Developing the Judicial Education Discourse 938108257X, 9789381082577

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DEVELOPING THE JUDICIAL EDUCATION DISCOURSE by Geeta Oberol, 123; E-M, Pind; Commonwealth Split Site Scholar

First Edition, 2013

Foreword

by

Prof. Upendra Baxi, Emeritus Professor, University of Warwick and Delhi EE

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DEDICATION This dissertation, results from my five years research in India and abroad, is dedicated first and foremost to Almighty my mother Goddess for blessing me constantly, answering my many many | prayers, creating opportunities for me to facilitate’ the writing and. research work. I further want to dedicate this thesis to all the teachers who have taught me right from my school days to the university level for each of them had a unique contribution in raising the intellect level to the next stage.

I also want to dedicate this thesis to my employers from the past to present that comprises university professors, advisors, judges and consultants under whom I have worked in different capacities and learned a lot. I must dedicate this work to my supervisors whose liberal minds, motivation, and constant support is responsible for the work that I have come out with. Last but not the least, this dissertation owes a lot ,to my; parents

who are no more, but who brought me into this world; to my sister who is always there for me; to my friends who have supported me even in rough weather by providing every kind of help that I would demand of them; and to my dear pets whose unconditional love and simultaneously great expectations from me, keeps the urge to excel in me alive all the time. |

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FOREWORD L In this admirable work, Dr. Geeta Oberoi brings home the multiplex meanings of judicial ‘education’ in the Indian and comparative settings. She speaks to us not merely as a judicial educator — until recently she was the Additional Director, Maharashtra State Judicial Academy and on the faculty of the National Judicial Academy at Bhopal — but also as painstaking student of the recent developments in the spheres of judicial educational institutions and programmes worldwide. The ‘insider’ perspective stands here both enriched and moderated by conscientious comparative research and a sincere concern for the future of judicial education in India. This work traces in some fine detail the evolution of the conceptions of judicial education. While it is true that the national level acceleration of concern with judicial training and education coincides with Indian experiences of judicial and juridical globalization, it remains necessary to recall the importance of such an endeavour was underscored as early as the 14th Indian Law Commission Report in 1958, and was specifically programatized by 117th Law Commission Report in 1987.’ This, more or less fully said, we learn from this work reasons why

conceptualizing judicial education is no easy task. Dr. Oberoi insists that we speak with Michel Foucault about ‘judicial education discourse’ that makes a call towards a better understanding of knowledge/power relationships entailed in the current wave of institutionalizing Indian Judicial Academies. This discourse is characterized by many events, which the work in your hands fully traces.

Several concerns thus stand posed. Well over a century ago, Justice Oliver Wendell Holms, Jr., poignantly reminded us that what we all need is ‘education in the obvious’. He also observed that a ‘child’s education’ should ‘at least begin atleast one |. I had the privilege to assist Justice D.A. Desai in the writing of this Report, especially as regards the curriculum and pedagogy of judicial education. no nee

ee ———

———

—

hundred years before he[she] is born’. As concerns

this second

observation, it is clear that judicial education in India will take a long time before it delivers any system-wide desired result. Further, there is a danger that over-professionalization of judicial education may erode ‘education in the obvious’!

Let us recall the fact that in the wake of an Open Letter to the Chief Justice of India concerning the Mathura Case’, Justice Krishna Iyer remarked from the High Bench that an ‘ounce’ of judicial sensitivity and sensibility is worth ‘tons’ of ‘law’ reform.

To recall these gifted insights is not to doubt at all the importance of professionalized judicial education; rather, I suggest than an over-specialized imagery its tasks may result in ignoring the cultivation of that sense of the ‘obvious’ and ‘sensibility’. I read this work at least as partially reinforcing this message. IL This work offers many a narrative contrast between judicial training and education. No doubt, ‘training’ of judicial officers (or as the author names it upfront, and enchantingly, as the judicial ‘workforce’) is an important dimension of whatever one may wish to designate by their ‘education’. One must resist any inclination towards a curt gesture of dismissal of this lowly word ‘training’; yet at the same moment one may not identify ‘training’ as altogether exhaustive of ‘education’.

The tasks of training remain crucial as directed at imparting varied endowments sets of basic competencies and skills. These range widely. The invisible dimension here consists of day to day management

sensibility

of court

(‘human

bureaucracies;

touch’)

in human

this

surely

relationships

calls

for

between

justices and their staff. Further, the quotidian styles of courtroom

management entail skills of docket management all too often disrupted and stymied by the rather asymmetrical Bench-Bar relationships. More difficult terrains are presented, and increasingly stridently, by the voices of disgruntled and wounded citizenry, now all too often accentuated by celebrated TV anchors and even some correspondents and editors of the print media. How farjudicial training programmes may ever fully address these multiplex tasks is a question, perhaps best pursued now alongside with this learned treatise.

—

2. See, Upendra Baxi, Vasudha Dhagamwar, Ragunath Kelkar, and Lotika Hr ‘An Open Letter to the Chief Justice of India’ (1979) 4 SCC (Jour) 17. £)

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We must, however, note that judicial education severely regarded as ‘training’ carries certain human rights and rule of law costs as well, if at the threshold this signifies that only those who join the judicial service require training and not the upper echelons of adjudicators and further that only senior appellate justices may be thought as most qualified to impart training. I return to a consideration of these ‘costs’ in my concluding observations.

But, surely, judicial education is more than ‘training’. Put another way, it must be at least training-plus. Dr. Oberoi presents many images of judicial education as exceeding ‘training’: fascinating for me at least remain her meditations concerning the question whether, and how far, justices may be said to fully constitute a ‘learned profession’. Whatever may be our responses to this question, it surely remains important to ask whether our Justices are learning beings. Surely, belonging to a learned profession implies a quotient of certified learning: the question here goes deeper: how far, when, how much, and from whom the upper echelon justices may learn /unlearn from the non-judicial others? This question is not as esoteric as it may appear at the first sight; indeed, there is sufficient evidence that most justices do imbibe such learning: how else how may one grasp the rise and spread of social action litigation (SAL) still miscalled public interest litigation(PIL)? Yet, vast disagreements also persist. In the Indian contexts, Justice Krishna Iyer was moved to contrast ‘populist activists’ justices from others merely designated as the ‘shopkeepers of legal justice.’ I do not know whether this distinction is fully brought to view by the current custodians of Indian judicial education in the Indian Judicial Academy ‘classrooms’.

This question goes to the heart of judicial education curricula and pedagogies. Both ‘populists’ and ‘shopkeepers’ differ among themselves and with each other. Uneasy coalitions among these Brethren also remain ineluctable: the ‘populists’ need to often carry the ‘shopkeepers’ with them; yet exigencies of judicial decision-making coalitions entail trade-offs between the ‘populist, and ‘shopkeeper’ justices. The dire and everyday necessity for agreed and stable outcomes, forbids always any quest for a high order of ideological consistency. Considerations of institutional integrity and prestige often mutate, though almost never silence, the power of the activist judicial voice. ne

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Not to be ignored, further, is the judicial ambition to speak to the inevitably finite future of constitutional interpretation. Both the ‘shopkeepers of justice’ as well the ‘populist activists’ strive to address the uncertain promise of Indian constitutionalism. Both understand their role as exceeding the production of fungible decisional outcomes that somehow ‘settle’ the instant case or controversy.

Apex Justices, further, aspire always and everywhere to an achievement of a degree of interpretive immortality. However, only the activists volubly articulate this ambition in terms of crafting a legacy that fosters their own distinctive pre-commitment to higher constitutional values, virtues, and visions. Other Justices

seek to speak rather inaudibly to the future of interpretation but their gentle resignation to the imperatives of institutional integrity of the judicial process and power is not to always to be readily assimilated

with judicial

restaintivism,

passivism,

or even

abdication. They craft the future legacy through the discipline, and force, of stare decisis, within which alone their own versions

of constitutional histories.

values may find a secure

niche into future

Both sorts of Justices routinely accept that their demise from the high Bench exhausts their power to speak to the future of interpretation; upon retirement they rarely articulate the guardianship of their interpretational legacy. Krishna Iyer furnishes the only Indian exception; he has emerged as an articulate public critic and invi gilator of his successors. For him life off the Bench is as important, perhaps even more, as life on the Bench because populist activism is not exhausted by acts of political grace that elevates a citizen to an apex Justice; rather, he believes that Judging the justices is a perennial constitutional estate of all conscientious citizens. Today, this message remains poignantly pertinent as India’s eminent contemporary Justices remain more inclined towards a structural adjustment of judicial activism, in tandem with the macroeconomic changes that now, for weal or woe, define the Indian globalization; a eeeSF

3. See, for further analysis, Upendra Baxi, ‘The Promise and Peril of Transcendental Jurisprudence: Justice Krishna lyer’s Combat with the Production of Rightlessness in India’ in Human Rights , Justice & Constitutional Empowerment, at pp. 3-25 (Delhi, Oxford University Press: C. Raj Kumar and K.

Chockalingam, Ed., 2007). -———asstiinenntiensekigslainibaiainai ical

IL How may then would be educators of justices address this internal dialogue, and often juridical warfare, amongst our Apex Justices? This work seeks to transpose the tasks of understanding in the languages of curricula and pedagogies for judicial education. It raises as well some future anxieties about our ways of imparting professional ‘education’ which often tends to desensitizes us all to our responsiveness and responsibility the voices of human and social suffering. Unlike

most

other learned professions,

adjudicators

wield, and

often capture the commanding heights of sovereign power and function over citizens and persons within their jurisdiction with regard to their liberty and even life. How may our imagination of judicial education discourse extend fully to Indian adjudicature? How may the ‘educators’ and the ‘educatees’ carry forward the message that courts and judges may not take human rights seriously without taking human suffering seriously?

To add a further remark: it would be an egregious error in the contemporary moment of Indian judicial education discourse to disregard the not-so-distant pastimes (as also the present moments) of judicial education. Much before the current and voguish rush towards inventing and installing the superior wisdoms of Indian judicial academies flourished networks of institutions that aspired to serve the same goals, I have in view here the programmes variously sited at the National Indian Police Academy, the Lal Bahadur Sastri Institute, the Indian Institute of Public Administration, the National Institute of Criminology and Forensic Sciences, the National Labour Institute, and the National Social Defence Institute. My own engagement with these varied programmes of judicial learning suggests a distinctive vantage point: these institutions put dialogically together district justices, prosecutors, senior police officials, and academic experts. The current phase of judicial academies, and to say the very least, seem to rupture, rather than reinforce, these ways of fashioning communities of co-

learning. I sincerely hope that this diagnosis remains misplaced. At any rate, readers of this work may benefit from a rich recall of these initiatives.

IV. The work in your hands, and despite its length, carries many messages requiring patient and anxious ways of reading by all constitutionally sincere citizens. It suggests that learned nae

professions remain so only when they share a common ideal — the pursuit of lifelong learning. This holds especially true about judges who wield the sovereign power of state The upper echelon of Indian judiciary recognizes the need for judicial ‘training’ for fresh recruits and district judiciary; it presides, quite often indifferently, over the destinies of the ever proliferating Indian judicial academies. Yet, very few judges of Indian High Courts and the Supreme Court have the humility (and here exceptions prove the rule) to submit themselves to continuing judicial education programs. A bare mention of this fact remains unfortunately necessary, if only because the manner in which judicial education may be imparted remains deeply affected by such hierarchy-based exceptions.

Upper echelon judges practice their own distinctive pedagogy directed towards their lower echelon Brethren. Their habits of admonition from the High Bench errant judges ‘below’ and often even to a point of passing severe strictures, often carry over to their assumed role as leaders of judicial education. This is unfortunate in many ways, as this work so fully demonstrates.

A certain order of incredulity thus prevails when an overt immunity from judicial education stands proclaimed by the upper echelon justices. I have heard many district judges frankly say to me in personal conversations that the upper echelon justices also stand in dire need of judicial education. Hierarchies of adjudicative power are necessary, yet these do not justify the upper echelon judiciary’s penchant to recuse themselves from continuing judicial education. I say this with a full sense of appreciation of the National Judicial Academy judicial education programmes for the Indian High Court judges ; yet many of them whispered to me (much in the same way as the District Judges) that the Supreme Court justices ought themselves avail an opportunity of a similar exposure!

All this points, even if anecdotally, to an obvio us social fact: cultures of judicial education forfeit much of their potential when these promote vertical rather than horizontal learning experience. Indeed, more than any cadre of justices, our upper echelon Justices ought to be exposed to innovati ve exposures of judicial education, if only because in their long afterlife (upon superannuation) they continue to serve the Nation variously — as

=e inl ill ad ie

Chairpersons of human rights institutions, law commissions, Lokpal, regulatory agencies, tribunals also inclusive of the Green Bench, commissions of enquiry and much else besides. Truth to say, their eminent prior adjudicatory experience does not necessarily equip them either with energy or vision to fully address

their new

tasks and mandates.

If so, how

further may

attempts at judicial education reach out to these adjudicatory beings in their afterlives?

If the present judicial education initiatives and institutions are destined at all fully to serve the much wounded, hurt, harmed, India’s worst—off citizens, such initiatives need, and starkly put here, to reinvent their promise, and its distinctive future itineraries

and pathways. Perhaps, then, this work may be best read as mapping the next best moves ahead?

New Delhi 30th December, 2012

Upendra Baxi Emeritus Professor,

University of Warwick and Delhi January 7, 2013

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ACKNOWLEDGEMENT My acknowledgement is going to be unusually long for large number of trainers, judges, consultants, scholars, university professors, and senior advisors in the justice department have helped in writing my doctoral thesis on judicial education which is converted into the present book.

I should begin by recording my greatest debt to Prof. Upendra Baxi who was generous enough to agree online to supervise my

doctoral thesis even though we had never met. I could apply for the Commonwealth Split Site Scholarship only because he sent me a scanned letter accepting to be my supervisor till I could find any alternative in the UK University where I was applying. As a commonwealth scholar, I got an opportunity to study for one year at the University of Warwick, UK and I was supervised by Ann Stewart from the School of Law over there. Even with Ann being my co-supervisor, I would often trouble Prof. Upendra Baxi with my drafts and doubts and he was gracious and generous to take time from his busy schedule. He helped me by challenging my assumptions and presumptions about education discourse and judicial profession. He would always ask me about an applicability of my research in the context of judicial culture and reality that prevails in India.

Prof. Upendra Baxi’s constant concern for doctoral thesis on judicial education by asking me every time I met him in Delhi in 20092010 as to how much I have done, how much writing and research is still left, what are obstacles in getting the work completed led to completion of the research in time granted by the Delhi University. I was fortunate that I met Prof. Upendra Baxi and got to know Prema Baxi during pursuit of researching and writing the dissertation on judicial education discourse which I convert into this book.

I must acknowledge all the support I got from my supervisors: Justice Arjan Sikri and Ann Stewart. Justice Arjan Sikri, then the senior judge of the high court at Delhi was my supervisor for all five years that went into writing of doctoral thesis which is now presented as a book. Ann Stewart, senior professor from the School of Law, EE

——————————————

University of Warwick, UK was my co-supervisor from year 2008. Three qualities that I found common to both of them were: liberal mindset, motivating and accommodative to others’ viewpoints. These

qualities helped me to grow intellectually and improved what and how I perceived my experience as well that of others. Justice Arjan Sikri, even though extremely busy being very senior judge of the High Court always took out time to go through every draft of all the chapters written for the doctoral dissertation which forms the basis of this book. Many a time, he pointed out the serious

errors that I had committed, corrected my presumptions about the judicial profession, and provided me the contacts and resources to get my facts corrected. He always encouraged me to obtain suggestions and critiques from experts in the field, other judges, senior academic scholars, from all over the world, and he would, before every reading

of the draft, ask me if ] had incorporated suggestions, comments and changes suggested by co-supervisor Ann Stewart and those from Prof. Upendra Baxi.

It is indeed rare to get a supervisor who motivates you to write well, who is liberal enough to accommodate others’ viewpoints in the dissertation,

who

provides

necessary

resources

and

contacts

from

which more information can be obtained for writing the dissertation. Through this book, I express my sincere thanks and gratitude to Justice Arjan Sikri, his family members and his office staff who all

provided

me

access

to his office

in the court,

his office

at the

residence as well as allowed me to access the library of the high court.

I am grateful to Ann my co-supervisor for all the support provided to me — right from backing my application for the scholarship to my stay in England, her Supervision kept my research in progress. She prepared me for the interviews, allowed adjustment in some classes when I had a meetings in London, checked my drafts,

made me understand the relevance of the whole process of theoriza tion on the judicial education discourse for purpose of writing dissertation. Her own project on judicial education designed for Indian judges on the subject of gender justice trainings and her travels to India for purpose of evaluation of the trainings done for Indian judges ensured that I was guided by a person who was in complet e command Over the various issues that are actually faced in the discourse of training of professionals like judges. One additional quality of Ann Stewart that made me do quality work was that she is one hard task master who knows how to bring the best out of you. I miss my fortnightly meetings with her on my dissertati on which is now this book.

sinte al r aaa Fat

I must acknowledge the help rendered by two highly placed individuals who took pain to go through my drafts word by word, line by line for each chapter presented in this work. They are: Dory Reiling, Vice President of Amsterdam District Court, the Netherlands and Professor Kate Malleson, School of Law, Queen Mary University of London. I am captivated by their dedication to the discipline of judicial studies, judicial institutions, and judicial education. These two women, I consider in very high regard for they have taken their precious time for me, read my chapters, suggested changes, questioned me on my opinions, corrected me so many times, brought to my notice how I was drifting and not being coherent many a time, helped me

to be sober at times

in my

writings

and criticisms,

and even

provided me alternate views from the literature that I was relying on to form my views.

I met Dory Reiling very recently when I was in the Hague to work for the Oxfam Novib as external consultant on the Right to Food Project. I had Dory Reiling as my Linkedin friend and I told her that I would be in the Hague for certain months. So in the Hague I took time from the judge to meet her at the Amsterdam district court but as the fate would have it, I met an accident and was advised bed rest

cancelling all my appointments. It was greatness of this judge who on learning that I would not be in position to travel Amsterdam, came to meet me at Dan Haag (The Hague). She was already carrying my manuscripts with her notes and comments for me! I wonder how fortunate I have been in writing this dissertation. Since then she has kept constant touch, always replying to my emails and provided comments on every draft within period of seven days. I just consider her my angel and if anything good is about this work, it is due to angels like her that I met in pursuit of my research. Dory has helped me greatly in this work and there are not enough words with me to acknowledge her time, efforts, and even the speed with which she answers back queries. She introduced me to Rosa Jansen who helped me understand the judicial professionalization in the Netherland and the role of SSR21 engaged in providing judicial education over there.

It was Ann Stewart my co-supervisor who led me to discover my second angel: Prof. Kate Malleson. Prof. Malleson is an authority on judicial appointment and judicial education in England. She arranged meeting for me with two senior Professors from her university who worked on social system theory given by German philosopher Niklas Luhmann. This meeting was extremely helpful in refining principal hypothesis of my dissertation on judicial education which was till a

then: Judicial education — a system of discourse resulting from the structural coupling between two different autopoietic systems =] judiciary as a part of legal system and education system. Before this meeting, I wanted to explore how structural coupling between the two autopoietic systems —- legal system and education system — can result in judicial education discourse to professionalise judges. However after my meeting with Professors Richard and David who work on the social system theory it became clear to me that it would be difficult for me to accommodate this beautiful theory in my journey to discover the potential of the judicial education discourse. Prof. Kate Malleson helped me in toning down the language so many times so as not to alienate readers. Her suggestions have improved my work which is presented as this book. I acknowledge Livingston Armytage, founding Director, Centre for Judicial Studies, Australia as his work has greatly influenced and inspired me to write on the subject of judicial education. I have been closely following his writings and I am great admirer of his initiatives of using the discourse of judicial training to bring systematic judicial reforms in different parts of the world.

I acknowledge Prof. Mohan Gopal for his efforts in all directions to bring judicial reforms through the JE discourse. His initiatives at the National Judicial Academy, Bhopal, India helped me to understand the extent to which judicial reforms can be undertaken through the medium of the training discourse. The moment he resumed the charge of director of the National Judicial Academy, Bhopal he took on the problems of delay and high pendency with the courts, developed best practices throughout country through the judicial education discourse, then successfully tackled the problem of languishing infrastructure of the courts and decentralized judicial education centres in the country by raising infrastructure budgets, then introduced the Subject of management in the judicial education discourse providing judiciary knowhow for integrating techniques of management in their courts, then realizing the judicial biases and prejudices and Subjectivity inherent in decision making process, he moved on to develop the sense of constitutionalism in 14000 subordinat e judicial officers in various parts of country and who till this course was introduced

to then, used

the constitution

only

as an

oath

taking

document. He even integrated ancient scriptures, freedom struggle movement and history of the country to make his points for making judges abide by the constitutional morality and give up their personal morality in the dispute resolution process. It is enjoyable to listen to

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a

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him in the training discourse and to a large extent he has pied piper qualities in him. I need to acknowledge support and encouragement of four justices who have always encouraged and motivated me and helped me many a time not to fall into depression for slow movement of things around me. Justice M. Jagannadha Rao, Justice Ruma Pal, Justice B.N. Srikrishna from India and Justice Dr. Ananda Bhattarai from Nepal have been very generous and kind to me. I owe a lot to them for all the help extended to me. I am indebted to Derk Byvanck, Corporate Social Responsibility advisor Oxfam Novib, Oxfam Hong Kong for making me part of his Right to Food Project team in the Hague. He is a wonderful and dedicated soul who travels all over the world raising concerns over the corporate crimes that deprive people of livelihood and basic amenities. My work for him in which I got to investigate on 31 countries around the globe, their constitutions, their policies and their judiciaries and its human right protection record, made me realized how narrow was my conceptualization on the globalization and how many points I was missing in my chapter 6 on the globalization of the JE discourse. This project helped me to rewrite chapter six on globalisation of the JE discourse afresh. I dedicate chapter six therefore to Derk Byvanck for giving me wonderful opportunity to be part of his team and Prof. Upendra Baxi who introduced me to the work opportunity with Derk.

I also acknowledge

herein help provided by Jorge Carrera,

Executive Director, Permanent Secretariat at Latin American Summit of

the Judiciary, with respect to chapter three on the state of judicial professionalization in Spain and the contribution of judicial school to it.

I acknowledge the help rendered by both Harold Epineuse and Antoine Garapon from the Institut des Hautes Etudes sur la Justice,

who clarified my doubts on the judicial professionalization issue in France, provided me letter of invitation to travel to Paris to interview them and visit the ENM. I am grateful to Judge Barbara Rothstein Director and Mira GurArie, Director, International Judicial Relations, at the Federal Judicial

Centre, Washington and Beth Johnson, Mira’s assistant for providing me research help, answering all the queries that I have put to them, and also for extending six month judicial fellowship at the FJC Washington to me. a

I am grateful to Dario Quintavalle, expert Niveau I at B&S Europe, for correcting my perspectives on Italian judiciary and judicial professionalization issue over there. Without his help I would have committed mistakes in the book. I am grateful to Jill Goski, Director of Education and Organization Development,

State

Court

Administrator’s

Office

at Minnesota

Supreme Court in the US for answering all queries from me which all forms part of various chapters. I am thankful to Justice Madan B. Lokur now judge of the Supreme Court of India and Justice Roshan Dalvi, Judge of Bombay High Court for providing comments on the first chapter of the dissertation on judicial education which is now first chapter of the ; present book.

I acknowledge the help I took from Justice K. Chandru from Madras High Court, Justice Akil Kureshi of Gujarat High Court and Justice P.K. Balasubramaniam former judge of the Supreme Court of India who answered my questionnaire on the workload on Indian judges which is enclosed as Annexure IV at page 290 of this book. I am grateful for the help.

I must acknowledge sharing of programme methodologies by Professor Steve Simon, Clinical Professor at University of Minnesota Law School in the US. Prof. Simon conducts Judicial Trial Skills Training Programs for new trial Court judges in Minnesota. He has trained more than 1000 judges. He makes the use of a simulation to teach Evidence course for new judges. He also teaches this course at the National Judicial College as part of their two General Jurisdi ction Course. Prof. Simon shared his best practices with me, answered my doubts and queries within time. His training methodologie s were helpful in writing chapter 4 of the present book. I am thankful to some institutions which facilitated my research and interest in the judicial education discourse. These are, first and the foremost University of Delhi and Departme nt of Law and the Deans: Prof. Nomita Agarwal, Prof. S.N. Singh and Prof. Gurdip Singh — who all helped in the completion of this disse rtation in one way or the other. Prof. Nomita Agarwal believed in the utility value of doctoral work on the discourse of judicial education and allowed me to register as a doctoral candidate under her, Prof. S.N. Singh allowed me to pursue my research in the UK as a commonwe alth split site scholar for this dissertation. Prof. Gurdip Singh extended time for the final submission, abstract submission when requested.

spemrremecrrnri= senha

I owe lot to the National worked from 2004 to 2008. The judicial education discourse. Had the National Judicial Academy, undertake such difficult subject

I owe This book scholarship ssion to do

Judicial Academy, Bhopal where I institution kindled my interest in the it been not for the employment with Bhopal, I would not have dared to for my dissertation.

greatly to the Commonwealth Scholarship Commission. is based on dissertation which was completed due to the awarded to me by the Commonwealth Scholarship Commione year research in the UK. I also need to acknowledge

the work done by the British Council, New Delhi staff for all scholars

like me, cheering all of us, building community of commonwealth scholars, arranging number of get together functions for all of us when we were in England. All that made us felt very special those days. Special thanks to our award administrators from the Commission: Jocelyn Law and Anna O’Flynn. Not to forgot Vishu Sharma from the British Council, New Delhi who made so many arrangements for all of us: Alice in Wonderlands. I am extremely grateful to the Judicial Studies Board of England and Wales now Judicial College for opportunities extended to me to be part of their trainings at Scarman House at the University of Warwick. I am grateful to the staff of the JSB: Kathleen Turner, Alexandra Cohen, and Lusengo Patience, and the then Director of the JSB, Judge John Phillips, former chairpersons Lord Justice David Keene and Lord Justice Maurice Kay. I am thankful to all of them for giving interviews, opportunity to spend time at the JSB to understand how

the JSB

operates,

and to attend

training programs

on civil,

commercial and criminal laws. I am

indebted

to the School

of law, University

of Warwick,

Coventry, UK for helping me to grow intellectually by providing numerous doors to enrich the thought process. Research classes at the School of law enhanced necessary skills of research, writing, communication, interviewing and, negotiating. Classes by professors of the Law School like George Meszaros, Andrew Williams, Shaheen Ali, Lee Bridges, Victor Tadros, Ralf Rogowski, also helped in research undertaken to write doctoral thesis which is presented as this book.

My classmates at the School of Law: Helen, Joanne, Rajnara, Faiza, Linzin, Andrew, Ulf, Faiza, Musa and my seniors Abou, Lawan,

Chicosa, RaoRaza, Shahbaz Cheema, Yazan, Vidya deserve special mention for making life happy and stay comfortable.

I also acknowledge Professor Philip Langbroek, Professor of Justice Administration and Judicial organi-zation, Utrecht University, ne

LEED

the Netherlands who provided comments on chapter two for improving it and Markus Zimmer, advisor to the Indonesian Supreme Court for helping me improve chapter seven of this book. I acknowledge Executive

the help provided

Director, Australian

Institute

by Gregory

Reinhardt,

of Judicial Administration,

Melbourne, Australia and Mary Young from Monash University, Australia who improved my understanding on the JE discourse in Australia.

I am grateful to Justice Manju Goel for encouraging me to apply for the Commonwealth Scholarship and it was on her suggestion alone, I thought of availing the Commonwealth Split Site scholarship which helped me to do exclusive research on this subject.

I must acknowledge contribution of the linkedin group Justice Society Group founded by Pim Albers, Sr. Policy advisor where all justice sector professionals get chance to share their individual experiences with respect to judicial matters. The frank and open debates and discussions on this platform were helpful in many respects for writing of this book.

Last but not the least, my friends — Arif, Adila, Anju, Anurag,

Gurujit, Lipika, Nidhi,

Paiker, Raza,

Suvendu,

Sharad,

Shamshad,

Shahbaz and Umaira deserve special mention as they were with me in the journey called life. New Delhi 30th December, 2012

Geeta Oberoi

LIST OF ABBREVIATIONS The American Bar Association Annual Confidential Report Asian Development Bank Analysis, Design, Development, Implementation and Evaluation) African Economic Community Court of Justice ASEAN Intergovernmental Commission on Human Rights The Australian Institute of Judicial Administration

American Judicature Society

Arab Maghreb Union Court of Justice Attention, Relevance, Satisfaction

Asbestos-related Association

Confidence,

and

disease

of Southeast Nations

Alien Tort Claims Act

African Union Court of Justice of the African Union

Bosnia and Herzegovina

BTDC

Bench Training Development Committee

CAHWCA

Canada’s Crimes Against Humanity and War Crimes Act

CGPJ

the Spanish judicial self-governing body, Consejo general del poder judicial

ne

CJ-CM

UE EEE

Chief Justice-Chief Minister Conference

organized annually in India Commonwealth Judicial Education Institute, Canada

Canadian Learning Network Project Centre on Housing Rights and Evictions Court the Common Market for Eastern and Southern Africa Court of Justice

Council of Europe Continuing Professional Development

Court-level plans for timely justice A Committee of the Italian Higher Council of the Judiciary Civil Society Organization Corporate Social Responsibility Critical Self-reflection of Assumptions UK Department for International Development Deoxyribonucleic acid

East African Court of Justice Economic Community ECCAS CCJ

Economic Community for Central African States Community Court of Justice

ECHR

European convention on Human

EC]

European Court of Justice

ECOWAS CCJ

Economic Community for West African States Community Court of Justice

ECtHR

European Court of Human Rights European Institute of Public Administration

EIPA

Rights

European Judicial Training Network Ecole de la Magistrature Academy of European Lawin Trier. Germany

minnesota

ETAC

The Equal Treatment Advisory Committee

European Union Freedom, Equality, Dignity, Equity and Fairness Female Genital Mutilation The Federal Judicial Centre (Washington)

Federal Judicial Television Network Family Training Development Committee

Genetically Modified Government of India International Criminal court

Information and communication International Criminal Tribunal for the

Former Yugoslavia Individualized Education Plan

Inner London Youth Training Development Committee

International Monitory Fund Information Management System for the Administration of Justice

International Organization for Judicial Trainers IPR

Intellectual Property Rights

ISD

Instructional Systems Design

J&K Bank Ltd.

Jammu and Kashmir Bank Limited

JE

Judicial Education

JSB

Judicial Studies Board, England and Wales

Judicial Training Legal Education lesbian, gay, bisexual, trans-sexual Bachelor in Law

He ee NRE eee eee

———————————————————————————6g

LMS/CMS

Learning management system/course management system

LRW

Legal Research and Writing

MATC

Magistrates ‘Area Training Committee

MBTI

The Myers-Briggs Type Indicator

MIDH

Mouvement Ivorien des Droits Humains

MoJ

Ministry of Justice

NASJE

The National Association Educators

NDPS

Narcotics Drugs and Psychotropic Substances

NGO

Non-governmental Organization

NJA

National Judicial Academy (Bhopal)

NJC

The National Judicial College (Australia)

NJCA

The National Judicial College (Australia)

NJEP

National Judicial Education Program

NJI

National Judicial Institute (Canada)

OAS

Organization of American States

OECD

Organization for Economic Co-operation and Development

OPJK

Ontology of Professional Judicial Knowledge

OTC

Oriental Timber Company

PIL

Public Interest Litigations

PMTJ

Planning and Management Timely Justice

PROMIS

Project to improve explanation of the grounds of criminal judgments

PUCL

People’s Union for Civil Liberties (human rights organisation

PUDR

of State Judicial

System for

in India)

People’s Union for Democratic Rights (Indian NGO)

Research and Development tlh

ROL

Rule of Law

RTC

Royal Timber Company

RTI

Right to Information

SADC

Tribunal

Southern African Development Community Tribunal

SBI

State Bank of India

SERAP

Socio-Economic Project

Rights Accountability

Special Economic Zones Stichting Studiecentrum Rechtspleging, the Netherlands

Training needs assessment Universal Declaration of Human Rights

United Kingdom United Nations United Nations Development Programme United Nations Office on Drugs and Crime United States of America United States of America Working Alliance The World Bank WTO

World Trade Organization

CONTENTS CHAPTER ONE THE ROLE OF THE JUDICIAL EDUCATION DISCOURSE

itroductiont. sv cs recess tire sys ere Ceara ee ee: Judicial recognition to the need for having a discourse............. The inter-disciplinary perspective on the utility of trainings eet Ue eee enter ane re eens) What is meant by judicial education or judicial training?.......... Training versus education: nomenclature conflict .................... Adding the suffix discourse to avoid the “training versus education” nomenclature! ConPich. /7...:4.g6-ty cs-dseones ses 03 Justifying financial implications of the JE discourse................. 1. To understand role of a judge in democratic governance PRAMIOWOEK oe tarts aed ee ect nae etna Me pens estes: 2. To clarify the difference between the law and justice...... 3. To shred colonial hangover to meet challenges of changed cicumslances,.«.)i:, dcamoreg fof thet esere.ene. 4. To equip courts for developments unleashed in other GISCAPINIOS »seb, deny SRR ORI Te IO BE soc gh cg nes ysolink 5. To solve the problem of delay and arrears....................0. 6. To provide justice to poor in urban, rural and INACCESSIDIC- ALCAS NORA dS oa: te RRO Macc nor opiesesbncsrsesses 7. To remove subjectivity and prejudices ...............eeeeeeees 8. To remove. the judicial gender.O1as 2).1.5,5...2atekt 19.2Re8: (1) Selection of women for the judging work............... (2) Decision making on issues related to women.......... (3) Professional harassment of women in the courts.....

9. To provide professional skills for judging ...............:006 10. To upgrade The Regal BGUuCaiOD 8 ilies tsesccccsssemsezserss CCACHEIES 5 seiner dhe eee eee

aa

as aE

OTe

a

Discourse on Judicial Education

XXVIli

CHAPTER TWO WHY AIMING FOR PROFESSIONALIZATION THROUGH THE JUDICIAL EDUCATION DISCOURSE?

ao eda eee seca ed CULO oon eR gs sca Beate sei 2s... s..sassevsesoaonee 1. Understanding thesprotessions: 2. AN ee ne cons son ceese ss ohne 1: WiHOUs. a OPOHESSIOR 1.2 What is professionalism all about?............0 eee 1.3 What is referred to as professionalization?.............. 1.4 Differentiating profession from career and (oP UTOfa0) | UPN EDS dtr he aoe te Re RRO 2-2 NS JUG SeSRID ATO LCS SOI aS geek ascertains 2.1 Ghe-atinibutes Of a prolesSiOn coco... .c-aikersshesctscamyouss 2.2 Can the judiciary be categorised as a profession? ... 2.3 Which attributes of a profession are internalized BY UGB OS uh rete antennae test craven 2.3.1 Intellectual activity and the Knowledge Basen... 2A SU Oe OE Sea, RENEE, Be Dose EUNPIMGNS PEOFCSSION. has four functions under this enabling statute: (i) to research and study the operation of the federal court system; (ii) to develop improved techniques of judicial administration; (iii) to stimulate, create and conduct programs of continuing education and training for all personnel of the federal judiciary; (iv) to provide staff, research

Contd. .....

44.

significantly influenced not only philosophy but also political-legal thought, sociology, communication studies, argumentation theory and _ rhetoric, developmental psychology and theology. Andrew Edgar. Habermas: The Key Concepts. Routledge: London, 2006.

45.

Federal Judicial Centre Act, 28 U.S.C.§620 et. seq. (1970).

16

Discourse on Judicial Education

and planning assistance to the judicial conference of the US and its committees. Justifying financial implications of the JE discourse

The developinent and dissemination of the JE discourse has financial implications. It requires R&D investment, physical infrastructure, maintenance

cost, travel expenses

for trainees and trainers,

boarding-lodging, daily expenses on food, stay, medical care, ac The state has to provide for all the expenses as private investment is seen as a threat to an impartial and an independent character of judiciary.*7 However, such investment by the state may be questioned as to why should the public money be invested in this costly affair, which is not going to generate any revenue on the lines of investments made in other sectors? To justify the cost involved for the JE discourse, various situations are covered herein below which call for judicial trainings. This cost-benefit analysis not only establishes the reasons for undertaking such huge ‘not for profit’ investments, but also provides us an outline of the possible content of the discourse. Herein below, therefore, an attempt is to list all such situations: I.

To understand framework

role

of a judge

in democratic

governance

Democracy works when citizens and the most marginalized people have the capacity to ask questions, seek accountability from the state and participate in the process of governance. Democracy becomes meaningful when people can shape the State and the State in turn, creates enabling social, political, economic and legal conditions ———

46.

47.

a

ae

NJA, India is provided Rupees 8.60 crores as Reven ue Expenditure for the year 2008-9. For the previous year — 2007-8, this grant stood at rupees 6.75 crores — provided by the Department of Justic e, Government of India. Whereas Himachal Pradesh State Judicial Acade my located at Shimla was allocated a budget of Rupees 45, 47, 141 for the financial year 2006-2007, by the State Government of Himachal Pradesh out of which it utilized Rupees 39, 16, 894 for the same year on salary, wages, travel, office expenses, medical reimbursements, motor vehicles, rent-taxes, maintenance and other miscellaneous expenses. In the US, members of the Senate proposed the Judicial Education Reform Actto regulate the attendance of judges at privately-funded educational seminars. The Kerry — Feigngold Bill 2000 led to the Judicial Education Reform Act of 2000, S. 2990, 106th Cong. (2000) (prohibiting judges from accepting “anything of value in connection with a seminar’). See Thomas M. Nickel, ‘Judges Deserve Access to Educa tional Opportunities’, 49 Fed. Law (2002) 56, 57-58; Bruce Green. ‘May Judges Attend Privately Funded Educational Programs? Should Judicial Education be Privatized?: Questions of Judicial Ethics and Policy’, 29 Ford ham Urb. L.J.. (2002) at 941,

Chap.

1—The Role of the Judicial Education Discourse

17

wherein people can exercise their rights and achieve freedom from fear and want. Democracy is not merely elections or universal adult franchise. Democracy involves dignity, diversity, dissent and development. Unless the last person can celebrate his or her sense of dignity, exercise democratic dissent and involve themselves in the process of governance

and development, democracy becomes an empty rhetoric.*8

In a democratic framework of governance, the role of the judiciary is to protect the constitution and thereby the democracy itself.*? Legal systems with formal constitutions impose this task on judges, but judges have been playing this role even within the legal systems with no formal constitution, as evident from the judicial records.

Judicial records from all over the world reveal an interesting relationship between character of judiciary and the democracy. A strong and meaningful democracy is found to exist in nations with independent, impartial and competent judiciary, whereas for nations where judiciary merely operates as an agent of the government, the democracy loses all its meaning. Judiciaries

in Israel, UK,

USA,

South

Africa

and India have

strongly defended the democratic principles and therefore these nations have emerged as stronger democracies. The highest courts in these nations have not hesitated in invalidating laws and policies of the elected governments and executives that had potential to relegate democratic principles. In Israel, the Supreme Court invalidated an agreement between two political parties that had provisions saying that if the status quo on religious issue is violated by judiciary, the same

would be nullified by appropriate legislation.°° It also prohibited the Israeli

Security

Services

from

using physical

abuse

of suspected

terrorists during interrogation.°! In the UK, the Court of Appeal rejected the Government’s defence that America’s actions were simply not justiciable before the English Courts and allowed Ferroz Abbassi, a British citizen detained at Gauntanamo Bay, to challenge the Government’s inaction.°2 In the US, after 9/11, more than 600 persons perceived as threat to the US security were detained at Guantanamo Bay and for more than 2 and % years they had no access to the legal

48. 49.

50.

51. 52.

Citizens’ Report on Governance and Development. Social Watch India: New Delhi, 2004. Aharon Barak. The Judge In A Democracy. Princeton University Press : USA, 2006 at 20. H.C. 5364/94, Velner vs. Chairman ofIsraeli Labor Party, 49 (1) P.D. 758, 791. 38 International Legal Materials (1999) at 1471. Abbassi vs. Secretary of State for Foreign and Commonwealth Affairs : 42 International Legal Materials, (2003) at 358.

18

Discourse on Judicial Education

representation, nor to any court of law or tribunal.°? However, the US Supreme Court intervened and handed down landmark ruling Rasul et al. vs. Bush*4, by six votes to three, holding that the US federal courts do have jurisdiction to determine the legality of the executive’s potentially indefinite detention of individuals held at Guantanamo who claimed to be wholly innocent of wrongdoing. The majority applied the historical principles of habeas corpus from the English law. In South Africa, the racist separation at the base of apartheid was grounded in a statute. The Appellate Division of South Africa held that the statute was unconstitutional because it contradicted legislation of a

higher normative level.°> To overcome this decision, the legislature

enacted a second statute that provided appeal to the Parliament. The Appellate Division reviewed this second statute that again allowed racism and declared it unconstitutional on the ground that it infringed upon the authority of the courts to exercise judicial review.°° In India, the Supreme Court of India has developed the basic structure doctrine

that limits the power of the Parliament to amend the constitution.57

Due to this doctrine the parliament can only fundamental rights chapter but cannot subtract mentioned therein. This doctrine has given the tremendous power to supervise the law Parliament.

add more rights in the any of the rights already constitutional courts the making power of the

In nations where judiciary operates as an agent of the government?’ giving up its equal status among the three branches of representative democracy (judiciary, executive, and legislative), not only democracy is compromised to larger extent, but also judiciary in turn loses its legitimacy. For instance, take the case of Latin American states. The courts in these jurisdictions enforced the authority of the ruling elite, rather than to equitably interpret the laws of the land. The result was that judges lost authority to issue legal edicts or interpretations without the fear of reprisal from the executive and legislat ive branches and from the omnipresent church authority. Instead they were used as a pawn in conflicts among political and economic elites with

ee

53.

54.

ef

ie

Philippe Sands. Lawless Worid: America And The Making And Breaking of

Global Rules. Penguin Books : England, 2005 at 2. 159 L.Ed. 2d 548 (2004),

.

55. 56. 57.

Harris vs. The Minister of Interior, 1951 (2) SA 428 (A). Minister of Interior vs. Harris, 1952 (4) SA 769. His Holiness Kesavananda Bharati vs. The State of Kerala and Others. AIR 1973 SC 1461.

58.

In the agency model, the judge is an agent of the Legislature. He must act according to its instructions, just as a junior officer is bound to carry out the orders of his superior officer. See Barak supra n. 51 at 16,

Chap.

1—The Role of the Judicial Education Discourse

19

judges often the recipients of political favors.*° The courts began to be filled with political appointments owing their loyalty to individual presidents and political parties. Higher court judges by and large came from the same oligarchic circles, and shared the same economic and class interests. The judiciary was left to its own devices as long as the courts towed the party line. Given the assumption that the courts were rubber stamp of the executive authority and would justify every executive actions, the courts lost the respect of citizens. The lack of judicial will to interfere with executive actions made the judiciary a victim of its own tendencies for self-preservation. The infrastructure languished to the degree that it failed to assert itself as an equal branch

of government.®? In Venezuela, President Hugo Chavez took a highly aggressive stance on reforming judiciary by removing hundreds of judges during the summer of 1999. This shake-up was in reaction to atrocious conditions in a court system in which “/t]/hree-fourths of Venezuela’s inmates have never had their day in court,” and “[h]ighDower jay firms wrote verdicts themselves and bribed judges to sign them.”

Before the fall of communism

in the Soviet Union, “telephone

justice” prevailed.®* It was not the monetary bribes that tainted the justice, but instructions given to members of the judiciary by the Communist Party officials. If a case was considered by the Party to be significant, the judge would get a phone call with instructions on how to decide it. The Party was the supreme source of authority and judges

were rubber stamps who would carry out the Party instructions.°? The Sri Lankan judiciary, in contrast to its immediate neighbor India, could not prevent political and executive branch from replacing the constitution adopted after its independence in the year 1948. The new constitutions reduced its powers. The judiciary in Sri Lanka, unlike its neighbors in India and Pakistan, could not also develop a rule to force the government to consult it in matters of judicial appointments, nor could it develop a norm for predictable promotion by seniority. Its inactions in these matters have left lot of space for manipulation in judicial appointments and pro-

59.

60. 61.

62.

63.

See Inter-American Development Bank, Would You Trust This Court?, http://www. iadb.org/exr.htm (visited on Nov. 30, 1999). Linn Hammergren, ‘USAID’s experience with justice reform projects in Latin America’, Carnegie Paper No. 28, June 28, 2002. Luz Estella Nagle, ‘The Cinderella of Government: Judicial Reform In Latin America’, 30 California Western International Law Journal, (2000) at 345. David K. Shipler, Perspectives: Four Futures for Russia. The Guardian Newspaper: London, May 1, 1993 at 18. Jane R. Roth, ‘Judging in New Born Democracies’, 54 Ohio State Law Journal, (1993) at 1109.

20

Discourse on Judicial Education

motions.®4 Judges of the highest courts hold the position at the pleasure of the Presidents. President Jayewardene indirectly dismissed the entire higher judiciary and appointed new judges under the new Constitution. Many judges lost seniority and the tenure of office but showed no

protest to the government.® The Supreme Court of Japan, known in Japanese as the Saiko Saibansho, is considered the most conservative constitutional court in

the world for it almost never challenges the government and shares the ideological views and preferences of Japan’s long-ruling conservative party, the Liberal Democratic Party. It has steadfastly avoided ruling upon the merits of constitutional challenges to Japan’s military activities and security arrangements under Article 9 of the Kenpo, the postwar constitution, which explicitly prohibits the maintenance of armed forces or other “war potential.” Since its creation in 1947, the court has struck down only 8 statutes on constitutional grounds. By way of comparison, Germany’s constitutional court, which was

established several years later, has struck down over 600 laws.©

The 2008 Amnesty International report indicts Nigerian judiciary for failing to ensure that ail inmates are tried within reasonable time, for not informing inmates upon their conviction about their right to appeal, for not guaranteeing suspects who cannot afford, legal representation, for not allowing the use of evidence elicited as a result of torture, for not guaranteeing fair trial standards even in the case of minors.°’ The case of Niger proves that weak democracy is a direct result of judiciary lacking independence, competence and other core values. A key historical lesson of the Holocaust is that the people, through their representatives, can destroy democracy and human rights. Since the Holocaust, all of us have learned that the human rights are the core of substantive democracy, the protection of which cannot be left only in

the hands of the legislature and the executive, which, by their nature,

reflect majority opinion. Consequently, the question of the role of the judicial branch in a democracy arises.°8 The JE discourse therefore has to step in to clarify the role of judges in democracies. It has to assist the 64. 65.

66. 67.

68.

Sri Lanka’s judiciary: Politicized courts, compromise d rights, International Crisis Group Asia Report no. 172, June 2009. Sri Lanka and independence of judiciary. Sunda y Observer (Sri Lanka). le The Associated Newspapers of Ceylon Ltd. : Colom bo: 8 June David S. Law, ‘The Anatomy of a Conservati ve Court: Judicial Review in Japan’, Texas Law Review 2009. Sabella Ogbobode Abidde, The Messy State of the Our Judiciary [analysis]. All Africa Newspaper, Nigeria, 8 April 2010. Barak, n. 49.

Chap.

1—The Role of the Judicial Education Discourse

21

judges in understanding their role in the governance structure of a democracy so that the previous judicial errors are not repeated and the constitutional responsibilities at all levels are complied with. Judges need to be equipped for preventing an abusive state action and for contributing to the meaningful citizenship and civil entitlement. The JE discourse has to raise judicial awareness to responsibilities placed by the present times when more and more political, economic, social and personal questions are entering the courts. The limitation of the austinian presumption about law as command of the sovereign has to be exposed to help the judges to come out of the narrow constructions placed on their own role. The JE discourse has to prepare judges for the tensions in democracy between different branches of the government.®?

In India, policy-makers and law-enforcers are perceived as apathetic, if not corrupt, and politicians are perceived as opportunistic

demagogues rather than visionary leaders’°, putting on the courts, tremendous responsibilities wherein citizenry view them as ‘ast resort

for the oppressed and bewildered.’ The judicial response to citizenry is very difficult to be labeled in one category or the other and it swings like a pendulum — from one end of acting as a political agent to another end showing judicial activism by legislating for helping the citizens. There are enough judicial decisions that exemplify how judges in India view themselves as simply an agency of the political branch of government and think that fidelity to the political views, whether

conservative or liberal, is an important part of their role.’* Also, there 69.

Because if there will be no conflict and no tension, according to Aharon Barak, the court will not be fulfilling its constitutional role. See Aharon Barak, ‘Viewpoint’, 88 JUDICATURE 2005 at 199.

70.

71. 72.

Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations in the Geography of (In)justice’, in Fifty Years of The Supreme Court of India: Its Grasp And Reach (ed.) by Kusum and Verma. OUP: New Delhi, 2000 at 156157. State of Rajasthan v Union of India, (1979) 3 SCC 634, 670 (per Goswami J.). For instance, after 2000, despite the diverse grounds on which the challenges have been made against large infrastructural projects, the general response of the courts to such litigation has been conservative. The courts have largely taken the view that considerations of environmental impact of a project, or economic and financial considerations raised, or technical issues and policy matters, should be best left to the expert authorities of the executive. Also, even though judges have tremendous power, in particular in Public Interest Litigations (PIL), to design innovative solutions, direct policy changes, catalyze law-making, reprimand officials and enforce orders, of late, the courts have started reducing their powers. This has been in accordance with the conservative trend of the courts that suits other branches of the Government. In 1988. based on a Full Court meeting, the Supreme Court of India devised guidelines to deal with PILs. These guidelines aim at ensuring that PILs are widely representative, broadly equitable, effective, sustainable and consistent. http://www.supremecourtofindia.nic.in/pilguidelines. pdf [visited on 20th July 2008}.

22

Discourse on Judicial Education

are equal number of precedents wherein the judiciary has confronted the other two branches — legislature and executive to protect the democracy, uphold the rule of law, and made these two branches and

itself accountable to people.”

To make judges aware of expectations from them in a democracy, in India, the JE institutes are developing the training programmes to orient the judges at all levels on their role and responsibilities under the constitution to strengthen the democracy. In these programmes, judges are demonstrated how the lack of understanding about their role can result in poor judgments and the denial of justice. These programmes help judges to dispel the notion that the courts have umpire like function which does not allow them to inquire into proprietory of action taken by the legislature or the executive.4 73.

Judges have curtailed the vast powers of amendment of the constitution that could have almost introduced different constitution than that of intended by the framers and freedom fighters, imported the class litigation concept in India and amended it further so that even an envelope could start court action, issued directions to pretect the environment and natural resources from corrupt commercial and political interests, legislated laws for vulnerable — women at workplace or the LGBT community. 74. For instance take the case of Sadhu Singh vs. Delhi Administration, AIR 1966 SC 91. Sadhu Singh was detained under Rule 30(1)(b) of the Defence of India Rules. The District Magistrate swore an affidavit that he was satisfied that Sadhu Singh was indulging in anti-social activities and the activities of the petitioner was prejudicial to the maintenance of public order and that it was necessary to detain him. The petitioner challenged the facts and the jurisdiction. The Supreme Court held that making of an order under Rule 30(1)(b) proceeds upon the subjective satisfaction of the prescribed authority relating to matters enumerated in the said Rule. The satisfaction of the authority is not subject to judicial review, for the order of detention is pre-eminently an executive act. Once the subjective satisfaction of the detaining authority, a condition of the making of the order, is shown to exist, the courts cannot enquire into the sufficiency of materials on which the order is made or into the propriety or expediency of the order. What is determinative of the validity is the satisfaction of the prescribed authority. In Kasturi Lal vs. State of U.P., (AIR 1965 SC 1039), the plaintiff was arrested by the police officer in Uttar Pradesh (U.P.) on suspicion of possessing stolen property and in a search of his person a large quantity of gold was seized under the provisions of Code of Criminal Procedure. Ultimately he was released but the gold seized could not be returned as the head constable in-charge of the Malkhana had absconded with valuable property including the gold seized from the plaintiff. The plaintiff brought a suit against the State of U.P. for the return of the gold or in the alternative a claim for damage for the loss caused to him. The Supreme Court found that the evidence disclosed that the police officers had not followed the provisions of U.P. Police Regulations in taking care of the gold seized, the act of negligence was committed by the police officer while dealing with the property of the plaintiff. But the Supreme Court held that powers to arrest a person, to search him, to seize his property can be characterized as sovereign powers and therefore the claim for damages against sovereign powers cannot be sustained.

