The High Court dismissed a writ appeal challenging the Collegium system and the elevation of specific advocates to High Court judges. The Court rejected the appellants' contentions that Supreme Court precedents were per incuriam and affirmed the impugned order.
The appeal was dismissed, and the judgment of the Single Judge was confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940
WA.No. 1311 of 2018
AGAINST THE JUDGMENT IN WPC 11086/2018 of HIGH COURT OF KERALA
DATED 22-05-2018
APPELLANTS:
2 MR.SABU
AGED 40 YEARS,S/O.PADMA,PALLIPARAMBU,KALAMASSERY,NEAR CHULLIKKAVU TEMPLE,RAJAGIRI.P.O,ERNAKULAM,PIN-682039.
BY ADV. SRI.A.C.PHILIP
RESPONDENTS:
1 THE CHIEF JUSTICE OF KERALA, HIGH COURT ERNAKULAM,KOCHI,KERALA-682031.
4 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY,GOVERNMENT OF KERALA,SECRETARIAT,THIRUVANANTHAPURAM,PIN-695036.
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6 VIJU ABRAHAM ADVOCATE OF HIGH COURT OF KERALA,M/S.A.K.AVIRAH ASSOCIATES,ERG ROAD,ERNAKULAM,KOCHI-18.
7 GEORGE VARGHESE ADVOCATE OF HIGH COURT OF KERALA,2B,KATTIKARAN CHAMBERS,OLD RAILWAY STATION ROAD,OPP.CENTRAL POLICE STATION, NEAR HIGH COURT,KOCHI-682018.
8 ARUN.V.G ADVOCATE OF HIGH COURT OF KERALA,ERNAKULAM,COCHIN-680031.
10 RAMESH.S ADVOCATE OF HIGH COURT OF KERALA,ERNAKULAM,COCHIN-680031. BY ADVS. SRI.ELVIN PETER P.J. SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENERAL SRI.MATHEW J NEDUMPARA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
WA.No. 1311 of 2018
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P.R.RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.
W.A.No.1311 of 2018
Dated this the 16th day of November, 2018
J U D G M E N T
DEVAN RAMACHANDRAN,J.
This appeal, arising from a writ petition filed with non-specific
pleadings and seeking baffling reliefs, has confounded us in no
small a measure.
pleadings and materials on record, the petitioner contends that 'the
collegium system', as enlivened by the various judgments of the
Supreme Court, is illegal; that the judgments of the Supreme Court
in, what is now known as the Second and Third Judges cases, do not
lay down the law correctly, thus being unworthy of being followed
as precedents; that the 'basic structure' theory, as postulated by the
Hon'ble Supreme Court, is a 'myth' and finally that the expansion in
the concepts of locus standi and Public Interest Litigation, made by
WA.No. 1311 of 2018
4
the Hon'ble Supreme Court over the years, is now being put to misuse.
the submissions made before us on the above lines, we proceed to
indite this judgment within the parameters of law and judicial discipline, as we are enjoined to.
of Judges for being elevated as Judges of the High Court of Kerala. The petitioners appear to be challenging these recommendations
and they say that the writ petition, from which this appeal arises, has
been instituted “for the enforcement of their fundamental and legal
rights” (sic).
WA.No. 1311 of 2018
5
this Court and a detailed judgment delivered, however, dismissing it holding, inter alia, these issues to be not justiciable, and the appellants have impugned the said judgment in this appeal asserting that the learned Single Judge “has missed the obvious, to put it in the most polite way”(sic) and therefore, that the judgment is liable to be vacated, thus granting the reliefs prayed for by them in the writ petition.
we made the prefatory observations afore, we deem it idoneous to
extract the prayers sought for by the petitioners in the writ petition
as under:
“Declare that the reported decision of the collegium of the Hon'ble High Court of Kerala, recommending the elevation of the respondents 6 to 10 as the judges of hon'ble High Court of Kerala is Null and Void being vitiated by extraneous and irrelevant considerations, namely kinship, and affinity, the respondents being the kith and kin of the former judges of the Court, so too of the Advocate General, rather than on merits;
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ii) Declare that Union of India and the Collegium of the Supreme Court of India is bound to enforce the policy of 1/3rd Judges of the High Courts to be from other high courts and the initial appointment to be a High Court other than that of the parent high court of the appointee concerned;
iii) To declare that the interest of transparency and fairness requires that the vacancies in the august office of the judge of the High Court of Kerala and for that matter of every High Court in this country is liable to be notified, inviting applications from all eligible candidates, so too the recommendations and references from all stake holders and that an open and transparent selection and appointment be made, rendering any failure thereof to render the selection and appointment void-ab-initio;
iv) To issue a writ of prohibition restraining and prohibiting the Union of India, so too the Collegium of the Supreme Court of India from acting upon the recommendations of the Collegium of the Hon'ble High Court of Kerala in so far as the elevation of respondents 6 to 10 are concerned and further to direct the Collegium to make a fresh recommendations where the ordinary lawyers who have no “godfathers” too are considered.
