Respected V.K.Venugopal Ji,

 

I am thankful to you that you and your friend have taken my views in right earnest, which I had referred to in my Open Letter dated 24^th August 2005 to the Hon’ble Supreme Court with copies to Shri Som Nath Chatterjee, Speaker of the Loksabha and Shri Milon Banerjee, Attorney General of India. Copy of the same is also being appended here as APPENDIX “A”, for your ready reference, as it relates to a very important issue, raised by me in my several representations to His Excellency to the President of India (Which was later forwarded by him to the Law Ministry), Hon’ble Supreme Court and others as well as it is also being referred to in my Book: “TRUTH BURIED (under politics-crime-nexus)”, and also in the Writ Petition filed by me before Supreme Court. Though the same was refused to be registered as Writ Petition, surprisingly not by any Bench of the Hon’ble Supreme Court but just by the Registrar of SC. My detailed interpretation is referred below as APPENDIX “B”. I am feeling vindicated to note that in recent times for the first time SC has evoked its real powers in the matter of Bihar Assembly Dissolution Case, giving a Judgment with far-reaching impacts. 

 

If you would have given your full Address I could have also sent you a hard copy of this Email to your good self.

 

With Regards,

Sincerely Yours faithfully,

 

 

 

(Milap Choraria)

Copies to:

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

Shri Som Nath Chatterjee, Speaker of Lokasabha; and

Shri Milon Banerjee, Attorney General of India, with reference to my representation dated 24^th August 2005 to them, since this debate is based on the said representation.

Copy to Justice Yogesh Kumar Sabharwal, designated Chief Justice of India.

 

Now I am submitting my views point by point

after your views referred in your EMail:

 

Date: Tue, 11 Oct 2005 13:27:24 +0300

From: "Bharatiyar" <bharatiar@gmail.com>

To:

milap_choraria@yahoo.com

Subject:Your open letter to CJI

 

Dear Mr. Moraria, (Choraria)

 

A friend of mine forwarded your open letter to SC for my comments. This is what I replied to him. Just a contrary view to yours. I am forwarding the same to you for your comments if any, contradicting my views. I share your interest in the subject.

 

I respect your views and interst in the subject. My differencce of opinion with you is only acadamic. I hope you will take it in the right spirit, just like two advocates arguing two sides of the case.

 

quote

“Mr. Choraria's contentions in this petition are not presented properly. Having narrated two sets of independent powers of SC (according to him) under Art. 12 and under Art. 147, he jumps to the conclusion that SC falls within the definition of 'State' for the purpose of 147. He does not explain his rationale for coming to this conclusion.”

 

My Comments:

This is not true that just having narrated two sets of independent powers of Sc under Art. 12 and Art. 147 I jumps to conclusion that SC falls within the definition of ‘State’. In this respect I am humbly request you to go by my detailed interpretation referred under APPENDIX “B”.

 

1. The only clue to his line of thinking is in his observation that President and Parliament are "employers" of the SC Judges and since President and Parliament are within the definition of "STATE", SC judges also falls squarely within that definition.

 

In my opinion, this interpretation is faulty. The Constitutional scheme of things does not allow for such an interpretation that SC Judges are 'employees' of the Government. No doubt, SC judges and CJI are appointed by the President (the Executive - the Government) and can be removed only by the Parliament. Even this power to appoint / dismiss are subject to several stringent conditions. Once appointed, functionally there is no employer-employee relationship between SC Judges and President / Parliament.

 

My Comments:

“I partly agree with your opinion. However I have never considered Supreme Court Judges as employee of the Government, rather my emphasis is that employer-employee relationship between SC Judges and President / Parliament should not be considered just in consideration of its linguistic objects and meaning, or on technical grounds, but should be taken in consideration of the accountability of Judges of the Supreme Court to the Supreme Court itself and to the Constitution of India. First of all I humbly submit that Supreme Court and Supreme Court Judges cannot be considered at the same footings. Yes, I agree with you that Supreme Court is creature of the Constitution. But, at the same time Supreme Court Judges are liable to perform their functions in accordance with their duty fixed and defined under the Oath taken by them at the time of entering in the Office of Supreme Court Judge. If they are not accountable in accordance with the ‘OATH’ taken by them, than under the scheme of the Constitution there should have not been any ‘OATH’”.      

