Judges transfer case: Plea in SC challenges collegium system

A review petition has been filed in the Supreme Court, challenging the Apex Court verdict of October 6, 1993 in the Supreme Court Advocates-on-Record Association And Anr vs Union of India, popularly known as the Judges-2 case, in which a nine-judge Constitution Bench overruled the decision in S P Gupta, and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.

The plea was filed by the National Lawyers’ Campaign for Judicial Reforms and Transparency, represented by its General Secretary Rohini Amin.

According to the plea, the petitioners were not heard and no notice was issued as well in the original proceedings. A fair notice and hearing was denied to the petitioners. They said the general perception, so well rooted, that only celebrated Lawyers alone are heard to the cheer of their heart, is true. Apart from some celebrated senior advocates, nobody was heard and in the deliberance on the merits of the case and there is no whisper whatsoever about the contentions of ordinary lawyers and the common people whom they represented, at all, not even a word, alleged the petition.

It stated that the petitioners had no avenue to challenge the same during the proceedings, neither were they under notice to partake in the proceedings. But, by way of the said judgment sought to be reviewed, the review petitioners’ rights were adversely affected. The review petitioners do not have notice till date of the above proceedings. The judgment of the court binds the parties to the proceedings and not the world at large, it added.

“The lis is inter partes. Whereas, when the judgment passed is not in personam, but in rem, which binds the whole world, and the generations to come, to determine their rights and legal remedies, they cannot be denied the first principle of natural justice, ‘Audi alteram partem’. The enactment of any legislative body can be corrected for it’s infringement of rights of the generations of present or future either by way of judicial proceedings or by way of political process. The remedies and procedures are open. Hence it is equally applicable to the judicial legislations also. The impugned judgment is a judgment in rem, binding the whole world, and is a judicial legislation, virtually amending the constitution, infringing the rights of the petitioners. The only way the injustice which has resulted in failing to afford the common men, including the instant review petitioners is to allow the instant review petition”

-the Petition said.

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The petitioners in the Review Petition do not question the bona fides of the nobility of the purpose of those who invoked the jurisdiction of the Supreme  Court in the light of the then Government appointing ‘Sarkari’ Judges, but the method they adopted, namely, asking the Court itself to amend the Constitution by judicial legislation – a remedy worse than the disease. While asserting that the Constitution and the separation of powers envisaged thereunder is sacrosanct, the Petitioners certainly consider that the political leadership, the executive Government of the day, will always try to appoint their favourites as Judges. In a Cabinet system of Government, not only in India but elsewhere, the real power could be in the hands of a few people led by the Prime Minister and they (the Cabinet) control even the legislature.

The petition alleged that in Judges-2 case, since there were no issues in controversy, the entire litigation was on a hypothetical basis, without any lis or controversy at all and, therefore, there was no occasion for the original case to be disposed of in terms of the opinion rendered by the larger Bench in the reference. “This is so manifest and so simple which even a layman could comprehend.”

The petitioners submitted that the entire finding in the judgment in Judges-2 case is contrary to reason and logic.

“In Judges-2 case, Judges themselves were the real parties; it is all about their power and when Judges themselves are parties, a cause before them, they miss the obvious, something as clear as daylight because Judges, howsoever eminent they could be, are humans and fallible as they are.And how come men so eminent, scholarly, erudite, noble and respected like Sarvashri F.S. Nariman, Kapil Sibal, Ram Jethmalani, P.P. Rao and Shanti Bhushanet al could raise so frivolous, illogical and irrational a contention that the Court should rewrite the Constitution, the Court usurp to itself the power of appointment of Judges, it should, instead of upholding the constitutional law of the country, destroy the very concept of separation of powers which they held so sacrosanct”

-the Review Petition reads.

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The petition highlighted that the very democratic legitimacy of the superior judiciary is under a serious question mark. If Parliament had enacted a law rendering an unfortunate and alarming situation, one could take recourse to judicial review; if the Government were to appoint Judges in the manner done by the collegium, the same could be challenged before the Court, for, judicial review cannot be denied. But when the collegium appoints, which is an executive function, it cannot be challenged because in Judges-2 case it is made clear that no judicial review would lie.

In light of those facts, the petitioner prayed to declare that the judgment in Supreme Court Advocates-on-Record vs Union of India, (1993) 4 SCC 441, popularly known as the Judges-2 case, is unconstitutional and void ab initio inasmuch as it amounts to rewriting of the Constitution, for which the Supreme Court has no power.

On April 15, 2015, the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are notified by the government of India as operational. Later, the Constitution Bench of the Top Court on October 16, 2015 declared the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 as void and unconstitutional.
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