IN THE
SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT
PETITION (CIVIL) NO. 704 OF 2016
IN THE MATTER OF
National
Lawyers’ Campaign For
Judicial
Transparency And Reforms
and
Others …PETITIONERS
Versus
The
Supreme Court of India and Another …RESPONDENTS
SYNOPSIS
AND LIST OF DATES
The first
petitioner 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. The first petitioner is
registered organization of lawyers, having branches across the nation which is
functioning for the transparency, accountability and reforms in judiciary. The second petitioner is an ordinary lawyer,
practicing in various courts, including the Supreme Court of India and is a
member of Supreme Court Bar Association. The instant Writ Petition is filed for
the enforcement of the fundamental rights as enshrined in Articles 14,15,16,17
& 19 and even 21 of the Constitution.
The 1st
Petitioner 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 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.
That
nothing could be expected from the political parties and the political
leadership to bring in greater transparency and accountability in the higher
judiciary is a fact which cannot be wished away. These days, challenge to the
constitutionality of an Act of Parliament, a statutory instrument, by way of a
PIL is a big industry. Today, with utmost
respect, this country is ruled by Judges.
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.
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 disposed of the NJAC case directing the Government to
frame a Memorandum of Procedure (MoP) for appointment of Judges to the higher
judiciary and 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.
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. Everything is done in a most cabal, non-transparent and secret manner.
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. This resulted in total breakdown
of the justice delivery system. 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? 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.
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 dated 16.12.2015, the Petitioners 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.
In the eyes
of the Petitioners, what is paramount is a system of appointment of Judges
independent of both the executive and the judiciary. Hence the instant Writ Petition
(Civil).
The List of
Dates
26.01.1950 The Constitution of India came into force,
with the appointments of the judges being the constitutional procedure
established.
30.12.1981 Judges-1 Case (S.P. GUPTA Vs. UNION OF INDIA & ANR. {1982 AIR
149 = 1982(2)SCR 365 = 1981 Suppl. SCC 87 = 1981(4) SCALE 1975})judgment
pronounced, which upheld the constitutional provision of appointments.
06.10.1993 Judges-2 Case (Supreme Court
Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 )judgment
pronounced, which established the system of Collegium as an extra
constitutional body.
28.10.1998 Judges-3 Case (Reference By President of India Under Article
143(1) Of The ... vs Unknown, AIR 1999 SC 1, RLW 1999 (1) SC 168, 1998 (5)
SCALE 629, 1998 Supp 2 SCR 400) judgment pronounced, which reiterates the collegium.
04.04. 2011 Judges-4 Case (Suraz India Trust Vs. Union of India & Anr.,
(2012) 13 SCC 497-B) referred to the constitutional Bench, by an order
of the full bench of this Hon’ble Court,
whereas the successive Chief Justices of India, have not till date constituted
the said Constitutional Bench to adjudicate the constitutional issues related to the appointment of judges.
31.12.2014 Constitution (99th
Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014
are passed by the Parliament of India.
13.04.2015 Constitution
(99th Amendment) Act, 2014 and the National Judicial Appointment
Commission Act, 2014 are notified by the government of India as operational.
07.04.2015 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.) the order of the Three Bench judge referring the matter to the
Constitution bench.
15.04.2015 The Constitution Bench was constituted and
the sitting started.
28.04.2015 The Chief Justice of India refuses to take
part in the selection committee meeting, which was supposed to select two
eminent persons to the National Judicial Appointment Commission and the stand
still in appointments to the higher judiciary emerges in to mounting vacancies.
16.10.2015 The Constitution Bench of this Hon’ble
Court by a majority judgment declared
the Constitution (99th
Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014
as void and unconstitutional.
03.11.2015 Further sitting of the Constitutional
Bench, after passing the final order and judgment, for the improvement of the
collegium system.
05.11.2015 The Constitutional Bench of this Hon’ble
Court, invite the public opinion on the issue of improving the collegium
system. After quashing the said Acts has, by order dated 5th
November, 2015, invited suggestions from the public at large to improve the
collegium system amounts to legislation in substitution of the Parliament, nay,
even its constituent power.
18 & 19.11.2015 Further sitting of the Constitutional
Bench, hearing the public opinion.
19.11.2015 Further orders of this Hon’ble Court by
its Constitutional Bench for the revival of the collegium, without causing any
improvement, as sought by the
constitution Bench of this Hon’ble Court or suggested by the public at large,
reserving the order and concluding the hearing.
