Parties & petitions

Print edition : November 13, 2015

Justice Anil R. Dave, one of the Supreme Court judges who heard the petition challenging the NJAC Act. Photo: R.V. MOORTHY

Justice Madan B. Lokur, one of the Supreme Court judges who heard the petition challenging the NJAC Act. Photo: Shiv Kumar Pushpakar

Justice Adarsh Kumar Goel, one of the Supreme Court judges who heard the petition challenging the NJAC Act. Photo: AKHILESH KUMAR

Justice Kurian Joseph, one of the Supreme Court judges who heard the petition challenging the NJAC Act. Photo: Thulasi Kakkat

Justice Jagdish Singh Khehar, one of the Supreme Court judges who heard the petition challenging the NJAC Act. Photo: R.V. Moorthy

R.K. Kapoor, senior advocate and one of the petitioners in the Fourth Judges case. Photo: V. Sudershan

Uncertainty marks the hearing in the Fourth Judges case as the petitioners may once again appear in the court when it reconvenes on November 3 to hear fresh proposals to reform the collegium system.

Thirty-four days, three benches, six judges, oral arguments by 26 counsel representing 14 petitioners, eight respondents including the Centre and seven States, two interveners and two amicus curiae, written submissions, five separate judgments by five judges running to 1,030 pages. This is what it took the Supreme Court to deliver the landmark judgment on October 16 in the Fourth Judges case.

The petitions challenging the constitutionality of the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC) Act were first listed on March 10 before a three-judge bench comprising Justices Anil R. Dave, J. Chalemeswar and Madan B. Lokur which heard them for five days before referring them to a larger bench on April 7. A five-judge Constitution Bench, headed by Justice Dave, heard them for just a day on April 15 before referring them to another bench. Justice Dave, who some counsel suggested had a conflict of interests as he was a member of the NJAC by virtue of his being the third senior-most judge in the Supreme Court, was not a member of this bench.

Another five-judge Constitution Bench, headed by Justice J.S. Khehar, began hearing the case on April 21 and spent two days to overrule the preliminary objections against Justice Khehar presiding over the bench because of his membership of the outgoing collegium. Apart from Justice Khehar, this bench consisted of Justices Chalemeswar, Lokur, Kurian Joseph and Adarsh Kumar Goel.

On May 12, the Constitution Bench declined the plea of the respondents to refer the case to a larger bench after hearing the arguments on the reference question for 10 days. The lead petitioner in the case, the Supreme Court Advocates-on-Record Association (SCAORA), was also the lead petitioner in the Second Judges case, which was decided by the Supreme Court in 1993, and which was reiterated by the court in the Third Judges case in 1998.

The SCAORA, a professional body in the Supreme Court, was started in 1985 with the objective of advancing certain professional goals. Its petitions, in 1992 and 2015, challenging the then existing judges appointment process favouring the executive, stems from its declared aims and objectives. Thus, the SCAORA considers its mandate to express opinion on all measures affecting the profession and seek changes in law or the practice of law, and to take action for the promotion of and improvement in law and its administration of justice, and for the purpose to submit necessary recommendations before the legislature, the Government of India, the State governments, the judges of High Courts and the Supreme Court and the Law Commission or any other authority. The SCAORA, which has about 800 members, decided to challenge the 99th Constitution Amendment Act and the NJAC Act after passing a resolution at its general body meeting.

Supreme Court Bar Association (SCBA) president Dushyant Dave, who is a respondent in the case, has opposed the SCAORA’s petition. The SCBA has more members than the SCAORA, while all members of the SCAORA are also members of the SCBA. The SCAORA’s secretary, Vipin Nair, told Frontline that the SCBA’s decision to oppose the petition was based on a decision of its executive committee rather than on a resolution passed at its general body.

The SCAORA’s petition was also opposed by Mathews J. Nedumpara, the president of the National Lawyers Campaign for Judicial Transparency and Reforms, on the ground of maintainability. He claimed that the SCAORA had no locus standi to file the writ petition as it did not show how the two Acts under challenge infringed upon its fundamental rights.

According to him, in the First Judges case, the judges who were aggrieved by their transfer to other High Courts and non-reappointment of those who were appointed on an ad hoc basis were the parties and, therefore, the Attorney General conceded maintainability of the writ petition. In the Second Judges case, the question of maintainability was not raised at all. The Third Judges case was decided by the court on the basis of the advisory opinion sought by the President under Article 143 of the Constitution. Nedumpara’s grievance is that the Attorney General neither raised this issue in the Fourth Judges case nor did he support him when he raised it.

The court ignored Nedumpara’s grievance and recorded a consensus in favour of the SCAORA as the lead petitioner in the case. Other petitioners soon joined it to raise similar objections against the two Acts.

Among them was Change India, a trust that runs a centre for advocacy and research to further the cause of democratisation of society, equity, the rule of law, human rights, accountable governance, sustainable development and alternative development models. A. Narayanan, the founder trustee of Change India, edits and publishes Paadam, a Tamil monthly magazine for development politics. Author and Supreme Court advocate Santosh Paul argued on behalf of Change India.

Balaram Singha Roy, social activist and practising advocate from West Bengal, and Narendra Kumar, a senior citizen from Delhi, joined the list of petitioners and argued through their counsel. Well-known advocates Bhim Singh, Bishwajit Bhattacharyya and R.K. Kapoor and public interest litigation (PIL) activist Manohar Lal Sharma were the petitioners who argued in person before the court. The court heard P.M. Duraiswamy, an advocate from Chennai, who sought to challenge the two Acts.

Professional bodies, such as the Bar Association of India and the Centre for Public Interest Litigation filed petitions challenging the two Acts and made submissions through their counsel, Anil Divan and Prashant Bhushan, respectively. The All India Association of Jurists filed a petition and made submissions through its counsel.

The Suraz India Trust, a non-governmental organisation that had initially filed a petition seeking reconsideration of the judgment in the Second and Third Judges cases and secured a reference order from a two-judge bench in 2011, before it was dismissed by a three-judge bench in 2013, was heard through its president Rajiv Daiya. The court transferred to itself two petitions, one filed by Y. Krishnan in the Madurai Bench of the Madras High Court and another by Basil Attipettty, an advocate, in the Kerala High Court, against the two Acts, to be heard along with the other petitions.

As the court reconvenes on November 3 to hear fresh proposals for reforming the collegium system of appointing judges, there is expectation that all the parties who were heard in the main matter will again appear before the court, even as there is speculation about the nature of the guidelines that the bench may lay down.

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