The collegium, the Bar Council of India (BCI) and the Common Law Admission Test (CLAT) symbolise the cliques that are not accountable to anyone other than themselves that run the Indian legal universe, argues NLSIU Bangalore visiting professor Shamnad Basheer on recent news start-up website The Wire:
Our legal ecosystem is beset with cosy cliques and cabals. Cliques priding themselves in an arrogant insularity; cabals boasting members engaged in a deep self-serving relationship that makes incest look benign.
Instead of safeguarding “our constitutionally cherished values of transparency, good governance and openness ... what unites these cabals from across the legal spectrum (comprising judges, legal academics and regulators) is their distaste for the above said values. Courts have resisted attempts to make themselves amenable to the RTI Act. And the BCI and law schools often make a mockery of the process by deliberately delaying the process and refusing to put up information on their website”.
He criticises the collegium system as a “modern day fiefdom of sorts, with judges of highly suspect caliber cosying up to their seniors and being appointed to the apex court” but its proposed replacement, the National Judicial Appointments Commission (NJAC), is not a “vastly superior design” either because it too is opaque:
While the NJAC opens up membership of the club to members of the executive and two “eminent” citizens, it does nothing by way of an express mandate to have this committee spell out reasons for the selection or rejection of a candidate, arguably the main policy tweak that might have made this process more transparent and amenable to public scrutiny.
Basheer then calls up the BCI over its opaque behaviour, particularly in how its chairman Manan Kumar Mishra dealt with Legally India’s reporting of the BCI award of the bar exam tender:
We also have the Bar Council of India, a statutory body vested with the sole right to regulate the legal profession. This body enjoys unbridled power on several fronts, including the power to prompt lawyers to strike at the drop of a hat and delay an already delayed judicial behemoth of a system.
And woe betide any lawyer who dares appear in court that day and incur the wrath of this cabal, most active during the days preceding election time. From time to time, they can also operate as mouthpieces for leading law firms to prevent entry of foreign law firms, an entry that only the most obtuse will see as posing a threat to litigating lawyers (the main constituents of the BCI). All this and more they do, without really consulting their stakeholder base in any meaningful sense.
Most recently, the BCI also demonstrated its propensity to award tenders to those with next to no experience. This incredible story of a dodgy tender (to conduct the All India Bar Exam) issued to ITeS Horizon was captured meticulously by Legally India, a leading legal website. Rather than responding on the merits, the BCI chose to issue a legal notice alleging defamation and threatening to shut down Legally India. That a regulator representing lawyers and meant to safeguard constitutional values seeks to stifle free speech is bad enough. That it even got the law wrong is far worse; for websites/blogs such as Legally India require no legal license to operate.
Basheer concluded by addressing the handling of this and previous years’ CLAT by his “favourite clique, the Common Law Admission Test (CLAT) committee” - a “cabal of a committee compris[ing] Vice Chancellors of the various National Law Universities (NLUs)":
To be fair, while blame must be laid at the door of the law school conducting CLAT, the malaise is a structural one, in that no matter how good the law school in question, it simply does not have the wherewithal to conduct an exam of this magnitude from scratch. The best of law schools and teams have messed up year after year on this count. One might have thought that given this structural challenge, the law schools might have come together and formed a permanent body or institution to conduct CLAT year after year. Or perhaps outsourced the conduct of the exam to those with more experience in the field. In much the same way that a group of US law schools institutionalized LSAT (law school admissions test) by creating a separate body staffed with some of the country leading psychometrists (those with the avowed ability to frame and evaluate questions that test ones aptitude for a certain subject or discipline.) Unfortunately, no!
In fact, in a CLAT meeting conducted in 2010 that I had the (mis)fortune of attending, the arrogance of some of the Vice Chancellors was in resplendent display. Barring a few, all others reacted quite harshly to a proposal from an external vendor to help conduct CLAT Short of literally exclaiming “the king(s) can do no wrong”, a well known legal maxim that courts used routinely to shield royalty from legal wrongdoing, they did all else to indicate that there was no way they would admit that the CLAT was anything but perfect.
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I think Ranbir is a genius for keeping his college outside the CLAT. The college makes lots of money and avoids the lottery of having its students chosen by a paper set by the joke that is RMLNLU
The Bar Councils need reform, they or an alternative need to exist, but the election process for who gets to be a Bar Council Member must be reformed.
The CLAT problems are probably also deliberate corruption. You get what happened this year, and this allows arbitrary manipulation of results so that chosen applicants (because of bribes, influence or nepotism) can get into the more coveted NLUs.
Though that does seem to be the case; however are you speaking based on some specific knowledge or merely conjecturing?
But here's why - Everything of value and scarce in this country ends up being allocated corruptly. NLU seats are highly valued with great competition.
I expect the seat allocation system to be corrupt. The CLAT problems this year which I noticed only because of their coverage on LI showed such incompetence on the part of the examiners that it makes one wonder. Then the totally arbitrary and non-transparent rectification efforts, which resulted in ranks getting arbitrarily changed, no one seemed to know why, - makes one think that someone must have benefited from all this. The entire exam process and results have zero integrity. All this chaos makes it very easy to manipulate results of a chosen few.