16.12.2015 Final order of the Constitutional Bench of
this Hon’ble Court, disposing of the petitions, keeping the improvement of the
collegium unfinished, and leaving to the Union Government for the issue of
Memorandum of Procedure for the appointments Judges, and the expected and most
promising ‘Perestroika’ and ‘Glasnost’ being dumped to the drains, and further
allowing the imperfect system of collegium to function, causing serious damage
and prejudice to the interest of the Nation as well as the independence and
reputation of judiciary.
The memorandum of
procedure prepared by the Union Government, in accordance with the order dated
16.12.2015, of this Hon’ble Court is pending before the Chief Justice of India.
April,2016 The Collegium of appointments further
recommends a bulk of appointments to various High Courts, mostly 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, resulting into ‘judicial dynasty’, without
inviting any application from any eligible candidates for such appointments,
without causing any transparency, without laying down the bench mark and
yardstick to evaluate merits and without having any mechanism for dealing with
complaints.
13.05.2016 The Government of India appoints 4 judges
to the Hon’ble Supreme Court of India, as recommended by the Collegium of
appointments, without resorting to any reformations or revising the memorandum
of procedure, as laid down by the constitutional Bench in Judges-5 case, and
even when the petition challenging the said appointments were pending before
the court of competent jurisdiction.
12.08.2016 The Chief Justice of India issues a
threatening warning to the Union Government, placing the entire onus of delay
for the appointments of judges is at the hands of the Union Government.
August,2016 The Government of India appoints Chief
Justices to various High Courts, as recommended by the Collegium of
appointments, without resorting to any reformations or revising the memorandum
of procedure, as laid down by the constitutional Bench in Judges-5 case.
29.08.2016 The instant Writ Petition (Civil) Filed.
IN THE SUPREME COURT OF INDIA
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL
JURISDICTION
WRIT PETITION (C)
NO. 704 OF 2016
IN THE MATTER OF
1.
National Lawyers’ Campaign for
Judicial
Transparency and Reforms,
Represented
by it's Joint Secrety, A.C.Philip
Having
it's registered address at:
304, Hari Chambers,
3rd Floor,
54/68
SBS Marg,
Near
Old Custom House, Fort,
Mumbai-
400 023,
&
Office address at:
No.47,
G.L. Sanghi Chambers Block,
Supreme
Court Campus, New
Delhi-110
001. … PETITIONER No.1
2. A.C. Philip,
Joint
Secretary of Petitioner No.1,
Advocate,
Aringada
House,
Anachal,
Karumalloor P.O,
Ernakulam
District,
Kerala State-683 501. … PETITIONER No.2
3. Himanshu Luthra,
Advocate, … PETITIONER No.3
Versus
1.
The Supreme Court of India,
Tilak
Marg,
New
Delhi 110 001,
through
its Registrar General. … RESPONDENT No.1
2.
Union of India,
represented
by its Secretary in
Department
of Justice,
New Delhi- 110001. … RESPONDENT No.2
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA SEEKING DECLARATION AND OTHER RELIEFS.
TO
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE
HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY
SHEWETH
1.
The
1st Petitioner is a Non-Governmental Organization registered
under the Societies Registration Act, 1860.
Its primary objective is to secure greater transparency and
accountability, particularly 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. The 2nd
Petitioner is the Joint Secretary of the 1st Petitioner. The 3rd Petitioner is advocate,
who consider it be no sin to aspire for the august office of the judges of the
High Court/Supreme Court; such an ambition is only legitimate and just,
provided he were to be found eligible and deserving to be appointed, by a
judicial appointments commission, which
is independent of the executive, so too equally of the judiciary, to
emphasize, independent of both, by following an open and transparent procedure,
where he competes with the hundreds and thousands of his brother and sister
lawyers equally or more competent. For him it is in the interest of the
republic that not only the judicial appointments are made in a just, open and
transparent manner, but shall be seem to be so in the eye of the public at
large, lest, the office of the judges should lack democratic legitimacy.
