Notes of Argument in Kerala High Court in Writ Petition Challenging the Kerala High Court Recommendations

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO 11086 OF 2018

C J Joveson …Petitioner
Versus
Chief Justice of the High Court of Kerala & Others …Respondents

NOTES OF ARGUMENT BY SRI. MATHEWS J NEDUMPARA, COUNSEL FOR THE PETITIONER

1. The ‘Equality of Status and Opportunity’ is one of the noble objectives of the Constitution of India seeks to secure for all its citizens in terms of its very preamble. It is a travesty of justice that the first petitioner, a Lawyer, is constrained to institute an application under article 226 of the Constitution of India arraying the Chief Justice of India and the Chief Justice of the Kerala High court as respondents, for a declaration that in recommending respondents 6 to 10 as the judges of the Kerala High Court without notifying the vacancies and without inviting applications from all eligible the Hon’ble CJI/CJ/Collegium have denied him and the ordinary Lawyers, the sons and daughters of the common man like him who have no god fathers, equality of opportunity in being appointed as the judges of the Kerala High Court. It is even greater a travesty of justice that the Chief Justice of the Kerala/ the collegium of the Kerala High Court, so too the state government opposed his plea for notification of the vacancies and invitation of appointments from all candidates and a fresh open and transparent selection and appointment. In other words, a plea for equal opportunity to all who are eligible and deserving to be appointed as a judge of the Kerala High Court. It is even more shocking that the respondents, namely, the Chief Justice of India / Chief Justice of Kerala High Court and the state government took the plea that the above writ petition is not maintainable even; because, the decisions of the ‘collegium’ of the Kerala High Court is not justifiable, namely, that it cannot be questioned anywhere; even where it is challenged on the ground that the collegium of the Kerala High Court headed by the Chief Justice has picked up lawyers who are the kith and kin of the sitting and retired judges of the Kerala High Court and the Supreme Court, so too that of the son of the senior of the sitting judge of the Supreme Court hailing from Kerala, so too that of the Advocate General. The allegation is that respondents 6 to 10 were picked up for considerations other than merit and those more deserving and eligible were ignored.
2. The only concession Sri. Ramesh Babu, Sr. Adv. representing the Chief Justice/ Collegium of the Kerala High Court was willing to make was that if the respondents, namely, the kith and kin of the judges and the Attorney General, if needed were not eligible because they lack the basic qualifications prescribed in Article 224, then, their appointment could be questioned by way of a Writ of “Quo warranto”. The further plea of Sri. Ramesh Babu is that Article 13(2) of the Constitution has no application; the collegium is not ‘State’ within the meaning of Article 12; that no judicial review will lie. Because the Supreme Court in Judges 2 case, so too in Mahesh Chandra Gupta and R. Gandhi has held so authoritatively; namely, that no judicial review will lie. In short, the recommendation of the collegium cannot be questioned anywhere. The law affords the petitioners no remedy even when his fundamental rights for equal opportunity is denied.
3. Sri Ramesh Babu cannot be faulted for his submission, as above, though it should shock the conscience of any right thinking person, nay, anyone who considers our constitution as a great charter which guarantees to all citizens “equality of status and of opportunity”
4. One would wonder what led to the current sorry state of affairs as above. The dismissal of the petitioners plea is almost a fait accompli, though the argument of Sri. Ramesh Babu is reductio ad absurdum , namely, argument to absurdity. The reason is simple. The concept of ‘precedent’ one worthy of great observation has been reduced to near absurdity so far as India is concerned. Let me, explain it a bit elaborately, as infra:
   a. Precedent is one of the sources of Law. The reason behind it is that if a superior court has evolved a principle and that principle could be applied for resolution of a controversy an inferior court is called upon to adjudicate, then the inferior court could follow it safely, instead of venturing to evolve a principle by itself as the principle is already evolved as above . Section 212 of the Government of India Act, 1935 embodied this principle. When we framed our constitution, the said article too was adopted with a slight change in the language. The constituent assembly debates indicate that there was hardly any controversy about its adoption. There was hardly any discussion. Section 212 of the Government of India Act, 1935 was re-enacted as Article 141 of the Constitution of India.
   b. However, as time passed Article 141 of the Constitution, namely, the doctrine of precedent assumed a meaning, which the founding fathers would not have ever thought of. Because, the concept of precedent which stands embodied in Article 141 took a dimension unknown to jurisprudence, namely Judicial Legislation. Article 142 of the Constitution which merely, reasserts invested in the Supreme Court as the highest court of the Land also happen to revive a meaning which is unknown to jurisprudence, namely, legislation. The judgments of the Supreme Court no longer are understood to be mere precedents, but are today declarations of Law by the Supreme Court which is binding on all, even to those who are not parties to the Lis before the Supreme Court as if a binding judgment inter partes, as if a law enacted by the Parliament. The difference between Resjudicata and stare decisis is forgotten. Nay, even more than a law enacted by the parliament because the laws enacted by the parliament can be questioned in a court if violative of fundamental rights.