This looks like a racket and maybe that's why the law school vice chancellors and other stakeholders in this system resist a more efficient process because they want the chaos because that can be used to manipulate results.
A survey of students who get into the more coveted law schools might reflect a disproportionate access to wealth or influence.
How does a student verify that his or her CLAT result and rank is fair and not the result of manipulation?
I can't believe that the rich and influential in this country are not bribing/ approaching people to get their children into the coveted law schools.
My personal gut feeling would be that it's just incompetence that they're trying to cover up by moving ahead and pretending there is no problem.
Consider the alternative if they wrung their hands and admitted lots of mistakes, the process would get delayed and all the other NLUs would get even more pissed off at RMLNLU than they already are, and they'd be neck-deep in writ petitions.
This way: fait accompli, deal with the fallout later...
Though I agree there is the slight possibility that due to the terrible setting of questions - such as loads covered from one source - some candidates could easily have been given an advantage.
But I would be very surprised when in this day and age there would have been blatant rank tampering, though it's not impossible since the process has been fairly opaque indeed...
If this was planned then the planners also knew that they would get away with it precisely because the delays involved in a tamper-proof rectification would have caused even more chaos and heartburn.
If I was told I was ranked 100 one day and then five days later I was told that actually my rank had been changed to 500, I would certainly be concerned.
All in all, the integrity of this year's CLAT remains zero.
I had a few queries. How many students sat for the CLAT? How many seats are they competing for?
Did RMLNLU make a public and full disclosure of how mistakes were being dealt with and what impact this would have on the marking and ranks. How did they actually handle the mistakes?
"The Union Law Minister has asked the Delhi High Court Chief Justice to look into allegations of “corruption, favouritism and nepotism” in the Delhi Judicial Services exam that was held in the national capital last year.
In a letter dated June 18, 2015, to Delhi High Court Chief Justice G Rohini, Law Minister D V Sadananda Gowda wrote that his ministry had received complaints about children of sitting Delhi High Court judges being declared successful when judges of the same court were involved in the examination process."
and
"The topper and another successful candidate are daughters of sitting judges of the Delhi High Court, which conducted the exam. The judges of the High Court were also involved in the preparation of question papers, evaluation of answer sheets and the interview process.
In his letter, Gowda wrote that “the Department of Justice has received many grievances alleging corruption, favouritism and nepotism in the recently concluded Delhi Judicial Services Examination, 2014”.
Gowda’s letter, naming the sitting High Court judges whose daughters figure in the list of 15 successful candidates, stated: “The petitioners have alleged that the answer sheets were evaluated by those sitting judges whose sons/daughters/relatives took the exam. It has also been stated that the Delhi High Court failed to give satisfactory reply to their RTI query in this regard.”
India is a country where a journalist can be burnt alive by policemen at the behest of a small time state minister and the police will try and cover that up even in the face of a recorded dying declaration. See www.firstpost.com/india/journalists-death-first-forensic-report-suggests-jagendra-singh-may-burnt-2309008.html
A foreigner unused to this scale of corruption and widespread lack of public morals (your experience is from Germany and the UK) might think blatant rank tampering is impossible in this day and age, but in India more blatant crimes and corruption is committed and covered up on a daily basis
We had a Union Minister who completed one whole 5 year term of Parliament even while his election to the Lok Sabha was under challenge and according to several sources the manner of his election was suspect. But he was never held to account.
Maybe slight naivete here...
But so far, the CLAT results statistically look fairly evenly spread out, contrary to initial allegations that Rajasthan and UP unfairly benefited en masse via corruption:
www.legallyindia.com/Pre-law-student/state-by-state-clat-2015-performance-3-charts-prove-karnataka-is-king-of-clat-while-up-bihar-underperform
Like I said, it's not impossible that one or two coaching institutes got an indication that some set of questions would be asked ahead of time, but rather than organised corruption at the highest level, that's much more likely to have been:
1. Bad operational security (i.e., one of the question setters or someone else who's seen the questions personally told a friend who's connected to a CLAT coach, or someone opened the internet history of a question setter's computer or otherwise hacked the university network, etc etc etc.),
2. Just blind luck from the coaching institute in also having been lazy in setting its mocks.
3. A general indication that a lot of questions would be drawn from online, perhaps through the local grapevine because question setters blabbed to colleagues about how much they love GK Online?
4. Dozens of alternative explanations...
That doesn't really make it much better, but right now that seems more probably than top-level corruption...
There was certainly opportunity for rank tampering here.
The survey that I suggested would look at NLU admissions across the country and see whether those being admitted to the more prestigious law schools had more influential or richer parents. And a comparison with school exam results would also be relevant.
A conspiracy does not mean that all the vice-chancellors sat down and decided to corrupt the CLAT. Even 2-3 relatively low level employees involved in the process could have done it. (to appreciate the scale of what is possible, see the Madhya Pradesh Examination Board scam - just one link timesofindia.indiatimes.com/india/Mystery-shrouds-death-of-40-wanted-in-MP-education-board-scam/articleshow/47450214.cms )
And then there would be opportunistic corruption. Once the mistakes were identified publicly, and results needed to be altered, the opaque process opened up the opportunity to do some rank tampering.
