When Justice Arun Mishra of the Supreme Court lambasted a judge of the Kerala High Court for not obeying the apex court’s orders and passing his own order contravening that of the top court, he was pinpointing a malaise which has afflicted a small part of the judiciary. The Kerala High Court had to be reminded that it was part of India and the orders passed by those judges could not flout the directions given by the Supreme Court. Judges are drawn from lawyers who mostly fight in courts. This is because those lawyers who are into corporate practice, do not appear before the courts making it impossible for the chief justice of that high court to assess whether the lawyer being considered for elevation can preside over a bench.
This is where the National Law Universities (NLUs) which are self-funding islands of excellence for lawyers just as the Indian Institutes of Technology are for engineers, come in.Again, just as the IITs were supposed to produce top-notch engineers for India, the NLUs were supposed to produce superior lawyers from whom judges would be selected. But the problem is that most lawyers passing out of the NLUs prefer to join the corporate sector rather than enter litigation. The governments did not finance the NLUs which made them self-financing autonomous bodiesand led to NLUs hiking their fee structures making them prohibitively expensive so that only the elite could join. Another factor which ensured the best and brightest opted for the corporate sector rather than litigation after graduating from the NLUs was that senior advocates were stingy in paying these freshers although they charge exorbitant amounts to appear and argue in courts. Except for very few law firms in Delhi and Mumbai, most of the other law firms were not able to match the salaries offered by the corporate sector to these bright young minds from the NLUs. This resulted in a reverse brain drain so that instead of appearing in courts and learning the ropes in litigation, these youngsters opted for fat salaries in the corporate sector. This has resulted in the very purpose of setting up the NLUs being defeated. This is why there is a social welfare element involved in legal education which is why the governments whether at the Centre or in the states, should evince an interest in funding these NLUs, a few of which may turn unviable if they are deprived of government funding.
The Supreme Court collegium returned some names who were found to be unsuitable for judgeship of the Allahabad high court but were recommended because of their kinship with a few high court judges. This state of affairs prompted Justice Markandey Katju who is himself from Allahabad, to remark in the Supreme Court in 2011: “We are sorry to say a lot of complaints have come to us against certain judges of the Allahabad High Court relating to their integrity. Some judges have their kith-and-kin practising in the same court, and within a few years of starting practice their sons or relatives become multi-millionaires and enjoy a luxurious life. This is a far cry from the days when the sons and relatives of judges could derive no benefit from their relationship with a judge and had to struggle at the Bar like any other lawyer.”