In a case involving the interpretation of the Copyright Act of 1957, Justice Prathiba M. Singh of the Delhi High Court has appointed Arul George Scaria, a law professor, as an expert to assist the court. Prof. Scaria’s appointment is an opportunity to assess the role of law professors in society. The core occupation of a law professor is to teach and push the frontiers of knowledge through research and scholarly engagements. But they have much more to offer provided the system gives them the right opportunities. Do India’s judiciary and the executive employ the expertise of law professors?
The examples of their doing so are sporadic. Shamnad Basheer, a celebrated academic in the field of intellectual property law, who died at 43, assisted the Supreme Court as an ‘academic intervenor’ in Novartis v. Union of India (2012). Aparna Chandra and Mrinal Satish served as amicus curiae before the Delhi High Court. Legendary academics such as Upendra Baxi and Lotika Sarkar have voluntarily intervened in matters of importance, compelling courts to take them up. On select occasions, the Supreme Court has appointed law professors such as Mool Chand Sharma as Joint Registrar (Research) and Anup Surendranath and Daniel Mathew as Deputy Registrars (Research). V.S. Mani was part of the team that represented India before the International Court of Justice (ICJ) in the 1999 aerial incident case involving India and Pakistan. The Law Commission has employed the services of law professors to draft reports batting for law reforms. In some instances, parliamentary committees have invited law professors to depose as expert witnesses in important matters. The executive has also appointed law professors to serve in different committees.
Neglect of academics
But these examples are the outcomes of individual initiatives by judges, bureaucrats or politicians reposing faith in law professors; they are not a consequence of a system that values the expertise of academic lawyers and is desirous of using their skills. Both the judiciary and the executive have largely overlooked India’s academic lawyers. The following examples elucidate this point. First, Article 124(3)(c) of the Constitution provides that a ‘distinguished jurist’ i.e. an illustrious law professor, can be appointed as a judge of the Supreme Court. But no law professor has ever been appointed as a Supreme Court judge. Compare this with countries like the U.S. where several law professors have served as judges of the Supreme Court.
Second, India has rarely nominated a law professor to international judicial and legal bodies like the ICJ and the Appellate Body of the World Trade Organization. India has preferred to send retired judges, government lawyers, or superannuated bureaucrats to these bodies compared to other liberal democracies which routinely nominate law professors to these organisations. This is despite India producing iconic international law professors like B.S. Chimni, R.P. Anand and V.S. Mani, whose work is cited globally.
Third, the Modi government has been heard championing the lateral entry of experts in the government to replace generalist bureaucrats for work that requires a high level of domain expertise. But there is rarely an example of a law professor being inducted as a full-time expert in any of the ministries. Fourth, India’s constitutional courts seldom appoint academics to serve as amicus curiae or as experts to assist the courts in comprehending difficult questions of law. Contrary to the practice of courts in other liberal democracies, Indian courts largely rely 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 to theorise and conceputalise, which practicing lawyers lack. Law professors are academically trained to theorise. Unlike practitioners who are generally wedded to the ‘black letter’ approach, law professors study the law critically, often employing empirical, interdisciplinary, and comparative approaches. This skill set has the potential of raising the bar of legal reasoning by several notches. Basheer’s iconic intervention in Novartis is a case in point.
Appointing academics as judges of constitutional courts or involving them to assist courts in tackling complex legal issues can bring in a refreshing perspective. It will also foster institutional diversity in our judicial process. Decision-makers occupying the high echelons in the judiciary and the executive should recognise that by not making the fullest use of the expertise of academic lawyers, they are doing a disfavour to our society. The onus is on them to develop robust institutionalised mechanisms to engage academic lawyers in the service of the nation.
Prabhash Ranjan is Professor and Vice Dean, Jindal Global Law School, O.P. Jindal Global University. Views are personal