Chap. 1—The Role of the Judicial Education Discourse 2.

23

To clarify the difference between the law and justice

The judge in a democracy is charged with two simultaneous jobs s/he has to bridge the gap between law and society and also, s/he has to give expression to the new developments taking place like development of new legal theories that change conceptions of things, developments at the international level where treaties and conventions are ousting jurisdiction of domestic courts slowly in number of important matters, developments caused by the change occurring in people’s lives whether in relationships, trade, engagements. This gap cannot be bridged if judges continue to view themselves from the angle of formalism according to which the office of the judge was ‘to declare and interpret and

not to make law’.’> It falls upon the JE discourse to acquaint judges with the contrary view taken by proponents

of realist school that

recognizes the creative role for the judiciary.’® There is a plenty of legal literature which the JE discourse needs to utilize to help judges appreciate the difference between law and justice. One can take recourse to the literature available in legal and sociological disciplines to devise courses for judges. For instance, the NJA in Bhopal, India relying on the work by author Gobind Das who takes the view that “Jf one subjected to the legal process is satisfied, the same order must be just. Justice may probably be said to consist of the x-ness in the system that satisfies those that are subject to the

process’”’'’? —

revised this x-ness propounded by Gobind Das and

devised a new equation: L+X = J. This equation is part of the JE discourse in India and the judicial training institutions are helping judges to internalize this equation so as to help them in their judicial decision making work. In this L stands for law, J stands for justice and X is power of interpretation vested with the judge. X, the power of a judge to interpret a statute can be used to bridge the gap between law and life’s changing reality. As to what all can form the ingredients of x-ness is an important question in itself. From the history of judicial decision making, one may say that compassion for humanity can be essential ingredient of xness. The lone dissenter in Plessy vs. Ferguson case’®, Justice John Harlan because of his compassion for those subjected to racial segre75. 16. 77. 78.

Authorities like Coke, Bacon and Blackstone took this view. To do the same, the discourse has to acquaint judges with works ofjurists

who view “the judge is a partner in creating this system of law.” See Barak, n. 49 at xviii. Gobind Das. Justice In India. Shangon & Shangon: Calcutta, 1976 at 96-97. 163 US 537 (1896).

24

Discourse on Judicial Education

gation, was able to appreciate the feelings of victims of racism and interpret the law to redress the racism. Prof. Mohan Gopal further decoded x-ness to restrict it to the constitutional morality in the form of FEDEF (freedom, equality, equity and fairness) so that judges do not resort to their own personal morality comprising their biases and prejudices in decision making process.

In the JE discourse developed in India therefore judges are provided a simple formula obtained from the legal theories that exist around us to help them avoid errors by resorting to personal morality in decision making process. Apart from the legal theory literature, judges are acquainted with judicial errors and how they got subsequently rectified by different interpretation of the same law. As an example, in 1986, the US Supreme Court held that a statute criminalizing consensual homosexual relations between adults was constitutional.7? Eighteen years thereafter, the US Supreme Court overturned its prior holding and stated that the Constitution bars legislation criminalizing consensual sexual relations between adults.8° The difference between these two decisions is not due to change in the Constitution but due to the change that occurred in American society which recognized

homosexuality.®! Similarly, the Indian Supreme Court in 1950, in the A.K. Gopalan case*? had refused to incorporate the due process doctrine, twenty eight years later in 1978, in Maneka Gandhi's case83,

the Court treated it as part of the basic structure of the Constitution. Therefore, law itself may not give justice. It is x-ness: the power of judge to bridge the gap between law and life’s changing reality that is responsible for good and bad justice. The JE discourse is needed to save judges from turning into robots,

applying sterile rules in a mechanical fashion.84 The JE discourse has

potential to dispel the misunderstanding about the idea of compassion coming in conflict with the fairness in justice delivery. The JE discourse is opportunity to bring to the judge’s notice that fairness requires the judge to be neutral and detached, but not so detached so as to be indifferent to the parties and their concerns. Instead, the judge must have an attentive and empathetic engagement or connection that allows 79.

80.

81.

82. 83. 84.

Bowers vs. Hardwick, 478 U.S. 186 (1986).

Lawrence vs. Texas, 123 S.Ct. 2472 (2003).

Robert Post, ‘Foreword: Fashioning The Legal Consti tution: Culture. Courts, And Law’, 117 Harvard Law Review 2003. AIR 1950 SC 27. AIR 1978 SC 597. Justice Joyce Kennard, ‘Why Justice Is More Than Law’. 83 Women Law Journal 1997 at 10.

Chap.

1—The Role of the Judicial Education Discourse

25

him or her to understand the point of view of each of the parties, their histories that led them into conflict, and their goals in resolving this conflict. 3.

To shred colonial circumstances

hangover

to meet

challenges

of changed

It has been repeatedly observed by several distinguished jurists, members of bar, academia, public, civil society groups, and judges themselves that judicial system has been very slow to respond to changes taking place around them. Chief Justice Warren Burger in his keynote address at the National Conference on the causes of popular dissatisfaction with the administration of justice, said: “In the final third of the century, we are still trying to operate courts with fundamentally the same basic methods, the same procedures, and the same machinery, Roscoe Pound said, were not good enough in 1906...” (Burger, 1976) Above observation of Justice Burger holds true for the Indian judiciary as well which in many respects failed to grow out of its colonial attitudes and methods. No doubt, the Indian Legal System owes its evolution, establishment, formation and even operation to its colonial past as the British introduced the English legal system in India for its stability and continuity. As noted by Das (1967), the present judges on the Bench need to be constantly reminded that these laws were transported from the land of the Thames to strengthen the colonial administration®> and only incidentally the colonial subjects were gifted with codes, rules, mode, method, language, designation, approach — to be adopted for the dispute resolution. However, after their exit, on attainment of independence, the Constitution was adopted which affords FEDEF to the people of India. Therefore the JE discourse has to engage judges to shred their colonial hangover and obsession with formalistic approach. Judges need to apply the colonial gifts inherited from the past in the context of broader framework of fundamental law of the nation.

It is debatable whether judiciary understands the difference between expectations from it in pre-independence era and postindependence era. For Das (1967) and Baxi (2002) there have been

failures in understanding this difference.8° Judiciary in pre-indepen-

85, 86.

Dasjmey7: Prof. Upendra Baxi has suggested that India should have its own variety of effective truth and reconciliation commission to redress grievances of those who are violated by political violence. This suggestion came after

observing that since independence courts have hardly provided successful

Contd. .....

Discourse on Judicial Education

26

dence era was helping the East India Company and its management to strengthen its administration; judiciary in post-independence era is seen as strengthening the administration of the corrupt legislative and executive authorities. Very few judges since independence have met the expectations envisaged in the Constitution. Very few have shown the courage to afford a relief from the callousness and inactions of the legislature and the executive.

The formalistic and technical approach adopted by the majority of judges in India led to the failure on their part to respond to major political, economic, social upheavals that upset and unsettle thousands for no fault of theirs. ' The best way to do away with the formalistic and technical judicial approach is to introduce a course in the history of judicial review in the JE discourse so that judges realize how from a time in history, where no court anywhere in the world could think of any right to nullify a law, history was created by Chief Justice Marshall in Marbury vs. Madison®’, which for the first time established the principle that the Supreme Court could declare an Act of Congress unconstitutional, therefore void, thus making the court, not the Congress the last authority on the validity of the law. Similarly, after Reynolds vs. Sims®®

and Baker vs. Carr®?, the argument that the Court should intervene in the political processes of the States became more thinkable.%° The history of judicial review has to expose judges to the pioneering efforts made by the judges in India: incorporating social justice mantra by justice Krishna Iyer, encouraging letter writing for court action by justice Bhagwati, introducing basic structure doctrine to curtail the parliament’s amendatory power in Keshavanand Bharti’s case?!, legislating judicially in absence of political and executive will to protect women against sexual harassment at workplace by Justice

J.S. Verma in Vishaka’s case?*, striking down eee ee ee

Eee

A

Pe

eae ht FU

es SR

laws criminalising

ee

ie ae

Gonid. =...

87. 88. 89. 90.

91.

92.

forum for those who have suffered from political violence. See U.Baxi, ‘The pees Gujarat Catastrophe’, Economic and Political Weekly, 2002 at 3519chek 5 U.S. 137 (1803). 377 U.S. 533 (1964). 369 U.S. 186 (1962). Jack M Balkin, ‘Bush V. Gore and The Boundary Between Law and Politics’, 110 Yale L.J. 2001 at 1407. Upendra Baxi, ‘A Known but an Indifferent Judge: Situating Ronald Dworkin in Contemporary Indian Jurisprudence’, 1 International Journal of Constitutional Law 2003 at 557. Vishaka and Ors. vs. State of Rajasthan and Ors., 1997 (6) SCC 241.

Chap.

1—The Role of the Judicial Education Discourse

sexuality of the LGBT Foundation case”, etc.

community

27

by Justice A.P.

Shah

in Naz

Apart from the history of judicial review, a critical studies approach also needs to be incorporated in the JE discourse to help judges shred their colonial hangover. This methodology can engage judges in bold and frank discussions on how court procedures are behind the times, prisons are filling faster, civil dockets are declining, big cases are going to arbitration, even leases and consumer agreements are providing for the arbitration to solve future disputes. Such methodology can help judges to search reasons for the trend of opting out of courts and to come in terms with the changing expectations of population from them and help them to respond satisfactorily. 4.

To equip courts for developments unleashed in other disciplines

Judges are now confronting issues that require more than the knowledge of law. Judges need to cross the walls of their discipline (law) and transgress into other disciplines (science, technology, politics, sociology, economics, engineering, efc.). Therefore judges need to be educated — not in the law but in the various fashionable theories and political orthodoxies which are current among feminists, environmentalists,

social

reformers,

deconstructionalists

to

understand

problems of many different kinds and from different angles.”4 In today’s complex and technologically-oriented society, as noted by Cheng (2007), scientific evidence surfaces in nearly every kind of litigation: product liability, medical malpractice, patents, criminal prosecution, and antitrust, just to name a few. Also, litigants use experts to prove causation, establish the standard of care, link suspects to (or exclude suspects from) crime scenes and assess damages.?> Further, problems related to complex issues that require knowledge of other disciplines may knock the doors of courts even before political and executive authorities have taken their stands on these issues.?° Newman

93. 94.

Naz Foundation vs. Govt. of NCT of Delhi, WP © No. 7455/2001. P. McGuiness, ‘No case for judgment by the Instant Lynch Mob’, 67 ALJ

95.

1993 at 324-5. Edward K. Cheng, ‘Independent Judicial Research In The Daubert Age’, 56

96.

Duke Law Journal 2007 at 1263. In State (N.C.T. of Delhi) vs. Navjot Sandhu@ Afsan Guru, 2005 (11) SCC 600. If judges had no knowledge as to how cellular records are stored in the computer and call details are generated by these computers, kept in the custody of mobile phone operators, they could not have appreciated the intricacies of evidence generated in Parliament attack case given by prose-

cution to establish link between the two accused persons involved in the attack.

28

Discourse on Judicial Education

(2000) provides how the fields of electronic information and DNAbased biology raise familiar issues of intellectual property and privacy in previously unexplored contexts leading to constitutional, personal, and commercial rights disputes.?’ If judges are to respond to these concerns, to find the truth in adjudication, they have to sufficiently understand the science and technology.

At present we are in the midst of a great national debate about genetically modified (GM) foods. Are they going to be harmful to the health of those who eat them? Will they damage the environment? Are they going to destroy our precious wildlife? Are they going to sabotage the purity of growing organic crops? Will they help to reduce Third World poverty? Every day the press carries stories on the subject with claims that one group of scientists contends that there is nothing to worry about while another Says that there must be a moratorium and a third says that the methodology used by the first group is flawed. The politicians then give their advice. The public is supposed to make up their minds on the basis of a combination of scary stories, half-digested science and conclusions stated without a legitimate basis. Members of the public may raise this sort of issue before the courts. It is not difficult to envisage a product liability or negligence claim on the basis that ingestion of GM food has caused an injury to health, or one by an organic farmer in nuisance that the purity and so the value of his crops has been damaged by pollen from a nearby field of GM crops. The courts would then have to appraise the scientific evidence of causation

which would be crucial to the outcome of the claim.°8

Judges without the support of the JE discourse would be remarkably ill-positioned to make the decision. Primarily trained in legal analysis, they are usually unfamiliar with the specialized information presented and they lack the background necessary to assess its reliability.°? An assessment of toxic tort and product liability claims may require knowledge of toxicology and epidemiology. An assessment of antitrust claims requires knowledge of a sophisticated statistical analysis. Certainly judges lack familiarity with the methodologies of toxicology and epidemiology. Getting past the scientific terminology and other idiosyncrasies of the scientific disciplines that find their way

97.

98.

99.

Pauline Newman, ‘Law And Science: The Testing of Justice’, 57 New York University Annual Survey of American Law 2000, at 419. Elizabeth Melville, John Melville Williams, ‘Science. Judges, Experts And The New Rules’, Journal of Personal Injury Litigation 1999 at 183-192 . See Craig Lee Montz, ‘Trial Judges as Scientific Gatekeepers After Daubert, Joiner, Kumho Tire, and Amended Rule 702: Is Anyone Still Seriously Buying This?’, 33 Uwla L. Rev. 2001 at 87. 110 (descri bing survey data showing that judges have little background in science),

Chap.

1—The Role of the Judicial Education Discourse

29

into litigation is a daunting task for a judge. At the same time, the experts, who are pre-screened and hired by the parties, invariably conflict with each other, offering the judge little help. Often, one expert steadfastly maintains that toxicological studies on mice are a wellaccepted method for determining carcinogenicity in humans, and the other expert flatly disagrees. This is known as the ‘battle of the

experts”! 00,

The JE discourse can prepare judges for this battle of experts and acquaint them with the information about emerging technologies and their potential to violate individuals’ rights. They can be imparted skills to access enough available information to fully understand the technologies and how they are being used, or could be used, to violate the law and exposed to scientific concepts and issues so as to be critical of the expert testimonies. This will improve the ability of judges to handle scientific evidence. Unlike external solutions, like taking the help of experts, efc., educative solutions keep decision making power firmly entrenched with the judge and allows the admissibility standard to remain flexible by shifting some of the burden to the judge’s own

understanding of science.!9! There is lot to be learnt from the FJC of USA in this regard. In 1994, the Center published the first edition of its Reference Manual on Scientific Evidence, to provide judges with a ready reference to information on areas of science that often find their way into litigation. The Center also included presentations on scientific evidence in its orientation programs for newly appointed judges and magistrates. In addition, the Center sends one or more faculty members to courts on request for “‘in-court” seminars, which deal with social issues presented by developments in genetics, statistical inferences and_ scientific

methodology.!°* The Center has also given a number of distancelearning broadcasts on specific topics of science, delivered over the Federal Judicial Television Network (FJTN). The FJTN is a network of satellite downlinks that the Administrative Office of the United States Courts has installed in some 300 courthouses around the country. It allows the judges to receive distance learning and informational programming from the studios and broadcast facilities that the Center operates in the Thurgood Marshall Federal Judiciary Building. A series of six programs on “Science in the Courtroom” includes lectures by scientists on topics such as epidemiology, toxicology, recombinant DNA and gene cloning and microbiology. These programs also include

101.

Beecher-Monas, Erica. “Blinded by Science: How Judges Avoid the Science in Scientific Evidence.” TEMP. L. REV., 1998, vol. 71: 55, 74, 75. Cheng, n. 95.

102.

Information obtained from Director, FJC, USA via e-mail.

100.

Discourse on Judicial Education

30

advice by judges on managing specific problems of expert testimony that arise in toxic tort litigation and patent litigation. Other distance education programs focus on the neurobiology and psychopharmacology of drug addiction. Recently, the Federal Judicial Center and the National Center for State Courts have collaborated with the Brooklyn Law School Center for Health, Science and Public Policy in a series of programs that examine evolving scientific issues, in order to assist judges in handling litigation in their courtrooms. The Center 1s also developing a new series of education programs, in collaboration with the American Association for the Advancement of Science and the National Center for State Courts, on emerging issues in neurobiology and law.

In India and in other jurisdictions of the world, the steps are taken for incorporating in the JE discourse science related issues!93, though the quality and content lags way behind those provided by the judicial educators of their American counterparts. But it is expected that in the coming years it will catch up. 5.

To solve the problem of delay and arrears

The estimated backlog of pending cases in the courts of India in July 2007 was — for subordinate courts 25 million cases and for

various high courts was 3.7 million cases.!°* These figures do keep changing every year but no substantial increase or decrease over the years has been recorded. The thirteenth finance commission of the government of India acknowledges that at present around 30 million

cases are pending in various courts of the country.!9°>

103.

104. 105.

NJA became operational in the year 2004. Out of 167 programmes — held till May 2008, total of 8 programmes were devoted to the theme of “Science and Law”, another 9 programmes dealt with some issues concerning this theme. This includes Summer Retreat for the Supreme Court Justices in July 2005— in which one whole day was devoted to science related issues. Doctors, scientists, engineers were called for discussing wide ranging issues. Himachal Pradesh State Judicial Academy from May 2006- March 2007 conducted 75 three day advanced courses and 3 induction trainings for judicial officers and ministerial staff of the courts in the State attended by 1187 participants. Out of these 10 programmes on Computer Usage and other IT dimensions were

for accounts clerks and another 9 for Civil Judges: 3 five day programmes on forensic sciences application were conducted for judges. The Supreme Court of India Annual Report, 2006-2007 at 8. Available online

on the official website. Improving Justice Delivery: Ready Reckoner on 13" Finance Commiss ion Grant, Government Orders and Guidelines Issued by the Government of

India: GOI, Ministry of Law and Justice, Department of Justice, New Delhi,

5" May 2011.

Chap.

1—The Role of the Judicial Education Discourse

31

In its 1975 decision in Southern Pacific Transportation Co. vs.

Stoot,'°® the Texas Supreme Court noted that the delay postpones the rectification of wrong and the vindication of the unjustly accused, crowds court dockets, increases litigants’ costs, pressurizes judges to take shortcuts, interferes with the prompt resolution of cases in which all parties are prepared, highlights the disorganization of the system, and increases the possibility of error in the fact-finding process. This observation has universal application. The JE discourse therefore needs to develop strategies for curbing the delay in the justice system. In India, the NJA, Bhopal from 2006 to 2008, conducted a total of 14 regional conference and 20 national conferences to raise awareness of the problem of delay in courts and helped judicial officers in developing the techniques for providing timely and responsive justice. These were distributed to all the judges in India to guide them as the best practices. Also, through these conferences, at various parts of India, it emerged that many kinds of infrastructural problems were acting as the root cause of the delay in the courts. The government was acquainted with these infrastructural problems by the Academy, which has since then increased the judicial budgets and provided funds to

improve the judicial infrastructure.!°7 6.

To provide justice to poor in urban, rural and inaccessible areas

With some notable exceptions, the general decision making trend shows judicial apathy, callousness, and disbelief for the problems and sufferings of the poor and those inhabiting in remote rural far off areas. Only good news that ignites some hope is that these trends operate for some period, then sink providing breather to the fortunate ones and then resurface. This cycle goes on. When such trends of judicial apathy, non-responsiveness, callousness operate, we get non-responsive judiciary that does not recognize social rights of citizens, or structural inequalities operating in the society, or economic marginalization that

in the words of Amartya Sen leads to capability deprivation.!° In fact,

we get judicial response that validate (i) land grabbing by corporate houses using the state machinery; (ii) privatization of basic services: air, water, health, sanitation, education making them unaffordable to majority of citizens; (iii) dilution of labour laws taking away equitable rights of workers and giving free ride to employers in all matters of employment.

106. 107. 108.

530 S.W.2d.930 (Tex. 1975). 13'° Finance Commission of the Department of Justice provides huge funds to do away with infrastructural problems. However, if the fund is not utilized wisely and effectively, the problems will remain as they are. Amartya Sen. Democracy As Freedom. Oxford Univ. Press : London, 1999 at 87.

Discourse on Judicial Education

32

The courts in India, have time and again shown lack of understanding and lack of balanced approach in disputes involving parties of

unequal standing. In 7.K. Rangarajan case!

in declaring that the

Tamil Nadu Government’s employees had no legal, moral, or equitable right to strike, the Supreme court of India failed to appreciate inequalities that exist between the state as an employer and its employees. The case introduced the concept of blanket ban on the right to strike in India, and since this judgment, hardly employees of the state or its instrumentalities have succeeded in their demands for better

working conditions. In Almitra Patel vs. Union of India'!°, the judge of Delhi High Court. held slums responsible for the solid waste problem

in cities!!!, whereas the statistics revealed that higher the income group,

greater

the

capacity

for generating

the

waste.

The

waste

generation per capita per day in Delhi is 420g for those in the high income group, 240g for those in the middle income group, 150g for those in the lower middie income group, and only 80g for those in the

slums.!!2 Even in cases brought to the courts for the protection of the environment, establish the fact that the courts in India have failed in balancing the right to clean environment against the right to livelihood

of the poor.!!3 The courts while giving the orders of closure of polluting industries!!*, have not paid any attention to the workers of these polluting industries and their families who are directly affected by such orders. The Court’s remarks often display much attention to the environmental issues that are of importance to urban dwellers, such as pollution, while showing relatively less attention to rural livelihoods, which are often intricately tied to the land and forests. The Supreme

Court of India in Narmada Bachao Andolan vs. Union of India'"9, makes this apparent when it opined that:

109.

110. 111. 112.

113.

114.

T.K. Rangarajan vs. Government of Tamil Nadu and Others, 2003 SOL Case No. 429. Writ Petition Number 888 of 1996. Order dated 15/02/2000. COW! & Kadam Environmental Consultants, Feasibility Study and Master Plan for Optimal Waste Treatment and Disposal for the Entire State of Delhi based on Public Private Partnership Solutions (April 2004) (Executive Summary). See e.g. Wazirpur Bartan Nirmata Sangh vs. Union of India, MANU/DE/2140/2002 (C.W. No. 2112 of 2002, Order dated 29/1 1/2002). The Delhi High Court quashed a Union of India policy providing alternate sites for JJ dwellers. ‘.

See eg, MC. Mehta vs. Union of India, (1997) 11 Taraporawala vs. Bayer India Ltd., (1996) 6 SCC 58: M.C. of India, 1996 (1) SCALE SP-22: Pradeep Krishen vs. Union 8 SCC 599; Animal Environmental Legal Defence Fund vs.

(1997) 3 SCC 549,

115.

(2000) 10 SCC 664.

SCC 227: FB. Mehta vs. Union of India, (1996)

Union of India.

Chap.

1—The Role of the Judicial Education Discourse

33

“(i) displacement of the tribals and other persons would not per se result in violation of their fundamental or other rights; (ii) on their rehabilitation at new locations they would be better off than what they were; (iii) at the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets; and (iv) the gradual assimilation in the mainstream of the society would lead to betterment and progress.”

Implicit in the above remark is the notion that rural and _ tribal livelihoods are inferior and bound to be displaced through urbanization and modernization. Further the courts have been less sensitive towards apprehensions of vulnerable parties who are fighting their battles

against influential persons.!!® For instance, in Jitendra Singh vs. Bhanu Kumari and Ors.''7 — the petitioner Bhanu Kumari filed the transfer petition before the High Court on the ground that the respondent was an influential person and the member of legislative assembly and therefore there is a strong likelihood of him influencing the outcome of matter pending before the judge in the same city. The High Court disagreed with her apprehension, terming it as “baseless. The Courts are not influenced by politicians and influential persons. ...’ The Supreme Court also agreed with the high court. The 2008 Joint Report of Amnesty International India and PUCL about death penalty cases referred to a large number of cases in which death penalty was awarded from 1950 to 2006. This report establishes that whether an accused is ultimately sentenced to death or not is dependent upon the wealth and influence a person has; the less wealth

and less influence, the more likely chances to be sentenced to death.!!8 Judicial non-responsiveness to poor people’s demands for enforcement of their social rights is global phenomenon. For instance, in Malawi, judiciary considers the justiciable issues concerning evictions, employment, and education, socioeconomic rights outside

the judicial domain.!!°

116.

117. 118.

119.

Ifa litigant alleges that the order of the court is not free from malice, he may have to face contempt proceedings as happened in Ram Narain Shukla and Anr. vs. J.O. Gyanpur and Anr., 1965 Cri LJ 268. 2008 (6) SCALE 594. “Lethal Lottery Death Penalty in India: A Study of Supreme Court Judgments in Death Penalty cases 1950-2006”, Joint Report on Death Penalty prepared by Amnesty International India and PUCL Tamil Nadu and Poducherry, May 2008. Siri Gloppen, Fidelis Edge Kanyongolo, ‘Courts and the poor in Malawi: economic marginalization, vulnerability, and the law’, 5(2) International Journal of Constitutional Law, 2007 at 258-293.

Discourse on Judicial Education

34

Apart from the lack of understanding about the poverty issues, judicial reluctance is prevalent in India and in many other nation states to rural postings. Most of the rural, far off, and interior postings are viewed as inferior ones and the state of things have come to a point that corruption allegations and other irregularities found against a judge, leads to such posting. As to why such geographical inferiority and geographical superiority concept in terms of postings have emerged, we need to acknowledge that the courts in rural areas operate more in accordance with personality factors than its urban counterpart and frequently are composed of one or two judges. a clerk’s office and a

small support staff.!2° Due to the increased number of judges and staff in an urban court, individuals subordinate their personalities to that of the group. Finally, a smaller staff and large distances between courts often engender feelings of isolation. A large court setting provides colleagues with an opportunity to lunch together or hold impromptu conferences in the office. Secondly, judges and clerks posted in rural areas find it more difficult to interact informally with colleagues and in addition, have fewer role models to follow. Third, judges posted in

rural areas face more constraints than their counterparts in urban areas. A lack of basic infrastructure, rampant power cuts, absence of sanitation and hygienic conditions in the courts, a lack of drinking water and a good chair for sitting whole day are only some of the wellrecognized problems. The incorporation of advanced technology in the courts occurs only in the large urban cities, leaving the courts in small towns in dark ages. Even today, it is not unusual for lower court judges to buy supplies from their own salaries, to work on dilapidated manual typewriters, and to work under frequent power outages. Carbon paper is

still in general use and there is little, if any, modern case management apparatus available in the courts located in interiors. This geographical

inferiority and geographical superiority complex gives the rural posting a character and colour of the punishment posting. Judges silently whisper their grudges about the postings as they feel there is no transparency and lot of favoritism is shown in matters related to the postings. Whereas some judges in large states in India are always posted in the urban towns and metro cities, some of them have never

had their day outside the interiors for decades spent in the service.

The JE discourse can raise the sensitivity to the demands of poor and vulnerable sections of the society and help in removal of stigma attached to the rural postings. For the same, judges need to be provided

courses

on

human

rights,

liberal

democratic

constitutional

law,

governance issues, social rights, equality jurisprudence, and other subjects of particular importance to marginalized groups and to the Sa

120.

Pennington, ‘The Nonmets’, 4 Judges J. 1974 at 74.

Chap.

1—The Role of the Judicial Education Discourse

35

development of pro-poor jurisprudence. Such courses can help judges to shred their indifference to the poor. Another technique to shred the judicial indifference to the poor could be providing a platform to those affected by such judicial indifference. This was done in India, in a Judicial seminar on Justice and Poverty held in August 2007 at the NJA, Bhopal, where in participating judges were shown a documentary made on women who were employed as daily wage labourers to cut the

grass.'*! The purpose of the documentary was to sensitize judiciary about the growing phenomenon of the ‘feminization of poverty’, to enable them to develop new approaches to the issue. The JE discourse therefore has to include social orientation so that judges can warmly respond to the humanism of constitution’s directive principles of state

!22 policy.

Further, to help judges overcome the reluctance to the rural posting, the JE discourse can assist judges in learning the use of technology for their own benefit which can help them to deal with the isolation problem at the rural courts. Video conference facilities and the closed-circuit television connecting the rural and urban courts can also contribute in minimizing the effects of distance and isolation. Video conference facilities can also help in saving the time taken to travel the great distances in rural areas. 7.

To remove subjectivity and prejudices

Judges admit that they are not insular conductors through which the currents of ideology, social values, moral-legal-political convictions, religious beliefs, gut feelings, personal perceptions, biases, prejudices —cannot pass. They have come out with what goes on in the decision making process and thereby admitted that complete objectivity is unattainable. For instance, Cardozo (1921) admitted that “the decisions of the judges are a consideration of social policy. He is influenced by inherited instincts, traditional beliefs, acquired

convictions, conception of social needs.” !” Jerome Frank admitted that

“Judicial judgments like other judgments, doubtless in most cases, are worked out backwards from conclusions tentatively formulated. A judge being a human being merely adopts the process of normal reasoning of anybody of his kind which starts with a

121. 122. 123.

Documentary made by law associates, placed in NJA Library. . Iyer, n. 5 at 28. Press: University Yale Process. Judicial of Nature The Benjamin Cardozo. London,

1921.

36

Discourse on Judicial Education

conclusion and afterwards tries to find premises which will be

substantiated” !24.

Holmes acknowledged that “Judges are apt to be naif, simple-minded men, and they need something of Mephistopheles. We too need education in the obvious — to learn to transcend our convictions and to leave room for much that we hold dear, to be done away with short of

revolution by the orderly change of law.”’!° Judge Posner wrote, ‘It is no longer open to debate that ideology (intermediary between a host of personal factors, such as upbringing, tempera-

ment, experience,

and emotion-even

including petty resentments

toward one’s colleagues-and the casting of a vote in a legally indeterminate case, the ideology being the product of the personal

factors) plays a significant role in the decisions even of lower court judges when the law is uncertain and emotions aroused. It must play an even larger role in the Supreme Court, where the

issues are more uncertain and more emotional and the judging less constrained. ”!26

Jeffrey Manske, a federal magistrate judge in Waco, Texas compared the job of federal magistrate judges while evaluating mental competencies of litigants before them to that of a tourist who is approached in a large city by poorly dressed man and in that split second, the tourist has to determine how he has to react. He has to make presumptions about whether this poorly dressed person is local, dangerous or simply needy. For Manske, federal magistrate judge at arraignment and initial appearance have to evaluate, based solely on what they see and hear, the mental capacity of the stranger who has approached the court and decide whether or not to commit this stranger

for a competency evaluation. !27

Even the statutory burdens are imposed upon judges to make presumptions. For instance in India, under the Indian Evidence Act of 1872, sections 4, 79-85, 101-114A empower the magistrates in criminal trials and civil judges in civil suits to make presumptions about facts,

124. 125. 126. 127.

Frank, n. 1. Cheng, n. 95. see A. Posner, ‘Foreword: A Political Court’, 119 Harv. L. Rev. 2005 at 31, 48-9. Jeffrey Manske, Mark William Osler, ‘Crazy eyes: The discernment of competence by a Federal Magistrate Judge’, 67(3) Louisia na Law Review 2007 at 751-784.

Chap. 1—The Role of the Judicial Education Discourse

37

acts, conduct of parties, witnesses, documents, etc. While making these

kind of presumptions, according to Manske (2007:2) magistrates rely on their own perceptions, their gut feeling, in deciding whether or not to make any presumption in favour or against witness or accused. Studies by independent NGOs, academia, researchers substantiate this point. According to Atkins and Pogrebin: “In

theory,

a judge’s

sentencing

decision

is supposed

also to be

premised upon legally relevant criteria such as the severity of the crime and whether record. Supposedly demeanour in court, authority, and even

or not the defendant has a prior criminal irrelevant are such factors as the defendant’s his deference or lack thereof towards judicial his attire in court. Nevertheless it has been

proven that sentencing decisions are related to legally irrelevant criteria ”’\28 A study by Jaros and Mendelsohn (1967) regarding Detroit Traffic Court found an inverse relationship between the defendant’s mode of dress and whether or not they received jail sentence as opposed to receiving a fine or suspended sentence. Those defendants whose attire was more dignified were less likely to be jailed. This relationship held

even where the severity of offence was taken into account.!2? Judges recognize that the phenomenon of bias does exist, and judiciary can come under pressure/influence and decide otherwise. Since judges are human beings, they will obviously be susceptible to human frailties such as bias and bigotry. Few judges can entirely escape from the pressures themselves or lose habits and modes of thinking acquired from their background and environment. To think of judges differently will be tantamount to looking at them through rosy spectacles. The vast amount of the discretionary powers vested in the magistrates. allow gut feelings to flow, allow space to personal perceptions, biases, prejudices; allow arbitrary interpretation of norms. While the justice is supposedly blind to legally irrelevant criteria, it is clear that maintaining the tenuous balance between discretionary justice and discretionary abuse involves more than simply drafting model

penal codes or model sentencing acts.!3° According to Seamone (2006), the reasons why the judge predetermines the outcome of a case, bases a decision on the way a

128.

129.

130.

Mark Pogrebin and Burton Atkins. The Invisible Justice System: Discretion and the Law, Criminal Justice Studies. Anderson Publishing Co. : USA, 1978 at 7-8. Dean Jaros and Robert I. Mendelsohn, ‘The judicial role and sentencing behaviour’, 11 MW. J. Political Science, 1967 at 471-488. Pogrebin and Atkins, n. 128 at 8.

Discourse on Judicial Education

38

party looks, or looks beyond the facts presented by the parties, are all encompassed in a single explanation: the judge has stopped evaluating information while making a decision. Accordingly, the common solution to all variations of judicial bias is to provide judges with methods that permit them to consider a greater number of

alternatives when doing their jobs.'*! Empirical work suggests that judges can improve their judgments if they are conscious of cognitive

biases. !32 The JE discourse can assist judges to identify their biases. Trainings can be designed to settle confusion related to how to structure initial appearances, how to structure questions to elicit answers that will shed light on state of mind, e¢c.!33 The world over, the JE discourse is helping judges to come out with their personality characters which are indicative

of the presence of bias.!34 Trainings are designed to challenge the perspective that judges are infallible and these are helping judges to gain awareness of their belief systems and how it may interfere with their

official decision making work. In one seminar at the National Judicial College in the US, psychologist Andrew Watson explained the realist

approach in context as he imparted to iudges the importance of mastering

a behavioral approach in the discharge of their duties. !35

In India, to overcome the subjectivity, biases and prejudices, the JE

discourse is providing trainings on reasoning methodology. In these trainings judges are made to realize that they neither hold a purse nor a

sword and therefore they have no control over the executive power!3°, but the only authority which provides them the power is the reasons. !37

Trainings prepare them to give decisions that stand the test of reasonableness, objectivity, rationality and absence of the subjectivity. Judges are provided literature from all over the world to help them in adhering to reasonableness. The discourse on objectivity and impartiality as

131.

132.

133. 134.

135. 136.

137.

Evan R. Seamone, ‘Understanding The Person Beneath The Robe: Practical Methods For Neutralizing Harmful Judicial Biases’, 42(1) Willamette Law Review 2006. Chris Guthrie, Jeffrey Rachlinski & Andrew Wistrich, ‘Inside the Judicial Mind’, 86 Cornell L. Rev. 2001 analyzes data to show the US Magistrates display cognitive biases and collecting studies showing biases in auditors, psychologists, physicians, option traders, soldiers and real estate agents. Manske, n. 127 at 45-46, MBTI personality tests and their relevancy to the judicial decision making work, the tests like ART and CRT are now helping the judicial officers to realize the presence of biases and prejudices. Seamone, n. 131. As observed by Edward S. Corwin. Twilight of The Supreme Court: A History of Our Constitutional Theory. New Haven Yale Univ. Press : USA, 1934 at 6. As observed by Charles Fried, ‘Scholars And Judges: Reason And Power’, 23 Harvard Journal of Law And Public Policy 2000 at 807.

Chap.

1—The Role of the Judicial Education Discourse

39

suggested by Barak!® can help judges shred subjectivity. It can help judge to make judicial decisions on the basis of considerations that are external to him/her and that may even conflict with his/her personal views.!3° Such discourse will make strenuous demands on a judge, requiring the judge to undergo a difficult process of self-discovery. Various exercises by clinical psychiatrists and social scientists are being used to help judges to look beyond their own conceptions on various issues. The discourse on impartiality provides significance of affording parties to the dispute an equal opportunity to make their respective cases.

In the JE discourse in Israel, judges are acquainted with the German legal literature, and the doctrine of TYopoi developed thereunder. According to Topoi, the various options are listed, the advantages and disadvantages of each options are weighed, and through discussion and

the exchange of opinions, the optimal solution is reached. !4° Lucy (2005) in her work referring to the efforts of the JSB in this regard gives two ways of institutionalising impartiality in judiciary: one by having more representative judiciary so that judges as a group reflect the gender, cultural, ethnic, religious diversity of the community in which they work and second by providing the JE discourse for instilling the attitude of openness in them towards litigants and nature

of their disputes. !4! 8

|

To remove the judicial gender bias

The judicial gender bias is experienced during the selection of judges; (i1) during relating to women; (iii) and in professional reach courts either to work over there as reach there as parties to litigation.

at three different levels: (1) decision making on issues harassment of women who lawyers, clerks, judges or

(1) Selection of women for the judging work

In the complex imbroglio of societies of today, the burden of translating justice will be heavy, if not crushing, for the shoulder of any single agency. The proper process may require the burden to be shared amongst many to create a pluralist system of administration of justice, 138.

Barak, n. 49 at 101-104.

139.

See Aharon

140. 141.

Barak,

‘Justice

Matthew

O. Tobriner

Memorial

Lecture:

The

Role of A Supreme Court In A Democracy’, 53 Hastings Law Journal 2002; Jules L. Coleman, ‘Truth And Objectivity In Law’, 1 Legal Theory 1995; Brian Leiter, ‘Objectivity And The Problem of Jurisprudence’, 72 Texas Law Review 1993. Barak, n. 49. William Lucy, ‘The possibility of impartiality’, 25(1) Oxford Journal of Legal Studies 2005 at 3-31.

Discourse on Judicial Education

40

through various countervailing institutions in the society with the judiciary 7 the fulcrum.!42 Involving women in the administration of justice wil! give piural character to the judiciary. A 2003 Amnesty International report revealed that the biases of many male judges pose a primary obstacle to increasing female

representation on the bench.'*? These biases become openly visible from the judicial appointment trends from all over the world. No country has escaped from these biases. Whether we take case of India or its neighbours — Pakistan, Nepal, Bangladesh, Sri Lanka and Afghanistan, or we take examples from the West — confidence is not reposed in women and seldom do they rise to the highest position in judiciary. While women judges do serve in lower courts and head both the Family and Juvenile Courts, female judges are infrequently found in high courts and the apex courts and are largely “confined to lower levels.” For Afghanistan, not a single woman has secured a position at the judiciary’s highest level, the Scholar Council of the Supreme Court. For India, from the year of establishment of the Supreme Court of India in 1950, so far only 5 women have made it to the Supreme Court. Implying iin last 61 years that only 5 women could qualify for the top job! There are 21 High Courts in the country and on 8th March 2008, 6 high courts had no women on the Bench (Jammu & Kashmir, Himachal Pradesh, Uttarakhand, Sikkim, Jharkhand and Chattisgarh). Even in other high courts the picture is dismal. No high court is composed of more than 15% women. The figure 1 drawn below from the data contained in the table 1 supports these appalling facts.

lug

ws x \S KS©PSK coeSSK es Sahih s

Pe 3

re S~

s

PV’ J sa 1S)

\g S WP LO KS oe we Sor

“os ORC SCSI at ee CO Pe Ww

gs

we

Sa

w

>)

its ee pa Koa a“ ¥ » oS

142.

Das, n. 77 at 49.

143.

Nusrat Choudhury, ‘Constrained Spaces For Islami c Feminism: Women’s Rights And The 2004 Constitution of Afghanistan’, 19 Yale Journal of Law And Feminism 2007. |

Chap.

1—The Role of the Judicial Education Discourse

HIGH COURT

ALLAHABAD ANDHRA PRADESH BOMBAY CALCUTTA CHATTISGARH DELHI GUJARAT GUWAHATI HIMACHAL PRADESH JAMMU &KASHMIR JHARKHAND KARNATAKA KERALA MADHYA PRADESH MADRAS ORISSA PATNA PUNJAB & HARYANA RAJASTHAN SIKKIM UTTARAKHAND ALL TOTAL

4]

TOTAL STRENGTH

FEMALE JUDGES

69 27 50 41 7 32 30 22

4 2 5 2 0 6 3

5% 1% 9% 5% 0% 16% 9% 4%

95% 93% 91% 95% 100% 84% 91% 96%

9 10 9 36 25 42 45 19 27

0 0 0

0% 0% 0% 3% 4% 9% 6% 5% 10%

100% 100% 100% 97% 96% 91% 94% 95% 90%

1% 3% 0% 0% 6%

93% 97% 100% 100% 94%

43 34 2 g 587

4 3 1 3 3 0 0 Aine

|

% OF FEAMLE JUDGES

% OF MALE JUSTICES

The table 2 below!*4 about the UK statistics on women judges reveals that the more powerful and higher in the hierarchy is the post, the chance of women assuming that post shrinks.

144.

http://www.judiciary.gov.uk/keyfacts/statistics/women.htm 2008].

[as of 20 June

Discourse on Judicial Education

42

Former Barristers

Post

‘Heads of Division

| |

Former | Solicitors

Total

oma Tea aly La een Te fewoa [an [os re gua aSaerete generat Cea Fea

Lord Justice of Appeal

| |

High Court Judge

Circuit Judge

aa en f [a ee % Women

LF

Men

1028

Total

% Women

16.85

13.32

1196

109

1305

14.05

23.85

14.87

Recorder

Chap. 1—The Role of the Judicial Education Discourse Judge Advocates

Deputy Judge Advocates

43

[wees fo fe fo men ee fen fy Tawone fo foo Women

mmc!

'S)

ore)bo yea GO

District Judge 340 Total

Deputy District Judge

fem [or Sipe ea 26.38

District Judge (Magistrates’ Courts)

Oo

33333

PAS)

Saamaa | onea ee 27.66

Deputy District Judge (Magistrates’ Crt)

562

2022

ZLa9

ic ag oor ae

Discourse on Judicial Education

44 Masters, Registrars, Costs Judges and DJ (PRFD)

Deputy Masters, Registrars, Deputy Costs Judges and DJ (PRFD)

In the US, in 1953, when the Supreme Court Justice Sandra Day O’Connor graduated third in her Stanford Law School class (Chief Justice Rehnquist was first), having been a member of the Stanford Law Review and elected Order of the Coif, her only job offer was the position of legal secretary in a law firm.!4 (2) Decision making on issues related to women

Mawlavi Fazl Hadi Shinwari, Afghanistan’ s first Chief Justice under the current internationally backed regime of Hamid Karzai, made a troubling and controversial decision when it declared “the first broadcast of a female vocalist on Afghan state television in twelve

years as “un-Islamic.'*° The Supreme Court denounced the perfor-

mance despite the fact that pop star Salma covered her hair with a

headscarf while singing.!47 While Article 121 of the Constitution of

Afghanistan permits the Supreme Court to engage in the review and interpretation of laws, legislative decrees, and international treaties

145. 146.

147.

Bodine, ‘Sandra Day O’Connor’, 69 A.B.A. J. 1983 at 1394, 1396. J. Alexander Thier, Reestablishing the Judicial System in Afghanistan, available at http://iisdb.stanford. edu/pubs/20714/Reestablishing the_ Judiciary _ in_Afghanistan.pdf. [last visited on 3rd December 2006]. Afghan TV U-Turn on Women Singers, BBC News, (Jan. 16, 2004), http:// news.bbc.co.uk. [last visited on 3“ December 20066].

Chap.

1—The Role of the Judicial Education Discourse

45

“[a]t the request of the Government or Courts,”!48 the Court made this decision without any case before it and based on no existing referral of the issue by the government. The Supreme Court’s Chief Justice Fazl Ahmad Manawi offered an explanation decision that alludes to the Court’s bias: “We are opposed to

singing and dancing as a whole...[A]nd it has to be stopped.” !49 Schafran

(1995)

cites many

judicial

decisions

law or Deputy for the women

from the USA

reflecting the gender injustices.!°° A local judge gave a minimal sentence, to be served on weekends, to a man who killed his wife when

she tried to flee their abusive marriage.!>! This judge held wife responsible for her own killing by saying she provoked her husband by

not telling him she was leaving.!>* A New Hampshire Judge sentenced a man to 28 days to be served on the weekends for assaulting his wife from whom he had been estranged for a year. In 1993 case when an Ohio man who entered his estranged wife’s home, on finding her with another

man,

beat her with

a crowbar,

knocked

out some

of her

daughter’s teeth when she tried to call the police!>3, the judge imposed the state-required sentence of three to fifteen years, then released the defendant after he served seven months, observing that— “The guy

walked into his house

with his wife in his bed with

another guy. It’s enough to blow any guy’s cool if he’s any kind of man’.

Schafran (1995) provides that the Baltimore County Circuit Judge, Thomas J. Bollinger, was disciplined in 1993 for his remarks in a rape case that finding a woman in such a state was “the dream come true for a lot of males” wherein he sentenced to probation a forty-four-year old man who raped his eighteen-year-old employee while she was unconscious from drinking. He was directed to attend a program to sensitize him to rape cases, which he did not attend, and has suffered no

consequence as a result.!*4

148.

Const. of The Islamic Republic of Afg. (2004), art. 121.

149.

Woman Singer Angers Afghan Judges, BBC News, (Jan. 14, 2004), http://news.bbc.co.uk. [Visited on 24"" August 2008]. See Lynn H. Schafran, ‘Overwhelming Evidence: Reports on Gender Bias in

150.

the Courts’, Trial 1990 at 28; and Lynn H. Schafran, “There’s No Accounting

For Judges’, 58 Albany Law Review 1995. 151.

152. 153.

154.

Judge Upheld on Remark About Slain Woman, N.Y. Times, July 17, 1984 at

A22. The sentence was ultimately vacated as illegal and the defendant was sentenced by a new judge to 10 years of imprisonment. Sheila Weller. More of America’s Most Sexist Judges. Redbook: USA, 1994 at 88, 90, 91. See Lynn H. Schafran, n. 150.

46

Discourse on Judicial Education

From South Africa, we have the Labour Appeal Court judgment in Woolworths vs. Beverely Whitehead, (2000) which provide a precedent to other courts to allow employers to discriminate against women in executive positions on the basis of pregnancy. Judge Willis justified gender injustice on the ground that country needs rapid economic growth. Even though the Constitution of South Africa lists pregnancy as a ground of discrimination and allows injunctive relief to prohibit any discrimination, judges failed the Constitution, working mothers, and introduced distinction between working mothers who can avail this constitutional protection and women working in executive positions who cannot avail this constitutional protection which is interpreted as a

backlash against the advancement of women into positions of powers.!>°

From India, the Mathura case can be cited as classic instance of a

gender insensitive court. The Mathura case created a major nationwide campaign on the issue of custodial rape, following the open letter written in September 1979 by four legal academics — Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar to the Chief Justice of India. The open letter questioned the validity of a judgment passed by the apex court, and described the Mathura judgment as ‘an extraordinary decision sacrificing human rights of women under the law and the Constitution’. The authors enumerated their reservations on the judgment, stating that: a young girl could not be expected to successfully raise alarm for help when trapped by two police men inside a police station; the absence of marks or injury on her body need not imply absence of resistance; and that there is a clear difference in law and common sense between submission and consent. Mathura’s culprits went unpunished and therefore she failed to get justice but the debate led to legislative amendments, which shifted the

onus onto the accused in custodial rape cases. However, even after the amendment to provisions punishing rape in the penal code, a study of cases by Gangoli (2007) shows that the focus of the judicial interpretations remained centred on a question of the ‘character’ of the complainant, rather than the crime committed by the perpetrator. This therefore reduced to a token gesture, the legal proviso of shifting the onus of proof to the accused in cases of custodial rape.!5® The Sessions Court, Jaipur on Sth November 1995 acquitted five men who committed gang rape on Bhanwari Devi after she reported cases of child marriage to the police. The judgment based its acquittal on two planks, including a romanticisation of Indian culture and the lack of forensic evidence. The judge, Justice Jaspal Singh stated that it was impossible 155.

156.

(CA06/99) [2000] ZALAC 4 (3 April 2000) in the Labour Appeal Court of South Africa held at Cape Town. Geetanjali Gangoli. Indian Feminisms: Law, Patriarchies and Violence in India. Ashgate: London, 2007.

Chap.

1—The Role of the Judicial Education Discourse

47

in India, that members of the same community would commit rape together. Conversely it was argued that the 5 accused were of different castes and therefore it was impossible that they would have worked together, as according to the Judge, rural gangs are not multi caste. There have been other instances, such as the Gita Hariharan case

where the Judge refused to strike down a personal law that made women only secondary guardians of their children, and as noted by

Jaisingh (2007) the Supreme Court in Batra v Batra'*’ watered down the legislative intent to provide women the protection of a home, irrespective of the nature of ownership, from which they cannot be

dispossessed except by a procedure established by law.!58 Therefore, whether it is decision making in the US courts, or in

Afghanistan courts, or in India or in South Africa, we have huge case law that confirms gender bias in the male populated judiciaries. As to what difference women judges will make and why we need to have more women representation in the judiciary, King and Greening (2007) examined the impact that gender composition has on sentencing outcomes by analyzing sexual assault cases at the International Criminal Tribunal for the Former Yugoslavia (ICTY). They employed method of regression analysis to explain the impact of male and female jurists as decision-makers. Their research reveals that gender is a determinate factor in sentencing outcomes, and that female judges have a distinctive role that varies depending on the gender of the victim in the case. Female jurists more severely sanction defendants who assault women, while all male panel of judges do the same for male victims of

sexual assault. !5? Erika Rackley (2008) uses the House of Lords’ decision given by

Baroness Hale!® to argue that recognition and articulation of the gendered nature of the experiences and violence in Fornah’s story reveals not only the difference that difference might make to the understanding of the judge, judging and justice but also the importance of recognising the transformative potential of judicial diversity to create a space in which difference is celebrated and valued on its own terms, a place in which difference can truly make a difference. Her easy

157. 158.

159.

160.

S.R. Batra and Anr. vs. Smt. Taruna Batra, (2007) 3 SCC 169. Indira Jaising. Of crying hoarse, not wolf! . june 7, 2007. http://www. lawyerscollective.org/content/crying-hoarse%2C-not-wolf%2 |-indira-jaising (accessed june 7, 2007). Kimi Lynn King, Megab Greening, ‘Gender Justice or Just Gender? The role of Gender in sexual assault decisions at the International Criminal Tribunal for the Former Yugoslavia’, 88 Social Science Quarterly 2007. Secretary of State for the home Department vs. K (FC); Fornah (FC) vs. Secretary of State for the Home Department (2006).

48

Discourse on Judicial Education

identification of FGM as a gendered harm at its outset, its purposeful gendered focus evidenced in her lengthy and detailed description of what FGM involves and her strategic juxtaposition in her conclusion of the everyday reality faced by many women worldwide — makes it clear that the incorporation of difference on the bench subtly changes

and, ultimately, improves the judicial product.!®!

