WRIT PETITION (C) NO.________OF 2019
Mathews J. Nedumpara &Ors. … Petitioners
The Supreme Court of India&Anr. … Respondents
I.A.No_______________OF 2019:APPLICATION SEEKING PERMISSION TO FILE AND PROSECUTE THE ABOVE WRIT PETITION AS PARTY-IN-PERSON
P A P E R – B O O K
[FOR INDEX KINDLY SEE INSIDE]
FILED BY THE PARTY-INPERSON
SYNOPSIS AND LIST OF DATES
The instant Petitioners are Petitioners in Writ Petition (C) No.861/2018, which was decided along with similar petitions on the subject of video-recording of Court proceedings. The said judgment is reported in Swapnil Thripathi&ors Vs. Supreme Court of India &Ors.,AIR 2018 SC 4806. In the said judgment, this Hon’ble Court allowed the Writ Petition of the Petitioners and granted a declaration sought for by them, namely, that right to life takes within its ambit full access to the proceedings of Courts and Tribunals in the country, including of this Hon’ble Court, which includes video-recording of Court proceedings and access to copies thereof. However, the said judgment, though rendered on 26th September, 2018, remains to be implemented by Courts and Tribunals, including this Hon’ble Court.
Had this Hon’ble Court’s said judgment been in an appeal arising from a judgment or decree of a Court subordinate to it, the same could have been executed as contemplated in Section 38 of the Civil Procedure Code read with Order XLV Rule 15 thereof. The Supreme Court Rules also does not provide for any provision for execution of the judgments and decrees of an original nature rendered by this Hon’ble Court in exercise of its jurisdiction under Article 32, so far as the Petitioners’ knowledge goes and the research they could make about it. The reason is obvious. The Founding Fathers did not confer any original jurisdiction on this Hon’ble Court whereunder a declaratory relief could be granted in exercise of its jurisdiction under Article 32. In CharanjitlalChoudhary v. Union of India, AIR (38) 1951 SC 41, this Hon’ble Court was pleased to hold so in unmistakable terms. Though it may appear to be blasphemy, under the constitutional scheme, the original civil jurisdiction, which includes the jurisdiction to grant a declaration that an Act of Parliament or a statutory instrument is void, being violative of the fundamental rights or express constitutional or statutory provision, is vested in the Civil Court. However, in actual practice, the Civil Court, which alone was invested with the original jurisdiction as a Court of plenary and unlimited jurisdiction, is forgotten and the jurisdiction under Article 32 is often invoked for obtaining such a declaration. It may not be appropriate elaborate this in the synopsis and, therefore, the Petitioners do not venture to do so. Suffice to say, there is no mechanism for enforcement of this Hon’ble Court’s judgment in SwapnilThripathi&ors Vs. Supreme Court of India &Ors., AIR 2018 SC 4806, except to again invoke its jurisdiction under Article 32. Hence, the instant Writ Petition.
THE LIST OF DATES
26/09/2018 The judgment inSwapnilThripathi&ors Vs. Supreme Court of India &Ors AIR 2018 SC 4806; 2018 (11) SCALE 475: 2018 (4) RCR (Civil) 632 was pronounced.
__.03.2019 Instant Writ Petition(C) filed.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. _____ OF 2019
IN THE MATTER OF
1. MATHEWS J. NEDUMPARA,
Adult, Indian Inhabitant,
residing at:. … PETITIONER NO.1
2. A.C. PHILIP,
Advocate, …PETITIONER NO.2
3. AMRITPAL SINGH KHALSA,
Aged about 25 Years,
Residing at.… PETITIONER NO.3
1. The Supreme Court of India,
through the Registrar General,
Supreme Court of India,
TilakMarg, New Delhi 110 001. … RESPONDENT NO.1
2. The Union of India,
represented by the Secretary in the
Department of Legal Affairs,
New Delhi-110 001. … RESPONDENT NO.2
WRIT PETITION UNDER ARTICLE 32 OF
THE CONSTITUTION OF INDIA.
