The NLC Writ Petition Challenging the Transfer of Justice Jayant Patel

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. ________OF 2017

BETWEEN

1. National Lawyers’ Campaign For

Judicial Transparency and Reforms,

represented by its

Secretary (Litigation) Mr. A. C. Philip,

having its registered office at:

304, Hari Chambers,

3rd Floor, 54/68 SBS Marg,

Near Old Custom House,

Fort Mumbai- 400 023              … PETITIONER No.1

 

Versus

1. The Union of India,

Represented by the Cabinet Secretary

Government of India, South Block,

Rashtrapati Bhawan,

New Delhi 110 004                                  … Respondent No.1

 

 

2. Secretary,

(Department of Justice)

Jaisalmer House, 26, Mansingh Road,

New Delhi-110 011.                                          ………Respondent No.2

 

3. Collegium of Supreme Court,

Represented by Registrar General

The Supreme Court of India,

TilakMarg,

New Delhi-110 001,

India.                                                              … Respondent No.3

 

4. Chairman,

Parliamentary Standing Committee on

Law and Justice

Parliament of India

Sansad Marg, Janpath, Connaught Place

New Delhi… 100001…                                       ……Respondent no. 4

 

5. President,

Bar Council of India

21, Rouse Avenue Institutional Area,

Near Bal Bhawan,

New Delhi – 110 002                                        … Respondent No.5

 

6. Chairman,

Law Commission,

Government of India,

Lok NayakBhavan,

B Wing, Second and Fourth Floor,

Khan Market,

New Delhi-110003                                          ….Respondent no. 6

7. Attorney General for India

At the Supreme Court of India

TilakMarg,

New Delhi-100 001                                         … Respondent No. 7

 

8. Hon’ble Mr. Justice Jayant Patel

Former Judge, High Court of Karnataka             … Respondent No. 8

 

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING DECLARATION AND OTHER RELIEFS.

 

TO

THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA

 

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

 

MOST RESPECTFULLY SHEWETH

1. The Petitioner is the National Lawyers’ Campaign for Judicial Reforms and Transparency (NLC, for short), an organization of the non-elite class of lawyers, the first generation lawyers, sons and daughters of taxi drivers, farmers, fishermen, rickshaw pullers, daily wagers, teachers et al, who, today, stand entirely marginalized, both at the Bar and the Bench.

 

2. The Respondent No. 1 is Union of India, and the Respondent No.2 Secretary Department of law and Justice, who is the necessary and proper parties to decide the issues. The Respondent No. 3 is the Collegium of Supreme Court, Represented by the Registrar General of the Supreme Court of India , likewise, all, Respondents 1 to 7 are concerned and certainly parties interested in the instant cause and issue and Respondent no. 8 is just a formal but necessary and important Party.

 

3. The Petitioner NLC is an organization of lawyers who hail from humble backgrounds, the sons and the daughters of common man who have been denied a fair deal in the temples of justice. The membership to the organization is however not limited to lawyers alone, for, the institution of judiciary, in the ultimate analysis, is for the common man and therefore an organization which strives for  a fair  justice delivery system cannot achieve its goal unless the real stake holders the common man  too is  taken to its fold.

The proclaimed agendas of the 1^st Petitioner are:

• Advertisement of vacancies of Judges of the higher judiciary, invitation of applications and references , open and transparent selection and appointment, instead of the current system of appointment by invitation where only the elite and super elite are invited, in a democratic legitimacy in the matter of selection and appointment of Judges;
• Creation of a Judicial Ombudsman or such other mechanism as is contemplated in the Judicial Standards and Accountability Bill, 2012 or the Charter/Resolution called the “Restatement of Values of Judicial Life” passed by the Supreme Court of India in its Full Court meeting held on May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999 or any other meaningful mechanism where grievances against Judges could be addressed;
• Audio/video-recording of proceedings of all Courts and Tribunals and in particular the Supreme Court and High Courts, which will ensure transparency and accountability;
• Reintroduction of the transfer policy, which was described by the Seven-Judge Constitution Bench in Judges-1 case as a panacea for allegations of favouritism and conflict of interest where a lawyer is elevated as a Judge of the very same High Court where he has been practicing;
• Bring an end to the “Uncle Judge Syndrome” by transferring Judges whose immediate relatives are practicing in the very same Court;
• Abolition of the practice of designation of Advocates as a Senior Advocates or, at least, introduction of a common dress code for all lawyers, including those who are designated as Senior Advocates;
• Repeal of Contempt of Courts Act, 1971, for the said Act constitutes to be the one single obstacle which has rendered freedom of speech enshrined in Article 19 of the Constitution redundant. In none of the civil law countries, the law of contempt exists.  In England, in the 19^th Century itself, contempt by scandalizing  a Court was declared to be obsolete;
• Introduce a transparent mechanism in the appointment of Standing Counsel/Panel Advocates/Legal Officers for Central and State Governments, Statutory Bodies, Public Sector Undertakings etc., so that the prevailing system of nepotism, political favour etc., are brought to an end;
• Simplification of procedures to make the judiciary as an institution for the common man rather than it being meant to be for the Judges and elite lawyers.