2. The
legal status of the Respondents is manifest from the very cause title and,
therefore, requires no elaboration. In
view of the remedies sought for in the instant Writ Petition, if one were to
follow the fundamental principle of law that in a suit or other legal
proceeding of the like nature for enforcement of the rights which one claims to
invest in him, all necessary, proper and even formal parties are to be
arraigned as parties to it. Therefore,
the Hon'ble Chief Justice of India and the Hon'ble senior Judges of the Supreme
Court who constitute to be the collegium, the Chief Justices and senior Judges
of the various High Courts, who constitute to be the collegiums of the
respective High Courts, are necessary parties to the instant Writ
Petition. However, whenever petitions
are instituted in support of the National Judicial Appointment Commission
seeking a declaration that the Constitution (Ninety-ninth Amendment) Act, 2014
and the National Judicial Appointment Commission Act, 2014 (the Acts, for
short) are constitutional and that the judgments in Judges-2, Judges-3 and
Judges-4 (NJAC case) are unconstitutional and void and wherein the said Hon'ble
Judges are arraigned as parties, the Registry has taken objection, which has
meant prosecution of those petitions almost an impossibility. Therefore the Petitioners consider it only
appropriate to seek permission of this Hon'ble Court to allow those Hon'ble
Judges to be arraigned as additional Respondents to the instant petition, if
need be, in due course.
3.
Though
in paragraph 1 above a brief description of the 1st Petitioner is
given, the Petitioners consider it appropriate to elaborate its aims and
objectives a little more. The 1st
Petitioner is the first ever organization of its nature in India, nay, for that
matter, may be even anywhere in the world.
The 1st Petitioner 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 1st Petitioner 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.
4. The
1st Petitioner 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.
5. That
nothing could be expected from the political parties and the political
leadership to bring in greater transparency and accountability in the higher
judiciary is a fact which cannot be wished away. The reason is simple. When it comes to constitutional matters, the
affairs of the higher judiciary, be it appointment of Judges, be it the
mechanism for addressing complaints against Judges of the higher judiciary, the
opinion of a few Senior Advocates in the Supreme Court is the opinion of the
political parties whom they represent. In the case of Congress party, it is the
opinion of S/Shri Kapil Sibal, P. Chidambaram, Abhishek Manu Singhvi, Salman
Khurshid et al and when it comes to BJP it is the opinion of S/Shri Arun
Jaitley, Ravi Shankar Prasad, Mukul Rohatgi et al. With utmost respect, the Petitioners beg to
submit that the aforesaid legal luminaries, though in the case of S/Shri Arun
Jaitley and Ravi Shankar Prasad some connection with the grassroots cannot be
denied, by and large are drawing room politicians for whom legal profession
means enormous money, without meaning any disrespect to them, so too the other
creamy lawyers like S/Shri Soli Sorabjee, Fali S. Nariman, Harish Salve, K.K.
Venugopal, Rajeev Dhawan et al. the petitioners have felt it only
appropriate to name the distinguished lawyers, only to emphasise the fact that
they have never ever thought of or spoken of the rights of the non-elite class
of lawyers for being considered for appointment as judges, the total discrimination
which the ordinary lawyers face today. The principles of natural justice
require, while the petitioners have named the legal luminaries here, they be
arraigned as respondents. However, the petitioners have been advised, it would
be suffice if a leave is sought to arraign them as Respondents, if this courts
is pleased to deem so or altogether seek deletion of the reference to
them. However it is felt that the
discrimination and injustice the ordinary lawyers face, whom a legal luminary
described as ‘disgruntled’
and yet another legal luminary as ‘voice
outside’, justify a reference of them by name, with a permission
to arraign them as Respondents, if need be in due course of time, if it is ever
felt that an allegation is made against distinguished lawyers, who are not
parties to the instant petition.
6. These
days, challenge to the constitutionality of an Act of Parliament, a statutory
instrument, by way of a PIL is a big industry. The
Petitioners 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 Petitioners 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 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
Petitioners refrain from doing so. All
that the Petitioners 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. 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 1st Petitioner, 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 1st Petitioner 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, the distinguished Fali Nariman and
others, 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, 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, which is marked as Exhibit-P1(pages
___to ____) to the instant 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 Petitioners 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.
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.
10.
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 Petitioners 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 Petitioners 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?
11.
The
Petitioners submit that in the matter of appointment of Judges to the higher
judiciary, there is no diversity at all.
The Petitioners are 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
Petitioners 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
Petitioners 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.
12.
The
Petitioners would like to make it abundantly clear that the NLC, the 1st
Petitioner, 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 Petitioners do 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. All
this is possible only if the Hon'ble CJI, the Hon'ble members of the collegium,
the legal luminaries who oppose an independent Judicial Appointment Commission,
which will have neither the Government nor the Judges exclusive say, but the
civil society, have some say to introspect.
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.
13.