5. As aforesaid, the misconception of the doctrine of precedent as embodied in Article 141 of the Constitution brought in a new Era of Constitutional jurisprudence which is contrary to the very fundamentals of jurisprudence as universally recognized. The judgments of the Supreme Court became the Law of the Land, of which no judicial review will lie. The Supreme court became the 3rd Chamber of Parliament, the Supreme one. The Constitution became what the judges rewrite it to be. Judicial Interpretation of the constitution was substituted by Judicial rewrite of the Constitution.With great respect, I beg to submit that the judgment in Keshavanada Bharati, one celebrated as the ‘Fundamental rights’ case is one rendered against the first principles of jurisprudence. It is the root cause of the constitutional crisis the nation finds itself grappled in. Nobody has the courage to criticize the Keshavananda Bharati. Because to do so is a sacrilege.
6. To criticize Keshavanandan Bharati is heresy yet, I beg to do so. In Golakhnaths case, a Bench of 11 judges of the Supreme Court. Held (10:1) that the Parliament in exercise of its constituent power cannot take away or abridge the fundamental rights guaranteed in the Part III of the constitution. That was a great judgment. A great charter. A magnacarta indeed! However, today, hardly any one acknowledges Golaknath to be so. On the contrary, Keshavananda Bharati which runs into half a million words, are thus incapable of being read or easily comprehended, is adored as the fundamental rights case, though in Keshavananda the Supreme Court held that every article of the Constitution including those concerning the Fundamental Rights could be amended.
7. To repeat, in Keshavananda Bharati (7:6) the Supreme Court held that the parliament is competent to amend every Article of the Constitution, including that of Part III, namely, Fundamental Rights, but not the ‘basic structure’ of the Constitution. Till 24.04.1973 namely, when, Keshavananda was pronounced, one could have invoked the jurisdiction of the Supreme Court or High Courts only if one’s fundamental/legal rights are infringed. But after 24.04.1973 one could invoke the jurisdiction of the Supreme Court and High Court even if no fundamental or legal rights are infringed; but because the “Basic Structure” of the constitution is infringed. The said judgment is contrary to the very first principle of Jurisprudence and is rendered per incuriam. I beg to elaborate the same a little as infra:
   a. The concept of rule of Law is founded on the principle that any dispute or lis involving right or obligations interse, namely, between citizens and citizens and between citizen and the Government and the vice versa, also between court and Government will be adjudicated by the courts. Matters concerning the public at large, is for the parliament to legislate, it is in their exclusive province. In other words, if one’s rights are infringed, by a fellow citizen or the state, the citizen could invoke the jurisdiction of a competent court; he could seek all the remedies the law provides for and the decision of the court or Tribunal, right or wrong, is final and binding between the parties subject to any appeal or revision or review, the Law provides no remedy and if there be no right, so too no remedy, then the Law provides for no forum. The concept of Locus standi is the foundation of the doctrine of access to justice.
   b. Keshavanandan Bharathi, however, did a great disservice to the Indian jurisprudence by enunciating the doctrine of ‘Basic Structure’ of the constitution which as time passed made the lawyers and common man believe that he can approach the Supreme Court and High Court even when no right of his is infringed, but constitution is infringed by an Act of Parliament.
8. The damage caused to the Indian constructional law due to the basic structure doctrine still was very limited until the birth of the concept of PIL in the early 1980’s. I say so because in Indira Nehru Gandhi v. Raj Narain which was the first case where the basic structure doctrine was pressed in, the Supreme Court made the first fundamental rights are an integral component of the ‘Basic Structure’
9. If the concept of ‘Basic Structure’ was the first fallacy, the PIL was the next one which bewilders any student of Indian Constitutional Law.