4. In the NLCs agenda as above, open selection of judges of High Courts and the Supreme Court by notification of vacancies and invitation and application of all eligibles, so too, references from all stake holders, finds the very first place. The reason is, simple, obvious; because the higher judiciary in India, today,is perceived to be a dynasty, not very different from the political parties, a phenomenon which is antithetical to the very concept of a constitutional democracy which guarantees not merely equality before law and equal protection of laws but equal opportunities in public employment, so too, of constitutional offices.  Prior to independence, the high judicial offices of the chartered high courts and the federal courts were occupied by judges who were members of Indian civil service consisting substantially of the British.  There was nothing like judicial dynasties, then.  However, after the independence, slowly, a few families happened to dominate the Indian judiciary, the Bar and the Bench.  Soon, things took a sea change after the judges 2 case, a judgment by which collegium system of appointment of judges came into vogue. Our constitution is one of the finest constitutions of the world.  The Part III of the constitution embodies the principles contained in Magna Carta and Bill of Rights, so too, 5^th  and 14^th amendment to the American Constitution.  The concept of federation and unified state find an excellent blend, taking with it the advantages of the both but shunning the disadvantages.  The Concept of Separation of Powers as envisaged by Montesquieu too finds its beautiful blend, sans its inflexibility.  Our cconstitution, while  reaffirming the concept of the supremacy of the parliament, without undermining the same in no manner, also provided for judicial review.  Article 13 (2) of the Constitution declares that any law which is violative of the fundamental rights are void.  The constitution, however, did not expressly provide the forum which a citizen aggrieved by violation of his fundamental rights by an act of parliament or executive action could seek his remedies.   Article 372 of the constitution in express terms provided that the civil court is invested of the jurisdiction to do so.  The founding fathers however felt that in addition to the ordinary laws and the forum of civil court, the High Courts and Supreme Court be invested of the jurisdiction to grant certain remedies in the nature of writs where the fundamental or legal rights of the citizen are infringed by the executive or the legislative action; namely, Arts 226 and 32 of the Constitution respectively.
5. The jurisdiction of the High Courts and the Supreme Court under Arts. 226 and 32 came to be invoked increasingly as certain welfare legislations which the government of India introduced, were challenged on the ground that they are violative of the fundamental rights or beyond the legislative competence of the legislature. This has led to certain seeming conflict between the executive and the Judiciary, with the former amending the constitution to nullify the judicial pronouncements.  The public opinion too was divided; while the elite class of lawyers and rich businessmen, the capitalist supported the assertion of the judiciary of their right to interpret the constitution as their exclusive domain, the common man and the poor unwittingly supported the legislations.  In the ongoing tussle, the judiciary ultimately established its supremacy in Keshavananda Bharati’s case by holding that it has the power to declare even a constitutional amendment as unconstitutional.  In Keshavananda Bharathi the doctrine of Basic structure, which has no foundation in jurisprudence and in constitutional law, came to be pronounced.  The said judgment ran into half a million words.  Very few could have even read it. A judgment which is incapable to be read and thus incomprehensible contains no exposition of any new principle where none existed, to resolve a controversy which the court had before it.  The question before the full court in Keshavanda Bharathi was whether the constitution 25^th amendment Act which had provided that a constitutional amendment shall not be declared to be void on the ground that it violated the fundamental rights. The question therefore was whether the parliament by an amendment to the Constitution could take away the fundamental rights.  The answer, the common man could have wished to hear from the court was that it shall However the full court said the parliament has the power to amend every article of the constitution including that of the fundamental rights.  The judgment was certainly, by all means, with utmost respect, a retrograde one.  However, it was hailed to be a historic one, the magna carta.  Thousands of tons of newsprint was since used hailing it, as, the ‘fundamental rights case’.  The said judgment was hailed because the full court held that though the parliament could abrogate fundamental rights, the basic structure of the constitution cannot be breached.  The judgment in the Keshavananda Bharati’s case and the so called basic structure, the NLC considers to be the beginning of the destruction of the Constitution of India.  The proposition that the Keshavanda Bharati’s judgement had no foundation in jurisprudence, and that it was absolutely flawed logic, is the very foundation on which the instant writ petition is built.
6. De fide et officio judicis non recipitor questio sed de scientia sive sit error juris sive facti, namely while the integrity of a judge cannot be questioned, his knowledge and his decision, both on facts and law can be questioned, is a fundamental principle of law. The petitioners are within their rights to criticize the judgement rendered in Keshavananda Bharati. However, the said judgment is considered so sacrosanct, that any critics thereof are likely to be considered a blasphemers.  However, since the damage that this judgment has caused to the constitutional law of this country is so irreparable that the Petitioners consider that it is their duty to state what they consider to be true, candidly.