Belleau and Johnson (2008) examined the tendency to dissent in women judges and reveal in their research that women judges have greater propensity to dissent as compared to their male colleagues. Another interesting aspect of their research reveals that not simply women judges were more likely to disagree, but also that they were

more likely to express their disagreement through written reasons. !62 (3) Professional harassment of women in the courts

Women face a subtle type of gender bias in courts. For example, although judges often give male attorneys their full attention, they may

shuffle papers or look at the clock when female attorneys speak.!63 A

female attorney with a complaint about a particular judge may hesitate to file it formally or to even voice it, if she is likely to appear before that judge again in the future. She may also fear that voicing such a complaint will gain her the reputation of a troublemaker throughout the

legal community. !64

Several years ago a male trial judge in US refused to hire a female court reporter, claiming his wife did not want him traveling with a woman. Many male judges supported his decision despite state laws that prohibited sexual discrimination in hiring. Unfortunately, many of these male judges viewed court personnel as their personal employees, to be hired on the basis of their personal whims.!°> In 1988, a male Federal Judge in Pennsylvania threatened to send a lawyer to jail when she objected to being addressed by her husband’s surnam e in court. The Judge also objected to another attorney addressing a witness as ‘Ms.’ instead

of ‘Mrs.’!6 In India, Stewart (2001) notes

sees Shes 161. 162. 163.

164.

ih Age

foe feed,

Erika Rackley, ‘What a difference Difference makes: Gendered harms and Judicial diversity’, 15 (1) IILP 2008. Belleau Johnson, ‘Judging Gender: Difference and Dissent at the Supreme Court of Canada’, 15 (1) IJLP 2008.

Deborah Ruble Round, ‘Gender Bias In The Judicial System’, 61 Southern California Law Review 1988. Weber, ‘Still in Good Standing: The Crisis in Attorney Discipline’, 73 4.B.A. J. 1987 at 58, 61.

165.

Shirley S. Abrahamson, ‘Toward A Courtroo m of One’s Own: An Appellate ok Judge Looks At Gender Bias’, 6] University of Cincinnati Law Review 993,

166.

Debra C. Moss, ‘Judge Mrs. the Point’, 4.B.4 .J. 1988.

Chap.

1—The Role of the Judicial Education Discourse

“unfortunately for women,

49

there are many in the rank and file of

judiciary who consider women as an instrument of man’s comfort

and pleasure. They cannot accept anything contrary. So when they see a woman filing a petition for maintenance or seeking shelter

from a husband who batters her, he immediately becomes hostile to her. If a woman’s

organization

is seen as supporting her case,

the anger of the member of the judiciary rises more and the resentment to the complainant woman’s very action of reaching out to a court not only becomes obvious, it permeates all the

pronouncements from the dais so that the men in court smile and sneer while women are made to feel belittled and harassed. In such

atmosphere, legal proceedings continue to be prolonged...”®7 Women lawyers are also affected by gender bias in court rules. One such issue in the courts is decorum and dress. The drafters of these rules either forgot about women lawyers and women court personnel or expect women to dress like men. In India, Delhi High Court rules made for advocates do not envisage that a female can be an advocate at all! There are rules only for male advocates. Therefore, women can easily

observe exemption from these Rules.!©8

Rosemary Hunter (2008) lists important methods for raising gender sensitivity of courts and these four methods have to be incorporated into the JE discourse to sensitize judges. Accordingly judges have to be trained to: take into account women’s as well as men’s interests; listen

carefully and respectfully to stories of women’s lives and should tell those stories in the decisions; engage in reasoning from context, focusing on the reality of women’s lived experience in each situation, and producing a decision that is individualised rather than abstract; to intervene to challenge hegemonic discourses of sexism, racism and hetro-normativity by questioning the current legal construction of ‘woman’; to reject ‘stock stories’ about women’s reactions and behaviour, not relying on stereotypical or gender-biased assumptions about sexual difference or behaviour, challenging myths and stereotypes about women, and critiquing previous judgments that adopt such myths

and stereotypes. !6? Reformers in number of Common Law jurisdictions have seen training judges in gender issues as one way of developing a legal

167.

168. 169.

Ann Stewart, ‘Judicial Attitudes To Gender Justice In India: The Contribution

of Judicial Training’, Law, Social Justice & Global Development Journal, 2001: http://elj.warwick.ac.uk/global/issue/2001-1/stewart.html. http://delhihighcourt.nic.in/history.htm. Rosemary Hunter, ‘Can Feminist judges make a difference?’, 15(1) International Journal of the Legal Profession 2008.

50

Discourse on Judicial Education

culture based on gender justice.'!’” In 1980, the National Association for Women Judges and the National Organization of the Women’s Legal Defense and Education Fund formed an umbrella group, the National Judicial Education Program (NJEP) to Promote Equality for Women and Men in the Courts. The new group was created to help Judges understand how stereotypical thinking about women and men affects true impartiality and also to assist in the formation of State task forces composed of lawyers, judges, and members of the public to

investigate and report on gender bias in the State’s judicial system.!7!

This then became the catalyst for the national gender bias task force movement beginning in the 1980’s. Since that time, both state and

circuit courts have been reporting their results to the NJEP.!72

However, in India, no high court has taken any initiative to set up a task force of this kind to study the gender bias. There is nothing comparable in India to hear Complaints of harassments in courts, which gives an impression that all is well in the courts of India and there is no

discrimination faced by women. Neither lawyers, nor academicians, nor

judges in any substantial number have indulged in this area. Even the general public and the media keep away from such issues most of the

time, as they fear the contempt powers of the courts.!73 One very

negligible development though is the formation of committees in some

of the high courts!’4, pursuant to famous Vishaka case.!75 The general

public has no knowledge about the existence of such committees. A high court Judge is made in-charge of the committee and it is difficult to get any information from this committee regarding the kinds of complaints filed. In fact, some high courts are of view that the guidelines laid down by statute or the Supreme Court in Vishakha case

do not apply to them.!76

The JE discourse has to train judges to hold batterers accou ntable for their violence; assist judges in the formation of gende r task forces in

a

170.

171. 172. 173.

174. 175. 176.

ee

Ee

Stewart, n. 167.

Schafran, n. 150. Leah M. Perkins, ‘Public Hearings Underway To Examine Bias In The Judicial System’, 2 Lawyers Journal 2001. Shri Surya Prakash Khatri & Anr. ys. Madh u Trehan and Ors., 2001 Cr.LJ 3476 — survey done by media group on judges — Delhi HC held media group guilty under the Contempt of Court Act. Delhi, Bombay, Madras. 1997 (6) SCC 24. Chief Justice of Madras High Court was of this view. However, the full court

had taken a contrary view -Justice K. Chan dru in an interview,

0301438 Chap.

1—The Role of the Judicial Education Discourse

51

all courts to deal with complaints relating to judges and others for

exhibiting biased conduct in the courtroom.!77 More than a decade ago, with the support of the British Council of India, the School of Law at the University of Warwick in association with the National Law School of India had initiated a series of gender sensitization courses for judicial officers. Around 40 district judges nominated by their high courts underwent three-month long courses. Importantly, nearly two months were spent in England attending classes and visiting courts and training centres. The “Gender and the Law” course was based on a needs assessment survey and was designed to provide sophisticated training. Presently, the decentralized educational discourse for judges conducted at the State Judicial Academies in India and the centralized educational discourse developed by the NJA, Bhopal are providing gender sensitization modules to the judicial personnel. This includes sensitization to deal fairly without pre-conceived notions in cases of victims of rape, sexual harassment, domestic violence.!’® Further taking a leaf from the UK and Australia practice of developing equal treatment bench books, the NJA collaborated with the Lawyer’s Collective (advocacy organization) to prepare a Benchbook on Domestic Violence. These Benchbooks are easy to use reference manuals guiding judges in their decision making process.

177.

See e.g, In Re Kirby, 354 N.W.2d 410, 414 (Minn. 1984) (disciplined judge for calling female attorneys ‘lawyerettes’ and questioning their failure to wear neckties); Jn Re Stevens, 28 Cal. 3d 873, 625 P.2d 219, 172 Cal. Rptr. 676 (1981) (Superior Court Judge publicly censured for initiating conversations with a married couple employed by legislature in which he discussed sexual fantasies and proposed the couple engage in certain sexual conduct); Geiler vs. Commission on Judicial Qualifications, 10 Cal. 3d 270, 515 P.2d 1, 110 Cal. Rptr. 201 (1973) (municipal court judge removed from office for repeated acts of crude behavior and vulgar conduct toward court employees, including brandishing a dildo in chambers), cert. denied, 417 U.S. 932 (1974) (admonished judge for his practice of referring to the appearance and physical attributes of female attorneys); State of New York Commission on Judicial Conduct: Matter of Jordan, N.Y.L.J., Mar. 2, 1983, at 12, col. 5 (publicly censured judge for calling female attorney ‘little girl’ and saying to her ‘I will

tell you what, little girl, you lose.’). 178.

During the judicial year 2007-8, in around 30 conferences covering more than

3000 judges in India by NJA Bhopal a simulation exercise on date rape cases

was done to make judges move from process based analysis of rape which they usually did by offering reasons like — “girl accompanies her boyfriend, hecause she drinks and acts in manner inappropriate under traditional notions of Indian women’s identity, she is raped” to victim based analysis of

rape —~ where not consenting importance in the judgment.

to sexual

activity

by woman

is given

52

9.

Discourse on Judicial Education

To provide professional skills for judging

The JE discourse till now has focused more on substantive and procedural! laws. Of late, taking cue from the professional management trainings, there has been realization that legal framework alone would not be sufficient to achieve professionalism on the bench. This led to an interest in developing the art, craft and science of judging. Different jurisdictions through the JE discourse have begun to focus on the judging aspect and have been actively developing the framework for judicial skills training. The JSB in England, now known as Judicial College, has developed a very comprehensive framework on judicial skills training. This framework is adopted by Judicial College of Victoria in Australia also. Both England and Australia have made the skills training framework as part of their core curriculum in the JE discourse. Both jurisdictions, in the criminal side are providing judges specific skills such as identifying the ingredients of law of the offence, applying the relevant legislation and authorities, effectively marshaling

the law and the evidence, etc.!”? New Zealand amongst other things is

providing communication skills trainings to judges so that judges can empathically communicate with adults, children, people with different abilities, litigants from diverse backgrounds and ethnicities.!8° Jurisdictions like Canada, Germany and Australia are also providing skills trainings in their JE discourse so that judges can deal effectively and responsibly matters of immigrants, migrants, aborigines. Thus, the curriculum has moved toward a more interdisciplinary content,

challenging judicial educators to reach beyond traditional topics. !8!

Jurisdictions particularly the USA, the UK and India are emphasizing on skills trainings to improve judge’s abilities in the appreciation of facts, statutory interpretation, judgment writing, court and case management, time management, general administration skills, supervision of lower courts, court-annexed mediation.

The skills trainings taken up at the JE discourse level help judges tremendously in their judicial work and also provide them the tools to operate the justice system for the benefit of the society and in securing the public confidence in the justice system.

i

179, 180.

181.

Websites of Judicial College, England and Wales; websit e of Judicial College of Victoria, Australia provide a detailed list of skills trainings. Paper presented by Judge Susan Glazebrook, New Zealand at 5 IOJT meet at Bordeaux, France in Oct-Nov 2011. Patricia H. Murrell, ‘Competence And Character: The Heart of CLE (Clinical Legal Education) For The Profession’s Gateke epers’, 40 Valparaiso University Law Review 2006.

Chap.

1—The Role of the Judicial Education Discourse

53

10. To upgrade the Legal Education

Howsoever best the legal education a judge might have got, it will never be adequate for taking up an adjudication work. Judges have to undergo a separate discourse of judicial education to prepare them for judging because of following thirteen reasons:

First, legal education is under severe attack all over the world because in every country it suffers from multitude of problems relating to management, content, character, methodology, choice of subjects etc. For instance, in India, legal education is viewed as unsatisfactory

because the composition of the teaching staff, their narrow conception of law, their lecture method teaching style with little attention paid to the politics that underlies the rules. Also, legal education merely imparts information by rigid recognition of stare decisis and the modes of analysis and exposition are non-functional, which can only help in building a secretariat or a factory or at the most a research institute, but what it really needs is a cathedral. Building a factory is merely constructive, building a cathedral is creative; with construction you make a civilization, with creativity you build a culture and in India law

should be an instrument of building culture.!*2 Second, in the Indian context, it has been a realization that judges

have poor reading habits. Although no survey has been done so far, the sitting high court justices who have been called to provide their inputs into judgment writing sessions, have admitted before an audience of more than 100 judicial officers that they have not as of yet gone through the full text of judgment pronounced in the Keshavananda Bharti case! Most of the university students, including those of reputed well established universities get their LL.B. degree without referring to or reading the basic textbooks. They do not have to as they get good percentages by just mugging up the styles dictated by teachers in these universities and which is more often than not found similar to those printed in the short series of books sold by the local book shops. Coming from such background, judges lacks understanding as to how to use the law as an instrument of economic and social architecture. This makes the case for making JE discourse mandatory for judges in India and elsewhere. The discourse can help in rectifying the mistakes committed at the law schools, at least for those who have taken up a judgeship. Third, judges confront challenges hitherto not faced by their predecessors and their solution will not emerge with mere knowledge of legal principles and judicial precedents. Also, many issues may not have a correct legal solution. Issues related to trafficking, illegal

182.

Das, n. 77.

54

Discourse on Judicial Education

migration, climate change, health concerns, man-made or natural disasters, ethnic conflict are all challenges that require a multidisciplinary approach to find a just legal solution. Some basic knowledge has to be gained in anthropology, geology, biology, social science, history, psychology, political science efc. to improve judgments in emerging areas of litigation. Legal education discourse does not necessarily prepare one for these issues. Fourth, the experts are not available at the courthouse and judges have no choice but to use training and experience by default. Therefore, judges need the knowledge about characteristics of mental disorders, the dynamics of substance abuse and domestic violence, an overview of

treatment

methods,

and the applicability of various

therapies.!83

Without training, no common background exists among judges regarding mental health ‘disorders or the efficacy of alternative treatment plans.!84 After enough professionals have said the same thing about a given disorder, or about best practices in some problems, the information becomes part of the judge’s background knowledge — a

form

of on-the-job

training.!85

The

discourse

therefore

has

to

compensate for an absence of expert evidence. Judges need to be educated about the role of the various professionals and experts mentioned in the statutes who work in the field: psychiatrists, medical doctors; psychologists and psychological examiners; substance abuse counselors, including alcohol and drug counseling aides, certified drug

and alcohol counselors, licensed alcohol and drug counselors; social

workers and professional counselors and how their help can be taken in litigation before them. Fifth, no judge, howsoever brilliant, can boast of knowledge

or

experience in all the subjects that come before him. In the Annual Lecture 2001 organized by the JSB, UK, Lord Woolf referred to a questionnaire circulated among the members of the senior Judiciary in UK calling for information about the nature of a judge’s current work on the Bench and its relationship with the judge’s previous experience ee ee

183.

184.

185.

eee

ee

Jessie B. Gunther, ‘Reflections on The Challenging Prolife ration of Mental Health Issues In The District Court And The Need For Judicia l Education’, 57 Maine Law Review 2005. In all the five juvenile justice programmes held for five different batches of Juvenile Court Magistrates in India. judges contin ue to raise same concerns regarding the raising of the age of juvenility. Theref ore medical /clinical psychiatrists are called as resource persons/faculty to make judges understand that cognitive faculties are different for different age groups and to reasons

therefore for including age group 0 to 18 in the defini tion of child.

See Gerald W. Hardcastle, ‘Adversarialism and the Family Court: A Family Court Judge’s Perspective’, 9 U.C. DAVIS J. JUV. L. & POL’Y 2005; Pamela M. Casey & David B. Rottman. Problem-Solving Courts: Models And Trends National Center for State Courts Annual Report: USA, 2003 at 4-7.

Chap.

1—The Role of the Judicial Education Discourse

55

as a lawyer. This survey revealed that for 48% of them there was a substantial distinction between their previous expertise and the present

work which

they now

perform as judges.!8© The mandatory JE

discourse can train judges in areas of the law with which they are not as familiar. This makes judges competent to preside over any type of case. If a judge is not familiar with a subject, there are greater chances of the litigant suffering injustice. A lawyer can take undue advantage of a judge’s lack of knowledge or experience in a subject and his opponent on the other side will find it difficult to persuade the judge to accept even obvious points which, before a judge with adequate knowledge, would have taken no effort at all. In India, several judges both in the subordinate courts and in the superior courts deal with jurisdiction in which they have had no experience while they were at the bar. The lack of appropriate knowledge in the subject of their jurisdiction leads to delays in the hearing of the case, frustrations for the lawyer and it may even lead to the wrong exercise of discretion or a wrong decision not warranted by the facts or the law applicable. What we call our NDPS Courts, Family Courts, JJBs, Mahila Courts, Lok Adalats and other special courts are actually calendars (the same court personnel take on different tasks on different dates), created within the unified court. We are able to move judges around as needed from specialized courts to general courts and vice versa. This defeats the whole purpose of the statute under which special courts are established. Tension is created by moving judges into courts dealing with matters in which they have no experience. Therefore the JE discourse has to prepare judges for presiding the specialized courts.

Sixth, howsoever good legal education a judge might have been exposed to, it will never be enough to deal with the ever growing body of laws and their complications. Each year, hundreds of new civil and criminal provisions are added to the already bulky legal norms. Hundreds more are amended, repealed or renumbered. Each year, hundreds of eventful court decisions are handed down that affect the Constitution, procedural laws and a multitude of substantive laws. Along with this, each year critical new developments and milestones in many aspects of life have an impact on cases in front of the trial courts.

India today has the proud privilege of being one of the largest producers of human babies and statutory enactments. The legislative output is phenomenal. According to the website of the Government of

186.

Justice M.J. Rao, Lecture delivered at the British CouncilJudicial Training In India, (October 2004), available at http://www.mjrao.com.

56

Discourse on Judicial Education

India, as at 26th

March

2008,

India has

1082

central

enactments

governing the country in its various aspects.!87 This does not cover statutes, circulars, ordinances, notification and rules by 28 states. The domain that is sought to be covered is from birth to death and the dimensions vary from six sections in the Contempt of Court Act to six hundred and fifty eight sections in the Companies Act; a few like the Income Tax Act, baffle normal human intelligence. Further, the field of operation of statutes is overlapping and conflicting. ‘Good faith’ means one thing for the Limitation Act, and another for the Penal Code.

‘Workman’ them. The contracted enactments

and ‘Child’ has as many definitions as there are statutes meaning of words and expressions are extended by fictions. The beneficiaries or the victims of do not understand the law but they are made to feel

for and the the

weight of it.!88§ The JE discourse is continuously required to update judges on the sheer volume of change that takes place on a yearly basis.

Seventh, legal education does not expose judges to developments occurring in foreign jurisdictions and their relevance for the development of law at home. Even if some knowledge is provided, it is of a very limited scope. This creates indifference to other legal systems and developments elsewhere. Judges therefore hesitate to read, understand and rely on the legal developments in foreign jurisdictions. Those who object to the use of foreign law by national courts invoke a series of well-rehearsed arguments in favour of their position. Some are ideolo-

gical!8° while other’s reservation stems from factors such as a lack of

— time, expertise. materials in their own language. interest to remain up-to-date.!99 Ideological opposition to the foreign legal systems becomes evident in judges’ extrajudicial writings and speeches. For a

judge who believes-for good reasons or bad that tort law is running out of control is unlikely to look at foreign law could help dispel his fears. A judge who misusing legal provisions aimed to protect avoid even considering empirical evidence

on such a topic, even if it believes that women are their life and dignity will that dispels his/her deep-

rooted fears.!°! For him or her, such an exercise will be costly and 187. 188. 189.

http://lawmin.nic.in/alpha.doc [as of 4th May 2008]. Das, n. 77. See Ernest A. Young,

Harv. L. Rev. 2005. 190.

191.

‘Foreign

Law

and the Denominator

Problem’,

Sir Basil Markesinis, ‘Judicial Mentality: Mental Disposi tion Or Outlook

119

As A Factor Impeding Recourse To Foreign Law’, 80 Tulane Law Review 2006. In 1995 Justice M.L. Phendse, acting Chief Justice of Bomba y High Court at the valedictory function of a day long seminar on crimin ology held at Bombay University Department of Law and the Greate r Bombay Legal Advice Committee stated that his experience has revealed ‘that in Maharashtra, the section on marital cruelty is misused by women to harass their husbands and in-laws. See Gangoli, supra n. 159 at 116

Chap.

1—The Role of the Judicial Education Discourse

57

wasteful.!92 To some extent, the concealment of the foreignness of the source may be justified by realistic considerations. But closing one’s mind to foreign sources altogether must, in intellectual terms at least, be seen as a sign of a closed and not a pragmatic mind. Also, as observed by Sands. iudges who show no respect to other legal systems

also oppose the global rules of international law.!93 He contrasts the US line of approach!94 with the UK approach!® to the rules of international law. Sands has tried to reason this different approach to international law by the US and the UK judges, by tracing the importance given to the subject of international law in the two

jurisdictions during basic legal education. Most of the US law schools do not teach international law, and those that do, tend to treat it more as a poor relation of political science, international relations or social

theory, with the result that its normative value is diminished. The JE discourse therefore is the only medium left open to acquaint judges with the good practices that are being developed in different jurisdictions and how these help the judiciaries. For instance, in

192. 193. 194.

Markesinis, n. 190. Sands, n. 53. The case in point is Breard vs. Commonwealth, 513 U.S. 971 (1994). This case had reached the fifteen judges of the ICJ concerning Virginia’s right to execute a Paraguayan man called Angel Breard convicted for raping and murdering Ruth Dickie. He had been given access to defence lawyers, but was not put in contact with Paraguayan Consular Officials, and they were not informed of his arrest. Only after he had been convicted and sentenced did he and his lawyers learn about an obscure international treaty — the 1963 Vienna Convention on Consular Relations that obliged the US to ensure that he was informed immediately of his right to have access to a consular official. However, after sentencing, it was too late. Federal and State Laws meant he could no longer raise procedural rights of consular access in new appeals to the Virginia Courts or to the US Federal Courts. The Clinton Administration admitted that it had violated international rules. But it was not willing to suspend execution ordered by the Court in Virginia. So, Paraguay commenced a case in the International Court. It argued that the US had violated its obligation under the 1963 Convention and that the execution should be suspended. The International Court ordered the US to take steps to ensure that

Breard was not executed before the Court had given its final decision in the case. Paraguay vs. United States, Order of 9 April 1998 ICJ Reports 1998, p. 248. But the International Court’s order cut no ice with the US Supreme Court. Breard’s argument, which stated, he might have run his case differently if he had access to the Paraguayan Consular Officials was held not to be plausible by the Supreme Court. It concluded that this was an area in

which Virginia retained full authority, unfettered by the restrictions of the US 195.

Constitution or international law. In March 1999, the Privy Council in London ordered the execution of two Trinidadians to be suspended until their cases before the Inter-American

Commission of Human Rights had been decided. Privy Council Appeal No. 60 of 1998, judgment delivered on 17 March 1999.

58

Discourse on Judicial Education

custody disputes involving children, lot can be learnt from foreign jurisdictions without reinventing the wheel.

Further, what is striking is that judges know very little of the transformation of international relations that has taken place over the past fifty years. Notions of sovereignty have changed with growing interdependence. To claim that states are as sovereign today as they were fifty years ago is to ignore reality. The extent of interdependence caused by the avalanche of international laws means that states are constrained by international obligations over an increasingly wide

range of actions. Every international treaty has a constraining effect.!°° The JE discourse can help judges to overcome such ignorance.

Eighth, the fact of commodification of legal education!’ because

of corporatization and commodification of learning that is taking place after liberalization has evaded education field, and fact that academic

mission of the law schools is compromised by a strong need to provide technical training and professional accredition leads to failure of the legal education to explore in a systematic manner, the questions raised by the obvious fact that the law is the most central and profound method through which power, and therefore justice, is dealt within a

society grounded on acceptance of the rule of law.!98 The JE discourse,

not falling into a course offering vocational degree or one that is going to guarantee jobs to the trainees as they are already securely employed, can afford to address issues evaded by the legal education due to commercialisation and commodification of the degree courses. It can engage judges in deep learning process to revive an academically neglected area of law and go further than the neo-liberal agenda for individualised learning to meet the labour market needs. The JE discourse can afford to take the risk of providing certain forms of learning or areas of knowledge for which there is limited percieved need in the market place.

Ninth, legal education focuses on cognitive learning and ignores affective learning. In the world in which we live and will be living, we need persons who are not only mature intellectually but effecti vely, who cannot only think but who can feel and relate to others. A humanistic approach to education addresses these problems. It provides an understanding of the psychological conditions of learnin g, of cognitive and affective development leading to self-actualisa tion or fully functioning persons. The conditions are the attitud es of respecting, Sa

aE ti eA

196.

Sands, n. 53.

197.

Andy

Boon,

SLA

John

PEL mE LT

Flood,

Julian

and Society, 2005 at 472-492.

198.

Webb,

‘Postmodern

profession

s? The fragmentation of legal education and the legal profession’, 32(3) Journal of Law Jd. at 483.

Chap.

1—The Role of the Judicial Education Discourse

59

prizing and trusting others; of realness, genuineness

or honesty in

dealing with others, and of empathic understanding of others.!99 Law

schools and universities imparting legal education do not undertake affective education believing it to be the domain of family and the religion. The JE discourse can accommodate this subject as it is still evolving domain. Affective education helps in the education of the whole person and in making him a fully functioning person. We do need judges who are fully functioning person, which according to Patterson

is most creative, open, sensitive, free from defensiveness,

constructive, trustworthy, dependable and not necessarily predictable,

free and not determined.29° Tenth, legal education is very much a products of its settings. Therefore it matters where judge got his legal education. According to Courselle (2006) the difference between an urban setting and a rural setting has implications as how the law is taught and consequently how it is practiced. If a judge is throughout his life well versed with urban settings and his educational make up including legal education that he udnertakes is built in urban setting, it has a effect on his knowledge of the problems occuring in rural settings. He will have only theoritical knowledge and no practical touch around such problems. A judge with this background is more likely to devise strategies to opt out of such conflcits by directing litigants to first approach self help groups in rural

places or put them through the ADR mode.?°! Eleventh important factor that calls for a separate discourse for the judge may stem from reality that judge may have undergone legal education some 30 to 40 years back when this education was still evolving and was in the state of infancy with most of the learning done through apprenticiship. The time lapsed since the formal education calls for the mandatory JE discourse for judges. Twelfth,

no

matter

how

liberal

and

humanitarian

normative

framework is provided, ultimately its essence can be lost in formalistic and narrow interpretation without due consideration to greater picture of normative evaluation. To move out of legalistic and formalistic application and interpretation of norms, a great mind with diverse

influences is needed. Nedelsky?% points out that it is through diversity

199.

200.

C.H. Patterson. Foundations for a Theory of Instruction and Educational Psychology. Harper and Row: New York, 1977. Thbid.

201.

Daine E. Courselle, ‘When Clinics are ‘necessities not luxuries’: Special Cha-

202.

llanges of running a criminal appeals clinic in a rural state’, 75 Mississippi Law Journal 2006. Jennifer Nedelsky, ‘Embodies Diversity And The Challenges To Law’, 42 McGill Law Journal (1996-97) at 91.

60

Discourse on Judicial Education

that we can influence the process of judicial deliberation and begin the enlargement of mind of those who are called on to adjudicate. Therefore, not only judicial precedents but even writings and philosophies of eminent persons from diverse fields play huge role in bringing diversity as well as in enlargement of the mind. The JE discourse can engage judges in these philosophies and writings from different parts of the world and from different fields. Many of these eminent philosophers devoted their full life to analyze history, politics,

economic and social conditions around them.293 Most of their observations continue to hold ground even as of today. For instance, Marx while writing on such socio-political matters as the law on the thefts of wood and the poverty of Moselle wine growers — became aware of how closely the laws were formed by the interests of those who were in power. He advocated for rise of socialism in background of inhumane conditions inflicted by industrialization, where workers continued to suffer unhealthy conditions, long hours and at pleasure of factory

owners.°4 Surprisingly even today laws are promulgated by and for the benefit of powerful and elites and even to this day labour conditions are almost as inhuman.

The JE as a dialectic discourse can engage judges in writings by Marx and other eminent philosophers from different parts of the world and thus help in breaking their insulation from ground realities. These writings can help in getting out of inward looking formalistic attitude which needs to be kept out of judging methods. Finally, the conflicting opinions on how a judge should give justice relying on the archaic normative framework to the present day conditions are never threadbare discussed and debated in every law school and therefore every judge is not in position to appreciate the complexities of judging. While in law schools, the young minds are not ready for this debate or as they intend to enter into legal and paralegal professions right after basic law degree, they are disinterested at that stage of their life in this debate about judging. It is only when a small percentage of them when they assume judgeship that they face

problems about their role.?°> At that juncture they are curious to know

and read all the literature that can reflect on their role. The JE discourse, to fill this curiosity, in India and other jurisdictions is 203.

204. 205.

See David McLellan. Marx. (2™ Ed). Fontana Press: London, 1986. David,

provides account from different stages of Marx’s life and informs that Marx had to sacrifice many things in his life, abandon many places and search for new jobs all the time and even lost his children and wife to poverty, just because he believed that change through revolutions was needed so that even working class gets its due share in the capitalistic production ways. Id. at 27, 33. Barak n. 49 at x.

Chap.

1—The Role of the Judicial Education Discourse

61

designing training courses to help judges decode the complexities of judicial process and understand their role and the shift in that role after another turning period in nation’s history (the emergency period in India and enactment of Human Rights Act in UK). Conclusion

The above discussion establishes without any doubt the need for imparting training to the members of the judiciary at every level with a view to improve their performance, competence and efficiency. In this chapter, I have attempted to provide an exhaustive list of reasons that justify the increased investment in the JE discourse by the state. The state must therefore make an adequate arrangements to support continuing education not just for the judges but for a// personnel in the court system, including administrators, human resource people, computer specialists, secretaries, court reporters and security personnel. It needs to provide budgets not only to provide continuing education in many diverse subjects, and to all personnel engaged in the functioning of the court system, but also to support the R&D activities. Most of the institutions providing the JE discourse in the west are found investing heavily in their R&D activities. These research activities help judges to reflect upon their judging methodology. For instance, in the USA, in the year 1994, the FJC conducted a research that showed that despite having long-standing authority to appoint experts, 80 percent of Federal District Court Judges had never used one.?2°° Further, the 1999 National Center for State Courts Survey showed that public trust and confidence in State Courts lagged behind the confidence ratings of other

institutions.2°7 Such studies provide feedback to the judicial system and

help it to strengthen its legitimacy. In 2004, in India, the NJA Bhopal undertook a research project on Access to Justice in collaboration with the UNDP to investigate the difficulties experienced by poor and disadvantaged people in accessing the justice in trial courts. This project underlined the importance of improving infrastructure in trial courts and led to many changes since then. In 2007, the NJA, Bhopal carried out major research on sentencing in rape cases that showed many inconsistent approaches in dealing with those accused of rape and also victims of rape. All these research initiatives need financial support and the state should take upon itself the burden of financing

206.

207.

Joe S. Cecil & Thomas E. Willging, ‘Accepting Daubert’s Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity’, 43 Emory L.J. 1994 at 995, 1004-05 tbl.1. Herbert M. Kritzer & John Voelker, ‘Familiarity Breeds Respect: How Wisconsin Citizens View Their Courts, Summary of State-Level Court Evaluation Surveys’, 82 Judicature 1998.

Discourse on Judicial Education

62

such initiatives as in the long run these efforts are going to benefit the citizens. Finally, as compared to the European nations, where trial court judges have to undergo an extensive educational F Drepaisuen and the trial court possibly an internship with a judge to get judgeship, judges in the common law countries like India face only minimal prerequisites for assuming the judgeship. Mere law degree and competitive exam provides the judgeship. Therefore the importance of training cannot be over emphasized in such jurisdictions.

208.

In France, for example, judges are selected by a competitive examination, attend a specialized school, and serve as the equivalent of government civil service officers. In Germany, prospective judges must pass two rigorous examinations and must serve a practicum with a judge. Similarly, in Japan, prospective judges must graduate from a law department of a university, pass a national examination, serve two years of training at a national institute, and

then serve as an assistant judge before being promoted as a judge with a full ten-year term.

CHAPTER TWO

WHY AIMING FOR PROFESSIONALIZATION THROUGH THE JUDICIAL EDUCATION DISCOURSE? The need for continuing education throughout their career is acknowledged now openly by judges. Moving forward from the need debate, this chapter undertakes the new debate: on relevancy and importance of professionalization issue to the judiciary and whether through the JE discourse it would be possible and beneficial to professionalize the judicial workforce. Introduction

The structural location of the judiciary as an institution is quite different from any other occupation. It is independent of the political and the executive wing in the governance framework due to the separation of power doctrine, yet it is an equal and an influential wing in the democratic governance framework. It becomes therefore necessary to know if the judiciary, an important organ of the legal system, entrusted with the constitutional responsibilities to uphold the rule of law, protect democracy, and render timely and unbiased justice to all — can be called as a profession. We need to know, whether this group trusted by the civil society and subaltern groups to effect changes, is a profession? If judging, as such, requires professionals or lay members can be entrusted with justice dispensation tasks in view of an interesting peculiarity of some countries which are managing almost 90% of conflicts through lay persons? Will it be sensible to exclude judges for the sake of saving revenue? Can judicial systems be dispensed away in the future?

If it is proved that judging should be entrusted to professionals, and the justice system would benefit by the judicial professionalization, then the next inquiry would be to know what route should be taken to professionalization so as to transform judges into professionals and how other disciplines are professionalizing their workforce through the medium ofthe training discourse. Such inquiry can help in developing the JE discourse to transform a judge into an autonomous professional

[ 63 |

64

Discourse on Judicial Education

being, who has constructed his/her own professional identity, but whose professional identity, the level of commitment, and the projected career, strongly reflect the structural variables delivered in the JE discourse. This chapter is divided into four parts to deal with above specified queries. Part I reviews

sociological,

management

and legal theore-

ticians’ perspectives on — what are professions? How they are different from non-professions? Part Il tests whether judiciary is a profession? Part Ill finds out why are judges expected to act as professionals? How does the professionalism on the bench serve the interest ofjustice? Which values of professionalism are internalized by the judiciary? Why and for whose benefits these values are being stressed upon? Part IV scrutinizes whether it will be possible through the JE discourse to help judges to internalize attributes of a profession and thereby attain the judicial professionalization? 1.

Understanding the professions

The sociological approach views a profession as an organized group which is constantly interacting with the society that forms its matrix, which performs its social functions through a network of formal and informal relationships, and which creates its own subculture requiring adjustments to it as a prerequisite for career success.! Whereas the management approach views professions in terms of their human capacities, their intellectual output, their efficiency, how they contribute positively to the organization which they are serving, how their output and performance can be improved more for the benefit of the organization, and how these knowledge workers have to be managed within an organization. Sociologists, more than any other group, have done considerable work on the concept of a profession. However, no homogeneous conceptualization emerges from this group due to differences in their inquiry point. Whereas some relied on the noun form as a starting framework — profession and professionalism, others worked on the adjective concepts — professional and professionalization. Further differences emerge on account of the use of different scales by everyone to understand how an occupation transforms into a professi on. Some sociologists relied on the specific attributes to define profession? et

|. 2.

Ernest Greenwood, “The Elements of professionalization.” In Professionalisation, by Vollmer and Mills. London: Prentice-Hal l International, Inc..

1966. A.M. Carr-Saunders, Professions: Their Organisati on And Place In Society. Oxford: Clarendon Press, 1928; Talcott Parsons. “Some Problems Confronting Sociology as a Profession”, 24(4) American Sociol ogical Review, 1959 at 547; Burton R. Clark, “Organisational Adapta tion to Professionals”, in Vollmer and Mills, infra n. 3.

Chap. 2—Why aiming for professionalization thr. the JE discourse?

65

and some treated profession to be a utopian concept.> Further, not all sociologists consider profession as an occupation.‘ It becomes therefore imperative to understand the different viewpoints that have emerged. 1.1

Who is a professional?

From the sociology discipline we have Clark for whom professional is an

expert having special knowledge at his command who seeks a large degree of autonomy from lay control and normal

organizational control.>

We also have Becker for whom

professions signify an occupational status symbol which is put to use either in attempting to bring about social mobility for aspiring groups, or to protect established groups from interlopers and therefore a person cannot be afforded the status of a professional unless and until he/she after having undergone special education or training in specialized knowledge gains expertness in that knowledge, and use it to command the privilege to autonomously determine what should be done and how it should be done and derive aims and methods from a professional body.©

Hall, another prominent sociologist, provides five attitudinal attributes central to the professional model: (i) the use of the professional organization as a major reference group, (ii) a belief in service to the public — a belief which includes the professional’s claim that he can diagnose the problems to be solved better than the layman or lay body that seeks this service;

(iii) asense of calling to the field;

(iv) belief in self-regulation;

3.

H. Vollmer and D. Mills, “Editor’s introduction” in H. Vollmer and D. Mills (Eds.) Professionalization, London: Englewood Cliffs, N.J. Prentice-Hall, Inc. (1966) at v-ix; H. Vollmer and D. Mills, “The Concept of

Professionalization” in H. Vollmer and D. Mills (Eds.) Professionalization at 2-3; H. Vollmer and D. Mills, The Sociology D. Mills (Eds.) Professionalization at 139-140.

4.

Morris

L. Cogan,

“Towards

a Definition

of Work,

H. Vollmer

of Profession”,

23

and

Harvard

Educational Review, 1953 at 33-50.

5. 6.

Clark, n. 2 at 285. for the Professions, by H. Becker, “The Nature of a Profession.” In Education 1962. press, Chicago of University Chicago: B.H. Nelson.

66

Discourse on Judicial Education

(v) autonomy — the feeling that the practitioner ought to be able to make his own decisions without external pressure from clients, those who are not members of his profession,

or from his employing organization.’ From the management discipline we learn that professionals are knowledge workers and employees who apply their valuable knowledge and skills developed through experience to complex, novel, and abstract problems in environments that provide rich collective knowledge and relational resources.® This class of workers is highly paid, high status employees who apply their specialized knowledge, to high-value-added problem solution processes.? According to Oxford Handbook of Human Resource Management, knowledge workers (i) tend to wok exceptionally long hours with commitment more to the nature of the work rather than to the organization;

(ii) are interested in challenging work which required creativity and initiative;

(iii) identify more with like-minded professionals than the organization for which they work and therefore develop strong interpersonal network that span _ organizational boundaries; (iv) command high rewards because of their know-what, knowhow and know-who;

(v) tend to develop their own social environments and professional networks within which they can enhance and enact

their unique sets of expertise. !°

1.2

What is professionalism all about?

According to Richard, professionalism defies simple definition. It can be a call upon the legal profession to restore collegiality and civility to the practice of law, it can be mere requirement to act within the bounds of established ethical guidelines; it can be demand to provide greater access to justice to all or it can include traits such as competency, integrity, civility, honesty, morality, compassion, fairness, respect to all or it can include everything. Therefore, professionalism is

7.

8.

9.

10.

Hall, Harry S. “Politicians and Professionals.” in H. Vollmer and D. Mills (Eds.) Professionalization, n. 3 at 310-321. Peter Boxall, John Purcell and Patrick Wright. “Preface.” In The Oxford Handbook of Human Resource Management, by John Purcell and Patrick Wright Peter Boxall. London: OUP, 2008. Reich, R. The Work of Nations: Preparing Ourselves for 21st Century

Capitalism. London: Simon and Schuster, 1991. Boxall ef. al n. 8

Chap. 2—Why aiming for professionalization thr. the JE discourse?

67

an elastic concept the meaning and application:of which are hard to pin down. Richard further clarifies that professionalism is certainly more than ethics.!! For Parsons, professionalism meant -the systemic

use of any scientific knowledge.'* Vollmer-Mills define professionalism as an ideology and associated activities that can be found in occupational groups whose members aspire for professional status.'3 For Blau-Scott professionalism signifies that decisions and actions are governed by universalistic standards, i.e., they are based on certain objective criteria which are independent of the particular case under consideration and not based on the professional’s self-interest where a distinctive control structure exists which is different from the hierarchical control exercised in bureaucratic organizations .'4

From the above sociological explanations, one can deduce that professionalism refers to the values imposed by the profession itself in the form of practice norms or ethical guidelines, that may ask its members to provide greater access of their services to the general public, display competence and efficiency at their work, become role models for all others by displaying virtues such as compassion, honesty, fairness, morality civility, integrity in all their work. Also, the legal system acknowledges that professionalism is a demanded behavior that the legal system has to adhere to, least the system becomes so unpopular that the whole apparatus created to support it, falls apart and

in disuse.!° 1.3

)

What is referred to as professionalization?

For Young, professionalization implied institutionalization of an occupational group where professionals operate under an organizational structure with established codes

of conduct and standards.'®

11.

Thomas E. Richard, “Professionalism: What Rules Do We Play By?” 30 Southern University Law Review 2002-2003 at 15.

P22"? Parsons, Zz at O47. 13. Vollmer- Mills, n. 3.

14.

15.

See Peter M. Blau and W. Richard Scott, Formal Organisations: A Comparative Approach. London : Routledge, 1969 at 60-62. See C.B.S. “Limiting Judicial Incompetence: The Due Process Right to a Legally Learned Judge in State Minor Court Criminal Proceedings” 61(7) Daniel R. Coquillette, 1975 at 1454-1499; Virginia Law Review Law School, Legal College Boston Theory” “Professionalism: The Deep June 1, 1994: 1994-02, No. Paper Research Series., Studies Research Paper http://ssrn.com/abstract=753492;

W.

Bradley

Wendel,

“Professionalism

Interpretation” 3 Northwestern Law Review 2005 at 99.

16.

Young, Angus. “Regulating non-executive directors in Australia: legal approach.” Company Lawyer, 2008, 29(11): 323-329 at 324.

as

:

a socio-

Discourse on Judicial Education

68

For Blumer, professionalization represented an

indigenous effort to introduce order into areas of vocational life which are prey to the free-playing and disorganizing tendencies of a vast, mobile, and differentiated society undergoing continuous change. Professionalization clothed a given area with standards of excellence, to establish rules of conduct, to develop a sense of responsibility, to set criteria for recruitment and training, to ensure a measure ofprotection for members, to establish collective control over the area, and to elevate it to a position of dignity and

social standing in the society.*! :

Vollmer-Mills term the process by which an occupation becomes a profession as professionalization. According to Vollmer-Mills,

when people are not randomly selected for any job, but are selected on the basis of previous similar experience, so that they continue to carry out whatever skills and knowledge they have acquired in previous training or job, and when these people become self-conscious of this continuity and start speaking about a ‘career’, and develop social and cultural mechanisms to protect and enhance this continuity, we witness a trend toward more formal occupational association and more formalized occupational codes of behavior in many diverse lines of work, which we describe

as a movement towards professionalization. '8 According to Goode, as occupations become professionalized, they acquire several features reflective of these two core characteristics. Such features are:

(i) the profession determines its own standards of education and training;

(ii) the student professional goes through a more far reaching adult socialization experience than the learner in other occupations; (ili) professional practice is often legally recognized by some form of licensure;

(iv) licensing and admission boards are manned by members of the profession;

(v) most legislation concerned with the profession is shaped by that profession;

(vi) the occupation gains in income, power and prestige ranking and can demand higher caliber students:

17. 18.

Herbert Blumer, “Preface”, in Vollmer and Mills. n. 3. Vollmer and Mills, n. 3 at 2.

Chap. 2—Why aiming for professionalization thr. the JE discourse?

69

(vil) the practitioner is relatively free from lay evaluation and control;

(vill) the norms of practice enforced by the profession are more stringent than the legal control; (ix) members are more strongly identified and affiliated with the profession than are members of other occupations with theirs;

(x) the profession is more likely to be a terminal occupation.!° 1.4

Differentiating profession from career and occupation

To understand how occupation, career and profession differ from each other, it becomes imperative to understand how standalone these terms are defined. Wilensky defined career as a succession of related Jobs, arranged in a hierarchy of prestige, through which persons move in an ordered (more or less predictable) sequence.*® Roth considered career as a series of related and definable stages of phases or a given sphere of activity that a group of people goes through in a progressive fashion (that is, one step leads to another) in a given direction or on the way to a more or less definite and recognizable end point or goal or

series of goals.*! For Coquillette, simply passing your time in an occupation or careening through life in a career, or even being called by your talent to a particular job does not require anything from you. But being ‘professional’ most certainly does. Here the root is the latinprofessio or ‘declaration’ referring to a vow, a declaration of belief — an

avowal made by you.?* According to Greenwood, the term career is, as a general rule, employed only in reference to a professional occupation. Thus, we do not talk about the career of a bricklayer or of a mechanic; but we do talk about the career of an architect or of a clergyman. Further, career expectations are an essential component of profession, to such an extent that asking what is happening to professionals today is almost equivalent to asking what is happening to their modal patterns of career. Subjectively, career is a pattern of organization of the self. It

19.

See W.J. Goode, “Encroachment, Charlatanism and the Emerging Profession:

Psychology,

Sociology and Medicine”, 25 American

1960 at 902-914. William Goode, Vollmer and Mills, supra n.3 at 34.

20.

21. 22.

“Profesions

and

Sociological Review, Non-Professions”

in

Harold L. Wilensky, “Orderly careers and social participation: The impact of work history on social integration in the middle mass” 26 American Sociological Review, 1961 at 521-539. Julius A. Roth, “The necessity and control of hospitalization”, 6 Social Science and Medicine, 1972 at 425-446. D.R. Coquillette, n. 15.

Discourse on Judicial Education

70

epitomizes, therefore, the professional's self-involvement with his work as weil as the legitimacy he confers to the elites — professional or organizational — on whom his future depends, both materially and

psychologically.”

Phillips, who did inquiry on the legal profession, opined that the ingredients that separate an occupation from a profession are — knowledge of more than usual complexity; a theoretical grasp of the phenomenon’ with which the occupation deals; conscious and deliberate effort to imbue succeeding members of the profession with its ideals; recognized admission and disciplinary procedures to ensure proper levels of service and conduct; a true spirit of altruism and

licensing.?4 From

the

above

literature

on

the

differences

between

the

professions from the non-professions one may deduce that:

(i) outside evaluations are not possible for professions which is

a norm for non-professions2>; (ii) professionals even in the employment of public or private sector cannot be equated with the working class which is

composed of non-professionals?°;

(ili) professionals are more independent even within the organizational set up as compared to non-professionals in the same set up as they command more functional auto-

nomy, have negotiation powers, create their own role2’;

(iv) professionals

command

some

authority over people they

serve which non-professionals do not28;

(v) professionals because of their specific knowledge evoke a certain amount of public interest which non-professionals

cannot evoke for their work.??

eee

255 24.

25.

26. 27.

ZOO 29.

Ne ata 1a Sir Fred. Phillips, Ethics of The Legal Profession. London: Cavendi sh Publishing, 2004 . at p. 9. E. Freidson, Professionalisation and the Organisation of MiddleClass Labour. In P. Halmos, Monograph 20 : Professionalisation And Social Change: The Sociological Review. (1973) at 54, M. S. Larson, The Rise of Professionalism. (1977) University of California Press at xvi. Rue Bucher and Joan G. Stelling, Becoming Professional. London: Sage Publications, 1977 at 1-286. 21. William Goode, “Profesions and Non-Professions” in Vollmer and Mills, supra n.3 at 34.

Chap. 2—Why aiming for professionalization thr. the JE discourse? 2.

7\

Is judgeship a profession?

After understanding the role of a profession in the society it becomes necessary to know if the judiciary can be categorized as a profession. To many this inquiry would seem futile as the Bar is already an undisputed profession and the judiciary being part of the same legal system as the Bar, sharing common beliefs, theories, practices and ideas about the nature of their discipline and even both undergoing the same education, is an undisputed profession. This logic is supported by Bucher-Stelling who provided the idea of the basic social units which are in movement within the professions as segments and defined such segment as a subgroup within a profession, composed of individuals who have in common some professional characteristics and beliefs which distinguish them from members of other segments. Members of a segment share a specific professional identity: they also have similar ideas about the nature of their discipline, the relative order of importance of the activities it includes, and its relationships to other fields. In addition, the segment members share a professional fate: events have similar effects on, or implications for, those in a given segment, while those same events may have quite different conse-

quences

for others in the profession.*° Reducing

this to logical

equation, we get: if B=P and B and J both CLS, then J=P

Here, B=Bar; J=Judiciary; P=Profession and LS=Legal System.

However, above logic is not deductive one but a weak inductive logic which is open to challenge owing to shallow syllogism. It is like saying —- Some men are tall, X is a man, Therefore X is tall. Just because some members of the legal system are in a recognized profession (the bar), and since judiciary is also part of the legal system, that entitled it to be called as a profession.

Apart from the above fallacy, reports and recorded census are relied on to include the judiciary in the category of the profession.>! Also we have an academic and scholarly presumptions on inclusion and exclusion of the judiciary in the category of a profession. For Paterson, judiciary is an ambiguous entity and one cannot definitely declare it to be a profession.>* For Szelenyi and Martin also, it is problematic to

30; 31.

32.

Naz).

Seen. | at 10 where the United States Bureau of the Census, 1950 Census of

Population: Classified Index of Occupations and Industries provided by Washington, D.C.: Government Printing Office, 1950 includes among others judges, and, hence supports the inclusion of judiciary in the category of a profession. Paterson, Alan. “Becoming a Judge.” In The Sociology of the Professions: Lawyers, Doctors and Others, edt. by Robert Dingwall and Philip Lewis, London: Palgrave Macmillan, 1983. At 263, 265.

7D

Discourse on Judicial Education

apply the ideal type of professionalism to the judiciary which is part of the state’s bureaucracy.7? But for Ugljesa who argues that proper professional ideology may not only coexist with bureaucratic ideology, but may be even supported or created by it, the fact that the judiciary is a part of the state’s bureaucracy does not prevent it from also being a

profession.34

Without getting trapped in flawed syllogism and contrary opinions formed by the scholars, it would be more useful to tests the applicability of significant attributes of the established professions to the judiciary to logically deduce whether the judiciary is a profession or not.

2.1

The attributes of a profession Sociologists, in their attempt to make the case for the inclusion of

any occupation in the category of the profession, devoted most of their work to discern about the attributes of existing professions. The study of attributes of a profession revealed in sociological literature establishes that there are two levels of expectations from the professionals — one at the institutional level from such occupation, and

second, at the individual level, from its members. At the institutional

level, for any occupation to be transformed into a profession, it has to (i) be based on intellectual activity; (ii) have definite and practical purposes; (ili) have effective self-organization mechanism; (iv) have systemic theory to be grasped by members in institutions providing specialized education about such theory and its utility; (v) possess ethical code; (vi) possess culture of its own; (vii) be full time occupation; (vili) have formalized occupational organization; (ix) establish training school to transmit body of theoretical knowledge and skills to its members: (x) establish its own standards for entrance into profession; (xi) have a distinctive control structure different from the hierarchical control exercised in bureaucratic organizations. SST

33.

34.

Ivan Szelenyi and Bill Martin, “The Legal Profession and the rise and fall of the new class.” In Lawyers in society: Comparative Theories, by Richard C. Abel and Philip S.C. Lewis, 256-272. 1989. Ugljesa, Zvekic. “A False Dilemma: Between the bureaucrat and the professional - Role of judges in Yugoslavia.” Tenth World Congress of Sociology.

Seton Hall Law REview, vol. 31, p. 764, 0.14, 1982.

;

|

Chap. 2—Why aiming for professionalization thr. the JE discourse?

