Both the judiciary and the executive have rarely employed the expertise of Indian law professors.
Both the judiciary and the executive have rarely employed the expertise of Indian law professors.
In a matter relating to the interpretation of the Copyright Act of 1957, Justice Pratibha M. Singh of the Delhi High Court appointed law professor Arul George Scaria as an expert to assist the court. Pro. Scaria’s appointment is an opportunity to assess the role of law professors in society. The core business of a law professor is to teach and advance the boundaries of knowledge through research and scholarly engagements. But they have much more to offer provided the system provides them with the right opportunities. Do India’s judiciary and executive use the expertise of law professors?
Instances of them doing so are sporadic. Shamanad Bashir, a renowned academic in the field of Intellectual Property Law, who died at the age of 43, assisted the Supreme Court in the form of ‘academic intervention’ Novartis vs Union of India (2012). Aparna Chandra and Mrinal Satish served justice friend before the Delhi High Court. Great academics like Upendra Baksi and Lotika Sarkar have voluntarily intervened in important matters, forcing the courts to take them up. On select occasions, the Supreme Court has appointed law professors like Mool Chand Sharma as joint registrars (research) and Anoop Surendranath and Daniel Mathew as deputy registrars (research). VS Mani was part of the team that represented India before the International Court of Justice (ICJ) in the 1999 air incident involving India and Pakistan. The Law Commission has employed the services of law professors to prepare at-bat reports for law reforms. In some cases, parliamentary committees have invited law professors to appear as expert witnesses in important cases. The executive has also appointed law professors to serve on various committees.
neglect of academics
But these examples are the result of individual initiatives by judges, bureaucrats or politicians expressing confidence in law professors; They are not the result of a system that values the expertise of academic lawyers and is willing to use their skills. India’s academic lawyers have been largely ignored by both the judiciary and the executive. The following examples make this point clear. Firstly, Article 124(3)(c) of the Constitution provides that a ‘jurist of eminence’ i.e. a professor of law of eminence may be appointed as a judge of the Supreme Court. But no law professor has been appointed as a judge of the Supreme Court. Compare this with countries like the US where many law professors have served as Supreme Court judges.
Second, India has rarely nominated a law professor to international judicial and legal bodies such as the ICJ and the appellate body of the WTO. India has preferred to send retired judges, public prosecutors, or retired bureaucrats to these bodies as compared to other liberal democracies, who regularly nominate law professors to these organisations. This is despite India producing eminent international law professors such as BS Chimney, RP Anand and VS Mani, whose work is cited globally.
Third, the Modi government has been heard favoring the lateral entry of experts into the government to replace generalist bureaucrats for work that requires a high degree of domain expertise. But there is hardly any instance of a law professor being included as a full-time specialist in any ministry. Fourth, the constitutional courts of India rarely appoint academicians who work as justice friend Or to assist the courts in understanding difficult questions of law as an expert. Unlike the practice of courts in other liberal democracies, Indian courts largely depend on the expertise of the Indian bar.
Why partner with academics?
Often, constitutional courts grapple with challenging legal questions. Answering these requires a certain ability of theory and concept, which practicing lawyers lack. Law professors are trained theoretically in theory. In contrast to practitioners who are typically associated with a ‘black letter’ approach, law professors study law critically, often employing empirical, interdisciplinary and comparative approaches. This skill set has the potential to raise the level of legal reasoning several notches. Bashir’s distinguished intervention in Novartis There is a case.
Appointing academicians as judges of constitutional courts or involving them to assist courts in dealing with complex legal issues can bring a fresh perspective. It will also promote institutional diversity in our judicial process. Decision makers occupying high positions in the judiciary and executive should understand that they are doing harm to our society by not making full use of the expertise of academic lawyers. It is their responsibility to develop strong institutional mechanisms to engage academic lawyers in the service of the nation.
Prabhas Ranjan, Professor and Vice Dean, Jindal Global Law School, OP Jindal Global University. thoughts are personal