THE HON’BLE CHIEF JUSTICE OF INDIA AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONERS ABOVE NAMED
MOST RESPECTFULLY SHEWETH:
1. The Petitioners are citizens of India and Advocates practicing in the different Courts and Tribunals in the country, including this Hon’ble Court. They are the President and office-bearers of National Lawyers’ Campaign for Judicial Transparency and Reforms (NLC, for short), an organization of ordinary lawyers, sons and daughters of taxi drivers, farmers, soldiers, fishermen, rickshaw pullers, daily wagers, teachers et al, most of whom are first generation lawyers, with the objective to seek greater fairness and transparency in the justice delivery system.
2. Petitioner Nos.1 and 2 invoked the jurisdiction of this Court by filing Writ Petition (C) No.861/2018 under Article 32 of the Constitution seeking a declaration that the fundamental rights guaranteed under Part III of the Constitution, particularly Articles 14 and 21, take within its ambit the right to have the proceedings of all Courts and Tribunals video-recorded; so too have access to the proceedings so recorded inasmuch as that will guarantee far more a deal for them qua the elite class of lawyers, in other words, the rich and super rich, famous and super famous litigants represented by the elite class of lawyers qua the poor men represented by the ordinary, the first generation lawyers. This Hon’ble Court, by its judgment dated 26 September, 2018, was pleased to allow the said Writ Petition, which was heard along with Writ Petition (C) No.454 of 2015 filed by Ms. Indira Jaising, Senior Advocate, and others. The said judgment has been reported in SwapnilThripathi&ors Vs. Supreme Court of India &Ors AIR 2018 SC 4806; 2018 (11) SCALE 475: 2018 (4) RCR (Civil) 632 and, therefore, it may not be necessary to annex a copy thereof to the instant petition and the Petitioners crave leave of this Hon’ble Court to refer the same across the Bar.
3. Though the judgment in SwapnilThripathi&ors Vs. Supreme Court of India &Ors AIR 2018 SC 4806; 2018 (11) SCALE 475: 2018 (4) RCR (Civil) 632, was delivered in the month of September, 2017, the same remains to be implemented. The fact that the Petitioners are compelled to invoke the jurisdiction of this Honble Court under Article 226 to secure implementation of the said judgment speaks volumes of the Supreme Court, which the Founding Fathers had conceived and what it is today, no matter whether it is good or bad. The Petitioners hold the learned Attorney General Shri. K.K. Venugopal in the highest of esteem. However, when Shri.Venugopal expresses the view that Supreme Court’s role should be confined to as a constitutional Court and not as a final Court of appeal, the Petitioners feel constrained to disagree with him. The framers of the Constitution conceived the ordinary Civil Court as the constitutional Court. Before the Constitution of India came into existence, the vires of a statute or statutory instrument was open to challenge and the forum was the Civil Court. The founding fathers had ordained the position to continue but in actual practice today, the Civil Court is denied it’s jurisdiction to do so as a court of record of plenary jurisdiction.
4. In the year 1942, Order XXVIIA was inserted in the Civil Procedure Code (CPC) to make it obligatory that in a suit where the vires of the statute is challenged is concerning the Federal Government, the Attorney General should be heard and if it is concerning the Provincial Government, the Advocate General. After the Constitution came into existence, the CPC was amended to substitute the words “Government of India Act” by the words “Constitution of India”. In the year 1951, by Codes of Civil Procedure and Criminal Procedure (Amendment) Act, 1951 (No. XXIV of 1951)., a proviso was added to Section 113 CPC making it obligatory to the subordinate Courts to refer a suit involving the validity of a statutory provision or a statutory instrument to the High Court for its decision. However, where High Courts like Bombay, Madras and Calcutta continued to be invested with the ordinary civil jurisdiction, obviously no question of reference was required and it could decide such issue. The Petitioners beg to submit that Civil Courts were Courts of record with plenary jurisdiction and the Civil Courts were competent to adjudicate a suit involving the constitutionality of an Act of Parliament or a statutory instrument, subject to the reference, as aforesaid, to the High Court. The role of the Supreme Court under the constitutional scheme is that of a Court of final appeal. Article 32 was an exception inasmuch as it provided for institution of an original proceeding for the enforcement of fundamental rights, empowering it to grant the five writs named therein. The framers of the Constitution did not contemplate the Civil Courts to be bypassed and original proceedings could be instituted invoking Article 32, as is the current practice, to seek declaratory remedies. Today if the Petitioners were to suggest that the Supreme Court has no jurisdiction to grant a declaration to the effect that an Act of Parliament is unconstitutional and such a remedy ought to be sought from a Civil Court, it would be taken as blasphemy.
