Collegium system of appointment of judges

IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. OF 2022
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
SHRI MATHEWS J. NEDUMPARA & ORS. PETITIONERS
VERSUS
THE HON‟BLE CHIEF JUSTICE OF INDIA AND ORS. RESPONDENTS
WITH
I.A. NO. OF 2022
APPLICATION FOR PERMISSION TO APPEAR AND ARGUE IN THE
ABOVE MENTIONED WRIT PETITION FILED BEFORE THIS
HON’BLE COURT AS PARTY IN PERSON
PAPER BOOK
(KINDLY SEE INDEX INSIDE)
SHRI MATHEWS J. NEDUMPARA & 7 ORS.:
PETITIONERS IN PERSON
RECORD OF PROCEEDINGS
S.NO. RECORD OF PROCEEDINGS PAGE NO.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
INDEX
S.
No.
Particulars of Documents Page No. of part to which it
belongs
Remarks
Part I
[Contents of
Paper Book]
Part-II
[Contents of
file alone.
[i] [ii] [iii] [iv] [v]
E-Court Fee
1 Listing Performa. ‘A1-A3’ `A-A1’
2 Cover page of Paper Book A-2
3 Index of Record of
Proceedings
A-3
4 Defect List A-4
5 Note Sheet NS 1 to
6 Synopsis & List of Dates B-C
7 Writ Petition with Affidavit. 1-49
8 ANNEXURE P-1
A true copy of the
objectives of the National
Lawyers‟ Campaign for
Judicial Transparency &
Reforms, Mumbai,
Maharashtra dated
31.03.2014.
50-52
9 ANNEXURE P-2
A true copy of the
Telegraphic Letter for the
Attention of PM issued by
the National Lawyers
Campaign for Judicial
Transparency and Reforms
dated 29.04.2018.
53-56
10 ANNEXURE P-3
A true copy of the Letter
dated 31.08.2018 submitted
by the National Lawyer‟
Campaign, Mumbai,
Maharashtra.
57-58
11 ANNEXURE P-4
A true copy of the Letter
dated 05.09.2020 issued by
the National Lawyers
59-64
Campaign for Judicial
Transparency and Reforms.
12 ANNEXURE P-5
A true copy of the Progeny
Chart – Judges of the
Hon‟ble Supreme Court of
India, issued by the National
Lawyers‟ Campaign for
Judicial Transparency and
Reforms, Mumbai,
Maharashtra dated
06.06.2022.
65-70
13 I.A. NO. OF 2022
Application for permission
to appear and argue the
above mentioned Writ
Petition filed before this
Hon‟ble Court as Party in
Person.
71-74
14 ANNEXURE A-1
A true copy of the
Aadhar Card bearing
No. 2979 5739 1137 of
the Petitioner in Person
No. 1.
75
15 ANNEXURE A-2
A true copy of the
Aadhar Card bearing
No. 9377 1660 6859 of
the Petitioner in Person
No. 2.
76
16 ANNEXURE A-3
A true copy of the
Aadhar Card bearing
No. 4607 2081 1026 of
the Petitioner in Person
No. 3.
77
17 ANNEXURE A-4
A true copy of the
Aadhar Card bearing 78
No. 8120 9032 1274 of
the Petitioner in Person
No. 4.
18 ANNEXURE A-5
A true copy of the
Aadhar Card bearing
No. 8634 9836 9864 of
the Petitioner in Person
No. 5.
79
19 ANNEXURE A-6
A true copy of the
Aadhar Card bearing
No. 9325 2738 7697 of
the Petitioner in Person
No. 6.
80
20 ANNEXURE A-7
A true copy of the
Aadhar Card bearing
No. 8951 0047 9062 of
the Petitioner in Person
No. 7.
81
21 ANNEXURE A-8
A true copy of the
Aadhar Card bearing
No. 5281 1054 7535 of
the Petitioner in Person
No. 8.
82
22 ANNEXURE A-9
A true copy of the
Special Power of
Attorney dated
09.11.2022 executed
between all the
Petitioners herein.
83-86
22A Letter 86A-86D
23 Memo of Appearances 87-94
24 F/M 95
PROFORMA FOR FIRST LISTING
SECTION
The case pertains to (Please tick/check the correct box)”
Central Act: (Title) Constitution of India
Section: Article 32 of Constitution of India.
Central Rule: (Title): NA
Rule No(s): NA
State Act: (Title) NA
Section: NA
State Rule: (Title) NA
Rule No(s): NA
Impugned Interim Order: (Date) NA
Impugned Final Order/Decree: (Date) NA
High Court: (Name) NA
Names of Judges: NA
Tribunal / Authority: (Name) NA

Name of Matter:
√
Civil Criminal
(a) Petitioner/Appellant No. 1: SHRI MATHEWS J.
NEDUMPARA & ORS.
S (b) E-mail ID: mathewsjnedumpara@gmail.com
(c) Mobile Phone Number: 9820535428, 9447165650
(a) Respondent No. 1: THE HON‟BLE CHIEF JUSTICE
OF INDIA AND ORS.
(b) E-mail ID: NA
(c) Mobile Phone Number:
(a) Main category classification: 18 Ordinary Civil Matter
1807 Others
(b) Sub classification: 18 Ordinary Civil Matter
1807 Others
Not to be listed before: NA
Similar / Pending matter:
(a) No similar matter is disposed of before this Hon‟ble Court.
(b) No similar matter is pending before this Hon‟ble Court.
Criminal Matters:
(a) Whether accused / convict
has surrendered Yes No
(b) FIR No. NA Date: NA
(c) Police Station: NA
(d) Sentence Awarded: NA
(e) Sentence Undergone: NA
Land Acquisition Matters: NA
(a) Date of Section 4 notification: NA
(b) Date of Section 6 notification: NA
(c) Date of Section 17 notification: NA
Tax Matters: State the tax effect: NA
Special Category:
(First petitioner/appellant only)
NA
Senior
citizen > 65
Years
SC/ST Woma
n/child
Disabled Legal
Aid Case In custody
Vehicle number (in case of Motor Accident Claim
matters):
NA
Place:
Date:
New Delhi
07.11.2022 MATHEWS J. NEDUMPARA
Petitioner in Person No. 1
E-Mail: mathewsjnedumpara@gmail.com
SYNOPSIS
The instant Petition is filed for a declaration that the collegium system of
appointment of judges has resulted in the denial of equal opportunity for the
Petitioners and thousands of lawyers who are eligible, meritorious and who
deserve to be considered. A mechanism in substitution of the Collegium is the
need of the hour. The Petitioners have made repeated representations to the
Government to bring about the requisite mechanism. However, nothing concrete
has taken shape. Moreover, rather than the Government, it is for the Hon‟ble
Supreme Court itself to correct the error caused in creating the Collegium and in
quashing the National Judicial Appointments Commission Act. Hence the
instant writ petition under Article 32 of the constitution.
LIST OF DATES AND EVENTS
1993 Collegium came into existence by virtue of a judgment of 9 Judge
Constitution Bench of the Hon‟ble Supreme Court of India, New
Delhi.
2014 The Parliament by amending the Constitution and simultaneously
enacting NJAC Act of 2014 sought to substitute Collegium by
NJAC.
16.10.2015 A Five Judge Constitution Bench of the Supreme Court of India
declared the 99th Constitutional Amendment Act and the NJAC Act
as unconstitutional and thereafter revived the Collegium. Since
then, the appointment and transfer of the judges of the Supreme
Court and the High Courts is at the hands of the Collegium which
has resulted in denial of equal opportunities for the Petitioners and
thousands of Lawyers who are eligible, meritorious and who
deserved to be considered.
07.11.2022 As a corrective action a Petition under Article 32 of the
Constitution of India is probably the only remedy.
Hence the instant Petition.
IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. OF 2022
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
SHRI MATHEWS J. NEDUMPARA
ADVOCATE,
101, 1
ST FLOOR, GUNDECHA
CHAMBER, NAGINDAS ROAD,
FORT MUMBAI-400001,
MAHARASHTRA. PETITIONER NO. 1
ROHINI MOHIT AMIN
ADVOCATE, HIGH COURT OF BOMBAY
B-705, NIRMAN APARTMENTS, R.J
MARG, PUMP HOUSE, ANDHERI
EAST, MUMBAI,
MAHARASHTRA-40009. PETITIONER NO. 2
MARIA NEDUMPARA
ADVOCATE
12-F, HARBOUR HEIGHTS,
COLABA CAUSEWAY, MUMBAI,
MAHARASHTRA-400005. PETITIONER NO. 3
RAJESH VISHNU ADREKAR
ADVOCATE
401, D-14, YOGI VARDHAN CHS,
YOGI NAGAR ROAD, YOGI NAGAR,
BORIVILI WEST, MUMBAI-400092,
MAHARASHTRA. PETITIONER NO. 4
HEMALI SURESH KURNE,
ADVOCATE
28-A WING, SHUBH SHAGUN BUILDING,
RISHIKESH CHS LTD., SECTOR-34,
MANSAROVAR, NAVI MUMBAI-410209,
MAHARASHTRA. PETITIONER NO. 5
1
6.

2
SHARAD VASUDEO KOLI,
ADVOCATE
68-1/1, GOLPHADEVI COLONY,
WORLI VILLAGE, MUMBAI-400030,
MAHARASHTRA. PETITIONER NO. 6
KARAN KAUSHIK
3, NUGGET, 18TH ROAD,
KHAR WEST, MUMBAI-400052,
MAHARASHTRA. PETITIONER NO. 7
MANISHA NIMESH MEHTA
CHARTERED ACCOUNTANT
1905, ROSELLA, PANT NAGAR,
GHATKOPAR, MUMBAI-400075,
MAHARASHTRA. PETITIONER NO. 8
VERSUS
THE HON‟BLE THE CHIEF JUSTICE OF INDIA,
SUPREME COURT OF INDIA,
TILAK MARG, NEW DELHI-110001. RESPONDENT NO. 1
THE COLLEGIUM OF THE HON‟BLE JUDGES
OF THE SUPREME COURT OF INDIA
REPRESENTED BY THE HON‟BLE
THE CHIEF JUSTICE OF INDIA,
SUPREME COURT OF INDIA.
NEW DELHI-110001. RESPONDENT NO. 2
SECRETARY GENERAL,
SUPREME COURT OF INDIA
TILAK MARG, NEW DELHI-110001. RESPONDENT NO. 3
UNION OF INDIA
THROUGH ITS SECRETARY,
DEPARTMENT OF LEGAL OF AFFAIRS
MINISTRY OF LAW AND JUSTICE
4
TH FLOOR, A-WING, SHASTRI BHAWAN,
NEW DELHI-110001. RESPONDENT NO. 4

