THE NATIONAL LAWYERS’ CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS

June, 29, 2015

To

1. Hon’ble Shri Justice J.S. Khehar,

Supreme Court of India, New Delhi.

2. Hon’ble Shri Justice J. Chelameswar,

Supreme Court of India, New Delhi.

3. Hon’ble Shri Justice Madan B. Lokur,

Supreme Court of India, New Delhi.

4. Hon’ble Shri Justice Kurian Joseph,

Supreme Court of India, New Delhi.

5. Hon’ble Shri Justice Adarsh Kumar Goel,

Supreme Court of India, New Delhi.

Also to:

6. Hon’ble Chief Justice of India and

other Hon’ble Judges of the

Supreme Court of India, New Delhi.

7. Hon’ble Shri Narendra Modi,

Prime Minister of India,

New Delhi, and his Cabinet colleagues.

8. The Hon’ble Union Minister for Law and Justice

Government of India, New Delhi

9. Hon’ble Members of Parliament,

New Delhi.

10. The Attorney General of India,

Government of India, New Delhi.

11. The Solicitor General,

Government of India, New Delhi.

12. Shri K. Parasaran,

Senior Advocate,

Supreme Court of India, New Delhi.

13. Shri K.K. Venugopal,

Senior Advocate,

Supreme Court of India, New Delhi.

14. Shri Fali S. Nariman,

Senior Advocate,

Supreme Court of India, New Delhi.

15. Shri Soli Sorabjee,

Senior Advocate,

Supreme Court of India, New Delhi.

16. Shri Anil Diwan,

Senior Advocate,

Supreme Court of India, New Delhi.

17. Shri Harish Salve,

Senior Advocate,

Supreme Court of India, New Delhi.

18. Shri Rajeev Dhawan,

Senior Advocate,

Supreme Court of India, New Delhi.

19. Shri Dushyant Dave,

Senior Advocate,

Supreme Court of India, New Delhi.

20. The Hon’ble Chief Ministers of

various States in India.

21. The learned Advocates General for

various States in India.

may it please your Lordships/excellencies/distinguished and erudite jurists and lawyers/respected sirs,

