13. Judicial Training & Education - Status, Needs, Organization & Strategies

13.8 DEVELOPING A CURRICULUM FOR JUDICIAL EDUCATION AND TRAINING

13.8.1 Based on the curricula of the existing training programmes in some States and on the recommendations of the Law Commission of India, the working paper circulated with the Questionnaire did propose a broad scheme of the curricular structure for induction training of judicial officers at the primary level. While the responses received were generally supportive of the proposal, there were some insightful comments on inclusion and exclusion of certain papers or modules in such papers. In this chapter the curriculum is further revised on the basis of comments received and in the light of the near consensus reached in the National Level Consultative Committee where the subjects were thoroughly discussed and further clarified and recommended by pedagogic techniques.

13.8.2 It is worth clarifying the function of a curriculum in a training setting of responsible officers who have had basic education in law and some exposure to the system of administration of justice. It must give them additional learning relevant to the work situation and should not be blind repetition of the courses studied (even if not properly) in the law college. The objects of studying each additional units of learning must be justified in the curriculum statement as that would give them directions for self-study and to choose materials for themselves. The objects preferably must separately give the knowledge content and the skills content of the prescribed course/module. As the demand on judicial capabilities changes, the curriculum planning should be a continuous process of revision and reform preferably in consultation with officers being trained. This means that the curriculum presented is just for the initial year only and must undergo close scrutiny by the trainers and experts at the end of each year. It is important that this process is made compulsory in every training academy lest the content should become obsolete and irrelevant to the changing needs and demands.

In this regard, it is also important to distinguish the goals from the objects of training. Goals are acquisition of greater efficiency and improved quality of administration of justice. This is the cumulative result of a variety of factors in the judicial establishment including training. On the other hand, objects are related to a specific course/module in a given set of environment and circumstances and with reference to the particular category of officers undergoing training. Specifying objects with clarity is not an easy task. This comes with experience both in judicial administration and in judicial training. This is where the trainers require training and continued interaction with the players in the judicial, educational, behavioural and management spheres. In fact, the objects determine the pedagogic methods to be employed and the study materials and examination system to be adopted. If objects are clearly articulated and communicated, the success of the course is partly assured.

13.8.3 In the context of the above and based on lessons from the field of adult learning and educational psychology, the trainers will have to develop their own skills and strategies. Judges are, of course, the best persons to train other judges; but if they were to do so effectively they themselves have to assimilate developments in educational psychology and learn pedagogic skills appropriate to adult learning. This is why it is said that all judges, however experienced, cannot become effective trainers and the academies will be well advised to make careful selection of their faculty based on carefully chosen criteria including demonstrated aptitude for teaching/learning.

13.8.4 No training can be successful if there is no guarantee of some minimum levels of knowledge on the part of the trainees. Minor gaps and deficiencies on the part of some individuals can be sorted out by remedial coaching; but if the basic minimum as expected in the recruitment rules are lacking and the language skills are weak, the training can run into problems. Today, according to experience collected, there are recruits who are extremely weak in their understanding of legal procedures and evidence and who cannot communicate effectively in any language, much less in English. This explains the disappointing impact of training in shaping judicial conduct and the reasons why training is taken in some cases as a mere formality both by the trainees and even by some trainers. A sense of helplessness leads to compromises thereby devaluing training itself.

To resolve this problem, two alternatives were proposed in the questionnaire both of which seem to have not found favour with the judges. The first option was a short-term rigorous pre-selection education for weaker candidates at the instance of the High Court by some law teaching institutions. The other option was to give remedial coaching after provisional selection in the academy with extended period of training. The respondents were of the view that both these approaches will result in discrimination and consequent complexes in the officers. Their solution is that under no circumstance shall candidates who do not have the expected levels of legal knowledge and language skills should ever be recruited even if there are reserved vacancies to be left unfilled. While it is a problem for the respective High Courts and Governments to resolve, today it does pose insurmountable problems to training institutions.

13.8.5 There is unanimity in the view that the training curriculum should carry a heavy well-thought-out segment of hands-on training in judicial work (placement with a senior judge) and a fairly thorough programme of computer education. Both these suggestions are well taken and have to be reflected in the curriculum evolved. There is a large body of support in keeping placement training between the two segments of institutional training; the first six months mainly to update knowledge of laws and related subjects and to prepare for placement and the last two months to clarify field experiences, imbibe judicial ethics, learn management of judicial administration and to polish the acquired capacities in conduct of trial and in writing of judgments.

13.8.6 Broad themes of the Curriculum for Induction Training :

The scheme of education and training for newly recruited officers (munsiffs/magistrates) spread over a period of one year will have six major themes around which several specific courses (subjects) will be organized. The six broad themes are :

Major Themes around which courses are structured for Induction Training of all categories of Judicial Officers :

(i) Law, Society and Justice;

(ii) Rule of Law, Judicial Process and Constitutional Government;

(iii) Procedural Laws and Administration of Justice;

(iv) Technology, Modernisation and Management of Change;

(v) Judicial Ethics and Accountability;

(vi) Select Problems in Society and Role of Judiciary in the Context of Development.

The six themes are not of uniform value or weightage. Obviously, about half the time and attention of the entire course has to be assigned to the third theme, namely, Procedural Laws and Administration of Justice. As such, the number of subjects around that theme are more as compared to all other themes many of which can be taught in just one or two subject titles.

The subjects listed below around the six major themes of study carry in terms of number of credits the recommended weightages for each subject/course in the total curriculum. Local adjustments are possible within the over-all curriculum. After all, the writing out of the Teaching Plans including the drafting of the syllabus, reading materials, examination scheme and teaching methods for each subject is the responsibility of individual teachers in charge of training in each training institution. The design that is so developed by individual trainers in different subjects is always to be reviewed and revised before every new training scheme is launched. Curriculum planning and development is, after all, a continuing process and in the context of developments in Law and Society, the syllabus of a training institution can never be the same for more than a year. Based on the experiences of a training scheme just concluded and on the changed demands for training, a conscientious trainer will revise the curriculum for the entire course and the syllabus for each subject before embarking on another scheme of training. Therefore the scheme proposed here can only be taken as tentative and recommendatory in character to be constantly improved upon every year based on needs and experiences.

