Brief Note in WP in SC

BRIEF NOTE ON THE VARIOUS CONTENTIONS RAISED BY THE PETITIONER SEEKING TH CENTRAL GOVERNMENT TO FRAME RULES/REGULATIONS FOR CARRYING OUT THE PROVISIONS OF THE NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2015, NAY, IN SUPPORT OF THE SAID ACT AND FOR A DECLARATION THAT THE COLLEGIUM HAS CEASED TO BE IN EXISTENCE, FOR CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014 HAS COME INTO FORCE AND IT IS THE LAW OF THE LAND EVEN WHILE NOTIFICATION FOR IMPLEMENTING THE PROVISIONS OF THE ACT IS YET TO BE ISSUED.

MAY IT PLEASE YOUR LORDSHIPS:

I. The plea of the learned Attorney General and others that the Writ Petitions in challenge of the National Judicial Appointment Commission Act, 2014 as unconstitutional, is premature, is purely a technical one, one drawn on an apologetical note, rather than coming wholeheartedly defending the Act as it reflects the will of the people, for the voice of the Parliament is the voice of the people. The said plea of the learned Attorney General has led to the impression, erroneous though, that he has failed to defend the Government ably. It is a fundamental principle of law that a declaratory relief could be sought even without a cause of action; whether to grant the relief or not is a matter of discretion of the Court; and the discretion could be exercised negatively and decline the relief only where to do so is not in public interest. The Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (“the Acts”, for short) are realization of the demand of the public at large, all sections of the civil society, to bring about an independent, impartial and efficient judiciary, accountable to the people, citizen-friendly. It is necessary that the arbitrary, cabal and secret system of appointment of Judges by themselves in vogue since 1993 when the Nine-Judge Bench of the Supreme Court by rewriting the Constitution took upon to itself the power of appointment of Judges to higher judiciary, which could not have happened but for the weak executive since the days of Prime Minister Narasimha Rao, is done away with. The people of the country expected the learned Attorney General to come all in defence of the said Acts and asserted the Government’s determination to bring into force the said Acts forthwith, without brooking any delay.

II. The collegium system brought an end to the concept of diversity in appointment of Judges of higher judiciary. It was the complaint of great jurists, philosophers, lawyers, political leaders et al even prior to 1993, namely, even when the executive were appointing Judges, that those appointed constitute to be the elite class and those deserving even more than the selected elite class of lawyers are neglected because the system of appointment is by invitation. Under the collegium system where the Judges themselves appoint Judges, the appointments, particularly at young age, who alone has an opportunity to reach the Supreme Court and even become the Chief Justice of India, for that matter even the Chief Justice of a High Court, were confined to the kith and kin of former Judges of the Supreme Court/ High Courts or powerful lawyers, and none else. 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. Therefore, it is imperative for the Petitioner, an Advocate with 30 years of standing at the Bar, to bring to the notice of this Hon’ble Court and the public realm the manifest oligarchy, nay, nepotism in judicial appointments without meaning any disrespect.

III. Inequality among Judges. In the Judges-2 case, the Supreme Court was pleased to hold that seniority is an inviolable criterion in the appointment of Judges as a Chief Justice of a High Court and a Judge of the Supreme Court bring into focus the theory of legitimate expectation. This meant that Judges who are appointed as Judges of the High Courts at a young age, say 40 years, will reach the Supreme Court and may even become the Chief Justice of India. This has led to a scenario where sons, nephews, sons-in-law, nay, kith and kin of Judges being appointed as High Court Judges below the age of 45 years, which is considered to be the benchmark. All those who are appointed below the age of 46 years as High Court Judges, elevation to the Supreme Court is guaranteed. This preference given to the kith and kin of Judges in judicial appointments over others has led to an unequal treatment of Judges who are otherwise equally placed in terms of competence, erudition, intelligence etc.

IV. The collegium system has meant a blot on the independence of High Courts. Under the constitutional scheme, High Courts are in no way inferior judicial Tribunals. High Court Judges are expected to be as independent and impartial, and enjoy the same status as Judges of the Supreme Court, though the orders of the High Courts are appealable to the Supreme Court. The collegium system meant “promotion sickness” among Chief Justices of High Courts, for rather than independence they are required to take care to avoid offending the senior Judges of the Supreme Court and in pleasing them in many ways, a practice lamented by legendary Justice Krishna Iyer and Chief Justice U.L. Bhat in his autobiography “The Story of a Chief Justice”.

V. The Rules/Regulations to be framed under the NJAC Act should bring an end to the concept of appointment by invitation and, instead, appointments should be made in an open and transparent manner. The Constitutional Reforms Act, 2005 of U.K. provides for advertisement of vacancies of High Court Judges and receipt of applications, nay, selection solely based on merit. The Rules/Regulations to be framed under the said Act should provide:

(a) advertisement of vacancies of Judges to encourage applications;
(b) references, so that the Bar, the various stakeholders, nay, the public at large, can make references of persons whom they consider to be eligible for appointment;

(c) face to face assessment which may involve interview, and the NJAC to make recommendations solely on merit, identifying the core qualities required to hold the judicial office, namely, intellectual capacity, ability to understand and deal fairly, communication skill and so on. The wider the pool of applicants, the greater the possibility of selecting the best.