7. Law is reason, the very life of it, said Chief Justice Ubi jus ubi remedium, where there is a right, there is a remedy.  The fundamental principle is, right, remedy, forum. Under Article 32, if a fundamental right is violated, a citizen could invoke the jurisdiction of the Supreme Court. If not, he has no right.  Till Keshavanada Bharati, nobody would have dared to invoke Article 32 unless he had a grievance that his fundamental right was violated. Keshavananda Bharati held that Parliament can by law take away one’s fundamental rights and he cannot have any grievance about that.  However, if such a law had violated the  ‘basic structure’ of the constitution, he could invoke Art 32.  That meant nothing insignificant.  It was nothing like a new theory of geometry where two parallel lines could meet.  Petitions under Art 32 complaining violation of fundamental rights came to an end. Instead, petitions under Article 32 came to he instituted alleging violation of the basic structure of the constitution.  The term basic structure was not defined.  It may be incapable of any definition even.  To keep this petition brief, the Petitioners do not wish to elaborate on that.   Suffice to say that one of the early causalities of the doctrine of basic structure, a doctrine unknown to the rest of the world, is the appointment of judges to the higher judiciary. A nine Judge constitution bench rewrote Article 124 of the constitution and brought into existence the collegium system of appointment and transfer of judges to the higher judiciary on the premise that independence of the judiciary is one of the basic structures of the constitution.  The then Attorney General/ those representing the Govt did not raise the plea that PIL by SCAORA is not maintainable because there is no plea that anyone’s fundamental right is violated.
8. The judgment in judges 2 case, to repeat, was no interpretation but meant to be rewriting of the constitution. The nine judge bench could not have at all thought of usurping to itself the power of appointment of judges and to institutionalise the same by introducing the concept of ‘Collegium’ but for the Keshavananda Bharati The argument that the independence of the judiciary is a basic structure of the constitution and to protect the basic structure, it was permissible to rewrite the constitution.  The Union of India invoked Art 143 of the constitution. However, the Presidential reference was not whether the SC could rewrite the constitution in the name of interpretation, nay, whether the Supreme Court could abrogate to itself the power of appointment of judges which is in the exclusive domain of the executive with a mere obligation to consult the CJI, in the case of a judge of the Supreme Court and the Chief Justice of High Courts and the Governor as well in the case of the Judges of the High Court.  The Presidential reference was all about the details of the working of the collegium.  The Union of India even conceded that they are not seeking a review of the Judges 2 case.
9. While, the basic structure concept which the Petitioners, in all humility, but, conscientiously believed to be flawed one meant the concept of pro bono litigation misnomered a PIL, being used as an instrument to substitute the legislature, so too the executive nay, as if the judiciary is the executive and the legislature both at once.  Although, “What is in a name…?”,saith William Shakespeare in his play “Romeo and Juliet”, what kind of calamity a misleading name could cause, PIL is the classic example.  The Judges 1 case, is a treatise on the concept of ‘pro bono litigation’, today, a misnomer called  What Justice Bhagwati held in that case was, that any person acting pro bono publico could invoke the jurisdiction of the constitutional court where the person aggrieved, out of his poverty or illiteracy is unable to approach the court.  For instance, an undertrial prisoner x, who out of his poverty, illiteracy is unable to enforce his fundamental rights invoking Article 226 or 32, Y, a public spirited person, acting pro bono could approach the court. To enable him so, the concept of locus standi is relaxed.  The court did not invent any new jurisprudence, no new legal remedies were discovered.  It only relaxed the procedure.  Despite the word PIL in the pro bono litigation, it was for the enforcement of a private right of a person aggrieved.  In consonance with the fundamental legal principles : right; remedy; forum.   Before the evolution of the concept of PIL the remedy of mandamus as a matter of right would lie at the hands of a citizen where the authorities have failed to discharge their statutory duties.  The writ of mandamus, even qua warranto were thus considered to be public law remedies.  Such remedies fell well within the concept of judicial review.  However, the misnomer PIL, had a catastrophic effect.  Many even well informed and well meaning lawyers   and jurists thought the doctrine of PIL had meant investiture of a jurisdiction in the constitutional court to deal with any issue under the sun concerning the public at large.  Many a judgments on PILs held that the Person who institutes the PIL shall not have any private or oblique motive, that he should be acting bonafide.  This meant that even a person seeking the remedy of mandamus, quo warranto, which are not equitable remedies which is open to even a man with unclean hands, henceforth be denied of his legal rights.  Many PIL “factories” cropped up including PIL “Centres”. Everything under the sun which legitimately belong to the province of the executive and the legislature, including matters of legislative and administrative Policy came to be decided in courts.  The Supreme Court of India became the most powerful court on Earth.
10. From the misconception of the basic structure and PIL discussed as above, other misconceptions are of the fundamental principles of res judicata and staire decisis. The failure to distinguish between the two concepts meant yet another catastrophe. The Article 141 of the constitution embodies the doctrine of staire       In simple words, the doctrine of precedents.  The doctrine is a very useful one. One of great antiquity and of universal  application.  In simpler words, it means that if a superior court has evolved a principle to resolve an issue which it was called upon to do so, where none existed, the said principle, nay, the reason for the decision shall be binding on a court which is inferior to it.  The justification is that, it is always better to follow the trodden path.  The Petitioners bow down to the said Principle, which the founding fathers embodied in Articles 141 of the Constitution of India, for, they wanted to present to the posterity, a Constitution which is as complete and perfect in all aspects as possible.  However, with utmost respect, the Petitioners beg to submit that, since the advent of the doctrine of basic structure, which the Petitioners, in all humility assert to be one without any legal or logical foundation, so too, with the misconception of the pro bono litigation, which is found in law as PIL, as is in practice today the judgments of the Supreme Court, became the law of the land without the citizens at large being afforded any opportunity to partake in that law making process.