10. The legendary Justice Krishna Iyer, Justice Bhagwati, Justice Y.V Chandrachud et al when they coined a terminology PIL they had nothing other than making justice accessible to the poor and the illiterate in their mind; although, they coined the expression ”Public Interest Litigation” what they really had meant was ‘Pro Bono Litigation’. The word ‘Public’ was a misnomer. By PIL what was intended to secure was the “Private” rights of the illiterate and the poor languishing in jails; so too of bonded laborers and those subjected to exploitation and injustice. The legendary judge did not discover any new remedies. The remedies in the realm of public law, namely, mandamus and quo warranto were very much in existence prior to the discovery of PIL; no new remedy was evolved. The doctrine of PIL as is understood today is in gross ignorance of the First Principle of Law.
11. If Keshavananda Bharati failed to notice that no one could invoke Articles 32/226 unless his or her rights are infringed, for there cannot be a forum unless there exists a “Lis” to be adjudicated, the damage caused to the constitutional law by the Concept of PIL (as is now in practice) is far greater.
12. The PIL allows every litigant to assume the rob of the Attorney General, the right to represent the public at large. PIL permits one to invoke the jurisdiction of the Supreme Court and High Court even while he complains of no violation of his fundamental or legal rights. PIL meant substitution of the executive and legislature by the Supreme Court; the courts to act as if it is the legislature and executive, all at once. The Judges II case is the fallout of the misconception of the law as above, which to point out as above is a nightmare, in as much as my consultations as above are contrary to the popular perceptions. Am scared, for I believe my position is as vulnerable as that of Galileo where he spoke against the teaching of the church hearsay heresy, a capital sin.
13. In the 1st Judges case the question of Locus Standi; did not actively arise because Justice S N Kumar who was not confirmed as a permanent judge was party to the proceedings. However, Justice Bhagwati happened to dwell into the concept of Locus Standi which his lordship ought not have, in terms of the judgement in Mirajkar’s case because therein it was held that the courts should refrain from pronouncing upon issues which are not before it. The 1st judges case, however, happened to create an impression that one can institute a writ without a cause of action, though the court did not say so in as many words
14. The SCORA did not complaint violation of any fundamental right. It only pleaded the violation of the basic structure. The argument was that independence of the judiciary is a basic structure and that independence is secured only when the CJI has primacy in the matter of appointment and transfer of judges. Neither the Attorney General, Sri. Mohan Bannerji nor Sri Parasaran questioned the Locus standi of the SCORA. Had they raised that plea and questioned the maintainability of the PIL of SCORA, the Judges II case would not have been decided in the manner it happened to be. The Constitution of India would not have been rewritten without the authority of the parliament. No collegium would have come into existence. The judges II case was nothing but judicial legislation. It was nothing but rewriting of the constitution. However the Government did not file a review. It sought a presidential reference. However the Attorney General made it expressly clear that the Government was not seeking any review. Thus the Presidential reference (Judges III case) became a damp squib.
15. The Judges II & III case institutionalized a new era where judges appointed themselves, that too, in most secretive manner. The office of the Judges of the High Courts and Supreme Court are high constitutional office of great prestige and power. The judges also enjoy attractive pay and perks. “Power corrupts and absolute power corrupts absolutely” said Lord Acton. Judges too are humans subject to the sameemotions we the common people are prone to. That has meant the kith and kin of judges, their juniors, so too of the Chief Ministers, Governors and the powerful being appointed in preference over the sons and daughters of the common man who are equal if not deserving and meritorious.
16. The large scale complaints against the collegium resulted in the unanimity of public opinion and the enactment of NJAC. Even the constitution was amended for that purpose.
17. However, the NJAC was challenged on the premise that the basic structure of the constitution was infringed even before it came into existence. The plea was, it was violative of the ‘Basic Structure’, that the independence of the judiciary is a basic structure which cannot be violated. The curios plea was that the independence of the judiciary is secured only when the judges have primacy in judicial appointments. In other words, judges appointing themselves is a basic structure of the constitution. And any system of appointment other than the one where the judges appoint themselves is unconstitutional. The then Attorney General Sri Mukul Rohatgi, unfortunately repeated the very same mistake which the Attorney General had committed in Judges II case in not questioning the very justiciability of the PIL of SCORA.
