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C IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION REVIEW PETITION (CIVIL) NO. _____ OF2017 IN WRIT PETITION (CIVIL) NO. 13 OF 2015 (D) No. 6578/2017
(Seeking review of the order dated 16-10-2015 passed by this Hon’ble Court in WP (Civil). No. 13/2015) National Lawyers’ Campaign for Judicial Reforms and Transparency, represented by its Gen.Secretary, Rohini M.Amin
Review Petitioner
IN THE MATTER OF:
The Supreme Court Advocates-on-Record Association and anr . …..PETITIONER VERSUS The Union of India
…..RESPONDENT WITH IA.NO. OF 2017 Application seeking a declaration that there is no delay in filing the Review Petition/Condonation of delay. WITH IA.NO. OF 2017 Application for permission to file the review petition as party in person. WITH IA.NO. OF 2017 Application for exemption from filing certified copy of the impugned order dated 16.10.2017 in WP(C) No.13/2015 WITH IA.NO. OF 2017 Application for permission to engage Mr.Mathews J. Nedumpara as arguing Counsel.
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[FOR INDEX KINDLY SEE INSIDE]
FILED BY:: [National Lawyers’ Campaign for Judicial Reforms and Transparency, represented by its Gen.Secretary, RohiniM.Amin and Others] Petitioner-in-person Room No. 304, 58/64,Hari Chambers, 3rd Floor, S B S Marg,Opp Old Custom House,Fort, Mumbai 400 023 Mob.09820435428, 9920477447
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D New Delhi, Re-Filed on :27/02/ 2017 SYNOPSIS AND LIST OF DATES Being aggrieved by the impugned common order dated 16.10.2015 passed by this Hon’ble Court in WP (Civil). No. 13/2015, reported as 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
petitioners sought a review by instituting Writ Petition No.20/2017, seeking a declaration that the above judgment is void. Apart from the above said relief, the Petitioners also sought many other reliefs in the said Writ Petition, including a declaration that Hon'ble Shri. Justice J.S. Khehar is disqualified from being appointed as the next CJI; so too a writ of prohibition. A Division Bench of this Hon'ble Court, by judgment and order dated 30th December, 2016 in WP(C) No.20/2017, was pleased to dismiss the said Writ Petition observing that if the Petitioners are aggrieved by the judgment in the NJAC case, the procedure of review petition/curative petition is available to them. Hence the instant Review Petition (Civil). The List of Dates 31.12.2014
15.04.2015
16.10.2015
03.11.2015
Constitution (99th Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are passed by the Parliament of India. Constitution (99th Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are notified by the government of India as operational. The Constitution Bench of this Hon’ble Court declared the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 as void and unconstitutional. Further sitting of the Constitutional Bench, after passing the final order and judgment, for the improvement of the collegium system.
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E 05.11.2015
18.11.2015
19.11.2015 19.11.2015
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. In doing so, the Supreme Court, it must be stated with utmost respect, failed to take note of the following aspects:That the public at large could not be asked to give their opinions and suggestions in a short span of 8 days and that too in the midst of Diwali Holidays; If the opinion of the public at large is to be sought, then they should be free to make their opinion without putting any restrictions, for, in the order dated 5th November, 2015 the Supreme Court has said that the suggestions shall be confined to four aspects, namely: Transparency Collegium Secretariat Eligibility Criteria Complaints That the requirement to hear the public at large under Order-I, Rule 8(2) of the code of Civil Procedure Code, 1908 was before the case was heard and decided and not subsequent thereto; and while it was entirely legitimate to hear the public at large before the case was decided, to hear them after the decision of the case amounts to legislation in substitution of the Parliament, nay, even its constituent power. Further sittings of the Constitutional Bench, hearing the public opinion. Further sittings of the Constitutional Bench, hearing the public opinion. 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.
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F 16.12.2015
27.12.2016
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. Being aggrieved by the impugned common order dated 16.10.2015 passed by this Hon’ble Court in WP (Civil). No. 13/2015, reported as
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 petitioners sought a review by instituting Writ Petition No.20/2017, seeking a declaration that the above judgment is void. 30.12.2016
27.02.2017
A Division Bench of this Hon'ble Court, by judgment and order dated 30th December, 2016 in WP(C) No.20/2017(Writ Petition (Civil) Diary No. 43118 OF 2016), was pleased to dismiss the said Writ Petition observing that if the Petitioners are aggrieved by the judgment in the NJAC case, the procedure of review petition/curative petition is available to them. The instant Review Petition (Civil) Filed.
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94 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION REVIEW PETITION (CIVIL) NO. OF 2017 IN WRIT PETITION (CIVIL) NO. 13 OF 2015
1.
National Lawyers’ Campaign For Judicial Transparency and Reforms, represented by its General Secretary Rohini M Amin, having its registered office at: 304, Hari Chambers, 3rd Floor, 54/68 SBS Marg, Near Old Custom House, Fort Mumbai- 400 023 …REVIEW PETITIONER No.1
2.
RR Nair, Advocate E 504 Blue Fields, GL Compound, Powai, Mumbai 400076
3.
…REVIEW PETITIONER No.2
Bijoy Krishna Adhikary Vice President NLC Advocate, Indian Inhabitant of Kolkata 13, Bireswar Dhole Lane, Post Alam Bazar, Dist. Bara Nagar, Kolkata – 700 035 …REVIEW PETITIONER No.3
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95
4.
Rohini M Amin General Secretary NLC Advocate, Indian Inhabitant of Mumbai, Residing at: B/705, Nirman Apts. R.J Marg, Vikas Nagar, Pump House, Andheri (East) Mumbai- 400 093 …REVIEW PETITIONER No.4
5.
Jasvinder Singh Sohal Indian inhabitant of Mumbai 19, Vithal Nagar Society, 11th Road, Juhu Scheme, Mumbai – 400 049.
…REVIEW PETITIONER No.5
6.
RajinderKaurSokhi Advocate, Indian Inhabitant of Thane, 201, Ram Shyam Apartment, LalChakki, Near DashmeshDarbarGurudwara, Ullhasnagar- 421 004 Dist. Thane. …REVIEW PETITIONER No.6
7.
Sunil Gupta Indian inhabitant of Mumbai, Flat No.1, 3rd Floor, MitraKunj, 16, Pedder Road, Mumbai – 400 026
…REVIEW PETITIONER No.7
8.
SapanShrivatava Indian Inhabitant of Thane Aged about 40 Years D-102, NatrajDharshan, Ganesh Nagar, Thane: 421 202 …REVIEW PETITIONER No.8
9.
C.J Joveson Advocate Cheruvathur House, Near Block A 335, Rabindranath Tagore Road, Kurla Camp, Ulhas Nagar- 421004 District Thane, Maharashtra …REVIEW PETITIONER No.9
10. Jacob Samuel Advocate, KalluvalayathilPuthenVeedu,
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96 Thazhakara P.O., Mavelikara – 690102, Alappuzha, Kerala.
…REVIEW PETITIONER No.10
11. Bijimon, S/o. K.N. Prabhakaran, Advocate, aged about 42 years, KambisserilLekshmiNivas, Vallikunnam Post, Pin 690501, District Alappuzha, Kerala. …REVIEW PETITIONER No.11 12. MotwaniJayeshGope Aged about 25 Years, Law Student Residing at 201/202 Pleasure Park, Opp. Pinto Park, O.T Section, Ulhasnagar- 421 003 District- Thane, Maharashtra State. …REVIEW PETITIONER No.12
13. Raj C. Makhija, #805, Giriraj Bldg. 8th Floor Neelkanth Valley, Near Somaiya College, RajawadiGhatkopar (east), Mumbai- 400077. …REVIEW PETITIONER No.13 14. RutaAwhad, C/11 VishwajeetSocty, Veer Savarkar Rd, Naupada, Thane, Maharashtra.
…REVIEW PETITIONER No.14
15. Jose Kunju JP, Advocate 47 yrs,#328,6th cross, ArekereMico Layout, 1st Stage, Bangalore 560076.
…REVIEW PETITIONER No.15
16. S. K. Gupta Advocate 25B, Pocket 1, MayurVihar, Phase III New Delhi …REVIEW PETITIONER No.16
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97 IN THE MATTER OF: The Supreme Court Advocates-on-Record Association and Anr. . …..PETITIONER VERSUS The Union of India …..RESPONDENT 1.
Supreme Court Advocates-on-Record Association Through Secretary Vipin Nair, Office of the Association is located A Golden Jubilee Bar Room, Ground Floor, Supreme Court of India, New Delhi. … Respondents/ Orig. Petitioner No.1
2.
Union of India Represented by the Secretary, Ministry of Law and Justice, Department of Legal Affairs, 4th Floor, A-Wing, ShastriBhawan, New Delhi-110 001.
… Respondents/ Orig. Respondent No.1
3.
Mathews J. Nedumpara, 304, Hari Chamber, 3rd Floor, Near Old Customs House, 58/64,SBSMarg, Fort. Mumbai 400 023 … Respondents/ Orig. Petitioner in WP(C) 124/2015
4.
A.C. Philip, #89, Ground Floor, ShresthaVihar, Delhi-92
… Respondents/ Orig. Intervener
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98 PETITION UNDER ARTICLE 137/145 OF THE CONSTITUTION OF INDIA SEEKING REVIEW OF THE JUDGMENT AND ORDER DATED 16.10.2015 PASSED BY THIS HON’BLE COURT IN THE ABOVE WRIT PETITION AND W.P. (C) NO.13 OF 2015. To THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA HUMBLE PETITION OF PETITIONER ABOVENAMED MOST RESPECTFULLY SHEWETH
Who are the Review Petitioners and their locus standi?
1.
2.
The 1stReview Petitioner is the National Lawyers’ Campaign for Judicial Reforms and Transparency (NLC, for short), an organization of the non-elite class of lawyers, the first generation lawyers, sons and daughters of taxi drivers, farmers, fishermen, rickshaw pullers, daily wagers, teachers et al, who, today, stand entirely marginalized, both at the Bar and the Bench. The Other review petitioners are the citizens of India, mostly legal practitioners, from various parts of India, as indicated in the cause title. The Petitioners say that the ordinary lawyers are marginalized because the Indian judiciary, particularly the higher judiciary, is a synonym for dynasty. It is a fact which cannot be denied that 50% of the Judges of the higher judiciary are Brahmins, 40% from Forward Classes and the remaining, a mere 10%, from rest of the populace who constitute the overwhelming majority of the population. What is still worse is that the Indian judiciary is literally the monopoly of a few family, nay, “four scores families”, to borrow the words of legendary Justice Krishna Iyer. The undeniable truth, though a wholly disturbing one, is that 95% of the revenue of the legal profession, which has undoubtedly become an industry, is monopolized by 5% of the legal fraternity, the elite class consisting of the judicial and legal dynasties. Only a mere 5% of the revenue from
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99 the legal profession is shared by the 95% of the lawyers, sons and daughters of farmers, taxi drivers, rickshaw pullers, teachers – the common ordinary people. To repeat, the NLC is an organization of non-elite class of lawyers; for all practical purposes an organization of the first generation lawyers. It believes that unless the illnesses, including the cancer of corruption which has spread its tentacles everywhere in the corpus of the legal profession and judiciary, are addressed to, nay, eradicated, not merely their future is at stake but the existence of the country as a democracy. A copy of the agenda/objectives of the NLC, for convenience, is annexed and marked as Annexure P-1.( in
page Nos. 79 to 80) Who are the Respondents 3.