The
instant petition is not a PIL. The
concept of pro bono litigation, which is meant to provide access to justice to
someone in jail, a slum dweller and the like who out of poverty, illiteracy and
other disabilities could not approach the constitutional Courts, is today
abused to be as one where a person/entity, as SCOARA in the NJAC case, who has
all the means to access to justice and maintain a petition on his/its own,
asserting it to be a PIL. The very word
“PIL” is allergic to the Petitioners; so too the words “basic structure”; so
too the supreme Court declaring the law of the land, for, Kesavananda
Bharati v. the State of Kerala (1973) Supp. SCR
1, did not say that the basic structure is justiciable; Article 141 also does
not say that a judgment of the Supreme Court is the law of the land, but that
it is only a binding precedent. The 1st
Petitioner 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 2nd
and 3rd Petitioners are lawyers who consider that the august offices
of the Supreme Court and High Courts being public officers, they too have a
right to be considered and selected for the said post, if found to be eligible
and deserving. They 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
Petitioners are 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 dated 16.12.2015 (Exhibit
P-1), the Petitioners 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 Petitioners’ 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 Writ Petition for enforcement of the fundamental rights of the 2nd
and 3rd Petitioners; so too the members of the 1st Petitioner,
for equal treatment and equal opportunity for selection and appointment as
Judges of the higher judiciary.
14.
Considering the larger issue, the
Petitioner, has instituted, the instant Writ Petition under Article 32 of the
Constitution of India before this Hon’ble Court, on the following amongst other
:-
GROUNDS
(A)
Apart
from the undeniable proposition that legislations in the realm of executive and
legislative policies, which involve no violation of anybody’s fundamental
rights, are not justiciable, judicial review is amenable only where fundamental
or legal rights are alleged to have been infringed, which infringement entails
in a person such remedies which are recognized in law, namely, common law,
equitable or declaratory, the judgment in the NJAC case and the ongoing feud
between the Government on the one hand and the Hon'ble CJI and the collegium of
which His Lordship is the head on the question of framing of the MoP for
appointment of Judges to the higher judiciary in terms of the order dated 16.12.2015
passed by this Hon'ble Court, the instant Writ Petition deals with issues which
neither the executive nor the judiciary nor even the press has taken notice of.
(B)
In
the eyes of the Petitioners, what is paramount is a system of appointment of
Judges independent of both the executive and the judiciary. If executive has a predominant say, there is
possibility of judicial appointments being reduced to rewarding or patronage of
their supporters, though, at least so far as India is concerned, not much proof
is available. The Petitioners consider
that what is of paramount importance is a mechanism, independent of the
judiciary. They assert so based on the
statistics collated by them. It is a
plain truth that Judges who have usurped the power of appointment have
appointed their kith and kin, near and dear ones. For the so-called legal luminaries, whom the
Petitioners do not wish to name for considerations of reticence, the collegium
system was one which offered them enough room for patronage and influence. The Petitioners dare to say that they opposed
the idea of an independent Judicial Appointment Commission, the NJAC, en-bloc
because of the fear of loss of their power of patronage and influence. Otherwise there was no conceivable reason for
them to have opposed an independent Judicial Appointment Commission,
independent of both the executive and the judiciary which would have resulted
in selection of Judges from a diverse and wider pool of candidates in a
non-discriminatory manner. For the
Petitioners, unless the apartheid, which is the result of designation of
lawyers as Senior Advocates, is brought to an end and an open and transparent
system of selection and appointment of Judges is brought into existence by
bringing an end to the collegium system, there is no future for them and those
similarly situated. It is not a mere
question of the concern of the ordinary lawyers alone; the largest democratic
society in the world, which we are, demands that “Judges are not only selected
in a fair and open way but are seen by the public to have been chosen in the
fairest possible way taking nothing into account other than their ability”.
(C)
Diversity
is the key factor; diversity and merit are not incompatible; and paramount of
all is good character. Since the judgment
in Judges-2 case, to repeat, since the Judges started appointing themselves, the august
office of Judges of the higher judiciary is monopolized 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, who later on appointed their kith and kin
as Judges of the higher judiciary or designated their near and dear ones as
Senior Advocates. There is not a single
lawyer, who is the son or daughter or brother or nephew of a sitting or retired
Judge, who has crossed the age of 45 years, who continue to remain as an ordinary
lawyer; they are all appointed as a Judge of the higher judiciary or designated
as Senior Advocate. Many of the Judges
have got their sons appointed at the youngest possible age, sometimes even at
the age of 40 years, as a Judge of the High Court which meant a guarantee that
one day they are appointed as a Judge of the Supreme Court or even becoming the
CJI. These are facts which are
undeniable. Sun, moon and truth can
never be hidden, said Buddha. In support
of their plea, the Petitioners beg leave of this Hon'ble Court to produce at the
time of hearing the “uncle-Judge syndrome”, the “senior counsel syndrome”
chart, and the “progeny/senior counsel syndrome” chart.