1. I, a humble lawyer of little consequence, could marshal the courage to address this letter to Your Lordship, Hon’ble Shri Justice J.S. Khehar, one of the most erudite, respected, nay, literally worshipped Hon’ble Judges, a real role model of Judges not merely of High Courts and subordinate Courts but also of the Supreme Court as well, the other Hon’ble Judges who are part of the Constitution Bench hearing the NJAC case, since, in my humble view, the most important question, namely, the maintainability of the Writ Petitions filed under the nick name of PILs at the hands of Supreme Court Advocates on Record Association (SCAORA) and others and the justiciability of the challenge to the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short), has not been raised at all. It will be most unfair on my part to allege that Shri Mukul Rohatgi, learned Attorney General of India, the learned Solicitor General and the distinguished and eminent battery of senior lawyers like legendary Shri Parasaran, legal luminaries like Shri Venugopal et al., literally worshipped for their great scholarship and erudition, did not ably defend the Union of India and the States whom they represented.  The learned Attorney General was at his marvelous best in terms of the research and homework he did.  He literally had argued for more than 10 days assisted by an enthusiastic team of lawyers.  And for me, the almost two months I spent in the Supreme Court, giving up my regular practice, has been a great opportunity of learning and to see at close quarters the fabulous brains, great scholarship, learning, erudition, analytical, sharp, sometimes hairsplitting queries from the Bench.   I must say at the risk of being misunderstood as a sycophant that I became a great fan of the presiding Judge, Hon’ble Shri Justice Khehar, a Judge of immense alertness and analytical ability.
2. While I am all praise for the manner in which the NJAC case was argued and heard, a great learning experience for me, an experience which reaffirmed my faith in the great institution of the Supreme Court, I must at the same time, as I have said at the very outset, say that the very core issue, namely, the justiciability of the Acts, nay, the maintainability of the Writ Petitions under Article 32 of the Constitution of India by SCAORA and others, was not raised or discussed at all. Let me explain the same in few words as infra since if I write in elaboration the high constitutional dignitaries to whom I am addressing this letter may not be able to read it themselves.  Brevity is the soul of wit, said Shakespeare.  Therefore, in the paragraphs below I will narrate what I consider the hearing of the NJAC case in the words of Horace, namely, parturient montes, nascetur ridiculus mus (Mountains are in labour, and an absurd mouse is brought forth). The title to Shakespeare‘s play Much Ado About Nothing expresses a similar sentiment.
3. Even a lawyer of little scholarship, erudition and knowledge like me, if he were to be called upon to defend the Acts and were to assume, though it certainly is an unpardonable crime, to be the Attorney General, the first question he raises would have been the maintainability of the petitions christened as PILs challenging the constitutionality of the Acts. The so-called PILs are filed invoking Article 32 of the Constitution of India.  Article 32, which itself is a fundamental right, enables a citizen or an artificial legal entity like SCAORA and the Bar Association of India, enforcement of his fundamental rights which could be by seeking writs in the nature of certiorari, prohibition, quo warranto, as expressly provided in the said Article, or, though not expressly stated therein, by seeking a declaration.  SCAORA and the Bar Association of India are entitled to invoke Article 32 if any of their fundamental rights are infringed.  In their petitions there is no plea that any of their fundamental rights are infringed and obviously for that reason only they did not file the Writ Petitions for enforcement of their private rights, no matter the remedies sought for are in the realm of private law or public law.  They knew that their petitions are not PILs.  As per the Supreme Court Rules; so too in terms of its judgments in Municipal Council, Ratlam v. Shri Vardhichand & Ors., AIR 1980 SC 1622, S.P. Gupta v. Union of India, AIR 1982 SC 149, Sunil Batra v. Delhi Administration, AIR 1980 SC 1579, to mention a few, where “a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated is unable to approach the Court on account of some disability or is not practicable for him to move the Court for some other sufficient reason such as socially or economically disadvantageous position, a PIL could be instituted by some other person who can invoke the jurisdiction of the Court for the purpose of providing judicial redressal to the person wronged or injured so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him (S.P. Gupta).  In other words, undertrial prisoners languishing in jails without trial, inmates of protective homes subjected to exploitation, bonded labourers, pavement dwellers facing demolition as in the case of Olga Tellis v.  Municipal Corporation of Bombay, AIR 1986 SC 180, a person acting pro bono publico could invoke the jurisdiction of the Supreme Court under Article 32 or of the High Court under Article 226.  For a person acting pro bono publico still needs to have a person like a prisoner or a class of persons like pavement dwellers whose shanties are demolished or an undertrial prisoner subjected to brutal assault as in the case of Sunil Batra, to be represented.
4. The most pertinent question which was omitted to be asked by the learned Attorney General, the learned Solicitor General and the battery of distinguished lawyers defending the PILs was, whom do you represent, who could be a person or a class of persons who on account of their aforementioned disabilities could not institute a petition on their own. Is it the 125 crores of people of this country or is the members of SCAORA and the Bar Association of India?  The SCAORA and the Bar Association of India can represent their members in which case it is not a PIL; no relaxation of locus standi is required; they themselves can prosecute their case; it is not their case that any of their fundamental rights are infringed; their case is that they act in public interest.  The petitions which they instituted as PILs; they have not stated that they represent the people of this country; I am sure they would never ever have dared to say so. They cannot for the 125 crore people of this country have not authorized them. If they ever venture to claim so that is deceit, a fraud on the people. Nobody has the right to be heard that they represent the people of this country; only the Parliament has the right to say so; the Parliament alone knows the need of the people, frame policies and enact laws to execute the policies. Let me reiterate; neither the SCAORA nor the Bar Association of India, nay, for that matter none other than the Attorney General can represent the public at large.
5. In S.P. Gupta’s case, the learned Attorney General did not at all raise the question of locus standi of the Petitioner to challenge the Circular of the Law Minister; so too the transfer of the Chief Justice of the Patna High Court to Madras High Court and the non-extension of the term of Additional Judges. Probably he did not do so because Justice K.B.N. Singh, Chief Justice of the Patna High Court, and Shri Justice S.N. Kumar, whose term was not extended, joined the lis.  Again in that case, what was sought for was a writ of mandamus to compel the Government to discharge its constitutional/statutory duty, a legal remedy, for mandamus is not a discretionary remedy, but is a right.  Yet, the Supreme Court in S.P. Gupta happened to discuss in great elaboration the locus standi of members of the Bar to seek a writ of mandamus.  In that case, no validity of an Act of Parliament was questioned, much less a Constitution amendment.  Though in S.P. Gupta the locus standi of Bar Associations and lawyers to represent the public at large was not raised or discussed, it happened to be taken for granted that the locus standi issue is settled forever.  Since the discussion on locus standi ran into paragraphs and paragraphs and pages and pages, the locus standi to seek a declaration that an Act of Parliament or Constitution amendment is valid or not was not considered, happened to be overlooked.  The fallout is a misconception that Bar Associations and lawyers have locus standi to file PILs seeking the moon.  As a result thereof, in Judges-2 case [Supreme Court Advocates-on-Record v. Union of India, (1993) 4 SCC 441], the locus standi of SCAORA was not questioned at all.