73

_ For any occupation to be transformed into a profession, at the individual level, its members are supposed to (i) possess considerable amount of knowledge; (11) motivated by a desire to work for the welfare of society; (111) have service orientation; (iv) believe in the service to the public;

(v) organize themselves into association; (vi) havea

sense of calling to the field;

(vii) accept self-regulation evaluation;

to be free from

lay control

and

(vill) have a high degree of self-control of behavior mandated by ethical codes and other norms of practice;

(ix) identify more with likeminded organization for which they work;

professionals

than

the

(x) continue to increase their knowledge to ensure proper levels of service and conduct. The review of attributes further reveals that the ways of defining these concepts have been changing and over a period of time the criterion that was used to define the concept of profession was found to be no more relevant. For instance, the very earlier thought was that the typical profession or the true profession was only those in which the practitioners are freelance workers and therefore remunerated by the fee. This ideology was rejected by giving an example from the medical profession that ‘the profession of medicine is not ceasing to be a profession because the mode of remuneration is coming increasingly to be by salary instead of by fee, nor are those newer professions which are arising towards the technique of business and of administration are any less profession because their practitioners were salaried from the

beginning’ .°> Larson categorizes the list of all attributes into three dimensions— cognitive, normative and evaluative. The cognitive dimension is centered on the body of knowledge and techniques which the professionals apply in their work and on the training necessary to master such knowledge and skills; the normative dimension covers the service orientation of professionals and their distinctive ethics which justify privilege of self-regulation granted to them by society; and the evaluative dimensions compare professions to other occupations, underscoring the professions’ singular characteristics of autonomy and prestige. Larson suggests that these cognitive and normative elements

SO

Ws i

74

Discourse on Judicial Education

though significant, cannot be viewed as stable and fixed characteristics. Revolutionary social changes can have on the other hand significant implications for the professional practice because it affects, in both relative and absolute terms, the social status achieved by the professions and therefore both its cognitive and normative attributes. Also, only reliance on cognitive and normative attributes neglects the dimension of modernization that is shaping up the functional importance of the professions and forgets the concrete historical conditions in which the class formation occur granting privileges to some special occupations. Larson provides professional association, cognitive base, institutionalized training, licensing, work autonomy, colleague control and the code of ethics as visible characteristics of the professional

phenomenon.*° 2.2

Can the judiciary be categorised as a profession?

Sociologist like Greenwood clarifies that there is no strict dividing line between the professions and the non-professions. He guides us to imagine that there is a continuous line with its two ends; one end signifying the well-organized and undisputed professions and the other end signifying the least organized occupations that cannot transform themselves into a profession.*’ In between are the various points on that line, signifying the remaining occupations, which are more professional or less professional depending upon their closeness towards the two extreme points on the continuous line. Such geometrical imagination signifies that sociologists are taking due care of evolving professions, emerging professions and dispensation of old professions in the future. Goode in his paper on librarians observed that librarianship is moving along the professionalization continuum, still this occupation is not likely to achieve the status of a ‘profession’ because the general public is not likely to permit the librarians to attain the degree of

collective self-control required of the true professional groups.38

Gannon categorizes the attributes of professions into two analytically separate sets — structural and attitudinal — depending upon whether they apply to the professional group as an occupational category or to the beliefs and values of people who claim to be professionals.3? The combination of these two sets of attributes, define the professional model in the sense that they provide an analytic tool for considering various professions. However, he is critical of these attributes and according to him the unitary professional model which SESE ECTS 36. ai. 38. 39.

NC

RN an

ae

N. 26 at 208. Devas N. 29, Thomas M. Gannon, “Priest/Minister: Profession or Non-pr ofession?” Review of Religious Research 197| at 66-79.

12(2)

Chap. 2—Why aiming for professionalization thr. the JE discourse?

75

provides structural and attitudinal attributes as a test for deciding whether occupation is a ‘profession’ or not — is precarious, contains less social reward to produce adequate performance, and unsatisfactory for testing many occupations — as to whether they can be called professions. He takes the case of clergy or minister to prove his point, to show that all these attributes when applied to clergy in a religious order face some kind of problems and do not make a clear cut case for inclusion or exclusion of clergy in the category of a professional. He therefore calls for the modification of this traditional attributes approach so as to get a method which provides conceptual clarification, theoretical explication and precise operationalization for valid and reliable measures of professions and professionalization. For the same he offers following strategy: (1) stop reliance on the use of single, unitary dimensions (attributes) of professionalization. What is needed is a differentiated set of dimensions along which professions can be compared, thus breaking down the unilinear conception of profession; (11) avoid rigidly delimiting one’s set of variables and setting artificial boundaries around the action systems to be studies and instead adopt more explicit and thorough-going revitalization of institutional analysis;

(iii) drop the notion that ‘professionalism’ is a guiding thought rather than principal rhetoric of the practitioner. The

literature

discussed

above

on

attributes

of a profession

clarified that the nature of work, functional autonomy, theoretical base,

authoritative status makes the judiciary share most of the attributes of the other established and undisputed professions and makes a case for its inclusion as a profession. Also, as pointed out by Gannon above we should stop bothering about any single attribute, care about larger picture and use the institutional analysis to support the inclusion of the judiciary as a profession. Therefore the geometrical continuum concept of Greenwood helps us to place safely the case of the judiciary lying very close on the continuum to a point of established and undisputed professions. 2.3.

Which attributes of a profession are internalized by judges?

As of now we are certain that the case of the judiciary lies on the line at a point very close to the established professions. It becomes therefore important to know how it fares in terms of internalization of essential attributes of a profession. Such study will provide the scope for expanding the limits of the JE discourse where judiciary is found in breach ofthe essential attribute.

Discourse on Judicial Education

76

2.3.1 Intellectual activity and the Knowledge base Both disciplines - sociology and management, consider intellectual activity as an important attribute of the profession and knowledge necessary to distinguish professionals from non-professionals as well as other professionals. Since courts are approached to decide political, economic, social, religious, historic conflicts, anthropological ques-

tions, judges who are called upon to resolve these complex and controversial issues, need to possess the knowledge base and intellect. Therefore judges all over the world are called to comply with this attribute and even the entry requirements for appointment as a judge take care of such compliance to some extent. Most of the written constitutions and other statutes, conventions and rules governing the judicial appointment in different jurisdictions of the world prescribe the qualifications for consideration of appointment to the judicial office be it at the court of first instance or the constitutional court. Judiciary itself recognizes importance of this attribute. As said by Cardozo, in judicial process, reasoning is vitiated by adhering to abstractions, by starting with a prepossession and by finding arguments to sustain it. It is full knowledge of the best that ...can help judge to get rid of the prepossessions which are merely individual and personal. 2.3.2 Full time profession

One cannot treat judging as an ordinary job or service on the lines of banking or the post office job where members can take part time employment to feed themselves. Stressed by the sociologists Moore and Wilensky, this attribute is highly desirable for judges so that they are able to fully concentrate on the judging work and do not undertake any other side activities. Majority of the judges around the globe are engaged in judicial office on full time basis for the judging work. However, it is to be noted that some judging work is done also by lay members of public, the ADR experts, the executive who may or may not have legal theory foundation, and by volunteers who preside over the magisterial courts and the tribunals. But to a large extent the judiciary is seen to comply with this attribute by engaging full time in the judging work. 2.3.3 Formation of a professional association From the work of sociologists who studied the history of the evolution of the professions, it emerges that as soon as a profession was born, its practitioners took steps to recognize the common group Interests and form a professional association to protect those interests. eT

40.

Benjamin J. Cardozo, The Nature of Judicial Process, Yale Law Press 1921.

Chap. 2—Why aiming for professionalization thr. the JE discourse?

77

According to Carr-Saunders, these associations emerge when the better

equipped among the practitioners realize that they possess a certain craft, and only those should be given admission in these associations who adhere to certain standard in practice. In this way, an attempt is made to demarcate a line between themselves and others. In a more advanced stage, these associations come up with their own schools, educational and training institutions. All these responsibilities are undertaken by the professional association with one aim in mind: ‘to

contribute to the respectability of the professions’.4! Apart from CarrSaunders,

this attribute is considered

essential by the sociologists

Flexner, Moore, Wilensky, Hall and Larson.

Recently there has been a rise in networks and associations of judicial officers formed for different purposes. The role played by these associations differs from one judicial culture to another. In Latin American countries, like Argentina, its largest organization of judges, the Federation Argentina de la Magistratura (FAM) has protected its judges by protesting against the assaults on the rule of law in San Luis province. Its Buenos Aires based judges’ association Justica Democratica and Argentine Association of Women Judges have time and again condemned executive subordination of the courts.42 The Union of Judges in the Czech Republic established in 1989 — a professional joint interest organization of judges makes it obligatory on the part of the state authorities to discuss with it all important measures that the state authorities want to introduce either with respect to the administration of the courts or with respect to laws linked to the judicial

activity.43 In Estonian Republic, its Union of Judges formed as voluntary professional union of judges provides forum to judges to stand up for their independence and takes steps to protect their private,

employment

related

and

socio-economic

interests.44

The

Swiss

Association of judges with support from an independent foundation conducts training courses for the Swiss judges.*> In Bulgaria, its Union of Judges protested against an action of the Ministry of Interior in February 2012 of publicizing the name of special judge that could have harmed the judge individually.4° Therefore in jurisdictions of the

41.

N.2at5.

42.

Rebecca Bill Chavez, The Rule of Law in Nascent Democracies: Judicial Politics in Argentina, Stanford University Press: California, USA (2004) at

44.

96. Report of Council of Europe on Multilateral Meeting organized by the CoE jointly with the General Council of the Judiciary of Spain, Madrid, 9-11 November 1993, published in 1995 at the Netherlands. At p. 80. Id. at 86-87.

45. 46.

Id, at 135. http://www.novinite.com/view_news.php?id=136270 accessed by author on

43.

16 May 2012 at 17:58 GMT.

Discourse on Judicial Education

78

world, professional associations are being formed for protecting the common interests of the judicial fraternity. There are some regional and international associations formed to voice the opinions on judicial independence and the freedom of profession. However, these are not successful due to high entry fee or ignorance about them in judiciary. For instance, the Commonwealth Magistrates' and Judges' Association formed amongst judicial officers from over 68 jurisdictions in the Commonwealth and beyond, requires membership fee up to 500£! This is great money for any judge from Africa and South Asia, costing almost 5 months’ salary in some jurisdictions! Also the UK Association of Women Judges founded in 2003, to promote greater understanding and better resolution of legal issues facing women, requires 65£ to become a member. 2.3.4 Service orientation

This attribute calls upon the professionals to be motivated by desire to work for the welfare of the society, have a belief in service to the public and rise above the self interest in their work and promote the community interest. Maclver provides that the service ideal distinguishes the professions from other occupations and businesses.*” Such an ethical position of the professions was long ago approved by Plato in

the Republic.*8

Strangely enough this important attribute has become a utopian ideal for most of the professions today including the judiciary. For justice to be fair and effective, judicial compliance with this attribute is the key. Even though judges are not motivated by profit orientation, their biases and prejudices create obstacles in complying with this attribute fully. The appeasement of the state authorities by judges is

witnessed around the globe in different jurisdictions, in different time

periods. For instance, it has been found that the Japanese judiciary rarely invalidates any statute passed by the government owing to the job posting incentives that they get for toeing in line with the

government.4?

47.

48.

49.

Robert Maclver, “Professional Groups and Cultural Norms”, Vollmer and Mills, n. 3 at 51. The American Medical Association, “A profession has for its prime object the service it can render to humanity; reward or financial gain should be a subordinate consideration.” The Code of Canadian Legal Profession says, “The profession is a branch of the administration of justice and not a mere money-getting occupation.” Each ‘art’, Plato pointed out had a special good or service. ‘Medicine’ for example gives us health; ‘Navigation’, gives us safety at the sea, and so on.... Eric B. Rasmusen and J.Mark Ramseyer, “Why are Japanese Judges so Conservative in politically Charged Cases?” 95(2) American Political Science Review 2001 at 331.

Chap. 2—Why aiming for professionalization thr. the JE discourse?

79

_ Whether or not the judiciary is found in complaiance with this important attribute, its applicability to the judiciary is non-negotiable. Where the judiciary is found in breach of compliance to this attribute, the recourse to the JEdiscourse needs to be taken to help the judiciary to comply with this attribute. 2.3.5 The Code of Ethics The professions are supposed to develop the code of ethics for their self-regulation. The code signifies that the profession is mature enough to take care of its affairs and the dereliction of duties by its members. No one but the professional is bound by the code, which is enforced primarily by the professional community but in part, and usually as a last resort, by the statute and the administrative regulations as well. The code embodies the terms of an implicit contract between the professional and the society, by which professional agrees to prevent its members from exploiting a potentially helpless layman and in return receives many privileges. The ethical problems are always putting the judiciary in the dock. Therefore for the judiciary also, as for other professions, the code of ethics is the most essential attribute that has the potential of encompassing all of the professionalism values that profession needs to conform to. Through such code, the judiciary can acknowledge that it has laid down what is acceptable and not-acceptable from the members. Further, the ethical code supports several aspects of judicial professionalization as noted by Rosen-Zvi. They (1) deal extensively with the status of judges as individuals and the prestige of the judiciary as an institution, setting high standards that substantiate the high moral authority of the judiciary; (ii) enhance collegiality among judges by imposing on judges collegial duties towards their fellow judges; (iii) secure social closure by demarcating boundaries of the profession,

separating them from legal profession, academia, etc.>° Thus the ethical code not only points toward professionalisation of judiciary but also it strengthens other subsets of attributes that strengthen judiciary as an independent profession, separate from the Bar.

2.3.5.1 Formation of the code of ethics The formation of the ethical codes for the self-regulation is not impossible and the judiciaries all over the world are warming up to the idea of having a Code to regulate the conduct. The US adopted its Code

of Conduct in 1973, which has undergone many revisions since then.>!

50.

51.

I. Rosen-Zvi, “Constructing Professionalism: The professional project of the Israel Judiciary”, Seton Hall Law Review (2000-2001) 760-828, at 789-793. See http://www.state.wv.us/wvsca/JIC/Codejc.htm [last visited 28/03/2009 at 16.55 UK time].

80

Discourse on Judicial Education

At the international level, for ensuring the integrity of the global judiciary, the Judicial Group on Strengthening Judicial Integrity was formed. It commenced as an informal group of Chief Justices and Superior Court Judges from around the world who combined their experience and skills to create the Bangalore Principles of Judicial Conduct. These principles give expression to the highest traditions relating to the judicial function as visualised in all the world’s cultures

and legal systems.°* Not only have some States adopted the Bangalore

Principles but many have modelled their own principles of judicial conduct on them. International organisations have also looked at it with favour and given it their endorsement.°? The UN Social and Economic

Council, by resolution 2006/23, invited member States consistent with

their domestic legal systems to encourage their judiciaries to take into consideration the Bangalore Principles when reviewing or developing rules with respect to the professional and ethical conduct of the

members of the judiciary.

—

2.3.5.2 The opposition to the code of ethics Many members of the judiciary are sensitive about to the content of ethical principles and responsibility for their regulation. Some vehemently oppose the imposition of the code of ethics and opine that if a person is appointed as a judge, the appointment itself is a vote of confidence that he or she is above reproach and if he/she is required to subject himself/herself to a code suggests there are doubts about his or her probity and integrity. They view such Code as unconstitutional and suggest for treating unethical behaviors by a quite word from the chief justice or by a verbal rebuke. There are studies like 2007 State Liability Systems Ranking Study>4 that prove that there is no evidence to support

the intuition that judicial ethics canons lead to less impartial judges.°5

Legal scholar Webb, who explores relationship between ontology and ethics by systematically analyzing various theori es on ethics — aretaic theory, deontology, virtue theory - their compe ting claims — to eee

52. 53.

as

Referred in Annexure III at p. 279 ofthis book The UNODC has actively supported it and it has also received recognition from bodie s

such as the American Bar Association and the International Commission of Jurists. The judges of the memb er States of the Council of Europe have

54.

55.

also given it their favourable consideration.

Humphrey Taylor et al.. 2007 The U.S. Cham ber of Commerce State Liability Systems Ranking Study - which conducted poll of general counsels and other senior attorneys at public corporations by Harris Interactive on behalf of the U.S. Chamber of Commerce Institute for Legal Reform. The Harris Interactive poll ranks from one to fifty the perceived fairness of each of the

states’ court systems based on a variety of factors, including how impartial the state’s judges are perceived as being. Benjamin B. Strawn, “Do Judicial Ethic s Canons Affect Perceptions of Judicial Impartiality?” 88 Boston University Law Review 2008 at 781.

Chap. 2—Why aiming for professionalization thr. the JE discourse?

81

have or not to have codes of ethics, after taking reader through advantages and disadvantages of various theories on ethics, finds all of them to be inadequate to regulate the professions. He develops concepts — being there, being one self and being for other. For him, these are three stages of human transformation and when one reaches from being there to being for other — one is transformed from just being to ethical human being. Such transformation requires three things — (i) authen-

ticity, (ii) responsibility and (iii) choice.°° Webb provides relationship

between these three elements and outlines four characteristics from the position of authenticity that ethics of responsibility would possess: (i) construction of democratic premise — meaning it would translate to meaningful work for professions — creating vehicle for both selfexpression and connection with others in the profession; (11) strong commitment to moral agency meaning that everyone in the profession would take moral responsibility for the career they have chosen; (ii1) transgressive meaning giving everyone freedom to be different when role so demands; (iv) concrete and contextual — meaning it is sensitive first and foremost to the needs of situation of a specific person. 2.3.6

Autonomy or Independence

Within the context of attributes, probably the most critical dimension in the analysis of profession is the variable of professional autonomy. Also, autonomy is both a structural and attitudinal attribute. While the structural aspect of autonomy can be subsumed somewhat indirectly under the efforts of professional associations to exclude the unqualified and to provide for the legal rights of the practitioner to practice, autonomy is also part of the work setting wherein the professional is expected to utilize his /her judgment and will expect that only other professionals will be competent to question this judgment. Moreover, autonomy also contains an attitudinal dimension: the belief of the professional that he/she is indeed free to exercise this type of judgment and decision-making. Professional autonomy for judges is valued as the most important value. The Bangalore Principles term it as ‘a pre-requisite to the rule of

law and a fundamental guarantee of a fair trial’.°’ The UN Basic Principles on the Independence of the Judiciary, designed to secure and promote the independence of the judiciary, ask the nation states to ensure that the independence of the judiciary is guaranteed and enshrined in the Constitution or the laws of the country.

56. 57.

Julian Webb, “Being A Lawyer/Being A Human Being” 5 Legal Ethics 2002 at 130-151. Evan A. Davis, “The Meaning of Professional Independence” 103 Columbia Law Review 2003 at 1281-1292.

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Discourse on Judicial Education

An independent judiciary on its own may not be enough to ensure the rule of law, but it can help in the construction of binding powerful actors. Judges have to be independent from all actors that tend to monopolise the power. An independent judiciary can help build the rule of law by guaranteeing that those who wield power submit to the rules. Only a judiciary that is independent of pressure, inducement and manipulation can provide the check on the abuses of power.°° Even though nations through their constitutions and laws guarantee judicial independence, there are instances in almost every country of the globe to prove that this attribute cannot be taken to be granted. The JE discourse can play an important role in raising the judicial consciousness to the frequent violation of this attribute. 2.3.7 The Systemic Theory _

According to Greenwood, professionals are supposed to possess skills that flow from a fund of knowledge organized into an internally consistent system called a body of theory. This theory helps the professional to rationalize operations in concrete situations. Preparation for a professional, therefore, involves considerable occupation with systematic theory, a feature virtually absent in the training of the nonprofessional. And so treatises are written on legal theory, musical theory, social-work theory, the theory of the drama, and so on; but no books appear on the theory of punch-pressing or pipefitting or bricklaying. Such importance of theory precipitates a form of activity normally not encountered in a nonprofessional occupation, viz., theory construction via systematic research. Professional members convene regularly in their associations to learn, to criticize and to evaluate innovations in theory. This produces an intellectually stimulating milieu that is in marked contrast to the milieu of a non-professional occupation. Due to such tendencies, every profession produces the researcher-theoretician whose role is that of scientific investigation and theoretical systemization. The net result is an accelerated expansion of the body of theory which lengthens the preparation deemed desirable for an entry into the profession and which leads to requirement for professional training on top of a basic college education.>? The judiciaries comply with this attribute fully. They produce a body of knowledge through Judicial decisions for the benefit of whole legal system comprising both the bar and the bench . All the doctrines, principles and maxims derived from the ratio decidendi of judgments form the part of theories that are systematically analyzed by other members of the legal System, commented upon, criticized and a

58. a9.

Chavez, n. 42 at 11. N. Pat ri+d3,

Chap. 2—Why aiming for professionalization thr. the JE discourse?

83

applauded. Concepts from other disciplines are assimilated in the judicial decision making work and new meanings are given to them in the legal context. Due to this assimilation we now have profound body of knowledge

and

various

theories

on

reasonableness,

objectivity,

rationality and impartiality exclusively applicable to the judicial work and judges have contributing to theorizing around these concepts — to develop an esoteric body of knowledge. However, it is not uncommon to find judges who impede the development of systemic theory by being close guarded and over protective about their work and discouraging criticism about their decision making work, performance and management style which is required for further theorization. Therefore at one level judiciaries comply with this attribute, at another level their narrow mindedness is restricting further theorising and development of new body of knwoledge. The JE discourse needs to acquaint judges with both these paradoxical approaches so that judges appreciate the need to adhere to this attribute. 2.3.8

Commitment

The sociological literature pertaining to socialization outcomes of

the profession calls for the commitment on the part of professionals. Compliance with this attribute demands from judiciary — the commitment to the justice. The judiciaries all over the world are expected to conform to this attribute by providing reasons for their decisions.®! This commitment to the justice can be shown by adherence to the constitutional values, to the Rule of Law, to the human rights, to social and economic justice. However, the judiciaries all over the world are accused of wrong commitments or self-commitment than the commitment to the cause of justice.®* Of late, it is becoming more common on the part of judges to forsake reasons. Large volumes of decisions that are churned out every day in almost every jurisdiction now routinely defy the constitutional principles and logical considerations, the rule of law ideals, with no clueafforded to the reader to enable him/her to make out

how the judge reached a particular decision. It therefore falls on the JE discourse to prepare the judges to adhere to this attribute.

60.

H.S. Becker, “Notes on the concept of commitment”, 57 American Journal of Sociology 1960 at 470-477.

61.

Kranti Associates Pvt. Ltd. and Anr. vs. Sh. Masood Ahmed Khan and Ors.,

62.

(2010) 9 SCC 496 and Smt. Tania Kar vs. Dr. Avijit Roy, Deputy Director, Directorate of Health Services, Port Blair, Cr. L. Rev. petition no. 81 of 2009 decided by Gauhati High court on 16" May 2011 observe that providing reasons for decisions is one way accountability attribute can be complied with. Picho Ali, “Ideological Commitment and the Judiciary” 36 Transition 1968 at

47-49.

Discourse on Judicial Education

84

2.3.9 Accountability

as the ability to In everyday terms, accountability is simply defined ding hold an individual or institution responsible for its actions. Accor to Weissman, the process of accountability involves— is (i) establishing a set of role relationships that detail who accountable to whom, for what, both within and without an

organization;

(ii) utilizing methods and procedures through which an account-

ing is given to the responsible parties that standards of effort,

effectiveness and efficiency have been met.°?

Till not so long ago, judges and scholars viewed the accountability

demand as a threat to the judicial independence.®* However, we have

now emerging scholarship that establishes the absence of any tension whatsoever between the accountability and the independence attribute. It is now held that both these concepts are means to serve the same end

— ensuring equal justice under the law to all.

Internal judicial accountability mechanisms, like: (i) open and public conduct of judicial work; (ii) appellate procedure to do away with miscarriage of justice; (iii) publication of decisions for public generally; {iv) freedom of academic criticism; (v) right to media to attend trial proceedings®° — are recognized by the judiciaries operating in democratic framework. However,

external

judicial

accountability

mechanisms,

like

(i) declaration of personal wealth and assets which is hallmark of transparency®’; (ii) setting up of independent commission to investigate the complaints against judicial members®®; (iii) allowing surveys by public and media on judicial work; (iv) rare and very limited use of the

63.

65.

Harold H. Weissman, “Accountability and Pseudo-Accountability: A Nonlinear Approach” Social Service Review, June 1983 at 323. Jonathan Lippman, “Institutional Independence of the Judiciary”, 240 New York Law Journal 6 (2008). H. Jefferson Powell, “The Three Independences”, 38 U. Richmond Law Rev.

66.

603, 612 (2004). F. Andrew Hanssen,

64.

“Is There

a Politically Optimal

Level

of Judicial

Independence?” 94(3) The American Economic Review, June 2004 at 712.

67.

68.

In the US, the Ethics in Government Act 1978 requires federal judges to disclose personal and financial information each year. Similarly in India district judges governed by the state civil services rules have to every year declare their personal and financial information. However, pursuant to the judgement of the Delhi High court in Secretary General, Supreme Court of India vs. Subhash Chandra Agarwal, AIR 2010 Delhi 159, now this requirement is imposed upon the Constitutional judiciary also. Prashant Bhushan, “Securing judicial accountability: Towards an independent commission” 42(33) EPW 2007 pp. 14-17.

Chap. 2—Why aiming for professionalization thr. the JE discourse?

85

contempt powers on people who criticise judiciary — are yet to be recognised in most of the world’s jurisdictions. Though the judiciaries are found taking steps to allow these, there is much left to be done. It therefore falls upon the JE discourse to help the judiciary in becoming comfortable with the attribute of accountability. Through the JE discourse, the judiciary can be made to realise the dangers in the absence of external accountability measures and the wrong signal that the judiciary sends to people by shying away from adopting these measures. 2.3.10

Competence

To be a judge is to exercise judgment, and some measure of creativity is a legitimate and necessary part of the job.®? For creativity, competence is prerequisite. Competence is not an ethical issue, but it places a duty to attempt to perform competently and a continuing duty to improve competence in areas where weakness is detected.”? From the point of view of public, the judicial competence is doubted when the courts fail to fashion a remedy for a proven violation of individual rights by intervening in the ongoing operations of state-run institu-

tions.’! Armytage defines the competence as: the ability to perform a range of tasks through the application of knowledge and skills to the resolution of particular problems

according to certain standards, within a framework of rules of

conduct and ethics of the judicial profession." Judges are removed from judgeship position when found lacking in competence. The judiciaries all over the world maintain the performance records to keep track of the judicial competence. In the USA, specific commissions are created since the 1980s to assess judicial competence for individual judges. Almost every state in the USA has its own commission to assess judicial competence on the basis of performance. These state commissions have developed criteria to assess judicial competence and those criteria include the following: integrity, legal knowledge, communication skills, judicial temperament, administrative performance, service to the legal profession and the public.

69.

70.

Felix Frankfurter, “Twenty Years of Mr. Justice Holmes’ Constitutional Opinions” 36 Har Law Rev 909-911 (1923). §S. Colbran, “A Comparative Analysis of Judicial Performance Evaluation Programmes”4(1) Journal of Commonwealth Law and Legal Education 2006,

71.

72.

35-67. Ralph Cavanagh and Austin Sarat, “Thinking About Courts: Toward And Beyond A Jurisprudence of Judicial Competence” 14(2) Law and Society Review 1980 at 371-420. Livingston Armytage, Educating Judges: Towards a New Model of Continuing Judicial Learning, Hague: Kluwer Law International, 1996 at 7.

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Discourse on Judicial Education

Every year, each judge’s competence is assessed on these criteria and on the basis of same, the judge is retained or removed from the post.73 Not all judiciaries comply with this attribute. Mostly under the blanket of contempt of court power resist any question on individual judicial competence. If at all, halfhearted compliance is done through the annual confidential reports to assess the competence of trial court judges and there is no uniformity in methodology that is followed to assess competence. It therefore falls heavily on the JE discourse to make judges aware about the sophisticated system developed in the western world to assess judicial competence of every judge in those systems so as to develop similar system in the domestic context. Judges need to be made aware that it is a poor professional who does not investigate their competence. preferring to hide behind unquestioning

tradition and conservatism."

2.3.11

Culture

The description of an occupation cannot be complete by mere reference to attributes like the prestige, remuneration and mobility. There has to be reference also to the subculture associated with it,

which profession itself resents as stereotypes associated with it. This includes the manners, mores and folkways peculiar to the calling, the legends grown about it and the symbols which it displays. Even though a profession may resist such stereotypes attached to it, but Caplow maintains that these stereotypes are based on certain real elements in

the working

profession./>

situation, however,

unfavourable

these may

be to the

The judiciary inherited its culture over a period of time though the seeds for a separate culture were sown in the shift that occurred from the 16" century to the present one. Due to this shift, whereas in the earlier centuries judges were viewed as servants of the Church or the King, today they are viewed as redresser of sort against the excesses committed by the powers that be for a common man. This transition has earned them a separate culture of their own. . However,

in India, the judicial culture varies within the hierar-

chical set up. For instance, though the higher court justices readily view

73.

74.

75.

According to the Office of Judicial Performance Evaluat ion, Denver, Colorado, USA, from 1988 through 2010, the office had conduc ted 11 such assessment for 1086 judges. See www.colaradojudicialperf ormance.gov accessed on 22/8/2012 in India at 20:28 time. S. Colbran, “A Comparative Analysis of Judicial Perfor mance Evaluation ve panda 1) Journal of Commonwealth Law and Legal Education 2006, 35-67. Theodore Caplow, “Occupational Images and Norms”, Vollmer and Mills. n. 3.

Chap. 2—Why aiming for professionalization thr. the JE discourse?

87

themselves as a judicial profession, the same cannot be said about the judges of trial courts who view themselves as the servant of the government or as employees of the state. This point of view surfaces on account of their appointment methods: which is selection by the state public service commission through written exam and or interview. 2.3.12

The Training

As the societies progress more, professions are found to be falling in disrepute for not serving the well members of society. To lift the professions from this disrespect, the concept of continuous training throughout lifetime of a professional to keep them reminding about the ideals of their profession emerged. Continuous training aims to arrest growing criticism and distrust for the professions. In this way, is has become an important attribute for all the modern professions. It provides opportunity to members of the profession to meet collectively and reflect on their working structure and come out with some

guidelines for the future direction.’° Therefore, as soon as an occupa-

tion transforms into a profession, the need for training is felt. Within the judiciary, there has been a cultural shift toward the concept of training, and we have moved from the period in 1970s when this concept was viewed in very negative terms with overall denial for any need for training to the post 2005 era of acceptance, recognition and demand for the training. This shift in attitude from reluctance to

demand for the training in the judges’ proves overall compliance with this attribute by the judiciaries of the world. 3.

Why is need felt to professionalize the judiciary? How does professionalism on the bench serve the interest of justice?

Professions are accorded more prestige by the general public than any other occupational category; receive higher pay than other occupational groups except the owners and managers of large businesses; are more likely to place themselves in the middle and upper stratum other than owners or top executives of large business; provided more autonomy, freedom for personal decisions, and creativity than any other occupation; get higher job satisfaction than others.’* Judicial professionalization will automatically afford judges these privileges which

76.

77. 78.

K. Malleson, The Use of Judicial Appointments Commissions: A Review of the US and Canadian Models (Lord Chancellor’s Department, Research Paper No.6, London, 1997 at 655); see also Kate Malleson, “Miscarriages of Justice and the Accessibility of the Court of Appeal”, Criminal Law Review 1991. K. Malleson, "Judicial Training and Performance Appraisal", 60 Modern Law Review 1997 at 656. §.M. Lipset and Mildred A. Schwartz, “The Politics of Professionals”, Vollmer and Mills, supra n. 3 at 310-321.

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Discourse on Judicial Education

would help them to render justice in fair and impartial manner without being influenced from any constraint.

Professionalization allows critical public scrutiny of any profession and calls upon the profession to demonstrate its competence while

preserving the integrity of its independence.’? Professionalization of the judiciary will call upon it to conform to the general and standard values imposed on every occupation that claims itself to be a profession like fearlessness, fairness, unblemished reputation, integrity, probity, uprightness, courtesy, etc.8° Such compliance will discipline judges to conform to the democratic public accountability, fidelity to the rule of law and adherence to the public norms of professional conduct.®! Judicial professionalization will be in the interest of the consumers of justice. Numerous studies have demonstrated that the professionalized legislatures produce-social welfare and regulatory policies that

are more favourable to the less advantaged citizens.82 Scholars who

propogate supply-side theories of litigation rates like Galanter, argue that the profesisonalised state courts act as the central political institution for redistributive policy making, supplying the prime avenues for redressing greivances of distributive politics. Therefore judicial profe-

ssionalisation will prove beneficial for less advantaged groups.*

The study by Yates et. al., concerning citizens’ propensity to invoke the state courts to settle disputes, found that the professionalism of the courts had important implications for citizen legal mobilisation. Their empirical research proves that judicial professionalisation results in greater certainity about outcomes.®4 According to Squire, the professionalised court systems provide judges with substantially higher salaries, which arguably attract better qualified jurists who enter public service with a preference for value neutral legalism and bureaucratized legal structures.°> For Yates et. al., judges in more professionalised courts 79.

Armytage, n. 72 at 4,6.

80.

F.A.R. Bennion, Professional Ethics. London: Charles Knight & Co. Ltd., 1969. Sambhav N. Sankar, “Disciplining the Professional Judge”, 88 Californ ia

81.

Law Review, 2000 at 1233.

82. Christopher Z. Mooney, “Citizens, structures, and sister states: Influence on state legislative professionalisation”, 20(1) Legislative Studies Quaterl y, 1995

at 47-67.

83.

84.

85.

Marc Galanter, “Why the “haves” come out ahead: Speculations on the limits of legal change” 9 Law and Society Review, 1974 at 95-160. Jeff Yates, Holley Tankersley, Paul Brace. “Assessing the Impact of State Judicial Structures on Citizen Litigiousness”, 63(4) Politic al Research Quaterly, 2010 at 796-810. Peverill Squire, “Legislative Professionalisation and membe rship diversity in state legislatures”, 17 Legislative Studies Quaterly, 1992 at 69-79. See also Peverill Squire, “Professionalisation and public opinio n of state legislatures” 55(2) Journa

l of Politics 1993 at 479-91.

:

Chap. 2—Why aiming for professionalization thr. the JE discourse?

89

enjoy a deliberative environment that provides them with the tools needed to make more fully informed, legally astute decisions.8° According to Brace and Hall: Profesionalisation changes the fundamental structure of the courts as an institution; these institutional changes subsequently produce two significant shifts in judicial behaviour. First, professionalisation indirectly reduces the probability that judges will commit reversible error by increasing the amout of time and resources available for deliberation. More professionalised courts systems garner a greater percentage of state expenditures for their operating budgets and enjoy a larger number of staff members and professional court administrators than non-professionalised institutions. This lowers the cost of information for judges, allowing

them to gather and review more case information in less time.®!

The above observations are pictorially represented in figure 2 below to visualise how the professionalisation process will contribute to the certanity in judicial outcome:

Decrease in

Career

Higher salaries greater benefits

longevity

Specialization, division of labour, universal norms, training

judicial error

Less influence of external pressures

Responsive to democratic demands

am

Increase In access to courts

Predictability in decision making

Certainty o judicial outcome

Additionally, professionalized court systems may attract relatively liberal judges who are more likely to make decisions favourable to have nots. If more liberal judges are in fact attracted to professionalized judiciaries, lawyers for less advantaged litigants may be less likely to accept pretrial settlement and more likely to take their chances in court, expecting more liberal judges to improve society by taking corporate interests to task. Therefore judicial professionalization according to

86. 87.

N. 84 at 798-99. Paul Brace and Melinda Gann Hall, “Haves” versus “have nots” in state supreme courts: Allocating docket space and wins in power asymmetric

cases” 35(2) Law and Society Review, 2001 at 393-417.

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Discourse on Judicial Education

Yates et. al., holds the key for succeeding in tort litigation against

corporates.88 Judges need to be professionalized to increase their commitment to the Rule of Law and refuse to give in to the rule of men. This is necessary because the history of judicial behaviour demonstrates that time and again the judiciary gives primacy to the rulers over the rule of law. This has happened in India when the Supreme Court was staffed by judges who in order to appease the political executive denied the

citizens of India their fundamental rights.®?

In Italy too judges were once accused of being highly insensitive in their goal to suppress unrests and organized crimes. Ginzburg provides interesting narrative of a trial stretching in courts for more than 30 years, where grave injustices were done to various actors involved in that trial due to insensitivity of judges. This trial was affected by offhand remarks made by a judge leading to one after another event, followed by arrests. The courts over there invented new tools of acceptance of evidence to suppress the unrests and organized crimes. Through this one trial, the story of miscarriage of justice is told,

providing that judges are not infallible. As observed by Gould

“the lawyer in developing countries has been...overwhelmingly a defender of the established order and of vested interests. ...Native lawyers have, like their colonial mentors, seldom been trained or socialised to be development oriented, either while at the bar or as

newly elevated judges. ”9!

Judiciaries therefore musty be professionalised in nation states that face accute shortage of comeptent members in the legal profession so as toprotect the public against the vicious system and provide them the justice even when they do not have means to represent themselves or approach the courts.

88. 89.

90. 91.

N. 84. The Supreme Court in 1977 in ADM Jabalpur vs. Shiv Kant Shukla, with the distinguished exception of Justice Khanna, held that no citizen of India had locus standi to move any writ petition for habeas corpus to challen ge the legality of an order on the ground that the order was not in complia nce with the statute or was illegal or was vitiated by malafides. See Ashok H. Desai, “Assaults on the Judiciary”, Economic and Political Weekly, 1977 at 726-729. Carlo Ginzburg, The Judge And The Historian. London: Verso, 1999, David J. Gould, “Involving fudicial administration: Some comparisons

between modernised and modernising countries”, 40 Interna tional Review of

Administrative Sciences, 1974 at 143-154.

|

Chap. 2—Why aiming for professionalization thr. the JE discourse? 4.

9\

Conclusion: Is it possible to achieve professionalization through the JE discourse?

For most recognized professions an orderly career begins with specialized education in professional schools and colleges and for the Judiciary, the legal education is the stepping stone for the judicial career. Almost up to the 19" century, legal education employed apprenticeship method of receiving instruction and tutelage in the office of a local practitioner. It was not until the 19" century that separate departments of law were established in the existing universities in the US and some improvement was brought about by introducing of case-analysis teaching method and then by arrival of reformers like Homles, Pound and Frank in the legal scene.?2 However, even today, legal education trains mind to think in positivistic tradition which creates problems for law being non-linear and recursive, unpredictable and subject to the whims of competing rationalities — has to be treated as one of the complex adaptive systems — which cannot be defined in abstract terms. In such complex systems, (1) order is an emergent property of the interactions within a system rather than pre-determined by design; (11) history of system is important and irreversible determinant of its structure and cannot be recreated because it is constantly being reconstituted by self-organising processes of the system; (iil) future development of the system is unpredictable; (iv) language and communication plays the most important role as through this language a system comes to possess its own rationality, separate

from the rationality of those subjects who interact with it.?? A person by undertaking traditional legal education discourse and practicing some years as a legal professional, just by assuming judgeship does not overnight get transformed into a judicial professional. Adherence to important attributes of a profession is far from satisfactory level. Trainings have high potential as evident from established professions in raising adherence to the aims and objectives of a profession. Certainly therefore members of the judiciary can also be helped to professionalize by the trainings. The JE discourse can design advanced courses for judges, clarifying the complex role of the law in society, the

inter-subjective and constructed nature of the norms” so that judges understand nuances of the judging process.

92.

93. 94.

Delgado, Jean Stefancic & Richard. How Lawyers Lose Their Way:A Profession Fails Its Creative Minds. Durham & London: Duke University Press, 2005. Niklas Luhmann, A Sociological Theory of Law, Translated by Elizabeth King and Martin Albrow, London: Rutledge and Kegan Paul, 1985. J. Webb, “Law, Ethics and Complexity: Complexity Theory & The Normative Reconstruction

of Law”, 52 Clev. St. L. Rev. (2004-5) at 227.

Discourse on Judicial Education

92

The JE discourse can help in judicial professionalization by making every judge knowledgeable and competent to devise solutions for different kinds of problems that may be brought before the courts, by raising judicial appreciation for accountability to the community it serves and by involving the judiciary in all the steps for its own

professional development.?°

QV—

95.

Armytage, n. 72 at 38-40.

CHAPTER THREE

CONTRIBUTION OF THE JUDICIAL EDUCATION DISCOURSE TO JUDICIAL PROFESSIONALIZATION IN DIFFERENT JURISDICTIONS The previous chapter provided what is judicial professionalization all about, how it can benefit both the system and the consumers ofjustice. The present chapter explores how the judicial professionalization forms either as an explicit or as an implicit agenda of the judicial education discourse in various jurisdictions, the kind of reforms that are carried out in different jurisdictions to strengthen the judicial professionalization, and how different jurisdictions around the globe are converging and borrowing from each other on objectives, methodology and other areas around the training discourse to produce a distinct and independent class ofjudge professionals. Introduction

The legal practice personnel organized themselves into a profession as late as 19" century by a long struggle which involved an effort to organize themselves as a distinct group, formulate the code for self-governance, develop a new linguistic as the basis for knowledge, develop a legal theory to be grasped in order to get an entry into the group, introducing licensing to control the quality of the group, and establish a separate education system to restrict the membership into the group. In contrast, members of the judiciary did not show initially any interest to carve out for itself a separate professional identity. However, of late, there have been developments within different judicial cultures, which suggest a movement from the judiciary itself

for developing a professional identity distinct from the Bar. There have been many reasons for this willingness to create a separate professional identity and one of them according to Rosen Zvi happens to be loss of reputation for the legal profession in the eyes of public.!

|.

Issachar Rosen-Zvi, “Constructing Professionalism: The Professional Project of the Israeli Judiciary” (2000-2001) 31 Seton Hall Law Review 760-828.

[93]

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Discourse on Judicial Education

The present chapter after establishing a link between democracy and judicial professionalization in the first part, provides developments in different jurisdictions toward judicial professionalization and how the JE discourse has been contributing to the goal of judicial professionalization in those jurisdictions in the second part. The third part of the chapter concludes with analyses as to what difference, if any, is there in the JE discourse offered in different jurisdictions of the world, and whether these differences also have their impact on professionalization. 1.

Democracy and Judicial Professionalization

Democracy and judicial professionalization go hand-in-hand because from the scholarly works of Weber, Schmidhauser? and Pinkele* one can infer that judicial professionalization could be a reality only where judges are: (a) structurally and temperamentally separated from the interest anchored activities central to the political activities whirling around them; (b) concerned about group activity, group prestige, group values and norms and manner and mode of behavior that sets them apart from those who do not perform judging function; (c) individuals knowledgeable in the law; (d) embracing set of norms around autonomy and accountability; (e) not products of deterministic economic and social forces; (f) getting trained to develop goals of rationality and predictability; and (g) allowing their performance to be audited on the scales of rationality, objectivity and impartiality. A true democracy is meaningfully achieved only in nations where there exists a certain tension between the governments and _ their judiciaries. This is because, in an authoritarian regime, the law is nothing more than a will of the sovereign and judges are mere servants of the authoritarian power to support its agenda and suppress any challenge to the authoritarian power.> Also, it has now become a

2. 3.

4.

5.

According to Max Weber a professionalized institution would exhibit value neutrality, division of functions and independence and objectivity. See J. Schmidhauser (1982) ‘‘The circulation of judicial elites: a comparative and longitudinal perspective” in Does Who Govern Matter? Elite Circulation in Contemporary Societies, 33-54 (M. Czudnowski, ed). DeKalb, IL: Northern Illinois University Press. Also see J. Schmidhauser and L. Berg (1983) “Toward an understanding of Mediterranean Legal Culture in the Contemporary World Capitalist Economy”, in Contemporary Mediterranean World (ed. By C. Pinkele and A. Pollis) 332-356. New York: Praeger Publishers. Schmidhauser held that judges are governmental but they are not political. See Carl F. Pinkele (Jul. 1992), Plus ca change: The Interaction between the

Legal System and Political Change in Francoist Spain, /nternational Political Science Review, vol. 13, No. 3. See Carl F. Pinkele (n. 4) at p. 289; B. Pollock and J. Taylor, “Review Article: The Transition to Democracy in Portugal and Spain” (1983) 13 British Journal of Political Science 209-242.

Chap. 3—Contribution of the Judicial Education Discourse

95

routine matter even in democracies to find the governments desirous of filling the superior courts with judges who will toe in line with policies of the executive branch. There are constant pressures brought on the judiciary to refrain it from entertaining any questions on the law and policies made by the political leadership reminding the judiciary every time that is should respect the line of separation of power and should stay away from the governance issues.° The recent scholarship provides that even though the superior courts in non-democratic regimes comprise of impartial judges, yet their judicial power to regulate the legality of state behavior is highly restricted.’ In the absence of such judicial power, the attribute of independence is compromised thus obstructing judicial professionalization for these regimes. The lack of impartial and independent judges proves to be fatal to the healthy functioning of a democracy.® Further, only if judges are considered by citizens as actually impartial actors, will the judiciary function as a legitimate instrument to settle social and institutional conflicts.? The rule of law is acknowledged to find its basis in the actions of individual judges. It is their professional character that determines the quality of the rule of law. If the professional character of a judge is insufficiently developed, his/her ability to act prudently is marred.!9 Therefore, in democracies a need arises to make judges act as an independent and impartial professionals. A keen interest is to be taken therefore at developing the attributes of

6.

See Christopher Larkins, “Judicial Independence and Democratization: theoretical and conceptual analysis” (1996) 44 American Journal Comparative

7.

8.

9.

10.

Law

605-626;

Jose

Toharia,

“Judicial

Independence

A of

in an

authoritarian regime: The case of contemporary Spain” (1975) 9 Law and Society Review 475-96. See Christopher Larkins, “The judiciary and delegative democracy in Argentina” (1998) 30(4) Comparative Politics 423-442 at 424; Martin Feinrider, “Judicial review and the protection of human rights under military governments in Brazil and Argentina” (1981) 5 Suffolk Transnational Law Journal 176-201; C. Neal Tate, “Courts and crisis regimes: A theory of sketch with Asian case studies” (1993) 46 Political Research Quarterly 311-338; C. Neal Tate and StaciaHaynie, “Authoritarianism and the function of the courts: A time series analysis of the Phillipine Supreme court, 1961-1987” (1993) 27 Law and Society Review 707-739. Daniela Piana, “Reshaping governance through standards: Lessons from the European policy of Rule of Law promotion”, available online at 27 on accessed www.sisp.it/files/papers/2009/daniela-piana-500.pdflast August 2012 at 15:43 Indian time. M. Shapiro, Courts: A Comparative and Political Analysis 2001, Chicago: Chicago University Press. Jonathan Soecharno, “Is judicial integrity a norm? An inquiry into the concept of judicial integrity in England and the Netherlands” (2007) 3(1) Utrecht Law Review 8-23 at 20.

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professionalism in judges.'! In the section below, different jurisdictions are explored to find the evidence on the contribution of the JE discourse in developing the attributes of professionalism in judges. 2.

Contribution of the JE discourse to judicial professionalization in different jurisdictions

In this part, though different jurisdictions are studied to explore the contribution of the JE discourse in these jurisdictions to the goal of professionalization, I do not have set any comparative agenda, even though some valuable comparative lessons emerge on both the professionalism and the JE discourse which are discussed in the end. 2.1 Contribution of the JE discourse to judicial professionalization in the UK

The earliest English judges had no legal experience. Then between the 14" to 16" centuries, judges were selected from among the sergeants-at-law, who were leading lawyers and who served a sort of

judicial apprenticeship before taking the bench.!2 By the mid 18” century, number of changes took place with respect to judicial appointments. Number and power of ordinary barristers multiplied dramatically, new groups emerged that of solicitor, attorney general,

and the King’s Counsel.!3 Out of them, the King’s Counsel bacame the

most favourite for judicial appointment.!4 These counsels had no necessary training to serve as judges in the courts to which they were appointed, and this lack of training posed a particularly pressing

problem for the court of common pleas.!5 Without any training in

judicial process, their decisions reflected their elite background and their removal from the ground realities.!© The outcry on narrow social

background of judges in the higher courts!7 led to reform in the 11.

12.

13. 14. 15. 16.

For details about these attributes refer to chapter two of this book. Also, See Geeta Oberoi, “Why aiming for Professionalization through the judicial education discourse?” (2011) 5(1) Nepal National Judicial Academy Law Journal 189-214. J.H.Baker, An Introduction to English Legal History 2002, 4th Ed.

J.H.Baker (n. 12) at 157-8,166. David Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century 2000 at 174, 262-4. J.H. Baker (n. 12) at 42. As John Griffith once observed, senior Judges, ‘have by their education and training and the pursuit of their profession as barristers, acquir ed a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represent the public interest.’ See J.A.G. Griffith, The Politics of the

Judiciary, 3" Ed. 1985. 17.

Shimon Shetreet, ‘Judicial independence and accountabili ty: Core values in liberal democracies’in H.P. Lee edt. Judiciaries In Compar ative Perspective (2011) Cambridge Univ. Press: London. pp 3-24 at 8.

Chap. 3—Contribution of the Judicial Education Discourse

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appointment process. Thus the Judicial Appointment Commission for England and Wales was established in April 2006. The Commission’s members drawn from the judiciary, the legal profession, the magistracy and the public — provide the clear criteria for the merit based selection to the bench.!* The present selection procedure through the Judicial Appointment Commission strengthens the judicial professionalization by bringing transparency in the appointment process.

Till the year 1979, the members of judiciary relied on the student textbooks on law to address their knowledge gap. Kadens who had an opportunity to study archival materials and collections pertaining to William De Grey (1719-1781), who served as Chief Justice of the Court of Common Pleas from 1771 to 1780, found from such unusual and unexplored collection of archival material in Norwich, England and in Lincoln’s Inn, London that he turned to basic student manuals for his

information.!? In the year 1979, the Judicial Studies Board (JSB) was established to develop the JE discourse for judges of England and Wales. The JSB is now replaced by Judicial College. The JSB, now Judicial College, is responsible for undertaking the training of all judges in England and Wales — full time high court judges, circuit judges, district judges, tribunal judges, part time judges and some 30,000 lay magistrates. It has made judicial professionalization as its

implicit agenda.2° Under its training scheme, every full time judge,

who forms part of the professional judiciary, has to devise a training program plan providing how he/she will complete and undertake one four day residential course for a year. A key feature of this plan is that it allows individual judges to tailor make their training, picking the course that best suits their needs. Under the criminal law for instance, a

judge could pick options on sentencing, serious crime, sexual offences or crown courts trials. About 8 million pounds were allocated for training of judges in 2009 and an additional 1.3 million pounds over a period of three years were allocated to give judiciary lessons in craft of

judging. As per the newspaper report*!, in the year 2009, about 2000

full time judges were trained in craft of judging where judges acted out trials and faced judgment from their peers on their performance. Judges were filmed to see themselves in an action and what they needed more to manage courts, deal with an unexpected high conflict situation and arrive at rulings. 18. 19.

Mary L. Volcansek, “Appointing Judges the European way” (2007) 34 Fordham Urban Law Journal 363-385. Emily Kadens, “The Puzzle of Judicial Education: The Case of Chief Justice

20.

Interview of Judge Philip, director JSB on June 24, 2009 at JSB Steel House

21.

office, UK. Frances Gibb, “Judges put on trial to test their courtroom skills” The Times, London, September 1, 2009, p. 19.

William De Grey” (2009) 75 (1) Brooklyn Law Review 143-200 at 148.