It is also to be remembered that the curriculum proposed here covers only the taught portion of the training in the Academy and does not include the practical learning component of the training based on field placement. It is important to evolve such strategies wherein the field placement gets integrated with class room learning in such a way that the two reinforce each other giving the trainee the requisite knowledge and skills coupled with the confidence and professionalism necessary for judicial officers. The strategy proposed in this regard is to have an initial Academy-based teaching for six months, a well-organized field placement for four months and a winding up programme in the Academy for the last two months.

 

 

 

 

 

 

 

 

 

Break-up of Subject Titles organizing the Curriculum around the six major Themes

Sl. No.

THEMES

SUBJECTS / COURSES

WEIGHTAGE / CREDITS

 

 

 

(Assuming Total Credits for the entire training is 100 of which 50% is available for taught courses in the Academy and 50% for field training).

1.

LAW, SOCIETY AND JUSTICE

a) Law and Social Justice

Three (3)

b) Law, Political Economy and Development.

Three (3)

2.

RULE OF LAW, JUDICIAL PROCESS CONSTITUTIONAL AND GOVERNMENT

a) Principles of Legislation, Interpretation of statutes and scope of Judicial Review.

Three (3)

b) Judicial Process : Role and Functions of a Judge in Adversarial Adjudication.

Two(2)

3.

PROCEDURAL LAWS AND ADMINISTRATION OF JUSTICE

a) Civil Proceedings : C.P.C., Minor Acts, Rules of Court and Evidence.

Six (6)

b) Criminal Proceedings : Cr.P.C., Special Laws, Rules of Court and Evidence.

Six (6)

c) Special Jurisdictions and Tribunals.

Three (3)

d) Judgment Writing, Contempt Powers and Management of Trials.

Three (3)

e) Legal Aid, Alternate Dispute Resolution Methods and Court Administration.

Six (6)

4.

5.

TECHNOLOGY, MODERNISATION AND MANAGEMENT OF CHANGE

a) Computer use in Legal Research and Judicial work.

Three (3)

b) Judicial Management of Technology for Efficiency and Productivity.

Three (3)

JUDICIAL ETHICS AND ACCOUNTABILITY

a) Code of Conduct and its Enforcement.

Two (2)

b) Judicial Supervision and Accountability.

Two (2)

6.

SELECT PROBLEMS IN SOCIETY AND

ROLE OF JUDICIARY

IN THE CONTEXT OF DEVELOPMENT

Series of Seminars and Projects around selected Problems.

Five (5)

 

TOTAL :

Fifty (50)

13.8.6(1) Law, Society and Justice :

Being a law graduate, every trainee would have some perspective of the role of law in society and the potential of law as an instrument of social justice and development. However, it is unlikely that he had occasion to appreciate the role of law in directing change, regulating economic forces and apportioning the fruits of development. The changes which basic legal concepts like property, contracts, torts, crime, family have undergone while interacting with economic and social policies need to be studied in context to give the young judge the macro-level understanding of the office he is to occupy. It is not just settlement of some disputes but, in the process, he is structuring a just social order where disputes are avoided as far as possible.

The 54th Report of the Law Commission wanted judicial officers to develop a healthy understanding of certain social science subjects (Economics, Political Science, History, Sociology, Psychology) in relation to law and legal policies.

The new Five Year Integrated LL.B. Course is supposed to give the above insights to the new generation of lawyers as the curriculum does teach the above subjects. But the social sciences learning is elementary and the integrated analysis with law, if at all instructed as expected, could only open up the curiosity of the law student. In judicial education it can be taken further with a view to project the functional interaction between law and society. How much of it to be imparted in initial judicial education and in what form depends on the assessment of the training needs by the trainers in specific contexts. Nevertheless, the following two courses appear to be necessary :

13.8.6(1) (a) Law and Social Justice :

The object of this course can be to give a critical understanding of Indian society as it evolved through several centuries and how it influenced the shaping of law and legal institutions. It is to be a blend of history, sociology, culture and economics. In short it is to be a socio-economic history of legal system. How justice is perceived and administered at different times? How Common Law and customary law impacted the shape of events? What were the factors which united the society during the Freedom Movement? In all these how lawyers and judges advanced one set of values as distinguished from another and with what techniques? The lessons of history and culture in legal discourses can give meaningful suggestions to the young officer for being a conscientious player in legal development as well as social development through law.

The content of the course could include perceptions and practices in law making and delivery of justice during the colonial period, the implications of non-separation of judiciary from executive, the evolution of the concept of independence of judiciary, the crystallization of the role of the legal profession, the attempts at constitutional reforms during the colonial regime, the values of the Independence Movement and their reflections in legal battles, the Constitution making process vis--vis judicial process as projected in the Constituent Assembly debates etc. It could also include case studies of legislative, executive and judicial attempts in delivery of social justice (like untouchability offences, land reform, labour law, child justice, gender justice etc.).

The methods of teaching the course include lecture-discussion (25 per cent), individual/group projects or syndicate studies on research and reporting through seminars (25 per cent), field visits and workshops (25 per cent) and written examination with inter-disciplinary questions on law-society relationships (25 per cent).

The topics of case studies and projects will keep changing year after year with a mix of old and new problems/issues where legal initiatives have succeeded/failed in delivery of social justice. The thrust here is more on social development through law and the role of legal institutions/instruments in social engineering in order to appreciate the limits and limitations of the judicial process. It may also help to appreciate techniques of conflict management in society and the need for law to be responsive and pro-active in the dispute resolution process.