The only way to definitively conclude anything on this would require first an investigation into how the mistakes and marking system across all CLAT centres affected results and ranks. The second, how did the admittedly flawed rectification efforts affect ranks and marking. Did some applicants benefit unfairly from this. Only then could one investigate whether there was any conspiracy and was anyone bribed, was anyone approached, were any phone-calls made.
This Chennai High Court judge who ordered a rape victim to mediate with the convicted rapist to seek reconciliation because she was now an "unwed mother" is a another good example of what is wrong with the collegium method that selected this judge. Note also his use of language,
IN the judge's words “The victim-girl has become mother of a child. But as on date, she is nobody’s wife. So she is an unwed mother. Now there is a big question mark looming large before the girl as well as her child, who is completely innocent. Generally, in this type of cases, the girl concerned is stated to be a victim, but really speaking the child born out of such a physical contact is also a victim. The child is a victim of circumstances. She was born to suffer a social stigma for no fault of her. It is a great tragedy.”
According to this Judge a similar case in mediation was near a "happy conclusion".
Its clear from the order that according to this Judge's mindset, this case would also happily conclude if the rape victim married her rapist,
These are the sort of men who have to be weeded out during the selection process for a judge. The selection process must ascertain how a candidate thinks and what his/her views are on issues like gender violence by interviews and through other means of vetting.
But the current system does not even attempt to weed out such men. In fact, the whole incestuous system (with its missing and distorted moral compass) self-propagates itself.
And its not just gender issues. There have been SC and High Court judges who have openly displayed their caste based prejudices.
Even a corporate hiring an employee does better due diligence.
In fact, under the current system, flawed men are deliberately being selected as judges for their malleability etc.
Of course, agencies can collect material during a due diligence process that shows how an individual thinks. Plus interviews. And transparency is key. Dirt dug up must be exposed to sunlight.
The present NJAC might not, I agree with you, because the motives for reform might be too narrow. The NJAC can also get hijacked.
That's my whole point, we need to specify well-thought out criteria for selection and put in place processes and procedures to ensure that the selection process takes into account those criteria. Then we need to allow transparency and accountability for the selection process.
See www.thehindu.com/opinion/op-ed/hurrying-the-law-in-the-time-of-retirement/article4953365.ece
This comes from Raju Ramachandran. I reproduce the relevant extracts:
"Kesavananda Bharati (1973) is the most celebrated case in Indian constitutional law. It is the majority opinion in this case which laid down the basic structure doctrine (that the power of Parliament to amend the Constitution did not extend to destroying its essential features). In his judgment, Justice Chandrachud (a ‘minority’ judge) wrote that the impending retirement of Chief Justice Sikri did not leave enough time after the conclusion of arguments for an exchange of draft judgments. Of the 13 judges who constituted the bench, he said that he had the benefit of fully knowing the views of only four of them. Later, Justice Jaganmohan Reddy (a ‘majority’ Judge) wrote in his autobiography (The Judiciary I Served, 1999) that there were only eight judges at a conference convened by Sikri to discuss the case. He records that Justice A.N. Ray had told him that he had not been invited, that when he asked Sikri why some had not been called he said that he knew the views of those others but not those of the judges he had invited, and that he (Reddy) had told Sikri that it was not proper."
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&
"Many years later, a nine judge Bench of the Supreme Court decided by a majority that primacy in the matter of appointments to the superior judiciary vests with the Judiciary and not the Executive (Supreme Court Advocates on Record Association, 1993). M.M. Punchhi, a dissenting judge, wrote in his judgment that he had hoped that some “meaningful meetings” would be held, so that the court could strive to reach a unanimous decision. He complained that he was “overtaken” when he received the draft opinion of Justice J.S. Verma for himself and on behalf of four others. In despair he wrote “the fait accompli appeared a stark reality; the majority opinion an accomplishment.” Here there was no retirement looming large, and so one can only wonder why meetings could not be held. These instances, spread over four decades, are telling."
He also calls the collegium a cabal which has had a rip-roaring time and writes the following:
"There is this scramble for appointing judges in post-retirement jobs. This is apart from "get rich" arbitrations where some retired SC judges are chosen because they can be influenced while others write their judgements. In the SC, at least two CJIs could barely dictate orders, but wrote fine judgements. In one case, I know some judgements were drafted entirely by "just-out-of-college" clerks.
Interlaced into this are serious allegations of corruption. Lawyers say that when arguing a matter, a judgement or order which is so baseless and unworthy can only be presumed corrupt. On this basis, Justice Sinha of Allahabad was forced to resign in the forties."
In 2014, a Delhi High Court cafeteria packed with lawyers and with all Delhi High Court Judges present heard a retiring Delhi High Court Judge request the then Chief Justice to recommend him for a post-retirement job as he was still keen to continue serving the public.
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