Anil Divan Foundation
Friend of the Court is a podcast series that explores groundbreaking constitutional cases in India’s judicial history against their political and social contexts.
Over eight episodes, the series forensically reconstructs three major cases that senior advocate and constitutional expert, Anil Divan argued: the Jain Hawala Diaries, the Cauvery River Water Dispute and the National Judicial Appointments Commission cases. For the first time, these courtroom sagas have been pieced together in a narrative podcast, drawing on documents, news clips and fresh interviews with those who were involved in these battles. It uses Divan’s cases as a jumping off point to understand how legal battles are shaped and the legacies they leave.
The series will be launched on 31st October 2022 and further episodes will be released weekly on every Monday. The show will be available on Spotify, Apple Podcasts, Google Podcasts, Jio Saavn, Gaana and all other major platforms. You can listen to the podcast by clicking on the links below or on the platform of your choice here.
The podcast is part of a legal history project undertaken by the School of Law, Governance and Citizenship in Ambedkar University Delhi in partnership with the Anil Divan Foundation.
Anil Divan was a senior advocate, constitutional expert and champion of public-spirited causes. With more than six decades at the bar, Divan was among India’s most respected legal minds. In Season 1 we look at three of his most significant cases: the Jain Hawala PIL, the Cauvery River Water Dispute and the National Judicial Appointments Commission case.
It is 1991. Rajiv Gandhi has been assassinated and PV Narasimha Rao has just been sworn in. Militancy is on the rise in Kashmir. The CBI discovers a mysterious set of diaries while investigating terror financing networks. The trail leads to the Jains, a powerful business family that in turn points to Rs 65 crore being paid to various prominent figures, including politicians and bureaucrats. Blitz magazine gets the scoop, splashing it on the front page. But the matter quickly dies down. How does the black economy work? What is the hawala system? Why is this scandal being hushed up?
The CBI’s investigation into the mysterious set of diaries has stalled, despite evidence of widespread corruption among top politicians and bureaucrats. Public-spirited citizens decide it is time to act. Journalist Vineet Narain picks up the story again and makes it a national issue through his video platform. Senior lawyer Ram Jethmalani joins the crusade. Anil Divan, a formidable lawyer is approached to take on the public interest litigation, a first-of-its-kind corruption petition. The petitioners want the court to push the CBI to investigate, given the evidence it has. Divan is sceptical about the outcome, but comes on board. The first phase of the litigation plays out.
The 1996 elections loom, and a beleaguered Congress party struggles to win back power. In the meantime, the Hawala PIL is clubbed with other similar anti-corruption petitions in the Supreme court. In the lower court, LK Advani and other prominent figures, find themselves facing a trial in the Hawala corruption-related cases. As action builds inside and outside the courts, an anti-corruption campaigner switches teams. And amicus curiae Anil Divan makes a shocking discovery that will upend the course of the litigations and bring new documents to light. Ultimately, what will come of all the legal proceedings? And what will be the legacy of the Jain Hawala PIL?
The Cauvery river, which flows through the Southern peninsula has long been the site of disagreements and negotiations. The dispute initially takes off in the 1800s when the princely state of Mysore and Presidency of Madras both lay claim to the river. With new dam building technologies, each side tries to best harness the waters to their ends. Eventually the two sides reach agreements—first in 1892 and later in 1924. The 1924 agreement seems to give one side the upper hand. After Independence, the end of the agreement approaches in 1974, the dispute starts to flare up again. Enmeshed as it is in linguistic identity politics, livelihood issues and electoral politics, the dispute continues to catch fire through the decades.
For years the central government delays setting up a tribunal to resolve the water-sharing dispute between Karnataka and Tamil Nadu. Meanwhile, bad monsoons exacerbate issues for farmers on both sides. In 1990, the Supreme Court finally directs the centre to set up a tribunal, a quasi-judicial body to deal with the dispute. Both sides lay their claims before the tribunal and marshall expert witnesses to support their respective cases. Can a tribunal bring about a satisfactory resolution for everyone? And if the Constitution forbids such a matter from reaching the Supreme Court, what options do the states have left?
Episode 5 will be released on 28th November 2022 on all major podcast hosting platforms
The Constitution spells out the procedure for appointing judges as a consultative process between the government and the judiciary. In the early years of independence, conventions evolve to give the judiciary the upper hand, which the government accepts. But not all is well between the government and the courts. Right from the Nehru years, the government’s social reform agenda puts it on a collision course with the courts. Constitutional amendments are proving to be contentious. And one question dominates the debate: Can Parliament amend the Constitution however it likes? The Supreme Court answers this question several times over before settling it once and for all in the Kesavananda Bharati case. The case goes on to form the bedrock of constitutional interpretation and later play a key role in the NJAC case. The outcome angers Prime Minister Indira Gandhi, who starts actively meddling in judicial appointments.
The first major judgement concerning judicial appointments, known as the First Judges case is pronounced. The judgement says that the executive has an upper hand in making appointments. This question is reopened a few years later, in what becomes known as the Second Judges case. A new system is born, in which judges appoint judges. They have the upper hand in making appointments. It is called the “collegium” system and only requires a formal nod from the government. This system has its own flaws. Several governments try to reform this system in the years to come.
The Narendra Modi-led NDA comes to power in 2014 and immediately sets its sights on judicial reforms. A new NJAC act is passed in Parliament. A constitutional amendment paving the way for the Act is also passed. Troubled lawyers move the courts opposing the new laws, objecting to the role of the executive that the Act outlines. A vacation bench hears the matter in the summer of 2015. The fate of judicial independence hangs in the balance. Eminent lawyers appear on both sides arguing for and against the new appointments system. In October 2015, the court announced its verdict.
Family and friends share memories of Anil Divan, who passed away in 2017. We hear from his wife Smita Divan about their courtship and marriage, their years in Bombay, and Divan’s shift to Delhi in the 1970s. We hear from his youngest son Vivek Divan, his long-time junior Ranvir Singh, and his other colleagues including sitting and former judges such as Justice Sanjay Karol, Justice S Vazifdar and Justice Sujata Manohar. A portrait of Divan emerges: upright, staunchly principled, apolitical and unshakeable. We hear about the man behind the gown, his beliefs and values, his approach to the law and his clients, and what made him a Friend of the Court.