The process of learning here is deductive (reasoning from observed facts) rather than inductive (logical reasoning from a general law). It is experience rather than logic and black letter law. The young officer will learn the distinction between proof in law and proof in social sciences. It would enable him to understand the complexity of social reality even while facts and evidence are presented in isolated fashion in court proceedings. He would begin appreciating the impact of judicial decisions in society and the need to appreciate the reasons for disillusionment with law and legal processes.

13.8.6(1) (b) Law, Political Economy and Development :

This is the second course in the Law, Society and Justice Unit of the judicial training curriculum. While the first course emphasised the socio-cultural dimensions of law and administration, this course would focus on the political and economic dimensions of law in society. Every subordinate judge is now increasingly called upon to administer justice around issues which pertain to economic relationships and distributive justice. With the law of contracts and torts assuming critical importance in the new economic regime, judges can potentially do a great deal to advance the cause of justice in complex market relationships. This requires understanding of the elements of political economy, the relationship between the State and the Market and the role of Human Rights in disciplining unequal and unfair deals. Given the prospects of ambiguous policies in legislation in the market regime, the trial judges may have to be creative in their choice of remedies and activist in resolution of disputes keeping the intention of legislature and needs of society in mind. This is a matter of value orientation, judicial balancing of competing interests and capacity to appreciate complex economic transactions through market practices. The young judge cannot be expected to have this perspective and analytical skill which a course like the one proposed should give him at the induction stage itself.

Giving the example of revolutionary changes taking place in the concept and status of 'property' in modern societies, the Law Commission (54th Report) had canvassed broad-based social science education to judges. Law and Development was an independent course which the Gajendragadkar Commission wanted in judicial training. Sociology of Law was recommended by the Desai Commission. Today administration of justice is indeed difficult without an understanding of the complex role law is playing in development and social change. With economic liberalisation and globalisation and in the context of a dominant role for the World Trade Organization in resolution of economic disputes, national legal systems have to play a pro-active and creative role in structuring legal remedies for economic development and social justice. Any discerning observer can appreciate this new role in the emerging areas of law such as intellectual property law, natural resources law, energy law, environment law, laws regarding financial markets and international trade, consumer protection law etc. No law college anywhere in the country ever taught these laws so far. Nor is it likely that the younger generation of lawyers have had occasion to practice in these areas. At the same time no one can deny the fact that trial judges in future will be increasingly involved in these matters for which the jurisprudence and tools of the past are inadequate instruments. Hence the need for providing a foundation on economic laws including economic offences in the context of India 's economy getting integrated with the world economy.

This course again will depend on non-law subjects and materials mainly from economics to develop its content and concerns.

13.8.6(2) Rule of Law, Judicial Process and Constitutional Government :

Constitutional governance under rule of law demands from the judiciary exacting standards of judicial behaviour for which the judges have to be trained both in skills and attitudes. The culture of human rights and a healthy suspicion in respect of exercise of public power by State and its agencies are indispensable attributes of judicial mind. While making independent judgment, judges have to strive for certainty in law and reasonableness in its application. In short, the tasks of a judge in a constitutional democracy governed by rule of law and human rights are indeed challenging and formidable. More than knowledge of law what is required is impeccable integrity and a cultivated discipline conducive to restrained conduct and dignified behaviour. While this is the product of learning and socialisation with judicial fraternity its elements can be imbibed in training. Towards this end, the following two courses are recommended

 

13.8.6(2) (a) Principles of Legislation, Interpretation of Statutes and Scope of Judicial Review :

Rule of law requires judges to understand and respect the intention of the legislature while interpreting statutes. A law cannot be understood except in terms of its purpose, the mischief intended to be avoided and the goals expected to be advanced. In gathering this information, every judge inevitably is drawn into policy debates, history of the legislation, diverse view points in society and the limitations of law in social control ordering. Statutes are after all, collection of words and phrases, most of which are amenable to diverse interpretations. The science of legislation (principal and subordinate; supreme and delegated) and the art of legislative drafting conceals an agenda of social engineering which judges have to unfathom through known principles and procedures. These principles are not uniform in respect of all legislations. The extent to which the principles can be used in understanding the law also varies depending upon the issues in question and how far they are obvious in the words and phrases of the statute. Certain rules of interpretation have been developed in Common Law and incorporated in judicial practice all over the world. Even though trial judges are not always confronted with these issues in their daily functions, yet it is important that they are aware of them and how and where they can involve them in judicial work.

Equally important is the controversial yet significant function of judicial review of administrative action and legislation. The principle that every law and executive action should be in conformity with the Basic Law - the Constitution - is part of Indian jurisprudence and perhaps a basic feature of Indian Constitution. The judicial power involved in judicial review is sensitive and is exercised by the High Courts and the Supreme Court. It is a technique for protecting Fundamental Rights against State action maintaining rule of law through avoidance of arbitrariness in Government. While exercising judicial review, courts are likely to deal with policies and inevitably declare the constitutionality of actions of the other two wings of Government. In this process frictions arise and judicial power gets increasingly challenged. It is to the credit of India's democracy that judiciary had its way in working out the constitutional scheme through checks and balances. In doing so, the role of the judiciary has become crucial and delicate. Every member of the judicial establishment even if not exercising judicial review, ought to realise the nature and significance of this doctrine, the manner of its exercise in the Indian context and the responsibilities it imposes on judiciary as a whole. As such, this subject should form a component of the course designed to acquaint the trainee to the larger role of judiciary in democratic governance.

There are interesting discourses on all three aspects in several judgments of Indian and foreign courts which may be imaginatively edited and presented for teaching and discussion. A purely theoretical approach with text book materials is inadequate for the purpose of attaining the objects intended to be achieved by teaching the subject. It is important that the trainees understand the undemocratic nature of judicial process and the need for care and caution in the application of judicial review against democratic decision-making processes. This is a task indeed far more challenging than any other judicial function in a democracy. Judicial restraint and judicial activism will have to be understood in proper context lest the judge should fall in the trap of either obstructing policy or enunciating policy both of which do not bring credit to the judiciary.

