IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2014

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. OF 2014
IN THE MATTER OF
Mathews J. Nedumpara …PETITIONER
Versus
The Hon’ble Chief Justice of India & Ors. …RESPONDENTS
SYNOPSIS
The Petitioner is a citizen of India and has been practicing as a lawyer for the last three decades, initially in Kerala and currently focused at Mumbai. The Petitioner has all throughout been really pained to find that a mechanism called PIL, given birth by visionary Judges like Justices P.N. Bhagwati, Y.V. Chandrachud, V.R. Krishna Iyer et al, to make the absolute poor, “little Indians”, the Daridranarayanas, the bonded labourers, the blinded prisoners, Adivasis and the like, who out of their ignorance, illiteracy and indigence cannot access superior Courts for enforcement of their fundamental rights, to access justice through any person acting pro bono seeking the enforcement of their fundamental and legal rights being abused to as a means to decide issues in the public domain without notice to the public at large and without hearing them, so that self-appointed guardians of public interest could enforce their private views on matters of public law by making, at times, the Supreme Court and the High Court act in substitution of the legislature and executive and at times tearing off of even the very Constitution of India.
2. The judgments of the Supreme Court in Judges-2 and Judges-3 cases, the Petitioner believes, with utmost respect, meant literal tearing off of Articles 124 and 217 of the Constitution and paved way for a system unheard elsewhere in the world where Judges appoint themselves, namely, the collegium system in substitution of the mechanism designed by the Founding Fathers of the Constitution. Power corrupts and absolute power corrupts absolutely. The collegium system meant the removal of the concept of separation of power. The Petitioner considers the Judges of the superior Courts to be demi-Gods, worthy of greatest adulation and respect, but, at the same time, they too are humans and are fallible. In a system where Judges appoint themselves, in no time as predicted by Justice Krishna Iyer in 1994 soon after the judgment was pronounced that it would lead to an oligarchy, the Petitioner begs to submit that it indeed seems to have happened. The complaint against Indian judiciary, as echoed by Justice Krishna Iyer and late E.M.S. Nambootiripad; so too the study titled “Who are the Judges of the Supreme Court of India” by Glanvin Williams, an American author, is that there is very little diversity in the appointment of Judges of the superior Courts. The judgment in Judges-2 case literally meant no participation of the State Government; so too the Central Government, in the selection of Judges of the higher judiciary, which meant the selection confined to a small pool of sons, kith and kin of Judges, senior lawyers, and big law firms. The data collected by the Petitioner based on the bio data published by the various High Courts on their websites reveal that almost in entirety all appointments made below the age of 50 years are almost exclusively from the small pool consisting of sons, kith and kin of sitting and retired Judges and senior lawyers. For instance, in the Bombay High Court there are at present seven sitting Judges who are sons of former Judges of the same Court. They are Hon’ble S/Shri Justices V.M. Kanade, Anoop V. Mohta, S.C. Dharmadhikari, K.K. Tated, R.D. Dhanuka, N.M. Jamdar and N.W. Sambre. Sons of two former Judges of the Supreme Court are Chief Justices of High Courts. Sons and daughters of many former Judges of the Supreme Court and Chief Justices of High Courts adore the august office of the Judges of various High Courts. To the Petitioner’s knowledge, there is only one former Judge of the Supreme Court whose son, despite being in the eligible age range, remains to be a lawyer. The Petitioner salutes and worships him for not using his influence for elevation of his son.
3. In the judgments of the Supreme Court in Judges-2 and Judges-3 cases and Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273 there is manifestly an unacceptable proposition that when the Judges decide on administrative, nay, political issue, like appointment of a Judge of the Supreme Court or High Court, they are infallible. In Mahesh Chandra Gupta’s case (supra) it is said that when the executive appoints it could be fallible and there is room for judicial review, but when the Judges themselves appoint, though it is not said that the Judges are infallible, still the implication is that they are so because since the Judges take the decision there is no room for fallibility or judicial review.