It requires little elaboration. Respondent Nos.1 is the original Petitioner in the Public Interest Litigations (PILs) WP(C) No.13/2015, who have sought a declaration that the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short) are unconstitutional and void. The respondent No. 2 herein was the sole respondent in the above petition. Shri Mathews J. Nedumpara, Respondent No.3, is the President of the NLC, who had instituted Writ Petition (C) No.124 of 2015 seeking a declaration that the said Acts are the will of the people of the country reflected through their supreme legislature, namely, both the Houses of the Parliament, and 21 State Assemblies which have ratified the said Acts on an issue of executive/ legislative policy, namely, the manner of selection and appointment of Judges to the higher judiciary and, therefore, the same is not justiciable. In other words, the Writ Petition at the hands of Shri. Nedumpara was in defence of the said Acts. Respondent No.4 A.C. Philip was the one who sought intervention in the matter, like Shri. Nedumpara, in defence of the said Acts pleading that the said Acts reflect the will of the people and they being in the realm of matters of policy are not justiciable. Both Shri. Nedumpara and Shri.Philip pleaded that the PILs in challenge of the said Acts be dismissed in limine as not maintainable and, if they are maintainable, notices are required to be issued under Order I Rule 8(2) of the Civil Procedure Code bringing the institution of the said PILs to the notice of the people of the country who have equal right either to come in support or
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100 opposition thereof, for, if a policy matter, as the instant one, namely, selection and appointment of Judges and their transfer, is justiciable, then such a right is invested in every citizen. Respondent No.2 is the Union of India, Respondent No.1 in the said petitions and Respondent also in the instant Review Petition. Why institution of the instant Review Petition became imperative
4.
India is a Federal Democratic Republic with a written Constitution. The Constitution of India envisages a federation of States with a federal Government at the Centre and Provincial Governments at the States; so too a Central Legislature, the Parliament, a bicameralone, the LokSabha and the RajyaSabha; so too State legislatures, a few of them bicameral. The executive/legislative powers of the Union and the States are clearly earmarked in the Union and State Lists where the Parliament and State Legislatures respectively enjoy exclusive legislative domains, and the Concurrent List where both the Central Legislature and the State Legislature, both, are empowered to enact laws, with a rider that where there is a conflict between the laws made by them, the law of the Central Legislature shall prevail. The Constitution of India also in express terms provides for a Supreme Court which extends its jurisdiction over the entire territory of India and High Courts within its territory; so too even beyond where the cause of action has originated within its territory. Article 124 of the Constitution provides for the mechanism/procedure for appointment of Judges of the Supreme Court and Article 217 for the appointment of the Chief Justice and Judges of the High Court. It is only appropriate to extract Article 124 and 217 of the Constitution and the Petitioner begs to do so as infra:“124. Establishment and constitution of Supreme Court.(1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High
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101 Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five
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102 years: Providedthat in the case of appointment of a Judge other than the chief Justice, the Chief Justice of India shall always be consulted: (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4). 2A. The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. Explanation I.-In this clause "High Court’ means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India. Explanation II.-In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included. …………………………………………………………………… …………………………………………………………………… …………………………………………………………………… ………” “217. Appointment and conditions of the office of a Judge of a High Court. (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation
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103 with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years. Provided that(a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. …………………………………………………………………… …………………………………………………………………… …………………………………………………………………… ………”
5.
Under the constitutional scheme, the power of appointment of the Judges of the Supreme Court, including the Chief Justice of India (CJI); so too Chief Justice and Judges of the High Courts, is invested in the President of India. Since the President of India is duty bound to act under the aid and advice of the Council of Ministers, namely, the Central Government, the appointment of the CJI, the Judges of the Supreme Court and the Chief Justice and Judges of the High Courts is within the executive power of the Central Government. Article 124, however, makes it clear that in the case of appointment of the Judges of the Supreme Court, other than the CJI, the CJI shall always be consulted. Article 217 says that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
6.
As is evident from the provisions extracted above,
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104 appointment of the CJI, the Judges of the Supreme Court and the Chief Justice and Judges of the High Courts; so too their transfer, is an executive function falling in the exclusive domain of the Central Government. Since the CJI is an eminent person, the pater familias of the judicial fraternity, the framers of the Constitution felt it only appropriate that he be consulted; so too the Governor and the Chief Justice of the State concerned in so far as appointment of Judges of the High Court. The mechanism/procedure for appointment of Judges as conceived by the Founding Fathers of the Constitution, which became part of the Constitution by virtue of Articles 124 and 217 thereof, remained to be so till the judgment in Supreme Court Advocates-on-
Record v. Union of India, (1993) 4 SCC 441, popularly known as the Judges-2 case. In the said case, a Nine-Judge Constitution Bench of the Supreme Court held that consultation means concurrence and, in clear conflict with the letter of Articles 124 and 217, substituted the word “consultation” with not merely with the word “concurrence” but with the word “primacy”. In the judgment in Judges-2 case, after inventing the new doctrine called “primacy”, it was held that the consultation with the CJI, which was substituted by the words “in concurrence”, and which went a further metamorphosis called “primacy”, shall be the views of the CJI which he is required to arrive at with two seniormost Puisne Judges of the Supreme Court. Thus took birth the collegium system of appointment of Judges, namely, Judges appointing themselves, which the Founding Fathers of the Constitution even in their wildest of dreams could not have ever imagined. 7.
The collegium system of appointment of Judges to the superior Courts took birth at a time when the country faced weak executive with no political parties having a clear majority in the Houses of the people and there were even allegations of corruption against the Prime Minister. Therefore, the rewriting of the Constitution by the Supreme Court in the Judges-2 case did not invite much of a public outcry. Only legendary Justice Krishna Iyer had the vision to foresee that the collegium system evolved by the Judges is certain to reduce the Indian judiciary to be an oligarchy. The Government of the day, it appears, did not have the courage to question the usurpation of the power of appointment of Judges by the judiciary, which the Founding
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105 Fathers had in unmistakable terms invested in the executive Government. As if to remind the words of Horace“parturientmontes, nasceturridiculusmus” what the Government could venture to do in a meek response to the literal judicial coup d'état was to seek a Presidential Reference in terms of Article 143 of the Constitution. During the hearing of the said case, namely, In re Special Reference 1 of 1998, AIR 1999 SC 1, known as Judges-3 case, the then learned Attorney General conceded that the Union of India is not seeking a review of the judgment in Judges-2 case. On the contrary, betraying his own Government, so too the people of the country, he asserted that he is only seeking certain clarifications as to the manner in which the collegium is expected to function. The judgment in Judges-3 case, which too was by a Nine-Judge Bench, expanded the strength of the collegium of the Supreme Court from 3 to 5. 8.
The Founding Fathers had only conceived a judiciary confined to do its role in a constitutional democracy, namely, adjudication of disputes between citizens and citizens, citizens and Government and vice versa, Government and States, States and States, Centre and States and vice versa etc. They did not envisage a Supreme Court to be either a law maker or an executive, much less a super law maker or a super executive. But the jurisprudence of PIL, a specious one, unheard in the rest of the world, made the Supreme Court a super legislature which could ‘lay down the law of the land’ and even re write the constitution without notice to the citizens and without affording them any opportunity to be heard. The Supreme Court and High Courts became legislature and executive; so too judiciary, all at once. The elite class of lawyers, particularly those practicing in the Supreme Court, realized that expansion of the horizons of the Supreme Court into a super legislature/super Government, the last Court of the land , all at once, meant enormous profit to them. Many “wolfs in the clothing of sheep” found large amount of flesh which could satiate their insatiable hunger. Thus evolved the so-called Centre of Public Interest Litigation, the great PIL industry. Retired and sitting Judges and elite class of lawyers found it profitable to get heir progenies appointed as Judges of the higher judiciary and that too at the youngest possible age, just at the turn of 40 years, so that they could adorn the august office of the Judges of the High
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106 Courts and the Supreme Court, become Chief Justices of high Courts, Judges of the Supreme Court and even become CJI. Thus took birth the new era of judicial dynasties. 9.
The collegium functioned in complete secrecy. The weak Coalition Governments in power since 1993 till 2014, neck deep in corruption and bowed down by scandals such as the 2G Spectrum Scam of 2008, the Satyam Scam of 2009, the Commonwealth Games Scam of 2010, the Indian Coal Allocation Scam of 2012, to mention a few, did not have the courage to even raise a murmur against the nontransparent and opaque manner of functioning of the collegium, nay, the nepotism and favouritism in judicial appointments. However, after the NDA Government came to power, the aforesaid Acts were enacted, paving way thereby for the birth of an independent judicial appointment commission called the National Judicial Appointment Commission (NJAC).
10.
NLC, so too all those informed section of the people,lawyers, intelligentsia and the common man have long been clamouring for bringing into existence a judicial appointment commission, which is independent of both the executive and the judiciary. They were not entirely happy with the NJAC, the offspring of the said Acts, as they felt that the NJAC conceived by the said Acts is still almost a collegium. However, the NLC and others mentioned hereinabove, who always felt that the future of India would largely depend upon how soon we as a country will be able to achieve a judiciary which is independent, impartial, efficient, accountable, willing to be criticized and willing to introspect, welcomed the NJAC. It was felt that once the NJAC started functioning, its strength and deficiencies, if any, will come to the public domain and there is every room to seek correction of the shortcomings. However, a few super elite class of lawyers, the Class I category of senior lawyers, for, there are different classes, Classes I to IV, of senior lawyers in the Supreme Court, felt the NJAC to be an incursion into their domain because they believe that in the appointment of Judges to the higher judiciary they have a right to be consulted/heard; they have a right to influence it; at any rate, they openly used to boast so. Without meaning any offence to the ordinary class of lawyers, the super elite class of lawyers has all throughout been using Supreme Court Advocates on Record Association (SCAORA)
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107 as a pawn in their hands to serve/advance their vested interests. In 1993, to bring forth the collegium system, they used the platform of SCAORA, so too the self-created platform of PIL. They once again misused SCAORA and PIL to challenge the aforesaid Acts. That is how the constitutionality of the said Acts came to be challenged by way of the above PILs, which challenge happened to be allowed by a Five-Judge Constitution Bench of this Hon'ble Court, with one Hon'ble Judge dissenting, by its judgment dated 16th October, 2015 in the now popularly known case
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108 as the NJAC case. 11.
While quashing the aforesaid Acts as th unconstitutional by its judgment dated 16 October, 2015, the Bench declared that the collegium system stands restored. The said judgment running into 1036 pages is reported inSupreme Court Advocates-on-Record Association v. Union of India and Others
(JT 2015 (10) SC 1),2015(5)GLT(SC)12, 2015(11)SCALE1. A copy of the said judgment is not annexed to the instant petition as it is too voluminous and a separate application seeking exemption from filing a copy of the said judgment is filed herewith and interests of justice requires that the same to be allowed. 12.
The Court used certain jargons in striking down the said Acts, namely, ‘independence of the judiciary’, ‘judicial supremacy’, ‘basic
structure’ etc. The crux of the judgment is that ‘independence of the judiciary’ is one of the inalienable ‘basic features’ of the
13.
