Yesterday’s Indian Express had this editorial questioning why High Court judges should be appointed to the same courts where they once litigated. It asks if top Indian administrative officers are rarely appointed to their home districts, why should judges be any different? This is an important issue to consider, but I think even more pressing is questioning the practice of appointing High Court judges almost exclusively from the litigating bar (besides those judges that are promoted from the district courts). Many have noted that students from top law schools no longer join the litigating bar upon graduation, but instead go into corporate practice, civil society, government, the academy, etc. No matter where they go, it seems clear that despite having some very good lawyers, the litigating bar is no longer the epicentre of legal talent in the country. Countries deal with the selection of appellate judges in different ways around the world. In Germany, for example, young lawyers join the judicial service almost immediately upon graduation and are then promoted through the ranks. In the U.S., judges are selected from lower courts and the litigating bar, but also frequently from government, civil society, and the academy. India seems to prize litigating experience above all else when selecting judges. This is in part because of India’s system of old judges selecting new judges. When the senior judges of a high court consider a new prospective judge they are likely biased towards members of the litigating bar in their court. They also probably feel most confident in selecting these lawyers because they appear before them on a regular basis in court. Indeed, if a broader variety of lawyers were to be considered the system of identifying and selecting candidates would also have to be widened. I think this proposal (and I recognize it is not a new one) should be considered for two reasons. First, it is often complained it is getting more difficult to find qualified lawyers to join the bench. This is in part because for many the costs of becoming a judge now seem to outweigh the benefits, but also because the pool from which judges are selected likely now represents a dwindling overall share of lawyers qualified for the job. Broadening the selection criteria would help alleviate this supply problem. Second, lawyers selected through a more expansive method would have a broader range of professional experiences to draw upon when making decisions. True, some of them might have to be caught up on the latest court room practice due to their paucity of litigation experience. However, if they are qualified this should not take long and the new perspective they bring to the law (and, indeed, court room practice) should be well worth this cost.
Nick has extensively studied and researched various aspects of legal profession and judicial administration in India. After graduating from Yale Law School in 2006, he spent seven years in South Asia, clerking for Chief Justice Sabharwal of the Indian Supreme Court, and working at Human Rights Law Network (HRLN) in New Delhi on rights litigation involving water and health. He has also taught law at National Law School-Bangalore, Lahore University Management Sciences, and Jindal Global Law School.
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Thanks Nick: certainly a step in the right direction for us institutionally.
A few thoughts. First, you'll notice that almost no newly appointed judge actively takes charge of cases – most go through several months of informal training under a senior judge in a division bench, and only then are they given individual assignments (in the High Courts), or permitted to preside over their own benches (Supreme Court/High Courts). Litigative experience seems to make little difference when you get across the bar in this context.
Next, the adversarial system (at least in theory) ought to ensure that a newly appointed justice, say from the corporate world, is not misled because she doesn't know of a procedural technicality: in the adversarial system, the other lawyer must point these issues out. Lack of litigative experience ought therefore to be made up, at least in theory, by the nature of the adversarial system.
But thirdly, Indian judges are generalists: while some are assigned informally to only one category of cases (tax and crime being the foremost), most do all sorts of work. An Indian partner working on complex cross border transactions may do very well as a judge on the commercial court, but she would perhaps not be as adroit on the MHADA cases. Picking judges from a wider pool of talent ought therefore to be accompanied by a more concrete form of division of labor.
Finally, I would be interested in finding out how many non constitutional court justices are appointed from outside the bar in different jurisdictions: while it does make sense for constitutional court judges to have a broader vision; besides the need for efficiency through specialization, I'm not so sure a High Court summary suits assignment would benefit enormously by the appointment of a distinguished professor of constitutional law.
Interestingly, A. 124 (3) allows for the appointment of "distinguished jurists" to the Supreme Court. A similar provision for the High Courts in A. 217 (2) was omitted by the forty fourth amendment, 1978. I wonder why. Also, if conventional wisdom suggests that litigating lawyers are more suited to becoming judges, does it not make sense to "break in" non-litigating lawyers at the High Court level first, rather than entrusting them with the powers and responsibilities of a SC judge directly?
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