v) Such other releifs which this Hon'ble Court may deem fit and proper in the interest of justice.”
singularly claiming that the recommendations made by the
Collegium of this Court “infringe their fundamental and legal
rights”(sic). These claims appear to be founded on the assertion of the 1st appellant that he is an Advocate on the rolls of the Bar
WA.No. 1311 of 2018
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Council of Kerala; but no such claim is made by the 2nd petitioner,
who describes himself as a “common man” (sic). Apart from the fact that we fail to understand how these recommendations if any, would impact the fundamental and legal rights of the 2nd petitioner, who is concedely not an Advocate, we are also amazed as to how the 1st appellant can claim this, when the pleadings on record are conspicuously silent as to when he enrolled as an Advocate; as to the number of years he has practised as an Advocate and as to his eligibility to be even considered for being appointed as a Judge, since he unequivocally states that he is desirous of being so elevated.
have been dismissed, since the most essential foundational averments and pleadings, to even engage the scrutiny of this Court, are lacking; and this is more so because even when submissions were made by the learned counsel appearing for the appellants/writ
WA.No. 1311 of 2018
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petitioners, these vital information were never disclosed.
Judge still considered the various contentions impelled by the appellants/writ petitioners on its merits, we will indite our opinion in these issues albeit pithly, as under.
and how, according to the petitioners, these have been misused. Paragraph 12 of the writ petition ineffably criticizes the designation of Advocates as senior counsel and alleges that this creates inequity in “the balance of power among the Advocates”(sic) as a class. Though we cannot comprehend why these assertions are made in the context of the reliefs sought, paragraphs 13 to 15 of the writ petition further declare that the “common man's sons and
WA.No. 1311 of 2018
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daughters are not represented in the superior courts”(sic) and that
“appointments are made from dynasties”(sic).
even though no citations are provided, the petitioners assert that the “2nd Judges case”, the “3rd Judges case” and the “NJAC case” do
not lay down correct law and therefore, that this Court declare them as being per incuriam.
say in paragraphs 27 to 31 of the writ petition that respondents 6 to 10, though expressly conceded to be eligible for being appointed as
Judges, should not be considered because they are related to certain Judges, former Judges and the Advocate General.
the writ petition the petitioners abruptly accuse that the
recommendation allegedly made by the Collegium of this Court
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with respect to respondents 6 to 10 is “discriminatory against
ordinary lawyers because it was done without notifying the vacancies and calling for applications from all the eligible and/or without seeking reference from all the stake holders”(sic).
since they merely reproduce the contents of the statements of facts afore seen.
again there is a reference to them being “kith and kin” of Judges, former Judges and Advocate General and the appellants say that the “Bar is surprised at these recommendations” (sic). Incredibly, thereafter, the appellants predicate, referring to the judgment in
Golak Nath v. State of Punjab [AIR 1967 SC 1643] and to
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Keshvanandha Bharathi v. State of Kerala [1973 4 SCC 225] that
the doctrine of basic structure evolved by these judgments is a
“myth” and that these judgments have created a “new jurisprudence unknown to the common law anywhere in the world, cutting the very first principle of jurisprudence - right, remedy and the forum” (sic). The appellants then go on to make a lecture on the principles of locus standi and Public Interest Litigation, as they have done in the writ petition and again contended that the “1st judges case”, “2nd Judge's case” and the “3rd Judge's case” do not lay down law correctly and that it is not binding on this Court, thus exhorting us to declare these judgments as being per incuriam and consequently the “collegium system” to be illegal.