13.8.6(2)(b) Judicial Process : Role of a Judge in Adversarial Adjudication

Understanding the nature, scope and limitations of the judicial process is part of the training of a judge. Judicial process in an adversarial setting structured by written rules of procedure and evidence pre-supposes a fair, independent judge endowed with a lot of patience and common sense even during trying circumstances. There are different actors playing different roles in the court and the judge is supposed to regulate the show according to the rules of the game. In the process he is to be not only fair and impartial, but seen to be so by the parties whose lives and liberties are at stake. There are active and activist judges as there are restrained and passive judges. Judicial methods are varied and complex accommodating judges of all types and providing dynamism to the judicial process without compromising the integrity of the process itself. Thus, by understanding judicial process, both in theory and practice, the trainee will learn the elements which go in the making of a good judge. This subject should aim to give the trainee maximum of knowledge and skills, attitudes and approaches which can be a resource in judging. Biographical notes of judges can be useful material for study and reflection.

Judicial discretion is a source of judicial power which can add dignity and authority to the court while serving the cause of justice. At the same time, improper use of discretionary powers can undermine the integrity and respect attached to judicial office without which judges cannot function effectively. It is therefore important that this course gives instruction on the use and abuse of judicial discretion particularly in relation to dealing with interim applications and orders. Preparation for hearing of a case can help a great deal in court during trial.

Managing examination and cross-examination of witnesses in a professional manner is both an art and a science which can be cultivated by a conscientious judge. To be a master of the proceedings in court, the judge ought to know when to intervene and when not, where to stop the lawyer and how to achieve intended results without jeopardising the reputation for fairness and avoiding conflicts with arguing counsel.

There are differing views on whether a judge is to be only an umpire or can assume the role of an active player in adversarial trial proceedings. The law seems to provide scope for both the roles within parameters (see for example Order X CPC, 313 CrPC, examination of court witnesses). To be able to learn and practice such roles, the trainee judge has to study a whole lot of theory of judicial roles and interrogate assumptions and strategies in diverse circumstances. While this course will provide the occasion for such an exercise, he should be able to put to test such knowledges while on placement training as an understudy with experienced judges. In short, the teaching of this subject is partly in the classroom setting and partly in the field situation.

13.8.6(3) Procedural Laws and Administration of Justice :

This theme comprises the core topics usually given in all judicial training programmes. In many training programmes they form the total content of the course excepting, of course, the field-based apprenticeship training. What is recommended here is a radically different approach in the teaching of procedural laws and their organization and integration in the total curriculum for training. The lecture-discussion type of teaching of topics straight away lifted from the C.P.C., Cr.P.C. and Evidence Act do not convey anything more than what the trainee already got either from the law college or from the profession or from both. As such, a good trainer might consider giving a functional and integrated design in the entire teaching of procedural laws. There can be many models for such a design and each one has its own plus and minus points. For example, one may adopt a style of teaching the entire criminal procedure and evidence by taking the trainees through a step-by-step journey from occurrence of crime in society to its final disposition in courts taking, wherever necessary, bye-lanes and diversions to explain the course of different criminal cases in different situations. The pre-trial processes, trial and appellate procedures, interlocutory stages, constitutional court interventions, administrative and supervisory interventions, impact of actions of extra-legal authorities etc. can all be presented in vivid detail to the best advantage of every trainee judge who is already informed of the basic rules.

The theme around Procedural Laws which constitute 50 per cent of the total taught subjects in the Academy (25 credits) can be organized in five different courses such as Civil Proceedings, Criminal Proceedings, Special Jurisdictions, Judgement Writing and Court Craft, Legal Aid and ADR. The content and scope of these five courses under the rubric "Procedural Laws" are explained below :

 

13.8.6(3) (a) Civil Proceedings :

The course should give an over view of the judicial system with special focus on civil courts, their structure, jurisdiction and functions. Naturally it is necessary to expose the trainee to various types of disputes ordinarily reaching the civil judicature and the laws (contract, tort, family law, property law etc.) governing them. Of course, the style of treatment of substantive laws will be different in view of their knowledge of these laws.

The second module relates to a number of procedural issues whereby the filing and admission of suits are controlled by the Court Fees Act, Suits Valuation Act, Stamp Act, Limitation Act, Specific Relief Act etc. Discussion on different type of suits seeking different kinds of reliefs will enable the trainees to get acquainted with the nature of work he is likely to be confronted with immediately on assuming office.

Management of pre-trial procedures should receive adequate attention. Examination of parties and pleadings and framing of issues are important tasks where knowledge and skills have to be developed by case studies and practice exercises. Emphasis shall be made for prevention of misuse of discretionary powers, particularly in granting ex-parte interim orders. Broad principles of law of evidence on problems which may arise during a trial. Relying on rules and principles available in CPC which allow an activist Judge to become a "settlement judge" too. Use of Commissions in gathering evidence, resolving questions of relevance and admissibility, and appreciation of evidence applying principle of preponderance of probabilities call for deep study and reflection with reference to specific fact situations. Case files containing recorded evidence should be used to train these aspects of judicial matters.

There are occasions which demand interpretation of contracts and statutes for which the judge should be trained so that established norms and practices are not deviated from when dealing with such issues. Issues on evidence and proof in civil proceedings are too many and are varied. The trainer should be able to select such materials from actual practice which are capable of showing the trainee the consequences of alternative courses of action in given fact situations. A mechanical, status-quoist approach is unwelcome; at the same time, a radical, non-conformist approach is also not favoured for trial judges. To the extent the class room can demonstrate how the slightest error of judgment of facts and procedural norms can lead to unforeseen consequences in the outcome of proceedings, the course can be instructive and meaningful to the trainees.

