Wednesday, November 13, 2019
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Indian Judicial System Including Collegium Still Governed by 1935 British India Act

In India, you also say that we are following English law in some senses. But this is not our law, it is the law of the English people. It is the law that is built on their customs, it is a law which is built on their history. It has no relationship actually to our history, our customs, to our system. So, it is completely insensitive in fact. If I look at the Supreme Court of India, the little motto that they have in the bottom is the only place in the Supreme Court where you will find any use of Devanagari script. This is the entire voluminous instance of Devanagari is all summarized, not summarized, entirely contained in that phrase. Because being in the Supreme Court of India you cannot any Indian language. You can only use English. So the question is, now when the Supreme Court gives the judgement, we say no no this is the law of the land, we are using phrases like law of the land.

But of which land is this the law? Its certainly not the law of the land.. of our land, in fact it has not relationship to our land. It is something that is come and it has been placed on top of us. Its roots are not in our land, it does not look at the history of jurisprudence in our land, doesn’t look at the history of the traditions in our land. This is something that comes from the top. So Supreme Court has been very active in civilizing us brown natives in recent times. So, I started to dig into this. So, what is this Supreme Court? Who are these people? Because now there is a collegiance system. Collegium means essentially that the Supreme Court judges will appoint the next generation of Supreme Court judges. So, if you take that seriously, then you have to look at the origin of it. You have to say OK, this means that they are following the parampara. So, you have to look at the start of that parampara because that is what is going to keep on being followed. So, it turns out that the Supreme Court is established from the Government of India Act, the British India act of 1935. That is what sets up the Supreme Court. They say there shall be a Federal Court consisting of a Chief Justice of India and such number of other such judges as his majesty may deem necessary. OK, so his majesty has set up his Court and has appointed the first set of judges. And now they are saying there is a collegium system where these judges will keep on appointing other judges which means that the majesty’s law is being enforced and followed. And the majesty’s mechanisms of law is being enforced and followed. What kind of judges needed, what kind of qualification was needed? You have either.., 5 years of a judge of a High Court in British India or a barrister of England or a barrister of England or North Ireland of at least 10 years or a member of the faculty of advocates in Scotland for at least 10 years. So, this is the criteria by which you would get appointed a judge in the Supreme Court of India. And absolutely nothing changes when 1947 happens. All you do is, probably there is a little sign board somebody comes and removes that, takes of Federal Court and outs Supreme Court. That is mostly the extent of the changes that happened. Now they say while we got a new Constitution, now we have to look at where this constitution came from. So, the story of the constitution is unfortunately not any better than the story of the Supreme Court.

So, we will dig into little bit in the constitution. But it is very important, this 1935 British India Act, for anybody who is really interested in probing the history, I would really recommend to read this act. Because we realize that pretty much all of so called independent India is being still governed by this act in all the branches of government. So, this is a act, which is the act of the British Parliament and that is passed in British Parliament. And in the past in the British Parliament, there is no Indian representative involved in it, whatsoever. And that is the governing act which is largely governing India. We have some fictions of having some Constitution, some bill of rights were added, so on and so forth. It is very clear, when the Roster issue came up in the Supreme Court, who is going to determine the Roster. All this is set in this act, they are just coming from this 1935 act only. And all proceedings of the Federal Court shall be in the English language. This also, recently some judge from, I think U.P came and started to argue in the Supreme Court in Hindi, and the judge scolded him saying don’t you know this is the Supreme Court of India, you can only talk in English. So, imagine the Supreme Court of the land where 90% of the people cannot even argue in their own language. What kind of justice is going to be served. The only justice going to be served is the justice of the English which is by the English and for the English. So, same thing, they also have all the High Court details are there. Similarly, in every High Court the proceedings should be in English language and again the same kind of requirement that they must have been a barrister in England or northern Ireland, and so on and so forth, or a member of the civil service that is what the other requirement is there for the judge of the High Court.

So, now from High Court, lets move on to the legislature. If you look at the legislature, the situation is not that different. Even right now, the state legislature, they are saying that the two chambers of a provincial legislature will be known as a legislative Council and Legislative Assembly. This where the MLAs of today come from, Member of the Legislative Assembly and MLC, Member of the Legislative Council. So, all of this is set out in the 1935 British India Act, which is, again as I said, there is no Indian involved in the framing of this act and there is no Indianness involved in the framing of this act. Because even, later on we see, even when Indians start getting involved, Indianness is not involved in any way. And I found this very interesting. There is a little provision for the proclamation of emergency which is the same provision that was used when emergency was proclaimed in 1975. So, again all of this is set out in the 1935 act that gets used.

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