 

a) All expenses of the High Courts and SC are charged to the Constitution of India and are not subject to vote by the Parliament / Legislature. This is obviously to ensure that the Parliament does not interfere in the functioning of the SC through budgetary control.

 

My Comments:

“My interpretation was with reference to Supremacy of Supreme Judiciary over and above all other Constitutional Authority in respect of Fundamental Rights (FR), vise versa Accountability of Supreme Court Judges to the Constitution and Supreme Court itself, as such point raised by you is not relevant to my views. However, the amount of salary and other privileges and allowances etc. of the Supreme Court Judges are determined by the Parliament under Art. 125.”

 

b) There is specific prohibition on Parliament to discuss conduct of judges except in an impeachment proceeding. If Constitution envisaged employer-employer relationship between Parliament - SC, it would not have barred Parliament from discussing conduct of its 'employees'

 

My Comments:

“In a democracy People always must be supreme, otherwise democracy is bound to be proved as mockery of democracy as it is prevailing today in India, and most corrupt politician can acquire high posts by political manipulations. In my views founding fathers, with a view to protect democratic set-up, even maintaining employer - employee relationship between the President-Parliament and Supreme Court Judges, empowered the Supreme Court having armed with most supreme powers than Parliament under Part III of the Constitution. Founding father, with a view to preserve fairness of Judiciary, do not allowed to Parliament to interfere in the day-to-day working of the Judiciary. Otherwise Executive might have misused the scope to discuss the conduct of its employees (here I mean Judges of Supreme Court and High Courts) to effect fairness of the Judiciary. However, the provision of impeachment itself is justifying the employer-employee relationship between President-Parliament and SC Judges.”

 

c) The Executive consists of the Council of Ministers and the President. Similarly, Parliament consists of Lok Sabha, Rajya Sabha and the President. But President is NOT part of the Supreme Court / Judiciary. There is a clear emphasis on the separation of Judiciary from the other two wings. Functioning of Executive is subject to control of Legislature and being a creature of the majority in Lok Sabha, the Executive has some control over the parliament also. But there is specific prohibition of both interfering in functioning of Judiciary.

 

My Comments:

“I am fully agree with you on this point, but this does not means that Supreme Court Judges are not accountable to Supreme Court itself or that they are not bound to perform their functions in accordance with Constitution, particularly with reference to responsibility laid upon the Supreme Court to act as the Guardian, Guarantor and watch-dog-protector of the Fundamental Rights of the citizen.”  

 

d)SC has specifically been given powers to annul laws passed by Parliament, if they are inconsistent with the provisions of the Constitution. Can an employee have power to overrule the employer?

 

My Comments:

“Your interpretation appears to me within the linguistic meaning of the employer-employee relationship between President-Parliament and SC (here I mean SC Judges), forgetting the objective purpose, meaning and ambit of the provision. Rather I am trying to explain that even there are employer and Employee relationship between President-Parliament and Supreme Court Judges, even Supreme Court Judges as a Part of Supreme Court, having been empowered and armed with the Supreme Powers than the Parliament to annual law enacted by it, if same is inconsistent to any provisions of the Part III of the Constitution. Empowerment of such powers also creates responsibility of Supreme Court Judges as part of Supreme Court to adhere with the constitutional proprietary to ensure Fundamental Rights of the Citizens, and cannot escape from its such responsibility by observing that since Supreme Court does not form a part of the “State”, thus order passed by it cannot be considered as violate of the fundamental rights.”     

 

In my view, the status of SC is unique. It is a creature of the Constitution and not that of President / Parliament. If at all a comparison of SC relationship with President / Parliament with common types of relationship is required, the nearest I could think of is the relationship between a company and its auditor. The company directors appoint the external auditor but are not supposed to control their work (in theory). But the similarity ends there. Auditors are appointed on a year to year basis and hence are subject to manipulation by company. Constitution clearly protects SC judges from such interferences also.  The employer-employee theory does not therefore appeal to me.

