National Lawyers' Campaign for Judicial Transparency & Reforms v. Shri Justice J.S. Khehar, (SC)
: Law Finder Doc Id # 824939
2017(1) R.C.R.(Civil) 907 : 2017(1) S.C.T. 644 : 2017(1) Recent Apex Judgments (R.A.J.) 429
SUPREME COURT OF INDIA
Before:- R.K. Agrawal and Dr. D.Y. Chandrachud, JJ.
Writ Petition (Civil) Diary No. 43118 of 2016. D/d.
National Lawyers' Campaign for Judicial Transparency And Reforms and Ors. - Petitioners
Hon'ble Shri Justice J.S. Khehar and Ors. - Respondents
For the Petitioners :- Bijoy Krishna Adhikary, Mathews J. Nedumpara, A.K. De, Ms. Rohini M. Amin, Petitioner-in-person.
Writ petition challenging appointment of Hon'ble Mr. Justice J.S. Kehar as Chief Justice dismissed - Petitioners stated that Hon'ble Judge is diamond of honesty.
Constitution of India, 1950 Article 32 Writ petition seeking to challenge the appointment of Hon'ble Justice J. S. Kehar as next Chief Justice of India dismissed :-
1. Eligibility of Hon'ble Mr. Justice J.S. Khehar is being questioned only on the ground that the judgment in National Judicial Appointment Commission case was delivered by His Lordship wherein he has held that the Constitutional (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are un-Constitutional and, therefore, the Hon'ble Judge usurped to himself the power of appointment of the Judges - Writ petition dismissed :-
(i) Held - The petitioners have themselves admitted the qualities of Hon'ble Mr. Justice J.S. Khehar by describing him as diamond.
(ii) So far as the correctness of the decision in the National Judicial Appointment Commission case is concerned, under the Supreme Court Rules, the petitioners have the remedy for filing a review of the judgment as also to file a curative petition.
[Paras 9 to 14]
Cases Referred :
Kesavananda Bharati v. Union of India, (1973) 4 SCC 225.
R.K. Agrawal, J. - By means of the present Writ Petition filed under Article 32 of the Constitution of India by the National Lawyers' Campaign for Judicial Transparency and Reforms and fifteen other persons out of which eight petitioners are advocates, even though they have claimed as many as nine reliefs but basically they can be categorized in two main reliefs as follows:-
(i) the appointment of Hon'ble Mr. Justice J.S. Khehar, Chief Justice of India-designate as the next Chief Justice of India be quashed as the Hon'ble Judge being disqualified for reason of conflict of interest by virtue of lead judgment dated 16.10.2015 authored by His Lordship in the National Judicial Appointment Commission case;
(ii) the judgment rendered in the National Judicial Appointment Commission case, popularly known as NJAC case is void ab initio on various grounds;
2. We have heard the learned counsel appearing for the petitioners as also Mr. Bijoy Krishna Adhikari-petitioner No.3 and Ms. Rohini M. Amin-petitioner No.4 who have appeared in person and perused the averments made in the writ petition.
3. Not only the citizens of our country but also all other persons have full confidence and faith in the judiciary of this country which has made a mark in doing justice to all. For it, there is nobody above the law and all are equal.
4. When one enters the Supreme Court, he or she sees a black bronze sculpture of 210 centimeter height installed in lawn of the Supreme Court. It portrays Mother India in the form of the figure of a lady, sheltering the young Republic of India represented by the symbol of a child, who is upholding the laws of land symbolically shown in the form of an open book. On the book, a balance is shown, which represents dispensation of equal justice to all.
5. Even in the High Courts, one will find the similar position. To mention, when one enters the magnificent precincts of High Court of Madras which is a Chartered High Court, he notices the statue of a man standing with two wheels on either side with a calf and a small child beneath each wheel, and a cow. He becomes anxious to know the significance as to why and for what purpose this statue is located near the entrance of the High Court. The statue is that of the ancient Chozha King, Manu Needhi Chozhan, also known as Elara, who ruled South India around 250 B.C. Legend is that, Manu Needhi Chozhan, who believed in even justice towards friends and foes, had hung a giant Bell in front of his palace and announced that anyone seeking justice could ring the bell and voice will be heard. One day, it so happened that a young calf had got crushed under the wheels of his chariot, in which his only son, young Prince Veedhividangan, was going around the city. The mother of the calf, which helplessly watched its little one die, walked to the palace gates and rang the huge bell, demanding justice from the king. The king came out and saw the cow, he learnt from his courtiers about the death of the young calf under the wheels of his sons chariot. Unrelenting from his promise for justice, he ordered his own son to be killed for his recklessness. The prince was killed the same way the calf had died, being crushed under the wheels of his chariot. The king went through the same pain the cow had as he witnessed his son die and thereby, being just at all costs.