5. The reason why the Petitioners have chosen to refer to the view expressed by the living legend Shri K.K. Venugopal, the Attorney General, is to bring to the notice of this Hon’ble Court; so too to the public domain, the difficulty a litigant, who invokes the jurisdiction of this Hon’ble Court under Article 32 to seek a declaration, faces in execution of the remedies so granted by this Hon’ble Court. Petitioner Nos.1 and 2 in their Writ Petition mentioned above sought a declaration from this Hon’ble Court that Part III of the Constitution, particularly Articles 14 and 21 thereof, confer in them a right to have the proceedings of this Hon’ble Court and of the Courts and Tribunals in the country video recorded and to have access to the proceedings so recorded, not only in cases where they are the Advocates for the litigants or where they themselves are parties, but of all cases, except where providing of such copies would be against public interest. The Petitioners, as aforesaid, to repeat for emphasis, have obtained such a declaration at the hands of this Hon’ble Court, but find that the declaration so granted is not implemented by this Hon’ble Court, much less the Courts and Tribunals within the territory of India. The question before the Petitioners is: what is the means to secure enforcement of the declaration they could obtain? The Constitution, so far the Petitioners’ understanding goes, does not provide for any express provision for execution of the declaration as the Petitioners could obtain under Article 32.
Order-XLV-Rule-15 of the CPC read thus:
“15.Procedure to enforce orders of the Supreme Court-(1) whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred.
Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall upon the application of either party give such directions as may be required for the execution of the same; and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.”
6. For the enforcement/execution of the declaration obtained by the Petitioners, as aforesaid, the above provisions are of no help. The Petitioners are thus left with no option than to seek a writ in the nature of mandamus at the hands of this Hon’ble Court to the Hon’ble the Chief Justice of India represented by the Registrar General to implement the judgment of this Hon’ble Court in SwapnilThripathi&ors Vs. Supreme Court of India &Ors AIR 2018 SC 4806; 2018 (11) SCALE 475: 2018 (4) RCR (Civil) 632 .
7. So far as the petitioners’ knowledge goes, there is no provision either in the Constitution of India or in the Supreme Court Rules which deals with execution of a judgment or decree of the Supreme Court on its Original Side as the instant one under Article 32 of the Constitution. The reasons are not far to seek. As demonstrated in brief above, only the Civil Courts are vested with the jurisdiction to grant declarations and the jurisdiction of the Supreme Court is only with respect to the five writs named in Article 32. This is what the petitioners understand to be the constitutional scheme as conceived by the Founding Fathers. The nature of the remedies, namely, the five writs contemplated under Article 32 is executory in nature and, therefore, there was no need for any provision for execution of the judgments and decrees passed under the said five jurisdictions. Declaratory judgments are on a different footing. A party who has secured a declaratory remedy, if the declaration could not be implemented, is required to institute an execution proceeding. The jurisdiction under the Contempt of Courts Act cannot be a substitution for an execution proceeding because contempt of Court proceedings can be initiated only where there is a wilful disobedience of the order. It is difficult for a litigant, who has obtained a declaratory judgment, to complain of contempt of Court where the judgment is not executed. The aforesaid being the legal position, so far as the Petitioners’ understanding of the law goes, the judgment they could obtain from this Hon’ble Court reported in SwapnilThripathi&ors Vs. Supreme Court of India &Ors AIR 2018 SC 4806; 2018 (11) SCALE 475: 2018 (4) RCR (Civil) 632, is incapable of execution, for, there is no expression provision for execution of a declaration obtained under Article 32.