 

My Comments:

“I think comparison between a Limited Company and Auditor with the SC Judges by you is a faulty considerations. In my interpretation I also want to convey that SC has a unique efficacy under Part III. But through passing of time, wrong interpretations were cropped up, thus diluted its such unique efficacy.”

 

2.  Mr. Choraria's interpretation of Art. 147 beats me. He says " This empowered to SC just to interpret the Constitution inter alia as "if interpretation of the GoI Act1935.. Indian Independence Act. Union Judiciary not inclusive of the efficacy of the supreme court with reference to part II of the Constitution" (Here Part III not Part II) 

 

Art 147 says : 147. Interpretation.-In this Chapter and in Chapter V of Part VI, 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 (including any enactment amending or supplementing that Act), or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947, or of any order made thereunder.

 

It doesn't take training in Law to understand that this Art. is not one that confers any specific authority on the SC, but it only clarifies that the powers of interpretation conferred elsewhere in that chapter and in chapter V of Part VI, extend to pre-constitution Core legislations.

 

My Comments:

“Kindly refer language used in my said representation dated 24^th August 2005, which referred under APPENDIX “A” below. I do not agree with your views. Please read detail explanation appended in APPENDIX “B”. However, if your views should be considered as corroborating with the views of founding fathers then the language of Art. 147 should have been as under:

“With reference to any substantial question of law as to the interpretation of the Constitution shall be as to the interpretation of the Government of India Act, 1935, (Including any enactment amending or supplementing that Act) or Indian Independence Act, 1947, or any order of in Council or order made thereunder.”

 

Since it seems that Mr. Choraria's contention is to treat SC as an arm of State for the purpose of matters other than enforcement of fundamental rights, we have to see the differences between such matters and enforcement of fundamental rights.

 

Constitutional edicts on fundamental rights are instructions to the State about the citizen's rights, though the right to life and dignity is available against fellow citizens also (even here, the State has the duty to protect citizen against violation by fellow citizens). It is therefore natural that violation of fundamental right is alleged against the State authorities and hence the emphasis on 'State" in Art. 12. Cases other than cases involving violation of FR, are usually disputes between several parties, some or all of which may be arms of State itself. Hence, except in cases where enforcement of FR is involved, the State is like any other litigant before the court, with the same privileges and obligations as other litigants whereas in cases involving FR, it has only obligation to protect citizen's FR and there can be no excuse or justification for violation of FR. The State can only seek to prove that there is no violation of FR or correct the wrong deed but in other cases, it can seek to justify its actions or inaction.  Hence, in cases not involving violation of FR, definition of State is not required as the State stands on the same footing as other litigants, unlike in cases involving violation of FR. And SC powers on interpreation of Constitultion and Law is the same even in disputes between two citizens, regardless whether State is a party to the litigation or not.  For this reason, I think Mr. Choraria's attempt to include SC in the definition of State in respect of cases not involving violation of FR is ill-conceived.

 

My Comments:

“Your interpretation of the “State” is based on the linguistic meaning of employer and employee relationship. The entire Part III of the Constitution including Art.12 is relates to Fundamental Rights. Each and every provision of Part III are co-related and supplementing each other and should be interpreted with objective purpose of Scheme of the Part III. Under Part III SC given important responsibility 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”. But same were shifted towards complete negative directions taking advantage by holding that the “It may be further noted that the superior courts of justice do not fall within the ambit of State or other authorities under Article 12 of the Constitution” and further holding that “………… 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”. Re: Judgment Dated 10th April 2002 388-426 (2002) 4 SCC. The object of Article 32 of the Constitution is to ensure ultimate right of remedy against infringement of fundamental rights. This is very important that in the entire Constitution, Supreme Court is not empowered nor have been impliedly empowered to cause miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias, but by aforesaid wrong interpretation which suggested otherwise or ancient not consistent with the most important core principles of the jurisprudence that “Justice must be above all” and another core principle of the rule of law which says, ‘Be you ever so high, the law is above you’. Under the impact of aforesaid or similar interpretation a situation is developed as were also observed in Para 23, 42, and 68 & 69 of the said Judgment Dated 10th April 2002 388-426 (2002) 4 SCC.”    

