Why we should welcome Indian Judicial Service – ways to innovate and implement

Surprising to many Indian Judicial Service (IJS) is quite an old concept, Article 312 of the Indian Constitution specifically mentions its formation. Multitude of judicial commissions, reports etc. recommends its institution, yet we find the idea of IJS is on an eternal backburner. 

A variety of reasons can be ascribed for this. 

• First Article 312 itself specifies that no one who is being recruited through IJS can be appointed below ranks equivalent to a district judge. This stipulation makes it imperative that the applicants have some experience, usually in state judicial exams for entry at this level the usual experience period is seven years. This effectively makes it impossible for fresh graduate to compete for the jobs. Most of the other all India services (like Indian Administrative Service, Indian Forest Service etc.) allow fresh graduates to take part in the exam. 
• Second Indian states feel that it is a state prerogative to recruit judges for lower judiciary and IJS would take this privilege away. 
• Third IJS cadre officer would always be at a disadvantage vis-à-vis judges elevated from bar to bench because they would have to work for at least 10 years before they would become eligible for promotion to High Court (HC), this means a law student who practices for 7 years to become eligible to sit for IJS have to then work for 10 more years to be eligible to be elevated – this comes to a total of 17 years. While under article 217(2)(b) a person who has been practicing at a high court becomes eligible for elevation in 10 years. 
• Fourth at present system of elevation from bar to bench, from lower judiciary to HC, from HC to Supreme Court (SC) is at best murky and at worst nepotistic, it is not in the interest of the incumbent to innovate to bring in fresh talent in the lower judiciary which would potentially upturn the century old practice of SC judges being solely from those who have been elevated from bar to bench at HCs.
• Fifth some states would claim that judges who would come from different culture would not be able to understand the nuances of local customs which is fundamental in delivering effective justice.

However there are ways in which the above reservations some legitimate (others imaginary) can be set to rest by some tweaking and some radical thinking. At present the debate on increasing the number of lower judiciary judges to combat the astronomical pending litigation gives the incumbent government a huge leeway in implementing lasting innovative and efficient solution. 

• First IJS has to be seen in a completely new light as an entry to a professional judicial cadre which would one day encompass all the judges in India. This would mean first posting of IJS cadre should be as a judicial magistrate second class and not equivalent to district judge. And there should be hope for this young hopeful cadre to reach the pinnacle at SC. This is possible by having a time and point based system for promotion. At present the hierarchy of Indian judges is as follows – judicial magistrate second class, judicial magistrate first class, assistant district judge, associate district judge/district judge, high court judges/chief justice of high court, supreme court judge/chief justice of India. So there are 6 steps, in a time and point based system let us assume that an IJS cadre would be eligible for promotion into the next level after a period of 5 years, the points would be allocated on the basis of number of cases disposed by orders, judgments, number of lok adalat cases, reference to ADR mechanisms, plea bargaining and affirmation or rejection of order/judgments by higher courts. So whenever a vacancy arises in the upper post, promotion would be given to those who are at the top of the point list among all those who are eligible. Promotion till high court should be completely point based with no interference of any other subjective consideration. However for elevation from HC to SC some amount of executive consultation is necessary, best way would be to have a committee comprising of CJI, senior most judge (who would not become CJI), Prime Minister, Minister of Law and Justice and Leader of Opposition. 
• Second article 217 should be suitably amended so that to be elevated from bar to bench one has to have minimum of 20 years of experience in courts out of which 15 years should be in a high court; also the pool should be widened to include jurists etc. Also once the IJS officers become eligible to be elevated to HC (which under the proposed system as above would be 20 years from the date of implementation) the proportion of promote to appointee in HC should be 9:1. This would ensure that there is a hybrid of civil law and common law culture and increase vibrancy and outside the system thinking. If indeed this formula is taken, it would be a slow process but would help in ushering the change at a pace where it does not conflict with the present system. Effectively for the next two-three decades there would be a dual cadre judicial officers, the IJS and the judges who came in through the state judicial exams. Almost all the states have to change their laws relating to lower judiciary to ensure that there is no or little conflict in promotion, remuneration etc. between the two cadres. As a transition measure for a decade or so there can be 25% quotas in the posts of associate district judges for  state cadre judges. 
• Third the retirement age of the HC judges should be increased to 65, at present there is some amount of lobbying to get into SC thereby increase the employment by 3 years (underarticle 224(3) HC judges retire at 62). This has been proposed in the 114thConstitutional amendment bill but like many of the unwanted bills it is waiting with one of the parliamentary committee (the graveyard of bills) when the present parliament dissolves (sometime in 2014) the amendment bill would also lapse. Such an increase in retirement age would decrease the unhealthy competition etc. which goes on at present. 
• Fourth with proper training and some basic understanding of local language it would be possible for the IJS officers to dispense justice even at the basic level. A cursory glance at the district court judgments on JUDIS would show that 99.9% of the judgments are in English, so indeed is the language of pleading and conveyancing. Under CPC even the oral witness testimony is recorded, thus with a dual translator cum court stenographer (most of the courts already have people who type the oral testimony from local language to English) this problem can be superseded. Also the state judicial academies can have accelerated language courses which would help the IJS officers to get working knowledge of the languages of the state. The national judicial academy would prepare the associate district judge cadre for elevation to HC. 
• Fifth there has been a growing sense that the National law universities have not delivered any change in the litigation framework of the country. With IJS many of these bright young graduates would be attracted to judiciary.

