Mathews J Nedumpara
31st July 2026.
98205 35428.
Dear Mr. Tushar Mehta,
Am glad that yesterday you raised the issue of independence of the executive before Justice Datta of the Supreme Court.
The executive is independent, nay sovereign, in its exclusive domain as much as the courts are in their own, and the courts have absolutely no jurisdiction to interfere so long as the executive confines itself to its domain and conducts its affairs bona fide. The Parliament is sovereign and supreme, subject to the only limitation that the laws enacted by the Parliament are not ultra vires the Constitution.
- Courts have no power to enact laws. The judgments of the Supreme Court are not the laws of the land. If the Supreme Court has evolved a new principle where none existed for the resolution of an issue before it, or has reaffirmed an existing principle, the principle so laid down will operate as a precedent.
3.These are fundamental principles of jurisprudence beyond dispute. However, by entertaining PILs, and so too through suo motu PILs, the Supreme Court has been enacting laws behind the back of the people of this country. Nothing could be more undemocratic and unconstitutional than courts entering into the forbidden domain of governance and legislation. This has been happening for more than four decades now, with no end in sight. All this happened because the Government law officers — AGs, SGs and ASGs — did not tell the court that it has no power to bind those who are not before it by its judgments, unlike the Parliament. A record of the Parliament binds all because we are all symbolically present in Parliament and it is with our consent that laws are enacted. On the contrary, the record of a court binds only the parties before it and none else, because to hold otherwise is against the principles of natural justice and representative governance.
4.The great calamity which the Collegium undoubtedly is happened to come into existence because Parasaran did not question the maintainability of the so-called PIL of SCAORA. Soli Sorabjee betrayed the Government by failing to seek a review of the Collegium in the Presidential reference of 1999.
Rohatgi repeated the errors of his predecessors by refusing to assert that no petition can be maintained under Article 32 except for violation of fundamental rights.
5.You too have all throughout committed the very same error which your predecessors in office have committed, by failing to challenge the maintainability of PILs which do not involve violation of fundamental rights. You too have all throughout, in the past, failed — like your predecessors in office, without exception — to assert that the Attorney General is the sole repository of public interest and none else, and that the so-called PILs are not representative proceedings and are thus wholly unmaintainable.
6.I believe in the first principles of jurisprudence and consider any deviation therefrom would be a catastrophe. The Supreme Court has already been destroyed. Matters concerning governance which fall within the exclusive province of the executive are justiciable today! Nay, everything under the sun.
- The common man is repeatedly told that the court is the last resort where every other forum has failed. This has instilled in him a hope which the court cannot meet. The day is not far off when people protest against the court as they do against the political executive.
8.A mouse, if it assumes the size of an elephant, may not be able to survive. The evolutionary principle applies equally to courts. We lawyers used to proudly say that our Supreme Court is the most powerful court on the planet. The founding fathers, not even in their wildest dreams, wanted or anticipated that. They expected the court to do what lawyers call “adjudicate the lis.”
We need to retrieve our Supreme Court, and prevent its total destruction. It is not a difficult task. Just stick to first principles. No petition, no matter what terminology is used, will be entertained unless there is an allegation of violation of fundamental rights. In other words, abolish PILs, and wholeheartedly welcome pro bono litigation for enforcement of fundamental rights. Prashant Bhushan and Ashwani Upadhyay may be displeased. We can’t help it.
9.Pro bono litigations are not representative proceedings. They are for the enforcement of the rights of a man who, out of ignorance or illiteracy, is unable to move himself. There is not much publicity in it, much less any personal or political gain.
- Dear Mr. Mehta, Am no foe of yours, a friend. You will find your job far simpler. Assert, as you did yesterday, that the executive and the Parliament are as sovereign and independent in their province as the Supreme Court is in its domain. The court has no power to enact laws. The clamour for issuance of guidelines is contrary to the elementary principles of jurisprudence. No PIL can be entertained except as representative proceedings for enforcement of fundamental rights, and nothing else.
11.We are a vibrant democracy. Indira Gandhi imposed Emergency, imprisoned opposition leaders, imposed press censorship. Kesavananda Bharati’s judgment could not prevent it. The intelligentsia even surprised Mrs. Gandhi by their meak surrender. It is the common man who restored democracy. GenZ has shown it once again. No Government can take the people for granted.