Collegium system of appointment of judges

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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

  1. Name of Matter:

    Civil Criminal
  2. (a) Petitioner/Appellant No. 1: SHRI MATHEWS J.
    NEDUMPARA & ORS.
    S (b) E-mail ID: mathewsjnedumpara@gmail.com
    (c) Mobile Phone Number: 9820535428, 9447165650
  3. (a) Respondent No. 1: THE HON‟BLE CHIEF JUSTICE
    OF INDIA AND ORS.
    (b) E-mail ID: NA
    (c) Mobile Phone Number:
  4. (a) Main category classification: 18 Ordinary Civil Matter
    1807 Others
    (b) Sub classification: 18 Ordinary Civil Matter
    1807 Others
  5. Not to be listed before: NA
  6. 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.
  7. 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
  8. 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
  9. Tax Matters: State the tax effect: NA
  10. Special Category:
    (First petitioner/appellant only)
    NA
    Senior
    citizen > 65
    Years
    SC/ST Woma
    n/child
    Disabled Legal
    Aid Case In custody
  11. 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:
  12. SHRI MATHEWS J. NEDUMPARA
    ADVOCATE,
    101, 1
    ST FLOOR, GUNDECHA
    CHAMBER, NAGINDAS ROAD,
    FORT MUMBAI-400001,
    MAHARASHTRA. PETITIONER NO. 1
  13. 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
  14. MARIA NEDUMPARA
    ADVOCATE
    12-F, HARBOUR HEIGHTS,
    COLABA CAUSEWAY, MUMBAI,
    MAHARASHTRA-400005. PETITIONER NO. 3
  15. RAJESH VISHNU ADREKAR
    ADVOCATE
    401, D-14, YOGI VARDHAN CHS,
    YOGI NAGAR ROAD, YOGI NAGAR,
    BORIVILI WEST, MUMBAI-400092,
    MAHARASHTRA. PETITIONER NO. 4
  16. 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.

7.

8.

1.

2.

3.

4.

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

  1. PRINCIPAL SECRETARY
    TO THE PRIME MINISTER
    PRIMER MINSTER‟S OFFICE,
    7 LOK KALYAN MARG,
    NEW DELHI. RESPONDENT NO. 5
  2. INDIAN NATIONAL CONGRESS
    THROUGH ITS NATIONAL PRESIDENT
    24, AKBAR ROAD,
    NEW DELHI. RESPONDENT NO. 6
  3. BHARTIYA JANATA PARTY
    THROUGH ITS NATIONAL PRESIDENT,
    B.J.P. HEAD QUARTERS
    DEEN DAYAL UPADHYAY MARG,
    NEW DELHI. RESPONDENT NO. 7
  4. COMMUNIST PARTY OF INDIA
    THROUGH ITS GENERAL SECRETARY,
    AJOY BHAVAN, 15,
    INDRAJIT GUPTA MARG,
    NEW DELHI-110002. RESPONDENT NO. 8
  5. STATE OF MAHARASHTRA
    THROUGH ITS CHIEF SECRETARY,
    MANTRALAYA, MUMBAI-400032,
    MAHARASHTRA. RESPONDENT NO. 9
  6. STATE OF KERALA
    THROUGH ITS CHIEF SECRETARY,
    THIRUVANANTHAPURAM, KERALA. RESPONDENT NO. 10
  7. STATE OF TAMIL NADU
    THROUGH ITS CHIEF SECRETARY,
    FORT ST. GEORGE, CHENNAI,
    TAMIL NADU. RESPONDENT NO. 11
  8. STATE OF UTTAR PRADESH,
    THROUGH ITS CHIEF SECRETARY,
    SECRETARIAT LUCKNOW,
    UTTAR PRADESH. RESPONDENT NO. 12
  9. AAM AADMI PARTY
    THROUGH ITS PRESIDENT
    206, ROUSE AVENUE,
    DEEN DAYAL UPADHYAY MARG,
    ITO, NEW DELHI-110002. RESPONDENT NO. 13
  10. 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:
  11. 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.
  12. 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!
  13. 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.
  14. 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.
  15. 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
  16. 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
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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
  23. 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.
  24. 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.
  25. 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.
  26. 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
  27. 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
  28. 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.
  29. 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.
  30. 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.
  31. 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.
  32. 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.
  33. 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
  34. 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
  35. 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.
  36. 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.
  37. 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.
  38. 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
  39. 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”.
  40. 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
  41. 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.
  42. 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.
  43. 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
  44. 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
  45. 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
  46. 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.
  47. 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.
  48. 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
  49. 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
  50. 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
  51. 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.
  52. 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
  53. 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.
  54. 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.
  55. 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
  56. 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
  57. 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.
  58. 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
  59. 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.
  60. 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.
  61. 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
  62. 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
  63. 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.
  64. 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
  65. 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.
  66. 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.
  67. 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
  68. 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.
  69. 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.
  70. 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.
  71. 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
  72. 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.

