Petition for review of the judgment of this Hon’ble Court in W.P (c) no. 320 of 2023 preferred by the Petitioners under Article 137 of the Constitution of India.
Mathews J Nedumpara
08.04.2024
IN THE SUPREME COURT OF INDIA
Mathews J. Nedumpara & others. v. Union of India & ors.
The constitution does not provide for an intra court appeal of a judgment of the Supreme Court in its original jurisdiction. The only remedy for a litigant aggrieved by an unconstitutional, erroneous and unjust judgment or order of the Supreme Court in its original jurisdiction is a review under Article 137. However, Article 137 has, for all practical purposes, been rendered redundant, for a petition for review is not heard in the open court, but decided in chambers, a process, is a riddle wrapped in a mystery, inside an enigma, to borrow an expression from Winston Churchill. The Petitioners, however, are made to understand that in Prashant Bhushan v. ___, the question of the Supreme Court, by recourse to judicial legislation, providing for an appeal from the orders of the Supreme Court rendered in its original jurisdiction, is under the consideration of this Hon’ble Court. If that be the scenario, the instant petition is also required to be tagged with the said petition on the limited question of a litigant’s entitlement to at least one forum of appeal. Had review petitions been heard in the open court and had Article 137 not been reduced to a dead letter, the instant Petitioners would not have been constrained to press for an intra court appeal which could ideally be done only by legislation. The Petitioners consider that though the scope of review is limited in comparison to an appeal, justice would be done to them, provided the instant review petition is heard in the open court. The Petitioners would be filing an application for an open court hearing as soon as the petition is registered.
2. The Original writ petition in challenge of Section 16 and 23(5) was instituted by eight petitioners, six of whom are lawyers, and two who are common citizens who had occasion to approach the courts and tribunals for the vindication of their rights. They had to invoke the jurisdiction of this Court under Article 32 because Section 16, by creating two classes of lawyers, namely, Senior advocates and others and conferring the former with the right of pre-audience, impinges Article 14, 19 and 21 of the Constitution.
3. Petitioner no. 1 who has crossed 65 years and has been in the bar for 4 decades, considers it is sacred duty as a citizen and a senior member of the bar to contribute his mite towards reforms in judiciary. He does not at all consider it a misadventure, for what was condemned as heresy yesterday, could be the undeniable truth tomorrow. History offers umpteen examples. Slavery, apartheid, were all once held legal. The highest judicial tribunals of the western world upheld such draconian laws.
4. In the western countries, while it took decades and centuries for many an unjust law to be overruled, in India, judicial pronouncements of constitutional benches are overruled even before the ink had dried. The classic example is the judgment of the 9-judge bench of the Supreme Court in the Judges-2 case. While in the western world unjust laws were overruled for the better, that cannot be assuredly said for us. In the Judges-1 case, a 7-judge bench, in the opinion of the Petitioners’, rightly held that the word “consultation” employed in Articles 124 and 217 only mean consultation with the Chief Justice of India, Chief Justice of the High Court concerned, et al. and nothing more, and that the President shall appoint the judges on the advice of the Central Government. It is difficult to find any fault with the Judges-1 case. However, the correctness of the judgment was questioned by means of a petition under Article 32. It was entertained. A 9-judge bench was constituted and the Judges-1 case was overruled/reviewed and the collegium system came into existence.
5. The Petitioners make reference of the above not without reason. There is nothing wrong in law to challenge the validity of the judgment of the 7-judge bench in the Judges-1 case by a means of a petition under Article 32. The Petitioners are emphatic on that for more than one reason. Firstly, if great inequities and calamity were to arise as a result of a judgement of a bench of 7 or 9 judges, there is no mechanism under the constitution to correct the same, for there is no provision for intra court appeal or a meaningful mechanism of review, for there is no open court hearing. Secondly, the concept of precedent as embodied in Article 141 of the Constitution (as employed today) has the unfortunate effect of the public at large being bound by erroneous decisions of the Court in PILs where they were not heard.