11. The meaning of the word res judicata is well known. While the doctrine of stare decisis means, that a decision of a case between A and B will bind a dispute between C and D who are not party to the decision in A and B, if in the decision between  A and B, the court had evolved some legal principle for the first time where none existed; whereas, the  doctrine of Res judicata could mean that the judgment of a court in a case between A and B will bind them, no matter, whether the judgment is right or wrong.  To put it in simple words, a judgment of a case between A and B, where the court has held “black” as “white” and “white” as “black”, though manifestly incorrect, will bind them and they cannot lodge a fresh dispute on that very question, before the same forum as the res is already adjudicated(res judicata).  On the contrary, in so far as the doctrine of stare decisis is concerned, the principle of law laid down in a judgment of a superior court, in a case between A and B will bind C and D in a subsequent case between C and D in the subordinate court, as, what has been decided by the superior court is a principle of law. However, it is for the court before which the said judgment of the superior court or peer court is cited as precedent to decide whether the judgment of the superior court or equivalent court is binding or not.  If a judgement is rendered curium, it will be binding, if not curium, nay, per incurium it will not be binding.  If for instance, the judgment of the Supreme court in Keshavananda Bharathi case is cited before a high court in support of the proposition of basic structure, it is for the High Court before which such plea is made to decide whether Keshavananda Bharati, nay, the principle of basic structure evolved therein constitute to be a binding precedent.
12. All judges exercise the sovereign power of the people. All judges, no matter, whether of the highest or the lowest, the sovereign judicial powers of “We the People” as trustees thereof. With Article 233 of the constitution investing the power of Superintendence of subordinate judges in the High Courts, the subordinate courts,it is generally perceived, have lost much of their independence.  With the collegium of the Supreme Court being the ultimate authority in the matter of transfer and appointment of High Court judges, so too of their peers in the Supreme Court, the undeniable perception is that, the High Courts have lost the independence which the founding fathers have envisaged.   If one were to advance an argument in the High Court that a judgment of the Supreme Court, particularly of a constitution Bench as one rendered per incuriam, the Honble judges, with utmost respect, the Petitioners beg to submit, will certainly refuse to entertain such an argument.  It may even be misconceived as being disrespectful of the Supreme Court.
13. The fourth myth on which the edifice of the Constitutional Law of the country as of today is founded, is that the civil courts have no jurisdiction to declare an Act of Parliament or a statutory instrument as void. The misconception is that, only the High Courts or the Supreme Courts alone could do.  The real reason for this misconception is that, the investiture of the power of supervision of the subordinate courts in the High Court, so too, the predominant role in the selection of the district judges, had the effect of members of the subordinate judiciary to nonconsciously, nay, unconsciously perceive that they are subordinate to the High Court judges.  It is forgotten that, the judges of the subordinate courts often being too scared to invoke the powers invested in them, as a court of unlimited plenary jurisdiction, has meant the litigant public invoking the extra ordinary jurisdiction of the High Court under Article 226 of the constitution for the grant of declaratory relief, even while the said Article has not expressly invested the jurisdiction in the High Court.  Still worse, the fact that, the Article 32 of the constitution has invested very limited original jurisdiction in the Supreme Court to grant the 5 writs, namely, Quo warranto, certiorari, prohibition, habeas corpus and mandamus, was also forgotten.  The fact that, the constitution did not in express terms invest any jurisdiction in the Supreme Court to grant a declaratory remedy namely to declare that an Act of Parliament or Statutory instrument as unconstitutional was forgotten, so too, sadly though, the original jurisdiction to grant the declaratory decree was in the exclusive domain of the High Court on its original civil side or on the civil court and no other court, was also forgotten.
14. The next myth: the judgment in Judges2 case was founded on the concept of the supposed power of judicial review invested in the Supreme Court, which knows no limitation. The constitution is what the judges say it to be. In judges2 case the Supreme Court asserted its primacy nay supremacy in deciding appointment or transfer of judges, even when such assertion meant contrary to what the text of the constitution The Justification offered was that the judicial review was one of the basic structures of the constitution. The Petitioners have no qualms about the power of Judicial Review within the limitations uuniversally recognized. Nowhere in the world, power of judicial review is understood to be as investing the court to act contrary to the constitution. The power is to undo actions which are against the Constitution. Constitution is supreme, the legislature, executive and judiciary, all are bound to act within the constitution. Art.13(2) of the constitution of India expressly says so; the provision is crystal clear. All actions of the state which are ultra vires the constitution are void. The word “State” takes within its ambit the Parliament, the Executive and the Judiciary. However the myth which is the result of judgments running to hundreds of pages is that, the judiciary does not fall within its ambit. The Judges 2 case by which the collegiums system of appointment and transfer of judges was introduced by judicial legislation even carries the proposition that the decisions of the collegiums are not  amenable to judicial review. The collegium conducts its affairs in the most secretive manner. Applications under the RTI Act seeking information as to its proceedings are declined. The scenario is most disquieting. All that the world today knows about the decision of the collegiums allegedly transferring Justice Patel from Karnataka High Court to Allahabad High Court, to deny him the opportunity to be elevated as the acting CJ/CJ of the Karnataka High Court  are the media reports, so too, the windmill of rumours and whispers which fill the corridors of the court. Many disquieting things are heard which due to considerations of reticence the petitioners refrain from dwelling into the same. The legal fraternity is aghast for they think that there is no room for judicial review in the province of the collegium, even while appointment and transfer of judges which the collegiums undertakes to the exclusion of the  rest of the world is purely an administrative function. This misconcept which has made the collegiums an imperio in imperium is the direct result of the yet another calamitous myth that the judiciary is not a State within the meaning of Article 12.