VI. Though Hon’ble Shri Justice Anil R. Dave, who heads the Three-Judge Bench in the instant case, is a Judge revered and respected by the legal fraternity and the public at large, a Judge of the highest integrity, ability and impartiality, still the doctrine of nemo iudex in sua causa or nemo debet esse judex in propria causa – no one can be judge in his own cause – would require His Lordship to recuse himself even at this stage since in the eye of the 120 billion ordinary citizens of this country, the instant case is all about a law whereunder the exclusive power of appointment invested in the Judges case is taken away and is invested in a fair body which could lead to displeasure of the Judges and, therefore, the Supreme Court itself deciding a case involving the power of appointment of Judges of the Supreme Court will not evince public credibility.

The question then arises is as to who could decide it. The doctrine of necessity leaves no other option then the Supreme Court itself deciding the question. But in that case, it could be by Judges who are not part of the collegium as of today or, if an NJAC is to be constituted today, could be a member thereof. With utmost respect, Hon’ble Shri Justice Dave is a member of the collegium; His Lordship will be a member of the NJAC if it is constituted today. Therefore, there is a manifest conflict of interest.

VII. Referendum. In Australia, a Constitutional Amendment was brought in, limiting the retirement age of Judges to 70 years. Instead of the Judges deciding the correctness of the said decision, the validity of the amendment was left to be decided by a referendum, and 80% of the population supported the amendment. Therefore, the only body who could decide whether the NJAC as envisaged is acceptable or not is the people of this country upon a referendum.

VIII. The judgment in Judges-2, which made the rewriting of the Constitution, is void ab initio. The said case was decided without notice to the public at large. Only the views of the Government and Advocates on record and a few others were heard. In the instant case, the public at large ought to be afforded an opportunity to be heard; at least the major political parties, and the case should be referred to Constitutional Bench. The constitutionality of the Acts ought to be decided, brushing aside the feeble, nay, apologetical plea of the learned Attorney General that the Acts have been brought into force and their validity cannot be challenged, and failing to come forward and state in candid terms that the Acts are the will of the people, spoken through their elected representatives and that too without any division, unanimous.

The plea of the Advocates on Record Association that the notification bringing into force the said Acts be stayed be rejected forthwith; so too its demand that the collegium system, which has ceased to be in existence, be allowed to be continued and appointments to the august office of Judges of High Courts and Supreme Court on its recommendation, for to do so would mean that Judges of the High Courts who are currently Chief Justices because they were appointed at a young age in preference over others will be appointed as Judges of the Supreme Court and if that is allowed to happen, it may lead to a situation where the Supreme Court tomorrow will literally be packed with sons and sons-in-law of former Judges. There are at least three Chief Justices of High Courts who are sons of former Judges of the Supreme Court. The Petitioner is no privy to any confidential information, not even gossips.

Still he believes that if the implementation of the NJAC is stayed, three sons of former Judges of the Supreme Court could be appointed as Judges of the Supreme Court. The Petitioner has absolutely nothing personal against any of those Judges; the issue is not at all about any individual. The Petitioner readily concedes, and it is a pleasure to do so, that few of them are highly competent and richly deserving to be appointed.

IX. Equality before law and equal protection of law in the matter of public employment. The office of the Judge of the High Court and Supreme Court, though high constitutional office, is still in the realm of public employment, to which every person eligible ought to be given an opportunity to occupy, he being selected on a transparent, just, fair and non-arbitrary system. The Petitioner reiterates that he could be least deserving to be appointed when considered along with others of more meritorious than him, but the fact that since he satisfies all the basic eligibility criteria prescribed under Articles 124A, as amended, and 217, he is entitled to seek a declaration at the hands of this Hon’ble Court that an open selection be made by advertisement of vacancies or such other appropriate mechanism.

X. Judicial review versus democracy. Judicial review is only to prevent unjust laws to be enacted and the rights of the minorities, whatever colour they could be in terms of religion, race, views they hold, by a legislation which enjoys brutal majority and an of the executive which is tyrannical. It is no way intended to substitute the voice of the people by the voice of the high judiciary.

XI. Article 124A, as amended, is deficient only in one respect. The collegium contemplated thereunder is still fully loaded in favour of the high judiciary. Three out of the six members are Judges. In that sense it is failing to meet to be just and democratic. But the Parliament has in its wisdom enacted so and if there is a complaint, the forum is to generate public opinion and seek greater democracy. The Petitioner is currently not interested in that; he is happy with the Acts as enacted and the principal relief which he seeks in the instant petition is the immediate coming into force of the said Acts by appropriate notification and a mandamus to that effect at the hands of this Hon’ble Court.