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Chatter #3: Essential Legal Bytes (Turf Battles, Feudalism, Education, Recusals, Scams)

Today we discuss the Judiciary-Executive Turf Battles, Feudalism, Legal Education, Recusals, and Scams. The Legal Five Bytes

Photo by Vitor Monteiro / Unsplash
Portrait of two frug dogs.
Photo by Meritt Thomas / Unsplash
“What did he mean by "society"? The plural of human beings?” ― Osamu Dazai, No Longer Human

1. Executive-Judiciary Battle: New Front Opened

Mainstream media has not really reported on one of the most significant step under the whole Government-Judiciary saga.  Justice Sanjay Kishan Kaul and Justice A.S. Oka made their observations against the government.  

The Supreme Court on Friday rapped the Centre for sitting on the collegium’s recommendation to transfer 10 high court judges, saying such delays caused an “impression of third-party sources interfering on behalf of these judges with the government” to stall the transfers. It also chided the Centre for its unprecedented act of sending its own list of names for clearance by the collegium, while accusing the government of violating laid-down procedure by returning names that the collegium had reiterated multiple times (Source: "Supreme Court raps government for sitting on judge transfers"/Telegraph India)

It seems that the judges in the Supreme Court are looking like a clique and acting in oligarchic manner more and more.  And, media, beholden to the forces that have been at the forefront of hitting at Modi government, seems to have forgotten the main point of the whole proceeding:

Modi government, not only did not approve the names sent by Collegium, it sent its own list instead.  This is a challenge from the government to the "Supreme Court ... vs Union Of India on 6 October, 1993" case where the 9-member bench (S. Ratnavel Pandian & A.M. Ahmadi & Kuldip Singh & J.S. Verma & M.M. Punchhi & Yogeshwar Dayal & G.N. Ray & Dr. A.S. Anand & S.P. Bharucha) effectively changed the Constitution of India by redefining "after consultation" to "after conformation" with the Chief Justice phrase.

This is what the Constitution says.

Source: Indian Kanoon

So the judgment by the 9 justice bench turned the "process of consultation" on its head.  From consultation to conformity.

Source: India Kanoon

In terms of the transfer of judges from one High Court to another, the Article 222 of the Constitution was judged as an"internal matter" by the bench in this case, even when the Constitution seems to suggest something else.

Source: Indian Kanoon

The President's consultation with the Chief Justice of India was converted into - Judiciary decides and the executive can take a flying you-know-what.

But that is not what the Indian media discusses.  That is where we come in.

Supreme Court raps government for sitting on judge transfers
Apex court chides the Centre for its unprecedented act of sending its own list of names for clearance by the collegium

So the stage is set.

2. CJI's Doublespeak

Meanwhile, Chief Justice of India (CJI) DY Chandrachud was awarded the highest achievement in the legal world by Harvard - the Center on the Legal Profession Award for Global Leadership.

CJI expresses his views on Law being a feudal profession and unwelcoming for women and minorities
CJI expresses his views on Law being a feudal profession and unwelcoming for women and minorities

What he said there was extremely interesting.

In conversation with Professor David B. Wilkins, faculty Director of the Center on the Legal Profession at Harvard law School, the CJI expressed his views on how law is still a fedual profession in areas where minorities, queer people and women are still subject to exclusion and difficulties. "Unfortunately, the legal profession has been feudalistic and hasnt been welcoming of women and marginalised communities", he said. (Source: "CJI expresses his views on law being a feudal profession, unwelcoming for women and minorities" / LatestLaws

Here is a quick list of the Supreme Court Justices currently in India who have or had relatives in the highest echelons of the judicial world.

Information collated from Wikipedia and public information.

Total number of Supreme Court judges in India: 27

Uncle Judges in the current Supreme Court of India: 14

That is 52%

If majority of the highest Indian judges are related to someone who was high up in the Indian judiciary - then one is curious about the remark by the CJI Chandrachud.  Specifically when he happens to the son of a past Chief Justice of the Supreme Court himself.

One is sure that he is exceptionally gifted, talented. knowledgeable and skillful.  

But what are the odds that out of 1.4 BILLION people, majority of the Indian Supreme Court judges come from the families of other judges themselves?

François Louis Ganshof (1944) defined Feudalism in his book Qu'est-ce que la féodalité translated in English by Philip Grierson as Feudalism.

set of reciprocal legal and military obligations which existed among the warrior nobility and revolved around the three key concepts of lords, vassals and fiefs

It is another form of nepotism or quid-pro-quo - that is made possible by toeing the line of the "nobility."

We have analyzed how when it wasn't a familial form of nepotism, the ideological form of nepotism is prevalent in such a system.  Specifically in the Indian Judiciary.

Drishtikone Newsletter #350: Indian Judiciary - Constitution and Moral Masquerades
Indian Judiciary wants to play god with no accountability. It treats citizens of a Republic as fickle and unworthy of deciding their own fate. Yet it masquerades as the keeper of our Constitution. A deep and critical look.

A single-judge bench of Justice Pratibha M. Singh has shared something important with the Bar Council of India.  The need to combine law courses with courses in varied fields so as to increase diversity of knowledge in legal professionals.

“You could consider giving combination courses like biology with law, physics or chemistry with law. Those courses are not there in India. How will you have people who will be well qualified to deal with challenging issues which courts are facing now?” she said.

It is something that should have been done a long time back but better late than never.

Legal Profession will become outdated if LL.B. Courses not revamped: Delhi HC to BCI
Legal Profession will become outdated if LL.B. Courses not revamped: Delhi HC to BCI

4. Bhima-Koregaon Case is beset with recusals

The recently appointed Supreme Court Justice Dipankar Datta has recused himself from the Bhima-Koregaon case.

Bhima Koregaon Case : Supreme Court Judge Justice Dipankar Datta Recused From Hearing Bail Applications Of Accused
Supreme Court judge, Justice Dipankar Datta, on Thursday, recused himself from hearing the bail a

Back in 2019, 5 Supreme Court judges had recused themselves from the Gautam Navlakha's case within 4 days!

5 SC judges recuse from Gautam Navlakha case in 4 days | India News - Times of India
India News: Navlakha’s petition was first listed on October 1 before a bench headed by Chief Justice Ranjan Gogoi who recused himself from hearing the case. His p

The Gautam Navlakha and Bhima Koregaon case was in news recently when The Kashmir Files filmmaker Vivek Agnihotri had tendered his unconditional apology.

Vivek Agnihotri offers unconditional apology for contempt of court
The case stems from an article accusing Justice S Muralidhar of bias for granting relief to activist Gautam Navlakha in the Bhima Koregaon case.

5. Scam Call Center Accused get Bail

In a case of scamming via phone calls, thirty-three male tele callers and nine female tele callers have been accused of being engaged in cheating citizens of the United States of America (‘USA') from a fake call center. The Delhi high Court has grated bail to the accused.  The court noted that the investigation was already underway and then remarked - "Further, admittedly, yet-to-be-identified alleged victims are residents of the USA and therefore, cannot possibly be influenced by the present applicant."

Interesting.

Delhi High Court grants bail to an accused allegedly engaged in cheating citizens of the United States of America from a fake call center | SCC Blog
bail application filed by accused, seeking bail for alleged offences under Ss. 419, 420, 120-B, 34 & 389 of IPC r/w Ss. 66-C & 66-D of IT Act

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