 

3. But I agree with Mr. Choraria that SC decision ("....it is a settled position of law that no judicial order passed by any superior court in judicial proceedings can be said to violate rights enshrined in Part III") is a negative one.  He has not mentioned the case in which, the alleged shift occurred and I hope he is quoting some casual observation or litigant's arguments as if it is Court's decision by mistake. If indeed, the Court made such a decision, it is unfortunate.

 

Art 12 specifies what is INCLUDED in the definition of the State but does not exclude any entity from the definition. Hence it cannot be construed that there can be no violation of FR by the Judicial authorities. It cannot be the intention of the framers of the constitution that Judiciary be law unto themselves even above the citizen's rights and Constitutional mandate.

 

Even the Constitution has to vest the final authority of interpretation and arbitration on some entity and therefore had to rely on the good sense of the final arbiter for enforcement of citizen rights. If the final arbiter asserts it can do no wrong, it is unfortunate.

 

The very fact that the final arbiter (Judiciary) had to assert that it can do no wrong indicates that it failed in its fundamental duty. Not only justice has to be done, it has to be SEEN to be done. Obviously justice was not seen to be done and hence SC had to assert that whatever it doles out is justice. A pity that SC had to say this instead of causing every one to FEEL that justice is being done.  I can do no wrong is not the way for a sensible arbiter to assert.

 

My Comments:

“Thanks for your strong complimenting supports to my views by your valuable opinion as appears in Para 3.”

 

I still feel that Mr. Choraria may have extracted the quote out of context. It is better to read the whole judgment or at least the relevant portions of it before ridiculing it.

 

My Comments:

“As I have already said that I have not extracted the quote out of context. In fact I have learned a lot of experiences from Supreme Judiciary, with changing mindsets.”

 

I don't think the 'law unto yourself' outburst by Lahoti had anything to do with constitutional provisions as Mr. Choraria tries to make out. It just displayed intolerance of opposing views by someone charged with the final responsibility of finding the most judicious view among the opposing view points presented before him. I don't understand why Mr. Choraria is dragging in interpretation of Constitution in condemning what is basically a personality trait.

 

My Comments:

I not understand that how my views referred in my representation dated 24^th August 2005 was termed as “a personality trait”. In my said letter dated 24^th August 2005, itself I have referred remarks made by Hon’ble CJI as correct. I humbly submit that I have used the matter as it was referred by Newspapers, in the context of my own experiences, to call attention of the Judiciary in the larger interest of the Judiciary itself and its efficacy to take corrective path, in accordance with it has been empowered, which has been missed in selective matters at the cost of Fundamental Rights of few Individuals, by passing the orders equal to miscarriage of Justice, or abuse of judicial process or orders without jurisdiction or under bias as admitted in the aforesaid Judgment Dated 10th April 2002 388-426 (2002) 4 SCC.”  

 

“I am ready to use scope to further elaborate my views if occasion arises. But I must mention here with folded hand that I have never intended to make out any matter as personal trait. But at the same time I fully disagree with views if expressed by any one that SC Judges can pass orders amounting to miscarriage of Justice, or abuse of judicial process or orders without jurisdiction or under bias.”

 

Regards

Venu

APPENDIX – “A”

 

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 9^th 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 24^th 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

APPENDIX – “B”

IMPORTANT CONSTITUTIONAL QUESTION

(Following is referred from my BOOK: TRUTH BURIED: (under politics-crime-nexus), which might be contains some irrelevant portions).

Article 32 of the Constitution ensured remedy against infringement of the Fundamental Rights against Power Mongers. But, in reality it appears as not a true calculation. Our Constitution bears a large amount of ambiguity in its various provisions, thus failed to restrained power mongers from control over the system. This is practical result of our democratic system we not even see a single real National Leader barring few so-called imposed National Leaders from the Political Parties, even those are not free from the illness exists amongst power mongers. Supreme Court Judges too are human beings, and no one can expect them free from any human errors. That is the reason culture of Judicial Activism always changes according to composite mind-set of Supreme Court Judges of the time. Thus scope, Meaning and ambit of the Article 32 of the Constitution varied time to time which can be explained from various Judgments. It is ample clear that under the development of such a situation, one important thing is missed permanently, that Indian Constitution have provided virtual Two Supreme / different efficacies with different gravity having armed with independent, separate and untrammeled boundary line of the powers and jurisdictions, but within infrastructure of one Supreme Court.