15. The sixth myth is the direct fallout of the myth number 5 above, namely that a judicial decision cannot be collaterally challenged. The perception today, though manifestly contrary to the first principles of jurisprudence, namely “resjudicata estoppels” is that judicial decisions of the superior court cannot be challenged in a collateral proceedings. Many erroneously believe that where a judgement of a  superior court is void ab initio, either because the parties affected were not heard, as is the case with PILs or without jurisdiction, the only procedure open to the party aggrieved is to challenge the same in “direct proceedings” by way of an appeal or review. The Petitioners have come across often even such reviews at the hands of such affected parties who are not heard, are dismissed on the ground that they were not parties to the original proceedings.
16. The seventh myth is about the unlimited power of the Supreme Court under article 142. There are many other myths including the concept of “election of remedies”. For considerations of brevity it is felt that Petitioners shall not dwell into the same. The eminence of the civil court as a court of plenary jurisdiction competent and duty bound to embark upon any controversy under the sun except those barred by law is evident from Article 372 of the constitution. So too, O.27 Rule1 of the CPC. Therefore, where a declaration that an act of Parliament or a statutory instrument is void is required to be sought, the forum to be invoked is the civil court, and civil court only. This may appear to be a weird proposition to many.
17. The aforesaid 7 misconceptions of law, fundamental though, has meant the Supreme Court being perceived to be the most powerful court on Earth, which has no parallel in any other democracy. The Supreme Court of India, today, for all practical purpose is the Supreme Parliament, the super executive and the highest judicial tribunal of the land, all at once.  The fact that the Judicial Review could be confined to the narrow limits as expressly stated in Articles 226 and 32 in granting the Writs, remedies expressly stated therein is forgotten.  The contrary view herein even assuming to be unworthy of acceptance ought to be allowed to be raised, discussed and deliberated.  The consequence as above could not have been thought of by the founding fathers, not even by the Hon’ble Judges when the judgment in Keshavananda Bharati case was delivered.  The full court couldn’t have in the wildest of its dreams contemplated that a day would come, when, in the name of Independence of judiciary (Basic Structure), collegium system will be brought into existence by judicial law making.  Justice Bhagwati who propounded the concept of Pro Bono Litigation could not have even in his wildest of dreams contemplated that, PIL, which was evolved by him for the enforcement of private rights of the illiterates, the poor languishing in jail, bonded labourers, etc will be understood as a means for adjudicating matters of policy affecting the public at large which fall into the exclusive province of the legislature and executive.  And that too, behind their back.  The founding fathers wouldn’t have even imagined that the doctrine of precedent would one day be misconstrued to be empowering the Supreme Court to lay down the law of the land, nay, the subtle distinction between Res judicata and stare decisis would be lost sight of.  They couldn’t have imagined that the judges of the Supreme Court would have a predominant role in deciding, who ought to be elevated as the judges of the High Court, so too the Chief Justices of the High Court, nay, the Supreme Court Judges appointing their peers.  They couldn’t have ever imagined the High Court to be subordinate to the Supreme Court, for, the Supreme Court which the founding fathers had envisaged was a Supreme Court which had no administrative jurisdiction even over the lower courts.  They could not have ever thought of the Chief Justices’ Conferences envisaging an “in-house mechanism” to deal with the complaints against the judges and Chief Justices of the High Courts and the Supreme Court.  They could not have equally imagined of the Judicial dynasties, the legal profession being the monopoly of a few families on the Bench and the Bar.  All these, the Petitioner begs to submit, which is undemocratic and against the Constitution,  became possible only because a few elite class of lawyers destined it to be.  The Petitioners, if they have the freedom to speak fearlessly what they have in mind, could have stated much more.  However, they, being fearful of the law of contempt do not intend to invite any untoward consequences, restrain themselves from speaking candidly.  Suffice it to say that the state of affairs are far from what it ought ideally to be. The latest is the Controversial resignation of Justice Jayant Patel.
18. In service jurisprudence, transfer is an incident of service. Justice Patel being an erudite judge is fully aware of the same, yet was deeply hurt by his proposed transfer from Karnataka High court to Allahabad high court.  And it was not without valid reason.  In the Karnataka HC, on the retirement of Justice S. K Mukherjee on 10^th October 2017, Justice Patel being the senior most Puisne judge would have been appointed as the acting Chief Justice.  If the media reports are to be believed, nay, there is hardly any reason to disbelieve also, Justice Patel was told over the phone by the Hon’ble CJI, of the proposed transfer to Allahabad High Court.  And in the Allahabad High Court, he will be the fourth senior-most judge.  Justice Patel took it as an unfair deal, hurt as he was, he tendered his resignation, which has since been accepted by the President.  The Gujarat High Court Advocates Association, the parent HC of justice Patel, was taken aback by the “raw deal” towards him.  The High Court Bar, nay, the Bar across the state of Gujarat too was taken aback. The Bar at Allahabad High Court too, where justice Patel had joined a year or so before, was none the less shaken ,as, Justice Patel could mean an upright and erudite judge.  Even while tendering his resignation, he seemed manifestly pained by the unfair manner he was treated by the Collegium, though he did not utter a word unfitting the high constitutional office which he was holding.

