THERE IS A NEED TO END JUDICIAL FEUDALISM IN INDIA - The Daily Guardian
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THERE IS A NEED TO END JUDICIAL FEUDALISM IN INDIA

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A few days ago, while speaking at a National Conference on Mediation and Information Technology, organized by the High Court of Gujarat, senior Supreme Court judge Justice Dr. D. Y. Chandrachud said that the Indian judiciary continues to be “feudal” and it should change its mind set to become “modern and futuristic”. He suggested enhancing the use of technology to modernise the judiciary and end the feudal structure. Justice Chandrachud said: “We all know Indian judiciary even today is essentially feudal. These feudal practices are evident to us by the element of subordination between practice amongst judges of the district judiciary judges being made to wait when a judge of the higher court is coming to the district, at the border of the district. Judges of the district judiciary are not allowed to sit when they talk to high court judges or even higher. These are some of the symbols of the subordination of the district judiciary”.

Justice Chandrachud further said that technology can be useful to bring necessary reforms to the judicial system. He said that inspection of districts, which is a source of grave stress to our district judiciary, can be radically changed if we allow for electronic registers for inspection by the High Courts. “Likewise, when we assess the performance of judicial officers, or promotion of judges all the way across, I believe, not just from district judiciary to High Courts but from High Courts to the Supreme Court, we can do a lot to assuage the grievance, that our processes are not objective and we can assuage that grievance provided we use technology in an objective manner for those who are under consideration for higher judicial office. So I do believe that technology is full of untapped potential for changing the face of the Indian judiciary and for making it more modern,” said Justice Chandrachudin his virtual address. Justice Chandrachud is considered a liberal, technology-friendly, and progressive judge who has always stood against the feudal culture and mindset prevalent in the judiciary. The time has come when more judges and lawyers should speak against the feudal environment prevalent in the judiciary. Recently, some states like Himachal Pradesh have taken steps to abolish this culture by replacing the word “subordinate courts” with district judiciary. This is a good decision that should also be emulated by other states to protect the dignity of the judges working at the grassroot level.

Time and again, many public intellectuals, legal thinkers, and constitutional pundits have raised this issue on different platforms but no effective action has yet been taken to abolish the feudal culture from the judicial branch of the state either by Parliament or the Supreme Court. The district judiciary needs a dignified treatment. In one of his pieces published in the Indian Express on 24 August 2021, eminent legal philosopher Professor Upendra Baxi also raised his concerns against feudalism in the judiciary. This is what Professor Baxi had said about this issue: “I have always pointed out at public fora and in my writings that the expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are indeed so. This inelegant enunciation menaces the independence of the judiciary, entrenched with and since Kesavananda Bharati(1973) as the essential feature of the basic structure of the Indian Constitution. Now is the time for Parliament to remove the substantial nomenclature of “subordinate judiciary”, and the courts to eliminate the last vestiges of judicial feudalism-the moral fault line of judicial hierarchy”.

Further, Professor Baxi states: “When I rhetorically posed a question to then Chief Justice of India Y. V. Chandrachud at a public meeting, he was visibly annoyed and retorted: “What is the difference between the CJI and the sarpanch of a nyaya panchayat?” I meant no disrespect to him or the judiciary. To his credit, he contained his annoyance but the fact is that no judge is “subordinate” to any other. As constitutional beings, judges are limited in jurisdiction but also supreme within their own jurisdiction. However, Article 235 speaks of “control over subordinate courts”. This Article adds insult to injury by describing these entities and agents as persons “holding a post inferior to the post of a district judge. The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge acting within her jurisdiction, is “inferior” or “subordinate”. On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts. True, High Courts always have considerable powers of superintendence on the administrative side but this “supervisory” power has been recognized by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235”.

Professor Baxi offers a few suggestions to end the feudal culture in the judiciary: “My view endorses a complete recasting of Article 235, which does away with the omnibus expression of “control” powers in the High Courts. They may exercise “supervision” under detailed performance norms. But there is no reason why for most matters (save elevation), senior-most district judges and judges of the High Courts may not constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave. The amendment should specifically require the High Courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect. If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court”.

Justice Sanjib Banerjee, former Chief Justice of Madras High Court, had also spoken on this issue during his farewell function in Madras. “My regret is that I could not demolish feudal culture in which you serve”, Justice Banerjee had told the staff of the High Court. Justice Banerjee is a brilliant judge who is well-known for his commitment to the cause of human rights protection and free speech.

Gone are the days of feudalism. There is no place for this culture in the 21st century which is the era of human equality, and dignity. The observations made by Justice Chandrachud, Professor Upendra Baxi, and Justice Banerjee need a serious consideration. The Chief Justice of India and the Chief Justices of High Courts may consider sensitizing the judicial community to end the feudal culture prevalent in the judiciary to protect the independence of the judges working in the district judiciary, the first point of interface to the citizen. No judge should be called subordinate or inferior, or lower judge. There is no place for the word “subordination” in the judiciary. All judges are free and independent. No judge is subordinate to another. Every judge acts in his/her own jurisdiction. No senior judge can direct his junior judge to decide a case in a particular way. The judges are not members of the police or armed forces who need orders from their superiors to discharge their functions. All judges get their powers from the statutes and exercise them within the four corners of the statutes. Also, sufficient checks and balances are made in the judicial system to correct the errors of judicial actions. The High Courts have constitutional powers to check the errors of the district judiciary and tribunals and the Supreme Court is the final appellate court. As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all courts and tribunals within the territory of India. The law of precedent ensures judicial discipline. In addition, sufficient remedies are made to approach the higher forum in appeal, and revision. Thus, no question arises to call the judges as subordinate, lower, or inferior. A judge is a judge, and his/her dignity must be respected by everybody including his/her senior colleagues working in the judicial community. Therefore, the Constitution should be amended and the words “subordinate courts” should be renamed the “district judiciary”. In the Arnab Goswami case, the Supreme Court also observed: “Our district judiciary is wrongly referred to as the ‘subordinate judiciary’. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them”.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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