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Discourse on Judicial Education

The JE discourse in the UK takes care of the peculiar nature of the judicial system over there, in which almost 90% of litigation is decided and disposed of by lay members of the public and only 10% of cases

are routed to the professional judiciary.22 Even though judges are trained in the hired university buildings, with no exclusive training infrastructure, the quality of trainings administered are far more advanced, superior, and effective as compared to any other jurisdiction with extraordinary physical infrastructure and financial support. The JE discourse also has statutory support in the UK. Take for instance, the Courts Act, 2003 which requires magistrates presiding family and youth court proceedings to be authorized. The Justice of the Peace (Training and Development Committee) Rules 2007 promulgated under this Act establish four committees for training of judges who can be authorized to sit in these courts. These four committees: BTDC (Bench Training Development Committee), FTDC (Family Training Development Committee), ILYTDC (Inner London Youth Training Development Committee) and MATC (Magistrates ‘Area Training Committee) are given the task to establish a scheme for appraising judges, arrange for judges. to attend relevant training, identify training needs of judges before 30” September each year. After the appraisal, BTDC/FTDC/ILYTDC determine the training needs of judges who have been apprised and forward it to MATC before 30 September every year. MATC on receiving these training needs prepares a training plan before February end each year for the period from April to March. This training plan provides (i) the proposed types of training; (ii) the number of judges who are to receive this training; (iii) the place where the training would be provided; (iv) the proposed dates for training. The MATC prepares also annual report on trainings conducted from April to March,

and submits

this to the Lord

Chief Justice

before

30"

September each year which provides evaluations of trainings taken, costs accrued on trainings, number of judges who attended trainings, deviations made to the training plan.

Also, the UK invests heavily for training judges on multiculturalism so that the judges adhere to the principles of equality, nondiscrimination, impartiality which form the cornerstone of the English judicial profession. To this effect, the Equal Treatment Adviso ry Committee (ETAC) a sub-committee of the JSB is specifically set up to provide sensitization training to judges on race, religion, disabled persons, gender and sexual orientation issues. These trainings call for trainee judges to imagine themselves in the court, under constant scrutiny of fair minded people who are watching their performance and i

22.

History of the Judiciary http://www.judiciary.gov.uk/.

on

the

official

webpage

of

judiciary: :

Chap. 3—Contribution of the Judicial Education Discourse

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sensitize judges on diversity within the society so that they avoid cultural assumptions which could lead to judicial error.22 ETAC trainings help judges to ensure that their decisions do not generate feeling of discrimination in parties.

The above facts make it obvious that the JE discourse in the UK is contributing to the goal of judicial professionalization over there. Adhoc arrangements for training and arbitrary experiments on delivery are out of place and everything is well planned and thought out in advance to attain the goal of judicial professionalization. 2.2 Contribution of the JE discourse to judicial professionalization in the USA

The USA from 1776 dismantled the colonial court systems that were generally under the control of royal governors and replaced them with the federal court system and the state court system. The Judiciary Act of September 1789 established a three part system of federal courts with broad jurisdiction that at the same time allowed the state courts to share jurisdiction over many matters arising under the federal law and the constitution. The federal court system deals with issues of law relating to those matters expressly or implicitly granted to it by the US Constitution, while the state court system deals with issues of law relating to those matters that the US Constitution expressly or impli-

citly denied to the federal government.** Judicial appointments both at the federal court level and the state court level is a controversial issue as there is no uniformity in the mode of appointments as well as there are long drawn political struggles between Presidents and the Senate to get their candidates appointed on the bench.*° These different systems of judicial appointments in different state courts*® coupled with

23.

Geoffrey Kamil, “The role of the judge in a diverse community” (2009) 10

24.

ERA Forum 125-137. Since the federal Constitution gives the Congress, the sole authority to make uniform laws concerning bankruptcies, a state court lacks jurisdiction in bankruptcy matters. Likewise, since the federal Constitution does not give the

25.

26.

federal government an authority on family matters, a federal court lacks therefore jurisdiction in family disputes. See Mary L. Volcansek (n. 18); Sharon Paynter and Richard C. Kearney, “Who Watches the Watchmen? :Evaluating Judicial Performance in the American States” available at http://aas.sagepub.com/content/41/8/923. Governor or Legislative Appointment: In 4 states, judges are appointed by the governor or the legislature. Gubernatorial appointments usually require the consent of the upper house of the legislature or the participation of a

special commission such as an executive council. In most of these states,

judges serve a term (ranging from 6 to 14 years) and then may be reappointed in the same manner. In Massachusetts, New Hampshire, and Rhode Island, judges enjoy lifetime or near-lifetime tenure. Contd. .....

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Discourse on Judicial Education

political and executive struggles in appointments at the federal courts?/ is considered as a single weakest link in a path to judicial professionalization as the judiciary in the US does not have any say in its appointment process. Even though the court systems in the USA are always subjected to the political process, and thus to the popular expectations, the US Constitution and even the state constitutions have shown commitment to the judicial professionalization. Judicial independence is guaranteed by protecting judges against reduction in salary or removal from the office on account of their judicial philosophy.2® Further, these constitutions also guarantee the citizens an access to impartial judicial system.

To give effect to the constitutional commitment on judicial professionalisation, many steps were taken to reform the court structure and operations. In 1922, the Conference of Senior Circuit Judges was established which is now known as the Judicial Conference of the US. Under this body, a panel of judges advise the US congress on needed legislations and reforms. In 1939, the Administrative Office of the US Courts was established, which is now the Department of Justice, to provide administrative support to the courts. Also in 1939, judicial councils were established in each circuit to improve administration of courts within the circuit. In 1967, the Federal Judicial Centre (FJC) was Contd. .....

Merit Plan: In 23 states, judges are nominated by a nonpartisan commission, and then appointed by the governor. Judges serve a term and

then are subject to a retention election, where they run alone, and voters can

27.

28.

either approve another term or vote against them. Terms vary but on the whole are less than those in appointment states. Nonpartisan Election: In 15 states, judges run for election. Their political affiliations are not listed on the ballot, and so voters, unless specifically informed, do not know a candidate’s political party. These judges serve a term and then may run for reelection. The terms range from 6 to 10 years. Partisan Election: In 8 states, judges run for election as a member of a political party. They serve a term in the range of 6 to 10 years for the most part and then may run for reelection. For list of these struggles see Michael C, Tolley, ‘Legal controversies over Federal Judicial Selection in the US: Breaking the cycle of obstruction and retribution over judicial appointments’, p. 80-102 in Peter H. russel and K. Mallesonedt. Appointing Judges In An Age of Judicial Power; Critical Perspectives From Around The World (2006) University of Toronto Press: Canada. Article III federal judges serve during good behavior which is often an appointment for life. Judges therefore hold their judgeship until they resign, die or are removed from the office. Since the removal is possibl e only by way of impeachment process, federal judges in US have autono my for themselves that is required for any mature profession.

Chap. 3—Contribution of the Judicial Education Discourse

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established to give the federal courts their own agency for education of judges and court staff and for research on improving judicial

administration.??

One more hallmark of a judicial professionalisation in the US is that the judiciary is open enough to allow opinion polls to be conducted on its work by the public. A poll was conducted in the year 2000 asking the US citizens to express their view on judicial independence. People were asked to provide whether they believed that judges decide cases impartially and according to law or whether they believe that judges do

whatever they desire as soon as they don a judicial robe.29

Further, while it is not mandatory for the federal judges to take part in the JE discourse, it is compulsory for state judges in the 50 states. In many state courts, the administrative staff is also required to obtain a set number of continuing education credit hours per year. This mandatory requirement at the state level has led to highly developed system of JE discourse in the US. This discourse by providing judges a chance to learn from experts, a methodology to reflect on bigger picture, a competence to modernise the courts and improve work environment, efc.—ensures that public confidence in judicial institution is maintained. Therefore judicial professionalisation remains the core agendaofthe JE discourse in the US. Also, by focusing on recruitment, competency and leadership issues in the judiciary, the JE discourse is strengthning professionalisation. The FJC assists judiciary policy makers, including committees of the Judicial Conference, in areas ranging from amendment of procedural rules to allocation of resources. Every year it conducts empirical research and objective analysis to find the best ways in which courts can carry out their constitutional responsibilities with limited resources. In partnership with the Department of Justice, the US Sentencing Commission, and the Judicial Panel on Multidistrict Litigation, the FJC develops training programs to enhance judicial skills in leadership and management.?! Such JE discourse has not only helped the US judges to effectively preside their courts but have made them responsible to

effect changes needed in the administration of justice.** Therefore,

29. 30.

FJC Annual Report 2011. Stephen Breyer, “An Independent Judiciary” (2010) 20 (1) Experience (ABA) 20-24.

31.

Henry

32.

R. Glick, “Innovation

in State Judicial

Administration:

Effects on

Court Management and Organisation” (1981) 9 American Political Research 59, 60. William F. Dressel, “Judicial Recruitment, Competency, Retention, and Leadership: Critical Challenges Facing the Judiciary of today, tomorrow and in 2030” (2009-2010) 51 S. Texas L. Rev. 905-912.

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Discourse on Judicial Education

professionalization forms an explicit agenda of the JE discourse in

the US.*? Apart from the FJC, as noted by Thomas, there are now more than

70 different organisations that support the JE discourse which include court associations, universities, civil society group of educators like the National Association of State Judicial Educators (NASJE).*4 NASJE, to improve professional competency of judges, assists them in acquiring knowledge, skills and attitudes required to act as professionals.?° Also, the federal judges receive formal certification for courses taken at the National Judicial College (NJC), which is taken for consideration in decision on higher appointments.*° The NJC has laid down eight parameters to train judges for the competence: learned in law, fair/firm, impartial, diligent, patient, wise analytical thinker, decisive, and life long learner. By raising judicial competency around these parameters, the NJC is supporting judicial professionalisation.’ Further, the American Bar Association (ABA) also supports judicial professionalisation by enhancing the credentials and qualifications of lawyers aspiring to the judicial office. The ABA conducts a judicial clerkship programme to bring together judges, minority law students, former law clerks through which minority law students are encouraged to view

judgship as career option.?8

2.3 Contribution of the JE discourse to judicial professionalization in Australia

In Australia, before the passage of the Act of Settlement 1701, the Crown exercised a complete control over the judiciary. Judges held

office at the Crown’s pleasure and their removal, salaries, pensions and

promotions were totally in the hands of the Crown.3? It was only after

the Act of Settlement 1701, judicial independence became a reality to a 33. 34.

Glick (n. 31) at 50. Dr. Cheryl Thomas, Review of Judicial Training and Education in other Jurisdictions. Judicial Appointment Project between University of Birmingham School of Law and JSB, London : Judicial Studies Board, UK, May 2006 at 20. 35. L. Armytage, “Policy development in continuing judicial education: An assessment of some approaches taken in NSW; USA: UK and Canada” (1993) 11 Journal of Professional Legal Education at 55.

36. 37. 38.

39,

Thomas (n. 34) at 23. See William F. Dressel, (n. 32) at 907.

See Frank Sullivan, Jr., “The ABA Judicial Clerkship Progra m Celebrates its 10" Anniversary” (2009) 48 Judges Journal 14, 15: Kathle en B. Burke, ABA Standing Committee on Judicial Independence Report on Introductory Judicial Education available at http://www.abanet.org/judind/pdf/ Introductory Judicial Education.pdf. : E.M. Campbell and H.P. Lee. The Australian Judici ary, CUP, UK, 2001.

Chap. 3—Contribution of the Judicial Education Discourse

103

large extent. After its independence from Britain, Australia adopted for itself a federal court system on the lines of the USA. However, one feature of Australia’s court system that distinguishes it from the USA is that the courts of Australian states exercise jurisdiction not merely under the state laws but also under the federal laws. Also, while the distinction between federal and state court, and between federal and

state jurisdiction remain, nevertheless the Australian judicial system is integrated to a large extent. This integration is achieved by (1) the establishment of the high court of Australia as the ultimate court of Appeal for Australia and (11) by the use of state courts as repositories of

federal jurisdiction.*°

Professionalization for Australian magistracy began from 1969 onwards when different jurisdictions started removing magistrates from the public service in order to reconstitute them as a separate branch of the judiciary and imposed mandatory legal qualifications and experience for selection as magistrates.4! These two changes led to magistrates acquiring autonomy, status and knowledge base — all hallmarks of professionalisation. The present trend of judicial professionalization in Australian context involves judiciary adopting techniques for managerial judging. Australian judiciary is highly influenced by the changes brought in the UK and the USA as a result of managerial judging movements in these two jurisdictions. Various agencies responsible for the JE discourse are supporting this stream of profe-

ssionalization.*2 The earlier reluctance to the JE discourse in Australia*? is diminished due to expansion of the pool from which judicial appointments are made and due to some ill-advised comments made by judges in socially sensitive cases. It came to be realised that the continental type

judicial schools is indispensable for judicial professionalization.™

40. 41.

Id. at p. 13-14. Sharyn Roach Anleu and Kathy Mack, “The Professionalisation of Australian Magistrates: Autonomy, credentials and prestige” (2008) 44 Journal of Sociology 185-203.

42.

AIJA, CJA, Federal courts, Victoria College etc.

43.

IOJT 2009 Sydney Conference Paper by John Doyle AC, Chief Justice of South Australia, available at http://njca.anu.edu.au/IOJT%20Conference/ Doyle%20CJ pdf Murray Gleeson, Chief Justice of Australia has noted that the days when governments could act on the basis that unlike their counterparts in civil law

44.

jurisdictions, judges in common

law Jurisdictions required no training or

continuing professional development are gone. See “Judicial Selection and Training: Two sides of the one coin”, Judicial Conference of Australia

Colloquium, Darwin 31" May 2003.

104

Discourse on Judicial Education

In Australia also, the JE discourse is developed by large number of agencies. The Australian Institute of Judicial Administration (AIJA) -a research and educational institute associated with Monash University in Melbourne*> provides a regular series of programs for judges. The Judicial Conference of Australia principally concerned with the maintenance of a strong and independent judiciary within Australia, also holds an annual colloquium addressing issues of current interest to the

judiciary.*© The Judicial Commission of New South Wales, established in 1986 under the Judicial Officers Act of 1986 to examine complaints against judges*’ also offers an extensive conference and seminar programme for judges in each New South Wales court, ranging from

induction courses for new appointees to specialist conferences.48 The

Judicial College of Victoria established in 2001 provides education for judges, magistrates and tribunal members in that State helps judicial

officers to keep abreast of developments in the law and social issues.49

Also, the courts themselves provide new appointees with useful information and practical resources such as bench books providing guidance for the conduct of criminal trials and conduct their own continuing education programs at least once a year. The National Judicial College of Australia (NJCA) was established in 2002 to provide trainings nationally with programs covering a wide range of

topics as well-as the orientation courses.>° The newly appointed judges

of Australia’s state and federal superior courts attend a five day orientation course conducted by the NJCA in conjunction with the

Judicial Commission of New South Wales, the Australian Institute of

Judicial Administration and the Judicial College of Victoria during the first year after appointment. Also,

number

of private

actors,

professional

associations

and

universities are organising programs, conferences and seminars to meet the professional needs of the judiciary. To attend these, either courts 45. 46. 47. 48.

49. 50.

http://www.aija.org.au/index.php. http://www.jca.asn.au/. http://www.judcom.nsw.gov.au/, See http://www judcom.nsw.gov.au/education/Educati on%20Calendar% 202010.pdf. http://www .judicialcollege.vic.edu.au/, The 2010 prospectus can be found at http://www Judicialcollege.vic.edu.au/sites/default/f iles/20 10JCVProspectus. pdf. http://njca.anu.edu.au/Professional%20Develop ment/Programs%20public’% 20version/Progra_ms%202007%202008. htm. See also the Ausralian Law Reform Commission Report 89: Managing Justic e: A review of the federal civil justice system - 2. Education, training and accountability recommending

the establishment of such a body at http: //www.austlii.edu.au/au/other alrc/publications/reports/89/ch2.html#Heading 10,

Chap. 3—Contribution of the Judicial Education Discourse

105

have made budget to send judges to such programs or judges are paid an allowance to attend such programs. All these diverse programs are developing professional artistry>! in judges and thereby supporting the professionalism on the bench. 2.4 Contribution of the JE discourse to judicial professionalization in Israel

Judicial professionalization in Israel does not owe so much to the JE discourse as it owes to the separation of the judiciary from the Bar. In the early stages of the Israeli judicial system the strong bonds that existed between judges and lawyers stemmed not only from shared professional interests and goals but also from similar backgrounds and strong personal ties.°* The shared ideology was carried in the first period of statehood after the freedom from the British rule and newborn judiciary under free and independent Israel was full of lawyers appointed as judges. Also, in the early years of statehood, both lawyers and judges were marginalized in the political sphere and were considered as an obstacle to the development of the nation. This marginalized in fact led to greater bonding between lawyers and judiciary. During that time, the most urgent issue for both lawyers and judges was retaining and strengthening their status as professionals. Professionalism was a means to avoid the massive intrusion of the strong centralized state into their work. Lawyers and judges combined efforts to build a professional and autonomous legal sphere that would

separate them from the political arena.>? However, during the 1970s and onwards, the law became the most important instrument in the hands of Israeli society and the role of lawyers and judges as experts to decide on every matter on public policy led to judicialisation — transforming marginalized class to highly ranked in the society. These cultural transformations in turn produced cracks in the bonds between lawyers and judges as both had different reactions to rising litigations in Israeli society. The formalistic approach that still characterized the Bar did not match the judicial agenda to rescue of citizens. This difference made the judiciary

51.

52.

53.

Helen Gregorczuk, “The desirability of judicial education in Australia” (1996) 14(1) Journal of Professional Legal Education 77-95 at 86. GavrielShtrassman, Wearing the Robe: A history of the Legal Profession Until 1962 (1985) The Israeli Bar Press: Tel Aviv at 166-67. NetaZvi, Human rights law and public interest lawyering: A study of the independence of jurisprudence and the legal profession in Israel (2000) unpublished JSD dissertation, Stanford Law School cited by Issachar RosenZvi, Constructing Professionalism: The Professional Project of the Israeli Judiciary, 31 Seton Hall L. Review 2000-2001, pp. 760-828.

106

Discourse on Judicial Education

command highest public confidence, whereas the bar was losing all the goodwill. The prestige of lawyers started deteriorating and they came to be regarded as manipulative group of people with a flexible moral

sense and their profession was seen as the most corrupt.°4 The judiciary led by the Supreme Court, began to develop a professional identity distict from that of the Bar and resorted to a large number of practices constructed to distinguish the professional identity and functions of the judiciary from those of the legal profession.5> The Institute for Judicial Training for Judges was established in the year 1984 on judicial demand. This was a strategy to create for itself a distinct professional identity. Judges reasoned that the legal education discourse was not helpful for the the judging work and therefore training was architected to (i) deepen the professional knowledge in the realm of judging; (ii) strengthen professional ties with judges from other countries; (iii) create social setting for meeting with other judges and learning from them; (iv) provide professional knowledge to judges.°© The mandate of this institute was further expanded to strenthen the judicial profession by giving it autonomy to evaluate the suitability of new candidates for the judicial posts. Due to such mandate, the appointments committee in Israel sends judicial candidates who have been singled out as possibly suitable for joining the judiciary to undergo an evaluation course, aimed at reviewing the compatibility of the candidate at becoming a judge at the Institute of Advanced Judicial Studies for six days during which they are observed by a number of experienced judges, who are members of the Institute’s staff The candidates are obliged to reside on the premises during the entire course period. Subjects for discussion are many and varied, and include judiciary ethics and reactions to different judicial situations, expectations of the role of a judge, and the consequential changes in their life Styles resulting from their appointment to the Bench. Upon the termination of the course, the staff-members are required to fill out a detailed evaluation form for every candidate. Comments

are made,

in writing, regarding the candidate’s character, a discussion as to whether the candidate has the necessary characteristics of a judge as detailed above. The evaluation form concludes with either a positive or negative recommendation regarding the candidate.57 This kind of pre-appoint-

ee

54. SD. 56. 57.

Rosen-Zvi (n. 1) at 826. widsat 763. Id. at 795. Judge HaimPorat, Candidates for the Judic iary in Israel: an Evaluation course, IOJT — Newstletter, published online at http://www. iojt.org/iojt2/ lOJTNewsletter~2/iojt newsletter_more.html accessed on 24/05/2012 at 17:09 GMT.

Chap. 3—Contribution of the Judicial Education Discourse

107

ment training proves that the common law countries like Israel are opting for the continental models to professionalize their judges. 2.5 Judicial professionalization in the EU and contribution of the JE discourse to it The EU is essentially a continent of civil law nations. For most of them, the route to judicial professionalization has been similar one. Initially most of them had political appointment to the bench. This was dismantled in the early 19" century when these states started with bureaucratic, civil service judiciaries, where judicial recruitment took

place through public examinations, normally run by the Ministry of Justice. This was the first step towards the judicial professionalization as the main channel of political influence in the recruitment was shut down. Even after introducing this kind of recruitment, the hierarchical order affected judging process because it gave a scope to the executive and to a lesser extent, legislature to influence judges through higher ranking judges, who were normally appointed by the executive. The extent of the influence of other institutions on a bureaucratic judiciary thus varied from one member state to another.°? The second step to judicial professionalization was the formation of the institution of a Higher Council. The literature review around this institution suggests that this institution in many ways contributed to strengthening judicial professionalization. The technical criteria of judicial professionalization — judicial independence, judicial associations, legal knowledge, were all strengthened by the establishment of this institution. The third step toward judicial professionalization involved supporting the judicial trainings at the EU level so as to internalize the system of protection of human rights set up under the European Convention on Human Rights (ECHR).Having been incorporated into domestic law in one form or another in all the contracting states, now numbering 47, the ECHR as to be applied not only by the European Court of Human Rights in Strasbourg but, more importantly, by national judges in all corners of the domestic legal order — from civil and criminal trials to defamation actions to immigration proceedings to mental health internments to child care cases.°? To this effect, the European Commission has set up number of institutions to help the member states to improve upon their

58.

59.

H.W. Ehrmann 1987 ‘Judicial Activism in a Divided Society: The Rule of Law in the Weimer Republic’ in J.R. Schmindhauser (ed.) Comparative Judicial Systems, London: Butterworths, pp. 14-23. This author shows how in Germany before the Nazi period had a bureaucratic judiciary whose political loyalty was questionable and how it played autonomous political role thanks to the weakness of the political powers. Paul Mahoney, “A European Judicial Training Institute on Human Rights” 2009 (2) The European Human Rights Law Review 123-134.

108

Discourse on Judicial Education

training resources so as to help judges decide on the basis of primary

and secondary European law.°? ERA (Academy of European Law) in Trier, Germany, a public foundation, created in 1992 at the initiative of the European Parliament, provides judicial training and a forum for debate in European law. In 2009, ERA signed agreement with Czech Judicial Academy to provide both initial and continuous training to Czech judges, prosecutors and

the staff.©! EJTN (European Judicial Training Network) an association made up of national judicial training institutes, funded by the Commission of the European Communities and having its headquarters in Brussels, not only allows exchange of information between all the member nations, but also runs joint cross border projects and exchange programmes to allowing participants to attend domestic events in other member

states.

EIPA (European Institute of Public Administration) in 1992 established the European Centre for Judges and Lawyers in Luxembourg to provide trainings in Community and European Union law also offers various life-long learning programmes on European law issues, which

are tailor-made to meet the needs and availability of professionals.®

The Council of Europe’s direction to the central and the eastern European member states to reform their judicial trainings to make judges apolitical, competent and legally accountable, led these members to invest hugely in the JE discourse.64 The Venice Commission also considers the subject of judicial training is closely related to the status of judges and judicial independence, both indispensable features

of professionalization.®©

Apart from above regional bodies, individual member states through their JE discourse have also contributed to the goal of judicial professionalization. Herein below we explore the contribution of the JE ee

60. 61. 62. 63. 64.

65.

EU Council Resolution on Judicial Training, Consideration 6 of the Preamble. http://www.era. int. Paul Mahoney (n. 59). http://www.cipa.eu/en/antenna/Luxembourg/. Commission of the European Communities, "Comm unication from the Commission to the European Parliament and the Counci l." Judicial Training in the European Union. Brussels: Council of Europe, 29.06.2006. 1-9. Joint Opinion on The Draft Law on The Judicial System And The Status of Judges of Ukraine, adopted by the Venice Commi ssion at its 82" Plenary Session, Venice, 12-13 March 2010,

Chap. 3—Contribution of the Judicial Education Discourse discourse to judicial professionalization in some states of the EU. 2.5.1

Contribution of the JE professionalization

discourse

109

important member

in Germany

to judicial

During the 18" century, all judges were organized in bureaucratic model, with the monarchical government exerting a strong influence. After 18" century shift from the monarchy to republic, in the year 1918, the Weimar Republic had to confront a judiciary pervaded by strong anti-republican feelings: an element contributing among other things to the demise of democracy and the triumph of Nazi totalitarianism.® In the post-war period, whereas the federal judges (judges at the supreme courts of the Federation) are all elected®’, the trial judges are members of the civil service who are appointed by studying law in the may followed by a two years judicial traineeship run by the State.

The Basic Law, Germany’s Constitution, adopted in 1949, ensures that the ruling coalition cannot fill the court with party loyalists to uphold all the Chancellor’s initiatives. Armed with their veto, minority parties have the de facto power to name a substantial number of judges. The German voting rule also affects the character of the judges. If either the majority or the minority proposes the nomination of a notorious party hack, the other side can be expected to veto the appointment. The Basic Law requires all nominations to the Constitutional Court to obtain a two-thirds vote from the legislature, and thereby gives

veto power to important minority parties.°? This is an institutional incentive to converge on the selection of judges with a reputation for impartiality and relative moderation. Robust judicial independence is encouraged further by a lengthy, but fixed, tenure of 12 years with no possibility of reappointment. With this setting, judiciary is able to contribute to strengthening of its own professionalization and

democracy./?

66.

67. 68.

69.

70.

H.W. Ehrmann (n. 58) shows how in Germany before the Nazi period had a bureaucratic judiciary whose political loyalty was questionable and how it played autonomous political role thanks to the weakness of the political powers. Grundgesetz, Art. 92.5 GG. Lars Gerold, “The legal profession in Germany” background report for ODIHR workshop on Reform ofthe Legal Profession, November 2008. See David S. Clark, “The election and accountability of judges in West Germany: Implementation of a Rechtsstaat”(1988) 61 Cal. Law Review;

Bruce Ackerman, “The new separation of powers” (2000) Law Review 633-729 at 669. Bruce Ackerman (n. 69) at 669.

113 (3) Harvard

110

Discourse on Judicial Education

In the view of the historic past, judicial professionalization in the sense of making judges part of democratic governance will not form the principal objective of theme discourse in Germany. The training for active judicial role in public life would be out of German sensitivities as judges had proved themselves wrong not very long ago by treating democratic regime harshly which contributed to the embarrassing social order having its repercussions till now. At the same time, the JE discourse is designed to help judges to preside over various judicial assignments in the ordinary jurisdictions, to meet the technical criteria of professionalism by raising their competency in different areas of

law.’! As a rule, judges are offered special practice related courses (evaluation of evidence), post graduate training courses respective courts and higher regional courts. A postgraduate institution is the German Judges Academy at Trier, which now a branch in Wustrau, near Berlin teaches specific and general

by their training also has subjects

throughout the year to judges of all jurisdictions.’2 The Academy also

helps judges in court restructuring process by providing them the

training for communication,

behaviour,

interaction,

etc.

The

social

context courses are also offered to judges to help them in dealing with ethical issues and multiculturalism./?

2.5.2

Contribution of the professionalization

JE

discourse

in

Spain

to Judicial

The first step to judicial professionalization was taken by reducing jurisdiction of the military tribunals to military matters only and by

compulsorily retiring judges loyal to the political regimes.74 The next

step to professionalization involved introduction of basic criteria for selection and appointment as judges. Judicial professionalization was also strengthened by the introduction of the Council in 1980 with 3/5" of its members elected by judiciary and rest appointed by the Parliament. Further boost to professionalization was given by the new Constitution that guaranteed respect for the essential principles that support the judicial professionalization like impartiality, independence, a

71.

ee

ee

Thomas (n. 34) brings to our knowledge subject curriculum of the New Developments in the Law of Contract, Insurance Law, Trials Accident Case, Introduction to Tax Law, Recent Decisions of the Court of Justice, Appeals in Civil Proceedings, Examin ing Relations

with Advocates,

Video Evidence,

Court

Experts,

discourse: in Traffic European Witnesses,

Media

and

the Courts, Stress Management, How to Organizing Your Work Flow. 72. Hans-Ernst Bottcher, “The role of the judiciary in Germany” (2004) 5(10) German Law Journal 1317-1330 at 1322. 73. Paper presented by Dr. Rainer Hornung at 5" IOJT meet at Bordeaux, France on 31 October 2011. 74. José J. Toharia, “Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain” (1975) 9(3) Law & Societ y Review 475-496.

Chap. 3—Contribution of the Judicial Education Discourse

111

immobility etc. In 1985, some setback occurred to the judicial professionalization when the power of the Council was reduced, and its judicial members were no longer elected but appointed by the Parliament.

The establishment of the judicial school’> in Barcelona in 1994 where selected candidates have to undergo a 16 months judicial training before appointment on the bench’© marked another milestone to professionalization. The school contributes to the goal of judicial professionalization in number of ways. It trains nearly 250 new judges each year and provides continuous training to sitting judges.’’ It organizes competitive examination for university law graduates and then trains them using the case method. This common examination experience and the exclusive nature of the entrance process, socializes judges into a number of important intra-group beliefs: their separation from practicing lawyers, their separation from judicial colleagues who were political appointees and the exclusive nature of their work.’8 The School has developed the data storage system — the OPJK (Ontology of Professional Judicial Knowledge) which is manually built from a corpus of questions gathered during an array of ethnographic surveys. During these surveys young judges at their first appointment identify a list of questions regarding their practical problems. These questions are directed to the formalization of professional judicial knowledge. The design of OPJK requires representation of not only legal theoretical knowledge but also the knowledge produced and

passed on among the judicial profession.’ The school with budget of approximately 3 million Euros, strengthens judicial professionalization by fostering the specialisation of judges of the ordinary jurisdictions and keeping judges in touch with emerging legal areas (i.e. biotechnologies, e-crime, telecommunications law, etc.). The school has also decentralised the JE discourse in Spain to enable judges to gain training within their own regions in various locations around Spain. More recently, new decentralised courses have been held outside Madrid. Also, the School has developed on-line courses to expand its reach within the judicial community. In the year

75. 76. 77. 78.

Escuela Judicial Consejo General del Poder Judicial. José J. Toharia (n. 74). Mary L. Volcansek (n. 18). See Carl F. Pinkele (n. 4) at 285-300.

79.

Pompeu

Casanovas,

NuriaCasellas,

Joan-JosepVallbe,

Marta

Poblet, Jesus

Contreras, Mercedes Blazquez, and V. Richard Benjamins, Chapter 15, Semantic Technology for Professional Judicial Knowledge, in J. Davis et. al. (eds.) Semantic Knowledge Management, Springer-Verlag Berlin Heidelberg 2009.

k}2

Discourse on Judicial Education

2003, the school undertook judicial reform projects to modernise the Spanish judicial system by introduction of new technology for information and communication (ICTs), the case management systems, and programmes for implementing the legal decisions and developing the relationships with citizens and other external institutions.

The JE discourse in Spain is therefore contributing significantly to raise judicial professionalism on the bench. 2.5.3

Contribution of the JE discourse in the Netherlands to judicial professionalization

The Dutch judiciary has carved out for itself a distinct professional identity, separate from legal profession by taking number of steps. First of all, it has made itself a different entity than prosecution service by providing life term appointment to judges and separate disciplinary

rules for judges than the members of the public prosecution service.8°

Secondly judicial appointment is done through two routes after obtaining a law degree. The first begins with a 6 year program of judicial studies after the law degree where internship is offered with various legal entities. The second route involves after law degree a minimum of

6 years’ experience in a law firm before applying for judgeship.®!

Under both routes, applicant will have to undergo competitive examination and interviews. By restricting entry into the judiciary to only meritorious ones the Dutch system has contributed to the judicial professionalization. In 1999, the Dutch judiciary adopted the Universal Charter of the Judge, which calls upon the judiciary to comply with the

attributes of accountability and impartiality.82 In 2002, after the

establishment of the Council for the Judiciary, judges acquired more

responsibility for its self-regulation.83 The Council has been laying

down various quality parameters to check on judicial performance. Among many things, a customer evaluation survey is conducted once

every four years, and the customers are litigants, members of the bar,

the public prosecution service and other repeat players. The Council undertakes projects all with the singular agenda to strengthen the professionalism on the Bench. For instance, the project PROMIS84 a

80.

81.

82.

83. 84.

a

ie

Hans de Doelder, “The Public Prosecution Service in the Netherlands” (2000) 8(3) European Journal of Crime, Criminal Law and Criminal Justice 187-209

at 197. Leny E De Groot-Van Leeuwen, Merit Selection and Diversity in the Dutch Judiciary, in K. Malleson and P. Russel ed. Appoi nting judges in an age of Judicial power (n. 27). Leny E De Groot-Van Leeutwen, “A Basic Structure of Judicial Exemplified from the Netherlands”(2003) 6(1) Legal Ethics 34-40. Jonathan Soecharno (n. 10). Project to improve explanation of the grounds of criminal judgments.

Ethics,

Chap. 3—Contribution of the Judicial Education Discourse

113

required from judges to show their professional skills of reasoning and be accountable for their decisions.®> In 2004, the Dutch Association for

the Judiciary together with the Dutch Assembly of Court Presidents

released Judicial Impartiality Guidelines.8° Such developments prove judicial adherence to all standards of an advanced profession.

The JE discourse in the Netherlands supports the Dutch judiciary in its judicial professionalization agenda in number of ways. Studiecentrum Rechtspelging (SSR) is responsible for developing the JE discourse in the Netherlands. SSR promotes a professional approach by taking steps to improve upon the substantive quality of justice, by raising knowledge, skills, attitudes and experiences of the judiciary. It has created a possibility for every judge to undertake a course in moral dilemmas to aid them in developing integrity codes for their courts.°’ Such courses ensure that judges have the right professional character. Further, SSR has fixed a national standard for permanent education for the judges. As of January 2009, the standard is set at 30 hours a year per judge. Besides legal issues and methods training, the increasing attention is paid to the organisational and managerial issues affecting judges (e.g., time management, communication) and interaction with stakeholders (legal professionals and the public). In the Dutch JE discourse, the emphasis is given more on the institution than on the person so that the professional character of judges is built to exercise the institutional role. The increased emphasis on the efficiency of judicial organisation has led to more attention being given to build the professional character of judges. Also, the professional character of judges is receiving more attention through the JE discourse due to the recent miscarriages of justice because of which

doubts were cast on the quality of judicial deliberations.8® 2.5.4.

Contribution of the JE discourse in Italy to judicial professionalization

The Italian judiciary like Israeli judiciary, moved closer to professionalization not due to the efforts of the JE discourse but owing to other political arrangements which expanded judicial power and

strengthened the judicial independence and accountability.®?

85.

86. 87. 88. 89.

Erik van den Emster, Chairman of the Netherlands Council for the Judiciary,

in forward to brochure on quality assessment. Jonathan Soecharno (n. 10) at 15. Ibid. Id. at 19. Giuseppe Federico Mancini, “Politics

and

the

Judges:

Perspective” (1980) 43(1) The Modern Law Review at 4.

The

European

114

Discourse on Judicial Education

In Italy, till the late 1950s judges were recruited from amongst young law graduates with no previous professional experience by competitive examination designed to test their institutional knowledge in various branches of the law. The professional training was accomplished almost exclusively within the judicial organization and the promotions were granted on the basis of merit and seniority, both assessed by the highest ranking judges. Even if the judiciary enjoyed some institutional guarantees of independence, the hierarchical constraints imposed by this structure limited its political role.2° In the late 1950s, Magistratura Democratica developed constitution centered professional ideology according to which judges are responsible for the direct application of the fundamental law. In 1959, effect to constitutional provision of establishing the Highest Council of the Judiciary was given. This led to momentous increase in the internal and external independence of both judges and public prosecutors.

The Higher Council in Italy can be considered to be responsible for sowing the seeds of judicial professionalization because the Council has changed the relationship between justice and politics on one hand and disturbed the existing hierarchical bureaucracy within the judiciary on the other hand. The Higher Council being in charge of promotion and evaluation has reduced the importance of the highest court — the Court of Cassation. The Court has further been weakened Owing to establishment of a separate court to do judicial review of legislation. Since 1975 the composition of this Council is three ex officio members — the President of the Republic, the president and Attorney General of the Court of Cassation and twenty magistrates elected by their colleagues, ten members elected by Parliament from amongst experienced lawyers and law professors. To choose these ten members 60% of electoral supermajority is required so that every political party has representation.

From 1992 onwards the trend of judicialisation of politics starte d whereof the Italian judiciary started allowing the prosec ution of Ministers which is considered as judicial investigation in Italy and due to which several ministers had to resign from their posts. This judicialisation of politics further enhanced the status of judiciary. It can be therefore said that judicial professionalization does not owe it to the JE discourse, for Italy till date has refrained from institutionalizing the JE

discourse. Many have voiced a need for institutiona lizing the JE discourse. According to Pederzoli and Guarneiri since ee

90.

G. Di Federico and C, Guarnieri 1988 ‘The Courts in Italy’, in J.L. Waltman K.M. Holland (eds), The Political role of law courts in modern democracies, Hong Kong: Macmillan, pp. 153-180. and

Chap. 3—Contribution of the Judicial Education Discourse

115

judges now make policy, and traditional hierarchical instruments no longer work, the obvious danger is the development of a power which is not only unaccountable but irresponsible. Therefore some new arrangements have to be designed to ensure that judges although guaranteed independence, will behave responsibly, employing their growing power to further the development of a constitutional democracy. The need to reform the traditional way of recruiting

and training Italian magistrates is today stronger than ever.?'

In April 2005, a new law governing the magistrature, separated the prosecutorial career from the judicial one, introduced a more realistic form of examination and emphasised on the development of the JE discourse.’* At present, the Committee of the Italian Higher Council of the Judiciary (CSM) devises and delivers the JE discourse under which seminars lasting 2-3 days are provided to increase competency in civil

procedure, criminal procedure and interdisciplinary areas.?3 2.5.5.

Contribution of the JE professionalization

discourse

in France

to judicial

Just like England, France too had political appointments on the Bench till 1908. Throughout the 19" century, the French Ministry of Justice had unconstrained power to appoint politically reliable judges. It was common during those days to have judges of independent financial means, and therefore, judges worked for several years without payment.”* In 1908, this method of appointment came to an end when open competition to magistracy was introduced thereby sowing the first seed toward judicial professionalization. Since then there has been continuous struggle within the judicial branch to gain control over magistracy and enhance prestige of judges. This struggle led to the

foundation of the National Centre for Judicial Studies in 1958 which in 1970 was renamed as Ecole de la Magistrature (ENM).

Three reasons for judicial professionalization in France are: it’s JE discourse, its unions of judges, and the High Judicial Council model sponsored by the Council of Europe to self-regulate the judiciary. Though the idea of self-regulation is now decreasing in France.?>

91. 92.

PatriziaPederzoli and Carlo Guarnieri, “The Judicialisation of Politics: Italian Style” (1997) 2(3) Journal of Modern Italian Studies 321-336 at 328. PatriziaPederzoli, The Reform of the Judiciary, in /talian Politics: Quo Vadis, edt by Carlo Guarnieri and James L. Newell, 2005 at 153, 157-159.

93.

See Thomas (n. 34) on this.

94.

D. Thompson, Democracy in France, 5" Ed. 1969, chapter 3.

95.

Response to written interview conducted with Harold Epieunese in Paris in 2008.

116

Discourse on Judicial Education

ENM contributes to judicial professionalization in more than one ways. It selects magistrates through open competitive examination to ensure that the entry to judiciary is not on ideological grounds. It provides extensive course to these candidates for 31 months, covering both theoretical and practical elements of judging.?° Apart from lectures and seminars, an internship in a court and another with a lawyer is provided and the same lasts almost three years.”’ In the internship period, candidates have to work in several judicial roles, civil, criminal, juvenile

or investigating, under the control of the sitting judges. They are assessed throughout their period and can be failed if unsuccessful. If they succeed in their training and in the final examinations, conducted by ENM, they are appointed by decree of the President of the Republic, proposed and approved by the High Council of the Judiciary. Once appointed, judges have to undertake at least five days of training annually in order to keep informed of recent developments in the law, or learn more about areas of the law with which they are unfamiliar.

ENM is also responsible for the formation of the professional association Syndicat de la Magistrature amongst magistrates by inculcating an interest amongst them to use the judicial power to protect the interest of poor and voiceless. Syndicat gave professional representation to all members of judiciary with its aim to break with the sectarianism and monolithic structure of the judiciary and instead promote anti-elitist, anti-hierarchical and pluralist attitude.°8 Syndicat too contributes to judicial professionalization by negotiating with the executive for improving the salaries of magistrates, by allowing magistrates to take clear positions on a range of political matters, by providing discourse on human rights, legislative reforms to improve prison situations and class actions. Syndicat also organizes judicial strikes to protest judges against their working conditions, to stop direct and indirect interference with the magistracy and so on. Syndicat has consistently expressed loyalty and obedience to the law but at the same time has worked to demystify the images of law. It has attempted to penetrate and expand the legislative codes. In terms of legal reforms and legislative proposals, it takes public and explicit positions, even by getting involved in the lobby process. Many of it’s concerns are addressed by the Parliament like it’s position on death penalty was incorporated by abolishing death penalty in France. ne

96. 97.

98.

Doris Marie Provine and Antoine Garapon, The Select ion of Judges in France: Searching for a new legitimacy, in Kate Malles on and Peter H. Russeledt.

(n. 27) at 176-195, ConseilSupérieur de la fr/. magistrature.

Magistrature:

http://www.conseil-superieur-

Willem de Haan, Jos Silvis. Philip A. Thomas, “Radical French Judges: Syndicat de la Magistrature” (1989) 16(4) Journal of Law and Society 477-

482 at 478-479.

Chap. 3—Contribution of the Judicial Education Discourse

117

The JE discourse developed by ENM has taken care of issues that confront judges nationally and regionally within the EU. It’s highly sophisticated JE discourse for judges from France may not ignite the judicial professionalism in the sense it is understood in the common law world, but it helps judiciary to take the role of a technocrat legal professional competent in the art, craft and science of judging. Variety of courses, research projects, conferences, in-depth study programmes are carried out by ENM to help judges acquire professional methods and skills required for the judging work. ENM has become popular choice for newly democratised nations of Europe and elsewhere for shaping their JE discourse policy at their domestic end. For instance, in Hungary, after the transition stage and the second round of elections, the democratic elite decided to adopt a High Judicial Council (Pokol, 2005). The High Judicial Council allowed ENM expertise in the JE discourse to be transferred by means of two Phare projects, in 1997 and 2001, both of which concerned the training of judges and prosecutors.” Through these projects, judges of Hungary entered into an international epistemic community, since several visits to France were part of the Phare projects. 2.6 Contribution of the JE discourse to judicial professionalization in India

Before the British Rule, the separate factions and provinces had their separate moral codes and there was no sign of uniform system of governance and dispute resolution except for brief period when the rulers were powerful enough to unify all the provinces and dictate a common code to them. Therefore not only the British rule sowed the seed for legal professionalization and the rule of law concept but even the seeds for the judicial professionalization were sown during the British rule. The institutions of secular courts came to be developed during their rule in India. Although the justice system was institutionalized for their own benefit by the colonial administration, the natives too benefitted from this system and there is no history of boycott of the justice system institutions. Infact these very same institutions were used by the natives to obtain independence from the British rule. After independence from the British rule, the Constitution of India supported judicial professionalization by providing judges power, prestige and autonomy in decision making process. It also called for separation of judiciary from the executive. The Judges Inquiry Act of 1968 was the next step to judicial professionalization. It established accountability of the higher ranking judges. However, though judiciary is armed with all the attributes that any advanced professions need to possess, in India, professionalism of judiciary is obstructed on account of its three characteristics:

its organizational

structure,

its work

culture

and its

workload. These three characteristics hinder evolving ofjudiciary as a profession in India.

118

Discourse on Judicial Education

Organizational structure: The Indian judiciary is organized into a unified three tier hierarchy that can be represented in following pyramid form: The Supreme Court of India;

[strength 31 judges]

21 high courts; strength appr. 785 judges Power,

Status

13,500 judges of subordinate courts

The lowest layer is designated as subordinate judiciary that consists of around 13,500 courts of judicial officers who work under the administrative control of 21 high courts that comprises around strength of 785-800 justices whose decisions can be challenged at the Supreme Court of India with strength of 31 judges occupying highest position in the pyramid. Judicial superiority rises as we travel from bottom to top in the pyramid as power to strike down/reverse/upheld decisions of. subordinate courts vests with the high courts, whose decisions in turn face similar fate in the hands of the Supreme Court of India. Judges in India are highly mindful and conscious of. this superiority index and this superiority is not just confined to judicial work, but it spills over to other aspects of the profession as well — concerning emoluments, salary structure, benefits, travel and leave allowances, retirement age, retirement benefits, post retirement opportunities, writ jurisdiction powers under the constitution, pecuniary jurisdiction under other laws, prestige and hold in the society and government circles, etc. This over- consciousness proves to be major obstacle in the path to professionalization. The Indian judiciary is heavily affected by superiority-inferiority complex that prevails in the system and one witnesses open criticism by one judge of another’s perception, premises, logic and values. As such, judge’s own commitment, professionalism, integrity suffers due to his desire to earn the respect of sibling judges, the bar. the public, and the authority of appellate courts to reverse decisions. It leads to constant tension and

worries about the consequences of their decisions on their careers. The prospect for the future, coupled with the strain of the present, leads to SSS

99.

R.A. Posner, “The Meaning ofJudicial Self-Restrai nt” (1983) 59 Ind. L.J., 1, 9, 10; K.Waits, “Values, Intuitions, and Opini on Writing: The Judicial Process and State Court Jurisdiction” (1983) UTIL. Rey.

Chap. 3—Contribution of the Judicial Education Discourse

119

conduct not commensurate with the high office that the society has

chosen for them.!°° Therefore, important attributes of professionalism — neutrality, objectivity and independence are compromised due to its structural limitations. The

Workload

—

The

Indian

Supreme

Court

with

strength

of 26

judges!°! in the year 2006 had 61,839 cases pending and another 53,066 cases were instituted for year 2007 (up to 30" September). Mostly judges sit in panels of two or three, sometimes they constitute themselves in 5-bench panel [known as a constitution bench] and in

rare circumstances they form a 9-bench constitution panel.!°? Rarely in its history has a full bench sat except for the occasional en banc case

where all the judges sat!93. So, only two or three judges look at almost all the cases. So then the question comes, how carefully do they look at these cases, given the fact that 26 judges are to deal with 61,839

matters. This means that each iudge has to take responsibility of at least

2378 matters.!°4 Further, these judges have a relatively short shelf-life; they retire at the age of 65 and the average tenure of three years in the Supreme Court denies them the chance to evolve that judiciaries in the USA or Germany afford to its constitutional judges.!° Again, take the case of any high court in India.

A Judge in the Nagour Bench of High

Court! writes between 500 and 800 opinions in a year. Nagpur High Court Judges mostly constitute themselves

in panel of one or two,

decide 800 fully briefed cases in a year, and take up to 2000 cases for

100.

101. 102.

103. 104.

In India, the chief of SamajwadiParty, a political outfit, gave an interview on 13" July 2008 to NDTV India stating that the opponent political outfit BSP had appointed the recently retired Supreme Court judge H.K. Sema as Uttar Pradesh Human Rights Commission Chairman as he gave just before his retirement three judgments in favour of the Chief Minister of Uttar Pradesh Mayawati. This strength is now increased to 31. In the year 2006-2007, a five judge constitution bench sat for 44 days to hear 292 constitution bench matters and a nine judge constitution bench held sittings for 5 days to hear 33 connected matters. SeeThe Supreme Court Annual Report 2006-2007. KeshavanandBharati case, 1973 (4) SCC 225. In response to a Questionnaire, Justice P.K. Balasubramanian of the Supreme Court revealed that A judge of the Supreme Court writes between 150 to 250 opinions in a year. Also judge decides 150 fully briefed cases in a year.

Further 6000 Cases are taken for motions, jurisdictional dismissals, efc. in a

105.

106.

year by individual judge or panel and 300 Cases are taken up for oral arguments in a year. Upendra Baxi, “A Known but an Indifferent Judge: Situating Ronald Dworkin in Contemporary Indian Jurisprudence” (2003) 1 Jnfernational Journal of Constitutional Law 557. Justice R.C. Chavan, Judge High Court of Bombay, Nagpur Bench in response to a Questionnaire.

Discourse on Judicial Education

120

motions, jurisdictional dismissals. Whereas judges of the Delhi High Court write about 400 opinions in a year; mostly constitute themselves in panel of one or two; decide 600 fully briefed cases; take up 1000 cases for motions. jurisdictional dismissals and take up 1000 cases for oral arguments in one year.!9’ So the sheer volume means that the individual cases in India cannot get the same amount of attention from the courts as they would have got from the courts in advanced jurisdictions. Coming to the subordinate courts, the scenario becomes somewhat worse. The workload is almost unmanageable at most places with least transparency as there is no obligation to published the decisions. The academics don’t pay much attention, and the public at large pays even less. So only the parties really know what happens in an individual case. Appellate procedure is often really not an effective

check on what’s happening. So there is little accountability on the part of judges of the lower level for what they do. The Work culture — The Judiciary in India has taken upon itself recently many other responsibilities apart from the judicial decision making responsibility. It has taken a leaf from the western jurisdictions, and

developed for itself managerial responsibilities for legal aid administration, court infrastructure allocation, judicial education dissemination, court computerization, ADR solutions etc. This is apart from the constitutional responsibility on the high courts to supervise the courts in their

jurisdictions. Given the fact that these managerial responsibilities are

beyond the public view, off the record, with no obligation to provide written. reasoned opinions, and out of reach of appellate review — is a

serious cause of concern for many.!98 Further, rather than having a

judiciary deciding matters. many important matters are now as a matter

of procedure given to the administrative registrars to settle.!°9 The

proliferation of registries and the delegation of power to them weaken

judges’

individual

sense

of responsibility.

The

judge

acts

on

the

assumption that his work is the product of “many hands’!!9 from the

complicated network of relationships that exists among the individuals

in his organization. The decision or opinion is not wholly his own.!!!

107. 108. 109.

110.

111.

Justice

Madan

B. Lokur,

Judge

High

Court

of Delhi

in response

Questionnaire. J. Resnik, “Managerial Judges” (1982) 96 Harvard Law Review

to

374. The Courts of Registrars have been established in the Supreme Court of India under the new amendments in the Rules. At present 2 Registrar’s Courts are working on 250 matters everyday. Para 15, p. 73, Supreme Court Annual

Report 2006-7. Thompson, “Moral Responsibility of Public Officials: The Problem of Many

Hands” (1980) 74 AM. POL. SCI. REV. 905.

O.M. Fiss, “The 1442.

Bureaucratization

of The Judiciary” (1983) 92

Yale L.J

Chap. 3—Contribution of the Judicial Education Discourse

121

The use of the office of the Registrar or the Commissioner! !2 insulates the judge from the presentation of the facts and the law on that particular issue, thus accentuating the judge’s incompleteness of perspec-

tive. ete relieves the judge of some of the obligation to explain and justify.

The contribution of the JE discourse — The educational discourse seems the best possible solution to overcome the above structural, functional and management limitations that are hampering the growth of judiciary into a profession. However, at present only one such institution exists in India, the National Judicial Academy (NJA) at Bhopal where open and frank debates are allowed to think for the reforms to be brought to correct the dysfunctions of bureaucratization, to develop broad guidelines, resolutions, best practices to increase judicial efficiency, performance and competence. Though different high courts are now paying attention to the JE discourse, due to efforts of NJA, these institutions at present suffer from number of problems

which are discussed in detail in chapter 7 of this book.!!4 NJA offers a platform for judges to establish communication with each other to learn about each other’s views. In the academic year 2007-2008, NJA took steps to develop concrete proposals for strengthening judicial systems management. In the year 2008, NJA established a team of informal group of high court justices to hold discussions with national level management and technology experts. These discussions resulted in a framework for strengthening the judicial system in the country by establishing a set of performance standards and targets for the courts. In the academic year 2008-2009, NJA formulated “Planning and Management System for Timely Justice” (PMTJ) with two main objectives: firstly, to develop a system of ““court-level plans for timely justice” (CPTJ) under which five year plan is be developed for every court in the country to identify, for every court, a detailed road map on how the performance standards and targets established by the national framework will be achieved by that court and what resources are needed for that court to achieve these targets. The plans, once approved by high courts will be monitored. Secondly, to establish an “Information Management System for the Administration of Justice’ (IMSAJ) to connect all elements of the justice administration system: police, prosecution, courts and jails. The IMSAJ is being developed to minimize inefficiency, injustice and

112.