 

19. The transfer of judges from their parent state High Court to another high court is one of the core demand of the NLC. The NLC considers that the credibility of the institution of judiciary cannot be regained without the implementation of the transfer policy, which were framed in 1994 and since then abandoned.  As aforesaid, the Indian judiciary, both the bench and the bar is the monopoly of a few scores of families.  The uncle judges syndrome and the judicial dynasties is a real threat to the concept of a just and fair justice delivery system.  Blood is thicker than water, the affection towards progeny is the very nature of humans. The Supreme Court had occasion to consider this vexed problem which raises the greater threat to the just and fair dispensation of justice in S P Gupta case or  the Judges 1 case.  The remedy prescribed in the said judgement was transfer of judges from their parent high court to other High Courts.  The NLC considers transfer of judges from one high court to another, not only far from being objectionable but an ideal thing to happen.  If the judges themselves volunteer to go out of their parent High Courts to a  High Court outside their home state, that is the most ideal thing to happen.  It is unfortunate that many a judges have not sought for a transfer outside their home state despite their kith and kin practicing in the very same high court and the corridors of the court are often filled with scandalous whispers.
20. The Petitioners wish, Justice Patel had accepted the raw deal tendered to him in the transfer to Allahabad High court, even if it were to mean that he has lost his seniority to become number 4.  The reason is, a man of integrity, independence or courage like justice Patel could act as a corrective force within the system.  Though the legal fraternity was jolted by the transfer, the common man is largely passive about it though he was a great gem of a judge.  For the common man, the question is why the lawyers are making so much of a noise about nothing.  For him, in his eyes, transfer is common to all services.  Justice Patel, ought not have taken the extreme step of resigning from the service.  The NLC believes, the legal fraternity, so too, the general public are justified for the views, divergent though, they take, their perceptions being different.  The NLC, while fully empathizing with the cause of justice Patel, and though considers his transfer being most unfair and unjust, chooses to be considerate of the fact that the need is to go to the very cause of the disease than merely addressing its symptoms.  The root cause of the malaise which the justice delivery system faces today are the 7 myths referred above.  The instant issue only acts as a catalyst.
21. The solution is not at all difficult, it is very simple. The constitutional law of this country has been badly affected by the aberrations which the above said 7 myths constitute to be.  The solution is simple, go back to the letter and spirit of the constitution.  Accept the principles of separation of powers, nay, the supremacy of the executive, legislature, so too the judiciary, in their respective provinces.  Realise that the concept of judicial review was stretched too much.  So too realize that Art. 141 of the constitution invests no power to declare the law of the land which is in the exclusive province of the parliament and that, Article 141 only embodies the principle of staire decisis/ precedent.  Realise that PIL can only be in the enforcement of private right of those who out of their poverty or illiteracy cannot approach a court.  Realise that matters concerning the public at large nobody other than the Attorney General has a right to represent the cause of the public at large.  Realise that PILs are without any jurisprudential foundations for the simple reason that if the public issues are justiciable on which hypothesis PILs are instituted then the entire citizenry has to be heard.  Realise that, under the PIL jurisprudence, no new remedies were evolved.  Before the PIL era and subsequent to its invention, the legal remedies which could be sought for in matters concerning the public at large are in the nature of mandamus.
22. The instant Writ Petition is not a PIL, the NLC does not intend to mince words, it is against the concept of PIL. It believes that PIL is solely responsible for the many a malaise the judiciary faces today.  The NLC stands for public cause, not merely of the lawyers, but also of the common man. The remedies which we seek are in the realm of public law.  But the instant petition is not a PIL.  The remedies it seeks here are in the province of public law, primarily the writ of mandamus.
23. Justice Patel has resigned and his resignation has been accepted by the President. But, his resignation is out to be a catalyst, an opportunity for introspection; humility.  It is the ‘legal luminaries’ of this country which the media glorifies, who claim astronomical amount of fees, who are responsible for institutionalizing many a myths as aforesaid.  The legendry Nani Palkhiwala probably had the finest of good intentions but he could save only the basic structure, which has no foundation in law.  It meant rewriting the concept of ubi jus ibi remedium, namely rewriting right-remedy-forum as basic structure (without rights, remedy, forum).
24. The instant Petition at the hands of humble lawyers, who are least acknowledged, who are seldom heard could be dismissed in limine, it may be a fait accompli, for they, enjoy no face- On the contrary, if this Petition is admitted, the substantial questions of law raised herein are allowed to be argued, addressed, discussed with an open mind, the destiny of this nation could be changed, instead of being the most powerful court on earth, we will have a supreme court which will act within the constitutional limitations, accountable to people and deliver an even justice irrespective whether the case before it is pleaded by the ordinary class of lawyers or by the elite dynasties.