4. It may be stated that this the second Writ Petition on the issue of appointment of Judges instituted by the Petitioner. The earlier Writ Petition, which is yet to be listed for hearing, was instituted when the Public Information Officer of the Supreme Court refused to disclose/furnish the minutes of the proceedings of the collegium concerning the elevation of Hon’ble Shri Justice Mohit S. Shah as a Judge of the Supreme Court. In the said Writ Petition the Petitioner has sought a declaration that the judgments of the Supreme Court in Judges-2 and Judges-3 cases are void, they being in conflict with Articles 124 and 217 of the Constitution; that the said constitutional provisions remain in the statute book in full force and that vacancies of Judges of the higher judiciary be advertised, applications from all eligible candidates be invited; so too recommendations and references from members of the Bar, Bar Associations, retired and sitting Judges, NGOs, political parties etc., and the public be informed of the candidates selected and opportunity be afforded to the public at large to raise objections, if any, and thus an open and transparent selection be made. While the said Writ Petition is pending, the Constitution (121st Amendment) Bill, 2014 and the National Judicial Appointment Commission Bill, 2014 were introduced and passed by the Parliament and the former Bill awaits ratification by States. The Petitioner absolutely supports the Bill. Yet he feels that the Bill is only a small measure in the right direction. The National Judicial Appointment Commission Bill contemplated gives too much of predominance to judiciary and there is very little or no say for the lay people. The Bill no way takes into account the views of the State Government. It is also absolutely silent about the need for notification of the vacancies of Judges, invitation of applications from eligible candidates and recommendations and references from all stakeholders. Yet the Bill is a welcome step; a welcome relief, and one single measure, namely, advertisement and open selection of Judges, which can be introduced without any constitutional amendment, will in itself bring an end to the current sad scenario where sons, kith and kin of Judges and senior lawyers almost corner appointments to the august office of the Judges of the higher judiciary. Open selection can be thought of at the High Court level as a first measure. The Petitioner considers PIL as a ravenous wolf in sheep’s clothing”, an expression often used by legendary Krishna Iyer. Instant is a Writ Petition of the Petitioner as an Advocate who is entitled to apply for judgeship and even if his application is to be rejected, he will have the satisfaction that the mechanism for selection of Judges is a fair one because all eligible can apply, which will bring greater diversity and subserve public interest.
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. OF 2014
IN THE MATTER OF
Mathews J. Nedumpara,
Adult, Indian Inhabitant,
residing at Harbour Heights, “W” Wing
12-F, 12th Floor, Sassoon Docks, Colaba,
Mumbai-400 005. … PETITIONER
Versus
1. The Hon’ble Chief Justice of India,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.
2. Hon’ble Shri Justice H.L. Dattu,
Judge, Supreme Court of India and
Member of Collegium,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.
3. Hon’ble Shri Justice T.S. Thakur,
Judge, Supreme Court of India and
Member of Collegium,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.
4. Hon’ble Shri Justice Anil R. Dave,
Judge, Supreme Court of India and
Member of Collegium,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.
5. Hon’ble Shri Justice S.J. Mukhopadhaya,
Judge, Supreme Court of India and
Member of Collegium,
Supreme Court of India,
Tilak Marg, New Delhi 110 001.
6. The State of Andhra Pradesh,
through its Chief Secretary,
Mantralaya,
Hyderabad.
7. The State of Arunachal Pradesh,
through its Chief Secretary,
Mantralaya, Itangar.
8. The State of Assam,
through its Chief Secretary,
Mantralaya, Dispur.
9. The State of Bihar,
through its Chief Secretary,
Mantralaya, Patna.
10. The State of Chhattisgarh,
through its Chief Secretary,
Mantralaya, Raipur.
11. The State of Goa,
through its Chief Secretary,
Secretariat, Panaji.
12. The State of Gujarat,
through its Chief Secretary,
Mantralaya, Gandhinagar.
13. The State of Haryana,
through its Chief Secretary,
Mantralaya, Chandigarh.
14. The State of Himachal Pradesh,
through its Chief Secretary,
Mantralaya, Shimla.
15. The State of Jammu and Kashmir,
through its Chief Secretary,
Mantralaya, Srinagar and Jammu.
16. The State of Jharkhand,
through its Chief Secretary,
Mantralaya, Ranchi.
17. The State of Karnataka,
through its Chief Secretary,
Mantralaya, Bangalore.
18. The State of Kerala,
through its Chief Secretary,
Mantralaya,
Thiruvananthapuram.
19. The State of Madhya Pradesh,
through its Chief Secretary,
Mantralaya, Bhopal.
20. The State of Maharashtra,
through its Chief Secretary,
Mantralaya, Mumbai.