PRINCIPAL SECRETARY
TO THE PRIME MINISTER
PRIMER MINSTER‟S OFFICE,
7 LOK KALYAN MARG,
NEW DELHI. RESPONDENT NO. 5
INDIAN NATIONAL CONGRESS
THROUGH ITS NATIONAL PRESIDENT
24, AKBAR ROAD,
NEW DELHI. RESPONDENT NO. 6
BHARTIYA JANATA PARTY
THROUGH ITS NATIONAL PRESIDENT,
B.J.P. HEAD QUARTERS
DEEN DAYAL UPADHYAY MARG,
NEW DELHI. RESPONDENT NO. 7
COMMUNIST PARTY OF INDIA
THROUGH ITS GENERAL SECRETARY,
AJOY BHAVAN, 15,
INDRAJIT GUPTA MARG,
NEW DELHI-110002. RESPONDENT NO. 8
STATE OF MAHARASHTRA
THROUGH ITS CHIEF SECRETARY,
MANTRALAYA, MUMBAI-400032,
MAHARASHTRA. RESPONDENT NO. 9
STATE OF KERALA
THROUGH ITS CHIEF SECRETARY,
THIRUVANANTHAPURAM, KERALA. RESPONDENT NO. 10
STATE OF TAMIL NADU
THROUGH ITS CHIEF SECRETARY,
FORT ST. GEORGE, CHENNAI,
TAMIL NADU. RESPONDENT NO. 11
STATE OF UTTAR PRADESH,
THROUGH ITS CHIEF SECRETARY,
SECRETARIAT LUCKNOW,
UTTAR PRADESH. RESPONDENT NO. 12
AAM AADMI PARTY
THROUGH ITS PRESIDENT
206, ROUSE AVENUE,
DEEN DAYAL UPADHYAY MARG,
ITO, NEW DELHI-110002. RESPONDENT NO. 13
TRINMOOL CONGRESS
THROUGH ITS CHAIRPERSON
30B HARISH CHATTERJEE STREET,
KOLKATA, WEST BENGAL-700026. RESPONDENT NO. 14
WRIT PETITION FILED UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA
TO
THE HONOURABLE THE CHIEF JUSTICE
OF INDIA AND HIS COMPANION
JUSTICES OF THE SUPREME COURT
OF INDIA
HUMBLE PETITION OF THE PETITIONERS
IN PERSONS ABOVE NAMED
MOST RESPECTFULLY SHEWETH:
The instant petition is instituted by the Petitioners for the enforcement of
their fundamental and legal rights. The Petitioner Nos. 1 to 6 are
practicing advocates, the first Petitioner being in the bar for almost 40
years, and the Petitioner No. 2 for over two decades. Petitioner No. 7 is
an entrepreneur. The Petitioner No.8 is a Chartered Accountant and a
woman entrepreneur who has attained great accolades and recognition
even at international levels. Petitioner nos. 7 & 8 having had to knock the
4
doors of the courts for justice and having personal knowledge and
experience of the deficiencies of the system, have a genuine and real
stake in the instant petition seeking radical reforms in judiciary.
The instant petition is primarily a challenge to the collegium system of
appointment and transfer of judges. The Chief Justice of India is the head
of the Collegium and in so far as the appointment and transfer of judges
are concerned, he/she is the most important person. The Petitioners would
have liked to avoid arraying the Chief Justice of India as a Respondent
out of sheer respect to the high constitutional office of the Chief Justice
of India. However, if the Petitioners had refrained from doing so, that
would render the petition defective, given that a necessary party, the
Chief Justice of India, not being on the party array. The fact that in SP
Gupta‟s case, the then Chief Justice, Justice Y. V. Chandrachud entered
appearance through an advocate and even filed an affidavit, is itself a
momentous statement that all authorities, howsoever high, are not above
law. The Collegium headed by the Chief Justice of India ordinarily
consists of five judges including the CJI and 4 senior-most puisne judges.
However, the Petitioners are made to understand that in terms of the
judgment of the Supreme Court in the presidential reference of 1998,
popularly known as the Judges-3 case, that if none of the four senior-most
judges of the collegium are likely to succeed the incumbent CJI on his
5
retirement, then the senior most judge who is likely to be appointed as the
next CJI would also be part of the extended collegium. Since none of the
judges who are part of the 5-member collegium to be headed by the incoming Chief Justice, D.Y. Chandrachud would succeed him as the Chief
Justice of India, Justice Khanna who is expected to succeed justice D.Y.
Chandrachud would be part of the collegium to be headed by D.Y.
Chandrachud as its sixth member!
Going by the fundamental principle of jurisprudence that all persons
against whom relief is sought and whose presence is necessary for a just
and proper adjudication of the lis be made party to the proceedings, all
the judges who form part of the collegium to be headed by Justice D.Y.
Chandrachud are required to be made parties to the instant petition.
However, the Petitioners feel that it would suffice to crave for the leave
of this Hon‟ble Court to bring on the party array the judges who are part
of the collegium, if so deemed necessary.
The Secretary General being the senior most ministerial office in the
hierarchy of officers in the Supreme Court, he is a proper, if not
necessary party to the proceedings. The Principal Secretary to the Prime
Minister is a necessary party. The Petitioners have arrayed some of the
important political parties and a few of the State Governments, the
6
remaining State Governments can be arrayed after the Petition is
admitted, with the leave of this Hon‟ble Court.
Ever since the judgment of this Hon‟ble Court in Supreme Court
Advocates on Record Association (SCAORA) v. Union of India, (2016) 5
SCC 1, came to be pronounced, the Petitioners, particularly, Petitioner
No. 1, have been consistently making representation after representation
to the Hon‟ble Prime Minister, Law Minister, as well as the leaders of the
various political parties, namely, BJP, Congress, Nationalistic Congress,
YSR Congress, Biju Janta Dal etc., pleading that the National Judicial
Appointments Commission (NJAC) is the will of the people, the
Constitution (Ninety-ninth Amendment) Act, 2014, and the National
Judicial Appointments Commission (NJAC) Act, 2014, having received
the unanimous assent of both houses of the parliament (except for the
lone dissenting vote of Shri Ram Jethmalani) and the assent of the 21
state assemblies, that the appointment and transfer of judges which falls
in the exclusive province of the legislative and executive policy, was not
justiciable at all, and that therefore, it is incumbent upon the Government
and the opposition to restore the NJAC and to take all such steps that are
required. It may not be in the fitness of things to personally array the
Prime Minister, though the same offers no legal bar.
7
Respondent Nos. 6 to 14 are arrayed on the party array because
appointment and transfer of judges is of equal concern to the State
Governments as much as the Central Government and of the Opposition
and Regional parties as much as the ruling party at the Centre.
LOCUS STANDI OF THE PETITIONERS
The first Petitioner enrolled in the year 1984, is aged 64 years and is still
eligible for consideration of appointment to the office of the judge of the
Supreme Court of India or even the Chief Justice of India along with
hundreds if not thousands who are equally eligible but are denied the
opportunity because there does not exist any open and transparent system
of selection and appointment of judges. This is because the first Petitioner
qualifies all the minimum qualifications prescribed under Article 124 (3)
of the Constitution, namely, being a citizen of India, being a lawyer of the
High Court for more than 10 years. The Petitioner No. 1 in the same
breath wishes to add that he does not in his wildest of dreams consider
himself to be entitled to the office of a judge of the Supreme Court. The
Petitioner No.1 would readily concede that without the assertion of
violation of fundamental rights, the instant Petition under Article 32
would not lie at his hands.
All that the Petitioners intend to convey is that Article 14 being the very
foundation on which our Constitution and democracy is built, the
8
Petitioner No. 1 and for that matter every lawyer, who falls under the
minimum eligibility criteria, has a right to be considered for the office of
the judge of the High Court or Supreme Court.
Unfortunately, the collegium system of selection and appointment of
judges has meant the concept of equality and equal opportunities in the
matter of appointments to higher judiciary being denied to thousands who
are equally if not far more eligible, qualified and deserving, but are less
privileged. The Petitioners want to make it abundantly clear, for removal
of any misconception, that he is referring to the constitutional provisions
only in support of his locus standi as a person aggrieved, a person though
eligible, but did not fall in the zone of consideration, for there never
existed a just and fair system in search of merit, nay, evaluation thereof.
Petitioner No. 2 enrolled in the year 1999 and has been practicing in the
High Court of Bombay and other Courts and tribunals for the last over
two decades. While the first Petitioner is the President of the National
Lawyers‟ Campaign for Judicial Transparency and Reforms (NLC)
registered under the Maharashtra Public Trusts Act, for greater
accountability and transparency in judiciary, Petitioner No. 2 is its
General Secretary. Like the first Petitioner, she believes that higher
judiciary being a public office appointment ought to be open to all who
9
are eligible and desirous and selection should be based on merit and not
on kinship. The selection process should be open and transparent.
Petitioner No. 3 to 6 are lawyers practicing in the High Court of Bombay
and other tribunals. Like Petitioner Nos. 1 and 2, they too believe that the
current system of appointment and transfer of judges is a flawed one
which has resulted in the denial opportunity to many who are far more
meritorious and deserving but never considered for lack of familial and
other connections. Petitioner Nos. 7 & 8 having had to knock the doors of
the courts for justice and having personal knowledge and experience of
the deficiencies of the system, have a genuine and real stake in the instant
petition seeking radical reforms in judiciary.
The First Petitioner is the President of the National Lawyers Campaign
for Judicial Transparency and Reforms (NLC) and the second Petitioner
is the General Secretary. The remaining Petitioners are members of the
NLC or sympathizers of its objectives. A true copy of the objectives of
the National Lawyers‟ Campaign for Judicial Transparency & Reforms,
Mumbai, Maharashtra dated 31.03.2014 is annexed herewith and marked
as ANNEXURE P-1 (PAGES 50 TO 52).
HOW THE COLLEGIUM, WHICH THE CONSTITUTION DID NOT
PROVIDE FOR, CAME INTO EXISTENCE
10
How the Collegium, which the Constitution did not provide for, at all,
came into existence is a „riddle wrapped in a mystery, inside an enigma‟
to borrow an expression from Winston Churchill. The simple answer is
that the collegium is a product of PIL. The jurisprudence of PIL which
does not exist anywhere else in the world is probably the most important
province of our jurisprudence today. Millions of pages are written
eulogizing the utility and the sanctity of the so-called jurisprudence of
PIL. It would not take much time to demonstrate how hallow and
contrary to the first principles of jurisprudence this so-called province of
jurisprudence is.
It is fundamental principle of jurisprudence, which no one would dare
question that when the Parliament enacts a law, it is deemed to be enacted
with the consent of every citizen, for every citizen from the poorest of the
poor to the rich, from a man of no consequence to the most powerful, are
symbolically present in the Parliament and the law so enacted by the
Parliament, binds everyone. To put it pithily, a record of a Parliament
binds everyone, everyone being a party to it. On the contrary, it is equally
undeniable, that the record of a court, namely, a judgment, decree, order
or minutes will only bind the parties thereto and if a suit or proceedings is
of a representative nature it will bind all those on whose behalf the suit or
proceedings is instituted or defended, no matter right or wrong. This
11
principle is known as the doctrine of res judicata or constructive res
judicata. Nobody is bound by a judgment or decree or order of which he
is not party, not even constructively, otherwise known as the doctrine of
res inter alias.
The so-called new jurisprudence of PIL which the Supreme Court
evolved in the early 1980s and which has assumed elephantine
proportions, is against the first principles of jurisprudence. PIL sanctifies
a horrifying jurisprudence that a citizen can be bound by a judgment,
order or decree of a court of which he/she was not a party, not even
constructively. The judgments which this Court renders in PILs and suo
motu PILs which are asserted to be the “law of the land” under Article
141, so too, under Article 142, is against the first principles of
jurisprudence, audi alteram partem. It is against the first principles of
natural justice.
Of late, the various High Courts, so too the Supreme Court, have been
initiating contempt of Court proceedings for violation of the judgments of
the Supreme Court, the so-called law of the land under Articles 141 and
142 against government officers and others who are not even parties to
the judgment or orders of which violation is alleged. The Petitioners are
confident that even the greatest proponent of PIL jurisprudence would
agree that the doctrine of audi alteram partem, i.e., the principles of
12
natural justice cannot be violated, and a situation where it is allowed to be
violated would not be conducive to the rule of law.
IF THE JURISPRUDENCE OF PIL IS VIOLATIVE OF THE PRINCIPLES
OF NATURAL JUSTICE/AUDI ALTERAM PARTEM, HOW DID IT COME
INTO EXISTENCE IN THE FIRST PLACE AND HOW DID IT COME TO
OBTAIN A CERTAIN AMOUNT OF ACCEPTANCE
PIL originated in the form of pro bono litigation at the hands of humanist
judges like the legendary Bhagwati, YV Chandrachud, Krishna Iyer, et al.
Pro bono litigation was not a new concept in jurisprudence at all. It did
not create any new right which did not exist before or a new remedy or
new forum. All that the Court did in entertaining even a post card as a
writ petition, reaching out to the under-trials, bounded labourers and
others who out of poverty, illiteracy are unable to approach the Court, is
allow a person acting pro bona to act on their behalf. When „A‟ a public
interest litigant is allowed to take up the cause of „B‟ an under-trial, the
real petitioner is „B‟ the under-trial and it is for the enforcement of the
private rights and liberties of the under-trial. In other words, where a
public authority has failed to discharge its duty to compel the authority to
discharge its duty by means of a writ of mandamus, a public law remedy.
The pro bono litigant is not the real litigant, he / she is only representing
the under trial. Pro bono litigation is constitutional, legal, and ethical.
There can be no two opinions about it.
13
It is no new jurisprudence, but a time-tested remedy of qui tam action.
Unfortunately, and without gaining much attention, the jurisprudence of
pro bono litigation, was hijacked by certain vested interests for fame,
name and money. The so-called activists, particularly, activist lawyers
used the door of pro bono litigation which the legendary judges paved
way for, to use the Supreme Court as a tool for political power and to
subjugate the Parliament and the political executive. They brought every
issue under the sun, matters in the exclusive province of the legislature
and executive to the Court invoking Article 32/PIL, bringing a situation
where the decisions of the executive and the Parliament and matters of
policy being substituted with that of the Supreme Court. The NJAC was
all about the appointment and transfer of judges of the Supreme Court
and High Courts.
Appointment of judges is purely an executive function to be exercised by
the executive in consultation with the Chief Justice. The Constitution
(Ninety-ninth Amendment) Act, 2014, and the NJAC Act provided for a
mechanism for the appointment of the judges of the High Courts and
Supreme Court, including the Chief Justice of India. The Constitution
(Ninety-ninth Amendment) Act, 2014, bringing the NJAC into existence
had received the assent of both houses of the parliament and was ratified
by 21 state legislatures. It was the will of “we the people” on a matter
14
which is in the exclusive province of executive policy, namely, the
appointment and transfer of judges. The Constitution (Ninety-ninth
Amendment) Act, 2014, and the NJAC Act did not violate the
fundamental rights, or for that matter any right of anyone. Nobody had
made a grievance at all. Not even a whisper thereof. Yet, a 5-judge bench
of this Court in Supreme Court Advocates on Record Association
(SCAORA) v. Union of India, (2016) 5 SCC 1, held the Constitution
(Ninety-ninth Amendment) Act, 2014, and the NJAC Act as
unconstitutional, holding it violative of the „basic structure‟ of the
constitution.
The NJAC was the culmination of discussions and considerations
spanning over three decades for a flawless system of appointment and
transfer of judges. Late Shri Dinesh Goswami, Law Minister in the V.P.
Singh Government was the one who pioneered the movement for a
system of appointment and transfer of judges by an independent judicial
appointments commission. In 2014, we the people of this country,
asserted through our representatives that the judges of this country shall
be appointed by a national judicial appointments commission consisting
of judges, members of the civil society and the law minister. The judges
still had a predominant role in as much as the Chairman of the
commission was the Chief Justice of India and two senior-most judges
15
were among its members. The Law Minster was the ex-officio member of
the Commission and the remaining two members were to be eminent
persons to be elected by a committee consisting of the Prime Minister,
Chief Justice of India and the leader of the Opposition. Nowhere in the
world does there exist a judicial appointments commission where the
judiciary has such a predominant say/role. The judges had a veto power
in as much as that any of the two judges together could veto any proposal.
The NJAC was a perfectly sound system of transfer and appointment of
judges, where the Government did not enjoy any absolute say, the Law
Minister being the sole representative of the Government.
Be that as it may, in a democracy, the people speaking through the
legislature decides what is right and wrong in matters of policy. The
principle which was laid down in Heydon‟s case, namely, that Judges are
supposed to construe the statutes by seeking the true intent of the makers
of the Act, and that the legislature is the best judge of the needs of its own
people and the laws made by it are in recognition thereof, and the
legislative wisdom is not amenable to challenge, has been quoted with
approval by the Supreme Court in umpteen judgments. Like how a
judicial decision of a Court within its jurisdiction, howsoever erroneous,
is binding between the parties, the ordain of the Parliament in matters
falling in its province of legislative policy, whether right or wrong, is
16
right. It is for the Parliament alone to correct it. It is for those who oppose
a legislation to take recourse to democratic means to even change the
Government and to enact laws in the lines they want. That is what
democracy is. Unfortunately, the will of the people, the NJAC was
thwarted, “quashed and set aside” by Supreme Court in the NJAC case on
the premise that it is violative of the „basic structure‟ of the constitution.
The reason for quashing the NJAC, namely, that it is violative of the
basic structure of the constitution and that the Parliament has no power to
abrogate the basic structure, that the independence of judiciary is a basic
structure and that is protected only when the ultimate power of
appointment is vested in the judges, is an affront to reason and common
sense. Apart from offering the incredulous proposition that the power of
appointment of the judges by the collegium of the Supreme Court is a
basic structure, the Court went on to write paragraphs after paragraphs on
how undesirable the decision of the Parliament is to vest the power of
selection and appointment of judges in a judicial commission where the
judges do not have the absolute say, meaning where a candidate
nominated by the judges could be vetoed by the non-judge members. The
Court made a cardinal mistake, namely, it forgot that it does not have the
jurisdiction to sit in judgment of the wisdom of the legislature in matters
of policy. Even if independence of judiciary is a basic structure and the
17
expression is a justiciable one, then too, the core of independence of
judiciary is not in the process of appointments but in the post appointment
