Keralites across the breadth and width of the globe, nay, millions of people, with bated breath, watched five apartment buildings in Maradu, a prime location of Cochin surrounded by lakes and lush green, crumble down with a mushroom of dust being formed, as if an atom bomb has been dropped. While a few sadists, insane minds, knowing not what the ramifications are, celebrated, clapping their hands and beating drums, millions all over the world were deeply pained by the demolition, which was nothing but madness. They could not believe their eyes and they pondered why such madness was allowed to happen, bringing down world class apartments which were purchased by the flat owners out of the sweat of their brows. I write these few lines to tell the curious to know why such madness was allowed to happen in a democratic India and that too mandated by its Supreme Court.
Sometimes truth is stranger than fiction. The reason I offered to many, at least at the first blush, may appear to be too remote. But I am sure, the unfortunate victims of the disaster, the flat owners, or at least those among them involved in the conduct of the case in the Supreme Court, will realize that what I state is not fiction, but hard reality.
I hold the celebrated judgment of the Supreme Court in Kesavananda Bharati v. the State of Kerala (1973) Supp. SCR 1, popularly known as the fundamental right case, in which reversing its judgment in I.C. Golaknath and Ors. v. State of Punjab and Anr., AIR 1967 SC 1643, the Full Court of the Supreme Court held that Parliament is competent to abrogate every Article of the Constitution, including the fundamental rights, but not the basic structure, is responsible for the scenario leading to the judgment in the Maradu case where the Supreme Court, forgetting that its role is that of an adjudicator, usurped to itself the role of an actor/executive and judex (Judge), both at once. The reason I offer is not strange indeed. Let me explain.
Kesavananda Bharati led to the theory that independence of judiciary is one of the basic structures of the Constitution and that independence is preserved only when the Judges appoint themselves, otherwise known as Judges-2 case viz. the collegium system of appointment of Judges. Blood is thicker than water, and since the judgment in Judges-2 case of 1993 the collegium appointed mostly the kith and kin, nephews and juniors of sitting and former Judges of the Supreme Court and High Courts, so too of celebrated lawyers, Chief Ministers, Governors et al, and a few first generation lawyers who are all politically connected or are close to big industrial houses. The Judges so appointed in turn designated as Senior Advocates their kith and kin and juniors, which meant the Supreme Court, nay, the Indian judiciary, literally becoming the exclusive monopoly of the elite few families.
With the judgment in Kesavananda Bharati that basic structure cannot be abrogated even by a Constitution amendment, a new era of litigation unknown to jurisprudence came into existence, the so-called Public Interest Litigation (PIL). Prior to Kesavananda Bharati, nobody could have invoked Article 32 of the Constitution without complaining of violation of his or her fundamental right. With the invention of the so-called basic structure, people claiming to be acting in public interest, a camouflage for promotion of their vested interest, name, fame and money, kept on instituting petitions in the Supreme Court under Article 32 claiming that basic structure of the Constitution has been infringed, though he has not suffered any legal injury, much less infringement of his or her fundamental rights. The so-called Centres of public interest litigation and the like, a good majority of them being extortionists, kept on instituting petitions under Articles 32 and 226 claiming that they represent the public at large, and the Supreme Court and the High Courts kept on entertaining such petitions which are on matters which fell in the exclusive domain of the executive and the legislature, namely, matters of policy. Since some of the petitions involved questions concerning the day-to-day life of the common man, PIL as a jurisprudence came to receive wide acceptance in no time. If one were to question the soundness of such a practice, which a few like the instant author dares to do, that will readily be brushed aside, often with a question “Who are you to question the soundness of a practice which has found acceptance by iconic lawyers and erudite Judges?”