Order 18 Rule 4 of the Code of Civil Procedure (2002).

113. 114.

Morgan vs. United States, 298 U.S. 468, 481 (1936). See also, Geeta Oberoi, “Limitation of Judicial Education for Continuing Professional Development” (2012) 4 (2) International Journal of Court Administration 64-74.

Discourse on Judicial Education

(22

corruption arising from the current administration based on multiple, mostly manual, information systems. In the first phase, IMSAJ is developing a central data repository into which court data may be uploaded from courts across the country through the internet. The data depository will be a stand alone “special purpose vehicle” under the control of the judiciary and located in the Supreme Court. This is to provide a repository for court data from across the country in a professional and systematic manner. IMSAJ will also provide support functions such as scheduling and timetables for every case entered into the system. IMSAJ aims to eliminate manual/ledger based systems from courts and replace them with digital systems. In the second phase, IMSAJ will provide for uploading all documents relating to every case into the system. In the third phase IMSAJ will envisage networking with the non-judicial systems involved in the administration of justice.

NJA through above strategic plans is contributing to standardization for judicial performance, resource management, and improvement in judicial infrastructure. To improve professional efficiency and competence, NJA has incorporated in the curriculum five basic elements for the JE discourse: (i) role and responsibility of judges (including judicial ethics); (ii) knowledge (of substantive and procedural law) and skills of judges; (iii) judicial method; (iv) management of courts/ cases; (v) organizational efficacy—including the role of other stakeholders such as the bar, the executive, litigants and legal education. NJA has made the JE discourse as a vehicle for judicial reforms in India and expanded its responsibility from merely arranging confe-

rences,

seminars,

workshops,

retreats,

meetings

and

deliveries

of

lectures for judges, to the responsibility for judicial professionalization in India. 3.

Conclusion on overall contribution of the JE discourse to

judicial professionalization As noted by Armytage, at a time when accountability is being demanded of all social entities, it is noteworthy that the judiciary is beginning to see itself in this context primarily as a profession rather

than as an arm of government or a body of public servants.!!5 Different

jurisdictions are prompting the judiciary in the direction of professionalization. Though the reasons behind judicial professionalisation differ from one judicial culture to another, the consequences of the judicial professionalisation are not very dissimilar in nature. Overall it provides judges with the status, power, autonomy and competence to adjudicate

115.

L. Armytage, ‘Judicial Education on Equality’ (1995) 58 Modern Law Review 160-161.

Chap. 3—Contribution of the Judicial Education Discourse

123

fairly, effectively and efficiently. It negates the external pressures on the judicial branch so that judges can act without fear and favour. In the present atmosphere, when the world is facing unprecedented crises all over the globe with respect to irregularity, misconduct and corruption at high places that invariably involves the political-executive nexus, judiciary remains the sole institution with authority to set things right. However, the pressure on the judiciary from political-executive branch is more than ever to have smooth and unhindered path for legitimizing the corruption and other deals that harm the public interest. Every tactic is applied by political and executive branch to dilute the strength of the judicial branch and even an impression is created in the minds of public that judiciary will be of no help to clear the mess created by the political-executive nexus. In such hard time, the judiclary can overcome such impression by sticking to the judicial professionalization. The JE discourse in such times cannot limit itself to technical professionalization criteria: knowledge of law, but has to move the judiciary towards adherence to values of transparency, accountability and independence in their decision-making process. Therefore the JE discourse has to undertake projects for reforming the judiciary to make it an advanced profession. Judicial professionalization in the common law world calls for judges to play active role in protecting democratic values enshrined in the grundnorm. It demands judiciary to be treated in the same way and on the same footing as the other branches of the governance — parliament and executive. But it is not uncommon to find instances from the common law world where the judicial professionalization was found weak and unable to protect the individual judge from the authoritarian governments and their arbitrary decisions and actions. We had in Israel the verbal and personal attack by the bar president on the Chief Justice Ahron Barak, we had in India superseding instances of the senior Supreme court judge because the judge pronounced illegality of the procedure followed by the executive and legislature in taking away rights of citizens, we have from Australia 1992 incident where homophobic Senator used the Parliament as forum to defame Justice

Michael Kirby, one of the Justices of the High Court of Australia.!!® The JE discourse by strengthening judicial professionalization can create judicial solidarity and judicial fraternity against individual and baseless attacks and arbitrary decisions by the other branches. The French JE discourse provides how, ENM led to the formation of Syndicat which protects fiercely independence of judges.

116.

Matthew Groves, Enid Campbell, “Attacks on judges under parliamentary privilege: a sorry Australian episode” 2002 Public Law 626-639.

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Also as evident from the above discussion of different jurisdictions, the JE discourse has turned itself out to be yet another vehicle for judicial reforms aimed to raise professionalism on the bench. Through the discourse in different jurisdiction is making an effort to enhance capacity to perform by raising judges’ ability to understand and appreciate law, skills to appreciate technicalities, attitude devoid of biases, prejudices and subjective considerations, at the same time, the JE discourse is also making itself a vehicle to bring an overall improvement in the justice system. Such overall improvement will be beneficial for the system to raise its legitimacy and prestige in the eyes of public, which all advanced professions crave for. Most of the jurisdictions are now moving closer to make the JE discourse as mandatory for judges, bringing therefore their judiciaries

much closer to the goal of professionalization.!!? Judiciaries are also taking upon themselves the task of developing the JE discourse and this self-imposed responsibility proves that in different jurisdictions, the judiciary is eager to imitate other evolved profession who share the responsibility for training and education of its members. Professions over the years are taking responsibility to ensure that new recruits imbibe and learn about the expectations from them in the system. Therefore it is safe to infer that judicial professionalization forms the central objective behind the JE discourse in every jurisdiction of the world. Further analysis on comparative scale reveals that there is some convergence in objectives, methods and outcomes of the JE discourse taken up in different jurisdictions. Almost all jurisdictions view the JE discourse as a tool to enhance the legitimacy of the judicial institutions. Also, all jurisdictions are now providing for mandatory character of the JE discourse through the statutory enactments. Also, different jurisdictions may not openly conform how much their discourse has been influenced by the discourse in other jurisdictions, yet the close probing makes it res ipsa locquitor. While the civil law countries like France were the first ones to institutionalize their

JE discourse in the 1950s, the

common law countries too followed this trend after a decade in late 1960s. After two decades, in 1980s, the colonies that gained independence too followed and since 1990s started institutionalizing the JE

discourse at their end. Then a decade later in 2000, through the number

of rule of law programmes supported by the external funders, the JE discourse was institutionalized for developing countries of Africa and elsewhere. At present, the trend is to institutionalize such capacity building programmes for the countries in transition.

117.

See Annexure II at p. 277 of the book.

CHAPTER FOUR

MAKING THE JUDICIAL EDUCATION DISCOURSE METHOD EFFECTIVE This chapter indicates the phases of development that need to be considered in development of the JE discourse, ifgenuine skilling, that is training an individual judge to make him capable of performing to a high level and act independently and effectively as a problem solver, is an objective. Introduction

The first two chapters establish the general and the particular need to develop the JE discourse to raise professional competencies in judges. The third chapter surveys different jurisdiction of the globe to understand how the JE discourse is contributing to the goal of judicial professionalization in those jurisdictions. This chapter considers in detail, structure

of the JE discourse, focusing on delivery methods,

trainer effectiveness, curriculum designing and learning materials. It provides how each of these elements is important to attain the objective of the JE discourse. To write this chapter, the practice from management,

medicine,

engineering and architecture disciplines was studied to know how these disciplines are developing the continuous professional education for the benefit of their practitioners. Theories from education and psychology, along with the best practices that are being developed around the globe in the field of training of adult professionals, and judges in particular, form the basis for writing this chapter. Theoritical framework on learning methods is explored in the first part to aid in developing effective delivery methods for the JE discourse. This part acquaints reader with theoritical framework around learning process and classroom models developed by other disciplines to enhance learning. It also simultaneously provides the utility of theoritical framework around learning and tests the applicability of classroom models to the JE discourse. The second part of this chapter will further guide the judicial trainers on the expectations placed on them if they have to meet specifically identified needs of judge professionals. The third part of this chapter explores theories around the curri-

[ 125]

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culum designing and tests the practical applicability of those to the curriculum development for the JE discourse. The fourth part of this chapter attends to significant issues of restructuring the content management system to professionalise training of judges, providing both utility and methods for developing the learning materials for the JE discourse. I. Effective Delivery Methods

From literature around different disciplines, one can deduce that the methods of delivery of education or trainings assume significance for at least three different reasons. Firstly, as established by educational psychologists!, the level of receptivity varies with different training methods.The table below by Mendenhall provides how the level of receptivity with different training methods will vary.* This table shows that the level of receptivity would be least when factual information is

High}

Cross-cultural Competence

Field experience Experiential

Simulation Field trips Role plays Interactive language training Analytical Sensitivity training Culture assimilators Case studies Classroom language training Films Factual

Low

Books Lectures Aréa briefing

~

Symbolic

Participative

Verbal

Verbal

Behavioral

Focus

Figure I: Levels of learning

|. See J.R. Anderson, Cognitive Psychology and its implications. New York: W.H. Freeman, 1990; J.S. Black and M. Mendenhall, Cross cultural training effectiveness.A review and theoritical framework for future research, 15 Academy of Management Review, 113-136, Fig 5.1 (1990); Conford, Ian R. “Ensuring effective learning from modular courses: a cognitive” 49(2) Journal of Vocational Education and Training 1997 237-251. 2. See J.S. Black and M. Mendenhall n. 1; J.S. Black, M. Mendenhall and G. Oddou, Toward a comprehensive model of international adjustment: An integration of multiple theoretical perspectives, 16 Academy of Management ®

Review, 1991, 291-317.

;

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delivered by lecture methods in classroom settings. Also, adult learner will only remember 20% of what they hear in the classroom settings. Therefore, for the JE discourse, while developing effective schemes to guide judges on judicial performance, forgetting and retention aspects need to be considered consciously in the design of delivery methods. Secondly, apart from the receptivity factor, knowledge imparted to adult professionals gets outdated fast, and therefore, the notions of autonomous learning have gained momentum. To facilitate autonomous learning, perspective on learning has to be broadened. The JE discourse has to therefore provide judges the skills of autonomous learning. There are different views on what constitutes these skills, but there is conside-

rable consensus that they include abilities to: (i) diagnose one's own learning needs; (ii) formulate one's own learning objectives/setting learning targets; (iii) identifying for oneself necessary resources to achieve these; (iv) taking initiative in the use of those resources; (v) providing evidence as to use of these and (vi) assessing one's progress and achievements.*

Thirdly, other disciplines have established that the competence and character are shaped and reshaped across life span.» The management discipline has developed number of pedagogical techniques through which a transformation in personality has become possible which needs to be experimented to build capacity for reflective judgment so as help the judges to think in qualitatively richer ways by developing the abilities for imagination and plural thoughts so that they can do justice as defined by Senby visualizing multiple versions of possible solutions, multiple characterization and multiple pathways to resolve a

problem.® The above three reasons establish the need to understand theoretical framework on the learning process so as to develop effective delivery methods in the JE discourse. The sections below therefore explore (1) theoretical framework on the learning process and (2) the classroom methods developed using that theoretical framework.

Ww

4.

J.R. Anderson, n. 1. Rob Halsall and Mike Cockett, “Providing opportunities for active learning: assessing incidenceand

5.

impact” Curriculum Journal,

1998, vol. 9, issue 3:

299-317 at 300. Philip D. Gould & Patricia H. Murrell, Therapeutic Jurisprudence and Cognitive Complexity: An Overview, 29 Fordham Urb. L. Rev. 2117, 2127-

29 (2002); Patricia H. Murrell, Competence and Character: The Heart of CLE

6.

for the Profession’s Gatekeepers, 40 Val. L. Rev. 485, 486 (2006). Amartya Sen, The Idea of Justice. Oxford 2009.

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Theoretical framework on the learning process

1.

Human beings never stop learning. Learning occurs instinctively “as the brain extracts meaningful patterns from the confusion of daily internal and external experience.”’ This means that “present interpretations of reality are always subject to revision or replacement.”8 Although the evolution of adult thought has long been recognized, social scientists did not intensely focus on the processes and results of adult learning until the 1970s. Since then multitude of theories about adult learning have been proposed, critiqued, tested and refined.? These theories around how adults learn, what motivates them to learn and transfer their learning back to the performance, what role cognitive abilities, personalities and age factor play in the learning process — can be grouped as: (1) theories about learning process; (1i) theories about transfer of learning; (ili) theories about learning stages; and (iv) theories about learning style. A brief summary of these theories is given below because knowledge about these will be help in constructing an effective discourse to

professionalize judges. (i)

Theories around learning process

The earfiest theories on learning process made attempts to investigate an exact mechanism of receiving, filtering and subsequently storing the information. Miller, a Harvard based psychologist found that the data is stored in the form of small pieces, or chunks, and that

the most the average person could remember of these chunks was

seven plus or minus two, now referred to as Millers Magic Number.!° During the 1960s, Dale theorized that learners retain more

infor-

mation by what they ‘do’ as opposed to what is ‘hear’, ‘read’, or

‘observe’. His research led to the development of the Dale’s Cone of Experience which incorporates several theories related to instruc-

tional design and learning processes.!!

7. 8.

Dorothy MacKeracher, Making Sense of Adult Learning 6 (2d ed. 2004). Jack Mezirow, Transformative Dimensions of Adult Learning xiv (Alex B.

9.

See Malcolm S. Knowles, Modern Practice of Adult Education: From Pedagogy to Andragogy 42-43 (rev. vol. 1980): Sharan B. Merriam & Rosemary S. Caffarella, Learning in Adulthood: A Comprehensive Guide 267-366 (2d ed. 1999), George A. Miller, “The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information” 101(2) (1955) Psychological Review 343-352. Edgar Dale, Audiovisual Methods in Teaching 1969, NY: Dryden Press.

Knox ed., 1991).

10.

11.

Chap. 4—Making the JE Discourse method effective

129

Dale’s Cone of Experience People Generally Remember

People are able to (Learning Outcome

10% of what they read 20% of what they hear

{Hear

30% of what they see

50% of what they hear and see 70% of what they

say and write

Vicw

# Define

® Describe

|

wre

Be

|

\

|

Images

Watch Videos ,

Attenda Demonstration Exhibit/Sites

Demonstrate

|

Apply

|

ay

Watch

Participate in Hands-on Workshop Design Collaborative Lessons

they say as

|

|

Practice

90% of what they doa thing

a

Analyze

pepe Design Create

aed — |

Simulate, Model or Experience a Lesson Evaluate Design/Perform a Presentation - Do a “Real Thing” {

j

Adapted from Wiman & Meirhenry, 1960 on Edgar Dale

Figure 2: Dale’s Cone of Experience

Apart from the above inputs on mental structure and appreciation in the learning process, three main psychological movements: (i) behaviourist; (ii) gestalt; (iii) cognitive school also enrich perspectives on the learning process.

Classical behaviourist!? described learning as a conditioning process, which involves a connection between stimuli and response. Behavioural learning would therefore involve acquisition and application of new behaviour to result in skills and habits not previously in the individual’s repertoire.

The gestalt!? or ‘whole form’ approach, provided that objects are perceived within an environment according to all of their elements taken together as a global construct. It is based on the here and now, and in the way you view things. Although Gestalt has been criticized for being merely descriptive, it has formed the basis of much further research into the perception of patterns and objects and of research into behavior, thinking, problem solving and psychopathology.

E.L. Thorndike

(1874-

by early 20th century theorists, such as Kurt Koffka

(1887-

12.

Jan Pavlov (1841-1936),

13.

1949). Represented

J.B. Watson

(1878-1958),

1967), Max Wertheimer (1880-1943), and Wolfgang Kohler (1887-1967).

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The cognitive school posited that learning should be concerned with the internal processes of the learner. This school insisted on the role of cognition in perceptual process.!4 Theorists from this school divided learning process into: /ow-road learning involving low cognitive functions and high-road learning involving high cognitive

functions.!> Low-Road Learning implies previously learned knowledge or practices can be evoked and successfully applied in a different situation if the new situation is perceived by the individual to have characteristics sufficiently similar to those in the earlier situation(s), to trigger the opposite knowledge or practices. The critical feature of low-road learning is its automatic extension into situations that appear to be somewhat different, but which can be enacted through essentially extant knowledge or practices. Salomon and Perkins illustrate low-road learning with the example of driving. Having learned to drive one car, one can extend to driving other cars and, indeed, to other motorized vehicles. While the initial sensation of driving the new vehicle may be a bit unsettling, one’s extant driving skills only need fine tuning to

accommodate the demands of the new vehicle.!®

High-Road Learning does not involve automatic transfer of knowledge or practices from one situation to another but requires

mindful

abstraction.'’

Bereiter

and

Scardamalia

define

mindful

abstraction to mean intentional learning, which requires deliberate, conscious effort on the part of learner to understand and monitor one’s own understanding of the phenomenon underpinning the assigned

task.' Therefore high road learning would involve extracting the generic

attributes

from

some

material,

situation

or behaviour,

and

creating a mental representation (such as a sign, a picture or a linguistic 14. 15.

Dewey, J. (1938/1997). Experience and education. New York: Macmillan Co. Perkins, D. N., & Salomon, G (1992). Transfer of learning /nternational Encyclopedia of Education (2nd ed.). Oxford, UK: Pergamon Press.; Perkins DN, Salomon G 1987. Transfer and teaching thinking. In: Perkins D N, Lochhead J, Bishop J (eds.) 1987 Thinking: The second international conference (pp. 285-303). Erlbaum, Hillsdale, New Jersey; Perkins D N, Salomon G 1989 Are cognitive skills context bound? Educational Researcher 18(1):

16-25;

Salomon

Rethinking mechanisms

G, Perkins

D N

1989

Rocky

of a neglected phenomenon.

roads

to transfer:

Educational Psycho-

logist 24(2): 113-142. Pascual-Leone, J. & Irwin, R.R. (1994). Noncognit ive factors in high-road/low-road learning: II. The will, the self, and modes of instruction in adulthood. . Journal of Adult Development, 1(3), 153-168:

16.

17. 18.

Pascual-Leone, J. & Irwin, R.R. (1994). Noncognitive factors in highroad/low-road learning: I. Modes of abstraction in adulthood. Journal of Adult Development, 1(2), 73-89. Salomon G, Perkins D N 1989 Rocky roads to transfer, n. 15. Ibid.

Bereiter, C. & Scardamalia,

M. (1989). Intentional learning as a goal of

instruction. In L. Resnick, (ed) Knowing, Learning and Instruction (pp. 361392) (Hillsdale, New Jersey, Lawrence Erlbaum Associates).

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expression) of these attributes. Extracting what is central, essential or generic, allows the individual to make the connection(s) between one context or situation and another; either between existing pieces of knowledge or between existing knowledge and new knowledge, that is just entering the system.!? It is only when one can make the connection(s) for oneself that the individual can claim to understand. Salomon and Perkins illustrate high-road learning with the conscious decisions that we make to use particular strategies to solve new problems, either because the strategies seem to pop up on relevant occasions, or because we deliberately search for/retrieve previously learned strategies for

potential application to the new situation.?°

The above theories must guide the JE discourse developers on various facets of a judge as a learner. Keeping in mind these facets, the methods of delivery of trainings can be improvised. (ii) Theories around the transfer of learning

If through the JE discourse, improvement is to be brought in the judicial decision making process, then judges need to be provided tools and techniques to generalize what they have learned in the past to apply to new learning and extend their learning to a range of situations. Because of this need to generalize from one situation to another, the issue of transfer (process of learning) becomes pressing.”!

A linear model of transfer of training was developed as: raining)

—>

———~> ( Performance

This linear model is improved over the years and the contribution

of Holton2? and Vroom?? deserves special mention. Holton provided that training gets transformed to learning only when there is motivation to learners to learn and this learning in turn can result in individual performance only if an appropriate climate to transfer that learning

19. 20. 21. 22.

Hiebert, J. (Ed.) (1986) Conceptual and Procedural Knowledge (Hillsdale, New Jersey, Lawrence Erlbaum Associates). Salomon G, Perkins D N 1989 Rocky roads to transfer: n. 15. Haskell, R. (2001) Transfer of Learning. (London, Academic Press). Holton, E.F. Ill, Bates, R.A., Seyler, D.L. and Carvalho, M.B. (1997), ‘Toward construct validation of a transfer climate instrument’, Human Resource Development Quarterly, 8, 2, 95-113; Holton, E. F. III, Bates, R. A.

and Ruona, W. E. (2000), ‘Development ofa generalized Learning Transfer System Inventory’, Human Resource Development Quarterly, 11, 4, 333-60; Holton,

23.

E.F.

Ill.

1996.

The

flawed

four-level

evaluation

Resources Development Quarterly 7: 5-21. Vroom, V.H. (1964). Work and motivation. New York: Wiley.

model.

Human

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back to the job is provided. Vroom suggested that the job performance is the result of interaction of two components: force and ability. Here ability is potential for performing some task and force is willingness to perform a task. Vroom’s suggestions may be reduced into following equation:

P= f (F x A) Here

P denotes

Performance,

F denotes

force

and A denotes

ability. Learning therefore can get transferred to performance only if it motivates learners and there is an appropriate climate for such transfer on the job. Only then learners will show willingness to apply what they learnt through the trainings on the work. Noe and Schmitt define motivation to learn as trainee’s desire to use the knowledge and skills mastered in the training program on the

job.24 From the management discipline, we have several theories on motivation to transfer learning back to the job. Yamnill and McLean

acquaint us with three theories — expectancy theory*>, equity theory*® and goal setting theory*’ that provide different rationale behind motivation.28 From the expectancy theory we get rewards — intrinsic

24.

25.

R.A. Noe and N. Schmitt (1986) The Influence of trainee attitudes on training effectiveness: Test of a model. Personal Psychology 39, 497-523. See Vroomn 24 at 17. Also Porter and Lawler have done work in this area. See Porter, L.W., & Lawler, E.E. 1968. Managerial attitudes and performance. Homewood, IL: Irwin; Porter, L.W., Lawler, E. E., & Hackman, J. R.

1975. Behaviour in organizations. New Y ork: McGraw-Hill. 26.

Adams (1963), Vroom (1964) n 24, Carell and Dittrich (1978), Campbell and Pitchard (1976) are main scholars who have worked in the field. See Adams, S. J. 1963. Towards an understanding of inequity. Journal of Abnormal and Social Psychology, 67: 422-436.Adams, J.S. (1965). Inequity in social exchange. In L. Berkowitz (Ed.), Advances in experimental social psychology 2 (pp. 267-299). San Diego, CA: Academic Press; Campbell, J. P., & Pritchard, R.D. 1976. Motivation theory in industrial and organizational psychology. In M.D. Dunnette (Ed.), Handbook of industrial and organizational psychology: 63-130. Chicago: Rand McNally.

27.

Locke (1968), Locke, Shaw, Saari and Latham (1981); McLean and Persico (1994), Nexeley and Nemeroff (1975) did considerable work on goal setting

theory. See Locke, E.A. 1968. Towards a theory of task motivation and incentives. Organizational Behaviour and Human Performance, 3: 157—189: Locke. E.A. 1996. Motivation through conscious goal setting. Applied and Preventive Psychology, 5: 117-124. Locke, E.A., & Latham, G.P. 1990, A theory of goal setting and task performance. Englewood Cliffs, NJ: Prentice-Hall, = 28. Siriporn Yamnill and Gary N. McLean, Theories supporting transfer of training, 12(2) Human Resource Development Quarterly, 195-208, June 2001.

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or extrinsic as motivational factors; from the equity theory, beliefs about unfair treatment create tension and that motivates people; from the goal setting theory, it is people’s goals in life to accomplish things that motivates them to direct their attention and action. All these theories are worked upon by scholars and improved upon. Using these theories, the linear model on transfer of training can be modified as:

Appropriate climate to transfer

Performance = f(F x A)

Motivation to learners

The above modified model is very much relevant for the JE discourse also. Judges after training will feel motivated to apply their learning back to the judicial system if only they form an opinion that it will fetch some rewards to them, or stop their unequal treatment within the system on account of lack of knowledge or skills or attitude, or when they set some goal to be achieved immediately or in future by such application of learning so as to show their improved performance to the peers. In my trainings with first instance judges from India and Mauritius, I realized that the motivation is a key to effective transfer of training. It lifts the spirits of young minds who are uncertain, nervous and not sure about what future holds for them. Therefore the JE discourse must develop strategies to motivate judges to make them take part in their learning process. Apart from the above psychological movements explaining the fundamentals of learning process, Humanistic Education Approach

developed from the work of key theorists Maslow”? and Rogers?° stress the importance of holistic approach to learning that recognizes the

29.

Maslow, A. Motivation and Personality. New York: Harper Row, 1954.

30.

Rogers, C. Freedom to Learn. Columbus, OH: Charles E Merrill Publishing. Columbus, OH:

1959.

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importance of feelings and emotions as well the cognitive.*! In direct contrast to the behaviourist approaches that hold that the individual is acted upon by the external environment, humanistic approaches hold that individuals ‘acts upon’ their environment, making choices and decisions to shape their personal world and learning. Each person will actively seek out his or her own life experiences and strive for personal growth. Its five objectives happen to be promotion of (1) self-direction and independence; (ii) ability to take responsibility for what is learned; (iii) divergent thinking and creativity; (iv) curiosity; and (v) an interest

in the arts.22 To make judges conscious of public expectations from their office about a degree of consistency in the standards of legal knowledge, about courtesy, patience and behaviour, humanistic education approach can prove to be effective because, the first objective underlying the use of this pedagogy — to promote positive self-direction and indepen-

dence?3—will

help judges to develop optimistic attitudes to their

abilities, skills, knowledge so that they can work independently. The second objective underlying the use of this pedagogy — to promote the ability to take responsibility for what is learned — will help judges in taking responsibility for their future learning. This is required as the discourse cannot take the task of spoon feeding on every aspect that needs attention throughout the career of a judge. Such task would be gigantic and of unbearable cost. The third objective underlying the use of this pedagogy — to promote creativity — will help judges in developing creative mindset that can help them stand on the same intellectual platform as their counterparts in other parts of the world. Creativity helps in coming out with fresh and exciting ideas and we have witnessed the development of common law through sheer judicial creativity that continues to guide the world in many important aspects of governance even to this day. Today there is more need for judicial creativity than ever before as legislators and executive in their act of diplomacy to get benefits from all the sides and wrath of none, continue to clog the courts with all kinds of political, social, philosophical, economics issues thereby expanding judicial territory for different matters. The fourth objective underlying the use of this pedagogy — to promote curiosity — will instill the capacity to explore and research for further information and will thereby reduce eventuality of errors, gaps, igno-

31. 32.

Maslow, A. n. 29; Rogers, Cr n. 30; Patterson, C.H. Humanistic Education. Englewood Cliffs, N.J.: Prentice Hall,

33.

Gage and Berliner in Huitt, W. An Overview of Humanistic Education. Valdosta, G.A: Educational Psychology Interactive, Valdosta State University (May be downloaded at http://chiron. valdosta.edu/whuitt/col/affsys

1973.

humed.html),

1997,

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rance in decision making process. The fifth objective underlying the use of this pedagogy — to promote an interest in the arts such as listening to music, playing an instrument, drawing, painting efc_—helps in the development of brain and expands creativity level.34 We need to ee judges in range of interests to develop appreciation and taste for the arts. (tii) Theories around the learning stage

Learning stage theories offer description of the stages through which people move as their ways of thinking become more inner-

directed and complex.*°> Each stage represents a qualitatively different way of thinking and restructuring in the direction of increasing complexity. Thought process, Knowledge, skill and age are four parameters used by educationists to classify the learning stages. (a) Thought process Perry, educational psychologist and professor of education at the Harvard Graduate School of Education, came up with theory on four different stages in thought process: dualism, multiplicity, contextual relativism, and commitment in relativism.

The JE discourse must be

guided by these four different stages so as to understand the present stage of thought process of judge trainee and accordingly devise a course to evolve judge from his/her present stage of thought process to the next higher level stage.

From Perry’s work we learn that the most basic stage of thought process is of dualism. For dualistic thinkers, truth and authority are so integrally linked that they assume what is said is true simply because

the source is authoritative.5® To raise judges from dualistic thought process to higher level of thought process of multiplicity, the JE discourse has to acquaint judges with the fact that different authorities provide different answers to the same question. It becomes pressing to move judges from the stage of dualism to the stage of multiplicity so that they accept diversity of opinions as legitimate. After bringing judges’ thought process to the stage of multiplicity, the JE discourse must help judges to evolve their thought process to the next higher stage of contextual relativism so that the locus of control in judges shifts from external to internal and their internal self assumes

34.

A.

Armytage.

Teaching

and

Training

in Post-Compulsory

Education.

Maidenhead: Open University, 2003.

35.

William G. Perry, Jr.. Forms of Ethical And Intellectual Development In The College Years: A Scheme (Jossey-Bass 1999).

36.

Aiken, S.H., Anderson, K., Dinnerstein, M., Lensink,J.N., & MacCorquodale,

P. Changing our minds: Feminist transformations State University of New York Press, 1988 at 292.

of knowledge.

Albany:

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legitimacy not only in the learning process but also in defining reality. For the same, the JE discourse can acquaint judges with complex problems where the law and justice do not seem in accord. Through the complex problems, judges can be made to realize that everything is relative, it is not equally valid, and that only in context can truth and

value be defined.3’ The evolution of judges in this stage of thought

process can help them to enter into the thinking of other people, experience empathy, and thus create greater understanding in them. The JE discourse needs to continuously help to evolve thought process till the final stage of thought process given by Perry of commitment in relativism is attained. Individuals in this stage of thought process possess an ability to deal with paradox, make decisions in the absence

of clear or complete information, and tolerate ambiguity.>* This stage

will provide judges an ability to identify assumptions and the effect of those assumptions on choices and behavior. (b) Knowledge

From the work of Conford??, Dreyfus*® and Berliner*! the stages progressed through in an-attainment of expertise are provided as: novice, advanced beginner, competent, proficient and expert. Depending upon the level of knowledge attained, learner may be placed in the category of novice, advanced beginner, competent, proficient and expert. The learners in the first three stages —novice, advanced beginner and competent are concerned very much with the learning and application of new information. At these stages of development,they are controlled very much by the rules and show lack of flexibility in dealing with data and problem solving. The learners in the advanced stages of proficient and expert draw more upon intuition which is closely linked to automatic data processing and problem solving based upon elaborate schemas or metal models.*? It falls upon the JE discourse to take judge learners from the first three stages to the advanced

37.

In my training classes with first instance judicial officers, I have made use of Amartya Sen’s flute example to make these officers realize that for some problems there are no definite solution and every solution can be valid in a relative context. See Amartya Sen n. 6.

38. 39.

Aiken, S.H., et.al. n. 36 at 295-6. Conford, Ian R. n. 1,

40.

re a H.L. Dreyfus and S.E. Mind over Machine. New York: Free Press. 6. Berliner, D.C. “The Development of Expertise in Pedagogy.” The Charles W. Hunt Memorial Lecture . New Orleans, LA: The American Association of Colleges for Teacher Education, 1988 February. Berliner, D.C. “Educational Psychology and Pedagogical Expertise: New findings and new opportunities for thinking about training.” Educational Psychologist, 1991, vol. 26: 145-155.;Cornford 1993),

41.

42.

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stage of proficient and expert to make them capable of possessing problem solving skills. (c) Skills Fitts identified three stages in the learning of individual skills: (i) cognitive phase in which componenets and their order are identified along with basic standards of excellence; (11) practice fixation phase in which the skill is refined and consolidated into long terms memory through practice and feedback, and (iii) an autonomous phase where the

skill comes to be automatically performed.*3 The autonomous stage is quite important in human skill learning and effective performance since it frees up conscious working memory with its limited capacity to concentrate on incoming data and allows problem solving to take place

quickly and efficiently.*# Skills are not automatically or easily generalized or integrated. Consequently, even when people have skills appropriate for a task, they frequently fail to use the skills and thereby function below the level required by the task.4> The observed developmental variation in skills at any point in the individual’s lifetime is the outcome of different

levels of environmental support.4° The JE discourse can extend its reach by suggesting the reforms to be brought in the system to provide judges the required environmental support for skill development so that they work at a level required from them by the task.

Bloom’s educational taxonomy theory*’ describes the six levels of thinking skills, starting from knowledge, comprehension, application, which are the lower level thinking skills; moving towards analysis, synthesis, evaluation which are the higher level thinking skills.

43.

Fitts, P.M. “Perpetual Skill Learning.” In Categories of Skill Learning, by A.

44.

Sweller, J. “Some cognitive processes and their consequences for the organisation and presentation of information.” Australian Journal of Psychology, 1993, vol. 45: 1-8. S.L.Pipp, K.W. Fischer and. “Process of Cognitive Development: Optimal Level and Skill Acquisition.” In Mechanisms of Cognitive Development, by

W. Melton. New York: Academic Press, 1964.

45.

R.J. Sternber, 45-48. New York: Freeman, 1984 at 47.

46.

Sadler, Marc S. Schwartz and Philip M. “Empowerment in Science Curriculum Development: A micro developmental approach.” International

Journal of Science Education, 2007, vol 29, issue 8: 987-1017 at 990.

47.

B.S. Bloom and D.R. Krathwohl, 1956. Taxonomy of Educational Objectives: The Classification of Educational Goals. Committee of College and University Examiners Handbook I: Cognitive Domain (New York: Longmans Green); Bloom, B.S. Taxonomy of Educational Objectives—The Classification of Educational Goals; David McKay: New York, NY, USA, 1956.

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evaluation (judge, recommend, assess]

:

comprehension [summa

describe]

| knowledge [name, define, list, identify] | aa necomnsscarescxrescomacsascnecensctot

“~

-;

Figure 5

Bloom’s taxonomy makes it clear that higher level thinking skills

are required for judging the disputes.*® However, majority of judges are neither conscious of this requirement nor make any effort to acquire these skills. It is only through the JE discourse opportunities that judges can be prepared to inclucate next level thinking skill by taking help of methods developed in other disciplies to inculcate these skills.

(d) Age Age as a parameter of the stage of learning led to the development of the conception of andragogy according to which adults are autonomous and self-directed and need to be actively involved in the learning process. They have need for flexibility and enjoy control over their learning.4? Knowles work remains the cornerstone of much of our understanding of andragogy.5? Andragogy signifies the intentional and professional conduct of any activity designed to change

48. 49.

50.

Ibid. Towler, Annette. “Effects of Trainer Expressiveness, Seductive Details, and Trainee Goal Orientation on Training Outcomes.” Human Resource Development Quaterly, 2009, vol. 20, no.1: 65-84 at 66. Malcolm Knowles (1913-1997), the father of adult education theory wrote The Modern Practice of Adult Education Now available as Malcolm S. Knowles, Elwood F. Holton III & Richard A. Swanson. The Adult Learner: The Definitive Classic in Adult Education and Human Resource Develop ment (Sth ed., Gulf Publg. Co. 1998).

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the personality and is different from pedagogy (children’s guidance) and gerontology (education and guidance of older persons).°! Many courses especially which are designed to sensitize judges on issues like gender justice, domestic violence, examination of witnesses, reasoning methods, efc. can only be effectively delivered using the principles of andragogy. (iv) Theories around the learning styles

Though no one definition fully captures the concept of “learning style”, it has generally been described as the way in which new information is perceived, absorbed, and processed.°? The psychological literature reveals that individuals do differ in the ways in which they prefer to gather and absorb data, and in how they process such data. These differences are important for designing of professional educational programs.°? Therefore, attention to the learning styles may facilitate designing of an appropriate course*4 and may also help the trainee judges to transfer knowledge and skills gained during the training program back to the workplace.>> Learning style theories have gained significance over the past forty years among

51. 52.

Enckevort, G. van. “Andragogy: a new science. .” Jn Aontas, 1971, vol. 1, no. ee Scholars tend to define the term broadly or narrowly depending upon which aspect of the learning process is their focus. See generally Kim Buch & Susan Bartley, Learning Style and Training Delivery Mode Preference, 14 J. Workplace Learning 5, 6 (2002) (defining the term as the way in which people “take information in and how they transform the information into

meaning”); Susan Sunny Cooper, Learning Styles, “General Concepts for Learning Styles,” http://www.lifecircles-inc.com/learningstyles.htm (Nov. 2001) (explaining that the concept of “learning style” includes “the way in which [an] individual... responds to and works on a learning task’); M.H. Sam Jacobson, A Primer on Learning Styles: Reaching Every Student, 25 Seattle U. L. Rev. 139 (2001) at 142 (defining learning styles as “those cognitive, affective, and psychological behaviors that indicate how learners

interact with and respond to the learning environment and how they perceive, process, store, and recall what they are attempting to learn”). 53.

54.

N. Van Zwanenberg, L.J. Wilkinson & A. Anderson, Felder and Silverman's Index of Learning Styles and Honey and Mumford's Learning Styles

Questionnaire: How Do They Compare and Do They Predict Academic Performance?, 20 Educ. Psychol. 365 (2000) at 366. Houle, C.O. Continuing Learning in the Professions. San Francisco: JosseyBass, 1980; A.B. Knox, “Life-long self directed education.” In Fostering the

growing need to learn, by R.J. Blakely. Rockville, Md: Division of regional medical programs, Bureau of health resources development, 1974. 55.

Poell, R.F, Van

der Krogi, F.J.,Vermulst,

A.A.,Harris,

R. & Simons,

M.

“Roles of Informal Workplace Trainers in different organisational contexts: Resource companies.” Human from Australian Evidence Empirical Development Quaterly, 2006, vol. 17, no. 2: 175-198.

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academics°®, corporate and government trainers?’ and even from the legal scholars.*8 Personality and cognitive abilities are used to differen-

tiate the learning styles. Whereas Jung>? and Jacobson®? relied on the personality to differentiate between the learning styles, Kolb®°! used the abilities of grasping information to characterize the learning styles. (a) Personality based learning styles

The personality classification of Carl Jung — the Myers-Briggs Type Indicator (MBTI) is used to understand learning styles and how individuals differ in the learning process. Scores obtained from the MBTI indicate a person's preference on each of four dichotomous dimensions: extroversion (E) versus introversion (I) indicates whether a person prefers to direct attention toward the external world of people and things or toward the inner world of concepts and ideas; sensing (S)

56.

See Susan Sunny Cooper n. 54 (explaining that the concept of “learning style” includes “the way in which [an] individual... responds to and works on a learning task’’); see also. Charles R. Beck, Matching Teaching Strategies to Learning Style Preferences, 37 Teacher Educator | (2001); Fransisco CanoGarcia & Elaine Hewitt Hughes, Learning and Thinking Styles: an Analysis of Their Interrelationship and Influence on Academic Achievement, 20 Educ. Psychol. 413 (Dec. 2000); Matthew J. Cook, An Exploratory Study of Learning Styles as a Predictor of College Academic Adjustment, http:// www.matthewicook.com/research/Is.html (1997); Robert Loo, The

Distribution of Learning Styles and Types for Hard and Soft Business Majors, 22 Educ. Psychol. 349 (2002); N. Van Zwanenberg, et. al. n. 53. 57.

Charles

S. Claxton

&

Patricia

H. Murrell,

Education

for Development:

Principles and Practices in Judicial Education (JERITT Monograph Three 58.

59.

1992). E.g. Danielle C. Istl, The Law School Experience: Staying Grounded and Enjoying the Journey, 80 U. Det. Mercy L. Rev. 485, 488 (2003): see also Robin H. Boyle & Rita Dunn, Teaching Law Students through Individual Learning Styles, 62 Alb. L. Rev. 213 (1988); Paul S. Ferber, Adult Learning Theory and Simulations--Designing Simulations to Educate Lawyers, 9 Clin. L. Rev. 417 (2002); Paula Lustbader, Seven Principles for Good Practice in Legal Education—Principle 7: Good Practice Respects Diverse Talents and Ways of Learning, 49 J. Leg. Educ. 448 (1999): Vernelia R. Randall, The Myers-Briggs Type Indicator,First-Year Law Students and Performance, 26 Cumb. L. Rev. 63, 76 (1995); Michael Hunter Schwartz, Teaching By Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 San Diego L. Rev. 347 (2001). M.H. Sam Jacobson n. 52 at 148-49. Claxton & Murrell explain that the MBTI was expressly designed “as an aid in applying Jungian theory in counseling, education, and business.” Charles S. Claxton & Patricia H. Murrell, Learning Styles: Implications for Improving Educational Practices 7

(Assn. for the Study of Higher Educ. 1987) at 13.

60.

M.H. Sam Jacobson n. 52.

61.

David A. Kolb, Experiential Learning: Experience As The Source of Learning (1984); Alice Y. Kolb & David A. Kolb, Learning Styles and Learning Spaces: Enhancing Experiential Learning In Higher Education, 4 Academy of Management Learning & Education 193, 194 (2005).

Chap. 4—Making the JE Discourse method effective

14]

versus intuition (N) indicates whether a person prefers perceiving the world through directly observing the surrounding tangible reality or through impressions and imagining possibilities. MBTI is “the most widely used psychological profiling system in business and govern-

ment’? and also has grabbed attention from the legal scholars.®3 Despite its popularity, researchers have questioned the utility of

MBTI in addressing concerns in educational setting®* because it was designed to measure personality attributes rather than cognitive style, and it reflects learning and processing techniques only indirectly. Secondly, although the MBTI reflects how personality influences learning, it does not directly measure how learner absorbs and process information, the key components of the learning process. Thirdly, because personality traits are relatively fixed, they probably do not reflect an area in which a trainer/educator could encourage significant growth and development.®° Accordingly, if one is seeking strategies to enhance capacity to learn, a focus on personality types would not likely

be fruitful. However, the personality attribute can throw possible suggestions for issues to be covered in the training discourse and also prepare the trainers to face the resistance put up by some trainees. For instance, when I conducted MBTI test on a batch of 48 newly selected magistrates from Maharashtra, it revealed that more than 50% of these young entrants had personality that resists change and dislikes surprises (ISTJ). Since it was blind test done through codification, when I asked if they agreed with their attributes, all of them except one agreed.°’ This learning about their personality had prepared me in advance for

62.

63. 64.

See Susan Sunny Cooper, n. 54 (explaining that the concept of “learning

style” includes “the way in which [an] individual... responds to and works on a learning task’’) at 7. Vernelia R. Randall, The Myers-Briggs Type Indicator,First-Year Law Students and Performance, 26 Cumb. L. Rev. 63, 76 (1995). M.H. Sam Jacobson, Using the Myers-Briggs Type Indicator to Assess Learning Style: Type or Stereotype?, 33 Willamette L. Rev. 261, 262-69 (1997) (questioning the efficacy of the MBTI for assessing learning styles in

law school, and recommending Questionnaire as an alternative). 65.

the Honey

& Mumford

Learning

Styles

Some have also questioned whether individual personality traits can be meaningfully accommodated in the typical one-semester law school class. See John H. Reese & Tania H. Reese, Teaching Methods and Casebooks, 38 Brandeis L.J. 169 (2000) (discussing a three-year learning style research

project at the University of Denver using the Kolb Learning Style Inventory (LSI)) at 176.

66.

Schroeder, Charles C. “New Students: New Learning Styles.” Change, (Sep.

— Oct., 1993, Vol. 25, No. 5: 21-26

67.

at 24.

Fourth Induction Batch of newly selected junior judges in December 2010. They underwent four month trainings at Maharashtra Judicial Academy from November 2010 to March 2011.

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the resistance to new delivery methods or the backlash I would face when I-attempt to break them away from their closely held values on the learning and the professional development.

Jacobson’s Primer on Learning Styles®® provides that information

processing, an area in which adult learners may be capable of positive change, is a two-phase procedure: (i) information absorption and (ii) information processing. In information absorption phase, information is absorbed through senses. Verbal learners, for example, are effective at absorbing information through written text. Visual learners, who are typically right-brained,

holistic

thinkers,

tend

to absorb

information

in its

entirety, rather than in parts, and in the form of pictures or impressions. Oral learners absorb material most effectively by talking it out; they are most likely to be successful when they have the opportunity to participate frequently and voluntarily in classroom discussions. Aural learners absorb information most effectively by listening and typically thrive when exposed to lectures, class or group discussions, or recordings. Tactile or kinesthetic learners benefit from physical touch or practical application and typically enjoy simulation courses or externship experiences. To.learn about comfort zone of trainee judges, I administered a simple test to get acquainted with their dominant preference. I asked them to write down what would be best way for them to retain a poem for a longer time out of five modes — read, sing, listen, watch, write your own. This exercised performed on batch of 48 judges from Maharashtra revealed that the class consisted of diverse types

of learners:

12 verbal,

11 visual,

2 oral,

12 aural

and

11

kinesthetic.®? Such learning helps in paying attention to the needs of diverse learners in terms of training methods employed.

In information processing phase, new information must not only be perceived and absorbed, but internalized and placed appropriately into context. Individuals vary with respect to their habitual mode of processing information. One model of information processing is based specifically upon hemispheric brain dominance, categorizing learners according to which hemisphere of the brain the individual typically relies upon in sorting and classifying information. Jacobson notes that the left brain primarily governs language and writing, and it processes

information

analytically and linearly.” The right brain primarily

68.

M.H. Sam Jacobson n. 52 at 150-59.

69.

Fourth Induction Batch of newly selected junior judges in December 2010. They underwent four month trainings at Maharashtra Judicial Academy from

70.

November 2010 to March 2011. M.H. Sam Jacobson, n. 52 at 157-58. Studies over a substantial period of time have reflected that a large majority of lawyers are dominantly left-brained. Chris Guthrie, The Lawyers' Philosophical Map and_ the Disputant's

Perceptual

Map:

Impediments

to Facilitative Mediation and Lawyering, 6

Harv. Negot. L. Rev. 145, 156 (2001) at 156.

Chap. 4—Making the JE Discourse method effective

143

controls spatial construction and processes information synthetically

and creatively.’! Although problem-solving and communicating in a

legal context may involve both logical and creative processes, legal analysis tvpically calls for a logical and sequential or left-brain

functions.72

Judicial educators stand to benefit from the personality assessment of learners. Depending upon trainee judges’ personality, learners can be grouped and an appropriate and effective intervention can be developed suitable to their learning style. (b) Cognitive ability based learning styles

Kolb’s experiential learning theory acquaints with four distinct

learner abilities’: (i) concrete experience abilities: involving fully,

openly and without bias in new experiences; (ii) reflexive observation abilities: The ability to reflect on and observe experiences from many perspectives; (iii) abstract conceptualization abilities: The ability to create concepts that integrate observations into logically sound theories; and (iv) active experimentation abilities: The ability to use

these theories to make decisions and solve problems.74 For Kolb and others, convergent learning style relies primarily on the dominant learning abilities of abstract conceptualization and active experimentation. The greatest strength of this approach lies in problem solving, decision-making, and the practical application of ideas; divergent learning style has the opposite learning strengths from convergence, emphasizing concrete experience and reflexive observation. The greatest strength of this orientation lies in imaginative ability and awareness of meaning and values. People with this learning style are supposed to be sensitive to people’s feelings and to values, listen with an open mind, gather information, and imagine implications of ambiguous situations. Assimilative learning style has dominant learning abilities of abstract conceptualization and reflexive observation. The greatest strength of this orientation lies in inductive reasoning and the ability to create theoretical models, in assimilating disparate observations into an integrated explanation. Kolb relates assimilation to thinking competences: organizing information, building conceptual models, testing theories and ideas, designing experiments, and analyzing quantitative data. Accommodative learning style has the opposite strengths from assimilation, emphasizing concrete experience and active experimentation. The greatest strength of this orientation lies in

71. 72.

M.H. Sam Jacobson n. 52 at 157-58. Id. at 160.

73.

David A. Kolb (1984) n. 61 at 30.

74.

Steven Hartwell, ‘Six Easy Pieces: Teaching Experientially’ 41 San Diego Law Review 2004 at 1011, 1013.

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doing things, in carrying out plans and tasks and getting involved in new experiences. This learning style can best be termed action skills: committing oneself to objectives, seeking and exploiting opportunities, influencing and leading others, being personally involved, and dealing with people. Through the JE discourse, every distinct abilities be it of concrete

experience, reflection, abstract conceptualization, or active experimentation needs to be strengthened so that judges can use all these abilities in their decision making process. Concrete experience — To enhance concrete experience, judges can be provided experience that calls upon them to make use of all their

senses. It may have to be a vicarious experience in view of the danger involved in some experiences or the experience's inappropriateness for a class. In addition to recalling the past experience, other strategies may include demonstrations, observations, case studies, interviews, selftests. site visits. or stories. Scripted role-play is also an effective

technique to foster active and spirited involvement.75

Reflection — In contemporary society, judges need to reflexively engage with the world around them. Reflection abilities allow individuals to navigate their way through the world.” Dewey defined reflexive thought as active, persistent and careful consideration of any belief in the light of the grounds that support it and further conclusions

to which it tends.’’ Archer defines reflexivity as the regular exercise of

the mental ability, shared by all normal people to consider themselves in relation to their social context and vice versa.78 Such ability will help judges to turn a subject over in the mind, giving it serious and consecutive thought. To enhance this ability in judges, the JE discourse needs to develop the courses that encourage in self application of thoughts to experience as a means of gaining knowledge.’?

Abstract conceptualisation — The ability of abstract conceptualisation helps people to abstract essential properties from an observed object, the form and explane for the existence of the original observed object. 8° Abstractions allow for the identification of more purely physical Sn

75.

16. 77. 78.

79. 80.

Martin Dyke, An enabling framework for reflexive learning: Experiential Learning and Reflexivity in Contemporary Modernity, 28(3) International Journal of Lifelong Learning 2009, 289-310 at 308. Idat 293; Dewe J.y, (1938) n. 14 at 113, 118. M.S. Archer 2007: Making our Way through the world: Human Reflexivity and Social Mobility: Cambridge: Cambridge Unive rsity Press at p. 4. Martin Dyke, n. 75 at 293. Stephen B. Hawkins, Desire and natural classificati on: Aristotle and Pierce on final clause. Transactions of the Charles §. Pierc e Society, vol. 43, issue 3, 2007, p. 521-5

41.

Chap. 4—Making the JE Discourse method effective

145

properties and their corelation with sensible properties.8! Judges need to possess such abilities for appreciation of evidence, human complexities, probabilities and for inferring things from the existing state of affairs. It represents developing hypotheses from the reflections on experience. Without such abilities, judges would fail in the principal objective of the trial, which is to find the truth. The JE discourse therefore needs to develop courses to strengthen abilities to make relations between claims and evidence presented, between norms and

the applicability of norms to factual situation and so on. Active experimentation — The last but not the least, the JE discourse must undertake courses wherein active experimentation abilities are inculcated so that judges are able to actively practice ideas and concepts to know true nature of working of the theory. People with this ability can proceed in the face of uncertain theoritical modes.°®2 2.