discharge of duties which the founding fathers took great care of. No
judge can be removed from office except by a motion of impeachment
which has received the assent of both houses of the Parliament and twothirds of members present and voting. The Judges Protection Act, 1985,
affords absolute immunity to the judges and even where they act
maliciously and willfully denies justice, no criminal or civil action will
lie. The emerging public opinion is against the blind and absolute
immunity and is in favor of absolute immunity so far as the judge acts
bona fide as is the case of other public servants.
The real villains, here, therefore are two concepts, the independence of
judiciary and the basic structure theory. These two concepts are the
fallout of the misconception of the doctrine of judicial review.
RATIO OF THE NJAC CASE
The Constitution (Ninety-ninth Amendment) Act, 2014, and the NJAC
Act were struck down holding it to be violative of the basic structure of
the constitution. The reasoning of the Supreme Court was that in
Kesavananda Bharati‟s case it was held (7:6) that the Parliament has no
legislative competence to bring a Constitutional amendment which would
abridge or violate the basic structure of the constitution. In the Judges-2
18
case, it was held that the independence of judiciary is one of the basic
features of the constitution which the Parliament has no competence to
abrogate. The further reasoning was that the core of the independence of
judiciary is not in the discharge of judicial function post appointment, but
in the very appointment itself and that the core is protected when the
judiciary has a primacy in the matter of appointments. The further
reasoning was that the primacy of judiciary in the matter of appointment
of judges in itself is part of the basic structure. In other words, the
collegium itself is a part of the basic structure. That the Constitution
(Ninety-ninth Amendment) Act, 2014, and the NJAC Act seeks to replace
the collegium and therefore, it is violative of the basic structure of the
constitution and, therefore, is unconstitutional. It is difficult to imagine of
a greater irrationality.
JUDICIAL REVIEW
Lex injusticia non est lex, an unjust law is no law, said St. Augustine.
Following the footsteps of St. Augustine, St. Thomas Aquinas in his book
“Summa Theologica” asserted that if the Parliament were to make a law
which was against the law of nature and of God, there is a duty to
disobey. Henry de Bracton who is considered to be the Justinian of
common law, in his book „De legibus et consuetudinibus angliae –
Treatise on the Laws and Customs of the Kingdom of England‟, asserted
19
that the king must not be under man but under God and under the law.
Later, in the 17th century, Chief Justice Edward Coke, in Dr. Bonham‟s
case said Iniquum est aliquem rei sui esse judicem, namely, that if the
Parliament were to make a law where one of the parties to a dispute is
made a judge thereof, such a law is null and void.
In England, the Parliament is supreme. No Court has the power to declare
an Act of Parliament as unconstitutional. Coke‟s assertion was
repudiated, but it found great acceptance in the United States. Our
founding fathers incorporated the doctrine of judicial review in
unmistakable terms in Article 13 by asserting that the State shall not
make any law which takes away the rights conferred under Part III and
that any law which violates the fundamental rights shall be null and void
to that extent. The Petitioners in all humility assert that the concept of
judicial review is the core of our constitution. Right to life, liberties and
equality are fundamental, non-negotiable features of the constitution. Part
III is the very basic structure of the constitution which cannot be
abrogated. The Petitioners do not dispute this, and on the contrary stand
for it and vouch for it.
The Petitioner‟s, however, are deeply disturbed by the misconception and
abuse of the concept of the basic structure which has resulted in any
number of enactments which are sound and constitutional being declared
20
to be unconstitutional. The most solid examples are the NJAC Act and
the National Tax Tribunal Act.
The reason for all these misfortunes and misunderstanding is the
judgment of the Supreme Court in the Kesavananda Bharati case. Before
Kesavandanda Bharati, the validity of many a constitutional amendment
was challenged on the ground of it being violative of the fundamental
rights and this Court in Golaknath‟s case held that the Parliament has no
power to abrogate fundamental rights even by a constitutional
amendment. The judgment in Golaknath‟s case led to the Constitution
24
th Amendment Act and incorporation of clause (4) under Article 13,
namely, that nothing under this Article shall be applied to any amendment
made under Article 368. In other words, a constitutional amendment is
not amenable to challenge for violation of fundamental rights. The
Constitutional 24th Amendment Act was challenged in the Kesavananda
Bharati case. The full court of the Supreme Court by a 7:6 majority was
pleased to hold that the Parliament is competent to amend every Article
of the Constitution including that concerning the fundamental rights, but
not the “basic structure”. The “basic structure theory” thus came into
existence.
BASIC STRUCTURE THEORY
21
The basic structure theory, the Petitioners are afraid to say, is against the
elementary principles of jurisprudence, nay, in ignorance thereof. The
reason is simple. Before Kesavandana Bharati, petitions under Article 32
used to be filed complaining violation of the fundamental rights by the
state or its instrumentalities and seeking enforcement of the rights by
granting remedies in the nature of the five writs stated in the Article. In
other words, there is a right, remedy, forum. After Kesavandana Bharati,
petitions under Article 32 and now PILs, came to be filed complaining
violation of no fundamental right or any right for that matter, but
complaining violation of the “basic structure”.
The judges 2 case and the NJAC are classical examples. The said cases
were filed by the Supreme Court Advocates on Record Association. The
SCAORA did not complain of the violation of any of the fundamental
rights of the organization or its members. It did not seek any writ or
remedies for the enforcement of its rights. Its plea was ridiculous. That
the NJAC was violative of the basic structure, that the Parliament has no
competence to violate the basic structure and that the Act therefore, be
struck down. The Supreme Court accepted the plea and quashed the
NJAC. The Kesavananda Bharati case runs into 2264 paragraphs and 700
pages. The NJAC case runs into 764 pages. The Petitioners dare say that
very few would have read these judgments. For to read it fully one has to
22
spend days if not weeks. Anyone who reads the judgment is all certain to
miss the wood for the tree.
WHILE VIOLATION OF FUNDAMENTAL RIGHTS IS JUSTICIABLE,
THE VIOLATION OF THE BASIC STRUCTURE IS NOT JUSTICIABLE AT
ALL
Though the manner in which the basic structure theory has been
canvassed and the Supreme Court was made to accept it is most
unfortunate, even laughable, it does not mean that the basic structure
theory has no meaning at all. The Petitioners do not at all question the
validity of the basic structure theory, the Petitioners assert so, lest they
should be misunderstood and misquoted. The basic structure theory is
akin to the doctrine of St. Augustine, St. Thomas Aquinas, Bracton,
Magna Carta and Part III of the constitution. If one were to go to a court
complaining of violation of the fundamental rights, which would certainly
mean violation of the basic structure of the constitution, the Petitioners do
not have any quarrel at all. Article 13 is crystal clear. Any law which is
enacted by the Parliament in violation of the fundamental rights, namely,
Part III, is unconstitutional. The fundamental rights are paramount. If the
Petitioners in the NJAC case and the Judges- 2 were to allege the
violation of any of their fundamental rights, they certainly were free to
invoke Article 32. The Petitioners have no quarrel with that proposition.
23
But the fact remains that they could not have alleged the violation of any
fundamental right and they did not. The SCAORA, in approaching the
Supreme Court when none of their rights were violated and they were not
persons aggrieved at all and hence could not have sought any remedy at
all, and in clamoring the violation of the basic structure, was misleading
the Court.
The judgment in Kesavananda Bharati, the Petitioners submit in all
humility, was wholly erroneous. To the Petitioners, it appears that the
Supreme Court has since noticed the irrationality of the basic structure
theory in many a decision, particularly in M Nagaraj Vs. Union of India
(2006) 8 SCC 212 and I R Coelho v. State of Tamil Nadu 2007, in as
much as that in the said judgments the Court has held that the
fundamental rights are the basic structure. If this Court and the legal
fraternity, nay, the nation were to accept fundamental rights as the basic
structure of the constitution, then the confusion created by a judgment
which runs into several pages, would stand resolved.
One of the problems with Kesavananda Bharati, the NJAC and the judges
2 case is its volume. If the said judgments were brief and thus
comprehensible to the ordinary people, the irrationality would have been
evident to the people. Our legal system would have been spared of the
great injury it has suffered as a result of these judgments.
24
MISCONCEPTION OF THE DOCTRINE OF JUDICIAL REVIEW
People are taught that the validity of a judgment is dependent on the
strength of the bench and even the majority of the opinion. The common
understanding is that a judgment of a 3-judge bench can be overruled by a
5-judge bench and the 5-judge bench by a 7-judge bench, and that an
erroneous decision by a 9-judge bench remains to be the “law of the land”
till it is set aside by a still larger bench. The Supreme Court has in the
recent past said that a judgment, for instance that of a 7-judge bench
divided in the ratio of 6:1 can be overruled by a larger bench of 9 judges
by a ratio of 5:4.
THE FAILURE TO NOTICE AND APPRECIATE THE DIFFERENCE
BETWEEN RES JUDICATA AND PRECEDENT
Article 141 of the Constitution does not say that the judgments of the
Supreme Court is the law of the land. Judgment of the Supreme Court in
a case between A and B, whether right or wrong, will only bind A and B.
It will not bind C and D who were not parties to the proceedings. Article
141 only means that if the Supreme Court has evolved a principle where
none existed for the resolution of an issue before it, that principle, nay,
the reason for the decision, will be binding in a future case between C and
D who were not parties to the previous case, as a precedent. Even where
no new principle is evolved but an existing principle is reaffirmed or
followed, that will be binding as a precedent. It is for the court before
25
which a judgment of a superior court is relied as a precedent to decide
whether there is any precedential value or not, and if yes, to apply it.
Suppose, in a case before a Munsiff, different judgments of the Supreme
Court of a bench of 3, 5 and 7 judges are placed, it is for the Munsiff to
decide if the said judgments are applicable and he is free to apply the
principle adopted by the 3-judge bench if the said principle is sound. The
strength of the bench is absolutely relevant, but that is in the province of
res judicata. If the majority of judges in a case between A and B hold that
a cat is a dog, then that judgment, though erroneous, is final, binding and
authoritative as res judicata between A and B. Nobody could be heard to
dispute it except by way of an appeal if the statute provides for one.
LAW HAS NO ESTOPPEL
The basic difference between res judicata and precedent is that while res
judicata has finality, law has no finality or estoppel. It does not serve any
purpose in jurisprudence to constitute larger benches to decide questions
of law, in as much as that even after a full court of the Supreme Court
decides a question of law, if it is wrong, it is open to challenge the very
next day. The Petitioners beg to submit that in questioning the
precedential value of the judgment based on the strength which is the
practice today, and in asserting that what matters is the reasoning and in
further asserting that the current practice of constituting larger benches to
26
lay down the law of the land when there is no estoppel against law, the
Petitioner does not at all mean to assail the respectability to be given to
larger benches of this Court. The Petitioners readily concede that it is of
immense sense and utility to give weightage to judgments of larger
benches, but that should not be absolute or blind, as is the case today.
Every judgment of the Supreme Court rendered by the larger benches of
this Court is certainly entitled to the respect to be given to precedent in
terms of Article 141. That is the practice world over. But the difference
between India and the rest of the world is that nowhere else in the world
are Constitutional Amendments, Acts of Parliament, matters of legislative
and executive policies are questioned in the highest court of the land as
the first court of original jurisdiction, that too by way of PILs. The
concept of judicial review has been misunderstood and misapplied. The
Petitioners vouch for the concept of judicial review and that is the very
life of the Indian Constitution.
However, a judgment of a court striking down an Act of Parliament or
statutory instrument is stricto sensu binding only between the parties as
res judicata. The principle evolved in such a case can be relied as a
precedent in a subsequent case between C and D. The provision struck
down by a Court as unconstitutional would still remain in the statute
book. It is not repealed. But in all civilized democracies, a judgment of a
27
court holding a statutory provision or instrument as unconstitutional is
respected. The core of democracy is the mutual respect between the
institution of Judiciary, the Executive and the Parliament.
DEMONISATION OF THE PARLIAMENT AND THE EXECUTIVE
It would be totally inappropriate and in-conducive for a vibrant
democracy like ours to presume that the legislature is anti-people, that its
policies are directed against the people and that the common people are
ignorant. This proposition of the elite was completely bared open during
the emergency. The Kesavananda Bharati case was hailed as the
fundamental rights case but for which the country would have fallen into
the dark ages. Two years later, in 1975, Indira Gandhi declared
emergency and aborted all fundamental rights. Even the Supreme Court
did not come to the rescue of the people. To quote justice Krishna Iyer, it
was the „Daridra Narayanas‟ (the common people – voters of this
Country), who voted the Indira Gandhi government out of power and
restored democracy. And it was the Parliament by 42nd Constitutional
Amendment Act that undid the mistake committed by the Indira Gandhi‟s
totalitarian regime. If Parliament commits a mistake, the same or the next
Parliament can undo it. Whereas, on the contrary, when the Supreme
Court trenches into the domain of the Parliament and the executive, it is
too difficult to get the mistake undone. The judgements in the NJAC case
28
and the Judges-2 case are nothing but total lack of faith in Parliamentary
democracy, which despite all its deficiencies and limitations is better than
any other form of government.
NEPOTISM
The Judges-2 case was instituted crying that the independence of
judiciary is at stake and calling for judicial activism. The truth of the
matter is that when the executive was powerful nobody would have
thought to trample the constitution and if an attempt was made the
legislative and the executive certainly would not have tolerated it. In
1993, misled by the plea of the elite class who wanted to consolidate their
influence and who had no confidence in the democracy, crying wolf,
persuaded the Supreme Court to re-write the constitution and bring into
existence the collegium, an undemocratic body, without the slightest
thought of its far-reaching consequences. When the Judges-2 case was
heard and decided, the political executive led by Narasimha Rao, a
minority government was extremely weak and ridden with allegations of
corruption. The Attorney General/ Shri Parasaran, who represented the
Union of India, did not even raise the issue of maintainability of the socalled PIL filed by SCAORA. In 1998, the attempt made by the Vajpayee
Government by way of a presidential reference was far from what was
required to undo the monumental error which the Judges-2 case indeed
29
was. The Manmohan Singh government also did not make any
meaningful attempt. The Modi Government, when it came into power
acted decisively and enacted the Constitution (Ninety-ninth Amendment)
Act, 2014, and the NJAC Act. However, even before it was notified, the
validity of the Amendment was questioned, though in vain. Finally, the
Act came into force and the elite class of lawyers, using SCAORA as a
pawn, by way of a so-called PIL challenged the validity of the
constitutional amendment and the Act, primarily on the premise that the
collegium was declared to be an integral part of the basic structure
(independence of judiciary) and that the constitutional amendment
seeking to dismantle/substitute the collegium with the NJAC is violative
of the basic structure of the constitution.
THE FAILURE OF THE AG TO DEFEND THE NJAC
Right from day one of the hearing of the NJAC, Petitioner No. 1 had
raised the very non-maintainability of the PIL instituted by SCAORA and
pleaded that it be decided as a preliminary issue. However, it was a cry in
the wilderness. The Petitioners pleaded with the AG to take up the issue
of non-maintainability, however, the AG did not pay any heed to it. In
fact, had the AG questioned the maintainability of SCAORA‟s PIL, the
Supreme Court would not have quashed the NJAC Act. This is equally
true of the Judges-2 case where the Senior Counsel representing the
30
Union of India did not at all question the very maintainability of
SCAORA‟s so-called PIL. Even in the presidential reference case,
popularly known as the Judges-3 case too, the then AG did not question
the validity of the Collegium and seek review of the Judges-2 case, which
the Petitioners believe was his bounden duty which he failed to do.
The Petitioners fought for the NJAC. Petitioner No. 1, who is a lawyer
primarily practicing in Bombay, knew that the elite lobby would marshal
all resources against the NJAC, and the NJAC which was the hope for
lawyers who have no god fathers for equal opportunities in judicial
appointments, would be sabotaged. Petitioner No. 1 raised to two
fundamental, preliminary issues, namely, whether the PIL in challenge of
the NJAC was maintainable since no one has alleged the violation of their
fundamental or even legal right, (b) assuming that the petition is
maintainable, who all have a right to be heard, if it was concerning
lawyers, would it be proper to conduct the hearing without notice to the
lawyers in the different parts of the country? Even if that is done, are
lawyers the only stakeholders? Is the public at large not stakeholders, was
not the court duty bound to issue notice to the public at large.
Unfortunately, the Court did not meaningfully hear the Petitioner no.1 on
these two fundamental issues though these were the main issues raised in
31
the written argument notes and all throughout at different stages by the
Petitioner no. 1, before the bench of Justice Dave and Justice Khehar.
PIL, IF MAINTAINABLE, PROCEDURE AKIN TO REPRESENTATIVE
PROCEEDINGS ARE LIABLE TO BE FOLLOWED
The SCAORA‟s PIL against the NJAC was not maintainable for no
petition will lie in the Supreme Court in the first instance except for
violation of fundamental rights. No petition which is in public interest can
be allowed to be conducted like a private litigation. PILs, if at all are
maintainable, are liable to be conducted like a class action/representative
proceedings as in Order 1 Rule 8 (2) of the CPC or Section 245 of the
Companies Act. The Petitioner also raised the plea that the NJAC was the
will of the people and that it is not justiciable at all and that the Judges-2
case is one rendered null and void, one without jurisdiction, nothing but