Constitution; that a Constitution amendment which violates the basic structure is liable to be struck down; that the presence of the Law Minister in the NJAC will impinge the independence of the judiciary; that the mechanism envisaged under the said Acts being in violation of the basic structure could in no way be protected from being struck down and, therefore, the said Acts are liable to be struck down. The Court, however, had to take notice of the undeniable fact that there are flaws in the collegium system of appointment of Judges, which is aneuphemism for nepotism, favouritism and opaqueness in many respects, is defective and needs improvement. Hon'bleShri. Justice Kurian Joseph, one of the members of the Constitution Bench, was more candid and His Lordship rightly observed that the “Collegium system needs to be improvedand called for, for ‘glasnost’ and ‘perestroika’, and held that the caseneeds to be heard further in this regard. Accordingly, after the main judgment was delivered, the case was kept for further hearing to find out the ways and means by which the collegium system could be improved. Shri. Nedumpara and Shri. Philip had raised the issue that the collegium system had meant the august office of the Judges of the higher judiciary being monopolized by the kith and kin, nephews and juniors of sitting and former Judges of the Supreme Court and High Courts, so too of celebrated lawyers, Chief Ministers, Governors et al, and a few first generation lawyers who are all politically connected
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109 or are close to big industrial houses, supported by a Progeny Syndrome Chart. They urged that if suggestions as to ways and means by which the collegium system could be improved were to be invited, it cannot be merely from the elite class of lawyers who practice in the Supreme Court, but from the real stakeholders, not merely lawyers from the different parts of the country but from the public at large. Accordingly, opinions and suggestions from the public at large were sought. It meant opening the Pandora’s Box. The Court realized that the task which they have embarked upon is a legislation and seeking suggestions and opinions from the 129 crore people of the country is an impossible one. The Court, knowing not what its implications could be, found a sanctuary by entrusting the job of making the fresh MoP to the Government and asking it to redraft the Memorandum of Procedure (MoP) for appointment of Judges. The Petitioner had quoted the words of Horace once; it is not appropriate to quote them again, but the decision of the Court to entrust the job of redrafting the MoP to the Government once again reminds those memorable words of Horace. Restitution of the collegium system of appointment of Judges and the threat it poses to the democratic legitimacy and diversity in such appointments.
14.
The Supreme Court, after aborting the NJAC even before it could take birth, restored the collegium system of appointment of Judges where they could appoint themselves. Since the aforesaid Acts were notified pending the judgment in the NJAC case, no fresh appointment of Judges was made, which led to a situation where many High Courts have even 60% of their sanctioned strength and, to quote former CJI Hon'ble. Shri Justice Thakur, even Court rooms were to be kept locked up. Who are to be blamed for such a scenario? The answer is not far to seek – the socalled doyens of the Bar who used SCAORA as a pawn. Since appointment of Judges could not have brooked any delay, it became too difficult to oppose fresh appointments to the higher judiciary without waiting even for the redrafting of the MoP as a panacea of the cancer of nepotism and favouritism which the collegium system of appointment is, undoubtedly, afflicted with. Besides the legal luminaries, the doyens of the Bar, it is the Union Law Minister and the
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110 learned Attorney General who are to be blamed. The learned Attorney General miserably failed to defend the said Acts of Parliament; so too the Law Minister in failing to seek a review of the judgment in the NJAC case. Though the Petitioners are extremely hesitant to make any allegations which could be misconceived to be personal attack, they have little choice than to call a spade a spade. Sometimes words cannot be minced. Even Jesus Christ and Mahatma Gandhi, apostles of peace and non-violence, had to use harsh words, for, Jesus Christ said: “Thou hypocrite, first cast out the
beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye”. 15.
16.
The Petitioners had met Hon'bleShri. Ravishankar Prasad, the Union Law Minister, immediately after the NDA Government came to power urging him to bring the NJAC Act and even now requesting him to seek a review of the judgment in the NJAC case. The Petitioners are afraid to say that one of the greatest threats which the Indian democracy faces today is the dominance of the Class-I category of senior lawyersin all major political parties. When it comesto the Congress Party, what matters is the opinion of S/Shri. KapilSibal, Salman Khurshidet.al. and so far as the BJP is concerned it is S/Shri. ArunJaitley, Ravishankar Prasad et. al. These eminent men are in the Government and, when they are not, dominate the Supreme Court Bar. They literally along with the judges ruled this country; they constitute to be the supreme legislature and super executive and judiciary, all at once; all by means of PIL. When the judiciary assumes the role of the executive and legislature and when it acts as if it is the executive, legislature and judiciary all at once, the concept of ‘judicial review’ stand obliterated from Indian jurisprudence. To repeat and re-emphasise, the current system where the Supreme Court assumes to be the most powerful Court on earth where it could act as if it is the legislature and executive, nay, in substitution thereof, as also the executive, legislative and judiciary, all at once, works out to the great profit of these eminent men. The Hon'ble Prime Minister, the Petitioners have reason to believe, is kept in complete darkness about the great damage the judgment in the NJAC case has caused to the concept of constitutional democracy, the need for democratic legitimacy, equality of opportunities, diversity in the matter of judicial appointments, the very need for
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advertisement of vacancies of Judges, calling for references from all stakeholders, open and transparent selection of Judges, etc. The NLC, therefore, had no option than to step in. Hon'ble Mr. Justice J.S. Khehar, the present CJI, and Hon'ble Mr. Justice MadanLokur, a member of the collegium, ought to have recused from hearing the NJAC case. Under the collegium system, which was revived by the judgment in the NJAC case, Hon'ble CJI and four seniormost Judges of the Supreme Court, who constitute the collegium, are the de facto selection and appointment authority of Judges to the higher judiciary. Nobody else has a say in the matter. Even where the Government has an objection to a particular name recommended by the collegium, if the latter reasserts its decision, in terms of the judgment in the Judges-2 case, the recommendation of the collegium shall prevail and has to be accepted. On the contrary, the NJAC, even where it is still a body where Judges have yet domination, the CJI and the two seniormost Judges who are its members, did not have absolute say in the selection and appointment of Judges, though they enjoy the power of veto. Had the judgment in the NJAC case not quashed the aforesaid Acts as unconstitutional, the NJAC would have been a reality. Hon'ble Mr. Justice Khehar would have been the Chairman of the NJAC and Hon'ble Mr. Justice DipakMisra and Hon'ble Mr. Justice Chelameswar would have been two of its members, besides the two eminent persons representing the civil society, and the Hon'ble Law Minister. Newspaper reports indicate that the collegium headed by the Hon'ble Mr. Justice J.S. Khehar, the CJI, has recommended elevation of four Chief Justices and a Judge of the Karnataka High Court as Judges of the Supreme Court. Had the NJAC been in existence, which ought to have been the case but for the judgment in the NJAC case, the two eminent persons representing the civil society would have recommended the same name or somebody as eminent or even more as Judges of the Supreme Court as recommended by the collegium. They would have overlooked the seniority as the most determinative factor. Had NJAC been a reality, Hon'ble Mr. Justice MadanLokur would have no role at all in the selection and appointment of the Judges. Therefore, the irresistible perception which the common man gathers is that Hon'ble Mr. Justice Khehar and Hon'ble Mr. Justice MadanLokur ought to have recused themselves from
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112 hearing the NJAC case, for it meant to be a manifest conflict of interest. It is the judgment in the Judges-2 case which guaranteed the elevation of Hon'ble Mr. Justice Khehar as the CJI. If the NJAC were in existence, it would have recommended Hon'ble Mr. Justice Khehar himself as the CJI; that is one possibility. It is equally possible that the NJAC would have recommended Hon'ble Mr. Justice Chelameswar or an eminent Chief Justice of a High Court or an eminent Attorney General or someone who is not even a Judge as the CJI. NLC’s first attempt to seek a review of the judgment in the NJAC case.
18.
19.
The judgment in the NJAC case, as aforesaid, was rendered without notice to the public at large and without hearing them, but by hearing only a few elite class of lawyers who, even while they represented the Union of India and State Governments, did not put their heart into their job, for, invariably, almost all of them in the heart of their hearts, wanted the collegium system to continuebecause the said system offered them a great role, informal though, in judicial appointments. It is a fundamental principle of jurisprudence that a judgment of a Court binds only the parties thereto, called the doctrine of res judicata. It does not bind others, known by the doctrine ‘res inter aliosactaalterinocerenondebet’– a transaction between others does not prejudice one who was not a party to it or things done between strangers must not cause an injury to people who are not parties to such acts. To further elucidate, a judgment between A and B will bind them only and none else. The judgment in the NJAC case, therefore, will be binding to the parties to the said case, SCAORA, the Bar Association of India, the Supreme Court Bar Association, Shri.PrashntBhushan and a few others on the one side and the Union of India on the other and none else. The NLC, therefore, felt that seeking a review of the said judgment is not the solution, both from the theoretical and practical points of view. From the theoretical angle, a review of the said judgment could ideally be sought by a person who is a party to the said case and not by a third party, though the right of a third party to file a review petition cannot be denied. From the practical point of view,
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113 filing a review petition by the NLC made no sense because review petitions are not heard in the open Court, but in Chambers by circulation, though a request could be made
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to hear the same in the open Court. The NLC accordingly sought a review by instituting Writ Petition (D)No.7993/2016, seeking a declaration that the judgment in the NJAC case is void. It is only appropriate to extract prayer (a) in the said Writ Petition for ready reference and the Petitioners beg to do so as infra:a)
declare that the lead judgment and order dated 16.10.2015 passed by this Hon’ble Court in W.P. (C) No.124/2015, so too the dissenting judgment of even date, passed by the Constitution Bench of this Hon'ble Court in the above Writ Petitions and PILs are unconstitutional and void inasmuch as the challenge on the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 is not justiciable; that it involves no violation of the Petitioners’, or for that matter anyone’s, fundamental rights; that the Petitioners have no locus standi to institute the PILs; that the PILs are wholly not maintainable; and further that the declaration in the lead judgment that the collegium system, which is the product of rewriting of the Constitution by the NineJudge Constitution Benches of the Supreme Court in Judges-2 and Judges-3 cases, as if the Court is the Parliament exercising its constituent power, nay, acting in substitution of the Parliament, is revived and it will effect appointment and transfer of Judges of the Supreme Court and High Courts is unconstitutional and void;
Apart from the relief extracted above, the Petitioners also sought many other reliefs in the said Writ Petition, including a declaration that Hon'bleShri. Justice J.S. Khehar is disqualified from being appointed as the next CJI; so too a writ of prohibition. A Division Bench of this Hon'ble Court presided over by Hon'bleShri. JusticeR.K. Agrawal, by judgment and order dated 30th December, 2016, was pleased to dismiss the said Writ Petition observing that if the Petitioners are aggrieved by the judgment in the NJAC case, the procedure of review petition/curative petition is available to them.A copy of the judgment and order dated 30th December, 2016 in WP(C) No.20/2017 is produced asAnnexure P-2.( in page Nos. 81 to 93) 21.
The Hon'ble Division Bench failed to notice the fact that review is not a remedy but only a procedure and the Petitioners by instituting the Writ Petition under Article 32
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115 of the Constitution had sought nothing but a declaration that the judgment in the NJAC case is one rendered void ab initio. The Hon'ble Bench failed to notice that a declaration as aforesaid could be sought not necessarily by way of the procedure of review but equally permissible by filing an original petition under Article 32 of the Constitution, particularly since the Petitioners were not parties to the NJAC case, and a review is more appropriate where the persons seeking a declaration that a judgment is a nullity were parties to the proceeding. Without meaning any criticism of the Hon'ble Judges/Bench, the view so taken by them is not in consonance with the well settled legal principles. Therefore, the Petitioners who have sought a declaration of nullity by instituting a Writ Petition under Article 32 of the Constitution, which was dismissed as aforesaid, are constrained to file the instant review petition, though they were not parties to the NJAC case and the petition they filed under Article 32 as above was more appropriate, seeking the very same relief. The relief (a) in the aforesaid relief is the only relief sought for in the instant review petition. The practical reasons for which a declaration that the judgment in the NJAC case is a nullity is sought by recourse to the procedure of review. 22.
