WE live in an age of specialisations.
Like in all walks of life, this applies to the legal profession as well. There are acknowledged experts in various fields of law and they painstakingly build their practice primarily in that field.
The broadest division, of course, is civil law practice and criminal law practice.
But even under the broad umbrella of civil law, there are domain experts specialising in taxation laws, excise laws, intellectual property law, company law, bankruptcy and insolvency laws, cyber laws, etc.
When an acknowledged expert in a specialised field is elevated from the Bar to the Bench, it is generally understood that he or she would be assigned work with which he or she is familiar.
But given the variety of matters and the paucity of judges, it sometimes happens that a milord is given an assignment on the Bench that is completely alien to his or her area of expertise and practice at the Bar.
In such situations, different milords over the years have found ways of dealing with the problem in different ways. I recall three instances and I shall share them with you.
The first instance is of a milord who was the most well-mannered and polite judge at the Bombay High Court. When saddled with an unfamiliar assignment he candidly confessed to the lawyers appearing before him that he did not know anything of that branch of law but was willing to learn and understand that branch of law with their assistance.
This was a fair confession. Milord was very fair in complexion too. He had an ever-smiling countenance.
The senior members of the Bar who were acknowledged experts in that field then started explaining every concept slowly and clearly as they argued their respective matters before this milord who was most eager to learn. It was almost as if private tutors were giving tutorials to their milord student for free!
The flip side of this arrangement was that such ‘tutors’ were heavily briefed to appear before their ‘student milord’.
To his credit, however, over a period of time, this milord gained enough expertise to be able to deliver good judgments while heading division Benches in a branch of law with which he had had no association as a practitioner at the Bar.
As he reached the highest point in seniority, milord was transferred. He retired as Chief Justice of a North Indian High Court where he was very popular. At present, he is one of the most sought-after arbitrators, especially in high-stake matters.
The second instance is of a milord who was elevated in the early nineties. His area of expertise was criminal law and he had been an assistant government pleader on the writ cell for a decade prior to his elevation.
However, upon elevation, he was made to sit with a superfast judge who used to grasp the crux of matters quickly and seldom allowed lengthy arguments from counsel, howsoever senior they may be.
Thus, when a complicated matter involving the interpretation of some provisions of the Central Excise Act was listed, the freshly elevated junior milord was hoping to hear detailed arguments from the galaxy of legal luminaries briefed to appear on either side in that matter. He felt that this would be a golden opportunity to learn the law in a field that was new to him.
Accordingly, he politely requested the senior milord to allow these stalwarts to argue the matter in detail so that he too could understand all the legal intricacies of a subject with which he was not familiar.
The senior milord would have none of it! “The Bench is no place for you to start learning the law,” he admonished the junior milord.
So the junior milord simply sat as a spectator while the senior milord made short work of the arguments of the senior counsel and started dictating the judgment in open court immediately thereafter.
The junior milord got even when the senior milord’s draft was sent to him as per protocol. He simply refused to affix his signature to that judgment!
The senior milord was absolutely livid. He took the matter to the Chief Justice. “I don’t want him on my Bench. Put him anywhere on the criminal side but I don’t want this man with me,” the senior milord told the Chief.
The Chief was in a fix. He called the junior milord who had not yet been confirmed and asked him what had happened. The junior milord told him: “I cannot mechanically sign something I don’t even understand.”
The Chief said he understood the junior milord’s dilemma but to buy peace he would have to tweak the roster. The junior milord was then transferred to another division Bench hearing criminal appeals. The freshly appointed junior milord on that Bench who was a promotee from the subordinate judiciary in Goa was put on the Bench with the superfast senior milord.
This swap meant that the matter had to be reargued much to the annoyance of the senior milord. That rehearing, in fact, turned out to be merely a charade.
The senior milord’s ready judgment was quietly signed by the new junior milord though he confessed later to friends that he too had not been able to understand a thing!
But being a tried-and-tested promotee judge he knew the secret of success: “If you conform, you will get confirmed!”
The other junior milord, a direct appointee from the Bar, was anything but a conformist. He was independent-minded and it soon became a problem for senior milords to sit with him as he was capable of disagreeing with them and penning dissents even though his ‘probation period’ was not yet completed.
Because of this, very soon he was given single-judge assignments. But here too he was always in the news as he played to the gallery. His courtroom was always full of newspaper scribes.
There were no media channels in those days except Doordarshan but his name and his Orders figured almost every week in the newspapers. The seniors were envious.
Soon this junior milord was transferred to a southern High Court from where after many years he retired as the seniormost puisne judge. Now, he is seen espousing many social causes and is a familiar face on TV channels in that southern State.
The third instance I share is of a milord who had never handled any matter pertaining to the Admiralty jurisdiction of the Bombay High Court while at the Bar. Inexplicably, he was given the assignment of being the Admiralty judge for one session in the early part of his career.
He tried to find some books on the subject in the judges’ library but drew a blank. He then tried to procure some books from the British Council Library but they asked to see the identity card issued by his employer.
Stumped, he requested the prothonotary and senior master to give him a certificate saying that he was “in the employment of the Bombay High Court”. This caused much amusement among his brethren. As the books he wanted were issued to someone else, he registered a request and waited. Half his assignment period of eight weeks was spent just waiting.
The junior milord then decided to ask the senior milord who was handling this assignment just before it was given to him in the new roster. There were many old pending matters in the list and the new milord was eager to dispose of at least some of them.
The senior milord received the junior milord warmly in his chambers. After hearing him out, the senior milord gave him the following invaluable advice: “Don’t break your head trying to master this branch of law otherwise you will be stuck with this assignment forever.”
Junior milord: “But then what do I do with my daily board?”
Senior milord: “Allow the counsel to argue as much as they wish. That ensures fat fees for them from their clients. Then adjourn the case for two weeks. After two weeks ask the counsel for a recap. Keep repeating this throughout the assignment.”
Junior milord: “For how long should I be doing this?”
Senior milord: “For eight weeks or till the roster changes. Once the Chief realises that you have disposed of nothing, he will find someone else to do this job! That is how I have been dodging this assignment all these years! Now it comes to me once in two years and I always just push it on to the next judge. This time that judge happens to be you!”
The junior milord thanked the senior milord for the tips but decided to self-study this branch of law and over the years got a good grasp of the concepts and case law in that field.
He was recognised as a studious, hardworking judge and was appointed to an important tribunal as president post his retirement from the Bombay High Court.
After completing his term on the tribunal he started doing arbitrations. Since I knew him well from the Bar we used to meet.
Once, while discussing the issue of ‘learning on the job’, so to speak, I asked him if the situation could be improved.
He said, “Since the age of general practitioners is on the wane and trial court lawyers hardly ever make it to the high court, there must be some way to ensure that ‘domain experts’, as and when elevated, are assigned matters within their areas of expertise.”
He added: “I think there must also be some form of continuing legal education for upgradation of skills and knowledge of judges even at the high court level as there is at the level of the subordinate judiciary.”
It is anyone’s guess if such reforms will happen. Till then, the glorious tradition of ‘teaching the law from the Bar and learning the law from the Bench’ shall continue.
I, for one, won’t complain as it results in so many stories worth narrating.
