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Blog 2021-06-16T12:46:43+00:00

Are not collegium a synonym for nepotism?

AN OPEN LETTER TO THE COLLEGIUMMay it please Your Lordships, I have come to know from the social media that the collegium of the Supreme Court of India has recommended Chief Justice Maheswari of the Karnataka High Court and Justice Sanjeev Khanna of the Delhi High court as judges of the Supreme Court. It was further reported that justice Sanjeev Khanna is the son of Justice Khanna and nephew of the legendary Justice HR Khanna who had the courage to hold that the right to life does not stand suspended on a declaration of emergency. Justice Khanna had to pay a great price for upholding the fundamental rights and independence of judiciary, in as much as Mrs. Indira Gandhi superseded him and appointed his junior M H Beg as Chief Justice of India. I have nothing against the elevation of hon'ble justices Maheswari and Khanna as judges of the Supreme Court. But what disturbs me is that based on the doctrine of seniority which the judges 2 case has held to be sacrosanct, Justice Khanna will become the 51st Chief Justice of India after justice Chandrachud, the office which his uncle had to sacrifice to uphold the impartiality and integrity of the judiciary, in a sense nothing but poetic justice. I said I am disturbed because the elevation of Justice Khanna would reduce the Supreme court of India, literally into the 'sons court of India'. As I scribble these lines, I find on my table a book titled 'God Save [...]

August 4th, 2021|0 Comments

Is it true that our legal system is founded on the premise that no court can do justice? (Read the arguments notes by Shri Nedumpara in challenge of Section 14 of the SARFAESI Act)

Brevity is the soul of wit, said Shakespeare. I would therefore like to keep the instant argument note as brief as possible. I do so for more than one reason.It is a travesty of justice that today in the 21st century when even jurisdictions other than civil law and common law countries have accepted the observance of the principles of natural justice fundamental, we in India increasingly trample the very first principles.The Petitioners, MSMEs were constrained to seek a declaration at the hands of this court that Section 14 of the SARFAESI Act which empower the Chief Metropolitan Magistrate/ District Magistrate to take forceful possession of a property of a borrower as unconstitutional because in gross violation of the fundamental principle of law that it is not necessary for the legislature to expressly state in every statute that the powers conferred upon an authority ought to be exercised observing the principles of natural justice since such an obligation ought to be read into the statute, the Magistrates across the width and breadth of the country order forceful taking of possession of a borrower's property without notice to him, nay, without hearing him.The obligation to observe the principles of natural justice is as old as the very classical Roman law itself, which is one of the principal sources of common law, which is the law of the land in terms of Article 372 of the constitution.The Roman lawyers considered the failure to observe the principles of natural justice as a grave [...]

August 3rd, 2021|0 Comments

Demolition of Maradu homes, who will tell the court that it went wrong?

Mathews J. Nedumpara I pen these few lines with great amount of pain and anguish. The Government of Kerala, in furtherance of an all party meeting convened by Shri Pinarayi Vijayan, Chief Minister of Kerala, engaged Shri Harish Salve, probably the highest paid lawyer in the country, to save 450 odd families of their homes, which were ordered to be demolished by a Bench of the Supreme Court headed by Hon'ble Shri Justice Arun Misra. The background of the case is fairly known to all. Stated in brief, the Supreme Court, in complete violation of the procedure contemplated under the Kerala Municipality Act read with the Kerala Panchayat Raj Act, appointed a Committee to report to it whether or not the CRZ-III norms are violated and ordered demolition of five world class apartment buildings within one month and report compliance. It appears that the Court failed to notice that the buildings were constructed years before and are in full occupation; that its order of demolition would render thousands homeless and that no Court is empowered to pass an order which will adversely affect those who are not party to the proceeding and, at any rate, without notice to them and without hearing them. In a situation as the instant one, where a Court has ordered demolition of five multi-storied buildings in a proceeding in which the flat owners were not parties, without notice to them and without hearing them, and the judgment thus rendered not being res judicata, not binding [...]

