Introduction:
Indian social thought and action is heavily influence by the caste system. From the Vedic ages, the caste system was very much prevalent. The occupation one did was purely on a hereditary basis that is the ascribed status. Social mobility in such a system was next to impossible. It was punishable if one tried to change his caste and assimilate into another caste. It was like a watertight compartment, where even a slight change in the status quo vote against. This is obvious that the upper castes had some privileges. They enjoyed a so-called elite status in society which his kin enjoyed as the caste system was hereditary. For example, the phrase that is Raja Ka Beta Raja hi Banega. It is sad to see that this kind of social thought is still prevalent in today’s society, just goes by a different name that is nepotism.
Nepotism refers to the favoritism shown towards relatives or personal friends by those in power. These privileges are given due to the relationships of closeness rather than their abilities. [1]
There are innate similarities when one compares the concept of nepotism that is prevalent today and the caste system in ancient times. Basically in terms of privileges that pass on to the person’s kin or close one. The practice of Nepotism also makes a watertight compartment. Where it is very difficult to enter into a profession without any reference in that particular industry. Just like the caste system it influences every aspect of an individual’s life.
As Rawls put it, “no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like”[2]. The idea of the thought is to render obsolete those personal considerations that are morally irrelevant to the justice or injustice of principles meant to allocate the benefits of social cooperation. But nepotism is such an evil that does not lead to the veil of ignorance. It leads to widening social inequality as it is primarily base on what is known as an ascribed status. The privileges one reaps the benefit of due to kin not based on meritocracy.
Rawls also highlighted that Social and economic inequalities are to be arranged so that they are attached to offices and positions open to all under conditions of fair equality of opportunity[3] but in the case of nepotism where are the two on an equal playing field?
Nepotism Rampant in the Indian Democratic System
A liberal Democracy is consider the best form of government but as Winston Churchill “No one pretends that democracy is perfect or all-wise. While others, m1ay be more prepared to describe existing democratic regimes as anything but “rule of the people.”[4] Democracy has its evils as well and Nepotism is just one of them
The supreme court of India had observed that democracy and free elections are a part of the basic structure of the Constitution in the case of People’s Union of Civil Liberties vs Union of India & Anr[5]. Democracy has four pillars that are the legislature, executive, judiciary, and Media. We are well aware of how there exist nepotism and favoritism in the executive and legislature. The people may be given important portfolios not base on merit or background in the particular but on what basis one can only wonder. Another example of Nepotism can be all those parties that are run by a family whose leadership passes from one generation to another.
This article aims to highlight the evil of nepotism that is rampant in the Indian legal ecosystem. One needs to keep in mind that the Indian legal ecosystem primarily consists of two parties. One is the lawyer fraternity and the fraternity of judges. This article will explore the nepotism that goes on within both the communities.
Nepotism within the Lawyer Fraternity
Law graduates with their parents in the profession find it much easier. Whether they’re planning to learn the nuances of litigation or with the help of their parents getting a job or becoming a judge or a litigator.
In 2014, a PIL file against a Karnataka HC decision about the assignation of fifteen lawyers as Senior Advocates. Five of the lawyers were sons of retired judges and three were related to sitting judges. In 2015, a petition was file seeking judicial scrutiny of the process adopt by the SC while appointing lawyers as senior advocates.
The petition goes on to claim that there is no criterion for selection and it is arbitrary, opaque and fraught with nepotism. [6]
A report by the National Lawyers’ Campaign for Judicial Transparency and Reforms publish in September 2016, find that nice out of twenty-eight SC judges relate to former judges, justices, and in one particular case a Chief Minister. As per the same report, eighty-eight out of three hundred HC judges survey are relate to sitting or former judges or legal professionals. [7]
in April 2017, the new Punjab government update the list of advocates who would fight cases for the State in the SC and courts outside Chandigarh. This list includes the son of former CJI, J.S. Kehar, and sons of two other SC judges.[8]
Indira Jaising who is a senior advocate at the supreme court and a former solicitor general have also start a gown wapasi movement where she say: “There is a lot of favoritism and then there is also nepotism in the sense that people who are already seniors, after them their children also become senior”. She says that the impression has long been growing at the bar. That only relatives of seniors of those who come from particular chambers get designation. What is worse, there seems to be an imbalance between caste and communities.[9]
These are just a few cases of Nepotism but what is more interesting is how the supreme court deals with these allegations. In march 2019 the Supreme court had held that advocate Mathews J Nedumpara guilty of contempt for taking a senior lawyer’s name to allege that sons and daughters of judges were given priority in awarding ‘senior advocate’ designation. Dismissing the plea, the court held that “Conduct of this kind deserves severe punishment. Though we could have punish Nedumpara by this order itself, in the interest of justice, we issue a notice to Nedumpara as to the punishment to be impose upon him for committing contempt in the face of the court,” [10]
Malpractices Creeping into the Judicial System of India
Article 124(1)[11] conferred the power of judicial appointment on the political Executive President and Article 124(2) [12]vested the power of removal on the legislature that is the Parliament but in the case of Supreme Court Advocates-on-Record Association & ANR VS Union of India,[13] the supreme court held that consultation” of the Court meant binding advice on the Executive and in the case of Sub-Committee on Judicial Accountability v. Union of India, [14]the supreme court held that even impeachment by Parliament was subject to judicial review by a court. There have been various malpractices that are going on with regard to the appointment of judges.