For the Petitioners, who include the cross section of the society, namely lawyers, social activists, academicians, traders, slum dwellers etc., the democratic legitimacy and the diversity in judicial appointments is as important as the breath of their life itself. The citizens of this country have a right to know, nay, a right to partake in the selection and appointment of Judges whose decisions vitally affect their freedom and liberty. For the millions of slum dwellers in Mumbai, a roof over their head, basic amenities like water supply, electricity connection, sanitation etc. remain to be a dream because the Hon'ble Judges of the Bombay High Court, the elite class of the society, allowed their shanties to be demolished by orders in purported PILs, without notice to them and without affording them an opportunity of hearing. The Hon'ble Judges even secured an undertaking from the State Government that it will not extend the cutoff date for regularization of the slums beyond 1 st January, 2000. In 1997, as legendary Justice Krishna Iyer narrated in his book “Off the Bench” with tears in the eyes of the
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116 noble soul, four lakh families were rendered homeless with their shanties being ordered to be demolished, calling CRPF battalions and even the schools where their children study, ration shops etc., being demolished. Even today the slum dwellers and the urban poor face demolition of their homes because Courts continue to order such demolition on PILs in which they are neither a party nor ever heard. Not only the poor are victims of the orders of the higher Courts on PILs without they ever being heard, thousands become jobless when illegal mining is banned by the Supreme Court. Only the elite class of lawyers, for instance, Shri. Harish Salve who earn crores of rupees as revenue as amicus curiae in the environmental cases, are the beneficiaries. The mass revolt in Tamilnadu against banning of Jallikattu without hearing the public at large is the latest of such instances where Court decides issues of policy affecting the public at large without notice to them and without hearing them. Legal grounds on which a declaration that the judgment in the NJAC case is a nullity was and is being sought in the earlier Writ Petition and in the instant Review Petition. 23.
The so-called legal luminaries who secured a declaration at the hands of the Supreme Court that the aforesaid Acts are unconstitutional on the premise, to repeat, that the independence of the judiciary is one of the basic features of the Constitution; that the said independence does not mean independence in deciding the cases placed before them but in securing the absolute right to appoint themselves. Their plea was that the ratio of the judgment in Judges-2 case was that not even the concurrence of the CJI giving the meaning of the word ‘consultation’ as ‘concurrence’ and ‘supremacy’ and that the ultimate power of selection and appointment of Judges should remain with the collegium. Their further plea was that though the NJAC is again almost a collegium with three out of its six members being the CJI and two seniormost Judges of the Supreme Court, the presence of the Union Law Minister as a member and two eminent persons representing the civil society, to be elected by a Committee consisting of the Hon'ble CJI, Hon'ble Prime Minister and the Leader of the Opposition, it still will take away the independence of the judiciary
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117 because the absolute primacy of the judiciary will be lost. The two jargons, as aforesaid, employed were independence of the judiciary and basic structure. The tool they employed is a procedure called PIL. PIL 24.
Article 32, which itself is Part III of the Constitution, provides that where a citizen’s fundamental rights are violated by the State or its instrumentalities, he could invoke the jurisdiction of the Supreme Court without recourse to any other Court and further that, that procedural right itself is to be regarded as fundamental right. Therefore, nobody could invoke the jurisdiction of the Supreme Court under Article 32 unless his or her fundamental right is infringed/violated and that too by the State or its instrumentalities. Prior to the advent of PIL, the person aggrieved himself was required to approach the Supreme Court, with the result the right to approach the Apex Court for enforcement of fundamental right under Article 32 remained to be the exclusive privilege of the rich and the super rich. The doors of the Supreme Court under Article 32 remained closed for the poor and the ravished – the under trials languishing in jails, bonded labourers, the illiterates and the disabled. Legendary Judges like Justices P.N. Bhagwati, Y.V. Chandrachud, Krishna Iyer et al, by entertaining even a postcard as a petition relaxed the principle of locus standi and held that where a person aggrieved, out of his illiteracy, poverty, ignorance and other disadvantages, is unable to invoke the jurisdiction of the Supreme Court under Article 32, any public spirited person acting pro bono publicocouldact on his or her behalf, nay, even a determinative class of persons.Thus took birth the jurisprudence of PIL, which is now abused beyond conception.
25.
The aforesaid legendary Judges did not invent any new jurisprudence at all. They only gave a practical meaning to the first principle of jurisprudence, ubi jus,
ibiremedium– where there is a right there is a remedy. Though the words “Public Interest Litigation” were coined by the legendary Judges, the PIL they had in mind has nothing to do with what it is today. It was all in the realm of private law; enforcement of private rights.When an under trial
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118 undergoes illegal imprisonment, when a bonded is exploited, when shanties of slum dwellers are demolished and they are rendered homeless, what are infringed are their fundamental rights. There is then a ‘person aggrieved’ whose fundamental rights are infringed, investing in him a right to remedy and a forum to enforce the remedy which, under Article 32, is the Supreme Court. What the legendary Judges carved out of the existing principles of jurisprudence was nothing new, but remedies in the realm of private law for enforcement of one’s private rights. In S.P. Gupta v. Union of
India, AIR 1982 SC 149, legendary Justice Bhagwati was pleased to take notice that the right to speak for the rights of the public and seek and enforce remedies for them is ofthe learned Attorney General and none else. However, that is all forgotten. A new industry was born; the PIL industry, a thousand crore rupees industry, if not more. Those who indulge in the PIL industry don the role of the learned Attorney General/Advocate General who alone is competent to speak for the public interest. Even some of the courts have resorted to constitute permanent Bench for adjudicating PILs. PILs are instituted day in and day out in the Supreme Court and different High Courts in the country on matters which fall exclusively in the domain of the executive and legislature.The NJAC case is one such
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119 26.
classic instance. The Petitioners in the above PILs did not allege that their fundamental rights are violated; they did not seek any remedy which they claimed they are entitled in law. The PILs ought to have been dismissed in limine for the simple reason that no violation of any fundamental right of the Petitioners was alleged therein. The learned Attorney General, however, did not question the very maintainability of the PILs despite repeatedly bringing it to his notice. It is only appropriate to add here that in the Judges-2 case too, the non-maintainability of the PIL filed by SCAORA was not raised. In fact it was conceded. The question of maintainability was raised by the Union of India in S.P. Gupta case,
27.
namely, the Judges-1 case. However, that plea was not pressed because Justice S.N. Kumar, an Additional Judge, who was not made a Permanent Judge, was a party to the case and whose fundamental rights were undoubtedly involved; so too Chief Justice M.M. Ismail, who was transferred from Madras High Court as the Chief Justice of the Kerala High Court. To repeat, in Judges-3 case too, the maintainability of the PIL by SCAORA was never challenged; on the contrary, it was conceded. In short, the entire blame for coming into existence of the collegium system and the quashing of the said Acts lie on the shoulders of the learned Attorney General and those lawyers who faintly defended the Union of India and the States and none else. The aforesaid Acts are legislations in the realm of executive/legislative policy and are not justiciable. The Petitioners are die hard supporters of the concept of judicial review for enforcement of fundamental or legal rights through the mechanism provided under Articles 32 and 226. At the same time they are deadly opposed to PILs of the current day, a mechanism by which the authority of the executive and legislature is undermined and sought to be substituted by the constitutional Courts where they act in substitution of the executive and legislature as if they are the executive and legislature; so too as the executive, legislature and judiciary, all at once, the so-called super judiciary. Some legal luminaries take pride that the Supreme Court of India is the most powerful Court on earth. The Petitioners do not subscribe to the said view.In the eyes of the Petitioners, today Judges of the higher judiciary rule the country and that is not at all a good idea. A judiciary which confines
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within the constitutional scheme and holds separation of powers as sacrosanct alone can command the confidence of the people of the country and maintain its independence in the long run. The aforesaid Acts were legislations, to repeat, in the realm of policy as to how Judges to the higher judiciary ought to be selected and appointed; the said Acts did not involve violation of anybody’s fundamental rights. If at all they did, it could only be that of the Judges of the Supreme Court and High Courts, and none else, and if the Judges had felt that their fundamental rights are violated by the said Acts, they could have instituted a petition under Article 32 on their own. At any rate, SCAORA did not plead that they are acting pro bono on behalf of the Judges. Shri. Nedumpara and Shri. Philip, who had attended all the hearings of the NJAC case, time and again tried their best to raise the plea of the very non-maintainability of the above PILs/Writ Petitions as a preliminary issue. However, they were not allowed to raise the said plea at all or effectively. They were practically refused a hearing. The learned Attorney General, for reasons difficult to be fathomed, was obstinate and refused all requests to him to raise the plea of non-justiciability of the challenge to the said Acts, they being policy in the realm of legislation.
If SCAORA’s plea is justiciable, who all were to be heard?
29.
To repeat, if the challenge to the said Acts was justiciable, the first question which would arisewas, whose fundamental rights were infringed. The obvious answer is that of the public at large. The further question is, who could represent the public at large. Could SCAORA represent the public at large? Obviously not. It can represent only itself and its members, that too,if had passed any general body resolution to that effect. If it is a public issue which is justiciable, every citizen has a right to be heard, either in support or opposition. Shri.Nedumpara and Shri. Philip brought to the notice of the Hon'ble Court the absurdity of hearing a public issue without notice to the public at large and without affording them an opportunity of hearing. Could the learned Attorney General be said to represent the public at large? If one were to concede the fundamental principle that the learned Attorney General is the custodian of public interest, and the grievance is that
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121 the said enactments involved no violation of any fundamental right of SCAORA but the rights of the public at large, then he alone is competent. If he is not competent; then none could be competent. That is the limitation on the doctrine of ‘judicial review’ in jurisprudence. The doctrine of
‘judicial review’ does not confer unlimited power on the courts. Basic structure. What does the doctrine of basic structure mean in practical terms?
30.
The basic structure is a doctrine by invoking which a person who has suffered no injury to his fundamental or legal rights could invoke the jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 and seek a declaration that an Act of Parliament is unconstitutional and void, claiming himself to be acting pro bona in public interest, without even arraigning as parties the persons whose interests are adversely affected, namely, a procedure where any busybody could invoke the jurisdiction of the Supreme Court and High Courts claiming to be acting pro bono; in public interest, a tool, as aforesaid, to secure an Act of Parliament as void or meddle with matters of executive and legislative policies through socalled PILs. A Constitution Bench of this Hon'ble Court in Madras Bar Association v. Union of India, (2014) 10 SCC 1, declared the National Tax Tribunal Act as unconstitutional holding that it is violative of the basic structure of the Constitution.What a tragedy;even a Tax Tribunal cannot be established because it could violate the basic structure! The said Bar Association also could obtain a declaration that Chartered Accountants are not entitled to practice before Tax Tribunals, without even the Chartered Accountants being heard in a representative capacity.
Does something called the basic structure exist in jurisprudence?
31.