18. In Writ Petition No. 124 which was instituted by Sri Mathews J Nedumpara which was heard and disposed of by a common order along with PIL of SCORA, the very maintainability of the challenge of NJAC was raised. It was pleaded by Sri Mathews J Nedumpara as infra:
    a. The NJAC/99th Constitution Amendment Act is the will of the people on a matter of Legislative policy, namely, the method of appointment of judges of the superior courts and did not involve violation of any ones fundamental rights and therefore is not maintainable. Article 32 can be invoked only for enforcement of fundamental rights where it is violated or apprehended; not otherwise.
    b. On the contrary if the said challenge of the said act is justiciable, then the entire 130 crore people of this country have a right to be heard.
    c. The bench constituted to hear the NJAC case is disqualified because of conflict of interest and that even the doctrine of ‘Necessity’ cannot be invoked because it is possible to constitute a Bench of even 11 judges none whom will be part of the collegium in the event of the collegium being restored as a fallout of the decision of the bench so constituted to strike down the NJAC.
19. The aforesaid contention raised by Sri Mathews J Nedumpara as petitioner in Writ Petition 124 of 2014 were unfortunately not considered at all by the bench headed by Justice Kehar of recusal of Justice Kehar, the presiding judge alone was decided. The disqualification of Justice Kurian Joseph and Justice Madan B Lokur, so too of Justice Chelameshwar from hearing the NJAC, they being the future members of the collegium was not considered at all.
20. Having discussed the background leading to the institution of the instant writ petition, as above, I beg to submit that the plan of the collegium of the Kerala High Court that the instant writ petition is not maintainable is wholly untenable. The said submission is founded on the fallacies, which are stated in brief a infra:
    a. Collegium is not a ‘State’ within the meaning of Article 12 read with Article 13(2) of the Constitution of India and therefore no judicial review will lie. This contention is founded on the Judges II case. Judges II case is one rendered per incuriam. The exposition in Judges I case is the correct law. The number of the judges on the bench is not the deciding factor. It is the principle of any, enunciated that unalter. If a judgement ie per incuriam, it is per incuriam no matter what the strength of the bench is. Right is a right, whoever says it; so too a wrong is wrong whoever says it.
    b. What is embodied in Article 141 of the Constitution is the doctrine of pPrecedent, namely, stair decisis, namely to stand by the settled principles and not to move away from them. Article 141 does not empower the Supreme Court to declare the law of the land which the legislature alone is empowered. The Supreme Court judgments, if rendered per curiam are binding on all courts and Tribunals in this country as a precedent. Whether a judgement constitutes to be binding precedent or not is for the court before which the judgement is referred as a precedent, to decide. The petitioner’s plea is that Keshavanandan Bharati is rendered per incuriam. Golakh Nath is the great law. So too SP Gupta in so far its interpretation of Article 124 and 224 of the constitution is concerned. The Judges II case, so too the NJAC case constitute to be no binding precedent. The Judges II case is nothing but legislation to put it mildly. It does not fall within the legitimate province of the judiciary, namely, the interpretation of Law. The Parliament by enacting the constitution 99th amendment sought to rectify the grave error,the Judges II case unfortunately was. But the parliament’s efforts to correct a grave error on the part of the judiciary was rendered waste as the Supreme Court struck down the NJAC & the Constitution 99th Amendment Act.
21. The NJAC judgement is per incuriam for the following reasons
    a. The NJAC was a legislation in the province of policy and it was not justiciable. This important issue, though was raised in Writ Petition No. 124 of 2014 and argued, it was not addressed at all by the court in its judgement running into 1043 pages, it may be shocking; but it is the truth.
    b. Nobody, had alleged any violation of their fundamental right, without which the PIL under Article 32 of the Constitution was not maintainable at all.
    c. If the challenge of NJAC was assumed to be justiciable, than every citizen has a right to be heard. He was not heard. A judgement can only bind the parties to the case and who are not the petitioner in the instant Writ Petition was not a party to the NJAC case. In so far as he is concerned, the judgment is one rendered behind his back and therefore not binding on him; is nothing but void ab initio; a nullity. The petitioner in the instant Writ petition is seeking the enforcement of his fundamental rights. He is told that he is estopped from doing so because of the judgements in the judges 2 case and the NJAC case. Since the judge 2 Case and the NJAC case are rendered behind his back, he is not bound by them. The said judgment contains no legal principles which have any precedential value. On the contrary, the judgment in the NJAC was contrary to the very first principles of the constitutional law.
    d. Res judicata vs stare decisis
    In so far as the Petitioner is concerned, the judge 2 Case and the NJAC case constitute to be no res judicata because he was not a party to it. It constitutes to be no stare decisis because the same are rendered per incuriam. It was not merely a judgement rendered per incuriam; it meant rewriting of the Constitution, sadly though.

