Letter to President and other constitutional authorities

>>Letter to President and other constitutional authorities

Letter to President and other constitutional authorities

MATHEWS J. NEDUMPARA
Senior Partner
NEDUMPARA & NEDUMPARA

304, Hari Chambers, 3rd Floor, 54/68 SBS Marg, Near Old Customs House, Fort Mumbai- 400 023

E-Mail: nedumpara2004@yahoo.com, nedumpara2004@hotmail.com
Cell # +91 98205 35 428,

Date:24th March, 2015

1) His Excellency Shri Pranab Mukherjee,
President of India,
Also to

2) His Excellency Shri H.M. Ansari,
Vice-President of India,

3) Hon’ble Shri Narendra Modi,
Prime Minister of India,

4) Hon’ble Shri H.L. Dattu,
Chief Justice of India,

5) Hon’ble Shri D.V. Sadananda Gowda,
Minister for Law & Justice

6) Hon’ble Smt. Sumitra Mahajan,
Speaker, Lok Sabha,

7) Hon’ble Judges of the Supreme Court,
Supreme Court of India,

MAY IT PLEASE YOUR
EXCELLENCIES /
LORDSHIPS / MADAM/SIRS,

The instant is a letter which has no parallel in the annals of history. The author of this letter is a lawyer of 30 years standing. He instituted a Writ Petition in the Supreme Court of India seeking immediate bringing into force the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (“the Acts”, for short); so also framing of Rules/Regulations thereunder. He hoped that if that happens, it will mean an end to the collegium system of appointment of Judges, a system where the Judges appoint themselves. The statistics he could gather after enormous effort would show that the Judges have literally appointed their kith and kin since 1993. The Judges-2 case was a fraud on the Constitution; it meant rewriting of the Constitution without a constitutional amendment, without a referendum, keeping the people of this country in darkness. All those who were involved in the Judges-2 case were a few powerful lawyers who always had a prominent role, though informally, in the appointment of Judges of High Courts and Supreme Court, with the Supreme Court Advocates on Record Association being a pawn at their hands. In some High Courts, almost 100 per cent of the Judges are kith and kin of former and sitting Judges. The High Court of Judicature at Bombay presently has 8 Judges who are sons of former Judges. Two other Judges are a junior of a sitting Judge of the Supreme Court of India and a Chief Justice of a prominent high Court. There are 15 others who are immediate relatives of former Judges and senior lawyers. Sons of three former Judges of the Supreme Court today are Chief Justices of High Courts. There are a few others who are sons and daughters of former Judges of the Supreme Court.

2. The Registry of the Supreme Court stalled registration of the above Writ Petition filed by the undersigned in all possible manner. Eventually the petition was numbered after the undersigned was made to remove references about the following issues:-

(a) The collegium system brought an end to the diversity in the appointment of Judges to the higher judiciary; all appointed belonged to the elite class of lawyers and kith and kin of Judges;

(b) The collegium meant inequality among Judges, for only sons and sons-in-law of Judges were appointed at an early age, thereby limiting the chances of promotion/elevation as a Chief Justice of a High Court or a Judge of the Supreme Court limited to the progenies of Judges;

(c) The collegium system has meant undermining the independence of High Courts and giving rise to a new infectious disease which legendary Justice Krishna Iyer had called “promotion sickness”;

(d) Judges hearing the Writ Petitions challenging the said Acts purportedly at the hands of the Supreme Court Advocates on Record Association and in fact at the hands of those to whom the burial of the collegium system could hurt their vested interest evince no public confidence and, at any rate, Judges who are part of the collegium and likely to be a member of the NJAC ought not to be part of the Bench hearing the case challenging the collegium system;

(e) The concept of equality before law and equal protection of law in the matter of public employment requires every person eligible should be given an opportunity to occupy the seat of the Judge of the Supreme Court or High Court, he being selected on a transparent, just, fair and non-arbitrary system;

(f) The collegium system meant the power of appointment of Judges exclusively to be wielded/ dominated by senior Judges and senior lawyers.

3. The Registry of the Supreme Court insisted removal of the aforesaid contentions raised by the undersigned and the undersigned complied with the said objections, for he had no choice inasmuch as had he not done so, the Writ Petition would not have seen the light of the day. The Writ Petition was then registered as Writ Petition (Civil) No.124 of 2015. When the case was listed on 19th March 2015, the undersigned sought to address the Hon’ble Court, but it prevented him from doing so on the ground that he has not discharged his advocate on record. An application for the said purpose was filed; the advocate on record personally appeared before the Court and sought permission to withdraw himself. Yet, when the case was listed on 19th March, 2015 and when the undersigned, while arguing the case made a reference about the doctrine of diversity; how that doctrine was violated since 1993 when Judges started appointing only their kith and kin and of powerful lawyers and political leaders and lawyers belonging to the lower middle class, who have no godfathers, were totally neglected, the Hon’ble Bench did not allow him to further argue on the premise that his advocate on record is yet to be discharged. The undersigned, along with his colleague Mrs. Rohini M. Amin, General Secretary of the National Lawyers Campaign for Judicial Transparency, sought to address the Court and when the undersigned presented a brief note on the various contentions raised by him on 24th March, 2015, the Court found the following reference therein unpalatable:-