Judicial Appointments and the instances of Nepotism
In 2013, the collegium of the Punjab and Haryana High Court comprising the then chief justice AK Sikri and justices Jasbir Singh and SK Mittal had recommend the names of eight advocates to be promote to the high court. The lawyers recommended for elevation were Manisha Gandhi (daughter of former chief justice of India AS Anand), Girish Agnihotri (son of former justice MR Agnihotri), Vinod Ghai and BS Rana (former juniors of Justice SK Mittal), Gurminder Singh and Raj Karan Singh Brar (former juniors of Justice Jasbir Singh), Arun Palli (son of former justice PK Palli) and HS Sidhu (additional advocate-general in Punjab).[15]
In 2016 the Centre had put on hold the appointment of 44 judges at the Allahabad High Court. Seven of the 44 advocates recommended by the high court collegium were related to serving or retired former judges of the court.[16]
In 2018 the Centre has pointed out that at least 11 of the 33 names recommended for elevations by the Allahabad High Court collegium in February were advocates with links to sitting and retired judges.[17]
The same year four of the senior-most judges of India’s Supreme Court had come out publicly and raise concerns with regard to the functioning of the judiciary. The four are convince that unless this institution is preserve and it maintains its equanimity, democracy will not survive in this country,” Justice Jasti Chelameswar said at the news conference, they accused former chief justice Misra in a letterof assigning important cases selectively to benches “with no rationale”, implying that he had sought to influence the outcome.[18]
In 2019 Justice Rang Nath Pandey of the Allahabad high court had written to Prime minister Modi he wrote that the next judge’s selection is dependent on their relationship with former judges. He further allege that the selection of judges to both the high courts and the Supreme Court is in close chambers and over cups of tea” by on lobbying and favoritism. The names of future judges, are public only once the entire process complete.[19]
Conclusion
These are just a few examples no one knows how rampant nepotism is and one needs to remember that nepotism is only a small part of the problem. There are problems of gender and caste-based discrimination in the legal system that is equally rampant Article 15 [20]states that The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them but when you look at the nepotism that is prevalent in the legal ecosystem, one is being discriminated based on his or her ascribed status, leave aside the prevalent gender discrimination.
Article 16 [21]provides for equal opportunity where is that equal opportunity when you bring nepotism in the picture, when one discriminates based on ascribed status. I like to conclude by asking a question should affirmative action be only to those who belong to the scheduled castes, scheduled tribes and other backward classes. Or should affirmative action be extend against nepotism that is the modern-day caste system.
References:
[1] Sabnam. (2019, October 10). Short Notes on Nepotism. Retrieved from https://www.sociologygroup.com/nepotism/
[2] Rawls, John (1971). A theory of justice. p. 266
[3]. Supra in 2nd citation
[4] Dahl, Robert A. (1972). Polyarchy: Participation and Opposition. New Haven: Yale University Press. pp. 116.
[5] 2013 (10) SCC 1
[6] Thebluntnewspaper. (2018, January 15). Nepotism in Law. Retrieved June 19, 2020, from https://thebluntweb.wordpress.com/2018/01/15/nepotism-in-law/
[7] Supra in 6th citation
[8] Supra in 6th citation
[9] Gupta, P. (2017, August 12). Indira Jaising to give up her gown to protest nepotism in legal profession. Retrieved June 19, 2020, from https://www.shethepeople.tv/news/whole-legal-profession-needs-reformed-indira-jaising/
[10] Pti. (2019, March 12). SC Holds Lawyer Guilty of Contempt for Alleging Nepotism in Appointment of. Retrieved June 15, 2020, from https://newscentral24x7.com/supreme-court-lawyer-guilty-contempt-nepotism-appointment-senior-advocates/
[11] Article 124(1) of the Indian constitution
[12] Article 124(2) of the Indian constitution
[13] (1993) 4, SCC441.
[14] AIR,1992, SC2219.
[15] Supreme Court yet to acknowledge nepotism in judicial appointments, even as Centre seems intent on curbing it. (2018, August 01). Retrieved June 19, 2020, from https://www.firstpost.com/india/supreme-court-yet-to-acknowledge-nepotism-in-judicial-appointments-even-as-centre-seems-intent-on-curbing-it-4871401.html
[16] Supra in 15th citation
[17] Pradeep Thakur / TNN / Updated: Aug 1, 2. (n.d.). Govt gives collegium ‘proof’ of nepotism in picks for HC judges: India News – Times of India. Retrieved June 19, 2020, from https://timesofindia.indiatimes.com/india/govt-gives-collegium-proof-of-nepotism-in-picks-for-hc-judges/articleshow/65220425.cms
[18] India Supreme Court judges: Democracy is in danger. (2018, January 12). Retrieved June 19, 2020, from https://www.bbc.com/news/world-asia-india Four of India’s most senior, according to his own preferences
[19] ‘Nepotism’ in Collegium System, Alleges Allahabad HC Judge in Fawning Letter to Modi. (n.d.). Retrieved June 19, 2020, from https://thewire.in/law/nepotism-and-casteism-in-collegium-system-alleges-allahabad-hc-judge-in-letter-to-modi
[20] Article 15 of the Indian constitution
[21] Article 16 of the Indian constitution
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