8. It is sad that what the founding fathers had ordained, namely that the Civil Courts being the Court of record with plenary jurisdiction competent and duty bound to adjudicate any dispute of a civil nature under the sun and in particular vested of the jurisdiction to grant declarative remedies, including a declaration that an act of Parliament or a statutory instrument is ultra vires and void, where it is so, is denied in actual practice, the said powers and the said jurisdiction being exercised by the High Court and the Supreme Court under article 226 and 32 of the Constitution respectively, which has led to the unenviable scenario where a litigant who has obtained a declaration at the hands of the Supreme Court or the High Court has no means to execute the same. The petitioner therefore is left with no option than to institute the instant writ petition seeking a writ of mandamus to enforce the judgment of the Supreme Court.
9. Order XLV Rule 15 CPC too is of no avail, for, that provision is applicable where the order rendered by this Hon’ble Court is one in an appeal against an order of a High Court. Therefore the Petitioners are left with no option than to knock at the door of this Hon’ble Court invoking its jurisdiction under Article 32, namely, to institute a further Writ Petition thereunder to secure implementation of the declaration obtained in an earlier Writ Petition under Article 32, which is certainly an unenviable scenario, but that is the truth. The petitioners have moved Kerala High Court seeking implementation of the above judgment for video recording of the court proceedings, so far as the Kerala High Court and the subordinate courts therein are concerned.
10. Hence, the instant Writ Petition under Article 32 of the Constitution on the following, amongst other, grounds:-
Grounds in support of the reliefs sought for are fairly elaborated in the statement of facts above and hence are not repeated. The Petitioners respectfully submits that paragraphs 1 to 9 hereinabove may be read and treated as the grounds in support
of the instant Writ Petition. Nonetheless, the Petitioners beg to submit that –
(A) since the declaration obtained by the Petitioners at the hands of this Hon’ble Court is not capable of being executed, for, there is no provision available, so far as their understanding of law goes, for execution of a judgment and decree in a proceeding under Article 32 of the Constitution, the Petitioners are left with no other option than to invoke the jurisdiction of this Hon’ble Court once again under Article 32, namely, for a writ in the nature of mandamus. The Petitioners consider that recourse to the Contempt of Courts Act, which is often used as a tool to secure implementation of the judgments of this Hon’ble Court rendered under Article 32, would be inappropriate. Viewed from any angle, a petition under Article 32 would lie in this Hon’ble Court so far as its administrative functions are concerned.
The instant Writ is not barred by the by the doctrine of estoppel res judicata.
The Petitioners state that theyhave no other efficacious alternative remedy than to prefer the instant Writ Petition under Article 32 of the Constitution of India.
That the Petitioners crave leave to add, amend or alter any of the foregoing grounds with the permission of this Hon’ble Court.
The Petitioners has not filed any other petition, appeal or application other than the one mentioned in this petition, before this Hon’ble Court or any other High Court seeking similar reliefs as are sought in this Writ Petition.
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:
(a) issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondents to implement the judgment of this Court in SwapnilThripathi&ors Vs. Supreme Court of India &Ors AIR 2018 SC 4806; 2018 (11) SCALE 475: 2018 (4) RCR (Civil) 632, so that the proceedings of this Court and of the Courts and Tribunals subordinate to it are video-recorded and copies thereof could be made available to the Petitioners, litigants and public at large, except where to do so will be against public interest; so too to provide for streaming of such proceedings and live telecast of matters of public interest;
(b) The hearing of the instant petition may be video recorded;
(c) pass any other order as this Hon’ble Court may deem just and proper in the interest of justice in the facts and circumstances of the present case.
11. AND FOR THIS ACT OF KINDNESS THE PETITIONERS AS IN DUTY BOUND SHALL EVER PRAY:
DRAWN AND FILED BY:
MATHEWS J. NEDUMPARA
& A.C. PHILIP
AMRITPAL SINGH KHALSA
Drawn on :__.03. 2019
Filed on :__.03. 2019