re-writing of the constitution in the name of interpretation. The Petitioner
No. 1 had also pleaded that if at all the PIL of SCAORA was
maintainable, it should be heard by a bench of which none of the judges
are or would be a part of the collegium. However, none of the pleas were
recorded. However, in the judgment only the plea for the recusal of
Justice Dave and Justice Khehar, alone were recorded.
The Hon‟ble Court, the Court sought for the opinion of the public at large
on the ways and means to improve the existing collegium, but after
32
quashing the NJAC! That was an entirely futile exercise in as much as
that more than 10,000 suggestions were received in response to the
Supreme Court‟s public notice. The irony is that the enactment of the
NJAC Act by their elected representatives, itself, is the response of the
people as to the ways and means in which the existing system of
appointment of judges could be improved. The NJAC was the loud cry of
the people of this country to do away with the opaque and undemocratic
collegium system. The Petitioners feel that instead of seeking the opinion
of the public at large after the quashing NJAC, if at all such opinion was
earnestly sought, it should have been done before quashing the NJAC and
for improvements on the NJAC and not the collegium. The Court should
not have aborted the NJAC even before it took form.
To allow busy bodies to institute PILs claiming to represent the public at
large and obtain orders behind the public at large in matters of policy
concerning the people of this country is a gross abuse of the process of
law.
Today, busy bodies, often motivated by name, fame, money and other
vested interests, claiming themselves to represent the public at large, i.e.,
acting as the de facto Attorney General, obtain orders from the Supreme
Court and High Courts entirely behind the back of the public at large
without notice to them. Assuming for mere argument‟s sake that PILs
33
serve some public purpose and ought to be allowed, then it is absolutely
imperative that the Public Interest Litigations are prosecuted in a manner
akin to that of representative suits as under Section 91 of and Order 1
Rule 8(2) of the CPC or Section 245 of the Companies Act which
provides for class action litigation.
THE PETITIONERS‟ EFFORTS FOR THE RESTORATION AND
REVIVAL OF THE NJAC
The Petitioners believe in the old adage „nihil desperandum‟, never
despair. Petitioner No. 1 in his practice spanning over almost 40 years has
come across inconceivable injustice and victimization, nay, even
persecution. The personal trauma which the Petitioner was needlessly
made to undergo perhaps has no parallels. However, the Petitioner is a
strong believer in the ultimate goodness of humans and the power of the
truth. He believes that the mistakes of the past will be corrected and that
it may have been the will of the providence to make him an instrument
for change, through the personal sacrifices he was made to undergo. The
Petitioner accordingly filed a petition for review of the judgment which
however was dismissed in chambers declining even the plea for open
court hearing.
34
Petitioner No. 2, the General Secretary of the National Lawyer‟s
Campaign for Judicial Transparency and Reforms (NLC), filed a petition
under Article 32 for a declaration that the NJAC judgment is one
rendered void ab initio, without jurisdiction and rendered behind the back
of the stakeholders, the public at large and the legal fraternity in different
parts of the country. The Petitioner No. 2 pleaded that the judgment takes
away her right for a fair opportunity to be considered for appointment
along with all others who are meritorious and desirous. The said petition
was dismissed with an observation that the appropriate procedure would
be to file a review. Accordingly, in furtherance of the observations of the
Court, the Petitioners filed a review. However, the said review petition
was dismissed in chambers by a non-speaking order, that too declining
the plea for an open court hearing.
The Petitioners /the National Lawyers Campaign filed a Petition for the
Review of the Judgments of the Judges 2 Case, by which alone the
Collegium, which is unknown to the constitution was given birth.
However, the said Petition was dismissed in Chambers by a non-speaking
Order, even declining the Plea of the Petitioners for an Open Court
hearing.
THE PETITIONERS‟ REPRESENTATION TO THE GOVERNMENT
35
The Petitioners, without giving up hope, approached the leaders of the
various political parties, Cabinet Ministers, Chairman of the
Parliamentary Committee for Law and Justice, requesting them/the
government to file a review of the NJAC case. The Petitioners were
promptly assured but the promises remain unfulfilled.
Petitioner No. 1 addressed a letter to the Prime Minister as well the
Members of Parliament and the leaders of the various political parties,
requesting the Government to file a review. Since the Petitioner did not
receive any response from the Prime Minister‟s Office, the Petitioner
addressed a letter dated 29.04.2018 to the Prime Minister in a telegraphic
language. A true copy of the Telegraphic Letter for the Attention of PM
issued by the National Lawyers Campaign for Judicial Transparency and
Reforms dated 29.04.2018 is annexed herewith and marked as
ANNEXURE P-2 (PAGES 53 TO 56). A true copy of the Letter dated
31.08.2018 submitted by the National Lawyer‟ Campaign, Mumbai,
Maharashtra is annexed herewith and marked as ANNEXURE P-3
(PAGES 57 TO 58). The Petitioner did not receive any response to the
said letter. He addressed yet another letter dated 05.09.2020. A true copy
of the Letter dated 05.09.2020 issued by the National Lawyers Campaign
for Judicial Transparency and Reforms is annexed herewith and marked
as ANNEXURE P-4 (PAGES 59 TO 64). Though the Petitioner did not
receive any response from the Prime Minister‟s Office, he received
innumerable responses from Members of Parliament cutting across
political parties, all appreciating the Petitioner‟s efforts and extending
their support.
The Petitioner believes that it is high time that the Collegium system is
dismantled and the NJAC is restored, because the collegium today is
widely seen as a synonym for nepotism and favoritism.
COLLEGIUM, A SYNONYM FOR NEPOTISM
For considerations of reticence the Petitioners refrain from elaborating.
There is hardly any official data easily available to the public as to the
familial ties of the members of the higher judiciary. The data which the
Petitioners could collect from large number of members of the bar would
indicate that 3/4th, if not more of the judges of the Supreme Court are
either the kith and kin of the judges, their juniors, senior lawyers, political
leaders and who are otherwise well connected, so too is the case with the
Chief Justices of the High Courts. A true copy of the Progeny Chart –
Judges of the Hon‟ble Supreme Court of India, issued by the National
Lawyers‟ Campaign for Judicial Transparency and Reforms, Mumbai,
Maharashtra dated 06.06.2022 is annexed herewith and marked as
ANNEXURE P-5 (PAGES 65 TO 70).
THE NJAC IS THE WILL AND THE NEED OF THE PEOPLE
The higher judiciary in India is certainly respected for the impartiality
and independence of its judges. However, had there been a transparent
system of appointment of judges in existence, the seat of justice of the
higher judiciary would certainly have been occupied by a far greater
number of men and women from all sections of society, academically
brilliant and more diverse, being from different walks of society, and
more litigant friendly. The justification offered for the current opaque
system of appointment is that the best talent from the bar is not willing to
join the bench. Nothing could be further away from the truth. If vacancies
are notified and applications are invited, many talented lawyers from
among the less privileged and less connected will adorn the seat of justice
of the higher judiciary. When that happens, the legal profession will be
able to attract the best talents and the best among the junior bar will not
leave the profession in search of a job of an in-house lawyer, being
unable to sustain themselves.
It is a common grievance of the members of the bar and the public that
many judges of the superior courts behave like emperors, ill-treat litigants
and lawyers. Hon‟ble Justice Sanjay Kishan Kaul had openly lamented of
this unfortunate reality. Justice Krishna Iyer had on many an occasion
lamented of the ill-treatment of lawyers at the hands of judges by
borrowing the words of Lord Hailsham who termed the condition as
38
“judgeitus or judges‟ disease”, describing its symptoms to include
“pomposity, irritability, talkativeness, proneness to obiter dicta
(statements not necessary for the decision in the case), a tendency to take
short cuts”. What Lord Hailsham said in 1978 is as relevant, or more,
today.
COURSE CORRECTION: OPEN SELECTION
The Collegium once again proved that blood is thicker than water and it
is high time that the judiciary, the bar and the government take note of the
red signal and take corrective action without allowing a moment‟s time to
be wasted, for history would not forgive it.
The current scenario where judges appoint themselves and appoint
advocates as senior advocates, the bar and bench has become the
exclusive province of a few dynasties. The talent elsewhere is not at all
recognized. The generation of the Petitioners are denied equal treatment
and fair opportunity and wherever they have raised their voice against
discrimination, they are targeted. There can be no change unless the
culture of entitlement and privilege is done away with.
The collegium which the incoming Chief Justice will preside over will
have three judges who are sons/nephews of formers judges of the
Supreme Court. Who appoints the judges is important, but what is more
39
important is who is appointed. The Supreme Court and High Courts will
not be recognized as a democratic institution unless the talented members
of the bar are appointed and that will happen only when there is an open,
transparent selection process by inviting applications from all eligible.
The NJAC had it been allowed to take birth, would have certainly done
that. The people of this country would have demanded it. It is the duty of
all concerned to bring back the NJAC and the easiest way is to review the
Judges-2 case and the NJAC case. The representations which the
Petitioner No. 1 has made are precisely to that effect.
INDIAN HIGHER JUDICIAL SERVICE
The concept of invitation to the bench has undergone radical change all
over the world, so too, with concept of entitlement. The office of the
judges of the High Courts and Supreme Court is a public office of the
greatest of importance, including political importance. The core of our
constitution is that all are created by the maker equally and that all
citizens shall receive equal treatment, so too, equal opportunity in every
walk of public life, this is from the point of view of an individual desirous
of occupying the office of a judge.
So far as the public at large and the litigants are concerned, the seat of
justice should be occupied by the most deserving, the best of talent, the
most erudite, and that is possible when the zone of consideration,
40
particularly that of higher judiciary is made as wide as possible, in
contrast to the current pool of consideration which is confined to the
elite. Advertisement of vacancies of the judges of the Supreme Court
and High Court, invitation of applications from all individuals and
an open and transparent process of selection and appointment is
certain to ensure that the seats of justice are occupied by the very
best, the most eligible and is not a matter of inheritance. The concept
of an Indian Judicial Service for the selection and appointment to the
subordinate judiciary has received fair amount of consideration at
various levels. Differences subsist and therefore it is yet to become a
reality. What has never been discussed, anywhere at any level is an
Indian Higher Judicial Service, IHJS, along the lines of IAS, IPS,
IFS, IRS etc., solely on merit, based on competitive evaluation.
The Petitioners and other members of the NLC met a large number
of leaders of the various political parties, retired judges, and in
particular, the Chairman of the Parliamentary Committee on Law
and Justice, and submitted a memorandum containing proposals
concerning the much-needed judicial reforms.
The Petitioners crave the leave of this Hon‟ble Court to produce the rest
of the documents in due course.
The Petitioners are therefore, well within their rights, nay, their duty, to
approach this Court for a reconsideration of the NJAC case or at least to
undo the injustice arising out of it by whatever means possible. The
Petitioners foresee no hurdle, all that is required is the will to rectify the
errors of the past. Hence the instant petition on the following among other
grounds:
A) The collegium system of selection and appointment of judges denies
equal opportunities for appointment to the office of the judges of the
Supreme Court and High Courts to the Petitioner nos. 1 to 6 and
thousands of lawyers throughout the width and breadth of the country
who are equally, if not far more deserving, eligible and meritorious, but
less privileged because the pool of selection is confined to an elite class
of lawyers consisting only of the dynasties of lawyers and judges, their
juniors, so too, those politically well-connected. Article 14 is violated
because the office of the judge of the Supreme Court and the High Courts
is a high public/constitutional office to which all deserving, eligible and
desirous, shall have equal opportunity and that is denied when there is no
open and transparent system of appointment of judges. The Petitioners
are afraid to say that the collegium is widely considered to be a synonym
42
for nepotism and favouritism. The Collegium was the creation of this
Court by judicial law making and it is the duty of this Hon‟ble Court to
undo its mistake.
B) The stakeholders of the institution of judiciary are not the judges and
lawyers alone. The public at large are the real stakeholders. Petitioner
nos. 6 and 8 who are litigants feel equally concerned in as much as they
deserve adjudication at the hands of the most competent, eligible and
deserving judges. The Petitioners, as citizens of this great democracy, are
entitled to dispensation of justice at the hands of the most competent
judges. It is a fundamental principle that justice should not only be done
but seemingly and manifestly be done. The opaque collegium system
rejected and replaced by the electorate through their representatives, does
not evince the confidence of “we the people”.
C) The grounds in support of the instant petition have been sufficiently
elaborated in the statement of facts and to repeat the same would mean
rendering this petition needlessly voluminous. Suffice to say that the
current system of appointment of judges is violative of the fundamental
rights of Petitioner nos. 1 to 6 who are advocates, so too, violative of the
right of access to justice of Petitioner nos. 7 and 8.
43
That the Petitioners have not filed any other petition seeking similar
reliefs in this Hon‟ble Court or any other courts in India.
PRAYER
In the above premises, it is prayed that this Hon’ble Court may be pleased
to:
a) To declare that the collegium system of appointment of judges has
become a synonym for nepotism and favoritism, nay, has resulted in the
denial of fair opportunity in the selection and appointment of judges of
the Supreme Court and High Courts to the Petitioner Nos. 1 to 6, who are
practicing lawyers and thousands of others who are equally, if not, more
deserving, but less privileged, lest their fundamental right for equal
opportunity for being considered for such appointments is not deprived;
b) To issue a writ in the nature of mandamus or any other appropriate writ,
order or direction, directing the Respondent No. 4, nay, the Union
Government to consider the representations of the Petitioner No.1 seeking
such legislative and executive action so as to ensure an open and
transparent system of appointment of judges, nay, by notifying vacancies,
inviting applications from all eligible and desirous;
c) To direct the collegium of the Supreme Court of India and the Collegiums
of the High Courts to notify the vacancies in the office of the judges of
the Supreme Court and High Courts and invite applications from all
44
eligible and desirous and select the most deserving, ideally allowing the
public at large to offer objections, if any;
d) To declare that the Constitution (Ninety-ninth Amendment) Act, 2014,
and the NJAC Act are the will of the people on a matter which falls in the
exclusive province of legislative and executive policy, namely, the
appointment and transfer of the Supreme Court and High Courts, that the
same is not justiciable and that the judgment of the Supreme Court in the
SCAORA v. Union of India, (2016) 5 SCC 1, popularly known as the
NJAC case, is one rendered void ab initio, non-est, still born, one which
never ever existed in the eyes of law;
e) To declare that even assuming, without conceding in the least, that the
Constitution (Ninety-ninth Amendment) Act, 2014, and the NJAC Act
are amenable to judicial review, nay, is justiciable, then also the judgment
of the Supreme Court in the NJAC case will not amount to repeal of the
said Acts and the same continue to be in the statute book and the
judgment declaring the said Acts to be unconstitutional will be binding
only between the parties to the said case as res judicata and none else;
f) To declare that to prevent the mischief as in the NJAC case, where an
association under the guise of representing the public at large secures
even a legislation of such immense public utility, nay, the will of the
people like the Constitution (Ninety-ninth Amendment) Act, 2014, and
the NJAC Act, being declared as unconstitutional without there being any
45
opportunity for the public at large to partake in the case, it is imperative
to mandate every PIL litigant to give notice to the public at large, nay to
follow a procedure akin to representative suits under Order 1 Rule 8 (2)
of the CPC or of a class action as contemplated under Section 245 of the
Companies Act;
g) To declare that the review petitions of the Petitioners No. 1 & 2 in
challenge of the judgment in the NJAC case is liable to be restored to file
and heard in the open court as the contentions raised by the Petitioners as
to the very maintainability of the PIL filed by SCAORA, and to observe
the requirements to followed in a representative suit or class action
proceedings, was not recorded or discussed at all and there was no
decision on the Petitioners‟ case on its merits at all;
h) To declare that the Rules of the Supreme Court mandating that a curative
petition can be instituted only upon procuring a certificate of a senior
advocate that there exist sufficient grounds for its institution is violative
of the fundamental rights of the Petitioners and has led to denial of their
very right of access to justice;
i) To declare that the Petitioners 1 & 2 are entitled to a judgment on merits
on the question as to the very maintainability of the PIL instituted by
SCAORA which the Petitioners 1 & 2 have raised in the first instance or
at least in the review, and that the failure of the Supreme Court to record
the Petitioners contentions at all, renders the judgment in the NJAC case
46
as void ab initio, it being non speaking as far as the Petitioners 1 & 2 are
concerned;
j) To issue a writ in the nature of mandamus or any other writ, direction or
order directing the Government of India and other stakeholders to
consider the feasibility of bringing into existence an Indian Higher
Judicial Service along the lines of IAS, IPS, IFS, IRS etc. which would
bring the best talent, selection being solely on competitive basis, least
influenced by considerations of kinship and connections;
k) To grant such other and further writs, orders or directions which this
Hon‟ble court may be pleased to grant in the interest of justice and the
circumstances of the case;
AND FOR THIS ACT OF KINIDNESS THE PETITIONER IN PERSONS
SHALL AS IN DUTY BOUND EVER PRAY.
Drawn & Filed by:
MATHEWS J. NEDUMPARA
PETITIONER IN PERSON NO. 1
9820535428
Drawn on: 04.11.2022
Place: New Delhi
Dated: 07.11.2022
47