The structure of modules and the methods of teaching the proceedings in a civil court should not be merely statute-based on already known principles and procedures. The question of why those principles are prescribed and how those principles can be dynamic in operation have to be addressed in teaching. Importance of procedure in the judging process has to be appreciated while at the same time realising that procedure, after all, is a tool for finding truth and being fair to both parties to the dispute. The judge should know why criminal proceedings are differently structured as compared to civil or constitutional proceedings. He must also appreciate the rationale behind modifications effected in civil proceedings by special laws to achieve goals which ordinary civil courts are unable to accomplish.

One of the problems in teaching with materials based on past decisions is the tendency to perpetuate the same approaches and methods which may not be conducive to the changed circumstances. While precedents have their value in the system, it can lead to miscarriage of justice as well if the limitations are not appreciated and risks are not taken to break the ice in appropriate cases. As many trial decisions may be final, it is important that the trial judge understands the scope for creative and positive approaches wherever justice demands such cause of action irrespective of precedents to the contrary. It is a challenge to the trainers to inculcate such a spirit in their students.

 

13.8.6(3) (b) Criminal Proceedings :

The concept of a "fair trial" as expounded by the Cr.P.C. and Evidence Act and as refined by the provisions of the Indian Bill of Rights under the Constitution should form the primary module of this course. This can largely be taught through lecture and discussion with selective study of cases and Law Commission Reports.

Role and responsibilities of the Magistrate at the pre-trial stage during police processes of arrest, bail, remand and discharge deserve to be taught in great detail with the help of relevant statutory provisions and constitutional court decisions. Disposal of cases without trial and procedures to secure the presence of accused should inform the understanding of a judge's function. Framing of charges is another aspect in criminal proceeding which requires special attention in training.

The trial of criminal cases is the most crucial stage in the criminal proceedings with the collection of evidence and appreciation to determine the truth. Speedy disposal of staggering number of pending cases in which the judge should have positive influence, quickening examination and true examination of witnesses. Credibility of oral evidence in various and varied context and circumstances. Avoiding stereo-typed and ancient method of appreciation of evidence. Recent trend of Supreme Court decisions regarding appreciation of evidence in reaching conclusions on controverted facts. Display of learning methods of clinical education now invoked in some law teaching institutions which give the necessary skills through exercises and role plays in simulated conditions.The judicial academy has to make an inventory of clinical teaching methods now in vogue in developed countries and with the help of multi-media support systems introduce programmes which can impart sophisticated skills to their trainees.

 

Examination of accused under Section 313 of Cr.P.C. Preparing oneself fully with the case before arguments to shorten the lengthy arguments call for particular attention.

Judicious use of the doctrine of giving the benefit of doubt to the accused.

Sentencing constitutes an important function of the criminal court which requires special expertise and skills. Given the increasing irrelevance of conventional sentences and the limited options available, the sentencing judge has to perform a vital social function in a manner that makes criminal justice sustainable. Special focus in this regard should be on socio-economic crimes and atrocities against weaker sections.

There is great wisdom in bringing to the knowledge of the trainee judge little known topics like compounding, victim compensation, legal aid, maintenance, special procedures in dealing with mentally ill persons, awarding of costs etc.

The body of criminal law outside the Indian Penal Code is so vast and complex, that this course may have to develop several modules around some of those special laws focussing mainly on modifications in those laws in respect of procedure, evidence and disposition.

Again, the wide range of issues in forensic science, medical jurisprudence and recent developments in proof ought to receive adequate attention of the trainees.

 

 

 

 

8.6.3 (c) Special Jurisdictions and Institutions

Tribunalisation is a trend that is popular and pervasive in Indian justice system. While they participate in several ways with ordinary courts, they do differ from them substantially in procedures and dispositions. Administrative Law and Administrative Tribunals should form an important focus of this course, lest the officer should import techniques and approaches abandoned by the legislature into tribunals.

Dealing with children in judicial proceedings should be another module deserving close study and conscious effort to understand. It can include elements of juvenile court proceedings in respect of delinquent children. It must also address issues of rights of children in civil and administrative matters and how they are to be protected by modified procedures and reformed attitudes.

Another special jurisdiction warranting attention in judicial education is that relating to workers in labour and industrial courts. The skills and knowledge required for a presiding officer in a labour court are to be dynamic and informed by a variety of labour rights and economic policies. The procedures are seldom adversarial and assistance of lawyers not always available in such forums. If the presiding officer does not adapt himself to the philosophy of labour adjudication it can be disastrous to the economy and deleterious to industrial peace.

There are specialised judicial institutions now being set up for women. The Family Court is one such example. They are intended to be different from the usual run of civil courts and they have been empowered by statutes to deliver gender justice sometimes through affirmative action unique to such institutions. Special qualifications are often prescribed for presiding officers of these courts and tribunals. Apart from special institutions for women, there is a felt need for gender sensitization of judicial personnel in general to get rid of entrenched gender biases and discriminatory practices. Future judges have to be equipped to deal women's issues with sensitivity and commitment to equality and human dignity.

Finally, there are new jurisdictions being set up to protect the Scheduled Castes from atrocities perpetrated against them and to adjudicate grievances relating to violation of human rights. Special courts including human rights courts are now functioning in different States with vastly increased powers and special responsibilities. It is important that the young entrant to the judiciary is adequately informed of these special jurisdictions and the role they are expected to play in delivery of justice.

13.8.6.3 (d) Court-Craft and Management :

A full course on court-craft and management is warranted in judicial training for the future. Judicial function is no more confined to trial management and few administrative/accounting procedures but has become a complex part of modern governance. The National Judicial College of USA in association with the American Bar Association has brought out an instructive volume called "THE JUDGE'S BOOK" in 1994 which provides a range of topics which should find place in judicial training everywhere. Starting with a discussion on the qualities and life of a judge, the book highlights the essential elements of judging which includes (a) listening; (b) note-taking; (c) decision-making; (d) judicial management; (e) exercising judicial discretion and (f) court room control. The National Judicial Academy is well advised to bring out a comparable volume discussing the skills and attitudes which a judge in India should cultivate in order to be successful in the profession and to endear himself to the community.