IJS should be conducted by UPSC, there should be two preliminary papers first a two hour MCQ based test of static GK, current affairs, logical reasoning and numeracy skills second an hour test on English language skills through composition, legal writing skills and legal comprehension. The main paper should be a two hour MCQ test on legal knowledge with an extremely wide syllabus. Finally there should be an oral test/interview. Such an intensive process would allow for the very best to aspire for and become judicial officers who would be fit to work at the highest echelons of Indian judiciary.

Whose logo is it anyway

Recently saw the NLUO logo, somehow it seemed eerily similar to the NLUD logo, you decide?

Oh dear – Mumbai/Khopoli as Peshawar/Abbottabad? What have you done NG?

Few hours ago National Geographic (NG) broadcasted a drama-documentary titled ‘Seal Team Six – The raid on Osama Bin Laden’. Before its broadcast the documentary attracted controversy as it was perceived that the timing of the broadcast (which the Republicans thought would be pro Obama) may influence the outcomes of the US presidential polls (which happens in less than 48 hours). Many news sources wrongly put that the NG documentary is the first on Osama’s death, the first would probably be 'Bin Laden: Shoot to kill' broadcasted on 7 Sep 2011 by Channel 4.

However this spiel is about something different - NG is known for its rigorous authenticity and is the watchword for trustworthiness and accuracy (I have been a long fan and subscriber of MGM and utterly in love with the map supplements). And that’s why I was a bit let down by some sloppy mistakes in filming on location. The documentary opens with covert HUMINT surveillance on Al-Kuwaiti (courier of Osama) in 2010 Peshawar. But lo and behold the shop signboards are in Hindi, the roads are full of Bajaj autos and cars with Maharashtra number plates (everyone drives with them from Al-Kuwaiti to the policemen, I suppose if Bin-Laden had driven a car then the documentary would have shown him driving a MH number-plated car), skyscraper in Peshawar and people too speak in Hindi (not Urdu or Pashto).

I can go on with the inaccuracies - women mostly wearing sarees, proliferation of ‘Indian make’ cars like sumo, omini, wagonr etc. (which are not available in Pakistan), Mumbai Police vans, people using Indian currency notes. It started reminding me of the infamous photoshoping of the pyramids (Re: NGM cover of Feb 1982).

The dashboard camera on the vehicle following Al-Kuwaiti shows coordinates: 17°23'36.68''N 78°29'20.95''E, one would guess that it would be near Peshawar/Abbottabad somewhere on the Karakoram Highway where the chase is purportedly being on, however surprise surprise the coordinates are of a petrol pump in Hyderabad, Andhra Pradesh, India wrong road, wrong state and wrong country.

According to the newspaper reports the Pakistan portion have been shot in Khopoli, Maharashtra (but some of the scenes especially that with the omini cabs, police van and the skyscraper is of Mumbai). To see what Peshawar look like have a look at the clip ‘Bin Laden’s cash flow’ which shows the background and extra feature to the main documentary or some YouTube video.

Well, one hopes that Kathryn Bigelow’s (of the Hurt Locker fame) Zero Dark Thirty a feature length movie due to be released in a month and a half time would be more authentic. The Pakistani portion was recreated in Chandigarh and Patiala, news report suggested that there were some overzealous idiots who protested that Pakistan locations being portrayed on Indian land with change in shop board language, flags and attire of extras and actors.     