 

One such efficacy of Supreme Courts covered by Chapter IV Part V under heading “UNION JUDICIARY”, armed with Articles 124 to 147, relating to Infrastructure, Establishment and Constitution of Supreme Court, having with Original and Appellate Jurisdictions covering the supervising Role upon the sub-ordinate judiciary which includes High Courts, and Dispute between one and another State or Union of India, and corrections in Judgments or orders given by sub-ordinate Judiciary comes through Appeal or Special Leave Petition, and advice on any subject forwarded by the President. Powers and Jurisdictions provided under this Chapter are totally not matching with the Extra-Ordinary Supreme Powers and Jurisdictions Under Pert III of the Constitution. Constitution of India provide one independent, separate and untrammeled responsibility under Part III of the Constitution and another under Chapter IV of the Part V of the Constitution of India and for the purpose of the powers and jurisdictions and interpretation of the constitution, both such responsibility cannot and should not have been mixed up.

 

But, after due course of time both the Responsibilities were mixed up, and finally Supreme Responsibility provided under Article 32 of the Constitution is placed under control of Chapter IV of the Part V of the Constitution, once principle of the finality of the final order of the Supreme Court were made applicable in respect of the petitions under Article 32 of Constitution were made, without providing measures to prevent miscarriage of the justice, abuse of the judicial proceedings and orders without jurisdiction or under bias thus opened the large scale scope to cause miscarriage of the justice, abuse of the judicial proceedings and orders without jurisdiction or under bias.

 

Under the impact of the principle of finality of final order of the Supreme Court, (Nine Judge Bench (AIR 1967 SC 1:(1966) 3, SCR 744) Judgment) mind set of the Supreme Court gradually but slowly started to shift from its responsibility as a Guardian, Guarantor and Watchdog-Protector of the rights guaranteed under Article 32 of the Constitution as were held 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” 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”, taking advantage by holding that the “It may be further noted that the superior courts of justice do not fall within the ambit of State or other authorities under Article 12 of the Constitution” completely inconsistent with the purpose, object, scope, meaning and ambit laid down by the founding fathers, empowering the Supreme Court to ensure enforcement of the fundamental rights even if caused at the level of the Supreme Court under Article 32 of the Constitution.

 

In the year of 1993 Government of India appointed one High Powered Vohra Committee headed by the then Union Home Secretary Mr. N. N. Vohra to examine matters related with the Politics-Crime-Nexus. Its one of the Member: CBI Director has reported that all over India crime Syndicates have become a law unto themselves. Even in the smaller towns and rural areas, muscle-men have become the order of the day. Hired assassins have become a part of these organisations. The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with the individual offences/crimes, is unable to deal with the activities of the mafia; the provisions of law in regards to economic offences are weak; there are insurmountable legal difficulties in attaching/confiscation of the property acquired through Mafia activities. Likewise CBI Director IB Director also mentioned interalia that These Syndicates have acquired substantial financial and muscle power and social respectability and have successfully corrupted the Government machinery at all levels and yield enough influence to make the task of investigating and prosecuting agencies extremely difficult; even the members of the judicial system have not escaped the embrace of the mafia. Aforesaid observation by the Committee is indicating about the working of the entire Indian Judicial system.    

 

In the light of the aforesaid observation if we consider the impact of the application of the principle of finality of final order of the Supreme Court, (Nine Judge Bench (AIR 1967 SC 1:(1966) 3, SCR 744) Judgment) in respect of the various Petitions filed under Part III of the Constitution has translated the result not less than “oppressive to judicial conscience”, it can be easily assumed that impact is not less than “perpetuated irremediable injustice for the respective Petitioners” thus translated as virtual protections for the respective criminal acts committed by criminal means, beyond the scope, meaning, ambit of Article 32 of the Constitution of India and powers and responsibilities of the Supreme Court and against the expectation of the founding fathers of the Constitution as appears from the debate of the Constituent Assembly held on 9th December 1946 where Shri M. Ananthasayanam Ayyangar: (First Speaker of Lok Sabha) 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 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.” 

