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PETITION 2 PRESIDENT
Reminder9-7-04
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Issue 4 Presidential Reference
Reminder9-7-04
COVERING LETTER WITH MEMORANDUM

Dated 9th July 2004

To,

His Excellency Shri A. P. J. Kalam,

Hon’ble President of India,

You’re Excellency Sir,

Your Excellency Sir, this has with reference to application by Post on Friday 25th June 2004 with request to Your Excellency Sir, kindly refer under Article 143 of the Constitution to the Hon’ble Supreme Court of India to form Opinion on the important Issues relating to substantial question of Law relating to the Constitution to ensure probity in the Judiciary.

The issues and my view are as under:

  1. How Supreme Court can be out of the meaning of the "State" under the Article 12 of the Constitution, when its each Judge are appointed by the Head of the "State" (the President of India) and can be removed by the "State" (Parliament of India)?;

  2. How Principle of the finality of the Final Order of the Supreme Court interpreted under Article 147 of the Constitution can be applied in respect of the "Rights of the Constitutional Remedy" guaranteed under Article 32 of the Constitution?

  3. How Supreme Court can make Rules under Article 145(1)( C) of the Constitution some one (not a Court) authorising to refuse to receive a Writ Petition seeking protection of Fundamental Rights, in contravention of Clause (1) of Article 32 of Constitution, guaranteeing the Right to move Supreme Court seeking protection of any of the Rights conferred under Part III of the Constitution ?.

How Truth based expression can be constituted as Contempt of the Hon’ble Court, in contravention of Fundamental Right of the expression and Core Principles of the democracy that "TRUTH SHALL PREVAILS."?

Reasons for my aforesaid application:-

(a) Complete contrary scenario were admitted as appears from the observations made at Para 62, 68 and 69 by Judgment dated 10 the April 2002 388-426 (2002) 4 SCC interalia that "does it, however, mean and imply a closed door even if the order of this Court depicts that the same stands in violation of natural justice adversely and seriously affecting the rights of the parties or the same depicts manifest injustice rendering the order a mockery of justice", with contrary observations under Para 7 observed interalia 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.

(b) From plain reading of Article 147 of the Constitution it is ample clear that Supreme Court empowered to make interpretation "In this Chapter (Means "Union Judiciary" covered under Chapter-IV of Part V but not covered under Part III) and Chapter V of Part VI (means High Courts of the States), 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". If the object of the founding fathers could have been to empower the Supreme Court to interpret Part III of the Constitution, under Article 147, then before or after the words "In this Chapter and Chapter V of Part VI" the words "Part III" should have been also exists.

(c) Therefore, mixing up of the Article 32, 132, 133, 134, 136, 226 and 12 of the Constitution, under para 7 in the said Judgment is not in conformity with Article 147 of the Constitution;

(d) Application of the Principle of the finality of the final order of the Supreme Court defined under Article 147, reduced the efficacy of the Supreme Court substantially, particularly with regards to matters of infringement of fundamental rights and certainly caused as hands off from the Responsibility laid down upon the Supreme Court as 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" and now settled 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", completely inconsistent with the object, scope, meaning and ambit of Article 32 of the Constitution, and caused hands off from such responsibility laid upon the Supreme Court by the founding fathers, as will evident from my matters. Resultantly completely reversed observation from such responsibility were appeared at Para 58 of the aforesaid Judgment interalia that "There is not denial of the fact that the right exists to move this Court for enforcement of the rights conferred by Part III of the Constitution and stands conferred in terms of Article 32 and the language used therein is of widest possible amplitude but as regards the issuance of writs, the view seems to be rather well settled, in the negative",

(e) Quite different observations were made in favour to ensure justice at Para 42 of the said Judgment dated 10th April 2002, interalia that "The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment". Although, Judgment moved to render to justice but failed to ensure rendering of Justice, under the impact of principle of finality of final order of Supreme Court, with regards to infringement of the Fundamental Rights.

    1. If finding from the aforesaid Judgment interalia 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", conferred without judicial scrutiny, it means oath taken under the Constitution at the time of entering in the Office of Judge of Supreme Court would converted as meaningless, contrary to natural principle that Human being can done mistakes, which should be cured through appropriate mechanism.

Till date I have not been received any acknowledgement from Your Excellency Sir. Since the issue is very important, and if will given a hearing, I will justify that all the time Judiciary is not working fairly. This is not just my version, but a Constitution Bench headed by Hon’ble CJI (Now Retd.) Mr. S. P. Bharucha admitted through a unanimous Judgment, at a turning point in the entire Judicial History.

Under the prevailing system practically always persons having High Moral Standard and integrity can not be expected even for the High Offices like President, Chief Justice or likewise, as they cannot make themselves completely free from some kind of political or other considerations. At present we are fortunate that personality of High integrity or moral standards are in the both the offices. But, even then CJI must take in confidence to colleagues to taken up the complicated matter of such magnitude as such I have submitted the said application which if given proper values will cause a great impact on Indian Judicial History as well upon the Indian Democracy.

Therefore, I hope that Your Excellency Sir, may kindly consider the aforesaid application with personal attention, and in case Your Excellency Sir, may advised not to forward the said Application particularly under Article 143 of the Constitution, even then this is my Humble request to Your Excellency Sir, kindly forward my said Application to Hon’ble Chief Justice of India with formal request to looked into. That will also help to the cause up to maximum extent.

I hope of a favorable response in the interest of justice from Your Excellency’s ends. If any clarification from me is needed, I am always ready to answer the same.

With Regards

Yours truly,

(MILAP CHORARIA)

Convenor : Movement for Accountability to Public (MAP)

Columnist : For Several DAILY Newspapers in India

Author: A MODEL OF NEW CONSTITUTION FOR INDIA

POST BOX NO.2690,

New Delhi-110 005 E-mail:milap_choraria@yahoo.com Mobile: 011-20036132

Detail facts concerning to such issues is referred in Websites: http://milapchoraria.tripod.com/scpetition.

My activities for public good, larger national interests and for improvement of systems to crush the corruption and exploitation of the society are referred at the Website: http://milapchoraria.tripod.com/msp.

In fact under the Politics-Crime-Nexus probity in the judiciary is also under the threat, as I have referred in my Petition to Your Excellency dated 25th June 2004 is posted at: http://milapchoraria.tripod.com/p2p.

Milap Choraria

Mobile: 011-20036132