No one is born with professional capacities and all the qualities and skills necessary can be cultivated with proper motivation and training. There was a time when people used to assume the role of judging only after becoming mature and experienced with a reputation for wisdom and integrity. Today young law graduates with little or no experience in life and in law get recruited and with few months' training are put on the job. In this context, it is all the more necessary that the trainees are given adequate training inputs to be informed of judicial qualities and skills and motivated to conform to normative standards expected of the profession. Hence the need for a full course on court-craft and judicial management.

To be able to understand one's court as an institution with strengths and weaknesses, the presiding officer has to have qualities of head and heart which any leader of an organization necessarily has to possess. Of course, a court is a unique institution; yet it does involve people and procedures, norms and standards not always compatible with each other. Added to that, the mounting arrears of cases and consequent delay in disposals tend to alienate the public and undermine confidence in the ability of the system to deliver justice. Looked at in this perspective the task of judicial management is far more complex and difficult than ever before.

The process by which an organization attains its organizational goals is what management is all about. Therefore, it is good to start with the goals of justice system in general and trial courts in particular. From this, the trainee can look at the existing methods of docket management, its relation to manpower utilisation, resources distribution, record system etc. The trainee should get a total view of the judicial establishment and a micro-view of each segment of the system. Management of information is an important aspect which must be given attention partly here and mostly in the next theme of technology and modernisation. Time management is another skill which should be learnt. The importance of timely and adequate supervision and monitoring of what happens in and around the court has to be inculcated in every trainee. Man management is another aspect worth reflecting on. Finally management of the actual trial in court requires different skills which need to be cultivated if the judge has to be a good professional person. All these and more can be learnt by appropriate modules in the Academy and later through observation and participation in the company of senior judges.

Court craft involves a bundle of skills and attitudes difficult to be listed exhaustively. Nonetheless, several aspects of the same can be taught by taking the young trainee to the unique environment in which a judge is placed in court and how experienced men react to situations of stress and conflict. Avoidance of gender bias and conveying a picture of integrity and responsiveness are necessary for effective court control. Attentiveness, quick and fair decision-making and firmness are attributes which need to be cultivated. And on each of these, there is theory to be studied and practice to be undertaken. In a plural society like India, the judge has to be sensitive to the interests of minorities and careful about the language in which communications are made.

Finally, judgement writing is an art and a science which should be learnt and perfected to the extent possible. Language and communication skills are essential in this regard. Note taking intelligently in the course of the trial and questions put to counsel during arguments are helpful tips in sharpening the thinking and organizing the thoughts for writing a reasoned judgment. Findings of fact are the essence of the exercise.

Exercise of contempt powers and management of public relations have become important in contemporary times and the judge will be well advised to know the patterns and limits of such aspects. In the course of the proceedings, a trial judge may have to manage a number of other professionals and it will be wise to acquire necessary knowledge about them and their functioning. These include the police and prosecuting departments, the jail and correctional staff, the Bar Councils and the media persons.

 

 

 

13.8.6(3) (e) Legal Aid, A.D.R. and Judicial Administration :

The changes in judicial proceedings brought about by the Legal Services Authority Act, the Arbitration and Conciliation Act and similar local legislations are of considerable significance. Increasingly alternate methods of dispute settlement are being invoked by parties which are to be encouraged and institutionalised by presiding officers of courts. If imaginatively integrated, ADRs can revolutionize administration of justice and help reduce arrears and delay, two major causes for popular dissatisfaction with the system. As such, judicial training should give adequate attention to ADRs and equip the judges to lend their weight on its popular use. Equally, the concept of legal aid cannot be reduced to giving a lawyer to represent the poor. It involves settlement through Lok Adalat, public legal education, public interest litigation, law reform and giving the system a human face. In all these aspects, the judge should have sympathy and understanding to be able to direct better access to the poor and marginalised sections of people.

Judicial administration involves a total knowledge of administrative, budgetting and accounting systems associated with courts on which presiding officers have responsibilities and functions to perform. It includes disciplinary powers over staff and accountability to superior courts. The law relating to service matters has to be acquainted with by the judge. Administration is different from management and the judge should know the distinctions and their implications.

13.8.6(4) Technology, Modernisation and Change :

Two courses of 3 credits each are included under the theme of technology and modernisation. The challenge of the next millenium arises from science and technology. To the extent institutions of governance can absorb and respond to the technological revolution, to that extent, it can do great public good. If they do not, they can as well retard progress and inhibit human and social development. Judiciary is no exception to this emerging truth.

It is distressing to find that judiciary continues to be the one major institution in society untouched by the three revolutions of modern times, namely, technological, communication and management related changes. The most obvious example is the non-use of computers in judicial work. Procedures are archaic and they are made worse by outmoded administrative and management systems. Perhaps a beginning can be made with the training of future judicial officers. Two courses in this regard are recommended at the induction stage.

It is to be noted that the First National Judicial Pay Commission has accepted the recommendations of The Indian Institute of Management, Bangalore for large scale induction of Information Technology in judicial proceedings, its use in managing legal information systems, case flows, and networking.

13.8.6.4 (a) COMPUTERS IN JUDICIAL WORK :

It is not necessary any more to make out a case for the induction of computers and information technology in judiciary and in administration of justice. Substantial time during training in the Academy should be given for familiarity in computer use not just as a word processor but in legal research using the internet and in case and docket management using appropriate softwares. The potential of video technology in expediting trials may be demonstrated so that the trainees are aware of it even if it is impractical in the immediate future.

All project reports in different courses at the training must be prepared by individual trainees in his or her personal computers. This would give them at the end of training period complete confidence in its use and would pursuade them to prefer dictating to the computer rather than using stenographers and intermediaries who are, any way, increasingly becoming scarce in judicial administration.

