Mathews J Nedumpara
Review of the judgement of the 9 judge constitution bench of the Supreme Court in Judges 2 case in 1993
The judges 2 case is of monumental significance so far as our very existence as a constitutional democracy is concerned. For those like my daughter, a young lawyer, my juniors and the thousands of young lawyers who dream of one day occupying the august office of the Chief Justice of India or a of a Judge of the Supreme Court or of a High Court, everything depends upon the decision of the court in the review. I say so because, today, a lawyer from a humble background, more competent and deserving than all his peers and thus eligible and entitled to be appointed as a judge of the High Court and eventually as the Chief Justice of India, if you expect that to happen, it is nothing but a day dream. So far as the common man is concerned it is his right that the most competent, eligible and deserving, occupy the seat of justice. But dream also is shattered. Because in a system where judges appoint themselves, the predominant qualification is your lineage, kinship and connections. If you are lucky to be born as a son of the former Chief Justice or son of a Supreme Court judge, your elevation as a judge of a high court on the turn of your forties is guaranteed. You can take it as your right of inheritance. If you are a son of a former Chief Minister or Governor, your chances are equally good. Whether you become the Chief Justice of India or become a senior judge who is part of the all powerful collegium which appoints judges depends upon the age at which you enter the judiciary. If you are appointed as a judge of the High Court below the age of 45, which privilege is exclusive to those born as sons/nephews of the former CJI’s/judges/Chief Minister’s/Governors.
The constitution does not provide for a collegium. It was created by judicial law making, nay, rewriting of the constitution in the name of interpretation. The reason offered was that judicial appointments be insulated from political interference, using the much abused tool of PIL. The collegium is, today, known as a synonym for nepotism. Even the proponents of the same, the “legal luminaries”, are shy of claiming its parentage. But for the acquiescence of the collegium by the executive, which too was under the control of the dynasties, the collegium system wouldn’t have ever come into existence or survived.
The Modi Government, by amending the constitution, paved way for NJAC, an independent judicial appointments commission. But it was aborted using PIL as a tool, crying from the rooftop that the independence of judiciary is at peril. I as President of the NLC, sought a declaration that the collegium is unconstitutional, that the 99th Constitution Amendment Act is constitutional, that the challenge on the NJAC is non-maintainable for no petition under Article 32 will lie unless violation of a fundamental right is complained of. I asserted in all humility, that if the so called PIL is maintainable, every citizen of the country is entitled to a notice and to be afforded an opportunity to be heard. Right to be heard cannot be the privilege of a few elite lawyers in the Supreme Court. But i was silenced because in the Supreme Court, the elite class who have been lawyers for generations, dominate. I have the support of the first generation lawyers who constitute to be 90% of the bar, who are voiceless in the Supreme Court.
The collegium will go, because it is unethical and unconstitutional. The review petition is a golden opportunity for the Supreme Court to correct its grave error, which it can no longer. We common people have a duty which we owe to ourselves, more than that to the posterity, namely, to fight against injustice.
Before i part with, while i place absolute faith in the 9 judge bench, headed by the Chief Justice, who have heard the NLC’s review (of which i am the second petitioner), i believe, adherence to the very first principles of natural justice, that nobody shall be a judge of his own cause, would require that the matter be heard by a bench of 9 benches or even of greater strength, who are not part of the collegium today or tomorrow. The doctrine of necessity has no application because the constitution of a bench of 9 judges or more without any one of the members of the bench being part of the collegium, either today or tomorrow, is possible. During the NJAC case, while providing a list of 11 judges who are not disqualified because of conflict of interest, i requested the members of the bench, including Justice Lokur and Kurien Joseph to recuse themselves, without saying so in so many words.
Our judges are noble men and women of infinite wisdom, erudution and sanguinity. I have the greatest of faith in their allegiance to the constitution and democratic values and in particular the freedom of speech and expression, which is our very birth right, which the constitution recognises as a fundamental right. I am sure the review petition will be admitted, heard in the open court and by a bench where none of the members are disqualified by conflict of interest. After all, judges are human beings like the rest of us and are not immune from the non-conscious, sub conscious and unconscious bias which even they fail to notice.