With the PIL receiving such kind of acceptance, probably legendary Justice Krishna Iyer being the sole exception, yet another era of jurisprudence has come into existence in India, which has no parallel in the rest of the world, namely, the Courts taking cognizance on its own motion; PIL where the Court acts upon the post card written by a school student, as in the recent case, where the High Court of Kerala took suo motu notice of a letter of a school student complaining that because of the pathetic condition of the roads he cannot attend the school. Many well-meaning people started to believe that suo motu PIL is the answer to all evils which we face in our day to day life due to governmental failure. I have heard many informed people, lawyers, Judges, academicians and even politicians complaining that the Court should have taken cognizance of such mischief in suo motu PIL. Very few would have ever thought of the pernicious implication of the Court acting on its own taking suo motu PILs. Many staunch admirers of PIL felt its danger when former Chief Justice of India Shri Ranjan Gogoi constituted a Three-Judge Bench consisting of himself and Justices Arun Mishra and Sanjiv Khanna to hear the sexual harassment allegation by a junior Court staff and to pronounce upon his own innocence. There are many such instances and the most outrageous are the PILs instituted in the Bombay High Court seeking demolition of shanties of millions of slum dwellers on the plea that their structures are illegal.
The buildings at Maradu were not ordered to be demolished in a PIL, but in a SLP where the Court has acted on its own motion. The thousands who cheered the demolition do not know that after the Municipality issued a Show Cause Notice/stop memo to the Builders, the next legal step was the order to demolish the apartments without any inquiry as contemplated under the Kerala Municipality Act, without the vested right of regularization/appeal etc., being exhausted. What was before the Supreme Court was the correctness or otherwise of the Show Cause Notice/stop memo and nothing else. The Court could have held that the Show Cause Notice is valid and restore it. Then the Municipality was bound to conduct an inquiry and the jurisdiction to demolish the apartments was exclusively vested in the Municipality, subject to correction by an appeal, writ etc. Nobody, except probably the instant author, realizes that the Supreme Court has no jurisdiction to order demolition of the buildings, for, to do so would mean the Court acting both as an actor/Plaintiff/ executive and the judex (Judge), all at once. It has no jurisdiction to continue the Civil Appeal under the title “Court on its own motion” after it having passed the order of demolition on 8th May, 2019. When the flat owners came to consult me on the very next day when the demolition was ordered, I pointed this out to them. I wrote an article on the subject and published it on the WhatsApp group of National Lawyers’ Campaign for Judicial Transparency and Reforms.
When Shri Kalyan Banerjee, fearing Shri Justice Arun Misra’s anger, withdrew the Writ Petition of the flat owners complaining that they were not parties to the SLP and they were not heard, I advised them that refusal on the part of the Judge to hear them amounts to bias in law and if a Judge is biased, he is no Judge at all; he is a coram non judice. When they asked me whether they could seek Justice Arun Misra’s recusal, I told them in unmistakable terms that they are entitled. However, they came back to me after a week or two complaining that the lawyer in Delhi is not willing to seek Justice Misra’s recusal. I advised them that if a lawyer is so fearful of the Judge, for, it is his sacred duty to act without fear of the Judge, of the society, and even his client who may stab him from behind, they themselves should appear as parties in person and place their grievances before the Court and to do so is not any disrespect to the institution, and it is their right to seek recusal by the Judge where the Judge is biased and the bias can be non-conscious, subconscious or unconscious, which the Judge himself may not be aware of. I told them that the concept of recusatio justicio – is the foundation of the classic Roman law, one of the sources of the common law which we have adopted by virtue of Article 372 (2) of the Constitution. However, no lawyer was daring enough to seek recusal by Shri Justice Misra and I could not help them because Shri Justice Rohinton Nariman has barred me from practising in the Supreme Court for one year. I believe that my raising the issue of Shri Fali S Nariman practicing in the court where his son is the judge probably had invited such an order without notice, without a charge, without a hearing and in my absence, nay, in violation of all the principles of natural justice which is sacrosanct and in particular, that nobody should be a judge of his own cause. The allegation was that I took the name of Shri Fali S Nariman during the course of my arguments in a case seeking the abolition of the senior designation system because it has unfortunately been reduced to nothing but a synonym for nepotism and bounty.
I expected the calamity, I professed, not in private but in public, that Sri Harish Salve, will not utter a word questioning the order of Justice Misra, for he himself is the greatest beneficiary of the “neo jurisprudence” where the court is no longer a mere judex but an actor as well. But I was devastated when I was told that on 13.1.2020, Shri Dushyant Dave, President of the Supreme Court Bar Association, representing the flat owners who lost their home, said that ‘the majesty of the rule of law has been upheld’, and thereby endorsed the demolition, to prevent which alone he was engaged. I was not present in the court, and I prefer to believe it to be untrue.
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