In spite of such mistakes Seal Team Six is a commendable documentary which tries to look into the nitty gritty of the operation - actual and intelligence. It is one of the few documentaries which shows the help provided by the Pakistani doctor Shakil Afridi in genetically tagging Bin Laden’s presence and the intelligence gathering teams on ground. A Raymond Allen Davis moment for one of the local agents (I guess its fictional like perhaps the infights between seal team members, but notches up the drama quotient). I must still say that there are scenes which show that the directors may not have altogether forgotten the small things – when one of the agents drink from a coal can it is in inscribed in Urdu, the policemen are wearing Pakistani uniforms (or at least they don’t look Indian).

Overall the drama-documentary is quite good and one of the best ones in the market, but perhaps the drama part could have been suppressed a bit and paid a lot more attention to details (little things that matter much).

Elementary?

Yesterday a new Sherlock emerged (albeit in pilot) under the title 'Elementary' at the US TV station of CBS. It puts Sherlock Holmes, the master detective, in a modern day setting. And of course comparison with BBCs acclaimed Sherlock is obvious.

The new Sherlock (let us henceforth call him CBS Sherlock) is a recovering addict and has Dr. Watson as a rehab companion at one of the brownstones in New York. CBS Sherlock is as gritty and moody as all the previous incarnation of the master sleuth, however he seems a bit unsure of himself at certain times (which is completely unHolmesworthy – legions of fans of Mr. Holmes have come to believe in the supreme self-confidence of the man, frustrated at times he might be but unsure naah!!). 

The case as shown in the CBS pilot is pretty straight forward a psychiatric wants to get rid of his wealthy wife (killing the wife part was there as a plot device in The Adventure of the Retired Colourman), what does he do? He uses one of his umm.. neurotic patients (who has a history of violence) to have a murderous go at his wife. To do this the doctor keeps no record of his meeting with the patient, allegedly changes drugs as well as changes his wife’s appearance (fat to thin, mote to no mole and blonde to red head) to allegedly make her fit the victim profile of the neurotic patient.

Well after some good Holmesian deduction CBS Holmes confronts the evil doctor with the theory only to be laughed off. Later from audio recordings in the cell phone of the killer it is proved that the doctor was in fact treating the killer. In between there were canonical moments like Holmes rearing honey bees (His Last Bow) etc.

So far so good, but still one question arose in my mind as a lawyer, how does the evidence tie up the doctor with the murders. The audio recording proves that the doctor has till now mislead the police by stating that he did not know the killer, yes he can be charged with obstruction of justice, but how to prove before the court that he’s the killer, still there are no smoking guns just surmises and theories. Of course people are bound to say that one should look for deductions in detective stories and law (as if there is any) in legal dramedies (Suits, Boston Legal etc.). But still it would have been better script if CBS Holmes could have found a more convincing smoking gun. Background score could also perhaps be a bit more menacing.

But having said that we must wait for the actual series, this is merely the pilot and they can be quite different from the actual product. One can dig up the pilot of BBC Sherlock (available at Youtube) which was never at par with the actual episodes (in the pilot BBC Sherlock actually is drugged by the cabby while in the first episode it is shown that Sherlock went with the cabby on his own volition).

Thus the verdict would be to [wait and watch] if CBS Sherlock can match or excel the BBC Sherlock (third season later this year?). All in all it is going to be a good few next months for Sherlock fans.

How did Sherlock survive?

Being a Sherlock Holmes fan, it was fantastic to discover ‘Sherlock’ series 1 on BBC. It is a re-adaptation of Conan Doyle’s Sherlock Holmes placing him in a modern day avatar in 2010 London. It was one of my favourite series while I was pursuing LLM in UK (when I also developed a liking for British classic sitcoms like Fawlty Towers, Blackadder, Yes Minister and Vicar of Dibley). When I returned to India to take up a teaching position at one of the National Law Universities, I waited for series 2 of Sherlock and like many fans around the world, at the end of series 2, have been trying to guess how Sherlock might have survived the five storey fall off the Bartholomew Hospital.

Well here’s my solution (I am sure many have also chanced on similar or same solution):

1. Sherlock is given a chemical which can induce death like symptoms by Penny (to fool Dr. Watson).
2. Sherlock injects it while he’s talking with Moriarty (1:09:15).