National Lawyers’ Campaign
FOR JUDICIAL TRANSPARENCY & REFORMS
Registration No: MH/MUM/1701/2015/GBBSD
304, Hari Chambers, 3rd Floor, 54/68 SBS Marg, Near Old Custom House, Fort, Mumbai- 400 023
Tel: 022 22626634 / Mobile: +91 98205 35428 / +91 9920477447
E. Mail: nationallawyerscampaign@gmail.com
31.3.2014
Objectives
1) Abolition of Collegium system of appointment and transfer of judges and the
substitution of the same by an independent judicial appointments commission
where neither the executive nor the judiciary will have a primacy. The NJAC
shall advertise the vacancies and invite applications from all eligible
candidates.
2) Creation of a Judicial Ombudsman to deal with the complaints of corruption
and malpractices against judges.
3) Audio/video-recording of proceedings of all Courts and Tribunals and access
to such records to the litigants, lawyers and public;
4) Reintroduction of the policy of transfer of 1/3rd of judges out of their parent
High Court as a panacea for the pernicious practices of the kith and kin of
judges practicing in the very same court, nay, the “Uncle Judges Syndrome”;
5) Abolition of the practice of designation of Advocates as Senior Advocates by
the judges, so too abolition of AOR;
6) Abolition of the concept of Contempt of Courts by scandalization
7). Enactment of laws to ensure that Public Prosecutors/ Govt. Pleaders/
Standing Counsel for Central Government and statutory Authorities are
appointed in a Transparent manner.
8) Restoration of the pristine glory of the civil courts as the court of record of
50
plenary jurisdiction empowered, competent and duty bound to embark upon
any dispute of a civil nature including the constitutionality of a statute as it was
the case prior to independence.
9) Simplification of procedures of all courts and tribunals and, in particular,
implementation of the E-courts project on a war footing;
10) Abolition of Tribunals except involving highly technical subjects which require
non lawyer Members on the Bench and equal opportunity of selection to
lawyers qua those from judicial services.
11) Repeal the Articles 226, 32 of the constitution because the said jurisdiction is
pronouncedly absolutely discretionary or make it function as a court of plenary
jurisdiction which will act on law and least on its discretion, will allow the
litigants to adduce evidence on disputed facts, frame issues and hear the
parties on all issues and pass a speaking order.
12) Make it mandatory that no judge of the SC shall be eligible for appointment
of any office until the expiry of at least two years since retirement.
13) Make Sec.92 and Order 1 Rule 8 of the CPC applicable to PILs so that PIL is
no longer an instrument of tyranny and injustice where the public at large is
bound by a judgement of a case where they were not party and PIL is not
abused as a political weapon against the political Executive. At the same time
Promote “pro bono” litigation for the benefit of the poor.
14) To bring an appropriate legislation providing for at least one Forum of Appeal
on facts and law against all judicial pronouncements and in particular of the
SC under Articles 32, 129, 141,142 of the Constitution or under the Contempt
of Court Act.
15) Do away with the immunity judges today enjoy even from penal offence
because of the orders of the SC that no FIR shall be registered against the
judges of the SC and HC without the permission of the CJI.The role of the
brokers who meddle with the affairs of the judiciary be investigated by CBI
and ED.
51
16) Abolition of the concept of absolute judicial immunity and instead immunity
be limited where the judge acts bonafide as is the case with any other public
servant.
17) Bring an end to the ill treatment and harassment of the ‘Party in Person’ and
to provide them at least bare minimum facilities.
18) So far as the affairs of the judiciary is concerned, RTI is a dead letter, judges
are no longer declaring assets. Both to be made mandatory.
19) All cases including Review Petition be heard in the open court, except cases
which are required to be heard ‘in-camera’ and no case shall be disposed of
without a speaking order.
20) Increase the strength of judiciary at all levels including the SC and, in
particular, the subordinate judiciary; improve the infrastructure of subordinate
courts which is in an abysmal position today.