“… The Petitioner has prepared a comprehensive chart/list of those appointed below the age of 45 years, which is exclusively one of sons of former Judges, as also above 45 years and a few months. The statistic speaks for itself. For instance, the High Court of Bombay has got 8 sons of former Judges, 2 Judges are juniors of a Chief Justice of a premier High Court in India and a junior of a sitting Judge of the Supreme Court. Another 15 Judges are kith and kin of Judges and senior lawyers. The progeny chart filed along with the Writ Petition; so too attached with this note, will show that whatever may be the justification offered for introducing the collegium system, rewriting the Constitution, in actual practice it has meant a dynasty in judicial appointments. The learned Attorney General, and for that matter none who speaks in support of the NJAC Act, has even indirectly made a reference to the same. …”

4. To repeat, the Hon’ble Bench having found the above reference as unpalatable did not permit the undersigned to argue any further. It asked the Court Officer to call out the application for permission to argue as a party in person and, without offering any reason and without hearing the undersigned, rejected the said application. Mrs. Rohini Amin though pleaded that she intends to argue on behalf of women lawyers of this country, nay, the women in general whose voice is never heard, was also not allowed to address the Hon’ble Court; so too Advocates Shri A.C. Philip and Ms. Preeti Dambre, who raised the plea that the Judges who had appropriated to themselves the power of appointment in the name of independence of judiciary have mostly appointed their kith and kin and the progenies of big lawyers. The undersigned does not wish to write anything which is critical of the Court, for the truth speaks for itself. The brief note on the various contentions, as aforesaid, was handed over to the Hon’ble Judges on the Bench in the open Court. The learned Solicitor General did not take kindly to the plea at the hands of the undersigned that the learned Attorney General; has failed to ably defend the Government and requested the Hon’ble Court not to take on record the said note. Hon’ble Shri Justice Madan Lokur retained the note and Hon’ble Shri Justice A.R. Dave returned the same.

5. The undersigned, nay, the nation is at cross roads. The Writ Petition involves larger public issues, but notice to the public at large, not to speak of the major political parties, was not ordered to be issued; none was heard, though the undersigned repeatedly pointed out so. The undersigned reiterates that he could be least deserving to be appointed as a Judge of the constitutional Courts, but he is entitled to an opportunity to apply; so too is the case of Mrs. Rohini Amin who was denied an opportunity to put forward her plea.

6. The undersigned believes that to err is human. The Hon’ble Judges on the Bench, even while they have declined to hear the undersigned, he believes them to be most noble Judges. The undersigned particularly hopes that the Hon’ble Judges would realize that they have erred in denying an opportunity of hearing to the undersigned and would do the great injustice caused, not merely to the private rights of the undersigned but to the larger interest of the public at large. The undersigned is afraid to say that the Bench presided over by Hon’ble Shri Justice Dave has heard arguments only in favour of the collegium system and nothing in opposition was allowed to be raised or heard. Since the issue at hand is of such great importance, the undersigned felt it appropriate to bring the same to the kind notice of Your Excellencies/ Lordships/Madam/Sirs, high constitutional functionaries. A copy of the brief note, as aforesaid, is enclosed.

7. Before parting with, the undersigned tenders his unconditional apology if any word, phrase, expression or even the proposition canvassed by him is improper or deficient in any manner, even while he in all humility assert that he has to venture the formidable task since he believes that the learned Attorney General, nay, the learned Solicitor General too, has absolutely failed to defend the aforesaid Acts whose validity is challenged on mere technical ground and under the bogey of threat to the independence of judiciary, while all that was at peril was the monopoly of a few powerful people in appointment of Judges to the higher judiciary. The undersigned has made available the progeny chart to the learned Attorney General; requested him not to be apologetic about the constitutional amendment and the NJAC Act; not to proceed on the plea that the Acts have not been brought into force. The undersigned pleaded with him to assert that the Acts represent the voice of the people, for the voice of the Parliament is the voice of the people, and the Government is absolutely serious about bring into force the said Acts, frame rules and regulations for implementing the Acts, which is the promise of the Government of the day to the people. The learned Attorney General, the undersigned is afraid to say with utmost respect, betrayed the people of this country, the Hon’ble Prime Minister, the NDA Government, the Parliament and the people in failing to defend the said Acts, which even a lawyer of ordinary ability would have far excelled him in doing.

8. The undersigned begs to add here that he has no idea how to conclude this letter and what prayer he should make to His Excellency and other high constitutional functionaries to whom this letter is addressed. The undersigned feels so incompetent in making up his mind, except to say that he having made out his grievance, what could be done to remedy the great injustice done to him and others as also to the public interest in silencing him by not allowing him to expose the great damage the collegium system has done to the country, which the progeny chart would show, I leave it to the wisdom of Your Excellency and other high constitutional functionaries. The Hon’ble Chief Justice of India, I hope, would constitute a Bench consisting of Judges who could be neither part of the collegium nor likely to be a member of the NJAC, if it is to be constituted today, to hear the Writ Petitions in question, nay, in that sense Judges whose impartiality cannot be questioned, for no conflict of interest could be attributed.

With kind regards,
Yours sincerely,

Encl: Brief Note.
(Mathews J. Nedumpara)

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