It is a matter of great disappointment and concern that the 9-judge Constitution bench of the Supreme court, headed by the hon’ble Chief Justice, was pleased to dismiss the petition of the NLC seeking the review of the judgment of the SC in SCAORA v Union of India, popularly known as the Judges 2 case, in which, by recourse to literal re-writing of the Constitution, the Collegium system of appointing judges was brought into existence. The Collegium system where judges appoint judges, which exists nowhere else in the world led to the widespread complaint that it has meant denial of equal opportunities in the matter of appoint to the august office of the HC and SC to the first generation lawyers, the sons and daughters of the common man. The universal complaint is that the kith and kin of the judges, their juniors, so too of big lawyers, powerful politicians came to be elevated to the bench, denying equal opportunities to equally, if not more, deserving first generation lawyers.
Both houses of the Parliament unanimously, with the sole exception of Ram Jethmalani, enacted the Constitutional (Ninety-Nine Amendment) Act, 2014 – the NJAC Act, paving way for a National Judicial Appointments Commission (NJAC), to replace the Collegium. Unbelievable though, the Constitution Amendment Act and the NJAC was struck down by the Supreme Court, holding that the said Constitution Amendment is contrary to the ratio of the Judges 2 case, a proposition which is manifestly untenable. It was in the above background that the NLC instituted a petition for review of the judgment in the Judges 2 case. The 9-judge Constitution bench however, dismissed the review petition of the NLC by its order dated 17.10.2019, rejecting the plea of the petitioners to hear the case in the open court on the ground of ‘delay as well as on the merits’ by a non-speaking order. The order of the Constitution bench contains only 6 cryptic sentences.
That there was a delay of 9017 days in filing the review petition has no foundation in law. The petitioners were not parties to the Judges-2 case of 1993. Ms. Thejas Philip, the fifth petitioner, was not even born when the Judges 2 case was rendered. The writ petition was not one instituted in a representative capacity. Even if it was so, the SCAORA could only be representating the members of the SC Bar Association and not the public at large. So far as petitioners 2 to 8, the citizens are concerned, they were not parties to the Judges 2 case. The judgement in question was not a judgment _in rem_ so as to be binding on those who were not parties, for it did not decide any question as to status, title, etc. It is not even a judgment _in personam_. It was a judgment rendered null and void, for the petitioners SCAORA did not assert violation of any legal or equitable rights, much less fundamental rights by the Constitution 99th Amendment Act. So far as the petitioners are concerned, since they are not parties to the proceedings, they are not bound by it. The doctrine of res judicata has no application. The validity of a judgement which is one rendered void ab initio ‘could be challenged whenever and wherever it is sought to be enforced’. To dismiss the review petition on the ground of delay was not an error which the Constitution bench could have committed.
The judgement does not at all speak a word about the reason why the review petition is not maintainable. In dismissing the NLC’s review petition, the SC has allowed to be lost, a golden opportunity to correct the judgement in the Judges 2 case; a great calamity.
‘Dripping water hollows out stone, not through force, but through its persistence’ – is an adage of great relevance. The NLC does not see the judgement as a setback, though very painful and disappointing. It will continue its effort for reforms through all constitutional and legal means.
The current Chief Justice of England, Lord Burnett of Maldon, was elected by a Judicial Appointments Commission upon an application which he preferred in furtherance of a notification inviting applications.
In many other countries also, the members of the higher judiciary are appointed through open selection. Open selection of judges is ‘an idea whose time has come, no army can stop it’. The NLC will continue it’s pursuit for open selection of judges and we are confident that it will become a reality, sooner than it is expected happen.
Mathews J Nedumpara