July 25th, 2021|0 Comments

“If the King was not above law, but under God and the law, the Master of the roster, the Chief Justice too is not above the law”

Mathews . J. Nedumpara 9820535428 A Division Bench of the Allahabad High Court dismissed with a cost of Rs. 20,000/- a petition by one Arun Misra as a 'party – in – person’ seeking a direction that certain Writ Petitions instituted by him shall not be listed before a particular judge. The order of the court is cryptic and it does not state what exactly is the factual matrix. All that is discernible from the order is that the petitioner had sought a direction to the Registry of the Court not to list cases filed by him before a “Particular Judge”.The order merely says that the Petition is misconceived because it is well settled that the chief justice is the master of the roster and it is his prerogative to decide by which judge or judges a case is to be heard, and therefore no direction could be issued to the Registry.Let me assume that the instant case of Arun Misra as petitioner is indeed a bad one and no order on the facts of the case could have been passed in his favor and his plea is liable to be rejected. Then also, it was imperative for the court to have stated the bare minimal facts. It appears that the Court rejected the plea of Arun Misra for the sole reason that since the Chief Justice is the master of the roster no orders could be passed as sought for. In other words, the court has absolutely no jurisdiction [...]

July 19th, 2021|0 Comments

There is no way to salvage our legal system unless and until we abandon the current practice of treating res judicata as precedent

Mathews J. Nedumpara98205 3542815.7.2021 There is no way to salvage our legal system unless and until we abandon the current practice of treating res judicata as precedent In this country, the distinction between the concept of res judicata and precedent is largely forgotten. As a result, a judgment of a superior court in a case between A and B, which may be erroneous but binding on the said parties, becomes binding on C and D, nay, on posterity as the law of the land. Often it is misconceived that every word of a judgment of a superior court is binding, the law of the land. Seldom is it realized that it is difficult to name even a single principle which never ever existed, which our Courts since independence have evolved, to be taken as a precedent. The common law principles which became settled law have been codified into statutes after the governance of India was taken over by the British Parliament by virtue of the Government of India Act, 1958. Statutes constitute to be the very core of our jurisprudence. A judgment may be relevant and useful for the annunciation of a principle. Precedent is a very useful concept, for what a precedent is, is a principle which a superior court has evolved where none existed for the resolution of an issue which was before it. When such a principle is repeatedly followed, it becomes a settled principle of which no deviation ought to be made unless there exist valid [...]

July 15th, 2021|0 Comments

Press Release issued in furtherance of the Press Conference held at the Chandigarh Press Club today at 12pm

Mathews J. Nedumpara10.7.2021 Demolition at Aravali In the PIL (Writ Petition no. 562 of 2021) instituted by 5 slumdwellers the Supreme Court ordered demolition of the shanties of the thousands of slumdwellers and to report compliance thereof within 6 weeks, and posted the case for reporting compliance on 27.7.2021. The order of the Supreme Court was one rendered void ab initio for the following reasons:a) in a Petition filed by merely 5 slumdwellers, at the best the court could have rejected the same, even with costs, but the Court had no jurisdiction to order demolition of the shanties of thousands of poor who were not before it. The court's order amounts to violation of the first principles of natural justice.b) by virtue of the notification of the Government of Haryana dated 10.2.2010 slums upto 1.4.2003 are entitled to regularisation/rehabilitation. The division bench of the Punjab and Haryana High Court in WP (c) no. 19910/2014 by order dated 25.4.2016 directed that the authorities shall hear the occupants individually and that they shall be afforded an opportunity to "produce the requisite materials in support of their claim to determine their eligibility" for rehabilitation. The authorities have not afforded the people an opportunity to establish their claim by supporting evidences like electricity bill, ration card, etc. The order of the bench of Justice Khanwilkar dated 7.6.2021 directing demolition of the structures within 6 weeks and reporting compliance abrogates their legal rights. If a slumdweller is able to establish that he was in occupation [...]