The doctrine of basic structure is unknown to common law, nay, unknown to the universal jurisprudence. In common law, the principle is ubi jus, ibiremedium. One could access the Court of Justice only if he has suffered a legal
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122 injury – either a right is infringed or is saddled with an obligation or liability – which will entail in him remedies. Subtly stated, the said principle is thus: right, remedy and forum. What does the doctrine mean? 32.
33.
34.
The doctrine of basic structure has its foundation in the judgment of the Full Court of this Hon'ble Court in KesavanandaBharati v. The State of Kerala, (1973) Supp. SCR 1. In KesavanandaBharati, the constitutionality of the Constitution (Twenty-fourth Amendment) Act, 1971 and Constitution (Twenty-fifth Amendment) Act, 1971 was challenged on the premise that the said amendments are violative of Part III of the Constitution, a Chapter which deals about fundamental rights, of which the most pertinent is Article 13 of the Constitution which declares that all pre-existing laws in so far as they are in conflict with, so too all post-Constitution laws in so far as they take away or abridge the rights conferred under Part III of the Constitution, are void. In KesavanandaBharati the plea that the Constitution (Twenty-fourth Amendment) Act, 1971 and the Constitution (Twenty-fifth Amendment) Act, 1971 be declared to be void because they violated the fundamental rights was not accepted. The said judgment, however, held that though fundamental rights could be impinged by virtue of a Constitution amendment, such impingement cannot be an absolute one, one which would totally take away or eliminate the lives and liberties of citizens which are so sacrosanct and could be construed to be the soul of the constitutional ethos. This Hon'ble Court while explaining the proposition that the Parliament in exercise of its constituent power is competent to curtail or limit the fundamental rights, keeping in mind the directive principles of State policy, which has an equal position of prominence in the constitutional scheme, held that it still shall not be entitled to exercise its power of amendment in such a fashion as to totally destroy or emasculate the Constitution or replace it with another. However, the doctrine of basic structure, on the very face of it a proposition which none could find fault with, for, in KesavanandaBharati, so too in subsequent judgments of this Hon'ble Court, it was held that republican democratic form of Government, Federal structure of the Constitution, separation of powers, secularism, independence of
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judiciary, all, constitute to be the basic structure of the Constitution, lost sight of the fact that the doctrine of basic structure no way expands the horizons of the concept of justiciability. KesavanandaBharati invoked the jurisdiction of the Supreme Court for enforcement of his fundamental right. His plea was that the prohibition contained in Clauses (1) and (2) of Article 13 is applicable to a constitution amendment, as well, and that the aforesaid amendment be declared as void. The Supreme Court repelled his contention and held that every Article in the Constitution could be amended, including those in Part III thereof. While holding so, the Supreme Court overruled the judgment in Golaknath v. State of
Punjab AIR 1967 SC 1643, which had held that the bar of Article 13 is applicable to an amendment and that a constitution amendment which takes away fundamental rights is void. 36.
Visionary Judges of the Supreme Court were faced with a dilemma. It was difficult to have held that the Parliament even by following the procedure under Article 368 cannot amend the Constitution, including those Articles which deal with fundamental rights. They realised that to do so would mean a threat to the very concept of rule of law, the very fate of the nation as a constitutional democracy. Therefore the Court held that the Parliament can amend every Article of the Constitution, including those concerned with fundamental right, but not destroying the Constitution itself. The judgment in KesavanandaBharati ran into half a million words. That judgment did not evolve any new principle. The visionary Judges could not have dreamt even in their wildest of dreams that a day will come when the doctrine of basic structure would be invoked and an Act of Parliament could be challenged claiming infringement of the basic structure without there in existence a plea at all that the said Act has resulted in violation of anybody’s fundamental rights.
Is it possible to give a jurisprudential exposition to the concept of basic structure?
37.
The doctrine of basic structure, though unknown to jurisprudence, if an attempt were to be given to it in jurisprudence, could fall within the domain of procedural
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124 law. Procedural law exists as an aid to substantive law. Rule of law is declared to be a basic structure. Courts and Tribunals, the forums where rights could be enforced, fall in the realm of adjectival law. Therefore, the doctrine of basic structure could be said to be in the realm of procedural law. If that be so, the best that could be argued is that denial of procedural rights could lead to denial of substantive rights. SCAORA had no such case. The Petitioners beg to submit that though to criticise the judgment in KesavanandaBharati, the most celebrated judgment of all judgments rendered by the Supreme Court, would amount to blasphemy, the judgment in Golaknath(supra) deserves greater accolades because it in unmistakable terms held that even a constitution
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125 amendment which takes away fundamental rights is void. Why the aforesaid Acts, which involved no violation of anybody’s fundamental rights and were in the exclusive realm of executive and legislative policy and, therefore, not justiciable, were held as unconstitutional?
38.
The learned Attorney General rightly took the plea of non-justiciability in the demonetization case, though belatedly after the intervention of the NLC, but such a contention wasnever raised in the NJAC case, though repeatedly requested. If the challenge to the aforesaid Acts was justiciable, the first thing to be settled was, who all are entitled to address the Hon'ble Court and whom all are to be heard. The obvious answer to this could only be that the entire public at large. The learned Attorney General, instead, conceded the jurisdiction of this Hon'ble Court to sit in judgment over the correctness of the wisdom of the Parliament. The NJAC case was argued for 31 days. All discussions were about what better a job the Parliament could have done. The learned Attorney General accepted the judgments in Judges-2 and Judges-3 cases as gospel. The said judgments were founded on the basic structure doctrine; a concept made of wax which could take whatever form it is moulded by the Hon'ble Judges.He failed to distinguish the difference between res judicata and stare decisis. He conceded the jurisdiction of the Supreme Court to declare a law of the land as unconstitutional without hearing the public at large and by hearing a few legal luminaries.
Are judgments of the Supreme Court the law of the land?
39.
The judgment in the NJAC case is founded on the premise that judgments of the Supreme Court are the law of the land and that between the Constitution and a judgment of the Supreme Court, the judgment of the Supreme Court will prevail even while the judgment meant no interpretation of the Constitution, but a rewriting thereof. A judgment of the Supreme Court can bind only the parties to the case and none else. It is true even with KesavanandaBharati. A judgment of the Supreme Court, even
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126 while it is entitled to greatest respect, nay, literally to be worshipped, yet, when it comes to third parties, namely, those who are not parties to the proceeding, it is only a precedent. The country has to face the agony of the said Acts being set aside because at least since the advent of PILs, judgments of the Supreme Court affecting the public at large without they being parties thereto are taken as the law of the land. This misconception is the root cause for all maladies. An Act of Parliament, which is the will of the people, has been declared as unconstitutional without the affected parties being heard. What is the solution open to them?
40.
There can be the following four procedures as the solution, namely: (a) a suit in a Civil Court for a declaration that the judgment of the Supreme Court in the NJAC case is null and void; (b) Writ Petitions in High Courts for a declaration as above; (c) a Writ Petition in the Supreme Court under Article 32 of the Constitution; and (d) a petition for review, as the instant one, under Article 147 of the Constitution.
The Petitioners did not pursue the procedures at (a) and (b) above because it could only be conceived in theory; not in practice. The procedure at (c) above, namely, institution of a Writ Petition under Article 32 is both a practical and theoretical solution, which the NLC did. The principal relief in the said Writ Petition, which was disposed of by the judgment and order (Annexure P-2 herein), was to declare that the judgment in the NJAC cased was rendered void. However, the Hon'ble Bench failed to take notice of the fact that whatever be the procedure to be adopted, as aforesaid, the remedy that could be sought is a declaration that the said judgment is void. What matters is not the procedure, for, procedure is only a handmaid of justice, but justice. Since this Hon'ble Court took the said view, the Petitioners are left with no other option than to institute the instant Review Petition, not because it is their choice. This Hon’bleCourt inVishnu Agarwalvs. State of U.P. &Anr [AIR 2011 SC 1232] and in Asit Kumar Karvs. State of West Bengal &Ors,, [2009(1) SCR 469[, has in categorical terms, was pleased to hold
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127 that a review of a judgment of the Supreme Court could be sought, by way of an original proceedings under Article 32 of the Constitution. Why the Petitioners consider that a review, though one of the options as aforesaid, is not the most appropriate procedure and in directing them to file a review they are denied the option to elect a procedure. 41.
42.
43.
Since the Petitioners were not parties to the NJAC case, though a review at their hands is permissible, they cannot be compelled to opt for that option when they have every right to invoke Article 32 of the Constitution and challenge the judgment in the NJAC case by way of a substantive procedure. That option having been denied, as aforesaid, the Petitioners are entitled to seek a hearing of the instant review petition in the open Court. A separate application containing the said prayer is filed herewith and the same is required to be allowed in the interests of justice. Appended are the Appendix: I(in page Nos. 69 to 70)-Article 137 & 145 of The Constitution of India, Appendix: II(in page Nos. 71 to 73)Constitution(99TH Amendment) Act,2014, Appendix: III(in page Nos. 74 to 78)National Judicial Appointments Commission Act,2014 and Appendix: IV(in page Nos. 79 to 79)-Extract of resolution It is Certified that this is the first review petition filed by the review petitioners against the judgment dated 16.10.2015 and based on the same grounds, no other review petition has been filed by the review petitioners.
G R O U N D S Grounds in support of the reliefs sought for are fairly elaborated in the statement of facts above and hence are not repeated. The Review Petitioner respectfully submits that paragraphs 1 to 30 hereinabove may be read and treated as the grounds in support of the instant Review Petition. Nonetheless, the Review Petitioner begs to submit that: (A)
The judgment dated 16th October, 2015 declaring the Acts as unconstitutional is void inasmuch as the said judgment impinges the basic structure of the Constitution; it is one rendered without jurisdiction and in violation of the principles of natural justice since this Hon'ble Court happened to assume to itself the jurisdiction to embark upon an inquiry as to whether or not the wisdom of the Parliament, and that too in
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128 absolute unanimity, except a sole Member in the RajyaSabha, and ratified by more than 21 States, is questionable or not. This Hon'ble Court happened to do so since the learned Attorney General conceded, as has been recorded in paragraphs 75 and 76 of the lead judgment at the hands of Hon'ble Mr. Justice Khehar, that the challenge raised by the Supreme Court Advocates on Record Association (SCAORA) and others “could only be accepted, if it was shown, that the Parliament while
exercising its plenary power to amend the Constitution, had violated the ‘basic structure’ of the Constitution.” At the cost of repetition, it may be stated that in paragraph 76 of the judgment it was recorded that it has been asserted by the learned Attorney General that “the only scope for examination with reference to
the present constitutional amendment was, whether while making the aforestated constitutional amendment, the Parliament had breached, any of the ‘basic features’ of the Constitution.”The mandate of Article 32 and the petitions there under are confined to the infringement of the Fundamental Rights of the persons as expounded in Part-III of the constitution, and not for any other purposes, including the so called infringement of the basic structure of the constitution, which is in clear terms laid down in the said Article. (B)
The entire challenge to the Acts made in the Writ Petitions filed by SCAORA and others was founded on the specious premise that independence of judiciary is one of the basic structure of the Constitution and in so far as the said Acts while enacting for NJAC, a mechanism whereunder Judges will have no absolute monopoly in the selection, appointment and transfer of Judges, will amount to impingement of the so called ‘independence of the judiciary’, one of the most inalienable, transcendental and primordial basic feature of the Constitution, as stated. Stated in the simplest of simple words, the challenge to the Acts was on the sole premise that independence of judiciary is at peril, nay, the basic structure of the Constitution will be impinged; nothing more, nothing less.