 

 Inconsistent with such belief of the founding fathers of the Constitution, last 3 lines of Para 7 of the Judgment dated 10th April 2002, 388-428 SCC (2002) 4 SCC observed that “It may be further noted that the superior courts of justice do not fall within the ambit of State or other authorities under Article 12 of the Constitution”. Observation has been made without considering that the office of President of India and Parliament of India were covered within the ambit of the “State” under Article 12 of the Constitution. President of India is authority for appointments of the Judges of the Supreme Court and Parliament of India is authority to remove one Judge from Supreme Court. Therefore, President of India and Parliament of India are joint Employers of the Judges of the Supreme Court, then how can be considered as out of the ambit of the State under Article 12 of the Constitution. When Employers are within the ambit of the “State” than how employee can be out of such ambit. In fact words “The State includes” under Article 12 of the Constitution is not meaningless and cannot be limited to “the Government and Parliament of India and the Government and the Legislature of each States and all local or other authorities within the territory of India or under the control of the Government of India” rather its impact is much wider.

 

Further more that interpretation that “………… 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” is also not consistent with the guarantees provided under clause (1), (2) and (4) of Article 32 of the Constitution. The object of Article 32 of the Constitution was to ensure the ultimate right of remedy in guaranteed manner to each citizen against infringement of fundamental rights. Clause (1) of Article 32 provides that “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part (Part III) is guaranteed”, with clear directions that Writ Petition can be filed against any Constitutional Authority as last resort to ensure remedies for enforcement of rights guaranteed under Part III. To protect such rights from any type of infringement caused by any authority, specific conditions has been laid down under clause (4) of Article 32 that “The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”. Such provision is giving clear Constitutional direction that even Supreme Court cannot pass any order amounted as suspension of right of remedy by passing orders amounted to miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias.

 

That Article 32 of the Constitution directs under clause (2) tagged with the aforesaid conditions under Clause (4) of that “The Supreme Court shall have powers to issue directions or orders or writ, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part” including rights conferred by Clause (1) under Article 32. In such a situation there is no scope to pass any order, amounted as miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias.

 

That the independent, separate, untrammeled responsibilities of the Supreme Courts armed with two different efficacies: (1) under Part III and (2) Chapter IV of the Part V of the Constitution. This clearly apparent from Article 131 of the Constitution which defined the Original Jurisdiction of the Supreme Court in respect of the matters and provisions provided under Chapter IV of the Part V of the Constitution. In view of this article Original Jurisdiction of the Supreme Court under Article 13 and 32 Part III of the Constitution not referred or included in the list of the Original Jurisdiction of the Supreme Court. In fact from the entire Chapter IV of the Part V of the Constitution nowhere the Jurisdiction and Powers of the Supreme Court with regards to Part III of the Constitution is referred or can be inferred.

 

The independent, separate, and untrammeled border lines of the Jurisdiction and powers including the powers of interpretation of the Constitution in respect of (1) Part III and (2) Chapter IV of the Part V of the Constitution of India are independently are defined. The powers and jurisdiction, scope, meaning and ambit to interpret the Constitution under Article 147 of the Constitution is limited with reference to Chapter IV of the Part V and Chapter V of the Part VI with reference to any substantial question of law as to the interpretation of the Constitution shall be construed as including reference to any substantial question of law as to the interpretation of the Government of India Act, 1935 or of any Order of Council or order made thereunder or of the Indian Independence Act, 1947. However from the language of Article 147 of the Constitution this is ample clear that Supreme Court is not empowered to make interpretation of the Constitution in respect of Part III of the Constitution with reference to any substantial question of law as to the interpretation of the Constitution. Which further clear from the provision provided by Article 13 of the Constitution.

