Shrinking pools for selection of judges

When Justice Arun Mishra of the Supreme Court lambasted a judge of the Kerala High Court for not obeying the apex court’s orders and passing his own order contravening that of the top court, he was pinpointing a malaise which has afflicted a small part of the judiciary. The Kerala High Court had to be reminded that it was part of India and the orders passed by those judges could not flout the directions given by the Supreme Court.

Judges are drawn from lawyers who mostly fight in courts. This is because those lawyers who are into corporate practice, do not appear before the courts making it impossible for the chief justice of that high court to assess whether the lawyer being considered for elevation can preside over a bench. After all, a lawyer may be brilliant but may not be fluent in English or know enough of procedure to grant relief or refuse it in cases before the high court.

This is where the National Law Universities (NLUs) which are self-funding islands of excellence for lawyers just as the Indian Institutes of Technology are for engineers, come in. Again just as the IITs were supposed to produce top-notch engineers for India, the NLUs were supposed to produce superior lawyers from whom judges would be selected. But the problem is that most lawyers passing out of the NLUs prefer to join the corporate sector rather than enter litigation.

Ideally, the Centre should have supported the NLUs. But after planned system of launching the NLUs came to an end, they did not get funding from the government because they were not a priority for either the Central or the state governments even if the same party (like the BJP) was in power both in the Centre and in the states.

So, the result was that the governments did not finance the NLUs which made them self-financing autonomous bodies. This led to these NLUs hiking their fee structures making them prohibitively expensive so that only the elite could join. This in turn led to the majority of students who joined the NLUs taking academic loans to pay their fees and after acquiring their basic LLB degrees, these students joined the corporate sector to pay back these loans.

Another factor which ensured the best and brightest opted for the corporate sector rather than litigation after graduating from the NLUs was that senior advocates were stingy in paying these freshers although they charge exorbitant amounts to appear and argue in courts. After completing their internships from these NLUs, freshers grew aware of the stinginess of these senior advocates when it came to paying their juniors.

Except for very few law firms in Delhi and Mumbai, most of the other law firms were not able to match the salaries offered by the corporate sector to these bright young minds from the NLUs. This resulted in a reverse brain drain so that instead of appearing in courts and learning the ropes in litigation, these youngsters opted for fat salaries in the corporate sector.

This has resulted in the very purpose of setting up the NLUs being defeated. With a new pay commission, increase in dearness allowance, and bearing the cost of the goods and services tax, there has been a fee hike in some institutions. This is why there is a social welfare element involved in legal education which is why the governments whether at the Centre or in the states, should evince an interest in funding these NLUs, a few of which may turn unviable if they are deprived of government funding.

The NLUs barely admit around 2300 of the 60,000 students who appear for the common law aptitude test each year. Out of the 1,400 law colleges in India, only 21 NLUs are there. It is well nigh impossible for these 1,300 law colleges to improve their quality of teaching without sacrificing quantity. This is because producing law graduates has become a lucrative business rather than benefitting the people. The solution would be if the NLUs mentor the law colleges which fall within their respective states.

Uttar Pradesh which has the maximum lawyers at 288,297 tops the list with 350 law colleges. Shri Chhatrapati Shahu Ji Maharaj University at Kanpur has 88 law colleges affiliated to it out of which 44 were given permission between 2014 to 2016 to award LLB degrees. The Chaudhary Charan Singh University in Kanpur has 101 law colleges affiliated to it out of which 54 law colleges got permission between 2012 to 2016 to grant LLB degrees.

Some of these lawyers cannot draft sale deeds or company petitions in correct English although a few of them make it to the Allahabad high court to practice law where some who may be relatives of judges succeed in being elevated as judges. The supreme court collegium returned some names who were found to be unsuitable for judgeship of the Allahabad high court but were recommended because of their kinship with a few high court judges.

This state of affairs prompted Justice Markandey Katju who is himself from Allahabad, to remark in the Supreme Court in 2011: “We are sorry to say a lot of complaints have come to us against certain judges of the Allahabad High Court relating to their integrity. Some judges have their kith-and-kin practising in the same court, and within a few years of starting practice their sons or relatives become multi-millionaires, have huge bank balances, luxurious cars, huge houses and enjoy a luxurious life. This is a far cry from the days when the sons and relatives of judges could derive no benefit from their relationship with a judge and had to struggle at the Bar like any other lawyer.”

The writer holds a Ph.D in law and is a journalist-cum-lawyer of the Bombay High Court.

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