6. The Judges of all the Courts, since its very inception, have always maintained this great tradition of the Chozha King and are rendering even justice to all concerned, whosoever he or she may be, irrespective of the fact whether they are rich or poor, and whether they occupy a high or a low status in the society.
7. The framers of our Constitution under Article 124 and Article 219 read with Schedule-III of the Constitution of India, made it compulsory for a Judge before entering Office, to take an oath that he will perform the duties without fear or favour, affection or ill-will, which a Judge, after entering Office, dutifully follows.
8. So far as the first relief claimed for is concerned, we may mention here that in paragraph 6 of the Writ Petition, it has been mentioned as follows:-
"6. Hon'ble Shri Justice Khehar, undoubtedly, is one of the most upright Judges of the Supreme Court, the Petitioners are all proud of His Lordship. While sons of sitting Judges with two or three years of experience, for instance the Bombay High Court, earn far more than even senior lawyers with a standing of more than 30 years, Hon'ble Shri Justice Khehar's son, who practices in the Punjab and Haryana High Court, does not earn anything near to them. He only charges a decent amount as his fee. Nobody could, therefore, point a finger at Hon'ble Shri Justice Khehar when it comes to his honesty, integrity and uprightness. His Lordship is a real diamond in that sense...."
9. In paragraph 20 of the writ petition, the petitioners have stated as follows:-
"The Petitioners reassert that they have the greatest respect for Hon'ble Shri Justice J.S. Khehar and they in no way cast any aspersion on His Lordship's competence or integrity as a Judge...."
10. Even in ground No. `C', the petitioners have praised the qualities of His Lordship as follows:-
"Hon'ble Shri Justice J.S. Khehar is a tall Judge, a person of undoubted integrity, honesty and uprightness; nobody could question that His Lordship is a diamond in that sense."
11. Thus from the portions reproduced above, it is clear that even the petitioners themselves have unequivocally praised the qualities of His Lordship.
12. However, the eligibility of Hon'ble Mr. Justice J.S. Khehar is being questioned only on the ground that the judgment in National Judicial Appointment Commission case was delivered by His Lordship wherein he has held that the Constitutional (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are un-Constitutional and, therefore, the Hon'ble Judge usurped to himself the power of appointment of the Judges. It may be mentioned here that the judgment in National Judicial Appointment Commission case was delivered individually by all the Hon'ble Judges constituting the Constitution Bench and the case was decided by a majority of four Hon'ble Judges and not by His Lordship alone.
13. So far as the allegation that he has usurped the power of appointment of Judges to himself is concerned, it is sufficient to mention here that the Collegium not only consists of the Chief Justice of India but four other Hon'ble Senior Judges as well and it cannot be said that the Chief Justice of India can usurp the power of appointing the Judges for himself.
14. The petitioners have themselves admitted the qualities of Hon'ble Mr. Justice J.S. Khehar in paragraph 6, 20 and Ground No. C referred to above, and there is no question of his being considered as ineligible or disqualified for being appointed as the Chief Justice of India.
15. So far as the correctness of the decision in the National Judicial Appointment Commission case is concerned, in our opinion, under the Supreme Court Rules, the petitioners have the remedy for filing a review of the judgment as also to file a curative petition. It is open for them to take appropriate proceedings in accordance with law if they wish to question the judgment rendered in National Judicial Appointment Commission case.
16. In view of the foregoing discussion, we do not find any merit in this Writ Petition and the same is dismissed.
Dr. D.Y. Chandrachud, J. (Concurring) - I agree with the conclusion of my learned brother, Hon'ble Mr Justice R K Agrawal that the writ petition is lacking in merit and should be dismissed. My reasons are formulated hereafter.