 

Article 13 under Part III of the Constitution empowered the Supreme Court to declare “All laws in force in the territory of India immediately before the commencement of this Constitution, (which includes the Government of India Act, 1935 and Indian Independence Act, 1947) in so far as they are inconsistent with the provision of this Part, shall to the extent of such inconsistency, be void”. And further that “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 inconsistent with Part III or any law includes any Ordinance, order, bye-laws, rule, regulation, notification, etc., which takes away or abridges the rights conferred by Part III shall not be made by the State otherwise in so far as they are inconsistent with or contravention of Part III, empowered to declare as void, while under Chapter IV of the Part V of the Constitution even similar powers were not provided to Supreme Court.

 

The efficacy of the Supreme Court under Part III is much supreme than the efficacy of the Supreme Court under Chapter IV of the Part V of the Constitution. Supreme Court not empowered to pronounce any Judgment or pass any order or infer any other or inferior interpretation not consistent with the provisions provided under Article 13 and 32 of the Constitution, on the basis of any provision provided under Chapter IV of the Part V of the Constitution, including Article 147. While Article 13 and Article 32 of the Constitution are important pillars of the Basic Structure of the Constitution of India and cannot be changed or altered to suit the power mongers of the day or open any discriminatory passage for any one. But, by Judgment Dated 10th April 2002 388-426 (2002) 4 SCC under the observation made at Para 23 admitted that under the human error or otherwise miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias were possible. 

 

The object of Article 32 of the Constitution is to ensure ultimate right of remedy against infringement of fundamental rights. This is very important that in the entire Constitution, Supreme Court is not empowered nor have been impliedly empowered to cause miscarriage of justice, abuse of judicial process or orders without jurisdiction or under bias, therefore the interpretation that “………… 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” is suggesting otherwise or ancient not consistent with the most important core principles of the jurisprudence that “Justice must be above all” and another core principle of the rule of law which says, ‘Be you ever so high, the law is above you’. Under the impact of aforesaid or similar interpretation a situation is developed as were also observed in Para 23, 42, and 68 & 69 of the Judgment Dated 10th April 2002 388-426 (2002) 4 SCC.

 

Moreover the independent, separate, untrammeled responsibilities of the Supreme Courts (1) under Part III and (2) Chapter IV of the Part V of the Constitution clearly apparent from the efficacy of Supreme Court under Article 141 of the Constitution just defined that “the law declared by the Supreme Court shall be binding on all Courts within territory of India”, which having much lesser efficacy then the efficacy of the Supreme Court under Article 12 of the Constitution, under which Judgment of Supreme Court is binding upon “The State”  inclusive of the Government and Parliament of India.

 

That by the said Judgment dated 10 the April 2002 388-428 SCC (2002) 4 SCC contrary to the provisions provided under Article 141 of the Constitution it was 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. Infact such interpretation is based on dependence of the Indian Judiciary upon the English Law, as it appears from the Paragraph 6 of the Said Judgment Per Syed Shah Mohammed Quadri J. (for C.J. and himself, Variava and Patil JJ.) Dated 10th April 2002 388-426 (2002) 4 SCC.

 

Aforesaid observations were possible just because two independent, separate and untrammeled responsibilities were considered as single one after mixing up the provisions of Article 12 of the Constitution with Article 132, 133, 134, 136, 226 of the Constitution under human ignorance or otherwise, as also apparent from Article 139 Chapter IV of the part V of the Constitution, which further provides separate Jurisdiction and Powers of the Writs from the Writs under Article 32. Provision under Article 139 conferment on the Supreme Court powers to issue certain writs, with the provision that “Parliament may by law confer on Supreme Court power to issue directions, orders or writs, including writs  in  the  nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32” with clear object to define completely different, independent,  separate and untrammeled responsibility of the Supreme Court under Chapter IV of the Part V of the Constitution from the responsibility under Clause (2) of Article 32 of the Constitution which provides that: “The Supreme Court shall have powers to issue directions or orders or writ, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part”. If the founding fathers of the Constitution would not in mind about two independent, separate and untrammeled Responsibilities of the Supreme Court as already explained then provision under Article 139 could not have been provided. Therefore, for the enforcement of any of the rights conferred by part III, if necessary a Larger Bench can issue a Writ upon a Smaller Bench. Even today the application of the principle of finality of final order of the Supreme Court is a Nine Judge Bench certiorari Writ applicable upon the Smaller Benches, otherwise it should not have been applicable upon any other Bench of the Supreme Court.

