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

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.

Hon’ble Sirs and Mesdames,

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

The conviction of Mr. Prashant Bhushan for contempt of court and his being sentenced for a fine of Re.1 which he readily agreed to pay, is a great victory of the very right to dissent, freedom of speech and expression, the very core of democracy. I was jubilant, but in a fraction of a second the horrifying unseen effect of the victory of Mr. Prashant Bhushan came to my mind. On the face of it, it is the victory of democracy, but, in reality, the said victory will undermine the very foundations of the concept of constitutional democracy. Why I say so, I will deal with briefly as infra.

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. 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.

3. 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.

4. 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.
5. 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.

6. 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.

7. 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, I will refuse to follow it because I believe it is against the fundamental principle of jurisprudence.
8. 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.
9. 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).
10. 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.

12. 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.
13. 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 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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
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