AN OPEN LETTER TO THE HON’BLE PM, CJI, CHIEF JUSTICES OF THE HIGH COURTS, MEMBERS OF PARLIAMENT
Hon’ble Sirs and Mesdames,
1. When Hon’ble Justice Indu Malhotra was elevated as a judge of the Supreme Court of India, the undersigned, who is only too conscious of his insignificance, had an immense sense of happiness and joy. There is yet another instance where I was extremely jubilant, that was when the NJAC bill was introduced in the Parliament. Mrs. Indu Malhotra’s appointment came shortly after we had addressed a letter asking for greater representation of women in the Supreme Court and High Courts. The NJAC bill was tabled in the House a few days after we had met the Law Minister. Both these pleasant events happened not because of us. We probably had absolutely no role at all. I mention the above two incidents because the need for appointment of judges on the basis of merit, through an open mechanism, by inviting applications and by an independent agency, so too, appointment of greater number of women, not for the sake of tokenism, but on the basis of merit, has far greater relevance today.
2. Ten years before, when we formed the NLC and I said that Kesavananda Bharati and the so-called “basic structure theory” and the evolution of pro bono litigation into PIL and its off-shoot, the collegium, will destroy the judiciary, it was probably taken as an extreme statement, but not today. Our justice delivery system is at dire straits. The faith of the common people and in particular of the “general lawyer” (as the Supreme Court had chosen to refer to the common class of lawyers who cannot claim any great pedigree or clout) is facing a fast erosion. A large section of the common people, including lawyers, consider that the office of the judges of the Supreme Court and the Chief Justice and senior judges of the High Court has been reduced to an inheritable post. They can’t be blamed, because, except for Justices Ramana and Surya Kant, all future Chief Justices, probably till 2030 are the sons/nephews/daughters of the former judges of the Supreme Court or Governors.
3. Who could be the successor of Justice Indu Malhotra, a judge universally revered and loved for her independence, impartiality, erudition and affable manner. The names of Chief Justice Hima Kohli and Justice Nagarathna are seen in the papers. My guess is that Justice Hima Kohli will be elevated before Justice Nagarathna, but she will not be able to become the first woman Chief Justice of India, because many, junior to her in age, are already judges of the Supreme Court. Justice Nagarathna’s elevation as the first woman Chief Justice of India is almost a fait accompli if she is elevated to the Supreme Court now. Mrs. Justice Nagarathna is the daughter of the former Chief Justice of India, Justice E.S. Venkataramiah. Personally, I have nothing against Justice Nagarathna or any of the other judges who are the sons/nephews/daughters of the former judges of the Supreme Court of India becoming the Chief Justice of India based on their seniority reckoned from their date of appointment as a judge of the Supreme Court. However, that happening is nothing but cementing the public perception that the office of the judges of the Supreme Court has been reduced to an inheritable, hereditary public office. No amount of contempt power can suppress the said perception from taking deeper root with the exponential growth of social media and greater level of awareness thanks to the indiscriminate frequent use of the contempt power which belongs to the dark ages. I have often doubted if we even have a Law Minister at all. With the declaration of the lockdown which has rendered the institution of legal proceedings within the time prescribed by law impossible, legislative measures to undo the mischief was imperative. But the Law Minister did nothing, leaving no option for the Supreme Court but to assume the role of the legislature invoking Articles 141 and 142, which in its true sense does not confer any power of legislation.
4. In 2015, the Supreme Court, by quashing the NJAC substituted the will of the people with the opinion of a few judges. It said that the presence of the Law Minister in the collegium will impinge judicial independence. Nowhere else in the world, would the political executive have silently acquiesced such blatant invasion into the domain of the legislative/executive policy. But our Law Minister did nothing to undo the grave aberration. The Law Minister has been clueless of the emergent reforms, without which the justice delivery system of our country is doomed. They are:
a) To dismantle the collegium system and bring an end to the judicial dynasties, and instead select the judges solely based on merit by notification of the vacancies, inviting applications and to vest the process of selection and appointment in a truly independent body, where neither the political executive nor the judges have any primacy.
b) Enact laws providing for video recording of court proceedings and access to such records to the litigant public, lawyers and press.
c) Retrieving the independence of the Bar and providing an equal and fair playing ground for all lawyers by abolishing the system of judges designating lawyers as ‘senior advocates’ which has led to the total subordination and sycophancy of the bar to the bench.
d) Transfer of judges whose immediate relatives are practising in the very same High Court.
e) Abolition of the Contempt of Courts Act and restoration of the freedom of speech and expression.
f) Bring an end to the current practice of judicial pronouncements which involve no enunciation of any legal principle but are mere opinions being made binding on the entire country, who were not parties to the case, as “law of the land” and instead restore the concept of precedent as reason which has nothing to do with the strength of the multi member bench. If this principle, namely, reason being law, instead of numbers, which is the universal principle, which was buried post Kesavananda Bharati is brough back to life, the judgements which are contrary to the Constitution like the Judges-2 case will be confined to history, so too, bring an end to the clamour by a few “powerful” lawyers for the constitution of larger benches in the name of imaginary issues, converting the Supreme Court as their private property. If this mockery of Article 141 could be brought to an end, that would also mean the end of an era where nobody knows the law and a lawyer has to engage a battalion of juniors to search for it from not less than 10 lakh reported judgments.
g) Promote pro bono litigation for the enforcement of the fundamental and legal rights of a person aggrieved, who out of his poverty, illiteracy and like reasons cannot approach a court and abolish the practice of “public spirited” or publicity hungry persons assuming the role of the Attorney General, claiming themselves to be the sole repository of public interest and conduct litigation concerning the public as if their private case. Enact a class action law to promote public interest litigation in a representative capacity and to suppress the mischief.
h) Abolish the concept of absolute immunity which judges enjoy today, bring a statutory mechanism to deal with complaints against judges. Bring an end to the aberration of immunity from penal laws which the judgment in the case of K. Veeraswamy v. Union of India, 1995, meant to be, in as much as it was held that even if a judge commits a murder, no FIR can be registered and the criminal law cannot be set in motion without the permission of the Chief Justice of India.
i) Amendments to the Advocates Act to bring a more credible system of election, maintain the standards of the profession and discipline and also to ensure greater welfare of the lawyers, particularly of financial support for retired and disabled lawyers.
5. I have addressed umpteen times to Hon’ble the Prime Minister, the Chief Justice of India, Chief Justices of High Courts, the Hon’ble Law Ministers in the past. I do not deny that there has been some positive response. However, when it comes to concrete action, there is still much to be done. Today, I am more hopeful of positive action from all concerned because things which we voiced 10 years before and was received with hostility then, is widely accepted now. Today, nobody, at least in the public domain, are against video recording of court proceedings and making available such records to the litigant public. Today, there are no supporters at all for the collegium. I am a hundred times more optimistic and enthusiastic than I was 10 years before. I hope the Hon’ble Prime Minister of India, the Hon’ble Law Minister, the Hon’ble Chief Justice of India, Chief Justices of the High Courts will afford us an audience so that these reforms which are the dire need of the day, can become a reality. And in that unstinted faith, I remain.
MATHEWS J. NEDUMPARA
- January 31, 2023
- January 31, 2023
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