Financial assistance to all lawyers irrespective of standing, particularly, from
Banks and Financial Institutions obligated by law.
Creation of an Indian Judicial Service for subordinate courts and an Indian
Higher Judicial Service for High Courts and Supreme Court on the lines of
IAS, IPS, IFS, IRS etc.
Mathews J Nedumpara
President
52
NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL
TRANSPARENCY AND REFORMS
304, Hari Chambers, 3rd Floor, 58-64, S.B.S. Road, Fort, Mumbai-400 023
No. 11, DD Tudor Villa, Padam Road, Vaduthala- 682 023

Mob: +91 9820535428 email: mathewsjnedumpara@gmail.com

TELEGRAPHIC LETTER
FOR THE ATTENTION OF PM
29 April 2018
To,
Hon’ble Sri Narendra Modi,
The Prime Minister of India
Room No. 246, South Block,
Raisina Hills, New Delhi
Hon’ble Sri Modi Ji
Subject: 1. Review of the NJAC case

Dismantling of the collegium
Audience with your kind self.
Ref: Umpteen letters addressed to your Hon’ble self, some of which have not
even been acknowledged.
I address you sir, in a telegraphic language as the President of NLC in
the hope that atleast this will receive your personal attention in view of the
great national importance of the subject.
I was the only person who instituted a Substantive Petition in the light of
the challenge of the NJAC by Fali Nariman & Co. that the Act is
Constitutional and the Legislation being in the realm of policy is not
justiciable. I also sought a declaration that the Judges 2 & 3 cases are
53
null and void; per incuriam as well. I also sought a declaration that if the
NJAC is justiciable, then every citizen has a right to be heard and not
merely the Nariman & Co. and am afraid to say, the large brigade of
sycophants of the Supreme Court Bar who consider it profitable to be
seen defending the cause of the Judges, because the greatest law today is
the “Face Law”. I asserted that the judges are the real petitioners in the
NJAC case and the courts decision striking down the NJAC will be seen
as the Judges delivering a judgement in their favour when they are the
real actors/plaintiff.
I sought the recusal of Justice Dave on the ground of conflict of interest.
Justice Dave was a noble soul. His Lordship recused. Then a new bench
headed by Justice J S Khehar was constituted. I sought not only the
recusal of Justice J S Khehar, but also of Justices Madan Lokur &
Justice Kurian Joseph. The reason is: if the NJAC was to be struck
down, the collegium will be restored and Justice J Chalemeshwar,
Justice Madan Lokur and Justice Kurian Joseph will be part of the
Collegium. In other words, if Justice Kurian Joseph & Justice Madan
Lokur were to strike down the NJAC their Lordship, may be unwittingly,
be giving a berth for themselves in the cabal collegium which amount to
acting in violation of the first principle of Natural Justice that nobody
shall be a judge of his own cause. But my plea was rejected, sad though.
Sir we lost the NJAC case only because of Rohatgi, He did not challenge
the maintainability of Narimans Case. He did not plead that Judges 2
case is per incuriam.
Today’s Times of India carries a caption: “From railway platform to IAS: A
tale of grit and perseverance”. Statics show, not even 1% of IAS officers
are the kith and kin of the serving or retired officers. On the contrary the
Supreme Court of India today is really a ‘Sons Court of India’. If Justice
K. M. Joseph, is elevated to the Supreme Court, then we will have two
eminent judges who are the sons of the former judges of the Supreme
Court. In Justice Gogoi, we have the son of former Chief Minister. CJI is
the nephew of the former CJI. Even Fali Nariman has his son anointed as
the Judge of the Supreme Court. We have in Chief Justice Bhosale the
son of former Chief Minister of Maharashtra, Justice A A Sayed the
nephew of Antulay, former Chief Minister of Maharashtra and in Justice
Gavai a former Governor’s son. 90% of the Lawyers directly elevated to
the Supreme Court and High Court are the sons of Judges or Senior
Lawyers or big politicians.
54
When it came to the violation of the equality clause of the Constitution,
the Supreme Court of India is in the dock, not really the Governments or
the Legislatures because the latter could be criticised. I could be hauled
up in contempt for the uncomfortable truths which I have stated above;
so too what I have been saying in the public domain. In many ways, I
have been persecuted.
The Supreme Court hears lawyers according to their stature. Fali
Nariman, Jethmalani, et al; the Class A Seniors are heard to an
unlimited extent: Then comes Class B, Class C and Class D seniors. The
ordinary lawyers representing the poor man’s cause is hardly heard. The
system of designation of Lawyers as ‘Seniors and others’ is the reason
behind it. The judges themselves only give the “senior” tag. The sons,
nay, kith and kin of judges and big lawyers get it as if a matter of right at
a young age; blood is thicker than water.
The judges are the real stumbling blocks in bringing about reforms
which could make the institution accountable and transparent. The most
emergent reform that need to be brought in are:
A. Restoration of NJAC by seeking a review of the judgement or by a
fresh legislation- which narrows the role of the judges; so too, the
Government and Civil Society should shoulder a definite role.
B. Dismantling the Collegium seeking review of the 2nd & 3rd Judges
case. The Attorney General should seek a review.
C. Video recording of the proceedings of all the courts and tribunals
including the Supreme Court of India.
D. Judicial Accountability Bill.
E. Repeal of Section 16 and 23(5) of the Advocates Act.
55
There are many other reforms which are long overdue. However, to keep
this letter in a telegraphic language, I am not venturing to mention.
NLC is an organisation of the underdogs, who constitute to be 90% of the
Legal Fraternity. We are small people. Underdogs. On any subject on
Judicial reform, only the ‘Elite’ like Nariman & Salve are heard.
Therefore, the concern of the common man and the ordinary lawyers are
never heard. Sri Ravi Shankar Prasad and Arjun Jaitely, they all belong
to the elite lawyers. Congress is worst in this regard. That party is a
synonym for dynasty, and sycophancy. The elite lawyers like Sibal,
Chidambaram, Singhvi, Tulsi and Khursheed dominate it.
Today all concern is about whether the Collegium or the government or
the NJAC should select the judges. This is a false premise, what is
important is who are selected. The ordinary lawyers will find their place
in the higher Judiciary as they have today in the subordinate Judiciary
and as in civil services, when vacancies are notified and applications are
invited.
Sir you have come from a humble background, you will be able to sense
and identify with the feeling, pains and sorrows of the underdog and the
poor. Therefore, we once again seek an audience with your kindself
which we hope will be granted this time.
In the unstinted faith that our request for an audience will not be a cry in the
wilderness, I remain.
Yours Sincerely
Mathews J Nedumpara
President
NLC
P.S.: The delegation of NLC will consist of 5-10 of its office bearers, depending
on the decision of the PMO.
56
To
DEPARTMENT-RELATED PARLIAMENTARY STANDING
COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW
AND JUSTICE

THROUGH
Shri A.K. Sahoo,
Addl. Director,
Rajya Sabha Secretariat,
Room No. 012,
A-Block, Ground Floor,
Parliament House Annexe Ext. Building,
New Delhi-110001,
Tel: 011-23035365,
E-mail: rs-memocpers@sansad.nic.in
Sub: “STRENGTHENING THE JUSTICE DELIVERY PROCESS”
Ref: Press Release dated 18th August, 2018.
Rt. Honourable Members,

It is our special privilege & honours to address this Hon’ble Committee on
the subject mentioned supra.
We, the National Lawyers’ Campaign for Judicial Transparency and
Reforms (NLC, for short) felt it absolutely imperative to address a common
letter as the instant one to your Honourable selves since, the justice
delivery system is the very foundation and existence of the constitutional
democracy; so too the separation of powers with respect to the judiciary,
the Parliament and the executive which falls within their exclusive domain
requires the Government/the Parliamentary Committee to act with a sense
of urgency which the current scenario calls for.
The NLC has as its members lawyers with varying political ideologies,
sometimes even poles apart. But the members of the NLC, who come from
different streams, from different parts of the country, have joined together
to campaign for eleven objectives on which everyone agrees, which is
enclosed with this representation.
57
National Lawyers’ Campaign
FOR JUDICIAL TRANSPARENCY AND REFORMS
MH/MUM/1701/2015/GBBSD
E-Mail: nationallawyerscampaign@gmail.com
Cell # +91 98205 35428 , #+91 9769110823, Off: 022 22626634
304, Hari Chambers, 3rd Floor, 54/68 SBS Marg, Near Old Custom House, Fort, Mumbai- 400 023
The NLC has left no stone unturned to achieve these objectives. Some of
the petitions and representations made by the NLC during the course of its
struggle are enclosed with this letter for your kind consideration. Those
documents are self-explanatory and seek no further elaborations. The said
documents may kindly be treated as a representation to this committee
also, to initiate suitable legislative processes.
The NLC is further seeking an audience with the committee, for which the
selected representatives will be attending the meeting on any date as may
be informed in advance.
Kindly allow the audience by appearance for oral evidence before the
committee.
With respectful regards,
Yours sincerely,
31st
August, 2018
(A.C.Philip)
Secretary (Litigation)
FOR NATIONAL LAWYERS’
CAMPAIGN FOR JUDICIAL
TRANSPARENCY AND
REFORMS
Enclosures:
i. The objectives of the National Lawyers’ Campaign For
Judicial Transparency And Reforms
ii. Petition by NLC/ members seeking video recording of
the court proceedings, pending before the Supreme
Court of India.
iii. The additional written submission in the above
petition for video recording of the court proceedings.
iv. The Review Petition by the NLC/ members for the review
of the NJAC judgment.
v. The Review Petition by the NLC/members for the review
of Juges-2 judgment.
vi. The petition by the NLC/Members for the abolition of
senior designation of Advocates.
vii. The review Petition by the NLC/ members in the above
judgment(vi).
viii. Representation by the NLC/Members for the amendment
to The Contempt Of Courts Act,1971.
58

Hon’ble Sirs and Mesdames,
Sub: Emergent judicial reforms lest supremacy of the Constitution and the
Parliament, nay, democracy should be put to great jeopardy, and “judgeocracy”
is further perpetuated through PILs.

The conviction of Mr. Prashant Bhushan for contempt of court and his
being sentenced for a fine of Re.1 which he readily agreed to pay, is a
great victory of the very right to dissent, freedom of speech and
expression, the very core of democracy. I was jubilant, but in a fraction of
a second the horrifying unseen effect of the victory of Mr. Prashant
Bhushan came to my mind. On the face of it, it is the victory of
democracy, but, in reality, the said victory will undermine the very
foundations of the concept of constitutional democracy. Why I say so, I
will deal with briefly as infra.
Even before the constitution came, the concept of judicial review was
very much in existence. The Government of India Act, 1935 was the
Constitutional Act. Any law which is contrary to the same was ultra
vires, and the civil courts had the jurisdiction to grant such declaration.
The sad part is that many lawyers and judges think mistakenly
otherwise. Articles 32 and 226 were incorporated in the constitution for
expeditious remedies for the protection of fundamental rights. The said
Articles were not intended to take away the jurisdiction of the ordinary
civil courts as constitutional courts. Suits were the only means by which
the constitutionality of an Act of Parliament could be questioned, and it
is evident from Order 27A of the CPC and Article 228 of the Constitution.
59
NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL
TRANSPARENCY AND REFORMS
304, Hari Chambers, 3rd Floor, 58-64, S.B.S. Road, Fort, Mumbai-400 023
No. 11, DD Tudor Villa, Padam Road, Vaduthala- 682 023

Mob: +91 9820535428 email: mathewsjnedumpara@gmail.com

5.9.2020
To,
Hon’ble Shri. Narendra Modi,
The Prime Minister of India.
Hon’ble Smt. Sonia Gandhi,
President of INC.
Leaders of the various political parties,
Members of Parliament, Members of the legal fraternity,
press, the public at large.
However, the elite class of lawyers in Delhi, by challenging the
constitutionality of an Act by recourse to Article 32 substituted the civil
courts, and as time passed, the unfortunate situation where judges,
lawyers, the press and even Parliamentarians being misled to think that
only the High Courts and the Supreme Court under Articles 226 and 32
alone can entertain a challenge on the constitutionality of an Act came to
be the doctrine. This, I call the coup d’etat no. 1 by which the Civil courts
came to be ousted of its legitimate jurisdiction as constitutional courts
and the ordinary lawyers came to be deprived of their brief as
constitutional lawyers.