(C)
The doctrine of basic structure has its foundation in the judgment of the Full Court of this Hon'ble Court in KesavanandaBharati v. the State of Kerala (1973) Supp. SCR
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129 1.
In KesavanandaBharati, the constitutionality of the
Constitution (Twenty-fourth Amendment) Act, 1971 and Constitution (Twenty-fifth Amendment) Act, 1971 was challenged on the premise that the said amendments are violative of Part III of the Constitution, a Chapter which deals about fundamental rights, of which the most pertinent is Article 13 of the Constitution which declares that all pre-existing laws in so far as they are in conflict with, so too all post-Constitution laws in so far as they take away or abridge the rights conferred under Part III of the Constitution, are void. In KesavanandaBharatithe plea that the Constitution (Twenty-fourth Amendment) Act, 1971 and the Constitution (Twenty-fifth Amendment) Act, 1971 be declared to be void because they violated the fundamental rights was not accepted. The said judgment, however, held that though fundamental rights could be impinged by virtue of a Constitution amendment, such impingement cannot be an absolute one, one which would totally take away or eliminate the lives and liberties of citizens which are so sacrosanct and could be construed to be the soul of the constitutional ethos. This Hon'ble Court while explaining the proposition that the Parliament in exercise of its constituent power is competent to curtail or limit the fundamental rights, keeping in mind the directive principles of State policy, which has an equal position of prominence in the constitutional scheme, held that it still shall not be entitled to exercise its power of amendment in such a fashion as to totally destroy or emasculate the Constitution or replace it with another. However, the doctrine of basic structure, on the very face of it a proposition which none could find fault with, for, in KesavanandaBharati, so too in subsequent judgments of this Hon'ble Court, it was held that republican democratic form of Government, Federal structure of the Constitution, separation of powers, secularism, independence of judiciary, all, constitute to be the basic structure of the Constitution, lost sight of the fact that the doctrine of basic structure no way expands the horizons of the concept of justiciability. KesavanandaBharatiinvoked the jurisdiction of the Supreme Court for enforcement of his fundamental right. The Supreme Court held that the Constitution
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130 amendment, which was challenged, was valid, but it further held that the Parliament even in exercise of its constituent amendment cannot take away or completely destroy the fundamental rights. (D)
The doctrine of basic structure in itself is not justiciable. Nobody could ever imagine to be invested with the right to come to a Court and seek a declaration that a Constitution amendment or an Act of Parliament is void since he perceives that the amendment or the Act impinges the basic structure. He or she needs to plead something more, namely, that his or her fundamental rights are violated and the amendment or the Act which has violated his or her fundamental rights is so drastic or illegal that it not merely impinges his or her fundamental rights but it completely destroys them. There thus a violation of the basic structure of the Constitution and the Parliament in exercise of its constituent power is not empowered to enact such a law may be pleaded. Stated pithily, before and after KesavanandaBharati, to challenge the constitutional validity of a Constitution amendment or an ordinary legislation there must exist a ‘person aggrieved’ and the person aggrieved must complain that by virtue of the amendment or the legislation his fundamental right is violated. KesavanandaBharatihas, in fact, contrary to the public perception, made the challenge on the ground of violation of fundamental rights difficult, rather than easier. KesavanandaBharati permits some curtailment of fundamental rights. The only bar is that such curtailment shall not be so drastic that it will completely destroy the fundamental rights itself, for, the fundamental rights constitute to be an inalienable, transcendental and primordial basic feature of the Constitution. The Petitioner begs to submit with utmost respect that in KesavanandaBharatithe Hon'ble Judges went on to discuss the concept of basic structure of the Constitution beyond what was required, which made the seeds of total misconception of the said judgment blossom in the years to come. In certain other judgments, namely, Minerva Mills v. Union of India (1980) 2
SCC 591, Madras Bar Association v. Union of India, (2014) 10 SCC 1 and the NJACcase too, the fact that the concept of basic
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131 structure was evolved with reference to a plea for enforcement of fundamental rights was completely lost sight of and a new jurisdiction founded on sand that a challenge to the constitutionality of a Constitution amendment or an ordinary Act of Parliament will lie under article 32 of the constitution, without there in existence a ‘person aggrieved’ and he claiming violation of his fundamental rights by virtue of the Constitution amendment or the Act of Parliament, as in the instant case. (E) The learned Attorney General and the Solicitor General, by failing to raise the fundamental issue of non-justiciability of the said Acts without there in existence anyone claiming or complaining that his or her fundamental right is violated and such violation amounts to infringement of the basic structure of the Constitution within the meaning of KesavanandaBharati, have, the Petitioner begs to submit with utmost respect, “invited” this Hon'ble Court to go into and examine the wisdom of the Parliament in enacting the Acts and substitute its/ Court’s wisdom with that of the Parliament by holding that there is no wisdom in enacting the Acts. Sublatofundamento, cadit opus – the foundation being removed, the structure falls. This Hon'ble Court had no jurisdiction at all to entertain the plea on the challenge to the Acts. To repeat, the said Acts are legislations on constitutional policy in the matter of appointment of Judges, which is not justiciable at all. The learned Attorney General and the Solicitor General failed to raise the plea of nonmaintainability of the Writ Petitions, for, no Writ Petition under Article 32 could be filed unless the party invoking the said jurisdiction claims violation of his or her fundamental rights. It was their duty while representing the Government, nay, the 125 crores people of this country, to assert that neither SCAORA nor the Bar Association of India, nay, none of the Petitioners who had challenged the validity of the Acts, has claimed that their fundamental rights are infringed; that no Writ Petition under Article 32 could have been maintained without such a plea; that the PIL is wholly not maintainable inasmuch as for maintenance of a PIL there ought to be a person aggrieved and the person aggrieved out of his poverty, ignorance,
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132 illiteracy and other similar disadvantages is unable to approach this Hon'ble Court. It was the duty of the learned Attorney General and the Solicitor General to point out that, where there is no person aggrieved in existence whose fundamental or legal rights are said to have been infringed, no lis exists and no Writ Petition under Article 32 could be filed. In other words, the Writ Petitions are upon the validity of a law which provided for a new mechanism for appointment of Judges to the higher judiciary, which is in the realm of legislative or executive policy and which by no stretch of imagination could be said to involve violation of any fundamental rights of any of the Petitioners and, admittedly, none has claimed such violation. It was the duty of the learned Attorney General and the Solicitor General to have pointed out that nobody could ever come to the Supreme Court alleging that if a mechanism as under the impugned Acts is created for appointment of Judges and where Judges are appointed in terms of the said mechanism, the Judges so appointed would be subservient to the executive, that they will ever remain loyal to the executive Government, and that the person who has instituted or may have reason to institute a legal proceeding in the High Court or supreme Court in future will not get fair justice and thereby his fundamental right is violated because the Judges appointed under the NJAC will remain loyal to the executive Government who had a role in their appointment. No person whose sanity cannot be put to question will ever venture to make such a plea and the Petitioners who have challenged the Acts have not, thankfully, made any such plea in their petitions or in the arguments by the distinguished of the distinguished counsel in the country engaged by them. (F) The judgment sought to be reviewed in fact is the
Judges-
5 case, though popularly known as the Judges-4 case, which has struck down the Acts and restored the collegium, a mechanism whereunder the Judges appoint themselves. The Petitioners may be forgiven in putting it bluntly that the said judgment is nothing but entering into the act of legislation as if the Supreme Court is the Parliament, nay, in substitution
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133 thereof. By the instant judgment, the judgment in Judges-2 case, which is nothing but rewriting of the Constitution, a judgment rendered per incuriam and which is void ab initio, is restored.
The net effect of the
judgments in Judges-2, Judges-3 cases and the current case is literal death of democracy, the unkindest cut of the concept of separation of power at its very root, the Court assuming the role of both the Parliament and the executive, all at once, as if it is the Parliament and the executive, nay, in substitution thereof. The judgments in Judges-2 and Judges-3 cases and the above petitions have resulted in a ridiculous scenario where Articles 124 and 217 of the Constitution are to be read diametrically opposite to what they state, which has meant cutting the concept of judicial review at its very root. (G) The concept of basic structure is wholly misunderstood. It has been detailed above, but at the cost of repetition it is submitted that nobody could ever be heard to invoke Article 32 on the premise that the basic structure of the Constitution is impinged. He has to come with a plea that the Constitution amendment or an ordinary law, whatever be it, results in violation of his fundamental rights and the violation is so grave, is so fundamental, that it is beyond the permissible domain of abrogation of the fundamental rights that so long as the Constitution remains it cannot be allowed to happen. Unless there is such a plea, no writ under Article 32 will lie. The Writ Petitions by SCAORA and the Bar Association of India and others, so too the National Tax Tribunal case and the innumerable PILs where busy bodies assume the role of the Attorney General and speak of public interest are all instituted on a misconception of the doctrine of basic structure and the concept of PIL, both alien to the Constitution itself. (H)
The fundamental principle, namely,
nemoiudex
in suacausa or nemodebetessejudex in propriacausa- no one can be judge in his own cause – stands violated. It is a fundamental principle that where a Judge is biased, even where such bias is non-conscious, sub-conscious or unconscious, as in the instant case where His Lordship Hon'ble Mr. Justice Khehar would not have even in the wildest of his dreams ever thought of himself being a
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134 member of the collegium writing a judgment so as to secure a place for himself. With utmost respect, nay, with greater amount of hesitation, the Petitioners beg to submit that had NJAC been in place, which certainly would have been the position but for the judgment sought to be reviewed, Hon'ble Mr. Justice Khehar as of today would not have any role in the appointment and transfer of Judges, but since the NJAC is, if the Petitioners were to borrow an expression from Shakespeare, “interred with its bones” by virtue of the said judgment and since by a stroke of a pen the Constitution Bench could do so and resurrect the collegium system, which is universally castigated to be an opaque and non-transparent one, His Lordship Hon'ble Mr. Justice Khehar is part of the collegium and His Lordship has a pre-eminent role in the appointment and transfer of Judges of the Supreme Court and High Courts. The Petitioner is afraid to say that an “informed onlooker”, nay, even an ordinary man, nay, the 125 crores people of this country, may consider the judgment rendered by this Hon'ble Court s void, being in conflict with the maxim nemopotestessesimul
actor et judex– “no one can be at once suitor and Judge”. (I) The doctrine of nemodebetessejudex in propriacausa – no one can be judge in his own cause – is equally applicable for the entire Constitution Bench which heard the above petitions. It is incorrect to say that the plea of recusal made by Shri. Nedumpara was confined to Hon'ble Mr. Justice Dave and Hon'ble Mr. Justice Khehar. The Petitioners tendered in the open Court a chart showing that a Bench of not nine but eleven Hon'ble Judges, who will never be a part of the collegium nor of the NJAC, for, they will superannuate before they could reach that position by virtue of seniority, could have been constituted. The judgment at the hands of the entire Bench is, therefore, vitiated by violation of the first principle of natural justice, namely, nemodebetessejudex
in propriacausa, and is liable to be declared as void. (J)
The only saving grace in the aforesaid judgment is acceptance of the fact of total lack of transparency, opaqueness, oligarchy, nepotism and all sorts of vices where sunlight, which is the greatest disinfectant, is not allowed to enter is taken notice of by Hon'ble Mr.