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relating to the Union and State Judiciaries, including subordinate
courts, have been incisively interpreted by the Hon'ble Supreme
Court on not less than six occasions through Constitution Benches as under:
(i) Samsher Singh v. State of Punjab [(1974) 2 SCC 831] - rendered by a 7 Judge Bench;
(ii) Union of India v. Sankalchand Himatlal Sheth [(1977) 4 SCC 193] - rendered by 5 Judge Bench;
(iii) S.P. Guptha v. Union of India [1981 Supp SCC 87] - rendered by a 7 Judge Bench (the 1st Judge's case;
(iv) Supreme Court Advocates-on-record Association v. Union of India [(1993) 4 SCC 441] - rendered by a 9 Judge Bench (the 2nd Judge's case);
(v) Special Reference No.1 of 1998, In re, [(1998) 7 SCC 739] - rendered by a 9 Judge Bench (the 3rd Judge's case] and
(vi) Supreme Court Advocates-on-record Association and another v.Union of India [(2016) 5 SSC 1] - rendered by a 5 Judge Bench (now commonly known as 4th Judges case.)
WA.No. 1311 of 2018
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Hon'ble Supreme Court, we fail to understand how the writ petitioners could arrogate to themselves the locus or competence
to make assertions and seek reliefs contrary to the afore judgments before this Court and we see that their ingenious effort, as has been vehemently argued by their counsel, Sri. Mathews J Nedumpara, is to plead that these judgments are all per incuriam and therefore, that they be declared so by this Court.
before us and on what basis they are even impelled.
have already seen above, the appellants expressly admit that they
WA.No. 1311 of 2018
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are all eligible and suitable but they still say that the “reported recommendations”(sic) ought not have been made because the Collegium of this Court did not invite applications from all eligible advocates as if it is any other public office. There is, of course, a veiled insinuation against the afore respondents that they are “kith and kin” of Judges and of the Advocate General; but even so, they do not say that the said respondents are not eligible or suitable for being considered. The attempt of the appellants, therefore, is obviously to cast aspersions on the Collegium of Judges, but
without in any manner substantiating it and thereby espousing their agenda of attempting an impossible declaration through this Court,
that all the afore judgments of the Hon'ble Supreme Court are per incuriam.
Advocate of this Court, to impose exemplary costs on the appellants
WA.No. 1311 of 2018
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in having approached this Court asserting eligibility to be appointed
as a Judge of a High Court, without even disclosing the rudimentary
details as to when he was enrolled or his standing at the Bar, so as to act as a deterrent against such speculative litigations in future.
However, we refrain from doing so after much contemplation as to the consequences it may visit the professional career of the 1 st appellant.
In summation, we, dismiss this appeal, confirming the judgment impugned herein.
Sd/-
P.R.Ramachandra Menon, Judge
Sd/Devan Ramachandran, Judge
rp
WA.No. 1311 of 2018
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APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE A1 “TEN MYTHS OF INDIAN CONSTITUTIONAL LAW” ANNEXURE A2 ARGUMENT NOTES FILED BY THE COUNSEL FOR THE APPELLANTS IN THE WRIT PETITION NO.11086/2018
3 issues framed by the court
Whether the appeal challenging the Collegium's recommendation for the elevation of advocates to High Court judges as an infringement of fundamental rights should succeed.
Whether the cited Supreme Court judgments on the collegium system are per incuriam and should be declared illegal.
Whether the High Court Single Judge's dismissal of the writ petition should be confirmed.
Colour shows how this judgement treated each authority
Golak Nath v. State of PunjabReferred¶113
Golak Nath v. State of Punjab [AIR 1967 SC 1643] · Who else cites this
Keshvanandha Bharathi v. State of KeralaReferred¶113
Keshvanandha Bharathi v. State of Kerala [1973 4 SCC 225] · Who else cites this
Samsher Singh v. State of PunjabRelied on¶125
Samsher Singh v. State of Punjab [(1974) 2 SCC 831] · Who else cites this
Union of India v. Sankalchand Himatlal ShethRelied on¶126
Union of India v. Sankalchand Himatlal Sheth [(1977) 4 SCC 193] · Who else cites this
S.P. Guptha v. Union of IndiaRelied on¶127
S.P. Guptha v. Union of India [1981 Supp SCC 87] · Who else cites this
Supreme Court Advocates-on-record Association v. Union of IndiaRelied on¶128
Supreme Court Advocates-on-record Association v. Union of India [(1993) 4 SCC 441] · Who else cites this
Special Reference No.1 of 1998, In reRelied on¶129
Special Reference No.1 of 1998, In re, [(1998) 7 SCC 739] · Who else cites this
Supreme Court Advocates-on-record Association and another v.Union of IndiaRelied on¶130
Supreme Court Advocates-on-record Association and another v.Union of India [(2016) 5 SSC 1]
C.J. Jovelson
Mr. Sabu
The Chief Justice of Kerala
The Collegium of Supreme Court of India
Union of India
The State of Kerala
P.R. Ramachandra Menon
Devan Ramachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
