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OPEN LETTER TO SUPREME COURT
Home | EXpert Opinion | Letter dated 12th November 2005 | Judiciary is also responsible for protection of Politics-Crime-Nexus

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News published in the Times of India on 30th November 2005 under heading Letter to CJI could get you justice: SC booklet, in which it was described that letters sent to CJI relating to some specific cause of actions, would be treated as Writ Petitions. This is completely based on my ideas and concept referred in my Writ Petition (Civil) No. 151 of 1996, filed before Supreme Court of India.

OPEN LETTER TO HON’BLE SUPREME COURT

Hon’ble Chief Justice of India Mr. R. C. Lahoti,

New Delhi,

 

Hon’ble Lordship,

 

This is my Humble prayer that important issue relates to long terms public interest, raised herein should be examined by the Hon’ble Supreme Court in considerations of the Your Lordship’s remarks in open Court asking the Government (Not to Legislature), which Newspapers referred as “you want to be law unto yourself?”, and responded by Hon’ble Speaker Shri Som Nath Chatterjee, Renowned Bar-at-Law as “unfortunate”.

This is my Humble prayer before Your Lordship to examine whether various Judgments of the Supreme Court are responsible or not for the situation under which Your Lordship was compelled to make such harass but correct remarks?

In this respect I may be allowed to refer the discussion held on 9th December 1949 on the Scheme, object and enactment of Article 32 of the Constitution, in the Constituent Assembly of India, in the Constitution Hall, New Delhi, when Mr. Vice-President Dr. H. C. Mookherjee, was in the Chair, where contrary to remark of Hon’ble Speaker Shri Som Nath Chatterjee Shri M. Ananthasayanam Ayyangar: (First Lok Sabha Speaker) says that: “the Supreme Court according to me is the Supreme guardian of the citizen’s rights in any democracy. I would even go further and say that it is the soul of democracy. The executive which comes into being for the time being is apt to abuse its powers, and therefore the Supreme Court must be there, strong and un-trammeled by the day to day passions which may bring a set of people into power and throw them out also in a very short time. In less than three or four years during which a parliament is in being, many governments may come and go, and if the fundamental rights of the individual are left to the tender mercies of the Government of the day, they cannot be called fundamental rights at all.” and further that: “These and other rights must be carefully watched and for this purpose the Supreme Court has been vested with the supreme ultimate jurisdiction.” 

In my views such a situation arises when Supreme Court mixed up its Two Efficacies (One: Under Part III of the Constitution, and another Under Chapter V of Part VI of the Constitution), during the interpreting the entire Constitution Under Article 147 of the Constitution.

Article 147 provides that “In this Chapter (with reference to UNION JUDICIARY) and in Chapter V of Part VI (with reference to HIGH COURTS), references to any substantial question of law as to the interpretation of this Constitution shall be construed as including references to any substantial question of law as to the interpretation of the Government of India Act, 1935”…“or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947, or of any order made thereunder”. This empowered to Supreme Court just to interpret the Constitution inter alia as “if interpretation of the Government of India Act, 1935”…“Indian Independence Act, 1947”. “Union Judiciary” not inclusive of the efficacy of the Supreme Court with reference to Part III of the Constitution.

This will be ample clear from Article 12, 13 read with Article 32 under Part III of the Constitution, which empowered the Supreme Court much stronger efficacy than Article 147, having armed with extra-ordinary supreme powers and jurisdictions to examine even the Constitutional validity of the “Government of India Act, 1935”…“Indian Independence Act, 1947”, by Clause (1) of Article 13 of the Constitution which provides “All laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India immediately before the commencement of the Constitution, (which includes Government of India Act, 1935 and Indian Independence Act, 1947) in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”.

The impact of the aforesaid mixing up two independent, separate and untrammeled efficacies of the Supreme Court caused such a situation which causes gross changes in the mindset of the Supreme Court as appears openly, under which responsibility of the Supreme Court as a Guardian, Guarantor and Watchdog-Protector of the rights guaranteed under Part III of the Constitution interalia as were hold by Six Judge Bench (AIR:1950,Sc: 124, Kania CJ, Fazl Ali, Patanjali Sastri, Mahajan, B.K.Mokherjea, And Das JJ.), that: “The Supreme Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights”, were shifted towards complete negative directions that the “………… it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III”.

Such a situation with diluted efficacy of the Supreme Court Under Part III further confirmed by the Judgment dated 10 the April 2002 388-428 SCC (2002) 4 SCC held that under Article 32, 132, 133, 134, 136, 226 and 12 of the Constitution of India Supreme Court cannot issue a Writ to a High Court or one Bench of Supreme Court cannot issue a writ to another Bench of the Supreme Court even if the latter is a smaller one—More so because neither a Judicial order passed by a superior court can be said to be violative of fundamental rights nor are the superior courts “State” within the meaning of Art 12”.

From the aforesaid Judgment it was clear that it was arrived only after mixing up the Article 32, 132, 133, 134, 136, 226 and 12 of the Constitution of India, and after considering that “nor are the superior courts “State” within the meaning of Art 12”. This interpretation was made without considering the facts that Employers of the Supreme Court Judges (President and Parliament of India) are within the scope of the “State” under Article 12 of the Constitution, therefore, how employee (Composed of Supreme Court Judges) the superior courts are not “State” within the meaning of Art 12”. 

I may be allowed to explain in detail to justify that Supreme Court have been provided two independent, separate and untrammeled efficacies one: Under Part III and another: Under Chapter IV of the Part V and Chapter V of Part VI of the Constitution of India.

In fact basis of the present confrontation is between short-term political benefits of the people from Executive who comes into being for the time being is apt to abuse its powers, as Hon’ble Shri M. Ananthasayanam Ayyangar commented and long terms benefit of the public at large. But until aforesaid important issue is not resolved, confrontation is bound to fuel the fire.

With Best Regards,

Yours Law Abiding Citizen of India

 

 

(MILAP  CHORARIA) 

Dated 24th August 2005

National Convenor: Movement for Accountability to Public (MAP)

B-5/52, Sector-7, Rohini, Delhi-11085 Phone No. 27055356

http://map-india.tripod.com/

http://groups.yahoo.com/group/MAP_INDIA

http://milapchoraria.tripod.com/msp

milap_choraria@yahoo.com

 

CC to

Hon’ble Shri Som Nath Chatterjee, Speaker of Loksabha,

Hon’ble Mr. Milon Kumar Banerjee, Attorney General of India

 

 

TRUTH SHALL PREVAILS