6. When the NJAC case came up for hearing, I sought to raise the aforesaid issue as a preliminary issue, but I had to accept the fact that I being a persona non grata would not be heard, though the issue raised by me is so vital, and I have to wait.  Since I consider that the NJAC Act is the need of the hour, for the research I and my fellow campaigners in the National Lawyers Campaign for Judicial Transparency and Reforms conducted reveal that the mechanism of Judges appointing themselves has meant an end to the concept of diversity in judicial appointments and the august office of the Judges of  the Supreme Court and High Courts happened to be monopolized by the kith and kin and juniors of sitting and former Judges of the Supreme Court and High Courts, of powerful lawyers, and even of former Chief Ministers, President, Governor, and influential politicians. I wrote to the Hon’ble Prime Minister and the learned Attorney General requesting them to focus on the non-justiciability of the issue, for no lis is involved and appointment of Judges is a matter of policy of which the Parliament is the supreme and that the collegium system has caused great disrepute to the institution of judiciary and has meant cronyism.  However, my words were cries in the wilderness.

7. At the end of the arguments, while supporting the Government, I was given an opportunity to address the Constitution Bench. I am grateful to the Hon’ble Judges and in particular to the presiding Judge, Hon’ble Shri Justice Khehar.  However, while I needed at least a day to put across my submissions, I was afforded only 20 minutes, within which time I could not even give a broad outline of my contentions.

8. I know that I am a man of no consequence; it was probably preposterous on my part to have ever thought of addressing the Constitution Bench for a day, but what gave me the courage to do so is my strong conviction, maybe a wrong one, that in an issue of such momentous national importance, the Government of India, the Parliament, the people of this democratic republic, were not ably defended even by men of great scholarship, erudition, ability and learning as the learned Attorney General, whom I hold in the highest of esteem and regard. That nobody has the right to challenge the constitutional validity of the Acts, which are in the realm of matters of legislative policy, which the Parliament in its constituent power decided to be the law of the land; and that the collegium system of appointment of Judges to the higher judiciary is not merely unconstitutional, unjust and inequitable but it has led to cronyism in judicial appointments, has left me with no option but to address this letter and seek the benevolence of the Constitution Bench to afford me some more time to put across my submissions/contentions when it reassumes the hearing of the NJAC case on 7^th July, 2015.

9. Before parting with, I beg to submit that I consider that the inalienability of the concept of the basic structure of the Constitution is sacrosanct, but if the said concept were to be abused even to bring about a much desired change in the system of appointment of Judges, then the said concept used in real life needs to be attacked; it is time that even Kesavananda Bharati v. the State of Kerala (1973) Supp. SCR 1, has to be reconsidered or interpreted and explained in consonance with the times of the day.

With respectful regards,

Yours sincerely,

(Mathews J. Nedumpara)

President

P.S.    I thought of adding this post script since the high constitutional functionaries to whom I have addressed this letter and who may not have the time and patience to go through the same should not miss the crux of the matter.  What I intend to say point blank, which the learned Attorney General, the Solicitor General and even the legendary Shri Parasaran omitted to plead, is that an Act of Parliament, nay, a constitution amendment on a matter of legislative policy, as is the instant one, distinct from one which could involve infringement of constitutional or legal right of a citizen, is not justiciable at all.  Nobody has, let me underline this, the locus standi to challenge the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 because the challenge to the same involves no lis.  Nowhere in the world, even in the USA where there is a rigid concept of separation of power and the concept of judicial review is sacrosanct, could any Act of Parliament be challenged unless it involves infringement of a legal or constitutional right of a citizen.  In India too, there is no single precedent.  S.P. Gupta and Judges-2 cases cannot be considered to be precedents, for in S.P. Gupta the locus standi of the Petitioner was not disputed, nay, the learned Attorney General expressly conceded it, and in Judges-2 case Shri Parasaran who represented the Union of India did not raise the issue of non-justiciability or want of locus standi, at all, the two concepts which are closely inter-related.  The hearing of the NJAC case is still not over.  The learned Attorney General, I believe in all humility, will be failing in his duty towards the people of this country, the public at large, the right to represent whom is exclusive to him, if he does not raise the issue of non-justiciability, nay, the lack of locus standi of the Petitioners.

(Mathews J. Nedumpara)

President