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135 Justice Kurian Joseph quite eloquently in his judgment, concurring though, so too by Hon'ble Mr. Justice JastiChelameswar, and the willingness of the Constitution Bench to further hear the case on the question of ways and means by which the collegium system could be improved. The collegium is incapable of being improved, for, its shortcomings are so fundamental and incurable. The very acceptance of the same by the sitting member of the collegium and his lordship’s eventual withdrawal from the meetings of the collegiumas reported by the media is standing testimony to the said facts. That the very effort of this Hon’ble Court to continue with the sitting even after the judgment is delivered in a writ petition is unprecedented and ultravires the constitutional mandate, in violation of the doctrine of separation of powers, which is a basic structure of the constitution and hence is not amendable even by the parliament under Article 368 of the Constitution. The doctrine of separation of powers envisages that the law making powers are vested with the legislature and not with the 5-judge bench of the Hon’ble Supreme Court of India. The effort of this Hon’ble Court to function as a superior body even to the elected parliament is in violation of the oath of office of the judges, who are duty bound to function in accordance with the constitution, and the instant effort to continue with the legislative process after declaring the law as passed by the elected representative of the people of India is a effort to become a Supreme authority in the nation, which can cause irreparable damage to the Democracy and rule of law. Even in one’s wildest of imagination it is impossible to understand that this Hon’ble Court can assume itself the autocratic, tyrannical and dictatorial powers to scuttle democratic institutions and declare itself to be the supreme authority to exercise the executive and legislative functions under the self appointed jurisdiction of PIL, which stand in total violation of the Supreme Court Rules and the various judgments of this Hon’ble Court itself. The concept of PIL is not a mask for this Hon’ble Court to encroach upon the legislative and executive functions, by destroying the separation of powers,which itself is a Basic Structure of the Constitution. The terminology of “separation of powers” has been vitiated by being
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136 molded into “independence of judiciary, which is a misnomer and later by the instant judgmentinto “Supremacy of Judiciary” and hence to create the constitution itself, in the name of interpreting the constitution. If this process of making the law, by this Hon’ble Court, by encroaching into the executive and legislative functions, without being accountable to the people of India, claiming that the people of India are not mature enough as a civil society is an affront to the nation as a whole, which has a history of oldest civilization in the world, having withstood the foreign invasions, conducted the independence struggle, as well as the ordeals of emergency to protect the democratic form of governance. This Hon’ble Court cannot ignore the fact that it itself is the offspring of the constitution, which is parented by the civil society of this nation. The way in which the people of India shall be governed shall be left to the people of India only, and not by the 5 judges, who assume themselves the tyranny of making the constitution, without any authority. Even if as a matter of hypothesis it is considered that this Hon’ble bench is most benevolent to the people of India, it amounts to dictatorship, may be benevolent dictatorship, as the power exercised by it is not accountable to the people of India or their elected representatives. In course of time, as the individuals change, it can even lead to most oppressive dictatorship, as well, to which even the present judges will be reeling, post-retirement. As the parliamentary democracy is the basic structure of the Constitution, as declared by this Hon’ble Court, in KesavanandaBharati v. the
State of Kerala (1973) Supp. SCR 1, the dictatorial sitting by this Bench is without authority and hence ultravires. The judiciary which appoints itself is not the ruler of the nation, neither as an executive, nor as the legislature. Any such effort is a mockery of the constitution and that of the people of the nation. The nation has experienced the fallibility of judiciary during the emergency and it was the civil society of the nation, which protected the democracy of the nation out of their valuable sacrifices. The process of judges appointing themselves, leading to nepotism and widespread inbreeding of progeny Judges Syndrome, coupled with assuming the executive and legislative
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137 powers, leads to the death of democracy and establishment of oligarchy. The independence, sovereignty and democracy of the republic and its people, earned by many sacrifices cannot be surrendered by the nation to a dictatorship, even if it is termed as judiciary under the shadow of judicial supremacy. The parliamentary democracy, being the basic structure of the Constitution, is not complimentary to the judicial supremacy, whereas both are antithesis to each other. Both cannot co-exist in a single nationhood. Hence this Hon’ble Court may refrain itself from venturing into law making effort. Hence the further sitting of this Hon’ble Bench without a cause of action, person aggrieved and locus standi, to venture into the legislative functions is ultra vires the constitution and hence in violation of the oath of office of the Hon’ble Judges, and hence this court was duty bound to refrain graciously from such venture, in the greater interest of nation. The Review Petitioners rely upon the following judgments in support of the
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138 above propositions.
a) b) c) d) e) f)
State of Kerala Vs. Mathai Varghese, AIR 1987 SC 33. Sukhdev Singh Vs. Union Territory AIR. 1987 P&H at Page 9. SulochanaAmmaVs. Narayanan Nair AIR 1994 SC 152 at page 156. Gauri Shankar Gaur Vs. State of UP. AIR 1994.SC, 169 at Page 177. Bharat HariSinghaniaVs. Commissioner of Wealth Tax, AIR1994 SC1355 at Page1365. H. ShivaRaoVs.CecilliaPereria, AIR 1987 SC 248 at Page 250.
PRAYERS
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to take recourse to the procedure of review and:
a) declare that the lead judgment and order dated 16th October, 2015 in W.P.(C) No.13 of 2015, so too the dissenting judgment of even date, passed by the Constitution Bench of this Hon'ble Court in the above Writ Petitions and PILs are unconstitutional and void inasmuch as the challenge on the Constitution (Ninetyninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 was not justiciable; that it involves no violation of anyone’s fundamental rights; that the Petitioners in the said PILs/Petitions have no locus standi to institute the same; that the PILs are wholly not maintainable; and further that the declaration in the lead judgment that the collegium system, which is the product of rewriting of the Constitution by the Nine-Judge Constitution Benches of the Supreme Court in Judges-2 and Judges-3 cases, as if the Court is the Parliament exercising its constituent power, nay, acting in substitution of the Parliament, is revived and it will effect appointment and transfer of Judges of
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139
b)
the Supreme Court and High Courts is unconstitutional and void; pass any such other order or orders/directions as this Hon’ble Court may deem fit and proper in the interest of justice.
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140 APPLICATION SEEKING A DECLARATION THAT THERE IS NO DELAY IN FILING THE INSTANT REVIEW PETITION 1.
The present review petition is in challenge of the common order and judgment dated 16.10.2015passed by this Hon’ble Court in WP (Civil). No. 13/2015 whereby the Constitution(99THAmendment) Act,2014 and National Judicial Appointments Commission Act,2014 were declared to be unconstitutional and void. 2. That the facts and grounds set out in Review Petition be read as a part of this application as the same are not repeated here for the sake of brevity. 3. The impugned judgment is dated 16.10.2015. The instant petitioners were not party to the said proceedings, nor served with any notice of the above while passing the impugned orders, even though it adversely effected their constitutional and legal rights, including their Fundamental Rights. They had only the information as reported by the media. Hence the petitioners had no avenue to challenge the same with the review petition proceedings, and approached this Hon'ble Court vide the writ petition No. 20/2017, which was dismissed by this Hon'ble Court, by order dated 30.12.2016, with the observation that the petitioners do have the option to seek the review of the above said judgment dated 16.10.2017, and hence this review petition is preferred. The said order is annexed as Annexure- P2 to the above reviewpetition( in page Nos. 81 to 93).The said order was uploaded to the site on25THJanuary,2017, and hence virtually, there is no delay in filing this review petition, in pursuant to the said order. 4. That the petitioner most humbly and respectfully submits that, there is no delay in filing the instant Review Petition. The lapse of days has occurred because of the circumstances supra. 5. That the petitioner most humbly and respectfully submits that there was no deliberate intention on his part in keeping quiet till this day and the same is only because of bonafide and genuine reasons and circumstances stated above. The petitioners most humbly and respectfully submits that he has a good case on merit in
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141 the Review Petition before this Hon’ble Court. 7. That the petitioners most humbly and respectfully submit that if this application is not considered, they will be put to irreparable loss, injuries, hardships and great injustice will be caused to him. PRAYER It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to :a) to declare that there is no delay in filing the Review Petition against the final Judgment and Order passed by this Hon’ble Court in WP (Civil). No. 13/2015. b) Without prejudice to the above prayer, to condone the delay of 470 days in filing the above review petition. c) Pass such other further order/orders as this Hon’ble Court may deem fit and proper in the interest of justice and in the facts and circumstances of the present case. AN APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPY OF THE IMPUGNED ORDER DATED 16.10.2017 IN WP(C) NO.13/2015 1. That the Petitioner has filed the accompanying review Petition against the common order dated 16.10.2015 passed by this Hon’ble Court in WP (Civil). No. 13/Court to refer to and rely upon the contents of the same as a part and parcel of this Application at the time of hearing, for the sake of brevity and economy. 2. It is submitted that the impugned order was passed by this Hon’ble Court on 16.10.2015. The said order and judgment is voluminous, running into 1040 pages and is reported by reputed citations. The citations are: 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. As the said judgment is widely reported, and further, running into more than 1000 pages, there is no practical purpose solved to reproduce the same, apart from making the instant review petition bulky, and causing avoidable financial burden and utility of precious resources.
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142 Hence the review petitioner may please be exempted from filing the copy of the impugned common judgment and order dated 16.10.2015, passed by this Hon'ble Court in WP(C).No.13/2015. PRAYER It is, therefore, most respectfully prayed that this Hon’ble Commission may graciously be pleased to : a) exempt the Petitioner from filing copy of the impugned common judgment and order dated 16.10.2015, passed by this Hon'ble Court in WP(C).No.13/2015; b) pass such other order or orders as this Hon’ble Commission may deem fit and proper under the facts and circumstances of the case. APPLICATION SEEKING HEARING OF THIS REVIEW PETITION IN THE OPEN COURT 1.
The Petitioner above named has filed the accompanying Petition seeking review of the judgment and order dated 16.10.2015 passed by this Hon’ble Court in W.P. (C) No.13/2015.
2.
The present review petition is in challenge of the common order and judgment dated 16.10.2015 passed by this Hon’ble Court in WP (Civil). No. 13/2015 whereby the Constitution(99TH Amendment) Act,2014 and National Judicial Appointments Commission Act,2014 were declared to be unconstitutional and void. That the facts and grounds set out in Review Petition be read as a part of this application as the same are not repeated here for the sake of brevity. The impugned judgment is dated 16.10.2015. The instant petitioners were not party to the said proceedings, nor served with any notice of the above while passing the impugned orders, even though it adversely effected their constitutional and legal rights, including their Fundamental Rights. Hence the petitioners had no avenue to take part in the above proceedings, nor was permitted to be heard in any meaningful way, and hence approached this Hon'ble Court vide the writ petition No. 20/2017, which was dismissed by this Hon'ble Court, by order dated 30.12.2016, with the observation that the petitioners do
3.
4.
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143 have the option to seek the review of the above said judgment dated 16.10.2017, and hence this review petition is preferred. The said order is annexed as Annexure- P2 to the above reviewpetition(in page Nos. 81 to 93). 5.