The 2nd coup d’etat is the misinterpretation of the doctrine of precedent
to suit the vested interests of the elite class of lawyers in the Supreme
Court. Article 141 incorporates the concept of precendent. It only means
if the Supreme court has evolved a principle, where none existed, for the
resolution of an issue before it, that legal principle will be a binding
precedent for future cases. The concept is known as ‘stare decisis’ or
‘rationale decisis’ or reason for the decision. Since independence, to my
knowledge, the Supreme Court has not evolved a single principle which
never ever existed for the resolution of an issue before it, which could be
truly called a precedent. The only exception is the ‘basic structure’
theory, which I will deal with a little later. (The application of precedent
in actual practice has nothing to do with stare decisis but is the
erroneous application of the decision in a previous case to future cases).
In other words, misconception of res judicata as stare decisis.
This misconception has caused unthinkable damage to India’s
constitutional law, therefore, it requires a little explanation. What a
precedent is in the legal principle evolved by a court to be applied to
future cases, and to do so makes immense sense. I stand by the doctrine
of precedent in its true sense. The grievance I make is of the abuse, if not
misconception, of the concept. ‘Res judicata’ means that the judgment in
a case between A and B will be final and binding, subject to appeal,
between them, howsoever erroneous it could be. To constitute res
judicata, the cause of action and parties ought to be the same, and the
matter ought to have been contested. A court can make “black the white
and white the black,” provided it acted within its jurisdiction and
observed the principles of natural justice. If the court in a case between
A and B says that 1+1=0, though it is manifestly erroneous, it is res
judicata, valid though erroneous, final and binding. No court has the
jurisdiction to rely on the reasoning on facts of a previous decision
between A and B to decide the case before it between C and D. To do so
would be unjust. But, since independence, that is what is being done in
the name of precedent. This mischief is the result of the misconception of
Article 141. Article 141 which states that the law declared by the
Supreme court shall be binding on all courts within the territory of India,
only means that if the Supreme court has evolved a legal principle in a
case between A and B, distinct from the decision, will be applicable in a
future case between C and D. Article 141 in other words means the
application of a legal principle evolved by the Supreme Court as a
precedent binding on subordinate courts, as well as itself.
60
I have stated above that I am not aware of any legal principle which the
Supreme Court has evolved for the first time where none existed, other
than the ‘basic structure doctrine’ and ‘public interest litigation’, both
which have no legs to stand, which I beg to deal with as infra.
Nobody has been able to tell me a principle which the Supreme Court
has evolved for the first time as the law declared by it. What we follow is
not the doctrine of ‘stare decisis’. What we follow as stare decisis or
precedent is to treat the reason for the decision on facts, often erroneous,
of a previous case to future cases. Stare decisis is a legal principle. Its
strength is not based on any numbers. On the contrary, the doctrine of
‘res judicata’ has its foundation in numbers. For easy elucidation let me
think of the judgment of a 5-judge constitution bench in a case between
A and B where the majority 3:2 holds that a goat is a dog. Because both
have two ears, two eyes, four legs and a tail. However, the minority holds
that a goat is not a dog as one is a herbivore while the other is a
carnivore. Manifestly the majority is wrong, but so far as A and B is
concerned, the majority decision is final, binding, authoritative, nay, res
judicata. Because res judicata means a judge is free to err within his
jurisdiction, namely, on facts. No judge has the jurisdiction to err on law.
He is bound by law. As I had stated before, if my contention that the
Supreme Court has not evolved a single principle since independence,
which nobody has so far been able to contradict, what we follow in the
name of ‘stare decisis’ or Article 141 is to make even erroneous decisions
on facts of past cases applicable to future cases, upon persons who were
not parties to the earlier judgements, which is unjust.
The consequence of the misconception of treating ‘res judicata’ as
precedent has had calamitous ramifications. The judgement of the
Supreme Court in Kesavananda Bharati is a great absurdity. Prior to
Kesavananda Bharati, a litigant could only invoke Article 32 complaining
that his fundamental right is infringed. Post Kesavananda Bharati
petitions after petitions are filed claiming the litigant has not suffered
any personal injury, much less violation of his fundamental rights, but
the “basic structure” has been abrogated. I am afraid to say that most of
Mr. Prashant Bhushan’s petitions are of that category. Kesavananda
Bharati is hailed as a landmark judgement because 7 Ld. judges in
contrast to 6 held that the Parliament can amend every Article of the
Constitution, including that of the fundamental rights, but not the basic
structure. The Basic Structure Theory is against the fundamental
principle of jurisprudence, ubi jus ibi remedium, where there is a right
there is a remedy. In other words, ‘right, remedy, forum’. So far as the
parties to Kesavananda Bharati’s case is concerned, that judgment is
final, binding, nay, res judicata. So far as the future cases are concerned,
what is binding is the principle, if any, which the court has evolved for
the first time or even reiterated. What a precedent is, is the principle, not
the number or the strength of the bench. If that judgement is cited before
a High Court or even a Munsiff, it is for that judge to decide whether to
follow it or not. He/she will, if it is a valid precedent, and he/she will not
if it is per in curiam, in other words, rendered in ignorance of law. If I am
a Munsiff and the judgement in Kesavananda Bharati is cited before me,
61
I will refuse to follow it because I believe it is against the fundamental
principle of jurisprudence.
To elucidate coupe no.2 in a brief letter like this is a difficult task. The
misinterpretation of Article 141, I am afraid to say is not an entirely
innocent act. It is difficult to believe that the celebrated lawyers are
oblivious to these fundamentals. On the contrary, to cement this
misconception into an unquestionable theory is highly profitable to them.
Every day we hear of the clamour for the constitution of larger benches
and even conversation of the Supreme Court into the exclusive
“constitutional court”, and to establish a court of appeals to hear the
appeals from High Courts. Every court in this country, right from the
Munsiff, to the criminal courts to the Supreme Court, since the coming
into force of the constitution, is empowered and duty bound to construe
the constitution. But these elite lawyers, have over the years created a
false notion that constitutional law is something not digestible to other
lawyers and is their exclusive fortè.
Kesavananda Bharati has been very cleverly used to rewrite the
constitution. The classic example is the creation of the Collegium system
of appointment of judges through the Judges-2 case. Kesavananda
Bharati’s case is a half-a-million-word judgement which is nothing but a
facade. Let me further explain how Kesavananda Bharati case has been
used to whittle down the powers of the Parliament. I believe that in a
constitutional democracy, the Parliament is supreme. It is free to make
any law, subject to the limitation of Article 13(2).
The judges-2 case runs into hundreds of paragraphs. Very few would
have read it. It is impossible to imagine a judgement which is a greater
affront to reason than the same.
11 . The ‘ratio’ of that judgment is thus: (a) independence of judiciary is a
basic structure (b) the core of the independence is in the appointments
and not in post appointment decision making (c) the core of
independence is maintained if the opinion of the Chief Justice of India
has primacy over other consultees (d) the word “consultation with the
Chief Justice of India” does not mean the CJI alone and his opinion does
not mean of his alone but the plurality of the judges which is reflected
through the collegium of the senior judges (e) the collegium system is a
part of the basic structure of the constitution.
Blood is thicker than water. Collegium became a synonym for nepotism
and favoritism, with vast majority of the Chief Justice and judges of the
Supreme Court and high courts being the progenies of sitting and retired
judges. The constitution was amended and NJAC was brought in.
However, the elite class of lawyers, using SCOARA as a pawn, got the
NJAC Act declared as unconstitutional. The reason offered is that the
Collegium system of appointment is part of the ‘basic structure’ and the
Parliament has no right to abrogate it.
I would call the basic structure theory as the coup d’etat no.3. The
Parliament’s venture to establish even the National Tax Tribunal was
62
thwarted because the Supreme Court held that such a tribunal would
amount to violation of the basic structure. I will conclude by referring in
brief to coup d’etat no.4 which is certain to destroy the institution of
judiciary, that is nothing but the PIL industry, of which Mr. Prashant
Bhushan is the patron Saint.
Many consider me as pro BJP. That is primarily because many of those
closely associated with me are pro BJP and I have appeared as a lawyer
for the cause of the BJP. But speaking for myself, I have no political
affiliation. The political executive ought to be criticized, but the battle to
be fought is a political one. To use the Supreme court as a tool to gain
political mileage against whoever is in power, which Mr. Prashant
Bhushan has been doing for long, in the past when the Congress was in
power, and now against the BJP, will lead to the destruction of the
institution of judiciary. The reason is simple. What is brought before the
court by way of PIL are matters which fall in the province of the
legislature and executive, purely issues of governance and policy where
the public opinion is sharply divided. What Mr. Prashant Bhushan and
his ilk are doing is to act as if they represent the public at large and
compel the court to decide the issues along the lines he wishes, keeping
the public at large entirely in the dark, which is unethical. By forcing the
court to tread into the forbidden province of governance he is exposing
the court and the judges to public criticism. The public cannot be
blamed or controlled in criticizing the court when it decides matters
which fall in the province of policy. PIL made the Supreme Court the
most powerful court on the planet, so too, undermined its very
foundations. The court can preserve its authority and majesty only if it
confines to its legitimate domain, namely, confine itself to what is called
adjudication of lis. It should realize that it is wrong for it to substitute
the Parliament and the Executive, and act as all at once.
The court should reform, it should abandon its role as knight acting at
its will, undoing all wrongs. It should eschew the temptation to be the
government, the legislature, all at once. It should realize that its
constitutional role is that of a court of appeal. The true constitutional
courts of original jurisdiction are the civil courts. Interpretation of the
constitution is not its exclusive province, the Supreme court should
realise that even a Magistrate is vested of the power and duty to do so. It
should not perpetuate injustice by treating ‘res judicata’ as ‘stare decisis’
and should refrain from the resultant practice of needlessly quoting
judgements after judgements, leading to judgements running into
hundreds of pages, which are against common sense and reason.
The Modi government and the Opposition parties too, did a commendable
job in enacting the Constitution 99th (Amendment) Act and the NJAC
Act, thereby abolishing the Collegium system. By a judicial coup d’etat
the said Acts were struck down. I would have expected the Government
to take a stand founded on fundamental principles that the Parliament is
supreme, its views being the will of the people. No judgement can be in
perpetuity, the Parliament should assert its authority, and in doing so, it
is acting in full conformity with the fundamental principles of
constitutional law as explained above.
63
Elsewhere in the world if a judgment is contrary to the constitution it is
regarded as nullity and incapable of being enforced. However, we
consider the judgment to be gospel and amend the constitution and if the
constitution so amended is again declared by the court to be
unconstitutional which is what happened with NJAC, we throw up our
arms in despair. It is a matter of great shame for us as a nation.
I am sure this letter will reach the eyes of the Hon’ble Prime Minister,
leaders of the Opposition parties, Members of Parliament and pave way
for much needed judicial reforms, to bring an end to the opaque
collegium system of appointments and in its place bring in open
selection, substitution of the Parliament and Executive by the Court
through PILs which are no representative litigation but conducted as if
private litigation in furtherance of vested interests, video recording of
court proceedings and access to such records by the litigant public,
abolition of the draconian contempt law, abolition of the absolute
immunity that judges enjoy (which is today even extended to offences
under the Penal laws by a judicial legislation that no FIR can be
registered against a judge except with the consent of the CJI), judicial
accountability, abolition of the discriminatory practice of judges
designating lawyers as senior advocates, implementation of the transfer
policy as a solution to the ‘uncle judges syndrome’, and above all,
bringing an end to the menace of justice being buried in the camouflage
of judgments running into hundreds of pages which discuss all about
past cases and little about the case at hand, nay, the abuse of precedent,
a means by which a judge could, by citing hundreds of cases, safely
conclude that black is white, and day is night.
I await to hearing from you.
With most respectful regards,
Mathews J Nedumpara
Advocate
98205 35428
64
National Lawyers’ Campaign For Judicial Transparency
And Reforms
Progeny Chart- Judges of the Supreme Court of India.
SR.
NO.
NAME OF THE
JUDGE
KINSHIP DATE OF
APPOINMENT
Hon’ble Mr. Justice
N.V. Ramana
First Generation Lawyer 17-02-2014
Hon’ble Mr. Justice
Uday Umesh Lalit
Son of Justice U.R Lalit
Former Judge of the
Bombay High Court
13-08-2014
Hon’ble Mr. Justice
A.M. Khanwilkar
Son-in-law of Balasaheb
Pawar, Member of
Parliament.
13-05-2016
Hon’ble Dr. Justice D.Y.
Chandrachud
Son of Justice Y.V
Chandrachud Former
Chief Justice of India
13-05-2016
Hon’ble Mr. Justice L.
Nageswara Rao
Junior of Senior
Advocate Y.
Suryanarayana,
13-05-2016
Hon’ble Mr. Justice
Sanjay Kishan Kaul
Great-great-grandfather,
Raja Suraj Kishan Kaul,
Revenue minister in the
Regency council of the
princely state of Jammu
and Kashmir. His greatgrandfather, Sir Daya
Kishan Kaul, was a
statesman and diplomat
who served as the
finance minister
of Jammu & Kashmir
state. His grandfather,
Raja Upinder Kishen
Kaul, had a
17-02-2017
65
Date 06.06.2022
distinguished career in
public service. Justice
Kaul’s brother, Justice
Neeraj Kishan Kaul, was
also a judge of the Delhi
High court.
Was a batch mate of
Justice
D.Y.Chandrachud
at Delhi University.
Hon’ble Mr. Justice S.
Abdul Nazeer
First Generation Lawyer 17-02-2017
Hon’ble Ms. Justice
Indira Banerjee
Junior of Somnath
Chatterjee, Former
Speaker of Lok Sabha
07-08-2018
Hon’ble Mr. Justice
K.M. Joseph
Son of Justice K.K
Mathew, Former Judge
of the Supreme Court
07-08-2018
Hon’ble Mr. Justice
Hemant Gupta
Son of Justice J.D
Gupta, former Acting
Chief Justice of Punjab
and Haryana High Court.
02-11-2018
Hon’ble Mr. Justice
Mukeshkumar
Rasikbhai Shah
First Generation Lawyer 02-11-2018
Hon’ble Mr. Justice
Ajay Rastogi
Son of a prominent
Advocate
02-11-2018
Hon’ble Mr. Justice
Dinesh Maheshwari
Son of Senior Advocate
Ramesh Chandra
Maheshwari.
18-01-2019
Hon’ble Mr. Justice
Sanjiv Khanna
Son of Justice Dev Raj
Khanna
Former Judge of Delhi
High Court
Justice Sanjiv Khanna is
also the nephew of
Justice H. R Khanna, a
former Judge of the
Supreme Court of India.
18-01-2019
Hon’ble Mr. Justice
Bhushan Ramkrishna
Gavai
Son of R.S Gavai
Former M.P and
Governor of Kerala.
24-05-2019
66
Junior of Raja S.
Bhosale, Former
Advocate General and
Judge of a High Court.
Hon’ble Mr. Justice
Surya Kant
First Generation Lawyer 24-05-2019
Hon’ble Mr. Justice
Aniruddha Bose
Son of Somnath Bose, a
prominent Advocate.
24-05-2019
Hon’ble Mr. Justice
Ajjikuttira Somaiah
Bopanna
Son of A.N Somaiah,
Former Member of
Karnataka Legislative
Council
24-05-2019
Hon’ble Mr. Justice
Krishna Murari
Son of a prominent
Advocate and
Nephew of Senior
Advocate G.N Verma
23-09-2019
Hon’ble Mr. Justice
Shripathi Ravindra Bhat
First Generation Lawyer
and a batch mate of
Justices D.Y
Chandrachud, Sanjay
Kishan Kaul and
Hrishikesh Roy
at Delhi University.
23-09-2019
Hon’ble Mr. Justice V.
Ramasubramanian
Junior of Senior
Advocates K. S
Sarvabhauman and T.R.
Mani
23-09-2019
Hon’ble Mr. Justice
Hrishikesh Roy
Junior of a prominent
Senior Advocate Mr. J.P
Bhattacharjee and batch
mate of Justices D.Y
Chandrachud, Sanjay
Kishan Kaul and
Ravindra Bhat
at Delhi University.
Incidentally, Justice
Hrishikesh Roy, Former
Chief of Justice, Justice
Gogoi and Former Judge
of Supreme Court,
Justice, Justice Amitava
Roy were Junior of
23-09-2019
67
Senior Advocate Late
Justice J.P Bhattacharjee
Hon’ble Mr. Justice
Abhay S. Oka
Junior of Justice V.P
Tipnis, Former Judge of
the Bombay High Court
and Former Lokayukta.
Justice Oka’s Father was
also a lawyer in Thane
District court.
31.08.2021
Hon’ble Mr. Justice
Vikram Nath
Fourth Generation
Lawyer.
31.08.2021
Hon’ble Mr. Justice J.K
Maheshwari
Son of a Judge. 31.08.2021
Hon’ble Ms. Justice
Hima Kohli
Junior of Former Chief
Justice of India, Justice
Y.K Sabharwal
31.08.2021
Hon’ble Mrs. Justice
B.V Nagarathna
Daughter of Former
Chief Justice of India,
Justice E.S
Venkataramiah.
31.08.2021
Hon’ble Mr. Justice C.T
Ravikumar
Justice C.T Ravikumar is
the brother in law of
Former Chief Justice of
India, Justice
Balakrishnan’s younger
brother.
And also Junior of
Former Advocate
General of Kerala, M K
Damodaran
31.08.2021
Hon’ble Mr. Justice
M.M. Sundresh
Son of a Lawyer. 31.08.2021
Hon’ble Ms. Justice
Bela M. Trivedi
Daughter of City Civil
Court Judge, Justice
Trivedi.
31.08.2021
Hon’ble Mr. Justice
Pamidighantam Sri
Narasimha
Son of Former Judge of
Andhra Pradesh High
Court, Justice P
Kodanda Ramayya
31.08.2021
Hon’ble Mr. Justice
Sudhanshu Dhulia
Son of Justice Keshav
Chandra Dhulia, Former
09.05.2022
68
Judge of Allahabad High
Court.
Hon’ble Mr. Justice J.B
Pardiwala
Son of Advocate Burjor
Cawasji Pardiwala. His
Grandfather and Great
Grandfathers were also
Lawyers
09.05.2022
SUMMARY
SR.
NO.
RELATION OF JUDGES NUMBER
OF JUDGES
PERCENTAGE
Sons, Daughters, Son-in- laws,
Nephews, Brother, Brother-inLaws, Juniors of the Judges of the
Supreme Court and High Court.
15 46%
Sons of Senior Advocates 5 15%
Juniors of Advocate General, Lok
Sabha Speaker and Senior
Advocates
5 15%
First Generation Lawyers 5 15%
Sons and Son-in-Laws of
Governor/Member of Parliament.
3 9%
TOTAL 33

