Monday 10 October 2016

THE JUDICIAL APPOINTMENTS IN INDIA_ PETITION BY NLC

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).
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 “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

Friday 7 October 2016

APPLICATION BEFORE SUPREME COURT OF INDIA ON APPOINTMENT OF JUDGES

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(s)
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 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 upto 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 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 beg 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 refrain 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 are 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 of 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.  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 (Exhibit-P1 hereto) passed by this Hon'ble Court 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 ant it's people cannot grow beyond the interest of the Nations, however big and essential the organ be. The applicant relies upon the following judgment for the above purpose.
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 pf 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 institutional 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)

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"(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).
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 “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 justicied. 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 ratio and 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 messenger’s, 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 event 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. 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.    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 another instance of disrespect to the judicial system.
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 judiicary 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. 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;

DRAWN BY:
A.C.PHILIP
ADVOCATE