 

 

13.8.6(4) (b) Science and Technology in Judiciary :

Apart from computers and information technology, there are emerging areas where judicial work interfaces with different facets of science and technology which constantly change life on earth. Issues for which there are no precedents and are not susceptible to conventional styles of adjudication are being brought before courts and tribunals for resolution. Intellectual Property disputes, environmental disputes and disputes arising from bio-technology are illustrative of this emerging scenario. It will be suicidal to let future judges assume positions of power without even elementary knowledge on technology and technology-related laws which are increasingly becoming common place in society. Environmental litigation is already very much part of judicial

work and mere knowledge of environmental laws does not help in dispute settlement. Of course, no lawyer or judge can become an expert on these branches of knowledge; what is expected of them is an informed understanding of the impact of science on life and, wherever possible, an ability to become critical consumers of scientific knowledges without which dispensation of justice in certain disputes will be difficult and dangerous.

The law of evidence is likely to undergo radical changes with standardization of new technologies. The judge will be handicapped if he is unable to appreciate the probative value of new standards and concepts of evidence. The entire technology of DNA printing is an accepted method of proof today in contested parentage and similar disputes. Genetics and reproductive technologies are throwing new light on several questions of fact in which ordinary inferences are no more acceptable. It looks as though the 21st century will herald radical changes in our understanding of human behaviour through inventions in biological sciences rather than in social sciences. Naturally, law, concerned with human behaviour, has to mend fences with biology and bio-technology in more significant ways than hitherto before.

There are many more areas of law and medicine which can be suggested as possible candidates for inclusion in the syllabus of this course. Suffice it to say that a progressive training institution will keep its agenda open and continuously upgrade its instruction materials and methods with a view to train what may be called the scientific man with judicial acumen.

13.8.6(5) Judicial Ethics and Accountability :

Two short courses each of 2 credits only are recommended to cover this theme in the training curriculum. Given the fact that complaints against individual judges are increasing and standards of accountability are diluting, it is imperative for judiciary to make an honest effort to put its house in order. The lower courts are institutions in contact with the common people all the time and they administer justice to the vast majority of litigant public. As such, the conduct of judges in subordinate courts is constantly exposed to public scrutiny and assessment. This makes it imperative for trial judges to be more and more professional in their approaches and transparent in their dealings. The code of ethics is not just the Judges' Service Conduct Rules or immunity provisions. It involves goals to which judges have to aspire for, individually and collectively to command public allegiance and judicial majesty.

The method of implementing judicial discipline and correcting erring judges should be fair and known to each and every member of the judiciary. Keeping the ultimate value of independence of judiciary and the need for protecting legitimate rights and privileges of judges, the course should aim at not only inculcating the principles of judicial ethics but also in enhancing the sense of satisfaction of judging which every professional should normally get.

Supervision of subordinate courts is an important task which does not receive today the attention it deserves. It is not necessarily personal supervision which tend to disrupt judicial work and consume lot of time and resources. It is possible through appropriate standards, periodical work auditing procedures, surprise checks, occasional meetings and friendly pursuasion to extract higher productivity and greater efficiency from individual judicial officers. It is important that while entering service and periodically thereafter, judges receive instruction on accountability systems and procedures so that they become catalysts in their professional development. It may not be possible to get accountability through conventional methods of showing displeasure or demonstrative authority for causing harm. It is important that internal mechanisms of correction and discipline are strong in the judiciary. Peer-group justice can be of help, but only to a limited extent in the present circumstances. Prevention is better than cure and this is possible if the problem is always kept in focus in judicial conferences and collective efforts are initiated to correct and reform.

13.8.6(6) Select Problems in Society and Role of Judiciary:

This is an omnibus course which should help to round up the year-long training, relating judicial role to larger issues in society. Though courts are concerned only with disputes brought before it, judges as conscience-keepers of society responsible for justice and rule of law, ought to have a balanced view of events seeking change in established values and practices. Not all problems in society seek legal solutions; those that do, may not find solutions within the strict framework of established law. However, they do come back again and again in different forms and shapes compelling the legal community to respond with new tools and fresh strategies. This is a grey area of jurisprudence in which policy and law get inextricably mixed up challenging the judicial process for solutions.

Courts cannot deny remedies when there is injustice and violation of rights. Compensation for violation of fundamental rights is an example of such judicial response, despite the fact that it is not written into the Constitution and the laws. The history of Common Law is a vivid illustration of judicial initiatives in promoting legal developments.

The prospects of innovative and creative use of law by lower courts becomes clear from Municipal Council, Ratlam vs. Vardhichand1. The Magistrate invoked the powers under section 133 Cr.P.C. and gave directions to the Municipality which were not only upheld but applauded by the Supreme Court. The court added that judicial process is not to be confined to adjudicatory functions but to be adapted to affirmative actions to make remedies effective. Social justice delivery is not merely the duty of superior courts though they do have extensive powers in this regard. Subordinate courts can do a great deal if they are informed, equipped and motivated. This course should provide the technology and educate them of the appropriate use of judicial process outside the strict adjudication function for which the Procedure Codes have endowed them with powers. Ensuring tort consciousness on municipal authorities by reminding them of their statutory functions is a job which lower courts can well attempt. Chapter XIV of the Indian Penal Code deals with public health offences. What often surfaces in courts as nuisance cases are really community problems particularly of the poor and downtrodden. It is in this context the induction training should impart training on how to use judicial power imaginatively and responsibly to the solutions for which they are intended.

The idea of having a course like this is to enable the trainee judges to have a retrospect of judicial history in social and legal developments. It will serve several purposes in training the judicial mind. It will give him an understanding of the positive and negative roles which courts played in the past in shaping human destiny. It will give him a sense of pride in belonging to a profession which is critical in directing and moderating change for public good. It can also educate the young judge about the limits of law and the need for caution and restraint while dealing with larger issues of life and development.