17. The petition which has been instituted by a body called National Lawyers' Campaign For Judicial Transparency and Reforms and by fifteen other persons (including members of the public and advocates) under Article 32 of the Constitution seeks the following reliefs :
a) A declaration that Hon'ble Mr Justice J.S. Khehar, Chief Justice of India designate is disqualified for appointment as the next Chief Justice of India purportedly for the reason that His Lordship's judgment in the NJAC case is "void ab initio";
b) A declaration "that the lead judgment in the NJAC case is void" since it has invested authority in Hon'ble Mr Justice J.S. Khehar, the power to appoint seven Judges of the Supreme Court on the recommendation of the Collegium;
c) A writ of quo warranto declaring the Chief Justice of India designate as being disqualified for being appointed as forty fourth Chief Justice of India "for reasons of conflict of interest";
d) A writ of prohibition to the Union of India from administering oath of office to the Chief Justice of India designate;
e) A mandamus to the Union of India to seek a review of the judgment in the NJAC case;
f) A declaration that the judgment in the NJAC case is void ab initio on the ground that a public interest litigation challenging a constitutional amendment was not maintainable;
g) A declaration that the judgment in the NJAC case is void ab initio since no violation of fundamental rights was involved;
h) A declaration that the concept of basic structure evolved in the judgment in Kesavananda Bharati v. Union of India, (1973) 4 SCC 225 "is nothing but blasphemy" and has no foundation in jurisprudence.
18. On 19 December 2016, a Notification was issued by the Government of India in the Ministry of Law and Justice (Department of Justice) that in exercise of the power under Article 124(2) of the Constitution, the President of India has appointed Hon'ble Mr Justice J.S. Khehar, as Chief Justice of India with effect from 4 January 2017. Article 124 provides for the establishment and constitution of the Supreme Court of India. Clause 1 provides that there shall be a Supreme Court of India consisting of a Chief Justice and other Judges.
19. The plea that Hon'ble Mr Justice J.S. Khehar is disqualified for being appointed as Chief Justice of India is thoroughly misconceived. Justice Khehar was duly appointed by the President of India as a Judge of the Supreme Court under Article 124(2) on 13 September 2011. Being the senior most Judge of the Supreme Court of India, his appointment as Chief Justice of India follows a recognised constitutional convention (duly acknowledged and reiterated in the Memorandum of Procedure) of the senior most judge of the Supreme Court being appointed to the office of Chief Justice of India. It is preposterous to urge that the senior most puisne Judge of the Supreme Court is disqualified for appointment as Chief Justice of India on the basis of a perception formed by a litigant of a judgment delivered by the Judge. The issue as to whether Justice Khehar should recuse himself from participating in the hearing of the NJAC case was considered and the plea for recusal was specifically negatived. The plea that Hon'ble Mr Justice Khehar stands disqualified for appointment as Chief Justice of India by reason of the judgment delivered by His Lordship in the NJAC case is thoroughly misconceived. Fulfilment of qualifications for appointment to a constitutional office is based on an objective norm. Its fulfilment cannot be dependent on a view held by a litigant, in regard to the correctness of a judicial decision or on a perception as to its interpretation. Judges assume the oath of office to perform the duties of their office "without fear or favour", or "affection or ill will." Palatability of a judicial decision to a litigant is not the touchstone for determining eligibility for constitutional office.
20. Similarly, there is absolutely no merit in the relief which is sought, to the effect that the judgment in the NJAC case be declared void ab initio. A person aggrieved by the decision is at liberty to pursue the remedies available in law. A writ petition under Article 32 seeking such a declaration cannot be entertained. Nor can this Court compel any party to a litigation to seek review of a judgment.
21. The declaration which is sought from this Court, under Article 32, to the effect that the decision in Kesavananda Bharati "is nothing but blasphemy" and "has no foundation in jurisprudence" is frivolous. The judgment in Kesavananda Bharati has been rendered by a Bench of thirteen Judges and constitutes a binding precedent.
22. If the petitioners have any reservations about the judgment in the NJAC case, this is clearly not the forum to espouse that grievance. Nor can this be utilized as a ruse to interdict the assumption of office by the Chief Justice of India designate. The judgment in the NJAC case binds this Bench. We do not find it appropriate or proper to entertain a petition under Article 32 of the Constitution questioning its legitimacy by seeking a declaration that it is void.
23. The petition seeking to challenge the appointment of Hon'ble Mr Justice J.S. Khehar as the next Chief Justice of India has no constitutional foundation or basis. A writ of quo warranto will not, in the circumstances lie. The prayer for a writ of prohibition has only to be stated to be rejected.
24. For the above reasons, I agree with the conclusion of my learned Brother that the petition should be dismissed.