22. The NJAC judgement contains 3 parts, namely ;
    (a) the so-called merits of the case
    (b) motion for review of the judges 2 case.
    (c) plea for recusal of Justice Khehar, the Presiding judge.

23. The merit (a) above has already been discussed Supra. The Attorney General moved a motion seeking the review of the 2nd judges case in the NJAC case. The motion (discussed at page 213 to 312- (2016) 5 SCC 1) at the hands of the learned Attorney General is borne out of the gross misconception, nay, the many a fallacies as above of the plea of the AG was that the Judge 2 Case is void, he can well seek a review thereof under article 145. And if such a Review Petition was filed in the Judge 2 case, then it will be heard by a bench of a Judges to be constituted by the CJI in terms of Rule___ of the SC Rules read with Rule 5, order 47 of the CPC.
24. If the AG had felt Judges II case was wrongly decided which probably is what he had meant, then it was open to him to contend so. He could have pleaded that the Judges 2 case is per in curiam. Incidentally Fali Nariman & Ram Jethmalani in Judges 2 case had pleaded that the Judge I case was rendered per incuriam. That plea was accepted and accordingly judge 1 case was over ruled. Had Mukul Rohatgi pleaded that the Judge 2 case was per in curiam, the 5 judges would have considered it, he being the AG unlike Sri Mathews. J. Nedumpara whose contentions as above were not even recorded, far from being considered and accepted or rejected because he was a persona non grata. Not merely the AG failed to defend the government, many an eminent lawyers including Sri Harish Salve and KK Venugopal representing the State Government failed to plead that the 2nd judges case was rendered per incuriam and that it be declared so and that the plea against NJAC was not maintainable at all.
25. The entire NJAC Bench including Justice Chelameshwar was a coram non judice. Because the conflict of interest was so writ large on the very face of theirs. It was pointed out to the Hon’ble judges. Because if they were to quash the NJAC, that would mean they thereby finding berth for themselves in the all powerful collegium which will pick up the lawyers for the appointment as Judges in the most secretive manner.
26. All the Contentions which were available in the support of the Constitution 99th Amendment Act and the NJAC, so too as to the interpretation of the Constitution as originally enacted namely, Section 124 and 224(z) of the Constitution are open to be raised before this Hon’ble Court in support of the reliefs sought for in the instant WP. Because the powers under 226 are no way inferior to the one under Article 32.
27. The plea that the Judges II case was rendered per incuriam is open to be raised before this Court. It is for this Court to decide whether a judgment cited before it iss curiam and to accept the same or to negate as per incuriam. The Respondent Hon’ble C J of Kerala referred to the Judges 2 case in support of his plea that the instant Writ Petition is not maintainable as the 2nd Judges case has barred judicial review of the Collegium’s decisions. The 2nd Judges case was relied upon as a binding precedent. The Petitioner is entitled to plead that it is no binding precedent and that it is rendered per incuriam. The Petitioner does so emphatically. The strength of the Bench of the 2nd Judges case is of no consequence. The Constitution is Supreme. If a judgement is contrary to the Constitution it is rendered per incuriam. It is not that the Constitution ceases to be in existence because of a judgement which is manifestly erroneous. It is the other way only. A judgement even of the full court of the SCI if against the Constitution it is rendered per incuriam and the plea that the judgement was rendered per incuriam is always open to be raised.
28. Without prejudice to the above contentions, I beg to submit that even if the Writ of Quo warranto will only lie after the appointment and not before, awrit of prohibition seeking to restrain the collegium from further proceedings with the appointments will lie. The Petitioner has not sought any writ of Quo warranto.
29. If no judicial review of the Collegium recommendations will lie, that will lead to a proposition that even against erroneous administrative decisions of the Judiciary, citizens have no remedy at all that too at a time many consider the judicial immunity should not be absolute and a judicial decision when it is violative of fundamental rights should be open to challenge as in the case with the Acts of Parliament and Statutory instruments and that of the Executive and Judicial Tribunals and subordinate courts.

I conclude by expressing my profound gratitude to Your Lordship for affording me a graceful and patient hearing.

Mathews J Nedumpara
Advocate for the Petitioner