  1. Financial assistance to all lawyers irrespective of standing, particularly, from
    Banks and Financial Institutions obligated by law.
  2. 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

  1. Dismantling of the collegium
  2. 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.
  3. 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.
  4. 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.
  5. 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
  6. 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.
  7. 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.
  8. 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
  9. There are many other reforms which are long overdue. However, to keep
    this letter in a telegraphic language, I am not venturing to mention.
  10. 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.
  11. 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.
  12. 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,

  1. It is our special privilege & honours to address this Hon’ble Committee on
    the subject mentioned supra.
  2. 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.
  3. 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
  4. 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.
  5. 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.
  6. 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.

  1. 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.
  2. 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.

  1. 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.
  2. 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
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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).
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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
  14. 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.
  15. 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
  16. Hon’ble Mr. Justice
    N.V. Ramana
    First Generation Lawyer 17-02-2014
  17. Hon’ble Mr. Justice
    Uday Umesh Lalit
    Son of Justice U.R Lalit
    Former Judge of the
    Bombay High Court
    13-08-2014
  18. Hon’ble Mr. Justice
    A.M. Khanwilkar
    Son-in-law of Balasaheb
    Pawar, Member of
    Parliament.
    13-05-2016
  19. Hon’ble Dr. Justice D.Y.
    Chandrachud
    Son of Justice Y.V
    Chandrachud Former
    Chief Justice of India
    13-05-2016
  20. Hon’ble Mr. Justice L.
    Nageswara Rao
    Junior of Senior
    Advocate Y.
    Suryanarayana,
    13-05-2016
  21. 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.
  22. Hon’ble Mr. Justice S.
    Abdul Nazeer
    First Generation Lawyer 17-02-2017
  23. Hon’ble Ms. Justice
    Indira Banerjee
    Junior of Somnath
    Chatterjee, Former
    Speaker of Lok Sabha
    07-08-2018
  24. Hon’ble Mr. Justice
    K.M. Joseph
    Son of Justice K.K
    Mathew, Former Judge
    of the Supreme Court
    07-08-2018
  25. 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
  26. Hon’ble Mr. Justice
    Mukeshkumar
    Rasikbhai Shah
    First Generation Lawyer 02-11-2018
  27. Hon’ble Mr. Justice
    Ajay Rastogi
    Son of a prominent
    Advocate
    02-11-2018
  28. Hon’ble Mr. Justice
    Dinesh Maheshwari
    Son of Senior Advocate
    Ramesh Chandra
    Maheshwari.
    18-01-2019
  29. 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
  30. 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.
  31. Hon’ble Mr. Justice
    Surya Kant
    First Generation Lawyer 24-05-2019
  32. Hon’ble Mr. Justice
    Aniruddha Bose
    Son of Somnath Bose, a
    prominent Advocate.
    24-05-2019
  33. Hon’ble Mr. Justice
    Ajjikuttira Somaiah
    Bopanna
    Son of A.N Somaiah,
    Former Member of
    Karnataka Legislative
    Council
    24-05-2019
  34. Hon’ble Mr. Justice
    Krishna Murari
    Son of a prominent
    Advocate and
    Nephew of Senior
    Advocate G.N Verma
    23-09-2019
  35. 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
  36. Hon’ble Mr. Justice V.
    Ramasubramanian
    Junior of Senior
    Advocates K. S
    Sarvabhauman and T.R.
    Mani
    23-09-2019
  37. 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
  38. 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
  39. Hon’ble Mr. Justice
    Vikram Nath
    Fourth Generation
    Lawyer.
    31.08.2021
  40. Hon’ble Mr. Justice J.K
    Maheshwari
    Son of a Judge. 31.08.2021
  41. Hon’ble Ms. Justice
    Hima Kohli
    Junior of Former Chief
    Justice of India, Justice
    Y.K Sabharwal
    31.08.2021
  42. Hon’ble Mrs. Justice
    B.V Nagarathna
    Daughter of Former
    Chief Justice of India,
    Justice E.S
    Venkataramiah.
    31.08.2021
  43. 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
  44. Hon’ble Mr. Justice
    M.M. Sundresh
    Son of a Lawyer. 31.08.2021
  45. Hon’ble Ms. Justice
    Bela M. Trivedi
    Daughter of City Civil
    Court Judge, Justice
    Trivedi.
    31.08.2021
  46. Hon’ble Mr. Justice
    Pamidighantam Sri
    Narasimha
    Son of Former Judge of
    Andhra Pradesh High
    Court, Justice P
    Kodanda Ramayya
    31.08.2021
  47. Hon’ble Mr. Justice
    Sudhanshu Dhulia
    Son of Justice Keshav
    Chandra Dhulia, Former
    09.05.2022
    68
    Judge of Allahabad High
    Court.
  48. 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
  49. Sons, Daughters, Son-in- laws,
    Nephews, Brother, Brother-inLaws, Juniors of the Judges of the
    Supreme Court and High Court.
    15 46%
  50. Sons of Senior Advocates 5 15%
  51. Juniors of Advocate General, Lok
    Sabha Speaker and Senior
    Advocates
    5 15%
  52. First Generation Lawyers 5 15%
  53. Sons and Son-in-Laws of
    Governor/Member of Parliament.
    3 9%
  54. 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:
  1. 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.
  2. 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).
  3. 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.
  4. 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.
  5. 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.
  6. 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
  7. The Registry of the Supreme Court has notified 6 defects of which, except for Nos.
    4 and 5, have been cured/rectified.
  8. 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.
  9. 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.
  10. 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

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