Classroom methods developed to enhance learning

(a) The use of Kolb’s theory to enhance learning abilities in judges

Taking help from Kolb’s theory, the JE discourse can be designed so that judges not only acquire knowledge but also skills to take the acquisition of this knowledge into their own hands. This will help them to successfully cope up with current and future demands placed on the institution of the judiciary and deal with the task independently. To begin with judges can be administered a Learning Style Inventory questionnaire asking them to rank four words that best describe their own learning style. One word in each item corresponds to one of the four learning modes in Kolb’s learning cycle — concrete experience (sample word, feeling), reflective observation (watching), abstract conceptualization (thinking), and active experimentation (doing). Depending on their learning style, their needs for professionalization can be satisfied by making use of strategies offered by Claxton and Murrell’? to ensure that learners of all styles are addressed in the classroom. For concrete experience — judges can be asked to recall a past experience regarding the topic. This brings their experience in alignment with the topic to be discussed. The facts of a dispute, or graphic demonstration of them by charts, photographs or other visual means, often supply a surrogate “concrete experience” for the appellate

81.

Patrick J. McDonald, Demonstration by Simulation: The philosophical significance of experiment in Helmholtz’s theory of perception, Perspectives on Science, vol. 11, issue 2, 2003, p. 170-207.

82. 83.

Ibid. Charles S. Claxton & Patricia H. Murrell, Education for Development: Principles and Practices in Judicial Education (JERITT Monograph Three 1992).

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Discourse on Judicial Education

judge, enabling him/her to engage with the case in an active way. If carefully chosen, films followed by the discussion can be an excellent

tool for engaging judges concretely. The discussion must find out how judges connect, emotionally or affectively, with the film or do they identify with the feelings that are portrayed in the movie or presentation. For example, if a film on the topic of child abuse is used as a concrete experience, the content of discussion should relate a personal story or first-hand experience with that topic.

In the JE discourse on administration of juvenile justice at the NJA, Bhopal when judges were sent to an observation home where juveniles were confined to do a field study on children institutionalized,

it was found that on their return, they were more in favour of passing a

community service order in a juvenile trial to avoid institutionalization of children. This exercise revealed how judges through concrete experience can be made to appreciate the social problems. At Maharashtra Judicial Academy when first instance judges were taken to a play on the caste system and the burdens placed by that cast system on the lives of section of population, it was found that Judges accepted the fact of discrimination rather than the usual rejection of fact of discrimination. The proposal of the Massachusetts Commission on the Future of the Courts to assign one week per year of each judge's time to

public education** also falls into the category of providing concrete experience.

For reflective observation — Usher et. al. provides that to promote reflexivity, adult education should: nurture engagement between teachers, learners and knowledge in non-dependent ways; be open to the unexpected, the tangential and countervailing; cultivate high levels of tolerance for difficulty, uncertainty and error as acceptance of

knowledge as contingent.8° What is necessary is an approach that

acknowledges that knowledge is created and recreated in social context with others so that they reflect upon the received wisdom of others, test it in practice and be open to creation of knowledge that works in a given time and place, without compromising the lives and futures of others.8° In addition to raising awareness of the situadness of their own experience, any form of reflexive education should enable individuals to apply their learning in different situations and context.87 A reflexive model for learning and education would be less linear and provide more flexible and social learning pathways. Such pathways a

84.

85. 86. 87.

Massachusetts Chief Justice's Comm'n on The Future of The Courts. Reinventing Justice: Report of The Chief Justic e's Commission on The Future of The Courts

26 (1992), See Usher et. al. (1997:25). Martin Dyke, n. 75 at 295, Id. at 300.

Chap. 4—Making the JE Discourse method effective

147

would permit the learner to move back and forth between the key leit of reflexive learning and encourage engagement with the other. Judges can be asked to step back and look at experience, get the perspectives of others, and make connections to other experiences. At its best, it requires us to take one position and then to take another position. Structured small group discussions can facilitate reflective observations with others. If carefully designed and assigned, such discussions enable learners to present their thinking about an issue and to see how their perspective compares to the perspectives of others in the group. Another method could be encouraging judges to formulate questions for higher authorities that demand reflection on their part. Yet another method could be asking judges to make connections to other things that they have learnt, how one case relates to another, or how one law relates to another, so as to allow them to make connections.

To enhance reflexive abilities, | conducted many surprise exercises on judges to help them understand how much it is possible to retain graphic details of the crime scene that litigant or party had witnessed after period of four or five years. These exercises helped them to understand why witnesses turn hostile, how much evidentiary value can be attached to the test identification parade, why people avoid coming to the courts to stand in a witness box and so on. Only when judges surprisingly found themselves giving evidence as a witness, did they realized the intricacies and complexities of human mind to recollect the shocking events. Such exercises help to break judges away from the mechanical approach to procedural norms. For abstract conceptualization judges can be encouraged to create their own principles or hypotheses from their reflection on expe-

rience.®? Encouraging judges to develop their personal time management plans to curb delays associated in the system or asking them to develop take home message on the learning from the training discourse can be good strategies. These plans/plan of actions/ take home message can be made available in the form of bench books, journal articles, or

other readings, and presented to other judges for improving upon. The final material can act as set of practice directions. For active experimentation judges could be provided opportunities to try out principles, hypotheses, or theories in problem solving. “How will you handle this situation when it occurs in your court?” is an excellent question for launching active experimentation. Role play provides chance to practice a skill learnt through a course and therefore judges can be asked to take part in role play exercise on the subject

88. 89.

Id. at 299. Patricia H. Murrell (2006) n. 5.

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covered. Often, video or audiotape can be used to provide feedback to

judges or faculty can provide critique.”°

During my judicial trainings on the nature of electronic evidence, after providing judges knowledge about normative framework governing the topic and information about precedents that cover this topic, I used the strategy of twisting the same facts and called upon trainee judges to pass an interlocutory order. This prepared them to apply things learned and their own understanding to solve a problem. Kolb’s theoretical framework allowed me to design the content and delivery of judicial training program in a four-step process in which as a first step judges were provided an immediate concrete experience, involving them fully and interacting directly with people and things. In the second step judges were asked to reflect on the experience from their own different perspectives. From these reflective observations, in a third step, they were engaged in abstract conceptualization, to develop generalizations to help them integrate their observations into sound theories, principles, or hypotheses. Finally, in the fourth step judges were called to use their generalizations as guides to further action in active experimentation, where they had to apply what they have learned in new and more complex situations. (b) Using life cycle theory to enhance personality development

Life Cycle Theory encourages thinking of other people in our lives and work. Here themes of identity, intimacy and generatively are

focused upon. The work of Sheehy?! and Erikson? is relevant. Nurtur-

ing new judges as they struggle with their identity, looking at emerging ideas and challenges with courage, and creatively leading the judiciary into a new role in a post-modern society are activities that educators must embrace with enthusiasm. Providing a climate in which generativity can find expression and support is essential if the judicial branch is to play a major role in shaping its future. The recurring cyclical nature of identity, intimacy, and generativity provoke continuing growth and development and make learning throughout adulthood very powerful, placing the enterprise of continuing JE in an enviable position. Because development is never “finished,” judicial educators have the opportunity to contribute repeatedly to the attempted resolution of the issues that judges confront as they face major transitions and move through the life cycle. The individual energy involved in working through these developmental imperatives is enormous, and educators aie 90. 91.

92.

ea

ee

te

Oo

aie

Ibid. See Gail Sheehy, New Passages: Mapping Your Life Across Time (Random House 1995); Gail Sheehy, Passages: Predicable Crises of Adult Life (Bantam Books 1976). Erik Erikson, Childhood And Society (2d Ed., W. W. Norton & Co. 1963).

Chap. 4—Making the JE Discourse method effective

149

who can channel that energy into learning stand to make substantial gains. The JE discourse by addressing themes of identity, intimacy and generativity can contribute to individual and systemic growth and development.

For addressing the theme of identity, educational program may be designed for new judges to contribute to the participants' identities and new self-images. Courses such as judicial philosophy can assist in identity formation for judges. Judicial educators should be especially sensitive and responsive to gender issues around identity because women and men may experience identity formation at different times, depending on age and socialization. Judges who have a firm sense of self will be able to take an expanded view of their role as gatekeepers.

Intimacy refers to the capacity to commit oneself to a relationship or partnership and to develop the ethical strength to abide by such

commitment.?? Personal and family relationships present an obvious forum in which this plays out. Individuals who have the capacity for intimacy value mutuality in relationships, more effective collaboration, freedom from abuses of power, and trust that survives conflict and sustains bonds. In the work setting, interpersonal competence and collegial intimacy are certainly required of judges who wish to be successful in their professional lives. The ability to work cooperatively with others is a recurring issue for judges and often shows up as a deficiency on performance evaluations. Interpersonal competence can be taught through courses addressing interviewing and counseling, diversity, human relations, collegiality, and sexual harassment. Any cross-professional training also contributes to a capacity to work effectively with other disciplines and to an ability to see oneself as part of a larger picture. While judging has historically been a very isolated endeavor, there seem to be increasing opportunities to work more collaboratively, especially in dedicated courts such as drug or community courts. The ability to compete effectively, to seek and offer help, to influence others, and to perform well in one's social roles are all characteristics that make for a more smoothly working organization. The ability to master these tasks while respecting the identity of others and without imposing one's self on co-workers is essential if work settings are to be free of abuses of power. Finally, generativity, is the readiness to care for that which has been created, whether it be people, ideas, or institutions. It grows out of a need to be needed and results in caring for the welfare of others and in actively investing in society by passing down traditions, values, and culture. Mentoring and teaching provide avenues for the expression of generativity and capitalize on the fact that a generative man needs to

93.

See

James

W.

Fowler,

Stages

of

Faith:

The

Psychology

of

Human

Development And The Quest For Meaning 106-10 (Harper & Row 1981).

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Discourse on Judicial Education

teach and has an innate psychological drive to care for that which has been created*4. The JE discourse itself seems to be a generative activity. By providing professional development activities in “how to teach,” the court system encourages and nurtures generative behavior.

Senge, in his work on the art and practice of the learning organization, writes about the need for lifelong generative learning to enhance the capacity to create.?> Such learning is particularly important for judges who are called upon to address the issues that are increasingly complex and affecting the lives of millions of people. Vaillant's book, Aging Well: Surprising Guideposts to a Happier

Life®® provides example of Justice Oliver Wendell Holmes, whose life illustrates successful mastery of identity, intimacy, and generativity. When asked for his prescription for successful aging, Holmes replied, “Share Socrates' love of the search, while knowing no answer will be found. Exercise the little gray cells (HerculePoirot), work and love (Freud). Show respect for and try to care for the planet .... Don't dwell on the past except when blue and then only remind oneself that those problems that seemed insurmountable often

werent Try not to werry about the future. It's not over,

over.

‘til it's

The JE discourse development has to be carried out in the background of its implications to the justice system, its influence on the judicial practice. One must question how can courses or activities be designed to respond to various personal developmental phases? How can a course or activity contribute to the successful “navigation” of the tasks of the life cycle? How can an understanding of identity, intimacy, and generativity help a judge to not only guard the entry to the profession but also support those who have been admitted? By providing judges stories from the lives of others, and learning from the accumulated wisdom about life stories that have been collected by scholars, a greater understanding of an individual's psychological journey in the context of his environment is promoted.°8 Such understanding will assist judges in improving the quality of justice in our courts.

a

94.

95. 96.

97. 98.

Don S. Browning, Generative Man: Psychoanalytic Perspec tives, 21-24, 145-

228 (Westminster Press 1973).

Peter Senge, Organization See generally Happier Life (Little, Brown

The Fifth Discipline: The Art And Practice of The Learni ng 142 (Currency 1990). George E. Vaillant, Aging Well: Surprising Guideposts To A From The Landmark Harvard Study of Adult Developmen t & Co. 2002).

Id. at 94. See Gail Sheehy, Understanding Men's Passages: Discov ering The New Map of Men's Lives (Ballantine 1998).

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151

(c) Classroom methods used in other disciplines

Apart from above theoretical framework, the JE discourse can greatly benefit from the classroom methods cited below which are developed by management, medicine, economics, sociology, agriculture disciplines to improve learning abilities, learning process, learning performance, and learning styles. i.

Seductive details

Harp and Mayer introduced a model of seductive detail through which learning can be enhanced by spicing up a mundane lecture by inclusion of highly interesting and entertaining information that is only tangentially related to the topic.°” Towler showed its positive impact on

problem solving.!° It facilitates richer understanding of information presented by giving general overview. This method of learning is particularly helpful to those who have less ability to recall information, but more ability to conceptualise a problem and search for its solution. In my training classes with first instance judges from India, I have made use of this technique in every sesssion. Film characters, popular comic characters, popular perceptions, local stories and instances during the previous training classes can be used to put a point forward. For instance, to inculcate reading habits in judges, an example of Harmonie — a character from Harry Potter series can be given to stress on the importance of reading books to get solutions to problems around us.

ii.

What happens next? Asking learner to predict

The opportunity provides the challenge of constructing sense out of what has happened so far. Asking learners to predict can be a powerful strategy that invokes synthesis and analytical processing of relevant information or data provided so as to consider what could happen next. For the JE discourse, it can be used to develop problem solving skills in judges. iii.

Provocation

Focusing on misconceptions, anomalies in patterns of data, deliberately misunderstanding an idea or concept, deliberately asking the question wrong way and deliberately presenting wrong evidence —

99.

S.F. Harp, R.F. Mayer. “How seductive details do their damage: A theory of cognitive interest in science learning.” Journal of Educational Psychology, 1998,

vol. 90: 414-434;

S.F.

Harp,

R.F.

Mayer.

“The

role of interest

in

learning from scientific text and illustrations: On the distinction between interest.” Journal of Educational interest and cognitive emotional Psychology, 100.

1997, vol. 89: 92-102.

Towler, n. 49.

Discourse on Judicial Education

$52

are powerful strategies to provoke participants to engage them in their learning. Gender sensitization experts are found relying more on this method. iv.

Mindfulness

Mindfulness has been defined as: “a heightened sense of situational awareness and a conscious control over one’s thoughts and

behavior

relative

to the situation”.!°!

There

have

been

several

educational theorists who support the strategy of increasing trainees’ mindfulness to make them pay more attention during the course of training and make a cognitive effort to evaluate information and

integrate it with existing knowledge structures.!°* This learning model

is more appropriate for increasing the reflective abilities. Both Frank and Holmes took the view that behind the myth of judicial objectivity lies the reality of decisional process which cannot escape the judge’s biases, stereo types, pre conceptions and likes and

dislikes.!93 References to logic and rules of law in the opinion are merely designed to create an ‘appearance’ of objectivity. It is in this light that the JE discourse‘has to engage judges in exploring landscape of their own

mind, habits, and values. It has been established that

values cannot be eliminated and they are too deeply entrenched in personality. Therefore only way to neutralize their effect in decision making process is to create ‘judicial mindfulness’. ‘Judicial mindfulness’ not only makes judges aware of the values they hold dearly but also provides them technique of arriving at alternative solutions. Common techniques used for creating judicial mindfulness are: Role Reversal — In ‘role reversal’ judge is asked to enact the role of litigant, victim, witness, etc. This allows them to have empathy with other’s perspective.

Another Path — In ‘another path’ a judge is told to revisit a prior case decided by him and recall the factors that led him to that decision. After

101.

102.

103.

Marzano, R. J. What works in schools: Translating research into action. Alexandria, VA: Association for Supervision and Curriculum Development, 2003 at 65. Baldwin, T.T., & Ford, J.K. “Transfer of training: A review and direction for

future research.” Personnel Psychology, 1988: 63-105; Brown, K.G.. and Ford, J.K. “Using computer technology in training: Building an infrastructure for learning.” In Creating, implementing and managing effective training and development, by K. Kraiger, 192-233. San Francisco: Jossey-Bass, 2002: Towlern 49 at 66. Oliver Wendell Holmes, The Common Law. Ed. Mark Dew Howe (Boston 1963, first published in 1881); Oliver Wendell Holmes, The Path of Law. 10 Harvard Law Review 457 (1897); Jerome Frank. Courts on Trial, New

York

1963, first published in 1949; Jerome Frank, Law and Modern Mind. Garden City, New York, first published in 1930.

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153

that he is asked to arrive at any other solution for the same case. This helps in gaining awareness of factors that influence their decision making process. v.

Metacognition

Metacognition is defined as ‘thinking about thinking’.!°* Weinstein and Palmer assert that learning is more effective when we engage in thinking about the process of learning, thinking, and problem-

solving.!°5 Metacognition also involves knowing how to reflect and analyze thought, how to draw conclusions from that analysis, and how to put what has been learned into practice. In order to effectively solve problems,

one

needs

to understand

how

mind

functions,

how

it

performs important cognitive tasks such as remembering, learning and problem solving.!°° The most popular methods currently in widespread use is through the use of questionnaires which require learner to report their perceptions about their thinking and problem-solving skills and strategies. For the JE discourse, metacognition can encourage thinking about specific techniques employed in judging process and help in knowing how others influence decision making within a group and in realizing how decisions are reached by others in the same system. For educating judges on concepts such as logic, ethics, inference, interpretation, I have relied on this method and it yielded great results. vi.

Embracing openness

A tradition which examines organizational learning in a radical framework, asking questions about social, political and economic context of work, attempting to challenge the power relations provides the collaborative space to reflect, carefully construct successive questions, facilitate peer posing questions, enriches cognitive processing

and learning outcomes.!°’ This method has potential to transform social 104.

105.

Bogdan, R.J. (2000). Minding minds: Evolving a reflexive mind by interpreting others. Cambridge, MA: The MIT Press; Flavell, J. H. (1999). Cognitive development: Children’s knowledge about the mind. Annual Review of Psychology, 50, 21-45; Metcalfe, J. (2000). Metamemory: Theory and data. In E. Tulving & F. I. Craik (Eds.), The Oxford handbook of memory (pp. 197— 211). New York: Oxford University Press. Weinstein, C. E., & Palmer, D. (1988). Learning and studies skills inventory. NCS Trans-Optic EP, 30-27841, 321.

106.

107.

Kevin Downing, Theresa Kwong, Sui-Wah Chan, Tsz-Fung Lam and Woolearning and the development of Kyung Downing. “Problem-based metacognition .” Higher Education, 2009, vol. 57: 609-621 at 610. See M.U. Hart, Working and Educating for Life: Feminist and International Perspectives onAdult Education. London: Routledge, 1992; M. Welton, Towards Developmental Work The Workplace as a Learning Environment. Geelong: Deakin University Press, 1991; G.Foley, “Adult education and capitalist organisation” 26(2) Studies in the Education of Adults, 1994, 121-143.

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relations in the workplace to make explicit the gendered and cultural

assumptions and discrimination.!°% For the JE discourse, this model can

be used to deconstruct closely held values with respect to gender, sexuality, caste, race, religion, ethnicity and status.

vil. Research-writing programs

Legal research and writing (LRW) programs have been found offering numerous benefits such as seamless learning experience,

opportunities for collaboration, opportunity for reflection.!” These can be introduced for the JE discourse by combining field work with LRW to hone and advance legal research and writing skills in a real-life context. The JE discourse will benefit from such collaboration as judges will be introduced to reality and therefore they will come up with solution from different angle. The UNDP sponsored Access to Justice Project initiated through the National Judicial Academy, Bhopal, India was one such initiative which allowed judges to study how the court procedures were responsible for limiting the access of the courts to the poor litigants. The Project made the judiciary aware of how unfriendly their courts are and many of them came out with useful suggestions to remove thes@-unfriendly procedural hurdles.

viii. Critical pedagogy

The critical pedagogy celebrates the value of difference, and the process of helping the difference to be articulated safely through a dialogue. Thus classroom discussions become a place where differences—both in the intellectual and identity sense—can be articulated and analyzed. For the JE discourse it has potential to stimulate judges to think about the judicial process, method and assumptions. It has its intellectual roots in the Critical Theory of the Frankfurt School (especially the work of Jurgen Habermas), Antonio Gramsci’s Theory of Hegemony, and the Educational Theory of Paulo Freire.!!° In this, learners are encouraged to “read the world” around them, understand their own oppression in historical and present context, become aware of 108.

109.

110.

Anita

Devos,

“Gender,

work

and workplace

Continuing Education, 1996, 110-121 at 111.

learning”

18(2) Studies

in

Angela J. Campbell, Teaching Advanced Legal Writing in a Law School Clinic, 24 Seton Hall L. Rev. 653, 663 (1993) (concluding that law schools can improve students' writing by offering clinical Opportunities that teach advanced legal writing). See Boyce, M.E. (1996). Teaching Critically as an Act of Praxis and Resistance; Bruss, N. & Macedo, D.P. (1985). Toward a Pedagogy of the Question: Conversations

with Paulo Freire. Journal

of Education. 167(2),

7-21; Freire, P. (1970). Pedagogy of the Oppressed. New York: The Seabury

Press; Freire, P. (1973). Education for Critical Consciousness. New York: The Seabury Press; Freire, P. (1983). The Importance of the Act of Reading.

Journal of Education.

165(1), 5-11.

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155

the nature of social inequalities and in turn, to act to change them. It involves dialogues within communities of learners and teachers, rather than through the transmission of knowledge from teacher to learners. From my training experience, I have found that majority of judges are extra sensitive when engaged in critical pedagogy. The fear of hierarchy in the Indian context operates as a major hurdle in the development of critical faculty through such pedagogy. Even though judges from minority and vulnerable ethnicity in India face discrimination, in the classroom settings as provided in the JE discourse they are careful to not voice out such discrimination for fear of being typecast as selfmade victims by the dominating majority in the class. ix.

Simulation

Learners are thrown into a simulated concrete experience that allows them to progress through the cycle, ideally developing skills and knowledge to be applied in future simulated or actual concrete

experiences.'!! Simulations and supervised practice in actual practice settings help learners to relate theory and practice as they seek to solve

ill-defined problems.!!2 Researchers have shown it to be a reliable tool for assessing learners and for teaching topics such as teamwork and communication.!!3 There is general agreement that simulation-based courses can be an important site for developing skills and understandings essential for practice, including self-directed learning skills. Simulation-based courses can also help students improve their practical reasoning and judgment. The discipline of medicine uses various simulation devices, even professional actors, as ‘simulated patients’, in order to train clinical skills. In such simulations, performance is rehearsed, criticized, and improved ‘off-line’. The law schools all over the world fail to produce sufficiently proficient graduates because very few of the law schools have developed simulation courses to inculcate

lawyering skills needed for the legal profession.!!4 If medicos treat diseases of body and mind, judges treat conflicts of body and mind. With this analogy between these two knowledge

111.

112.

Yasuharu Okuda, Ethan O. Bryson, Samuel DeMaria, Lisa Jacobson, Joshua Quinones, Bing Shen, Adam I. Levine. “The utility of simulation in medical education: what is the evidence?” Mount Sinai Journal of Medicine, 2009,

vol. 76: 330-343 at 334. Palmer, P.J. The Courage to Teach. San Francisco: Jossey-Bass, 1998; R.P. Wislock, D. Flannery. “Appropriate and Inappropriate uses of learner's experiences: An Example” Journal of continuing higher education, 1994, vol. 42, no. 2: 12-15.

113.

114.

E. Ottestad, JR Boulet, GK Lighthall. “Evaluating the management of septic shock using patient simulation.” Critical Care Medicine, 2007, vol. 35: 769dikes Roy Stuckey Et Al., Best Practices For Legal Education: A Vision And A Road Map (2007).

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based professions, we can examine the utility of simulation for the JE discourse. Simulation can provide judges option to exercise judgment, to increase sensitivity index to various dimensions that operate in a case creating ethical problems, an opportunity to seniors to correct lapses and slips that were common. It involves active learning, rather than standing back from actions and discussing about them. It enhances reflective thinking as judges would be required to think across various steps/stages/processes in the courts. Their collaboration in simulation provides them an opportunity to engage with each other in both cumulative and exploratory talk. In fact, judicial educators like Prof. Steve Simon, Clinical Professor at University of Minnesota Law School in the US who conducts judicial trial skills training programs for new trial court judges in Minnesota use simulation to teach Evidence course for new judges; so also justice Manju Goel who trains judicial officers on ADR related issues at Delhi Judicial Academy. I have also tested this method on trial court judges to help them realize the complexities involved in recording of the evidence. During the simulation conducted for recording of

evidence in a trial related to victim of sexual harassment on public road, it came to notice how trial judges are either indifferent or impatient or over active. In the simulation conducted around chain snatching trial, the simulated cross examination revealed how the judges allow victims and witnesses to be harassed for their physical appearance during the cross examination in the trial. x.

Mental practice

The social cognitive theory developed by Bandura defines the

mental practice as symbolic guided rehearsal of a task.!!>5 It can benefit the performance by (i) creating appropriate cognitive set for an activity, (ii) diverting attention from stressful thoughts to helpful ones and (iii) increasing self-efficacy. Richardson outlines the ways mental practice can be taught with a guided script that specifies: (a) the skills one wants to acquire; (b) step by step procedures for doing so; (c) instructions for people to visualize themselves implementing the script and (d) ways to

visualize oneself performing the task.'!® A meta-analysis of 35 studies

by Driskell et al found that the more a task requires mental operations (e.g., generating hypothesis, comparing, organizing, categorizing information), the greater the benefit of mental practice on subsequent

115. 116.

A. Bandura, Social foundations of thought and action, Engelwood Cliffs, NJ:

Prentice Hall (1986). Richardson, A. Individual differences in imaging: Their measurement, origins, and consequences. Amityville, NY: Baywood Publishing Company,

1994,

;

Chap. 4—Making the JE Discourse method effective

157

performance.!!” I made the use of this technique for providing trainings on tortious are divided out already to present forth even cases.

xi.

liability course at the induction level. For the same, judges into 5 to 6 groups of 9 participants and they were handed decided cases from different jurisdictions. They were asked mock trial debating same situations. Such exercise brings issues that were not discussed or thought of in the original

Seligman’s techniques for doing away with the pessimism

The habitual blaming of self, undermines self-efficacy.!!8 Optimists attribute their failures to causes that are temporary rather than stable, specific to the attainment of a particular goal rather than all their goals, and see the problem as a result of the environment or setting they are in, rather than being inherent in them. They consequently have high self-efficacy. Setbacks, obstacles and a non-contingent environment are

the challenges that provide excitement in their life.!!9 Thus optimists are resilient in the face of failure. Seligman found that optimism can be learned in two or three steps. The first step requires the trainer to help trainees in identifying beliefs that clients may be unaware of as selfdefeating. The second step involves gathering information to evaluate and dispute the accuracy and implication of these self-defeating beliefs that are triggered by environmental events. The third step involves replacing maladaptive beliefs with constructive accurate ones based on

the data collected in the second step.!2° Seligman’s training techniques may provide a framework for mentors, coaches, trainers to predict, understand and influence a person, team which has given up trying to attain their goals because of repeated failures.!?! Judicial educators must make use of this method to do away with pessimistic attitudes developed in judges over their career prospect, working conditions, infrastructure’ constraints by providing them positive instances of success, infrastructure improvement and new techniques introduced to improve working conditions. From my training experience with first instance judges in India and Mauritius, I have found one noticeable

117.

118. 119.

120. 121.

Driskell,

J.E., Copper,

C., & Moran,

A. “Does

mental

practice enhance

performance?” Journal of Applied Psychology, 1994, vol. 79: 481-492. A. Bandura, Self Efficacy: The Exercise of Control, New York: Freeman 1997. MLE. P. Seligman (1998) The Prediction and Prevention of depression in D.K. Rooth and R.J. DeRubeis (Eds.) The Science of Clinical Psychology: Accomplishments and Future Directions, pp. 201-214, Washington D.C: American Psychological Association. M.E.P. Seligman (1998) Learned Optimism, New York: A.A. Knopf. Heslin Latham “Training the Trainee as Well as the Trainer: Lessons to be Learned From Clinical Psychology.” Canadian Psychology, 2003: 218-9 at 223 available at http://ssrn.com/abstract=1275117.

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difference. First instance judges in India are highly frustrated as far as their career prospects are concerned. For a general question like where do you see yourself twenty years from now, a harsh reply comes from most of them that only if they are able to survive by keeping higher judicial officers above them happy, will they get due promotions or else will be shown the door any time they fail to do the ego massage. To break them away from pessimism, I have relied on the Bloom’s

taxonomy!22 to make young entrants realize that it is intellect alone that would help them overcome handedness by their superiors. xii.

their

fear

of stagnation

and

high

The Milestone Exercise

The Milestone exercise asks learner to recall some of the major turning points or milestones in their life. Each milestone represents an event that moved them into a new status. This exercise gives them an opportunity to look back at the things done, what tasks they had to perform or what competencies they had to develop in order to move from one segment to the next. This might be an instrumental task, such as learning a particular skill or earning a credential, or it might be a developmental task, such as becoming sufficiently independent to make a decision. This helps learner to see the central role that learning plays in growth and development. This exercise is more meaningful if learners are told to recall both personal and professional milestones as personal and professional are intertwined and one often influences the other. Relationships as well as events often shape our growth. Associating book titles, song titles, or movie titles with time periods often helps them to think about segments of their lives that have a common thread or some coherence. xiii. ADDIE Model — ISD (Instructional Systems Design)

ADDIE (Analysis, Design, Development, Implementation and Evaluation) is a step by step process used for the development of training programs. It provides rigorous organized approach from beginning to end for the training programs. This design saves time while producing a high quality product as compared to projects where Structure is missing. It is rooted in cognitive and behavioural psycho-

logy movements. Theorists like Skinner!23 and Bloom!24 are behind

this design. As per this design, the first step Analysis involves the need

122.

Bloom, B.S. n. 47.

1Zd..

di Peepoda, E.K. Moors, Modern Perspectives on B.F. Skinner and Contemporary Behaviorism. Series: Contributions in Psychology. No. 28, Westport: Greenwood Press 1995. Taxonomy of Educational Objectives: Handbook I: the Cognition Domain, David Mckey Co: New York (1956).

124.

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159

based assessment by asking who needs this discourse, on what matters, why, how, by whom. The second step Design relies on information gathered during the first step. The third step Development requires use of the results from analysis and design steps to develop course materials, review of the existing materials, integration of instructional strategies to choose specific delivery system and method, creation of a prototype, developing instructional materials, review and revision of instructional materials, development of software tool if needed, development of hardware and technical infrastructure, finalisation of changes and quality reviews, review of existing resources to keep away from reinventing the wheel and to make process as cost effective as possible, taking a break from the past to create more effective mate-

rials.'25 The fourth step Jmplementation,

consists of pilot training

session to evaluate effectiveness of earlier three steps where a session is run for a representative sample of learners to get insight into what can be and what cannot be gained from the training. This ensures that the material meets program objective and addresses the needs of the audience. In the pilot setting, all aspects of training can be tested. This step is a quality assurance step which is mostly avoided by trainers and academia due to disinterest, time and budget constraints, over confidence and lack of knowledge. After learning from the shortcomings from this step in program design and development, suitable changes and adjustments have to be made and relevant management plan to address details related to administration and logistics like course schedule, classroom space and facilities, registration, travel, reporting, records efc. is to be prepared. The fifth step of Evaluation involves the use of results from previous four steps to understand if the training was able to meet learning needs of trainers. Judicial trainers in advanced jurisdictions are found relying on ADDIE model to develop the JE discourse. xiv. LMS/CMS_ system)

(Learning

management

system/course

management

LMS is a high level strategic solution for planning, delivering and managing all training events within an organization. CMS typically focuses more on content as compared to LMS. These two systems collectively give authors, instructional designers, subject-matter experts the means to create an e-learning content more efficiently by eliminating duplication and facilitate rapid assembly of customizable content. [It helps in lowering the cost of training for an organization while

125.

Lisa Burke, Judy Fiene, Mary Jo Young, Debra K. Meyer, “Understanding the Why

behind

Forum (2008)

the How

168-176.

in Reading

Instruction”,

72(2) the Educational

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160

maintaining a quality program.'*° LMS/CMS can make effective use of web 2.0 technologies like blogs, prodcasts, networking sites, to facili-

tate exchange of communication and making training more interactive. xv.

Rational emotive theory

This calls for replacing irrational beliefs (which are unfounded and dogmatic) with rational beliefs (which are moderate, flexible and adaptable to life events). It emphasizes acceptance of self and others as

fallible and the world as not always fair and just.!2” Training techniques for achieving this objective could include cognitive, emotive,

imaginal and behavioural! methods. !8 Cognitive method might involve teaching trainees the principle of reframing statements. For example, when difficulties are encountered during training, an absolute. self-demanding statement such as “I cannot stand always being so stupid” can be reframed as: “It is normal to make mistakes when I am first learning to perform a task.” Reframing selfdeprecating statements in self-validating ways can have a positive

effect on motivation, and can protect a person’s self-efficacy. !29 Emotive method includes self-disclosure. For example, asking trainee to share with trainers and others about the worst thing that they have done regarding the subject-matter. Self-disclosure can help to contradict a trainee’s irrational beliefs about what others will think of trainee during the training program. It can lead to universality of

experience. !30

Imaginal methods require trainee to vividly imagine a dreaded event occurring, allowing oneself to actually feel anxious, and then identifying the irrational beliefs that created these disturbed feelings. The next step is to identify rational alternative beliefs, before vividly picturing these rational beliefs being manifested. This enables to come

126.

See Claire E. Weinstein and Debra K. Meyer, “Cognitive learning strategies and college teaching”, vol. 1991, issue 45, 1991, 15-26: Debra K. Meyer and Julianne C. Turner, “Discovering emotion in classroom motivation research”, 37(2) Educational Psychologist (2002) 107-114; Lisa Burke, Judy Fiene, Mary Jo Young, Debra K. Meyer, “Understanding the Why behind the How

127.

A Ellis, How to make yourself happy and remarkably less disturbable, San

128. 129,

Id. at 221. ae

130.

A. Ellis and R.A, Harper (1997) A Guide to Rational Living, North Hollywood, CA: Melvin Powers; A. Ellis and W. Dryden (1997) The practice of rational emotive behaviour therapy, New York: Springer; A. Ellis, J. Gordon, M. Neenan, S. Palmer (1997) Stress Counselling: A rational emotive approach. London: Cassell.

in Reading Instruction”, 72(2) the Educational Forum (2008)

168-176.

Louis Obispo, CA: Impact Publishers 1999 at 198.

Self Efficacy: The Exercise of Control, New

York: Freeman

Chap. 4—Making the JE Discourse method effective

16]

to the realization that they can find ways to adapt and cope with the

challenges they encounter.'! In judicial training programmes meant to eliminate biases and prejudices this method has been found effective. Behavioural methods include role playing and_ progressive relaxation techniques. Behavioral methods have been found effective to bring general and overall improvement. For example, during the training of first instance judges from Maharashtra, I provided them a general situation of molestation complaint being filed by victim. I told them to take whatever roles they prefer in this role play that included judge, public prosecutor, defence counsel, court staff, recorders, accused, complainant victim, investigating officer, spot witnesses, medical officer and witnesses in support of both parties. In this role play, conducted over period of three days during my training class with them, I made trainee judges to take new role each day in the whole process. This resulted in trial being conducted by at least three different judges. Such different participation in the same role play brought to the forth how much each judge contributes personally through their own behavior to the trial process and depending upon this distinction, the trial took another shape altogether. It also brought to the forth how during the recording of evidence in trial meanings are lost by judges in

translating human language into legal language. !3 xvi. To engage learners in their own learning

Meier’s book The Accelerated Learning Handbook'*? provides number of useful presentation techniques to transform the session from a “listening experience” into a “learning experience” and some of them will be useful for the JE discourse as well. A number of multinational corporations engage Meier’s institution —-the Centre for Accelerated Learning to provide skill trainings to their workforce. JE institutions need to partner with this institution to imbibe the techniques used to enhance retention and reduce the training duration. Some important techniques from this Handbook which I have used during my training sessions are listed below:

Graphic Organizers—Before the session, create a simple note-taking page for each participant. As and when information is presented in the sessions, participants are asked to write important facts in specifically designated sections on the page. This “graphic organizer” serves three purposes: first, it gives learners something to do with the information besides just listening to it. Second, it helps them remember the

131. 132.

Ibid. During second induction held from July 13- September Uttan.

133.

Dave 2000.

Meier, The Accelerated

Learning Handbook,

15, 2012 at MJA,

the McGraw-Hill,

USA,

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information longer because they write it down in a visual format rather than just words and third it provides them with a personally created resource page to use as a reference guide later. Below are two examples of simple graphic organizers from the book Graphic Organizers — Visual Strategies for Active Learning by Bromley.!*4

i

Need to Kno

Nice to Kno

Eomoha sae ele Questions

Information Chunking — As a culture, we are used to having our information divided up into seven to ten minute chunks. Therefore it is good practice to divide information to be disseminated to trainee participants into shorter formats of seven to ten minute chunks. For this, a session may be divided into breaks of ten minutes or so, and during the breaks participants can be engaged in any of below cited two activities.

Dyad Dialogues — In this activity, participants are directed to pair up (triads are okay too — make sure no one is left out) and tell their partner the most important thing they learned in the last 10 minutes, or ask their partner a question about what they just learned or discuss about information presented to them so far for about two to three

!35 minutes.

Information Linking — In this activity, participants are asked to spell out loudly any number from 3 to 9 and depending upon the number they chose, they are asked to verbally state that many facts about the sub-topic. For instance in a class on the law of Evidence, a sub-topic might be new legal considerations regarding presumption on legitimacy. If trainee chose the number 7, he or she has to state 7 facts about DNA use to determine legitimacy. This kind of break provides an

134.

135.

Bromley, K., Irwin-De Vitis, L &Modlo, M. (1995). Graphic organize rs: Visual strategies for active learning. New York: Scholastic, Inc. You can find a dozen “pair-shares” in the book Presenting with Pizzazz by Sharon Bowman Bowperson Publishing, Glenbrook, NV: USA 1997,

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opportunity to correct any erroneous information, add to what is already known, linking what is already known to what is intended for

them to know of.!36 xvii. Visual Cues

Research proves that human brain is an image-making device and also that the brain remembers the pictures longer than the words. Therefore the information can be presented via the medium of photos, cartoons, drawings, or simple geometric shapes to emphasize certain points. Also metaphors and acronyms can be used to popularize topic, theme, concept for judges. For instance, Prof. Mohan Gopal when he was director at NJA, Bhopal, had created acronym FEDEF to popularize the reliance on constitutional morality amongst first instance

judges in India.!3’ In my training session on environment jurisprudence, I have relied on the documentary film the HOME project which comprehensively covers everything that I intend judges must know of.

xviii. Random Response Device In this participants are made to stand, then toss the ball to one of them who will state the most important thing he learned and then toss the ball to someone else to do the same. This activity is a fun, quick, high-energy way to review information and makes a great session

closing activity too. The book Shake, Rattle, and Roll'® by Bowman, has an entire chapter devoted to activities using the random response device. xix. Peer-Coaching

This involves assigning “study-buddy” partners by having participants trade the business cards. These business cards provide name and contact information (work phone or email address) on 3x5 cards. They exchange cards before the session ends. A couple of weeks later, they check in with each other to find out what they’ve done with what

they learned, to review old and new information related to the topic, to

support each other, to ask questions, or just to connect again. This “neer-coaching” is to ensure that your participants trainees remember what they learned in their training discourse.

136.

According to Bob Pike, president of Creative Training Techniques, International, linking new information to old is a powerful memory tool. You can find variations on this “shout out” activity in Preventing Death by Lecture by Sharon Bowman. See also http://www. bowperson.com/ACTEHandout!-

2010.pdf accessed at 1806 Indian time on 17/03/2011.

137.

138.

FEDEF stood for freedom, equality, dignity, equity and fairness all guaranteed under the Constitution of India. Bowman, Sharon. Shake, Rattle & Roll: Using the Ordinary to Make Your Training Extraordinary. Bowperson Publishing, Glenbrook, NY. 1999,

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Il. THE ROLE OF A TRAINER IN THE JE DISCOURSE

In this part we find out on who can be competent to train judges? What are reasonble qualities to be expected from trainer? What has, if any, development so far regarding training profession and how those developments to be repeated for judicial trainers? What is idealistic demand and what are practical realities around selection of the trainers for the JE discourse? The post second world war, the industry recognised that in order to train workers quickly and efficiently, delivery needed to be effec-

tive.!39 As a result, number of theories were developed exploring what expediated learning process. Some relevant ones were examined in preceding part along with models/methods that have been developed the basis of such theoritical framework. This theoritical framework learning do not limit the role of instructor, nor do they ask for removal of instructors. What is asked is change in the method delivery of instructions. However, the success of every method dependent upon the instruetor / facilitator.

the on on the of is

Even studies claiming to show the learning benefits of more technologically advanced media over conventional media point out that an important variable on discourse effectiveness is dependent is trainer/

teacher.!4° It is his/her delivery method, style and quality of communication that is going to be determinative of success

process. !4!

139.

140.

141.

in the learning

R.F. Korte, “Training implementation: Variations affecting delivery” Advances in developing human resources, 2006, vol. 8: 514-527. Neil Ballantyne, Multimedia Learning and Social Work Education, Social Work Education, Volume 27, Issue 6 September 2008, pages 613 - 622 at 616. Butler, M.D. & Yaffe, J. (2006) ‘Clip Art or No Clip Art: A lesson from cognitive science for social work educators’, Journal of Technology in Human

Services, vol. 24, no. 2/3, pp. 119-134;

Hallett, T.L. & Faria,G.

(2006) ‘Teaching with Multimedia:Do bells and whistles help students learn?’, Journal of Technology in Human Services, vol. 24, no.2/3, pp. 167178; Clark, R.E. (1983) ‘Reconsidering research on learning from media’, Review of Educational Research, vol. 53, pp.445-459: Clark, R.E. (1992) ‘Facilitating domain-general problem solving: computers, cognitive processes and instruction’, in Computer-based Learning Environments and Problemsolving, eds E. DeCorte, M.C. Linn, H. Mandl & L. Verschaffel. SpringerVerlag, NewYork.;

Clark,

R.E.

(2000)

‘Evaluating

distance

education:

Media:

Argument,

strategies and cautions’, The Quarterly Review of Distance Education, vol.1. no.l,

pp.

5-18;

Clark,

R.E.

(2001)

Learning

from

Analyses, and Evidence, Information Age Publishing, Connecticut.

—

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Method can vary, but its user must be able to increase learner’s

attentoin and link new information to prior knowledge.!2 For instance, Cognitive behavior theory emphasizing triadic reciprocal determinism among the person, the environment, and behavior was modified by Bandura and labeled as social cognitive theory. Bandura’s social cognitive theory relies on two key variables to get commitment from trainees: (i) outcome expectancies and (ii) self-efficacy, for which trainer is completely responsible. For Outcome expectancy, the trainer has to help the trainees to see relationship between what they learn in training and the outcomes they can expect as a result of exhibiting the behavior on the job. For Self-efficacy, the trainer has to inspire trainees

to perform the behavior necessary to attain their goals.!9 (1) Selection of trainers: practice vs. ideals

The JE discourse is much more than peer sharing experiences or statistical pondering or power point presentations replete with coloured slides. There is whole range of educational theoretical framework which has to be applied to enhance intellectual and emotional personality which remains untouched and due to the discourse control by the judiciary. Even England is facing criticism against its on going system of ‘one judge teaching another judge’ from many unexpected quarters. Within the JSB itself there is currently a drive to increase the

formalisation of training to improve the services it offers.!44 To quote Malleson,

“The chairman of the JSB has described the present arrangement for training which relies on the goodwill and commitment of a small group of tutor judges working in their spare time as being

not a satisfactoy professional basis on which to proceed”'*> In India, legal academia standards are found to be poor and almost three to four conferences every year debate on poor teaching standards in law schools and universities. Therefore the academia is not competent to undertake adult professional development courses like the JE discourse. On the other hand, majority of judicial trainers who are drawn from judiciary itself are hardly of any help in achieving the objective behind the JE discourse. They only continue to advice their colleagues on judicial policies adopted and what have been their

142.

Davis, J.R., and Davis, A.B. Effective training strategies: A comprehensive guide to maximising learning in organisations. San Francisco: Berrett-

143. 144.

Latham Heslin n. 121. Malleson, Kate. “Judicial Training and Performance Appraisal: The Problem of Judicial Independence.” The Modern Law Review, 1997, vol. 60, no. 5: 655-667 at 663. Jd. at 664.

Koehler, 1998.

145.

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166

personal and practical experiences. District judges with good administrative skills are chosen as directors to lead educational programmes for judges. This relieves them of their judicial work for at least period of three years. These judges are unaware of the importance or even existence of theoretical framework on learning and training, teaching methods that work on adults, science of curriculum designing. They also lack skills to organize learning materials and are found most of the time doing cut, copy, paste work thus replicating mistakes already made. Because of their lack of understanding on discourse development, they lack intellectual capacity to decide for fellow judges priority for curricula,

skills, values,

methods.

They

continue

to immitate

without even reflecting on the need for such subject in their jurisdiction! No reasonable inquiry is pursued to take cognizance of real life situations in the courts before them.Further, unlike the practice of the UK developed JE discourse, where judges are involved in judicial trainings responsibilities only when they have undergone a specific training designed for them by the JSB, in India, there is no such pre condition imposed on judges who are transferred from judicial work to academic work.

To understand the role that any teacher /trainer can play in the lives of students/ trainees, two important films — one from India and one from the US are important. Both films repeat the sentiments expressed in Plato’s Republic. They acquaint how new and friendly teaching methods dared by some teachers and trainers (as done before by Socrates himself) are even now in the present century resisted by colleagues and peers who are reluctant to come out of routine old and archaic teaching /training methods where respect is earned by instilling a fear. One of the film happens to be Dead Poets Society a 1989 American drama film starring Robin Williams and directed by Peter Weir. Set at a conservative and aristocratic boys’ prep school, it tells us the story of an English teacher who inspires his students to change their lives of conformity through his teaching of poetry and literature. Robin Williams plays the English teacher, John Keating, who _ brings enthusiasm to the classroom of young scholars whose only sense of fun is spending time together in their study groups. But his method of teaching was rather unconventional. Keating did not conduct an in your face way of teaching, and nor did he spoon fed the boys in his class. Keating suggested to the students that in any formal environment, there is the strict expectation that one follows the straight and narrow, and free thinking is the antagonist where there should not exist any curves or turns. He simply opens up the minds of students who took admission in the prep school only to get to Harvard. The second film on this subject comes from India — 3 Idiots. This film touches several academic issues from grading systems, parental pressure, student suicides, conformist coaching to theoretical knowledge, without getting preachy at any instance. Its message, even a lion learns to obey his ringmaster, but you call him well-trained and not well-educated contributed to an

Chap. 4—Making the JE Discourse method effective

167

important debate — what should be ways of encouraging learning. Both films conform to the Socratic end for those who try to introduce

new system of learning.!46

(2) What qualities to be expected from discourse?

Educational tor/trainer must tional discourse and psychology

the trainer for the JE

theories around us feed us on qualities that any educapossess in order to be deemed fit to handle the educafor adults. There is lot to be learned from education disciplines on expectations from trainer/ teacher on

level of knowledge, skills, interaction, involvement efc. The sections

below therefore explore important works on these expectations. (a) Knowledge Shulman’s work provides teacher content knowledge, pedagogical knowledge and pedagogical content knowledge as three essential

requirements.!47 Teacher content knowledge is the specialist subject matter knowledge; pedagogical knowledge is specific knowledge about learning and teaching process; pedagogical content knowledge refers to the specialist teaching and learning knowledge that teachers develop while teaching their own specialist subject matter. Pedagogical Content Knowledge

Technological Pedagogical Knowledge Technological Content Knowledge

Technological Pedagogical Content knowledge

Mishra and Koehler developed Shulman’s work further to interconnect professional knowledge of subject content, pedagogy and the

role of technology is represented in figure above.'*® The three circles,

146.

147. 148.

HD. P. Lee, Introduction in E.V. Rieu, Robert Baldick and Betty RadiceEdt.,

Plato: The Republic, Penguin Classics, UK (1955), pp. 1-99. Shulman, L. “Those who understand: Knowledge growth Educational Researcher, 1986, Vol. 15, No.2: 4-14.

in teaching.”

Koehler, P. Mishra and M. “Technological Pedagogical Content Knowledge: A framework for Teacher Knowledge.” Teachers College Record, 2006,

Vol. 108, No. 6: 1017-1054.

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Discourse on Judicial Education

and Technology, overlap to lead to four more kinds gogy, ledg Peda nt, Conte e. ed relat of inter !4° know Couros developed ‘the networked teacher’ concept who discovers possibilities of finding support, collaboration and creative inspiration in the various connections, both online and face to face, makes use of technological and social resources to develop deep knowledge and skills, and engages with informal as well as formal learning opportu-

nities.!5° His model is represented as:

Figure

Davis identifies four strands of influence— political, bureaucratic, professional and commercial. Her model for this shows how teachers, learners and technologies exist at the centre but practice is develo ped

within a set of relationships with all of these dimensions.!5! This

‘ecological’ view of teachers’ means that they need support from a

SS 149. 150.

151.

ST

a

Oa

aay ek

Ibid. Couros, A. “Examining the open movement: possibilities and implications for education.” Unoublished doctoral dissertation. University of Regina: Unpublished, 2006. Davis, N. “How may teacher learning be promoted for educational renewal with IT?” in J. Voogt and G. Knezek (eds.) Intern ational handbook of information technology in primary and secondary education. New York: Springer, 2008 at 507-540.

Chap. 4—Making the JE Discourse method effective

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range of sources and strategies to be able to develop and to be proactive rather than reactive to the environment. Global

BN

Marketing State/Region Legislature Ce; District. Community Council ZG

¥

\/

ParentSch. Board teacher assn.

5 State org. National assn.

'

Area Board of Ed. \ ¥ State Depart. of Ed. Ministry of Ed.

Figure : An ecological model of teacher learning and technologies. (Davis, 2008)

Above models of teacher provided by Shulman, Mishra-Koehler, Couros and Davis are helpful to lay down basic attributes that any trainer must possess before entering the field of training for continuing professional development. To sum up all of them, it would be trite to say that trainer — must attain mastery over content knowledge, pedagogical knowledge, and pedagogical content knowledge; must be comfortable in technology zone, must possess social networking skills to remain informed of all kinds of developments that occur in this changing world; must possess metacognition skills to understand self and others in relation to learning process. (b) Behaviour It has been found that variables such as trainee goal commitment,

job performance mentored,

coached

and job satisfaction

are higher when

or trained by those who

people are

build a strong working

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Discourse on Judicial Education

alliance with them. Also working alliance between trainee and trainer has direct bearing on performance by trainee by improving their selfefficacy. In a study of 300 professional trainers in the UK done by Bennet and Leduchowicz found out that effective trainers were sensitive, showed a genuine interest in training, developing others and

themselves, and were professional in the workplace.'> The International Board of Standards for Training, Performance and Instruction at the US has compiled set of competencies for effective instructors that includegood communication and delivery skills, the ability to motivate and engage learners, and feedback about performance.'>4

Roger calls for three indispensable qualities on the part of trainer if education is to achieve success in its aims: realness, non-judgmental and empathy to learners. By realness, Roger implies that trainer cannot be hiding his/her true feelings/emotions. He/she is a real person to students, not a faceless embodiment of a curriculum requirement nor a sterile tube through which knowledge is passed from one generation to the next. By non-judgmental, Roger implies respect to learners, their acceptance as a person of worth, unique individual with unique emotions. By empathy, Roger means that teacher should put himself/herself in the place of students to understand their reactions from the inside, to

experience their perceptions to situations. !54 (c) Skills Whittock established

that for 85% of class, teacher needs to know

gaps/misunderstanding by engaging reflexively with the class. This dialogue can be internal or external to the class. It can be by traditional means — assignments, essays, project assignment — which reveals their understanding, gaps, misdirections overtly through performance, or it may be through informal conversation in the class.!55 From his work we deduce that for encouraging reflexive learning trainer has to discover what students value, and seek means to bring those values into interaction with the values inherent in the subject being studied so as to stimulate intellectual growth and commitment. Some of the time they

nn

152.

153. 154.

Bennett, R. and Leduchowicz,

T. “What

makes

for an effective trainer?”

