Make your own free website on Tripod.com

PRESIDENT OF INDIA
IMPORTANT ISSUE 4 PRESIDENTIAL REFERENCE
Home
Left Front MP's and MLA's From the States of Kerala, West Bengal and Tripura
Why Left Front Members of Parliament are silent on Nexus between Shri Jyoti Basu and Mafiadom?
Why Left Front Members of Parliament are silent on Nexus between Shri Jyoti Basu and Mafiadom?
IMPORTANT ISSUE 4 PRESIDENTIAL REFERENCE
Somnath Chatterjee

Dr. Man Mohan Singh ji,

Hon’ble Prime Minister of India,

APPLICATION: Union of India should send Presidential Reference under Article 143 of the Constitution of India to decide that "Supreme Court and Judges of the Supreme Court are covered within the ambit of the "State" under Article 12 of the Constitution of India.

Hon’ble Sir,

If, I am not wrong, during Your Excellency’s tenure as Finance Minister of India in my capacity as Honorary General Secretary of Indian Council of Small Industries (ICSI), I along with its President Late Shri S. S. Singhania met Your Excellency for more than seven times in New Delhi or Kolkata including Pre-budget discussions and seen that Your Excellency means true business without any fear or favour. Therefore, I hope that matter relates greater public interests, referred herein would be considered seriously.

With reference to my Letter dated 25th February, 2005 (copy enclosed), I would like to submit that Constituent Assembly of India armed with the untrammeled Powers and Authority to Supreme Court under Article 32 of the Constitution of India to ensure "REMEDY". During the debate in the Constituent Assembly of India held on Article 32 of the Constitution of India on 9th December, 1948, the (First Speaker of Lok Sabha) Shri M. Ananthasayanam Ayyangar interalia says that "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". Founding father of the Constitution Dr. B. R. Ambedkar concluded the debate interalia saying that: "there can be no right unless the Constitution provides a remedy for it. It is the remedy that makes a right real. If there is no remedy, there is no right of all, and I am therefore not prepared to burden the Constitution with a number of pious declarations which may sound as glittering generalities but for which the Constitution makes no provision by way of a remedy. It is much better to be limited in the scope of our rights and to make them real by enunciating remedies than to have a lot of pious wishes embodied in the Constitution. I am very glad that this House has seen that the remedies that we have provided constitute a fundamental part of this Constitution.)". None of the speakers / members of the Constituent Assembly objected such observations. While as on today Founding Fathers such aspirations has been doomed.

Whether we admit or not, facts remains that today public debate exists on the issue of the Accountability of the Judiciary, which suddenly exposed through recent controversy between Judiciary and Legislature. In view of the Supreme Court’s own observations, Supreme Court Judges should be more accountable.

I am firm view that Accountability of the Judges of the Supreme Court should be exclusively before the Judiciary itself, without any kind of interference from the Legislature.

During the course of several years, knowingly or unknowingly, Supreme Court reduced its efficacy enshrined under Article 32 of the Constitution, after wrong interpretation of the "State" under Article 12 of the Constitution, as was lastly appeared in last 3 lines of Para 7 of the Judgment dated 10th April 2002, 388-428 SCC (2002) 4 SCC 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". Resultantly, mindset 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 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 "………… 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", in spite of the fact that by Judgment Dated 10th April 2002 (388-426 (2002) 4 SCC) Supreme Court observed interalia under Para 23 that "These contentions pose the question, whether an order passed by this Court can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the court or miscarriage of justice to an aggrieved person" and also at Para 62 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".

Such interpretation of the "State" was held without considering that Supreme Court Judges are appointed by the Constitutional Authority, i.e. President of India and can be removed by the another Constitutional Authority i.e. Parliament of India and such removing Authority i.e. Parliament of India admittedly covered within the ambit of the "State" under Article 12 of the Constitution of India. Such wrong interpretation was held to justify application of the principle of finality of the Order of the Supreme Court (Nine Judge Bench (AIR 1967 SC 1:(1966) 3, SCR 744) Judgment), which was decided without considering that it may change the ambit and may effect efficacy of the Article 32 of the Constitution and may allow Supreme Court Judges to pass orders "either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the court or miscarriage of justice to an aggrieved person,".

In fact through such interpretation of the "State" Supreme Court changed the meaning, scope, ambit of Article 12 and reduced efficacy of Article 32 of the Constitution, beyond the Constitutional provisions that Supreme Court or Judges of the Supreme Court cannot be beyond the ambit of the "State" under Article 12 of the Constitution.

I must made it ample clear that even after Supreme Court or Judges of the Supreme Court would be hold within the ambit of the "State" under Article 12 of the Constitution, the Powers or Authority of the Supreme Court under Article 13 or 32 of the Constitution, being part of basic structure of the Constitution cannot be effected.

I confident, that once such issue is decided, Supreme Court would evolve some mechanism to ensure "REMEDY" and prevent orders without jurisdiction or in violation of the principles of natural justice or under any unfair procedure, which may giving scope for bias which resulted in abuse of the process of the court or miscarriage of justice to an aggrieved person.

Therefore this is my Humble Submissions that Union of India should send Presidential Reference under Article 143 of the Constitution of India to Hon’ble Supreme Court to decide that "Supreme Court and Judges of the Supreme Court are covered within the ambit of the "State" under Article 12 of the Constitution of India".

With Regards,

Yours truly,

 

(Milap Choraria)

Dated 17th March 2005

Convenor: Movement for Accountability to Public (MAP)

B-5/52, Sector-7, Rohini, Delhi-110085

Moderator: Yahoo Discussion Group: http://groups.yahoo.com/group/MAP_INDIA

C.C. to Hon’ble Chief Justice of India R.C. Lahoti, and Hon’ble Attorney-General of India Mr. Milon Banerjee.

Enter content here

Enter supporting content here

TRUTH SHALL PREVAILS