to seek a judicial review on the ground of impingement of
the basic structure without there in existence a complaint of violation of any
fundamental right. In the NJAC case, the Supreme Court Advocates on Record Association (SCAORA) did
not claim in their PIL that any of its fundamental right is violated; so too in
Judges-2 case; so too in Madras Bar
Association case.
20.
6. A new
jurisprudence, questionable though, has emerged where a right to apply by way
of a PIL for a declaration of nullity of an Act of Parliament, without there
being a complaint of violation of any fundamental right. This manifestly questionable jurisprudence
raises many questions, the foremost of which being whether a Writ Petition
could be instituted without there being a complaint of violation of any
fundamental right; who all can apply for such declaration; who all can
institute such a petition; could it be the exclusive privilege if a few lawyers,
the elite class practicing in the Supreme Court or similar celebrities. Obviously it cannot be so long as Article 14
remains in the Constitution because that leads to a proposition that the 129
crores of people of this country, each and every one, are invested with the
right to apply; each and every citizen could act as if he is the Attorney
General who can act as if he is the custodian of public interest and could
claim a right to be heard. Those who
swear by the basic structure doctrine have not till date addressed them to the
absurdity the said concept has led to.
21.
The Appellant, though
questioned the absurdity of the concept of PIL as it is practised today and the
judgments of the Supreme Court constituting to be the law of the land, which is
what Article 141 of the Constitution has been misunderstood today; so too the
absurd results of the concept of basic structure lead to, did not argue it, for
he found it too arduous a task as it would mean changing the mindset, a near
impossibility.
Dated this 27th
day of July, 2016.
Advocate for
the Appellant
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