6. The fundamental principle that a record of a Parliament is perpetual and binding on all because every citizen is symbolically present in the Parliament and every law it enacts is with the consent of all, and it can be amended or altered or repealed only by the Parliament, despite it being the first principle of jurisprudence, is forgotten and negated in practice. The equally fundamental principle that the judgment of a court is binding only between the parties and are not binding on those who are not parties and that what is binding as a precedent is a principle evolved by a court in resolving an issue before it where none existed or relied on and affirmed repeatedly, is also equally forgotten and negated. The judgments of the Courts are no longer precedents, but have become legislations.
7. The Petitioners have felt it necessary to deal with the fundamental principles as above because to do so is absolutely necessary for the proper understanding of the instant review petition.
8. The Petitioners swear by the fundamental principle that the Parliament alone has the power to enact laws binding on all citizens and that judicial pronouncements can only bind the parties before it. The supremacy of the Parliament is subject to only one restriction, namely, any law which the Parliament may enact, if it ultra vires the constitution, is void. In the state case, the Petitioners while swearing by the supremacy of the Parliament to enact law, plead that Sections 16 and 23(5) of the Advocates Act are void because it ultra vires the Constitution, being violative of Article 14, 19 and 21.
9. The National Lawyers’ Campaign for Judicial Transparency and Reforms (NLC), an NGO registered under the Maharashtra Public Trusts Act, along with a few lawyers and common citizens assailed Sections 16 and 23 (5) by way of a petition under Article 226 before the Delhi High Court, the case was admitted by the Court. however, while the said case was pending before the Delhi High Court, the Supreme Court ordered the same to be tagged along with a so-called PIL filed by Mrs. Indira Jaising. Mrs. Jaising did not challenge the validity of Section 16 and 23(5) of the Act. She could not have challenged it for she herself was a beneficiary of the impugned Sections.
10. Mrs. Jaising’s case was a curious one. She had no case that Section 16 and 23(5) are unconstitutional. She was not a person aggrieved. She certainly had no case that she was representing any lawyer or section of lawyers who out of their “poverty, illiteracy or other like reasons” could not have approached the Court themselves. Her petition, obviously, was wholly unmaintainable. One which fall in the realm of that of a busybody. Yet, this Hon’ble Court was pleased to entertain the said petition and went on to frame guidelines, for designation of Advocates as Senior Advocates, entering into the realm of legislation without even a disguise.
11. Petitioner no. 1 represented the National Lawyers’ Campaign (NLC) in the said case which came to be titled as Indira Jaising v. Supreme Court of India ((2017) 9 SCC 766). Petitioner no. 1, though raised the objection that the so-called PIL filed by Mrs. Jaising is not maintainable for she is not a person aggrieved at all, nor representing anyone who could be regarded as a person aggrieved and further that where the constitutionality of a statute is challenged, a court’s duty is to adjudicate upon it, namely, to hold it as constitutional or unconstitutional and nothing else, the plea went unheard. The judgment has neither recorded the said plea, much less considered it.
12. The judgment of this Court in Indira Jaising’s case of 2017 was an error of unthinkable ramifications. It unfortunately came to be “like whitewashed tombs, which look beautiful on the outside but on the inside are full of dead men’s bones and everything unclean”, to quote Christ. The said judgment was rendered void ab initio because the bench did not afford any meaningful hearing. The Petitioner no. 1 who had appeared in the said case as an arguing counsel was not given a proper hearing to put across his contention that the Section is ex facie discriminatory and violative of Article 14. In the Indira Jaising case of 2017, the bench indeed impliedly conceded that Section 16 and 23(5) are violative of Article 14. Otherwise, had it not been violative of the fundamental rights, what the court would have done is dismiss the plea and uphold the Section. In formulating the guidelines, there is an implicit acceptance that the Sections are unconstitutional.