25. The NJAC case was heard nearly for 31 days. The so called legal luminaries were heard for days and days in support of the proposition founded on the 7 myths above.  The ordinary lawyers who are leading the campaign for greater transparency and accountability in the judiciary too were there, though they could hardly have afforded such a long stay in Delhi at an enormous cost for a public cause.  They were hardly heard.  They were asked to give a written argument note. After the hearing ended, there was one dissenting judgement and three other judgments in support of the leading judgment.  The said judgments however contained not even a whisper of the arguments made by them in support of the NJAC.  There is not even a mention of their plea that the PIL of SCAORA is not maintainable, it being in challenge of a legislative policy as to the manner in which the judges were to be appointed.  The only point which was recorded was the plea of the recusal of Justice Dave, Justice Khehar so too those judges on the bench who are likely to be part of the collegiums in future.  Had the pleas of the ordinary lawyers, as aforesaid been heard, the Judgment in NJAC case would have been different, so too, the constitutional history of India.
26. The founding fathers bequeathed on us a constitution which is, superb, almost a flawless one, for the almighty alone could have bequeathed a perfect or better one. Had the Union of India raised the plea that judges two case was not maintainable, which was the duty of the those representing the government to raise, the collegiums system would not have come into vogue.  Had the then Attorney General, not refused to raise the plea that the challenge on constitutional 99^th amendment act was not maintainable, the judgement in the NJAC case would have been different.  The trust of the People, whose will was the NJAC Act, was grossly breached by refusing to raise pleas in its defence.  To err is human and to accept the same with humility is divine.  Past is past and done, nay, to be interred with bones. The need of the hour is to look forward for the future and to remedy the mischief and promote justice.  There is no room for one upmanship or blame game.  An independent, efficient judiciary capable of delivering justice even handedly, to the meekest, so too the mightiest is nothing but the foundation on which the future of India as a constitutional democracy is to be  The government has a greater role to play than anyone else.  The NLC, as an organization formed solely to campaign for a transparent and efficient democracy had met leaders of various political parties, so too, members of the union cabinet including the law minister and asked them to initiate appropriate legislative measures for open and transparent selection of appointment of judges by invitation of applications from all eligible candidates so too references from all stake holders, so that, the sons and daughters of the common man who have no godfathers, that equally eligible and deserving, if not more, than the elite dynasties are appointed.  So too, a statutory mechanism to address the grievances and complaints against the judges of the superior court, instead of the current inhouse mechanism which has neither sanctity nor credibility.
27. The petitioners received a most welcome response from all the quarters. The Petitioners are fully conscious that no mandamus will lie to direct parliament to enact a law. Petitioners stand for the supremacy of the parliament, in its undoubted province.  However, a plea for mandamus will lie in the narrow realm, in so far as the plea sought for is a direction to the government to take appropriate steps in furtherance of the recommendations of the Parliamentary Committee which remains to be translated to action, and in particular, the recommendations which call for early legislative steps to secure transparency in the matter of appointment and transfer of judges.  Accordingly a plea to that effect is made in the instant writ petition.
28. In the ultimate analysis, the real reason for all the malaises which threatens the sacred foundations of our justice delivery system is the patent discrimination that is in the temples of justice, ordinary lawyers vis a vis the elite class lawyers the kith and kin, the judicial dynasties ; so too between the litigants who are under privileged and the poor and the rich and the super rich. Many of these differentiations and differential treatments, necessarily are not deliberate, but are subconscious, unconscious and non-conscious.  The devil is section 16 and 23(5) of the Advocates Act which has legitimized division of lawyers into two classes: the common class and the elite dynasties; and investing in the latter, special privileges and title. The petitioners have sought repeal of the said provisions.  The response which the Petitioners received has been quite encouraging, yet, falling short of any concrete action.  Though nothing has been communicated to the petitioners in writing, the Respondents have expressed their absolute agreement to the concept of common dress code for all lawyers, without any discrimination as junior or senior, so too the hierarchy of courts.  The Petitioners believe that, therefore they are within their rights to seek a mandamus directing the authority to consider their plea for a uniform dress code, a uniform bar, without anyone being clothed with special privileges or titles.  The judges 2 and 5 cases is a result of the culture of sycophancy which has assumed alarming proportions. The culture of ‘face value’ where the outspoken lawyers who dare not to mince words, have no place.
29. The instant Writ is not barred by the by the doctrine of estoppel res judicata.
30. The Petitioner states that the Petitioner has no other efficacious alternative remedy than to prefer the instant Writ Petition under Article 32 of the Constitution of India.
31. That the Petitioner crave leave to add, amend or alter any of the foregoing grounds with the permission of this Hon’ble Court.
32. The petitioner has not filed any other petition, appeal or application other than the one mentioned in this petition, before this Hon’bleCourt or any other High Court seeking similar reliefs as are sought in this Writ Petition.