15 Judges are Sons, Daughters, Son-in- laws, Nephews, Brother,
Brother-in-Laws, Juniors of the Judges of the Supreme Court and High
Court.
5 Judges are Sons of Senior Advocates.
5 Judges are Juniors of Advocate General, Lok Sabha Speaker and
Senior Advocates
5 Judges are First Generation Lawyers.
3 Judges are Sons and Son-in-Laws of Governor/Member of
Parliament.
69
Incidentally 4 Judges are batch mates of Justice D.Y Chandrachud.
(Campus Law Centre, Delhi University, 1982 batch)
Mathews J Nedumpara
President NLC
9820535428
P.S
Since no official datas are available, the chart has been prepared based on
informal sources. Mistakes if any may kindly be pointed out.
70
IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
I.A. NO. OF 2022
IN
WRIT PETITION (CIVIL) NO. OF 2022
IN THE MATTER OF:
SHRI MATHEWS J. NEDUMPARA & ORS. PETITIONERS
VERSUS
THE HON‟BLE CHIEF JUSTICE OF INDIA AND ORS. RESPONDENTS
APPLICATION FOR PERMISSION TO APPEAR AND ARGUE IN THE
ABOVE MENTIONED WRIT PETITION FILED BEFORE THIS
HON’BLE COURT AS PARTY IN PERSONS
TO
THE HONOURABLE CHIEF
JUSTICE OF INDIA AND HIS
COMPANION JUSTICES OF THE
HONOURABLE SUPREME COURT
OF INDIA
HUMBLE PETITION OF THE
PETITIONERS IN PERSONS ABOVE
NAMED
MOST RESPECTFULLY SHOWETH:

That the instant Petition is instituted by the Petitioners in Persons for the
enforcement of their fundamental and legal rights. The Petitioner Nos. 1
to 6 are practicing advocates, the first Petitioner being in the bar for
almost 40 years, and the Petitioner No. 2 for over two decades. Petitioner
No. 7 is an entrepreneur. The Petitioner No.8 is a Chartered Accountant
and a woman entrepreneur who has attained great accolades and
recognition even at international levels. Petitioner Nos. 7 & 8 having had
to knock the doors of the courts for justice and having personal
knowledge and experience of the deficiencies of the system, have a
genuine and real stake in the instant petition seeking radical reforms in
judiciary.
That the Petitioners in Person herein have not engaged the services of the
an Advocate on Record as the Petitioner is well conversant and can
diligently assist the court and the Petitioner in Person herein wishes to
pursue the matter as in Person. A true copy of the Aadhar Card bearing
No. 2979 5739 1137 of the Petitioner in Person No. 1 is annexed herewith
and marked as ANNEXURE A-1 (PAGES 75).
A true copy of the Aadhar Card bearing No. 9377 1660 6859 of the
Petitioner in Person No. 2 is annexed herewith and marked as
ANNEXURE A-2 (PAGES 76).
A true copy of the Aadhar Card bearing No. 4607 2081 1026 of the
Petitioner in Person No. 3 is annexed herewith and marked as
ANNEXURE A-3 (PAGES 77).
A true copy of the Aadhar Card bearing No. 8120 9032 1274 of the
Petitioner in Person No. 4 is annexed herewith and marked as
ANNEXURE A-4 (PAGES 78).
A true copy of the Aadhar Card bearing No. 8634 9836 9864 of the
Petitioner in Person No. 5 is annexed herewith and marked as
ANNEXURE A-5 (PAGES 79).
A true copy of the Aadhar Card bearing No. 9325 2738 7697 of the
Petitioner in Person No. 6 is annexed herewith and marked as
ANNEXURE A-6 (PAGES 80).
A true copy of the Aadhar Card bearing No. 8951 0047 9062 of the
Petitioner in Person No. 7 is annexed herewith and marked as
ANNEXURE A-7 (PAGES 81).
A true copy of the Aadhar Card bearing No. 5281 1054 7535 of the
Petitioner in Person No. 8 is annexed herewith and marked as
ANNEXURE A-8 (PAGES 82).
A true copy of the Special Power of Attorney dated 09.11.2022 executed
between all the Petitioners herein is annexed herewith and marked as
ANNEXURE A-9 (PAGES 83 TO 86).
That the Petitioners in Person herein are not willing to accept an advocate
if appointed by this Hon‟ble Court because he himself wants to explain
his point of view regarding the above mentioned Writ Petition.
That the Petitioners in Person are trying to put forth all the facts,
circumstances and observations in the form of this Writ Petition before
this Hon‟ble Court.
That the present application is being made in the interest of justice and no
prejudice shall be caused to any party if the present application is
allowed.
That in light of the above, the balance of convenience lies in favour of the
Applicant.
PRAYER
It is, therefore, most respectfully prayed that this Hon‟ble Court may be
pleased to:
a) Allow the present Application and permit the Petitioner No. 1 Mathews J.
Nedumpara (Party in Person) to appear and argue the above mentioned
Writ Petition as Party in Person before this Hon‟ble Court for self and on
behalf of the all the Petitioners being the Special Power of Attorney
Holder; and
b) Pass such other order or further orders as this Hon‟ble Court may deem
fit and proper in the facts and circumstances of the case.
AND FOR WHICH ACT OF KINDNESS THE PETITIONERS IN PERSON
SHALL AS IN DUTY BOUND EVER PRAY.
Filed by:
MATHEWS J. NEDUMPARA
PETITIONER IN PERSON NO. 1
9820535428
Place: New Delhi
Dated: 07.11.2022
ANNEXURE A-1
//True Copy//
75
ANNEXURE A-2
//True Copy//
76
ANNEXURE A-3
//True Copy//
77
ANNEXURE A-4
’
//True Copy//
78
ANNEXURE A-5
//True Copy//
79
ANNEXURE A-6
//True Copy//
80
ANNEXURE A-7
//True Copy//
नदणी मांकः/ Enrolment No.: 0013/37005/11981
To
मनीषा िनमशे महे ता
Manisha Nimesh Mehta
C/O: Nimesh Mehta
Flat No 1905, 19th Floor , Rosella, Bldg No 148
.
Pant Nagar Ghatkopar East
.
Mumbai
Pant Nagar
Mumbai Suburban Maharashtra – 400075
9821931014
5281 0154 7535
VID : 9107 3549 2423 4652
Download Date: 26/10/2021 Issue Date: 04/10/2021
Download Date: 26/10/2021
Issue Date: 04/10/2021
मनीषा िनमशे महे ता
Manisha Nimesh Mehta
ज म तारीख/DOB: 22/12/1968
मिहला/ FEMALE
5281 0154 7535
VID : 9107 3549 2423 4652
प ा:
माफ त: िनमशे महे ता, लटॅ नं 1905, 19 लोर , रोज़ले ा
बीएलडीजी नं 148, ., ., पंत नगर घाटकोपर ई&ट, मुबं ई,
मुबं ई उपनगर,
महारा)*- 400075
Address:
C/O: Nimesh Mehta, Flat No 1905, 19th Floor
, Rosella, Bldg No 148, ., ., Pant Nagar Ghatkopar East, Mumbai, Mumbai Suburban, Maharashtra – 400075
5281 0154 7535
VID : 9107 3549 2423 4652
82
The Registry of the Supreme Court has notified 6 defects of which, except for Nos.
4 and 5, have been cured/rectified.
Defect no. 4
Defect no. 4 is “In Person to clarify the maintainability of prayer G, H and I in view
of the subject of the instant petition”.
4.1. Explanation with regard to Prayer “G”-In jurisprudence, a judicial
enquiry falls into two categories: (a) concerning the jurisdiction of the
Court and (b) the merits of the actual controversy. So far as jurisprudence
is concerned, there are two kinds of issues, “issues going to the
jurisdiction” to borrow an expression of Lord Reid in Anisminic v. Foreign
Compensation Commission, (1969) 2 AC 147, and “issues within the
jurisdiction”.“Jurisdiction is a verbal coat of many colours” said Justice
K.K. Mathew. A suit or proceedings may be barred by cause of action
estoppel, nay, res judicata. A suit or proceedings may be barred by
limitation/delay, or may be barred by monetary or territorial limits.
These questions of jurisdiction are called substantive and adjectival,
respectively. So far as the Petitioner/litigants are concerned, the right to
institute a petition under Article 32 in itself is considered to be a
fundamental right. A court considering a petition under Article 32, as is
MATHEWS J. NEDUMPARA
Advocate
101, Gundecha Chambers, Nagindas Master Rd, Kala Ghoda, Fort, Mumbai, Maharashtra 400001
E-mail: mathewsjnedumpara@gmail.com Mob:9820535428
MOST URGENT
11.11.2022
To,
The Registrar,
Supreme Court of India,
New Delhi.
Sir,
Sub: Mathews J. Nedumpara v. The Hon’ble the Chief Justice of IndiaW.P
(diary) no. 35794 of 2022- Explanation for the defects notified by the
Registry at Serial nos. 4 and 5 – reg.
the case of a Civil Court, is duty bound to adjudicate all questions
concerning jurisdiction, whether substantive or adjectival.
4.2. Since the Registry has not given any indication as to what is on its mind as
to the nature of the objection, to repeat, I am forced to make a wild guess.
The only thing that comes to my mind is whether the Registry assumes
“prayers G, H and I” to be barred by the doctrine of res judicata/estoppel.
Assuming that is the case, the Petitioners assert prayers are not barred by
res judicata.
4.3. The core of the doctrine of res judicata is the adjudication of a lis on its
merits, affording the parties concerned a full opportunity to be heard
adhering to the natural justice, to adduce evidence and argue their case. If
there is no decision on the merits, the doctrine of res judicata has no
application at all. The petitions preferred by Petitioner nos. 1 and 2
seeking a declaration that the NJAC judgment is void/review of the same
was dismissed, in chambers, without hearing the Petitioners, by way of
cyclostyle, brief, cryptic order. There is absolutely no bar of the instant
petition by virtue of the doctrine of res judicata. To repeat, in the earlier
proceedings nothing was decided on its merits, nor were the Petitioners
even heard.
4.4. Explanation with regard to Prayer “H”-The objection that prayer “H”is
not maintainable is wholly unfounded. Prayer “H” is for a declaration that
the rule that a curative petition is maintainable only upon being
supported by a certificate of a Senior Advocate is violative of Article 14.
The said rule has resulted in denial of the fundamental right of the
Petitioners to file a curative petition aggrieved by the dismissal of their
review petition.
4.5. Explanation with regard to Prayer “I”-The explanation offered above
for prayer “G” equally apply for the objections concerning prayer “I”. To
repeat, had the Supreme. Court heard the petition seeking review of the
NJAC preferred by Petitioner nos. 1 and 2 and rejected the same offering
reasons, then, probably, the doctrine of res judicata would have applied.
The Court did not hear Petitioner nos. 1 and 2 or record their arguments
on the merits of the NJAC issue. The Petitioners, therefore, are not barred
by the doctrine of res judicata/estoppel.
4.6. Though I have given a separate explanation for each prayer, it was not
necessary at all. Whether a declaration ought to be sought or not is the
province of the petitioner/plaintiff, and whether to grant it or not is in the
province of the Court. The Registry has no role whatsoever with regard to
pure questions of law.
4.7. As aforesaid, at any rate, these issues are substantial questions of pure
jurisprudence, which the all respect to the officers of the Registry, the
humble Petitioners submit to be beyond the scope of scrutiny of the
Registry.
Defect no. 5
Defect no. 5 is “in Person to further clarify regarding Respondent no. 5 to 14 as to
whether they are necessary parties as clarification at Para 6 Page 8 of the petition
is incomplete”.
5.1. The NJAC case was about the constitutionality of the Constitution 99th
(Amendment) Act and the NJAC Act. he said Acts were passed by the
Parliament unanimously. It was the will of the people. No Court or
authority has power to undo it. But the SCAORA got it quashed behind the
backs of the people of this country. They did not bring on the party array
any of the political parties, not to speak of even the ruling BJP and the
Congress, the principal opposition party. Not a single Member of
Parliament was on the party array, the SCAORA played a fraud on the
people by obtaining a judgment behind the back of the people of this
country. If SCAORA’s petition was assumed to be maintainable, then the
principles applicable to a representative suit/class action ought to have
been followed. A few lawyers were able to get the NJAC Act quashed
because they were powerful. The petitioner/plaintiff is the dominus litus.
He/she is the master of the proceedings. It is for him/her to decide who is
to be on the party array. If he/she fails to bring the necessary parties on
the party array, his/her petition/proceedings is rendered void ab initio.
The Registry has no objection that the Petitioners have failed to bring on
the party array all the necessary parties. On the contrary, it has objected to
the Petitioners bringing the State Governments and the major political
parties on the party array. If at all the Petitioner can be faulted, it could
only be for not bringing in all the State Governments on the party array.
The Petitioner has craved the leave of the Hon’ble Court to do so in due
course. The objection of the Registry on this count is, therefore,
misconceived.
This explanation, the Petitioners, in all humility, hope would satisfy the Registry
and that the petition will be numbered in no delay.
With kind regards,
Yours Sincerely,
MATHEWS J. NEDUMPARA
9820535428
mathewsjnedumpara@gmail.com

SECTION
IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. OF 2022
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
SHRI MATHEWS J. NEDUMPARA & ORS. PETITIONERS
VERSUS
THE HON‟BLE CHIEF JUSTICE OF INDIA AND ORS. RESPONDENTS
INDEX
Sl. No. Description Copies C.
Fee
1 Listing Proforma 1+3
2 Synopsis & List of Dates 1+3
3 Writ Petition with affidavit 1+3
4 Annexures P-1 to P-5 1+3
5 I.A. NO. OF 2022
Application for permission to appear and argue the above
mentioned Writ Petition filed before this Hon‟ble Court
as party in Person.
1+3
6 Annexure A-1 to A-8 1+3
7 Memo of Appearances
Total Rs.
Filed by:
Mathews J. Nedumpara
Petitioner In Person No.1,
101, 1st Floor, Gundecha Chambers,
Nagindas Master Road, Fort, Mumbai400001, Maharashtra
Mob. No. 9820535428
E-Mail: mathewsjnedumpara@gmail.com
Dated: 07.11.2022
Place: New Delhi
95

Mob: +91 9820535428 email: mathewsjnedumpara@gmail.com

Mob: +91 9820535428 email: mathewsjnedumpara@gmail.com

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