13. The NLC, an NGO which the Petitioner nos. 1 and 2 have been spearheading since 2010, felt that great injustice has been caused to the first-generation lawyers, who constitute 90 percent, and the common litigants, for a provision which is ex facie discriminatory and unconstitutional has received the imprimatur of the Supreme Court. And that in a constitutional democracy such as ours, where the courts are empowered to strike down a law where it is ultra vires, Article 32 r/w Article 129 would provide a means of correction. Accordingly, W.P no. 191 of 2019, namely, National Lawyers’ Campaign for Judicial Transparency and Reforms v. Union of India, came to be instituted. However, this Court dismissed the said petition without any meaningful discussion on the merits of the case.
14. It is in the aforesaid circumstances that Petitioner no. 1, along with five lawyers and two litigants/common citizens, instituted the above Writ Petition (c) no. 320 of 2023, in the fond hope that the Supreme Court, by following the practice adopted in revisiting the Judges-1 case, namely to entertain a petition under Article 32, would revisit the judgments of this Hon’ble Court in Indira Jaising’s case of 2017 and National Lawyers’ Campaign (NLC) v. Union of India of 2019. In the judgment in NLC v Union of India 2019, there is hardly any discussion on the vires of Section 16 and 23 (5) of the Advocates Act. 14 out of the 15 paragraphs are entirely unrelated to cause before the Court, namely the vires of the aforesaid sections. The first 14 paragraphs are nothing but an attack on Petitioner no. 1.
15. As aforesaid, the record of the Parliament is perpetual and binding on all. The judgments of a court bind only the parties and none else. It is a fundamental principle of law that there is no estoppel against law, nay, law has no finality. It is said, the law in its real sense is the law as applied to a particular case and the rest is a myth. In reality, there is no distinction between law and judge, unfortunate though. However, all this is limited to the parties to a cause. When it comes to the public at large, persons who were not parties to the previous adjudication, there is no doctrine of estoppel, law is always liable to be revisited.
16. The Petitioners state so to suggest the least that settled propositions of law can be revisited every week like the change of roster. The precedential value of a judgment is not in the strength of the bench or the inter se majority on a proposition of law within the bench, but only reason. In other words, the sanctity of judicial pronouncements as precedent is entirely dependent on its acceptance among the lawyers, informed general public. Propositions of law which are repeatedly and repeatedly reaffirmed become settled principles of law.
17. The Supreme Court has rendered 3 judgements on the vires of Section 16 and 23(5) of the Advocates Act. The said judgments have absolutely failed to receive the acceptance of the overwhelming majority of lawyers, informed citizens and the public at large. It has gained the support of just a fraction of the legal fraternity, an elite class of dynasties of lawyers and judges. The grievance of the Petitioners, and in particular Petitioner no. 1 and 2 is that the Court did not afford a meaningful hearing to them/that section of the legal fraternity and public at large who feel that it is violative of their fundamental rights, a grievance based on their own personal experience. In an ideal world, lawyers and judges would be equal, both being servants (ministers) of justice.
18. The assertions by Petitioner nos. 1 and 2 that Section 16 and 23(5) are discriminatory are from their own personal experiences. The judgment of this Court, unless it is re-visited entails in great prejudice and jeopardy to the vast majority of lawyers who have no godfathers in the profession, so too, 99 percent of the litigant public, the ultimate victims of the said discriminatory provisions. The judgments of this Court of 2017, 2019 and 2023, do not, at all, address the injustice which the litigant public are made to undergo by virtue of the said sections which are ultra vires. There is not even a whisper, to say the least.
19. 80 percent of the legal fraternity is primarily practicing in the subordinate courts. The real talent which is not recognized is found in the subordinate courts. The discriminatory provisions certainly amount to a humiliation to them.
20. The impugned sections pose the greatest threat to the independence of the bar, without which a just, fair and independent justice delivery system is an impossibility. The Petitioners beg to state, without mincing words, that the system of judges designating lawyers as senior advocates, so too, the collegium where judges appoint themselves, have cut the independence of the bar at its very root. Sycophancy and servitude to the bench, today, is seen as the assured ticket to be anointed as a judge or designated as a senior. Competent, fearless, independent minded lawyers are put to great jeopardy in the current scheme of things. They are unjustly attacked, humiliated. Nothing could be more unfortunate than the current scenario.
