Chatter #2: Essential Legal Bytes (Judicial/Exec Battles, Art 370, Voter Profiling, Electoral Bonds, Illegal Apps)

1. Judiciary Vs the Rest of India

Kiren Rijiju shared his sentiments on the Collegium system and the need for NJAC and his government's vehement pushback on the opaque and unaccountable process of judicial appointments in an answer in Rajya Sabha.  Here are some highlights

• To tackle the pendency, we (the government) are being supportive. But until the procedure for appointments is changed, questions regarding pendency and vacancies will be raised
• The Parliament had passed the National Judicial Appointments Commission (NJAC) Act in 2014, which was approved by two-thirds of the states as well.
• The Government has taken numerous steps to tackle the pendency. Without referring to those (for the paucity of time), I want to say that right now, the government has very limited power to fill vacancies. We only approve the names recommended by the Collegium. We have no authority to look for and recommend judges ourselves
• We've also requested them to ensure that the appointments are high-quality and are also representative of the country's diverse population. But I feel that we're not able to work as per the sentiments of the House, the sentiments of the people
• We've also requested them to ensure that the appointments are high-quality and are also representative of the country's diverse population. But I feel that we're not able to work as per the sentiments of the House, the sentiments of the people
• Supreme Court's 5-member Bench struck it down. A lot of retired judges, including members of the Constitution Bench, said that the decision to strike down an enactment passed unanimously in the Parliament was not right

And this brings us to the attacks by Supreme Court on the executive powers that are escalating and becoming more blatant by the day.  First, it was the Election Commission (which continues).  

Then it was the Demonetization review.  

The Supreme Court on December 7 directed the Centre and the RBI to place on record the “relevant records” relating to the government’s 2016 decision to demonetise currency notes of ₹1,000 and ₹500 denomination for its perusal.  Reserving its verdict on a batch of pleas challenging the Centre’s decision, a five-judge Constitution Bench headed by Justice S.A. Nazeer heard the submissions from Attorney-General R. Venkataramani, RBI’s counsel, and the petitioners’ lawyers, including senior advocates P. Chidambaram and Shyam Divan. (Source: The Hindu)

The verdict is yet to come but it reinforces the partisan narratives that dinged demonetization despite the many reasons.  Some of which were strategic and security related.  

2. Abrogation of Article 370

And, now the Supreme Court wants to review the abrogation of Article 370.  

We are now moving into the area of an all-out war.  It will rupture the Parliament (as was obvious in the charge from Mahua Moitra in her rather polemical drama) but it will rip the entire Judiciary down the middle!  There is going to be a push back and the public is anyway getting sick and tired of this arrogant branch of governance which is constantly rated at the bottom of the institutions by the public (along with the police) in terms of corruption.  

When it runs the country while mocking and throwing the public mandate in the gutter will invite questions.  For, what use is a democracy in the name when it really is a Dikastocracy?

Given the choice of cases for high-level judicial review at the very onset of the ascendancy of a particular Chief Justice whose own ideological compass was being questioned as being impacted by foreign social norms is a matter of concern.  

One could very well ask - given the extreme partisan utility of these cases - if Supreme Court has decided to be the "B" team of the opposition to the elected government of the day.

3. Supreme Court reviews "Voter Profiling" by the Election Commission

The Supreme Court on Wednesday issued notice to the Union Government, the Chief Election Commissioner, the Telangana government, and the Andhra Pradesh government calling for their response to a petition alleging that the Election Commission of India (‘ECI’), in a suo motu exercise, deleted 46 lakh entries from the electoral rolls in Andhra Pradesh and Telangana.

Please remember this was an allegation from 2018 that is not backed by any authority.  An obvious question that arises is - given the other case regarding the election of the Election Commissioner - is this an attempt to create pressure on the Election Commission and the Executive by the Judiciary?

In a Dikastocratic atmosphere, the battles between the arms of the government are damning.

Why have an Election Commission, when the judiciary wants to even appoint them?  And even be part of the Election Commission itself!  

And, then run the executive?  And define religion, social norms, and environmental answers without any expertise or resort to one?

4. Challenging the Electoral Bonds Scheme

Electoral bonds have been pitched as an alternative to cash donations made to political parties as part of efforts to bring transparency to political funding.  The bench of Justices B R Gavai and Vikram Nath decided that the matter requires to be heard.  Though it will be moved to January.  The petitioners are the NGO named Association for Democratic Reforms, The Communist Party of India (Marxist), and other petitioners.

5. ₹20 lakh damages for using MS Office and MS Windows illegally

The Delhi High Court on Wednesday awarded ₹20 lakh damages to Microsoft company after noting that the copyright in its products, MS Office and MS Windows were infringed by a Mumbai-based firm [Microsoft Corporation vs Rupesh Waidande].  The court ordered:

"The defendants have failed to show proof of genuine use of the plaintiffs’ software programmes for all the installations that were in use at their organizations. Therefore, from the evidence led, it is evident that the defendants have infringed upon the copyright of the plaintiffs in their software programmes. Thus, damages of ₹ 20 lakh are granted in favour of the plaintiffs and against the defendants," (Source: Bar & Bench)

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