General Secretary, National Lawyers Campaign For Judicial Transparency And Reforms
Hon’ble Members of Parliament and State Legislatures,
Our constitutional democracy is founded on the principle that Parliament being the representative body of the people is Supreme. However, if a law enacted by the Parliament violates fundamental rights it is void being in violation of the very Constitution. There can be no dispute about it.
However, abusing the concept of judicial review and through a mechanism called PIL which is against the very fundamentals of jurisprudence the courts have trenched into the domain of the executive and legislature. And as a result in matters which are not even justiable at all , the courts decision has become final as if the court is an appelate authority over the Executive and Parliament.
The courts have no jurisdiction to intervene in matters of policy. Appointment of Judges is a matter of policy. Nobody’s fundamental or legal rights were involved. However, sadly, the much needed reform in judicial appointments came to be thwarted using the PIL as a ploy. The will of the people reflected by the unanimous assent of NJAC by both the houses of Parliament and ratification by 21 states came to be substituted by the opinion of 5 judges! The NJAC was declared unconstitutional.
What is most unbelievable and unfortunate is that the members of Parliament failed to respond to such a grave assualt on their domain. The members of Parliament did not react, may be because of partisan concerns or even of ignorance. Our MPs failed to understand that their silence and inaction even when the will of the people/Parliament was undermined in a manner difficult to be fathomed in the NJAC case, was nothing but gross acquiescence of the attack on the very foundations of our Parliamentary democracy.
PIL was pro bono litigation, for the enforcement of a poor man, say an undertrial whose liberty is violated. It is in the realm of enforcement of private rights. There was a person aggrieved, who was poor and illiterate. The real PIL- Petitioner was the poor man in jail. It is legal and constitutional. Nobody could be against it.
However, what was pro bono litigation has now become Public Interest Litigation. He claims no violation of his fundamental or legal rights. He even makes a declaration that none of his rights were infringed and he has no personal interest at all. He assumes the role of the Attorney General and insists that what he considers good in the public interest ought to be the law of the land or the decision of the government. He and the one or two judges on the bench decide what is good for the public. The public has no role whatsoever in the decision making. Could there be a greater anarchy than this? PIL is anti democratic, unconstitutional.
Of late, PIL has even taken a new avatar- Suo Motu PIL where the judges are suitors and judex( judges) both at once. It is against the very first principle of jurisprudence that no man can be a suitor or Plaintiff and the judge at the same time.
Today judges appoint themselves and they have appointed mostly only their kith and kin, so too of a few senior lawyers who all belong to a few dynasties. To keep the ordinary lawyers out of the profession the judges appoint their kith and kin as senior advocates.
The founding fathers with a view to make expeditious justice empowered the High Courts with writ power. Unfortunately, it has become a great bane. The Supreme Court dismisses writ petitions without affording a meaningful hearing by one line orders. Ambedkar said Article 32 is the soul and very heart of our Constitution. Today, Article 32 is literally being erased from the Constitution because it is available to the elite and super elite only. Articles 226 and 32 has destroyed our institution of judiciary because it has given the judges unlimited discretion. They are accountable to none. The law today is nothing but the whims and fancies of judges. The independence of the Bar has been absolutely destroyed. Today’s Bar leaders are sycophants who shamelessly, in the most servantile manner eugolise the judges for favors.
We formed NLC in 2010 under the leadership of Shri.Mathews J Nedumpara, in the above extremely unfortunate and painful scenario. It is the duty of the Hon’ble Members of Parliament and the Press and all those who love the country and in particular those who are genuinely concerned about the institution of judiciary to support the cause of the NLC, to work resolutely to bring about the much needed reforms.
Rohini Amin General Secretary, NLC