 

 


1. AIR 1980 S.C. 1622 .

 

By its very nature, this course can only be taught as a Seminar in which the topics for research and presentation shall be left to the choice of the trainees themselves. Besides using methods of empirical research, the trainee will struggle to innovate solutions keeping in mind the limitations of the legal and judicial processes. He may have to make ethical decisions and assume value premises in writing reports which reflect the extent of moderation and restraint he might have learnt during the training. In defending his opinion during presentation, he will learn to respect others' views, how to be responsible even when you are critical and how to cultivate intellectual honesty.

The Seminar paper and its defense will provide a useful tool to the trainer to assess the extent of learning and to instruct the person concerned of his strengths and weaknesses as a person and as a judge. Good papers can be polished and published which will encourage judges to think creatively and act responsibly in professional work. Respect for scholarship and motivation to learn and unlearn continuously throughout life have to become part of a conscientious and competent judge.

The Seminar should form the beginning of the continuing education programme of every judge graduating from the judicial academies.

13.8.7 Syllabi, Teaching Plans and Reading Materials

It is tempting for a teacher to prepare the detailed syllabus for each of the fourteen courses in the Induction Training curriculum and impose it uniformly on those assigned to teach those subjects in the Academies. This is precisely what is happening in many centres of higher education today. The result is non-involvement and indifference on the part of teachers actually teaching the subjects who may have different ideas sometimes far superior to those prescribed. It tends to inhibit creativity and innovation. It arrests the growth of curriculum development and tends to maintain items which are out of date. A good and enterprising trainer has to have the freedom to design the syllabus of the subject he teaches and select the materials to be used for teaching/learning and conduct the teaching through methods which he considers appropriate. The broad curricular goals and the subjects to be included in it must be sufficient to give him the intended results to be achieved by training. Similarly the specific objects identified for each subject should convey to him his responsibilities vis--vis those subjects in the total scheme of things. Of course, he needs to interact with others teaching other parts of the curriculum to achieve co-ordination and integration. He should subject his course design, teaching plans and study materials for critical scrutiny by the entire faculty and other experts. Once such an exercise is done, it should be left to him to do the best he is capable of in accomplishing the objects of the course in the training programme.

There are ready made syllabii available for all the courses in the literature produced by judicial training academies from around the world. They may be consulted, but not copied blindly. Individual teachers might commit mistakes; it is better that they are corrected by themselves rather than prevent them from venturing this essential step by producing a syllabus authored by somebody outside without his participation. It is therefore expected of teachers in judicial academies to design the syllabii themselves in the light of the objects and scope explained in the earlier paragraphs of this chapter.

Another practice which should be institutionalised in the Academy is to get every teacher prepare a teaching plan at the commencement of each course every year for each subject. The teaching plan should contain (a) an introduction of the subject and its importance; (b) the specific objects to be achieved by studying it in the total training programme in terms of knowledges and skills; (c) the content of the subject to be studied organized into specific modules supported by essential and recommended reading materials for each module; (d) the period of time apportioned for each module; and (e) the method of teaching and assessment proposed. A teacher making such a plan for the whole subject will necessarily has to do his home work well and convey his scheme clearly to the trainees in advance. He will have a responsibility to adhere to the plan as well. Students will know in advance what is in store each week, prepare for each session and can monitor the progress of teaching/learning course-wise. It will help organize the plan of study by each trainee and promote self study for the really enterprising amongst them.

The reading materials may either be put together or referred to with appropriate citations so that the trainees can reach them easily in the Library. The discussions in the class room will be more focussed and analytical. The quality and quantity of learning will be discernibly superior if the teaching plan system is honestly implemented.

If each State Academy were to evolve such syllabii around the six major themes identified for induction training, it could be compared and refined by the National Judicial Academy for consideration of the trainers in the succeeding year.

13.8.8 Practical Training through Field Placement

As per the curriculum proposed here, four months of training for every fresh recruit to judicial service, is to be spent in the field under supervision. At present there is no uniform pattern in this regard. Admittedly, this is the segment which gives the trainee hands on experience which shapes his attitudes, imparts the skills and endows the confidence more than any other component of training. However, to achieve the intended results, the practical training through field placement has to be carefully prepared on an individualised basis and imaginatively implemented under supervision. This involves enormous organizational and monitoring work which demands all the ingenuity and enterprise of the faculty in charge of training.

Since individualised schedule and supervision has to be arranged, it is advisable to have 10 trainees only under each teacher. The teachers involved have to get together and draw up the various components of training which are common to all and those specific items relevant to identified groups of individuals. The pattern followed in the LBS Academy of Administration, Mussorie for training of IAS Probationers can provide some useful tips in the designing of the programme using maximum available resources and opportunities for learning.

It is desirable to identify specific goals of learning while in placement with police department, jail administration, district administration and with senior judges or administrators in the court system. It is important to be selective in identifying the personnel in these departments to whom the trainees are deputed as they can make or mar the programme. They should appreciate the scheme and the goals to be achieved and should be willing to share the responsibilities for instruction and guidance. The placement training scheme for senior students adopted by the National Law School of India, Bangalore may be revealing and instructive in this regard.

Occasional workshops at periodical intervals during the field placement will help to clarify doubts, assess the progress of learning, correct distortions, if any, and strengthen the programme mid-course appropriately. It also helps to integrate field experience with what is learnt in class room and to reflect on the gulf between theory and practice. Further, it enables trainees to learn from each others' experience and to moderate perceptions of law and life. Self-study can be encouraged by workshops and group exercises with limited guidance from the Faculty.

A good strategy for developing successful individualised field placement schedule is to consult the candidate concerned and accommodate his suggestions to the extent possible. Documenting the experiences systematically which are examined by the superior periodically is a good strategy to augment the learning experience.

The final two months of training at the Academy is a crucial period to consolidate and internalise all the learning to which a trainee is exposed both in class room and in the field. The Seminar courses proposed during the period and the projects he writes at that time are bound to be productive and instructive.

A final point recommended here is to consider advising those who do not make the grade to continue in the Academy for another course of training. Perhaps, a fourth of each batch may need to have retraining if the quality is to be controlled and standards are to be improved.