21. The State of Manipur,
through its Chief Secretary,
Mantralaya, Imphal.
22. The State of Meghalaya,
through its Chief Secretary,
Mantralaya, Shillong.
23. The State of Mizoram,
through its Chief Secretary,
Mantralaya, Aizawi.
24. The State of Nagaland,
through its Chief Secretary,
Mantralaya, Kohima.
25. The State of Orissa,
through its Chief Secretary,
Mantralaya, Bhubaneshwar.
26. The State of Punjab,
through its Chief Secretary,
Mantralaya, Chandigarh.
27. The State of Rajasthan,
through its Chief Secretary,
Mantralaya, Jaipur.
28. The State of Sikkim,
through its Chief Secretary,
Mantralaya, Gangtok.
29. The State of Tamil Nadu,
through its Chief Secretary,
Mantralaya, Chennai.
30. The State of Tripura,
through its Chief Secretary,
Mantralaya, Agartala.
31. The State of Uttaranchal,
through its Chief Secretary,
Mantralaya, Dehradun.
32. The State of Uttar Pradesh,
through its Chief Secretary,
Mantralaya, Lucknow.
33. The State of West Bengal,
through its Chief Secretary,
Mantralaya, Kolkata.
34. The President,
Supreme Court Bar Association,
Supreme Court of India
Tilak Marg, New Delhi-110 001.
35. The Hon’ble Prime Minister of India,
Prime Minister’s Office,
South Block,
Raisina Hill,
New Delhi-110001.
36. The Attorney General for India
Office of the Attorney General,
Supreme Court Compound,
New Delhi.
37. The Hon’ble Union Minister for Law and Justice,
Office of Ministry of Law and Justice,
4th Floor, A-Wing, Shastri Bhawan,
New Delhi-110 001.
38. The Secretary,
Ministry of Justice,
Government of India,
Ministry of Law and Justice,
4th Floor, A-Wing, Shastri Bhawan,
New Delhi-110 001.
39. The Principal Secretary to
His Excellency, the President of India,
Rashtrapati Bhavan,
Raisina Hills, New Delhi.
40. Union of India,
represented by the Secretary in the
Department of Administrative Reforms &
Public Grievances, Union of India,
Department of AR & PG,
Sardar Patel Bhawan, Parliament Street,
New Delhi 110 001.
41. The Chairman,
Law Commission of India,
Law Commission of India,
14th Floor, Hindustan Times House
Kasturba Gandhi Marg,
New Delhi – 110 001. … RESPONDENTS
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA.
TO
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH
1. The Petitioner is a citizen of India and a lawyer, a very ordinary one, by profession who has enrolled himself as such in the year 1984 and has been in the profession for the last three decades. The Petitioner is also the President of National Lawyers Campaign for Judicial Transparency and Reforms, an organization which has been in existence for the last 10 years, a voluntary Association of lawyers from different parts of the country who are committed and dedicated themselves to the cause of greater transparency and reforms in judiciary. Being a public spirited lawyer, the politics of appointment of Judges to the higher judiciary has been of concern to the Petitioner and he has often been shocked, if not disheartened, to come to know at least the tip of the proverbial iceberg that the appointment of Judges is, “a riddle wrapped in a mystery inside an enigma” – if the Petitioner were to borrow an expression oft quoted by legendary Justice Krishna Iyer. The first occasion when the Petitioner as a young lawyer happened to have some inside story about judicial appointments is when Shri K.G. Balakrishnan, then a subject was made to resign from judicial service on being assured an instantaneous elevation as a Judge of the High Court of Kerala. For considerations which have nothing to do for finding out the right Daniel to occupy the Solomon’s chair, to borrow an expression used by Justice Ratnavel Pandian who authored the main judgment in Judge-2 case, Shri K.G. Balakrishnan was appointed as a Judge of the High Court of Kerala, who later became the Chief Justice of India and did a great disservice to the institution of judiciary with allegations of his son and son-in-law amassing huge wealth said to be by abusing their position as son and son-in-law of the CJI.