PRAYERS

It is, therefore, most respectfully prayed that this Hon’bleCourtmay graciously be pleased to:

 

• To declare that the decision of the collegium of the supreme court headed by the Chief Justice of India in recommending the transfer of respondent no 9. Hon’ble Mr. Justice Patel from the High Court of Karnataka to the High court of Allahabad is unconstitutional and void;

 

• To declare that the collegium system of selection, appointment and transfer of the judges of the High Court and the Supreme Court constitute to be in clear violation of the constitution as originally enacted, so too, as amended by the constitution 99th amendment act, and the judgements of the Nine and Five judges constitution benches of this Court respectively in judges 2,3 and the NJAC case as popularly known are void being contrary to the letter and spirit of the constitution and that in case of conflict between the express provisions of the constitution and the interpretation even at the hands of the full court, which has meant the rewriting of the constitution, the former shall prevail, the latter being rendered per in curium;

 

• To declare that appointment of judges is a matter falling within the exclusive domain of the executive, so too, the laws concerning such appointments being legislations in the realm of policy decisions, are not justiciable at all, for, no one could be heard to plead that his fundamental rights are affected, for what is amenable to judicial review is violation of fundamental rights which is immediate and direct consequence of a legislative or administrative action and not matters which are not in the domain of executive and/or legislative policy;

 

• To declare that, even the relaxation of locus standi, as enunciated in the Judges 1 case could take within its ambit, only pro bono litigation, so as to open the doors of justice to persons whose fundamental and legal rights are violated but are unable to approach the constitutional court on account of their illiteracy, poverty, ignorance, and the like reasons, nay, PILs could only be for the enforcement of private rights, pro bono and not otherwise.

 

• To declare that the collegium of the Supreme Court of India shall have no say in the matter of transfer and elevation of the judges as Chief Justices and to the Supreme Court, since it will subvert the concept of independence of High Courts, which is sacrosanct.
• To issue a writ of mandamus or any other appropriate writ, order or direction, directing the Union of India, the first Respondent herein to consider, to establish a Judicial Appointment and accountability Commission, or any other mechanism in furtherance of the recommendations of the Parliamentary Committee on Law and Justice,  so too, of the representations  of the public at large, including of the Petitioner-NLC ,  for the selection and appointment of the judges of the High Courts and Supreme Court by advertisement of vacancies and invitation of applications, or any other means to bring in an open, transparent method of selection, appointment and transfer of the judges of the Supreme Court, Chief Justices and Judges of the High Courts  as also to go into the complaints against judges of the High Courts, and Supreme Court, so too, to deal with the complaints and grievances of the judges of the High Courts and Supreme Court and to take appropriate remedial measures, short of impeachment.
• To issue a writ of mandamus directing the Union of India to consider repealing section 16 and 23(5) of the Advocates Act which, has led to the creation of two separate classes of Advocates: the underprivileged and the elite dynasties that created monopolies and title by virtue of the system of Senior designation.
• to pass any other or as this Hon’ble Court may deem just and proper in the interest of justice in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY:

DRAWN  BY::                                                                FILED BY::

 

MATHEWS J.NEDUMPARA

and

C.J.JOVESON

 

[National Lawyers’ Campaign forJudicial Reforms and Transparency, represented by its Gen.Secretary, RohiniM.Aminand Others]

Advocate                                                Party in Person

New Delhi.

Drawn on:03.10.2017

Filed on:03.10.2017