 

Provision of interpretation of the Constitution with reference to Part III of the Constitution referred, defined, derived and / or could be or should be inferred exclusively from Clause (1), (2) and (4) of Article 32 of the Constitution of India itself and cannot be imported from outside. Such clauses imposing strict restriction upon all authority including Supreme Court itself by providing that “the right to move the Supreme Court by appropriate proceeding for enforcement of the rights conferred by this Part is guaranteed” and that “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”, therefore, no other interpretation can be made or inferred which can change impact of efficacy of the aforesaid provision or takes away or abridges the rights conferred under Part III of the Constitution of India or contrary to responsibility laid upon the Supreme Court for enforcement of the fundamental rights.

 

That Article 145(1)( c) of the Constitution provides that “Supreme Court may from time to time, with the approval of the President, makes rules for regulating generally the practices and procedures of the Court including rules as to  the proceedings in the Court for enforcement of any of the rights conferred by Part III”, means rules should be in affirmative manner for enforcement of the rights conferred by Part III, not to deprive directly or indirectly from such rights. Article 145(1)( c) and 147 of the Constitution having no relevance (except framing of appropriate Rules to regulate Court Proceedings: which virtually administrative work of SC), with the jurisdiction and powers of the Supreme Court under Part III of the Constitution. These provisions cannot reduce the powers or Jurisdictions of the Supreme Court having provided under Part III of the Constitution of India.

 

In view of the language of Article 145(1)( C )  it is clear that Supreme Court is not  empowered to assign its Judicial powers to Registrar or any other person or authority to decide the fate of a Writ petition. Such assignment is not in affirmative or in accordance with and purpose of Article 145(1) (c ) of the Constitution thus Rule 5 Order XVIII of the Supreme Court Rules 1966 (substituted by G.S.R. 407 (w.e.f. 20-12-1997) (Petitions generally) cannot be made applicable overruling the Rule 7 and 8 of the PART IV ORDER XXXV (APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS) in respect of the Application filed for “Mandamus, prohibition, certiorari, Quo-warranto and other Directions or Orders as it is clear from the Rule 7 and 8 of the PART IV ORDER XXXV that provided that the “Petition shall be posted for preliminary hearing” and upon hearing, if Court satisfied that no fundamental rights guaranteed by the Constitution has been infringed or in other words no satisfactory cause of action is appears from the Petition, it shall be dismissed. Therefore, duplication of the powers is unconstitutional and as such Rule 5 of ORDER XVIII is liable to be declared null and void, as far as its applicability is concerned to Application under Article 32 of the Constitution is concerned.

 

JOINING IN DEMOCRATIC PROCESS IS NOT FUNDAMENTAL RIGHTS OF CRIMINALS

 

Biggest point in India is not considered seriously rather it was left at the mercy of the wrong doers. Fundamental Rights were defined, but not the Fundamental duties. Wrong perception was interpreted from the Constitution that a Criminal, have right to Vote and Rights to contest election for democratic Institutions. First time in India in 1994 I raised my views against this perception, but no Newspaper supported me claiming that unless a person is not convicted he cannot be treated as Criminal. My point of views were that alright he may not be considered a criminal, but why he should be treated as innocent, till finally he not discharged from a case. In a democracy there should be a Fundamental duty of every citizen, that he should respect the law if he intend to take benefit of the law of the land and for protection of his own Fundamental Rights.

 

This should be the duty of every citizen, who wants to join politics, claiming that he want to serve the people, that he just not to be honest, but should be appear to be honest. Therefore, he should be free from any doubt or cloud in respect of his character or activities. Democracy provides rights to Vote means Rights to govern. Good governance can be ensured, when good people be selected by the system. I am not talking here, whole issue. In consideration of important issue of the good governance, in the year of 2000 I have written a “Model of New Constitution for India”, but here I am writing very limited point relates to right to candidature, I am of the firm views that whenever any one is accused in any Criminal Case Charge Sheeted six month’s prior to date of Election, he should not be allowed to be a candidate for any democratic Institution.