2. The Petitioner is dead against the jurisprudence of PIL as it is in practice today. The Petitioner has to file the instant Writ Petition which, though instituted in his personal capacity, still in many ways is a petition similar to the so-called PIL filed day in and day out in this Hon’ble Court and the various High Courts in the country, to undo the mischief caused by the judgments in Judges-2 and Judges-3 cases which belonged to the specie of a questionable jurisdiction called PIL. Since the public at large is made to believe that PIL is a God-sent jurisprudence where Judges are night errants, nay, angels, act as executive and legislature in substitution thereof and secure the prosecution of the corrupt, promote the welfare of the people, the Petitioner needs to explain what the jurisprudence called PIL as envisaged by legendary Judges like Bhagwati, Chandrachud, Krishna Iyer et al. Those great Judges did not visualize it as a jurisdiction where any self appointed champion of a public cause could act as if the Attorney General used to do in England and seek remedies in the realm of public law. Nobody has a right to institute a legal proceeding for enforcement of remedies in the realm of public law. It is a fundamental principle that what are legally enforceable are remedies which are in the realm of private law. A citizen can approach a Court for enforcement of the remedies available to him for the specific legal injury he has suffered. PIL as envisaged by the legendary Judges only meant that where a person whose constitutional and legal rights are infringed and who out of his poverty, ignorance, illiteracy etc. is unable to approach a constitutional Court, any person acting pro bono publico can, without any express authority from the person aggrieved, act on his behalf. In short, only the rigidity of the concept of locus standi was relaxed. But in a couple of years time, it meant NGOs, publicity interested individuals and other vested interests invoking the jurisdiction of PIL, knowingly or unknowingly making the High Courts and this Hon’ble Court act as executive and legislature, nay, in substitution thereof. Legendary Justice Krishna Iyer, aghast by the abuse of the jurisdiction called PIL, for the shaping of which he had a major role, lamented it as a “ravenous wolf in sheep’s clothing”, quoting Bible.
3. The judgments in Judges-2 and Judges-3 cases, which meant the tearing off of Articles 124 and 217 of the Constitution, is a product of the abuse of a jurisdiction called PIL. Now to undo that abuse, the Petitioner, someone who is absolutely uncomfortable with the concept of PIL, has to institute the instant Writ Petition, though not titled as PIL, but in many ways one instituted in public interest.
4. The Petitioner had instituted Writ Petition on 08.08.2014 bearing D.No.25926/2014 before this Hon’ble Court when the Public Information Officer of this Court refused to furnish to him information concerning elevation of Hon’ble Shri Justice Mohit S. Shah, Chief Justice of High Court of Judicature at Bombay, as a Judge of the Supreme Court. A copy of the application dated 15.02.2014 to the Public Information Officer of the Supreme Court is produced as ANNEXURE-P1 (at page to ). Copy of the reply dated 24.03.2014 received from the Public Information Officer is produced as ANNEXURE-P2
(at page to ).
5. The reason why the Petitioner had to prefer the application (Annexure P1) was the rumour that the collegium of the Supreme Court of India considered the proposal to elevate Hon’ble Shri Justice Mohit S. Shah as a Judge of the Supreme Court and some of the members of the collegium consisting of the Hon’ble Chief Justice of India and four seniormost judgers found Hon’ble Shri Justice Mohit S. Shah to be not fit for elevation and further that the collegium has made certain observation which, if true, would render continuation of Hon’ble Shri Justice Mohit S. Shah as Chief Justice of the Bombay High Court detrimental to public interest, for if the purported observations of the collegium is true, it would seriously dent public confidence in Hon’ble Shri Justice Mohit S. Shah as Chief Justice of the Bombay High Court. The Petitioner has nothing against Hon’ble Shri Justice Mohit S. Shah, but he having come to know His Lordship’s proximity to certain persons against whom the State Police/CBI has registered cases for acting or claiming to be acting as a conduit of Judges brought the said fact to the notice of the then President of India, Chief Justice of India and other high constitutional functionaries with a request to make a discreet inquiry, which the Petitioner did as his solemn duty to the institution of judiciary he as a lawyer owes.
6. The Public Information Officer, as aforesaid, having declined to give the information sought for, the Petitioner instituted Writ Petition in the High Court of Kerala. However, he did not pursue it because he felt that it would be more appropriate to institute a Writ Petition before this Hon’ble Court, the reason being that besides challenging the order of the Public Information Officer, he could canvass two important remedies. To state very briefly, one of the important remedies sought for was a declaration that the judgments in Judges-2 and Judges-3 cases are void, for it meant no interpretation or construction of the constitutional provisions, but far from that they meant total tearing off of Article