21. That the legislature knows the needs of its own people and the laws enacted by it are in furtherance thereof, is a well settled principle of jurisprudence. Equally well settled is that sometimes the legislature may err and the law it enacts may impinge the constitution, nay, fundamental rights, as in the instant case. And that in such a scenario, judicial review will undoubtedly lie. Undoubtedly, there is a presumption of constitutionality, but it is a rebuttable one. The Parliament certainly did not at all conceive the mischief which the impugned sections would eventually cause. All, except the vested interests, have come against it in the open, including many eminent jurists and lawyers.
22. In all the three judgements referred above, including the judgement of which review is sought, the only issue of law which the court ought to have gone into, namely, whether there exists a cogent objective is sought to be achieved by the mandate of the Section 16 that “there shall be two classes of advocates”, a proposition which is unthinkable in the teeth of Article 14 and whether there exists a rational nexus with the “laudable” objective sought to be achieved. The very terminology employed in Section 16(1), namely, that there shall be “two classes of advocates” militates against Article 14, equality. The only objective the classification could achieve is to enable an privileged class of lawyers, the sons and nephews of judges, senior lawyers and prominent politicians, to be designated at a young age and to create a monopoly in their favour, cartelizing the legal profession and reducing it to an industry. It serves no other purpose.
23. It discriminates between lawyers who are equal in all respects and thus entitled to be treated alike. For instance, Petitioner no. 1, a lawyer with a standing of four decades is denied of his right of equal treatment when someone far junior and far less experienced and knowledgeable is designated as a senior. A lawyer should be reckoned and respected for his experience, knowledge and character by the litigant public, fellow lawyers and the bench. The idea of a lawyer making an application for designation, appearing for an interview for being conferred a distinction, makes a mockery of the very idea of seniority. The word seniority also has to do with age and experience. To designate a lawyer at the age of 34 or 37 years because they are the progeny of eminent lawyers is to do violence to the very term seniority and is an afront to the less privileged, but equally or more competent lawyers who have spent a life time at the bar.
24. The mandate of Article 14 is crystal clear, namely that the state shall not deny to any person equality before law or the equal protection of within the territory of India. The bar is absolute, but for an implicit exception, namely that if unequals were to be treated equally, that would violate Article 14. Article 14, therefore, permits classification, the sole purpose being to confer certain advantages, privileges, benefits or even exemptions to those who are underprivileged. Namely, the concept of affirmative action or positive discrimination, which is universally recognized. The concept of permissible classification which has a rational nexus to the objective sought to be achieved is a concept we have borrowed from the American jurisprudence. It was certainly within the competence of the Parliament to have enacted a provision which is beneficial for the underprivileged sections of the bar, namely, those belonging to SC/STs, those hailing from rural areas, who have had their education in the vernacular languages, so that they are better represented in the bar and the judiciary and could compete with others who are better placed. Section 16 does exactly the opposite. It makes the gap wider and gives greater benefit to the already privileged. This Hon’ble Court, in the judgment under review and in the previous cases concerning the validity of Sections 16 and 23(5), did not at all even record the plea of the Petitioners that the doctrine of presumption of constitutionality of a statute is not an absolute one but qualified. When the challenge is on the ground that no valid objective is sought to be achieved by the discriminatory provision, let alone a conceivable rational nexus to the objective, the burden of proof to plead and establish that the classification which the legislature has provided for is in furtherance of a valid and cogent objective is on the state. It was the duty of the Union of India to defend Section 16 stating in so many words the objective behind the classification under Section 16 (1) and how such a classification has a rational nexus to the objective to be achieved. When there is no valid objective to be achieved at all, the entire edifice based on which the discriminatory provision was justified in the judgment under review falls. Reliance is placed on the judgement of this Hon’ble Court in Shri Ram Krishna Dalmia and ors. v. Shri Justice SR Tendolkar and ors (1959 SCR 279), Maneka Gandhi v. Union of India ((1981) 1 SCC 722), D.S Nakara v. Union of India ((1983) 1 SCC 305) and In re Special Courts Bill, 1978, ((1979 2 SCR 476).