The Petitioners are constrained to file the instant Petition for the declaratory remedies sought for therein since the declaratory and mandatory remedies sought for in my Writ Petition instituted under article 32 were not considered at all. This Hon’ble Court heard the distinguished Counsels for the Petitioners in challenge of the 99th Constitutional Amendment and the NJAC Act to the full pleasure of their souls. The petitioners have no grievance on that count. They are the men of great learning, erudition, knowledge and experience. However in support of the NJAC, there were equally eminent celebrity Lawyers led by Attorney General. However, to err is human and the lesson which the history teaches us is that eminent men, even his holiness the Pope, the Arch Bishops and Chief Justices err and fail. It is said even the Homer nods at times. Errareest humanis todayreckoned to be a truth universally, even his holiness the Pope is fallible. The learned Attorney General, Solicitor General and the distinguished team of Lawyers with him, however erred, in my opinion, erred calamitously in failing to point out to this Court that the PILs in challenge of NJAC are not maintainable, thus, there exists no lis, the controversy is in the realm of legislative/ executive policies in the matter of selection and appointment of judges and that the question of this Court being invested upon a jurisdiction whether the wisdom of the parliament in bringing in Constitutional 99th Amendment and the NJAC Act to remedy the mischief arising out of the judges 2, judges 3 cases, which had meant re-writing of the constitution and providing for a mechanism of appointment of the judges of the Supreme Court and High Courts in a manner diametrically opposite to the manner in which it was provided for in the Constitution under Article 124 and 217. Since the petitioner’s rights were grossly involved, the Fundamental, Constitutional, legal and equitable as well, and the were not served with any notice to the above proceedings, and not allowed to be represented or defend themselves and their rights, as aforesaid, came to the petitioner’s notice and they ventured at my level best vide the petition no.WP(C) No.20/2017 to correct the aberrations caused to their rights. The whole hearing of the case has gone haywire and the core
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144 issue, the preliminary issue, the question as to the very maintainability of the WP, the very justciability of the issues, the very jurisdiction of this Court to decide whether or not the said Acts are constitutional, is lost sight of. The senior advocates who ventured into making the law of the land through the writ proceedings never ventured to point out quoting Horace “parturient montes, nasceturridiculusmus” - mountains are in labour and what is brought out is a ridiculous mouse. It was never pointedout relying on Anisminic Ltd v Foreign Compensation
Commission, [1969] 2 AC 147, [1969] 2 WLR 163,that the issue involved here is a jurisprudential question which is ‘going to’ the very jurisdiction and competence of the Court to embark upon the correctness or otherwise of the said acts which the parliament has enacted in exercise of its wisdom of which no one has complained of any violation of fundamental right and, thus, not justiciable. There were no meaningful venture to point out that the doctrine of impingement of the basic structure could be pressed into service only where fundamental rights are violated. If there is no plea that fundamental rights are violated, no question of invoking the doctrine of basic structure arises. KeshavanandaBharathi laid down a preposition that fundamental rights can be curtailed but it cannot be entirely emasculated or abrogated. The quintessence of the parity of the Constitution is primarily reaffirmation of the substantive law in the realm of a subject ‘right to life, liberties and freedom’. The doctrine of basic structure is not in the realm of substantive law. It is in the realm of adjectival law. Rule of law is in the realm of adjectival of law. You need an impartial, independent, just and fair justice delivery system, just laws and good Judges for the enforcement of remedies in the realm of substantive law, namely, preservation of life, liberty, freedom properties, estate, title, etc. This is how the humble Petitioner would in all humility beg to state to have understood the doctrine of basic structure. 6. The petitioners were unheard, and no notice were issued as well. A fair notice and hearing was denied to the petitioners and the petitioners believe that the general perception, so well rooted, that only celebrated Lawyers alone are heard to the cheer of their heart is true. Apart from some celebrated senior advocates,nobody was heard and in the deliberance on the merits of the case there is no whisper whatsoever about thecontentions of ordinary lawyers and the common people whom they represented
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145 at all, not even a word. The presiding Judge, while applying the guillotine while the junior advocates tried to make any representations and seeking to the senior advocates to harness the other advocates, were virtually throwing the rights of the common people, including the petitioners herein to the peril. The only way the injustice which has resulted in failing to afford the common men, including the instant review petitioners is to allow a fair hearing in the open court and in failing to take notice of this contention could be undone is to hear the petitioners in the open court. Hence the accompanying application for hearing the Review Petition in the open Court of the instant issue which is of transcendental, monumental and primordial importance. PRAYER It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to : a)
allow this Application and hear the accompanying Review Petition in open Court ; and
b)
pass any such other order or orders/directions as this Hon’ble Court may deem fit and proper in the interest of justice. APPLICATION FOR PERMISSION TO ENGAGE MR.MATHEWS J. NEDUMPARA AS ARGUING COUNSEL 1. The Petitioner above named has filed the accompanying Petition seeking review of the judgment and order dated 16.10.2015 passed by this Hon’ble Court in W.P. (C) No.13/2015.
2. The present review petition is in challenge of the common order and judgment dated 16.10.2015 passedby this Hon’ble Court in WP (Civil). No. 13/2015 whereby the Constitution(99TH Amendment) Act,2014 and National Judicial Appointments Commission Act,2014 were declared to be unconstitutional and void. 3. That the facts and grounds set out in Review Petition be read as a part of this application as the same are not repeated here for the sake of brevity. 4. The impugned judgment is dated 16.10.2015. The instant petitioners were not party to the said proceedings, nor served with any notice of the above while passing the impugned orders, even though it adversely effected their constitutional and legal rights, including their
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146 Fundamental Rights. Hence the petitioners had no avenue to take part in the above proceedings, nor was permitted to be heard in any meaningful way, and hence approached this Hon'ble Court vide the writ petition No. 20/2017, which was dismissed by this Hon'ble Court, by order dated 30.12.2016, with the observation that the petitioners do have the option to seek the review of the above said judgment dated 16.10.2017, and hence this review petition is preferred. The said order is annexed as Annexure- P2 to the above reviewpetition(in page Nos. 81 to 93). 5. The Petitioners are constrained to file the instant Petition for the declaratory remedies sought for therein since the declaratory and mandatory remedies sought for in my Writ Petition instituted under article 32 were not considered at all. This Hon’ble Court heard the distinguished Counsels for the Petitioners in challenge of the 99th Constitutional Amendment and the NJAC Act to the full pleasure of their souls. The petitioners have no grievance on that count. They are the men of great learning, erudition, knowledge and experience. However in support of the NJAC there were equally eminent celebrity Lawyers led by Attorney General. However, to err is human and the lesson which the history teaches us is that eminent men, even his holiness the Pope, the Arch Bishops and Chief Justices err and fail. It is said even the Homer nods at times. Errareest humanis todayreckoned to be a truth universally, even his holiness the Pope is fallible. The learned Attorney General, Solicitor General and the distinguished team of Lawyers with him, however erred, in my opinion, erred calamitously in failing to point out to this Court that the PILs in challenge of NJAC are not maintainable, thus, there exists no lis, the controversy is in the realm of legislative/ executive policies in the matter of selection and appointment of judges and that the question of this Court being invested upon a jurisdiction whether the wisdom of the parliament in bringing in Constitutional 99thAmendment and the NJAC Act to remedy the mischief arising out of the judges 2, judges 3 cases, which had meant re-writing of the constitution and providing for a mechanism of appointment of the judges of the Supreme Court and High Courts in a manner diametrically opposite to the manner in which it was provided for in the Constitution under Article 124 and 217. Since the petitioner’s rights were grossly involved, the Fundamental, Constitutional, legal and
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147 equitable as well, and the were not served with any notice to the above proceedings, and not allowed to be represented or defend themselves and their rights, as aforesaid, came to the petitioner’s notice and they ventured at my level best vide the petition no.WP(C) No.20/2017 to correct the aberrations caused to their rights. The whole hearing of the case has gone haywire and the core issue, the preliminary issue, the question as to the very maintainability of the WP, the very justciability of the issues, the very jurisdiction of this Court to decide whether or not the said Acts are constitutional, is lost sight of. The senior advocates who ventured into making the law of the land through the writ proceedings never ventured to point out quoting Horace “parturient montes, nasceturridiculusmus” - mountains are in labour and what is brought out is a ridiculous mouse. It was never pointed out relying on Anisminic Ltd v Foreign Compensation Commission, [1969]
2 AC 147, [1969] 2 WLR 163, that the issue involved here is a jurisprudential question which is ‘going to’ the very jurisdiction and competence of the Court to embark upon the correctness or otherwise of the said acts which the parliament has enacted in exercise of its wisdom of which no one has complained of any violation of fundamental right and, thus, not justiciable. There were no meaningful venture to point out that the doctrine of impingement of the basic structure could be pressed into service only where fundamental rights are violated. If there is no plea that fundamental rights are violated, no question of invoking the doctrine of basic structure arises. KeshavanandaBharathilaid down a preposition that fundamental rights can be curtailed but it cannot be entirely emasculated or abrogated. The quintessence of the parity of the Constitution is primarily reaffirmation of the substantive law in the realm of a subject ‘right to life, liberties and freedom’. The doctrine of basic structure is not in the realm of substantive law. It is in the realm of adjectival law. Rule of law is in the realm of adjectival of law. You need an impartial, independent, just and fair justice delivery system, just laws and good Judges for the enforcement of remedies in the realm of substantive law, namely, preservation of life, liberty, freedom properties, estate, title, etc. This is how the humble Petitioner would in all humility beg to state to have understood the doctrine of basic structure. 6. The petitioners were unheard, and no notice were issued as well. A fair notice and hearing was denied to the petitioners
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148 and the petitioners believe that the general perception, so well rooted, that only celebrated Lawyers alone are heard to the cheer of their heart is true. Apart from some celebrated senior advocates,nobody was heard and in the deliberance on the merits of the case there is no whisper whatsoever about the contentions of ordinary lawyers and the common people whom they represented at all, not even a word. The presiding Judge, while applying the guillotine while the junior advocates tried to make any representations and seeking to the senior advocates to harness the other advocates, were virtually throwing the rights of the common people, including the petitioners herein to the peril. The only way the injustice which has resulted in failing to afford the common men, including the instant review petitioners is to allow a fair hearing in the open court and in failing to take notice of this contention could be undone is to hear the petitioners in the open court. Hence the accompanying application for hearing the Review Petition in the open Court of the instant issue which is of transcendental, monumental and primordial importance. 7. The review petitioners are mainly advocates, mainly first generation, who have no godfathers in the system, and holding no special privilege as well, and the first review petitioner is the organization of the advocates spanning across the nation, who have come from their humble background. They are able to represent themselves, meaningfully, and is fully conversant with the issues in hand and legal provisions. Hence they may please be allowed to represent themselves, prosecute and argue the instant review petition in person and engage Mr. Mathews J.Nedumpara, the president of the review petitioner No.1 as an arguing Counsel. The petitioners have to institute the instant review petition as parties in person, since, not a single Advocate on record is willing to be engaged; even those advocates on records, who are great supporters of the NLC, its agendas, for they think, if they come in the open, accept the brief as the petitioners, and seem to be supporters of the campaign, they will be victimized. The petitioners refrain themselves from elaborating further for, it could mean stating something which is very unpleasant. Further, there is a conflict of interest of the cause with the petitioners/campaigners pursue, and that of the SCAORA. The advocate on Record stood for securing the collegium system in perpetuity, they were the petitioners and the respondents in the instant review petition, while the
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149 petitioners campaigned for the dismantling of the same as early as it could be, for they consider it to be undemocratic and a synonym of nepotism, oligarchy and inbreeding. 8. Hence, this Application. PRAYER It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to : a)
permit the review petitioners to engage Mr. Mathews J.Nedumpara, the president of the review petitioner No.1 as an arguing Counsel.; and
b)
pass any such other order or orders/directions as this Hon’ble Court may deem fit and proper in the interest of justice.