July 10th, 2021|0 Comments

Letter to the CJ of Bombay High Court- My Lords hear the slumdwellers before your Lordships order their eviction

Mathews J. NedumparaPresident, NLC7.7.2021 Hon'ble Mr. Justice Dipankar Datta,Chief Justice of the High Court of Judicature at Bombay May it please your Lordship Sub: Hearing of suo motu PIL- demolition of the shanties of slumdwellers- without there being a single slumdweller on the party array or any kind of representation on their behalf. What I came to notice from picking up today's newspaper is a report titled is "Is Government land executive's paternal property: CJ". The report by Times of India correspondent Rosy Sequeira goes on to say that the Hon'ble the Chief Justice criticized the policy of the successive governments in granting protection to the slumdwellers. To me, the said statement attributed to your Lordship was quite unbelievable. But I found Mr. Narsi Benwal of the Free Press Journal had come out with a nearly identical caption, "Governments acted as though state property was paternal property: HC. Court comes down heavily on past state govts; says played fraud on Constitution by tinkering with laws for slums". I still find it difficult to believe that your Lordship made such scathing comments, which on the face of it, I am afraid to say, is anti-poor.Sixty percent of the population of Mumbai live in slums or matchbox-like structures, without bare minimum amenities like toilets and clean drinking water. The legislature which represents the will of thr people, in its wisdom, to ameliorate their sufferings, enacted the Slum Act, protecting their shanties which otherwise would be labeled by the heartless and privileged as [...]

July 7th, 2021|0 Comments

Denial of bail to Fr. Stan Swamy-a dark event in India’s history

Mathews J. Nedumpara The denial of bail to Father Stan Swamy which has led to his incarceration and eventual death in a private hospital in Bombay still under judicial custody is one of the darkest incidents of denial of the fundamental freedom of life and liberty enshrined in our constitution. Even during the medieval days, the custody of a person accused was permissible only if the offences committed were so grave and such that if the person was at large he would not be available for trial and to undergo the punishment. Blackstone in his Commentaries of Laws of England has stated this position in great elaboration. He said the guilt of a man ought not be wrung out of him, and ought to be established by other men and means, a complete protection agaisnt self-incrimination. He further maintained that bail is a matter of right and can be denied only if the offender is likely to commit further crimes or is likely to flea justice. In India, in the 21st century, the protection against incarceration and self-incrimination which was the undeniable law of throughout the common law history, except for a few, is denied. The octogenarian, weak and sick Fr. Swamy ought not have been even arrested and no court should have remanded him to police/judicial custody. I have no words to condemn the injustice done to Fr. Stan Swamy. I believe the sufferings of Fr. Stan will not go in vain, and that the Prime Minister, the Home Minister [...]

July 5th, 2021|3 Comments

Nedumpara’s Letter to CJI seeking Justice for the slumdwellers of Aravali Hills

​To Hon'ble Mr. Justice NV Ramana,Chief Justice of India,Also to,Hon'ble Mr. Manohar Lal Khattar,Chief Minister of Haryana Sub: Demolition of the shanties of thousands of migrant laborers and urban poor, in the implementation of a judgement of the Supreme Court in purported PILs, rendered entirely behind their back. I have been on a campaign since 2010, when I first came to Bombay as a stranger, after being in the Bar for more than 25 years. It may appear strange to your Lordship, the campaign I started was for the "cry of the poor" to borrow an expression from Justice Krishna Iyer, to save them from the courts. The orders which the courts have passed in "public interest litigations" where none of the affected persons are parties, and where the court is the de facto suitor and the judge, both at once. In suo motu PILs, the undeniable fact that the Court acts as a suitor and a judge is evident without even a veil. More than 4 lakh people were rendered homeless in the year 1995 in Bombay, on the orders of the Bombay High Court rendered in PILs of Janhit Manch and BEAG. Before ordering eviction, even using an armed battalion, the court did not hear even one of the slum dwellers, the affected persons. Again, in the year 2004, the Bombay High Court acting on PILs to protect mangroves, ordered demolition of the shanties of thousands of slum dwellers. At Cuffe Parade, the shanties of thousands who had been [...]

July 3rd, 2021|2 Comments