Open letter to Members of Bar and Political Leaders

E-Mail: mathewsjnedumpara@gmail.com, nlcfjtar@gmail.com
Cell # +91 9820 535428 , 022 22626634

MAY IT PLEASE YOUR LORDSHIPS,
Sub: Video-recording of proceedings of the Five-Judge Constitution Bench hearing the NJAC case, nay, or the Nine or Eleven Judge Constitution Bench which might be constituted to hear the said case.

1. Elsewhere in the world, it is the Parliament which is supreme. But, in the NJAC case, the great jurist, Sr.Adv.Fali S.Nariman’s contention is that the Judiciary is supreme. Because, they alone can interpret the constitution. However, elsewhere in the world, the Executive (President/Ministers), the Parliamentarians and the courts, all interpret the constitution. In India, unfortunately, it is widely believed, not merely by laymen but even by distinguished lawyers, that the SC/HC Judges alone can interpret the constitution! “The constitution is what the judges say, it is” is the fallacy they propagate.

Elsewhere in the world, no petition for judicial review will lie except at the hands of a person whose legal or constitutional rights are infringed. But, in India the ‘Supreme Court Advocate Association’ can claim to represent the 120 billion people without their mandate!! (while the SCORA is perceived to be only a pawn in the hands of Sr.Adv.Fali S. Nariman & Co. who are leading a proxy war at the behest of the judges and that 90% of Advocate on Record in the heart of their hearts are against their Association’s name being abused). In India Parliament cannot amend the Constitution because it could violate the “BASIC STRUCTURE” of the constitution, a structure made of wax, which will change its shape, context and texture as it could suit the interest of the judges!! It does not hold any clear definition. While parliament cannot amend the constitution, the judges could do it, at their sweet will. They can amend the constitution without even an amending Act!!!

The judges (2) & (3) cases by which they introduced the collegium system of “appointing themselves” is nothing but amendment of the constitution by the judges done in the name of interpretation of the law. It travelled far beyond the interpretation, transgressed construction of law and entered into the realm of amending the constitution itself without resorting to the procedures laid down in Article 368 of the Constitution of India. It is sad that our MPs have miserably failed to retain their legitimate domain and have allowed the judiciary to substitute the executive and the legislature, both, and to act as if they are the executive, legislative and judiciary, all at once. The hearing of the NJAC case is scheduled for 8th June onwards. The AG, nay, even the octogenarians, Parasaran and K.K Venugopal who are in the fray supporting the NJAC have had difficult times since the Hon’ble judges seemed to be too predisposed to the concept of ‘JUDICIAL SUPREMACY’ which is the trump card at the hands of those who support collegium. The concept of judicial supremacy itself is antithesis to the concept of democracy, which is the basic structure of the Constitution of India. If allowed to sustain and propagate, can cause serious damage to the democratic Nation and its people as a whole.

The judges cannot be blamed; they cannot be impartial in a controversy which they decide, where they, themselves, are an interested party. The NJAC case is all about: who will wield the power of appointment of the judges? Under the ‘collegium system’ where the judges ‘appointed themselves’ the research we conducted indicates that the judges have mostly only appointed their ‘kith and kin’, so too of the powerful lawyers. We have prepared three charts: (a) progeny (judges) syndrome chart (b) the Judges inter-se seniority chart ie. Progeny judges Vs.Non progeny judges (c ) the Family (judges) Chart .

The charts are incomplete; yet, it will show that almost all those who were appointed as HC judges below the age of 46 are the kith and kin of former or sitting judges or senior advocates. For example, the Bombay HC has 8 judges who are the sons of former judges of the very HC itself and 23 others who are the ‘kith and kin’. Today, there are 3 Chief Justices (of the HCs) who are the sons of the former judges of the SC. The sons and the daughters of the ordinary man have no place at all in the higher judiciary; while “diversity” is considered universally to be the cornerstone of a fair and egalitarian legal system. Kindly, SMS/ Whats Up me your email id. I will forward the Charts, aforesaid.

2. I believe, it is imperative that the Members of the Bar and other political leaders take an active interest in the said NJAC case. Not a single political party has so far considered it necessary to intervene in the defence of the NJAC, which I consider to be their duty. Even when the Supreme Court Advocates Association filed, petition in favour the Judicial Commission, none of the other Bar Associations have sought an intervention, which can have serious repercussions in their career in future. The NJAC, with the CJI and two judges is really dominated by the judiciary. But, it is challenged on the ridiculous premise that it is violative of the independence of the judiciary! The argument is that ‘independence of the judiciary’ is an inalienable basic structure of the constitution. And that basic structure (let me add, made of ‘wax’)is preserved when the judges appoint themselves!! Nay, when they could appoint their kith and kin!!! The judiciary really needs independence from such blatant nepotism. Constitutionally speaking, the interplay of the organs and the separation of the power is the structure, not the water tight independence, that too, without any accountability. The separation of power is lost even when the judiciary enters into the realm of Executive or to that of Parliament.

3. It is in the interest of the nation, nay, in the interest of judiciary itself, for, its real independence is secured, where judicial appointments are not entirely left to the judges, but the “diversity” in appointment is secured by an open, transparent selection and appointment by notification of the vacancies and the invitation of applications from all the eligible candidates. ‘Equality of Opportunity’ is the Fundamental Right assured by the constitution {Article16(2) thus reads: “(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”(emphasis Supplied)}. All eligible lawyers should have an equal opportunity to be considered for appointment as a judge of the HC/SC, not merely the elite.

4. India has produced its most distinguished judges when the executive appointed the judges and that too when they appointed lawyers who were in active politics like Krishna Iyer, Mahajan, Vivian Bose, the legends. Great judges like Bacon, Halsbury, Coke were all politicians, nay, the very House of Lords, the highest Judicial Tribunal of UK itself was part of the Parliament. Politics is not a dirty word!!! Man is a political animal. So everybody has it in his blood. Even the power struggle of appointing judges is also a political struggle. Unlike today, where the allegations of corruption and malpractice against judges cannot be said to be not so uncommon, during the era when the Executive appointed the judges, such allegations were unheard. I beseech the Hon’ble Members of Bar, Political Parties/Leaders and the public spirited persons to seek intervention even by ‘appearing in person’ so that the “voice of the people” are heard in the Hob’ble SCI too. Am not criticizing the Hon’ble Attorney General. But, he is no match for the job which he is called upon to discharge, since the Constitutional Bench is seemingly predisposed. I wish am proved wrong.

5. Please be in touch with me for a more detailed discussion.

Yours Sincerely,

Mathews J Nedumpara,

President,
National Lawyers Campaign for Judicial Transparency and Reforms,

Mumbai- 400 023. Ph:(0)9820535428