15.
The petitioner has not filed any similar petition
on the same cause of action before this Hon’ble Court or any other Courts. The
instant Writ is not barred by the by the doctrine of estoppel res judicata.
16.
The Petitioner states that
requisite Court-fee of Rs. 250/- as per Rules has been paid.
17.
The Petitioner states that there is
no period of limitation for preferring this Petition and hence the same is
within limitation.
18.
The Petitioner states that the
Petitioner has no other efficacious alternative remedy than to prefer the
instant Writ Petition under Article 32 of the Constitution of India.
19.
That the Petitioner crave leave to
add, amend or alter any of the foregoing grounds with the permission of this
Hon’ble Court.
20.
That the Petitioner have no other
alternative efficacious remedy except by moving the present writ petition under
Article 32 of the Constitution of India.
PRAYERS
It is, therefore, most respectfully prayed that
this Hon’ble Court may graciously be pleased to:
- (a) declare that the fundamental rights of the Petitioners, namely, the members of the 1st Petitioner and Petitioner Nos.2 and 3, all ordinary lawyers considering themselves to be considered for appointment as a Judge of the High Court or the Supreme Court along with hundreds and thousands of such lawyers, stand abrogated since the mechanism of appointment of Judges independent of the executive and, to emphasize, equally independent of the judiciary, was killed even before it was allowed to take birth by the judgment in the NJAC case and no mechanism in substitution thereof, which will provide for a just, fair, open and non-discriminatory selection and appointment of Judges from a diverse and wider pool of candidates than the traditional ones, namely, the kith and kin of Judges, their near and dear ones, has been brought into existence and that the proposed Memorandum of Procedure, which seeks to provide for a non-statutory, if not secretive, eligibility criteria and procedure, is violative of Part III of the Constitution;
- (b) to declare that the concept of democratic legitimacy in the matter of appointment of Judges to the higher judiciary, so too to secure a selection from a diverse and wider pool of candidates, so too a fair and non-discriminatory selection and appointment will bring an end to the patronage and influence of the so-called legal luminaries and, above all, to be seen by the public at large that the Judges who decide their affairs and destiny are selected in the fairest possible way, independent of both the executive and the judiciary, and that no appointment could be made solely on the recommendation of the collegium but could only be on the recommendations of a non-governmental/ non-departmental public body which is, to repeat, independent of both the executive and the judiciary;
- (c) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the Union of India to bring into existence such legislative or administrative measures for the creation of a non-governmental/non-departmental public body, nay, a Judicial Appointment Commission which will be independent of both the executive and the judiciary to select Judges for the higher judiciary by inviting applications from all eligible candidates, invite references from all stakeholders, the Bar Associations, the public at large, and above all to see that “Judges are not only selected in a fair and open way but are seen by the public to have been chosen in the fairest possible way taking nothing into account other than their merit and character”;
- (d) to grant a writ of injunction or prohibition restraining and prohibiting the Respondents from selecting and appointing Judges to the higher judiciary except by way of a non-discriminatory process which will afford equal opportunity to be considered for all eligible lawyers, where there is no room for patronage and influence but which will ensure a fair selection from a diverse and wider pool of candidates, so too it will appear to the public at large that Judges who decide their affairs and destiny are not selected in an opaque manner but that they are not only selected in a fair and open way but are seen by the public to have been chosen in the fairest possible way taking nothing into account other than their merit and character;
- (e) to declare 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.
- (f) to arraign the Hon’ble Chief Justice of India, the Hon’ble Judges of the Supreme Court of India who are the members of the collegium, so too the Hon’ble the Chief Justices of the various High Courts, so too the Hon’ble Judges, who are the members of the collegium of all the High Courts, so too the senior lawyers about whom certain references are made in paragraph5 of the instant writ petition, so too amend the writ petition if so felt necessary in due course of time.
AND FOR THIS ACT OF
KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY:
DRAWN BY FILED BY
(Mathews J.Nedumpara) (_____________)
Advocate Advocate for the
Petitioner
New Delhi
APPENDIX
CONSTITUTION OF INDIA
21. Protection of life and personal liberty.-
No person shall be deprived of his life or personal liberty except
according to procedure established by law.
32. Remedies for enforcement of rights conferred by this Part.-
(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by
clause (1) and (2), Parliament may by law empower any other court to exercise
within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except
as otherwise provided for by this Constitution.
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