Daily Legal Updates for Law Exams: 28th December 2021

1. Judges Themselves Appointing Judges' A Widely Propagated Myth; Judiciary Merely One Of The Players In Appointment Process : CJI Ramana

• Seemingly responding to the criticisms against the collegium system, Chief Justice of India NV Ramanasaid at a public event that judiciary is only one of the several players involved in the process of judicial appointments and that "judges are themselves appointing judges" is a widely propagated myth.

• "It is nowadays fashionable to reiterate phrases such as, "judges are themselves appointing judges". I consider this to be one of the widely propagated myths", CJI Ramana said.

• Speaking at the fifth late Sri Lavu Venkateswarlu Endowment Lecture on the topic, 'Indian Judiciary - Challenges of future' at Vijayawada, the CJI added :

• "The fact is the Judiciary is merely one of the many players involved in the process. Many authorities are involved including the Union Law Ministry, State Governments, Governor, High Court Collegia, Intelligence Bureau, and lastly, the topmost executive, who all are designated to examine the suitability of a candidate".

• The Chief Justice of India said he was "sad to note that the well-informed also propagate the aforesaid notion". "After all, this narrative suits certain sections",he said.

• It may be noted that during the recent winter session there were intense debates in both the houses of the Parliament regarding judicial appointments, with several members voicing strong criticism about the colleigum system and making a call for the reintroduction of an NJAC-like system.

• New and Persistent Challenges faced by the Judiciary

CJI also stressed the importance of improving the service conditions of the judges to "attract the best talent". He spoke about the "future" and "persistent challenges" faced by the judiciary. He listed the following as the future challenges faced by the judiciary.

• Need for Domain Expertise

• Absence of Well-Considered Legislation

• Non-Cooperative Executive

• Dysfunctional Criminal Justice System

• New Threats to the Judiciary(physical attacks and organized slander campaigns in social media)

• Increasing Judicial Resilience

As "persistent challenges" the CJI listed the following :

• Improving Judicial Infrastructure

• Filling Judicial Vacancies

• Ever Increasing caseloads

 Source: Bar & Bench

2. Bank Doesn't Hold Customer's Deposit In Trust; Banker-Depositor Relationship That Of Creditor-Debtor: Supreme Court

• The Supreme Court has observed that the money that is deposited by the customer in the bank is not held by it as a trustee but it becomes a part of the banker's fund who is under a contractual obligation to pay the sum deposited by a customer to him on-demand with the agreed rate of interest.

• A bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohlimade this observation while deciding the appeal of a former bank manager, who was convicted for offences relating to criminal breach of trust, cheating and falsification of accounts under Sections 409, 420 and 477A of the Indian Penal Code.

• The Court observed : It is fruitful to point out that the banker is one who receives money to be drawn out again when the owner has occasion for it. Since the present case involves a conventional bank transaction, it may be further noted that in such situations, the customer is the lender and the bank is the borrower, the latter being under a super added obligation of honouring the customer's cheques up to the amount of the money received and still in the banker's hands. The money that a customer deposits in a bank is not held by the latter on trust for him. It becomes a part of the banker's funds who is under a contractual obligation to pay the sum deposited by a customer to him on demand with the agreed rate of interest. Such a relationship between the customer and the Bank is one of a creditor and a debtor. The Bank is liable to pay money back to the customers when called upon, but until it's called upon to pay it, the Bank is entitled to utilize the money in any manner for earning profit."

• Supreme Court's Analysis

• The bench in the judgement authored by Justice Surya Kantat first discussed the ingredients necessary to prove a charge u/s 409, 420 and 477 A of IPC.

• Unless It Is Proved That Accused, A Public Servant Or A Banker Etc. Was 'Entrusted' With The Property Which He Is Duty Bound To Account For And That Such A Person Has Committed Criminal Breach Of Trust, Section 409 IPC May Not Be Attracted

• Referring to Sadupati Nageswara Rao v. State of Andhra Pradesh (2012) 8 SCC 547, the bench observed that the onus was on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust.

• The bench observed that entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 were a sine qua non for making an offence punishable u/s 409 IPC("criminal breach of trust by a public servant, banker etc). The bench referred to the ingredients of the offence of "criminal breach of trust" under Section 405 of the Indian Penal Code.

 Source: Bar & Bench

3. Popular Majority Not A Defence For Arbitrary Actions Of Govt; Functioning Of Democracy Unthinkable Without Judicial Review : CJI Ramana

• A popular majority is not a defence for arbitrary actions of the Government, said Chief Justice of India NV Ramana, while underscoring the importance of all wings of the state acting within their constitutional limits.

• Speaking at a public event at Vijayawada, the CJI also criticized the tendencies to brand judicial review as "judicial overreach". He said that without judicial review, the functioning of the democracy in the country will be "unthinkable".

• The power of judicial review is often sought to be branded as Judicial overreach. Such generalisations are misguided. The Constitution created three co-equal organs, namely the legislature, the executive and the judiciary. It is in this context that the judiciary has been given the role of reviewing the legality of steps taken by the other two organs.

• It is a well-known fact that; a popular majority is not a defence for arbitrary actions taken by a Government. Every action is mandatorily required to comply with the Constitution. If the judiciary does not have the power of judicial review, then the functioning of democracy in this country would be unthinkable"

• Growing tendency of executive to disregard orders passed by the Court

• CJI Ramana also raised concerns about the "growing tendency to disregard, and even disrespect Court orders by the executive".

• Speaking at the fifth late Sri Lavu Venkateswarlu Endowment Lecture on the topic, 'Indian Judiciary - Challenges of future' at Vijayawada, the CJI added :

• "Courts do not have the power of the purse or the sword. Court orders are only good when they get executed. The executive needs to assist and co-operate for the rule of law to prevail in the nation. However there appears to be a growing tendency to disregard, and even disrespect Court orders by the executive".

• New and Persistent Challenges faced by the Judiciary
  
  CJI also stressed the importance of improving the service conditions of the judges to "attract the best talent". He spoke about the "future" and "persistent challenges" faced by the judiciary. He listed the following as the future challenges faced by the judiciary.

 Source: Bar & Bench