This trick of hand was already done once in Series 2 when Sherlock took pulse of Irene as shown below:

3.      3. After that Sherlock jumps onto the garbage truck:

The aerial view is as below:

However there are certain points which go against the theory above, Sherlock just slipped off the building he does not have the required lateral momentum to propel him to the garbage truck which is at least 15-18 feet from the building. Also the sniper assassin must have seen Sherlock jumping onto garbage truck and thus would have logically shot Dr. Watson (unless he is also blindsided by the building like Dr. Watson). Further the shots of hands, which I interpret to be injections, can easily be interpreted to be prelude to the tapping off the dud codes.

Anyway I am eagerly waiting for Series 3 and check how far my theory succeeds. Just a side-note I would have been much happier if S2E3 didn’t show Sherlock alive at the end, there would have been more speculation and then BBC could have suddenly sprung Series 3 in 2012 autumn.

The proliferation and brand dilution of National Law Universities

The National Law University (NLU) experiment started in 1987 with an aim to add new vigour to legal education, which in 70s and 80s seemed to have resigned itself to institutional mediocrity. Except for few institutions in presidency towns, the legal education was in a downward spiral. The stage was set for something new and Prof. Menon (though some say he was inspired by Prof. Bakshi) decided to experiment with the novel idea of a 5 year law education right after secondary school. This model was completely different from the then contemporary legal education models followed in the common law countries. In US students could enter law school only after completion of an undergraduate degree, while in UK students could enter legal studies directly after school and the period of study was 3 years followed by a one or two year period of 'apprenticeship' to apply for Bar (through BPTC formerly known as BVC and pupilage) or law firms (via LPC).

The 5 year integrated law school model strived hard on its own for a number of years before the stakeholders deemed it to be successful but once this verdict was reached there was no holding back. First off the blocks were NALSAR, NLIU and NUJS. After that the flood gates were open. Within a decade the number of NLUs jumped from one to fifteen.

If we look at the comparative growth of other institutions of national importance like IITs or IIMs, we find that these institutions had a long gestation period with slow growth before they moved into the expansion phase. However for law schools the growth has been exponential (as borne out by the graph above).

Many reasons can be attributed to this explosive growth of National Law Universities across India, one of the main cause is the little or no initial investment to be made by the state yet the enviable tag of a state with National Law University. Most of the new NLUs run from makeshift buildings which have little or no infrastructure to run a corporation school much less a NLU. Secondly all the NLUs are based on self financed model, which secures a steady flow of capital in form of fees, thus all it needs from state is a legislative Act and voila there is a new National Law University. If one looks at the newest law schools like NUSRL and NLS&JAA they hardly have any of their own infrastructure. The trend seems to have reached such alarming proportion that new law schools start off without faculty yet invite applications from students for admission. CLAT though path breaking in reducing cost and anxiety among law school aspirants, unwittingly end up providing students for these new institutions. If these institutions fail in long term then it would do immense harm to the law school brand and reputation. Thus it is in the interest of the collective NLU brand that older more established NLUs provide active mentorship to the fledgling institutions.

It would also be opportune at this moment to look at the recruitment statistics of NLUs. Arguably AMSS, AZB, Khaitan & Co., Luthra & Luthra and Trilegal are the biggest five domestic recruiters. If we look at the collective recruitment pattern in 2011 of these Big Five we would find that they tend to favour old NLUs over the rest of the law schools.

The recruitment graph shows a classic case of inverse triangle, where few law schools have disproportionately large share of the top end of the job market. If we believe that private sector is the best judge of quality then the trend is extremely worrisome as it tends to point out that there are serious faultlines somewhere in the system and a diminishing brand value of NLUs outside the few top institutions. The situation is quite similar for the new IITs where the graduating batches are offered a 'pittance' compared to 'more established' IITs.

Though recruitment stats alone should not constitute the measuring rod for quality of any institution or its students, however it seems that the time has come to reinvent the NLU brand. The only way forward for NLUs to revive itself is to have strong inter NLU exchanges of both faculty as well as students, strong and active mentor groups for new NLUs and an unambiguous moratorium on opening of new NLUs unless there is an existing infrastructure in terms of library, academic buildings and faculty. To end on a happy note NLUD seems to be have discovered the proper path on how best to open a new NLU - with a world class infrastructure, a 'charismatic' VC and an able faculty.