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The 3 most arrogant & opaque cabals in the Indian legal system (via Shamnad Basheer)

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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