Mathews J. Nedumpara
I addressed a letter dated 24th September, 2019 to the Chief Minister and Chief Secretary of Kerala and other high constitutional functionaries expressing my apprehension that Shri Harish Salve, one of the most celebrated lawyers of the country, who effectively defended the case of Shri Kulbhushan Jadhav in the International Court of Justice and thus became a household name and a great icon, may not be able to do justice to the Government of Kerala, his client, so too to the hapless flat buyers of Maradu who are to be rendered homeless because the contentions which he is required to urge before the Supreme Court will put him in an embarrassing situation. This embarrassment is not confined to Shri Salve alone, but to all those who argued the briefs calling upon the Supreme Court to act in substitution of the Parliament, the executive and the PIL activists, the de facto Attorney Generals, though some of the causes which Shri Salve and others have exposed are laudable indeed.
2. Shri Salve was appointed by the Supreme Court as an amicus curiae in T. N. Godavarman Thirumalpad. The said case has been pending since 1995 in which the Supreme Court appears to have passed thousands of orders, all with good intention to protect the environment. In the said case the Court appointed a Central Empowered Committee in defacto substitution of the Ministry of Environment and Forest, which alone is empowered by the Constitution and the laws of the land to discharge the executive function vested in the Central Government. The Supreme Court has, time and again, asserted that separation of powers is one of the basic features of the Constitution, nay, the very basic structure of the Constitution, and, has held repeatedly, that independence of judiciary is one of the basic structures of the Constitution and that is secured only when the Court is not merely the final authority in deciding inter se disputes between citizen and citizen, citizen and State, State and citizen and between State and State, but it has ultimate say in appointment of Judges of the Supreme Court and High Courts, bizarre though the proposition on its very face. The concept of separation of powers, which the Supreme Court has repeatedly asserted, could not have permitted investiture of jurisdiction of the Central Government in the Court appointed Committee called CEC, as in the Maradu Case, by the Supreme Court, and the anointment of Shri Salve as the ultimate voice. Shri Salve as an amicus curiae having never ever brought to the notice of the Court that a Central Empowered Committee or the Supreme Court could not substitute the executive granting environmental clearances, which falls in the exclusive province of the executive, may find it difficult to urge, representing the Government of Kerala, that the Court has no jurisdiction to appoint the Committee to report to it as to whether or not the five buildings at Maradu were built in violation of CRZ-III, which inquiry, a fact-finding exercise, was in the exclusive domain of the Secretary of the Maradu Municipality.
3. The Supreme Court has held time and again that at least one forum of appeal on facts and law is an essential ingredient of Article 21 read with Article 14 of the Constitution. The Kerala Municipality Act provides for an appeal against an order of demolition of the Secretary; so too an appeal from the order of the Government, if the flat owners, instead of appealing against the order of demolition, were to seek regularization. The order dated 8th May, 2019 ordering demolition of the buildings was rendered entirely behind the back of the flat owners, the affected parties, who live in different parts of the world, without them ever being served with a notice of the violation, if any, the penalty to be imposed or the demolition of the buildings.
4. Under the constitutional scheme, the Supreme Court was not intended to be the Court of original jurisdiction. Even the constitutionality of a statute can only be challenged before a Civil Court. That was the legal position prior to the coming into force of the Constitution. Article 372 of the Constitution declares that all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue to be the law of the land. The Founding Fathers did not conceive that a poor man living in a moffusil should go to the Kerala High Court or the Supreme Court to challenge the validity of an Act of Parliament or a statutory instrument, but the elite class of lawyers in the Supreme Court and State capitals, converting Articles 32 and 226 into a jurisdiction to seek declaratory remedies, made the Supreme Court and High Courts as Courts of original jurisdiction which could grant declaratory remedies.
5. Against the order of demolition passed by the Supreme Court in the Maradu case, there is no Court of appeal, though the said order is in a de facto original proceeding where the Supreme Court acted in substitution of the Secretary of the Maradu Municipality as a fact-finding authority. Today I read in newspapers that Shri Kapil Sibal, no less eminent than Shri Harish Salve, pleaded in the Supreme Court to resort to judicial legislation, namely, to frame guidelines, but the Bench headed by Hon’ble Shri Justice Deepak Gupta showed the sagacity to turn down the said plea, observing that framing of guidelines is a matter of policy falling within the exclusive domain of the executive. Nothing could be fartherer from truth. I always believe that the elite class of lawyers, who seek to divide the Bar into two classes, the Senior Advocates and the ordinary lawyers and who usurp to themselves special privileges and rob the common man, statutory and public bodies by charging astronomical fees, the burden of which is to be borne by the public at large, are to be blamed for the kind of orders as in Maradu case, which has meant the entire population of the State, barring a few sadistic elements, in a state of shock, disbelief, pain and agony. Somebody in the social media wanted to know why I am concerned for the Maradu flat buyers. I am concerned because many of them have consulted me as a lawyer and more than that the sorrow, pain and agony of a fellow Malayali is my own pain.