Journal of European Industrial Training, 1983, vol.7: 43-47.

Klein, J.D., Spector, J.M., Grabowski. B., & de la Teja, I. Instructor Competencies: Standards for face to face, online and blended settings. Greenwich, CT: Information Age, 2004. Rogers, Carl. “Interpersonal Relationships: USA 2000.” Journal of Applied Behavi oral Scienc

e, 1968, Vol. 4: 265-280; Patterson, C.H. Foundation for a bead of Instruction and Education Psychology. Harper and Row: New York.

155.

Trevor Whittock, “Reflexive Teaching, Reflexive Learn ing” 2(2) Teaching in Higher Education 1997, 93-102 at 99.

Chap. 4—Making the JE Discourse method effective

171

will fail, but where they scucceed they are truly performing their role as

instructors educators and mentors. !5°

For the JE discourse, trainings can begin by introductory class asking the basic questions like why trainees opted for judiciary as a career? Light and humourous interactions reveal the level of learning, gaps, misunderstanding, motivation factors which all can guide trainer to develop appropriate programs. (d) Qualities The ARCS Model of Instruction suggests trainers to grab attention of trainees. ARCS is an acronym for Attention, Relevance, Confidence,

and Satisfaction.!*’ According to this model, trainer needs to grab the attention of trainees, make them training program that they are trainees that they can meet goals satisfy their expectations from the

aware of the relevance of particular undergoing, develop confidence in and objectives of training and try to training.

(3) Do trainers view themselves as a profession? The expectations from trainers on knowledge, skills, qualities, values/behaviour are very similar to expectations that we have from professionals and therefore it becomes pertinent to know whether trainers realise that they are expected to conform to professionalism? To discover this, we map the judicial trainers against attributes of a profession that are derived from the sociological inquiry conducted earlier in chapter two for the judiciary. Mapping individual level and institutional level characteristics that any occupation must exhibit to fall in the bracket of a profession (table), no clear result emerges on inclusion or exclusion of judicial trainers as a separate profession. Individual to be called as a professional must

Judicial trainer —_ Institutional at an individual characteristics for level professionals

Support for judicial trainer at an institutional level

Possess special knowledge

V

Are engaged in intellectual activities

?

Be motivated to work for welfare of society

?

Set up with definite and practical purposes

?

156. 157.

Jd. at 101. Astleitner, H. & Lintner, P. “The effects of ARCS-strategies on self-regulated

learning with instructional texts.” E-Journal of Instructional Science and Technology, University of Southern Queensland, Australia, 2004, vol. 7, issue |.

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172

Adopted ethical codes and guidelines to regulate members

Be willing to be part of professional association formed by colleagues

Be free from outside and lay control and evaluation

Full time profession

Obey ethical codes and norms of practice developed by organization or association formed by colleagues

Provide continuous training for members

;

Be committed to fellow professionals and not to institutions they serve

V

Provides sanctions and removal of members for violation of common code

?

Volunteer for continuous professional development by taking part in the training discourse

V

Exercises other controls over members

?

At individual level, because judicial trainers are drawn from academia and judiciary, they are found to adhere to the requirements of a profession from which they are drawn. But at the institutional level, not much is done to evolve the judicial training as a separate pro-

fession.

Institutions

like the IOJT,

EJTN,

IAWJ

provide

common

platform for the judicial trainers from all over the world to come together and share their experience, their vision for future development, their problems efc., yet these institutions have not so far been effective to develop judicial training as a separate profession. Till now, no common agreed upon institutional mechanism to regulate the entry, conduct, selection of judicial trainers can be found, nor have any ethical guidelines or principles been evolved and adopted to specify independence to be provided to the judicial trainers, Individual judicial trainers have suggested steps to be taken on the subject like Armytage through their published work but their work is used as academic suggesti ons rather than integrating it into a policy framework. Much therefore

Chap. 4—Making the JE Discourse method effective

173

remains to be done on the institutional level to make the judicial training as a separate profession, separate from academia and the judiciary. This becomes necessary in view of the fact that law college academia do not possess competence to train adult professionals. Also experts competent in andragogy are not found in the legal discipline, and judicial officers neither have expertise in teaching, nor any understanding on educational psychology, and they continue to hold judicial posts for doing non-judicial work drawing benefit of all privileges that judgeship offers. Their judicial positions reduce the JE discourse to peer advices/instructions, power games and in my experience both at the national and state level JE institutions in India, I found that judicial officers drawn from the district judiciary are indulging in networking exercises for their promotion when they are sent to the JE institutions. The time at the Academy is used to make contacts and draw personal benefits. The institutional level commitment is found negligible and self-growth and self-promotion become the prime objective and obsession of these judges during the time they are deputed to the Academy. Their rule book interpretation habits learned for judicial decision making work stunts the growth of the Academy. Even the high court judges made in charge of the JE discourse neither have any time to spare to supervise academic content or method. They pay ceremonial visits to the Academy only when the Supreme Court justices or important government functionaries are visiting the Academy for any conference. It therefore becomes necessary to avoid selection of sitting judges for running the JE institutions. Even for administration duties in the institutions, people from management disciplines should be hired and for academic duties only certified judicial trainers should be the core faculty. The experts should be called not because of their higher rank in the judiciary but because of their expertise in particular subject and their knowledge about transfer of learning.

III. DESIGNING CURRICULUM TO REALIZE THE OBJECTIVES OF THE JE DISCOURSE

Curriculum assumes importance in view of facts that it is a formal document adopted after considerable research and consultation with stakeholders in the system which establishes purpose and nature of

learning.!58 Curriculum identifies specific agenda to be taken forward around which discourse has to be conceptualized. Koonz!°? provides

how political establishment through curriculum designing can take forward its own agenda. Her study on the Nazi conscience shows how

158.

159.

R. Harris, H. Guthrie, B. Hobart, D. Lundberg. Competency Based Training: Between a rock and a whirlpool. South Melbourne: MacMillan Education,

1995, pp. 117-121. Koonz Claudia, The Nazi Conscience. Cambridge, MA: Belknap Press 2003.

Discourse on Judicial Education

174

the Nazi regime reengineered the school curriculum to promote actionoriented Germans trained to think of themselves as an ethnically unified Volk. Nazi ideology was suspicious of humanistic learning and instead emphasized physical education and outdoor activities to bond students. Teachers were required to inculcate in their students an attitude of sacrifice for the good of the fatherland. An important lesson was that a strong community of Germans must cast off its weakest members. Textbooks posed math problems in terms of loss of public revenues due to maintaining the disabled. The ideas of foreignness and

disability came to be coupled in ways that still echo in the rhetoric of

Germany's radical right.!©° This implies that the curriculum

is a

document with specific goal to be achieved over longer term. It has three aspects to it: Goal setting = Developing theme wise agenda for judicial year? Curriculum > Curriculum?

designing >

Bruner’s Spiral

Application »

Modularisation?

Goal setting.

The importance of goals is not an original idea in education. However, goals show up so often in the lexicon that for most people they signify nothing more than the beginning of some operation, a wish, or something to hope for. Wishes, like goals, do suggest that

action is necessary, but not necessarily the type of action.!6!

Goal setting for the JE discourse involves outlining of a theme around which training activities will involve and reflecting on broad mission of JE discourse for a judicial year and how that mission would be realized. Therefore for the JE discourse, curriculum signifies judicial policy on training. It provides guidelines to trainers on specific agenda that must be adhered to. Depending upon society, culture and usual irritants that prove troublesome for those in charge of the helm of affairs in the judicial governance, agenda is set. Therefore if it is felt that the judicial corruption is belittling an image of the judiciary in the public, the theme of ethics forms the principal agenda of the discourse and courses are developed around that theme. Within a country,

160.

161.

Poore Carol, Who Belongs? Disability and the German

Nation in Postwar

Literature and Film. German Studies Review 26(1): 21-42, 2003.

Sadler, Mare S. Schwartz and Philip M. “Empowerment in Science Curriculum Development: A micro developmental approach.” /nternational Journal of Science Education, 2007, vol 29, issue 8: 987-1017 at 989.

Chap. 4—Making the JE Discourse method effective

175

different jurisdictions can set their own agenda for a judicial year and plan the discourse accordingly.

For instance, when the NJA Bhopal, India became operational in the year 2004, the broad agenda was to remove gender bias in decision making process and in overall court procedures. This led to number of trainings designed to acquaint judiciary with biases and prejudices towards women and how judicial decisions were responsible for subordination of women in society. For the judicial year 2005, the judicial corruption had tainted the judicial image and therefore it became the agenda of the national JE discourse. In the year 2006, judicial policy was to popularize the use of ADR amongst judges and therefore range of training activities were undertaken to popularize the use of ADR and to adopt case management and court management methods. From the year 2007 onwards, the regional conferences around the theme of delay and arrears in the courts occupied agenda of the JE discourse to reduce the pendency and to sensitize the judiciary on value of time in decision making process. From the year 2008 onwards, the quality of adjudication became a concern and the national JE discourse began to stress on the quality of judging, reasoning tools efc. Scholars have called for training programs on specific topics for the judges. For instance. the need to have the JE discourses on regional

and international human rights treaties was explored by Mahoney!® apart from suggestions to include tax education!®3, managemnt and administration issues for judicial professionalisation.!®* Curriculum developers can incorporate ideas of the scholars in setting goal for the curriculum. Besides, inputs from higher judiciary on performance of their subordinate courts may also be relied for goal setting. Thomas provides information on how jurisdictions are developing curricula for the JE discourse. From her comparative study on JE scene is Europe, we learn that most jurisdictions develop curriculum by a process of analyzing previous course evaluations and discussions with judges and

their representative groups.!®> Most of the jurisdictions as rightly 162.

A European Judicial Training Institute on Human Rights, European Human Rights Law Review2009 vol. 2, pp. 123-134. 163. Chris Evans, Simon James, “A comparison of the education and training of taxation professionals and officials in the United Kingdom and Australia”, British Tax Review 1996, vol. 4, p. 438-450. 164. In view of the fact that trial judges simply are personally independent, having adopted the traditional judicial role do not welcome new procedural changes for their courtroom or legal tasks. They show reluctance to adopt new record keeping methods, legal procedures, use of new technology and other features of administration. In such a scenario training seems to be only option for doing away with this reluctance. See also Glick 1981. 165. Thomas, Dr. Cheryl. Review of Judicial Training and Education in other of University between Project Appointment Judicial jurisdictions. Board, Studies Judicial London: UK, Birbingham School of Law and JSB, UK, May 2006.

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Discourse on Judicial Education

pointed out by Thomas substantive

cover

law, social context,

in their curriculum following areas: legal skills, pudicial ethics, judicial

skills, personal welfare for the JE discourse.!®° This holds true for the JE discourse as was developed, primarily under Prof. G. Mohan Gopal, when he was the director of NJA at Bhopal, India. Besides relying on issues that are burning, feedback from the higher courts and the scholarly works, educational theories that support the lifelong learning skill development should also be paid attention in curriculum designing. Taking care of Cognitive dimension in curriculum designing — implies planning education programs for judges that help them move from dualism to multiplicity to relativism to commitment stage. According to Schwartz and Sadler, micro-developmental framework in which both trainer and trainee together determine goal for the training, how that goal is to be attained — can be made us of for designing curriculum as it supports significant trajectory of

growth in thinking abilities over time.!®7

Identifying training needs is another way of goal setting for curricula. For the JE discourse, these needs assessment is done by training committees which composes judges responsible for the JE. However, in mature democracies, like Finland and Denmark in particular, needs assessment is done through a questionnaire or survey of judges by court users. The user surveys are used to measure satisfaction

with the judiciary and these feed into curriculum development.!%

Between 1999 and 2004, Canada pursued a process of curriculum development through the Canadian Judicial Learning Network Project (CJLN) which addressed several problems facing judicial education there. The CJLN was then used to develop a multi-stage approach to curriculum development. This curriculum development resulted in Individualized Education Plan (IEP) — where all judges identify their interests, set their learning priorities, plan their participation in the JE program. All IEPs are aggregated to produce summary of learning needs for judges of a particular court and this summary provides

modules that the national institute offers for a year.! Between 1999

and

2004,

the CJLN

Project

identified

—lack

of coordination,

an

absence of resources to Systematically plan and develop the JE discourse, limited capacity to expand teaching methods or develop partnership — as the main hindrances in curriculum development process.

166. 167. 168. 169.

Id. at 7, 55. Sadler, Mare §. Schwartz and Philip M. “Empowerme nt in Science Curriculum Development: A micro developmental approa ch.” Jnternational Journal of Science Education, 2007, vol 29, issue 8: 987-1017 at 1013. Thomas, n. 165 at 37. Id. at 39.

Chap. 4—Making the JE Discourse method effective

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Whereas in the US, the FJC undertakes research to understand the

training needs and then develop a curricula, in France, a training commission carries out consultation with different branches of judiciary, judicial unions, departments of government, inspectorate for the judiciary and other training schools to arrive at decision as to which

programs to withdraw and which ones to introduce.!79 Also in the US,

through JERRIT project several guidelines were developed for designing the curriculum. However, since then no other evaluation has been carried out to evaluate application of these guidelines. Designing execution of curriculum

After setting the goal of curriculum which feeds subjects and areas to be covered in various JE programmes, the curriculum also has to provide how these programmes would be executed. From the educational theories we understand that modularization and spiral curriculum are two ways of executing the curricula. (a) Modularization

Modularisation of courses involves the packeging of course content, either theory or political, into shorter, logically self contained units which together cover the content which would be covered by a

conventional longer course.!’”! Modularisation can be used effectively to ‘top up’ already existing skills and knowledge.!’2 Other advantages stemming from modularisation are (i) the self contained nature of modules allows programs with more subject experts presenting module in which they possess special knowledge; (ii) greater flexibility in time

table of modules/programs therefore. !73 The JE discourse will benefit from modularisation as it will offer choice to judges to opt for those modules which they think are relevant for their work and omit irrevant to their function. Furthermore, as even

opined by Conford for industry related training, there is potentional in modularisation to meet the demand for skill and knowledge which are required for raising the professional competencies in judges. Therefore the JE discourse can be planned in terms of modular approach which according to Conford ‘/ends itself particularly well to short courses and courses developed for specific training purposes relating to specific

occupations or industries.’ '7

170. 171.

Id. at 40. Ian R Conford, n. 1; P. Ainley, Class and Skill: Changing knowledge and Labour London: Cassell, 1993.

172.

Conford, Ian R. n. | at 239.

173. 174.

Jd. at 240. Id. at 239.

divisions of

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Discourse on Judicial Education

However, modularisation is not argued that there is the danger that labour market demand may result in knowledge in favour of specialised

without problems. It has been vocational programs driven by ‘a loss of theoritical generalised knowledge applicable only to

occupational tasks not conceptually related to one another.!’> In the context of the JE discourse in India it may not serve any purpose as trainee judge is not free to opt particular course in any on going training programs. The selection of trainee judges for particular program is done by the registry on ad hoc and arbitrary basis. Also, even if a module is prepared and a trainee judge is allowed to participate in that module, there is no guarantee that he/she will be allowed to attend a related module which builds over knowledge and skills gained at previous module and thereby whole purpose of building knowledge in intervals through modularisation will be defeated. New trainee judge who is asked to participate will be lost in follow up module attending course having no information about previous course work essential pre requisite for the success in this course. Yet another problem with modularisation is that modules tend to fragment knowledge rather than integrate it. Practical reality is that few judicial trainers would devote time to specifically review past learnings and construct links with new module. Even the most capable judge will have difficulties in recalling relevant theory learned at the previous modules which may have taken place some time ago. Since no conscious planning is done by trainers to review segments of previous learning by trainee judges, modular courses will not serve the purpose. One possible way of clicking success with modularisation in the JE discourse can be taking up follow up activities by trainers which would require trainee judges to write note on their experience or on their application of a skill learned in the program at the workplace and its impact on the judicial work. Their such learning from module can be published in an inhouse journal of the JE institute. Such writing exercises can ensure integration of theory and workplace practices, make judges more productive and serve the objectives of the training program that were intended. Judicial educators in Canada, Australia and the US are using this

approach for developing their judicial training curriculum.!76 (b) spiral curriculum

Bruner’s spiral curriculum was developed in a context of foster ing meaningful real world learning and problem solving.!’” Altho ugh et

175. 176. 177.

P. Ainleyn 171; Conford, Ian R. n. 1 at 241. Thomas, n. 165 at 102. Bruner, J.S. (1966) Toward a Theory of Instruc tion, Cambridge, Mass:.: Belkapp Press; Bruner, J. S. (1971) The Relevance of Education, New York: Norton

. In this book Bruner applied his theories to infant develo pment.

Chap. 4—Making the JE Discourse method effective

179

originally formulated with reference to cognitive skill acquisition and school learning, it is useful for training where effective skilling is the desired objective. It involves exposing the subject content a number of

times. Cornford advices its use only for the complex courses.!78 Under the spiral curriculum concept, development of the JE discourse on professional ethics may involve following steps: (i) recognition of the need to undertake training in ethics; (ii) incorporation of ethics in the curriculum; (iii) designing special curriculum for training in ethics; (iv) designing modules and their delivery time and mode for judges at different levels; (v) preparation of learning materials catering to different modules that are to be covered in a year; (vi) dissemination of

these modules on regular basis; (vii) getting feedback on modules and improving them accordingly.

In the US, Gray and Zemans!’? provide example of application of curriculum in the area of teaching of ethics. It began with realization that judges essentially receive their formal education about conduct and ethics while they are in law school, which caters to the needs of advocates in an adversary system, and which is not suffice as a grounding for future judges, leaving them unprepared for the ethical dilemmas they face when they make the transition from partisan advocate to neutral arbiter. At the time a judicial ethics curriculum project was proposed, it was found that the states had no curricular materials to teach judicial ethics other than two half-hour videotapes produced by the American Judicature Society (“AJS’’) and several AJS publications. Therefore new package was prepared which included a primer that is distributed to judges who participate in the program to provide background information on the course and to serve as a useful reference for the future. The primer is comprised of an outline that introduces the general principles and rules that govern judicial conduct in each topic area, with citations to the relevant portions of the governing code of judicial conduct, summaries of or citations to key cases decided by courts or judicial conduct commissions entrusted with the responsibility of enforcing the standards, summaries of advisory opinions issued by state ethics committees, and a list of suggestions for further reading. AJS also prepared an instructors’ manual for use with the primer. For each topic, the manual contains additional background material, suggested questions to stimulate group discussion, hypothetical situations, and descriptions of adult education techniques that can be used to present the curriculum. To enhance the flexibility of the curriculum, each of the nine topics were covered in a self-contained module.

178. 179.

Conford, Ian R.n. | at 247. Cynthia Gray and Frances

Experience

And

Kahn

Educational

Problems 305 (Summer/Autumn,

Zemans,

Technique”, 1995).

“Instructing

58

Law

and

Judges:

Ethical

Contemporary

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180

Depending on time and budget limitations and on each topic's interest to the particular state's judiciary, a judicial educator were given free hand to design a training session lasting from one or more hours on a single topic to a presentation of the entire curriculum in a special program. By using one or two modules at annual judicial conferences, for example, the entire curriculum can be presented over several years. Eighteen months after distributing the curriculum, AJS surveyed the fifty state judicial educators to determine to what extent the curriculum was being used and to solicit suggestions for possible revisions. It was found that many of the states had used it multiple times and planned to continue using it. Approximately 1,750 judges were taught judicial ethics with the materials provided, and approximately the same number was expected to be presented parts of the curriculum in the near future. The survey results also indicate that the entire curriculum is being used. All topics have been presented at least once. The curriculum was designed so that it could be used in a variety of ways, and the survey results confirm that the study materials are being used as the basis for materials being handed out to participants, the instructor's materials are being used to provide additional background for faculty, and the various learning activities are being used to present the issues. The study materials have also been found to be readily adaptable to the law of the individual states. IV. THE RELEVANCE OF LEARNING MATERIALS FOR THE JE DISCOURSE

In some way or the other, preceding parts mention about the learning materials for the training. According to Myers et. al learning materials can involve

lesson plans, teaching aids, assessment

tools,

participant materials. Lesson plans are to be developed for trainers so that they can deliver the course content and thereby meet all objectives of the training. It includes the learning objectives, module content,

timing, performance criteria, suggested instructional strategies. !8°

Learning material for any training in the JE discourse, pose challenge of how to narrow down and organize a field of law which has grown to encompass thousands of judicial opinions, multiple statutes, agency

regulations, ancient doctrines, entrenched

attitudes, evolving

resource uses and associated values. To summarize on the basis of what I have experienced in my involvement in the JE discourse, learning materials, are (i) valued highly by participant trainees who regard it as something that they want to retain with them so that at a later point of time, they can seek guidance from; (ii) different from those offered at

180.

See Claire E. Weinstein and Debra K. Meyer, n. 131.

Chap. 4—Making the JE Discourse method effective

181

legal education level, both stylistically and substantively; (iii) resource by resource discussion of applicable law and policy on theme of the discourse and include non-legal discourse materials as well to develop broad idea on the subject.

Further such materials must incorporate (i) coherent explanations of the evolution of the subject through a brilliant selection of case law, along with explanation about constitutional underpinning and administration system governing legal framework on topic of training selected; (11) update on changes effected in law, changes that judicial precedents are effecting, policy level support that exists to support their decision making, efc.; (iii) agenda of those supporting a particular line of approach and therefore it is to be confined to that agenda. Therefore if organizers are supporting strengthening of the IPR then learning materials have to limit its content to benefits of such protection and it cannot include how IPR protection is threatening livelihood in developing countries. 7 It has to be realized that learning materials cannot be a mere compilation of diverse topics for then it would be difficult to achieve any sort of overall thematic linkage. It can cover diverse perspectives on any one theme though to develop broader understanding surrounding the subject. Also mere inclusion of edited case law will not be in itself a complete learning material. To make it complete, theoretical framework, historical evolutional of normative framework, successive

amendments and reasons behind them must be incorporated to explain rationale behind statutory enactment. There are many approaches available to prepare learning materials for the JE discourse. They can be prepared in the format of powerpoint slides, practical research checklists, worksheets, case study specific research scenarios (putting it into practice), training checklists for trainers themselves, database user guides or quick tips, and an online evaluation form as well as a database training needs analysis form. The institutional material should produce a research manual, ring bound to make it easy to update and includes all the relevant information.

Care

should

be taken

throughout the bounded material. material for the longer time.

to have

same

font, same

size

Also book binding can preserve

For a large judicial conference, learning materials can be sent online as well to all the trainee judges on the website of the JE institution. Such online materials facilitate updating and continuous modification also. As far as content is concerned, learning materials will differ also

on account of the type of training program the JE discourse wishes to undertake. Therefore for seminar, conference, refresher course, induc-

tion course, orientation and retreat on the same topic learning materials

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182

will vary. For the induction training, which

is extensive, residential

institution based training to be provided to those who qualify exams to get selected as magistrates or junior judges, for a period of one year, learning materials have to cater to the objectives already identified behind this training delineated in various reports. This training is establishment focused, institutionally directed, mandatory, prescriptive, tightly structured, based on a comprehensive curriculum, and usually includes examinations and formal assessments. Learning materials for this course can be collection of psychological tests, judgment writing tests, comprehension tests, tests on sentencing, tests on eye witness, tests on appreciation of evidence, tests on reasoning efc. all compiled in a book form, which trainee have to fill in the class after their interaction with the trainer on a particular topic is over. The results could be used to assess the level of learning and those who fare poorly over all could be asked to go through another cycle of induction commencing next when they have to fill another similar booklet but different tests. Assessments like these help the trainee judge to understand importance of any particular session and how to apply their learning to make decisions. For the trainer, assessment results reveal how far the training has been helpful to trainees and what more is to be done to improve it.

Judiciary lacks key research skills necessary for making them lifelong learners and self-managed learning which becomes apparent from their judgments and extra-judicial writings in which one finds a reliance on too few sources. When quizzed where they will search for a precedent relevant to a case, most of them end up suggesting a single common source. A help can be taken from non-legal training material designed to facilitate the acquisition of conceptual and lateral thinking skills. Learning materials should also include non-legal materials to enhance thinking abilities and thinking styles. To encourage conceptual thinking, both literature and storyline inclusion can be of a help in this regard. Erasmus (1466-1536) was of the view that literature should be taught in relation to the ordinary affairs of life.!8! Therefore literature has long been accepted and utilized as a vehicle for the transmission of values in our culture and as a means of engaging with larger issues and universal concerns. The use of literature in the JE discourse offers a means to explore how various life experiences shape our moral and ethical character at different stages during our lives. Conclusion

The JE discourse is a new discipline produced as a result of structural coupling of legal discipline with non-legal discipline of

181.

C. Atkinson & Eugene T. Maleska, The Story of Education 1964 New York: Bantam Books.

Chap. 4—Making the JE Discourse method effective

183

education, psychology, social sciences, management, efc. to provide content, methods, instructions, designs, strategies that can help judges in self-management of their learning, making them responsible for their own learning. It has a potential to transform judicial histories and inject new stream of intellectualism. Kolb’s theory around abilities for grasping information, classroom techniques such as mindfulness and works of Sheehy and Erikson that produced life cycle theory are some things with which I experimented to improve upon the content and delivery of the JE discourse at personal level.

The principal objective behind the JE discourse should be to help judges in acquiring new knowledge and engaging in critical selfreflection of assumptions regarding existing and perhaps outdated meaning schemes and perspectives. Transformative learning occurs when people question their long-held assumptions, replace emotionally charged fictions with empirical data, revise their meaning schemes and

meaning perspectives and act in accord with those revised views.!82 Transformative learning can be sparked simply by realizing that new information is inconsistent previously held beliefs, or by a lengthy accumulation of knowledge rather than a single revelation or event. The introspection that triggers transformative learning may also be activated “by becoming aware that we are making a premature value judgment or

are being inconsistent in acting out our values.”!8? The JE discourse will therefore require conversations to be established between judges

and people knowledgeable about the subject.!84 Also, judicial educators need to design educational intervention in a manner that helps judges in becoming a master of their own learning so that they are able to approach and deal with their tasks indepen-

dently. They need to understand as noted by Schroeder!®> that learning is not a spectator sport and expand the repertoire of learning activities to increase their own and trainee satisfaction. For the same, they need to develop an overall understanding on how adult professionals learn, retain and apply learning back to the job. Theoritical framework discussed in the first part of this chapter facilitates such understanding. Trainers by engaging themselves in this framework on learning and training will come to recognise that there are many paths to achieve learning and receptivity from trainees. Depending upon personality

182.

JLbid.

183. 184.

Jack Mezirow, On Critical Reflection, 48 Adult Educ. Q. 185, 195 (1998). Susan J. Becker, Many Are Chilled, But Few Are Frozen: How Transfor-

185.

mative Learning In Popular Culture, Christianity, And Science Will Lead To The Eventual Demise of Legally Sanctioned Discrimination Against Sexual Minorities In The United States, American University Journal of Gender, Social Policy and the Law, 2006, vol. 14, p. 177-251 Charles C. Schroeder, New Learning Styles, Change, vol. 25, no. 5,

September October 1993, p. 21-26 (Heldref Publications).

184

Discourse on Judicial Education

traits of trainees, the trainers can design interventions helpful to achieve the intended objectives of the training discourse. This chapter made an attempt to synthesize learning from other disciplines and experiences on the field to provide a methodology to attain the goal of judicial professionalization. Many disciplines have been successful in professionalizing their practitioners by following a systematic methodology in terms of training method, curriculum designing, motivational trainers and useful learning materials and there is no reason why judicial professionalization cannot be achieved by integrating some of these methods in the JE discourse. Part one with its focus on the delivery of the discourse to judge audience deals with questions like: why method of delivery of training matter? What methods are available to us? How they differ from one another? Which of them are successful for adult professional development courses? What utility will they be of, if imported for the JE discourse? This part will be of utility to the judicial scholars and trainers engaged in professional development of the judiciary. It acquaints them with theoretical framework around training and learning constructed by other disciplines. It helps in unraveling the mysteries of human transformation through educational intervention.

In Part two, an inquiry is made to discover — who can be a trainer for the JE discourse? What, beyond a lowest common denominator of education and training, makes a good trainer? What is the extent of recognition and who controls selection of trainers for the JE discourse? Are these trainers having participatory role in the curriculum development or are they merely applying curriculum decided by closed circle of members of the judiciary? What are various understandings of training as a profession? Is training itself a full time profession? Do trainers view themselves as professionals? Or extension of academia? Or is it a separate profession altogether? Is there any development regarding professionalisation of trainers? This part suggests ways for future trainers to (i) tap the rich load of experience that judges bring to the table when they come to attend the training programs, (ii) make judges masters of their own learning so that they are able to approach and deal with the tasks independently. Part three, attempts to formulate, a basic educational criterion for guiding judicial educators on curriculum designing. It deals with the practical issues that emerge in the discourse development for judges, which is to determine which selections from the great field of human inquiry can, if properly delivered, raise professional competencies of the judges. This part lays down broad framework for curriculum development to professionalize the judiciary; makes a distinction between curriculum and instruction; and suggests ways for involving judges in the process of curriculum designing.

Chap. 4—Making the JE Discourse method effective

185

Part four, is devoted to the study of relevance of learning materials,

their preparation, their utility for training sessions and _ thereafter. Incidentally, it also covers the aspects of infrastructure and resource inputs that would be required for the preparation of learning materials. It examines the relevance of technological support for organizing learning materials in a better way that I personally experienced through the learning material prepared by the JSB in the UK, and graduate skill orientation designed by the University of Warwick.

CHAPTER FIVE

EVALUATING THE JUDICIAL EDUCATION DISCOURSE The preceding chapters very well establish the need for the systematic development of the JE discourse. The present chapter, in continuation of the earlier chapter four, which was about the structural improvement to be brought for the effectiveness of the discourse, attempts to clarify in general the concept of evaluation and its significance to the JE discourse providing how through the exercise of evaluation, the impact of the JE discourse can be measured. : Introduction

The evaluation of the JE discourse assumes significance in view of the professionalization aim of the discourse. With the JE discourse becoming institutionalised and regular feature, coming out of the shadow of its past ad-hoc avatar, it becomes important to evaluate as to what are judges being trained for, what is the syllabus of the training exercise, how it is designed, was there a better way of designing syllabus and particular training program to achieve the desired results, and so on. Also, it becomes important to understand whether the training efforts are achieving the results desired for, or on the contrary they are counter-productive for some issues?!

Majority of the institutions from around the world engaged in the dissemination of the JE discourse have not shown keen interest in the evaluation exercise to learn their shortcomings or to know the performance of trainee judges and how far they succeeded in transferring

|.

‘The participants are astonishingly willing to listen to the issues but can retreat into their professional culture if they feel that they are being harangued’ as observation by Ann Stewart in relation to the Indo-British Gender and Law Project. See Stewart, A., ‘Judicial Attitudes to Gender Justice in India: The Contribution of Judicial Training’, 2001 (1) Law, Social Justice & Global Development Journal at http://elj. warwick.ac.uk/global/ issue/2001-1/stewart.html.

[ 186]

Chap. 5—Evaluating the Judicial Education discourse

187

their learning back to the job to bring an improvement in the justice system. The most professional judicial academy in India at present, the NJA at Bhopal, even though has completed more than eight years in designing and dissemination of the JE discourse, has not undertaken till date any serious evaluation work. The decentralised JE discourse managed by 19 state judicial academies that operate under the guidance of the high courts and whose daily affairs are managed by the district judges hardly realise the need for putting in place evaluation machinery. These decentralised JE centres have not so far developed any framework for the evaluation as judges made in charge of JE affairs are completely ignorant about the concept of evaluation. The same holds true of many other judicial academies in other parts of the world. As observed by Partington? for the Judicial Studies Board (JSB) of the UK: “the work of the JSB is currently largely based on an assumption—which one would guess to be correct-that the provision of education and training for the judiciary will ultimately enhance standards of adjudication. However, the time may be approaching where this assumption should be examined more closely. If this were done, it would lead the JSB to the very controversial question of whether the Board should be devising standards of competencya concept which is becoming increasingly familiar in other areas of the legal profession, as well as more generally in professional life. If so, should the Board be assessing the performance of judges as against those standards? If not the Board, should some other

body be undertaking this work? Or is this just not appropriate for the judiciary?” Evaluation of the JE discourse as noted by Partington would therefore involve establishing of standards of competency, efficiency and effectiveness for the judicial work. Such standards would in turn guide the trainers about the goals to be achieved through the JE discourse. Pattinson also suggests evaluation to be done at the pretraining stages by having a response from the “consumers” of judicial services — lawyers and their clients on how they perceive the ways in which the judiciary operate? Are they happy with the service provided? If not, why not? Is improved training the right response, or are there other resource or managerial issues that need addressing in the development of the court service?> This kind of pre-training evaluation will assist in identifying training needs. The JE discourse providers through such training needs analysis can take a hint on the standards of

2.

3.

M. Partington, “Training The Judiciary In England And Wales: The Work of

The Judicial Studies Board” 1994 Civil Justice Quarterly 319-336. Id.

Discourse on Judicial Education

188

competency discourse.

for which judges have to be prepared through the JE

In India, even in other professions, little effort has been made towards developing methods for analysing the training needs. Employees are sponsored training for the sake of a ‘pleasure trip’ or to keep the trouble makers out, or to reward blue-eyed employees for extraneous conditions. There have been situations where ‘training needs’ have been tailored to the existing ‘training courses’. This faulty practice has led to what is commonly termed as the training course training needs syndrome.* The JE discourse must adopt scientific evaluation exercises to save itself from getting affected with this syndrome. To undertake the evaluation exercise seriously and scientifically, paraphernalia of experts would be required. The present superficial and incomplete evaluation attenipts by the JE institutions, of asking trainee judges to write down their response on a scale of | to 10 on various aspects of program delivered, do not meet the standards prescribed for measuring the success and failure in learning and its transfer back to the job. Training efforts are to be evaluated in the light of uncertainty concerning the institutional:role of the discourse, for instance, whether

the discourse can be used to persuade judges to adopt lenient/strict viewpoints on some issues? Will it be permissible for the training institution to-indulge in any kind of indoctrination? There is therefore a need to develop an appropriate methodology and a model for evaluation of the JE discourse to ascertain the extent to which the discourse is helping the judiciary in improving the quality of justice rendered. To do the same, the present chapter in the first part introduces the historical context behind the concept of evaluation. In the second part, from the works of experts in the field of evaluation, the concept of evaluation and what it entails is looked into. The third part discusses how evaluation can be designed for the JE discourse so as to measure the impact of judicial trainings. The fourth part throws light on what could be challenges faced in evaluating the JE discourse and so on. I.

How evaluation concept emerged in the context of education programs?

Historically, evaluation started with the Elementary and Secondary Education Act passed by the US Congress in 1965 which required that all Title I (related to economically disadvantaged student) programs be evaluated. This Act engendered a flood of evaluation activities in the US. The 1984 annual meeting of the Evaluation Conference in San Francisco, attended by 600 people then, which was only a fraction of

4,

R.Ganeshan, “Training Grid for effective trainers”, 16(1) Indian Journal of Training and Development 1986: 22-25.

Chap. 5—Evaluating the Judicial Education discourse

189

the total number engaged in evaluating educational programs,> proved that the evaluation of educational endeavours had carved out a place for itself with a sizable establishment coming into existence with its own norms, organisations, publications, and institutions. Later on, it set the

trend of standardization in the form of tests to promote students from one grade to another, to certify graduation from high school, to allow older students to enter teacher training, and to certify teachers when they finish their training. It also developed the trend of evaluation of teachers and linked their performance with payment to be made to them. Such evaluation practices led to professionalism and accountability in the educational community and helped the educational program to learn and improve, raise its profile, strengthen its legitimacy

and reputation’ thereby ensuring accountability to the public.® Therefore, evaluation emerged to measure the success of educational programs, to know whether these programs were successful in accomplishing goals intended, to demarcate between those who through educational programs have achieved learning and are ready for expected performance than others who are not afforded such opportunity, to understand which of the institutions were more effective for learning, which of them had better trainers and support system required for transfer of learning and these objectives of evaluation made it a tool to fasten accountability to the educational institutions to perform better. II.

What is evaluation all about? What does evaluation entail?

New Collins Dictionary defines evaluation as a process to assess the value or worth of an endeavour in terms of its effectiveness in

accomplishing its goals or results.” Stake and Denny!° define evaluation as the discovery of the nature and worth of something ... an attempt to describe something and to indicate its perceived merits and short-

5.

Ernest

House,

“Evaluation

and

Legitimacy”,

(eds.) New Directions in Educational Evaluation New Direction Series, London.

6.

Id. at 6.

7.

John

8.

9.

De

Coninch,

Khilesh

Ben

Ernest

R. House

Haagsma,

Hans

Griffioen,

Mariecke Van Der Glas, Planning, Monitoring and Evaluation in Development Organisations, Sage Publications, 2008. at p. 38. Chinapah V. and Miron G, Evaluating Educational Programs and Projects, UNESCO (Socio-Economic Studies No. 15): Belgium, 1990, 25.

Quoted by Livingston Armytage in Educating Judges: Towards a new model of Continuing Judicial Learning, Martinus Nijhoff Publishers and kluwer Law International, Netherlands, London: Collins, 1986, 340.

10.

Chaturvedi,

in

1986. The Falmer Press,

1996 at p. 184: The New Collins Dictionary,

Stake, R.E. and Denny, T. (1969) ‘Needed concepts and techniques for for the Study utilising more fully the potential of evaluation’, National Society Press, Chicago of University Chicago, Il, Pt. of Education Yearbook, LXVIII, p. 370.

Discourse on Judicial Education

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comings... not a search for cause and effect, an inventory of present status, or a prediction of future success. For Armytage, who has voiced in different writings, the need for evaluation of judicial! trainings to understand their impact on the justice administration system, evaluation is a model or methodology developed to measure the feasibility, effectiveness and educational value of the

program.'!

It is an applied means

of research with recognisable

method, which is defined by its purposes and goals, and is oriented towards utility by fulfilling an inquiry for its client, being specifically

and assessment of value.!* According to him, evaluation involves making informed judgments on the overall value of the learning program and whether or not the program accomplished what it set out to do.!9 The huge and diverse literature around evaluation framework is helpful to appreciate the different perspectives on evaluation. Accordingly, evaluation can be defined either as a tool to determine the extent to which educational objectives are actually being realised!4, or

a process for assessing the merit or worth (Eisner!*, Glass!®, House!’, Scriven!8) of an activity, or a system established for systematic collec-

tion and use of information to make informed decisions about an education program! and so on. One also gathers that evaluation would involve marshalling information and arguments to enable interested individuals and groups to participate in the critical debate about

specific programme,

11. 12. 13.

Armytage n. 9 at 185. Id. at 186. Pearson

TG,

“Evaluation”,

Adult

Education

Perspectives

for

Education, Judicial Education Adult Education Project (JEAEP),

Judicial

Georgia:

University of Georgia, 1991, 8.1 — 8.13, 8.7.

14.

I5. 16.

Ralph Tyler RW. (1950) Basic Principles of Curriculum and Instruction, Chicago, III., University of Chicago Press. Eisner, E.W. (1979) The Educational Imagination, New Y ork, Macmillan. Glass G.V. (1969) The Growth of Evaluation Methodology, research paper No. 27, Boulder, Laboratory of Educational Research, University of Colarado, mimeo.

17. 18.

19.

20.

House E.R. (1980) Evaluating with Validity, Beverely Hills, Calif., Sage. Scriven, M (1967) ‘The methodology of evaluation’ in State, R.E. (edt), AERA Monograph Series on Curriculum Evaluation, No. 1, Chicago, Rand McNally. Scriven M, “Curriculum Evaluation — Definitions and boundaries”. in Tawney D (Ed), Curriculum Evaluation Today: Trends and Implications, London: MacMillan, 1991, 40; see also Scriven M, Evaluation Thesaurus. Newbury Park, Calif: Sage, 1991, Stephen Kemmis, “Seven Principles for Programme Evaluation in Curriculum Development and Innovation”, in E.R. House (eds.) New Directions in Educational Evaluation, n. 5 at 118.

Chap. 5—Evaluating the Judicial Education discourse

191

The literature on evaluation further clarifies that evaluation is done for providing information for decision making (Cronbach2!, Stuffle-

beam? and Alkin?3); for measuring the congruence between learning objectives and outcomes” and for testing the worthiness and effectiveness of educational intentions in terms of processes and outcomes so as to justify the relationship between resources that are spent and thereby provide loopholes in planning and implementation framework for such

ventures (Worthern and Sanders*° and Adelman and Alexander”). The above perspectives on evaluation point out that for evaluation process one has to develop a methodology first so as to obtain the information about the program that needs to be evaluated from various sources —participating in some way in that program. Secondly, this information obtained has to be assessed to learn as to what extent the program has been successful in accomplishing its objectives. And thirdly, the assessment must point out shortcomings of the program with suggestions on what could have been dispensed with or included to get the desired results. The above conception about evaluation will also hold true for the JE discourse. Applying above conception specifically to the JE discourse, we get that the evaluation exercise will involve three aspects: first obtaining the information about the specific program that needs to be evaluated from participants, program content developers, outside experts who were called to take part in the program apart from trainees. Secondly, evaluation would require assessing that whole information on objective basis and comparing it with the program objectives. Thirdly, evaluation must provide results in terms of achievements and shortcomings of the program to accomplish its objectives and provide suggestions as to what should be dispensed with or included in the future for realising the professionalization aim of the discourse.

21. 22.

Cronbach, L.J. (1963) ‘Course improvement through evaluation’, Teachers College Record, 64, pp. 672-83. Stufflebeam, D.L., Foley, W.J., Gephart, W.J., Guba, E.G., Hammon, R.L., Merriman, H.O., and Provus, M.M. Decision-making, Itasca, II]., Peacock.

23.

24.

25.

Educational

Evaluation

and

Alkin, M.C. (1969) ‘Evaluation theory development’, Evaluation Comment, 2, pp. 2-7. Tyler RW, Basic Principles of Curriculum and Instruction, Chicago: University of Chicago Press, 1949, 106. The Tylerian approach sees evaluation as “the process of determining to what extent the educational objectives are actually realised...since educational objectives are essentially changes in human beings...then evaluation is the process for determining the degree to which these changes in behaviour are actually taking place”. Worthern B and Sanders J, Educational Evaluation: Theory and Practice, Belmont, Calif: Wadsworth,

26.

(1971)

1973, 20-23.

Adelman, C., and Alexander, R.J. (1983) The Self-Evaluating Institution: Practice and Principles in the Management of Educational Change, Methuen.

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Discourse on Judicial Education

III. How to design evaluation for measuring the impact of judicial trainings? To

design

evaluation

for

the

JE

discourse, _the

works

of

Psacharopoulos2’, Stufflebeam* and Nevo2? must be visited first of all. From their works, ten questions can be framed to understand the concept of evaluation in a comprehensive way. These ten questions

being — how is evaluation different than other activities? What are the functions of evaluation? What are the objects of evaluation? What kind of information should be collected regarding each object? What criteria should be used to judge the merit and worth of an evaluation object? Who should be served by an evaluation? What is the process of doing an evaluation? What method of inquiry should be used in evaluation? Who should do evaluation? By what standards should evaluation be judged? By answering these ten questions on evaluation one can arrive at the appropriate objectives, methodology and prerequisites for conducting the evaluation of the JE discourse. Based on such learning, ideas can be developed to aid the institutions engaged in the JE discourse to assess the quality of the discourse offered, the extent of professional competencies developed through the discourse, appropriate time to indulge in the evaluation exercise, criteria for evaluation, suitability of

the evaluation

and

evaluators,

conducting an evaluation. I.

How evaluation exercises?

and

standards

to be observed

for

differs from planning/monitoring/measuring

Literature review by experts in the field point out that evaluation though misunderstood for other activities like planning, monitoring and measurement differs from those activities. Experts like De Coninch et

al3° and Popham?! have helped us to differentiate and appreciate simi-

larities in these concepts. Accordingly, planning (whether ‘operational’, ‘strategic’, ‘project-based’) normally involves thinking before commencement of any project about its ‘why’ (the objective), what (the activities), how (the approach and strategy), when and where, with 27.

28. 29. 30. 31.

George Psacharopoulos, ‘Evaluation of Education and Trainin g: What Room for the Comparative Approach?’, /nternational Review of Education, Vol. 41, No. 3/4 (1995), pp. 259-284. Stufflebeam, D.L., (1974) Meta-evaluation, occasional paper No. 3, Kalamazoo, Western Michigan University. David Nevo, “The Conceptualisation of Educational Evalua tion: An Analy~ Review of the Literature” 53 Review of Educational Research 1983, |1De Coninch, et. al, n. 7. W. James Popham, Educational Evaluation, Secon d Ed., Prentice Hall. New Jersey, 1988 at p. 9.

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whom and by whom, and with what resources. Monitoring focuses on ongoing surveillance or assessment of an initiative; helps to gauge the degree of achievement of activities, whether resources have been well utilised and whether one is on course towards achieving results. It helps celebrate success and make corrections where needed. Evaluation focuses on changes that can normally be seen after some time; helps to find out if — results have been achieved, whether there is any impact, whether strategy and approach were appropriate, whether there have been any unanticipated changes and the reasons for any variations from a plan. It also helps to learn from successes and failures, make corrections (in approaches, goals, programmes and macro strategies) where necessary. Also, Monitoring and Evaluation both aim at assessing change and at being as efficient and effective as possible in bringing about (or contributing to) this change. Monitoring and evaluation both focus on learning from successes and shortcomings and on establishing accountability. They are therefore often mentioned together. Measurement is merely the act of determining the degree to which an individual possesses a certain attribute. For instance, when we say X obtained 85 per cent on a spelling test, it is measurement, and not evaluation as we did not say how good or bad that measured performance was. We are simply measuring and not appraising quality, that is, worth. Although evaluators often engaged in measurement, these two operations are not equivalent. Measurement at bottom is status appraisal and evaluation is quality appraisal. Assessment is generally seen as a way to measure whether students have learned what we have taught them. However, assessment today increasingly deals with the development of thinking, performance skills, and attitudes instead of just measuring knowledge.

2.

What are the functions of evaluation?

Above differences and similarities to a large extent clarify the functions of evaluation in the light of other activities. Going further, we find that evaluators like Scriven?3, Stufflebeam3?4, Cronbach?>,

Dornbusch? thought evaluation to have: (i) the formative function for improvement where evaluation is used for the improvement and development of an ongoing activity (or program, person, product, efc.);

32.

Yorke, P.T. Knight and M. Assessment, Learning & Employability. Maidenhead, England: The Society for Research into Higher Education and Open University Press, 2003.

33. 34.

Scriven, M (1967) n. 18. Stufflebeam, D.L. (1972) ‘The relevance of the CIPP evaluation model for

35.

36.

educational accountability’, SRIS Quaterly, 5, pp. 3-6.

Cronbach, L.J, Ambron, S.R., Dornbusch, S.M., Hess, R.D., Hornik, R.C., Phillips, D.C., Walker, D.E. and Weiner S.S. (1980) Towards Reform of Program Evaluation, San Francisco, Jossey-Bass. Dornbusch, $.M., and Scott, W.R., (1975) Evaluation and the Exercise of Authority, San Francisco, Jossey-Bass.

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(ii) the summative function where evaluation is used for accountability, certification or selection; (iii) the psychological or socio-political function where the evaluation is used for increasing awareness of special activities, motivate desired behaviour in participants or for promoting public relations; (iv) the administrative function where evaluation is used for exercising authority over subordinates in the organisation. For the JE discourse, the psychological or socio-political functions or the administrative function will not serve any purpose and therefore cannot be the aim of any evaluative effort. The evaluation exercise for the JE discourse as is being developed in different parts of the world does not foresee these two purposes. Evaluation literature also does not envisage any such role for the evaluation for education projects. Therefore,

for the JE discourse,

the evaluation

has to cater to its

formative and summative functions in order to measure the impact of the training program on enhancing professional competencies of the judiciary and its consequent effects on the justice administration. 3.

What are the objects of evaluation?

The object of educational evaluation includes variables whose quality in the training intervention is assessed in terms of behavioural change it produces by enhancing the professional competence and improving the overall organisational performance. This variable can be

teachers-trainers, curriculum, administration for the training, system of

training, instructional practice and so on.3” Further, these variables can be divided into two categories: (i) program implementation objectives and (ii) participant outcome objectives.

Program implementation objectives describe — what you plan to do in your program, how you plan to do it, and who you want to reach. This will include assessment of kind of training, the characteristics of the participant population, the number of people to reach, the staffing

37.

Both Stake (Robert E. Stake, “An Evolutionary View of Educational Improvement”, in Ernest R. (ed) New Directions in Educational Evaluatio n,

Supra n.4. ‘Education is a presumptuous profession. Often a practitioner never learns a task’s ending. That needed feeling of accomplishment and completion is often lacking. A student’s literacy is a life-long reaching. A faculty introduces a new curriculum but never finds out how far beyond nominal acceptance the teaching is changed. A teacher’s time tested exercises becomes of doubtful value, especially with changing ethnicitie s in the classroom.’ [p. 91]) and Houle (Houle CO, Continuing Learning in the Profession, San Francisco: Jossey-Bass, 1980, 237) favour educational evaluation to conduct inquiry about instructional practice so as to bring improvement in it, to assess the quality of training intervent ion in terms of resultant behavioural change, through enhanced professional competence, and Its systemic effects on organisational performance,

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arrangements and staff training, and the strategies for recruiting participants. Participant outcome objectives describe — what you expect to happen to your participants as a result of your program, how your program will change participants’ knowledge, attitudes, behaviours, or awareness. It includes assessment of participants, their individual performance, group performance and institutional performance. Evaluating program implementation objectives is often referred to as a process evaluation and evaluating participant outcome objectives participants is often called an outcome evaluation. Process evaluation helps us to know which characteristics of or events within the training program produce a positive or negative contribution to the growth of the competencies aimed at in the program and what relationships can be found between the trainees’ learning styles and the development of those competencies. For instance, if after simulation exercise concluded at the end of the training program, we get result that the appreciation for a cause has fallen much below than what it was before the program began, then there has to be a problem with the structure of the program, materials, experts called up, method of delivery, etc. From the outcome evaluation, we can measure the impact that an individual programme has made in achieving the overall objective. This may help the organisation to review and change the current mix of programmes to achieve greater impact with fewer resources. As with outcomes, it may take years before full impact becomes visible, but once the beneficiary starts using the outputs, leading to certain effects, the first traces of impact should become visible. At the impact level, cause-effect relations are usually not clear or direct as a number of other factors and actors may have an influence. In practice, it therefore may not make sense to try and evaluate the impact of one individual project on, say, the quality of life of poor people. Nevertheless, to foresee impact is of great importance to an organisation’s strategy and thinking. An organisation, having learned from past experiences, may be able to estimate whether its programmes have at least contributed to impact. Very few organisations have effective impact monitoring systems, although they may have some informal information about this. There is often a tendency to avoid impact measurement, because it is seen as a long term and complex affairs, or because (as is often the case) the

desired impact is overambitious.*® far

Now for the JE discourse it has been found from the literature SO (in-house and published) that most of the institutions and

individuals are engaged in the process evaluation and there is scarcity

38.

De Coninch et al. n. 7 at 18-19.

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Discourse on Judicial Education

of outcome evaluation. Reason being — the evaluation will necessarily involve assessing the impact of the education discourse on trainees — bringing them under the scanner. This will require assessing the performance of judges to know the impact that the discourse is having on them. This assessment is not easy in view of the constitutional position of judges in most of the common law countries. Judges in these countries attach prime importance to their judicial independence and strongly resent anything that they perceive as a threat to their independence.” Most often they equate their performance evaluation by outsiders as encroachment on their independence. Therefore, evaluation to analyse the level of professionalism achieved through the medium of the discourse becomes a difficult terrain to walk through, facing rough weather most of the time. This is why we have very limited literature that studies judicial performance, before and after the training efforts.

Notwithstanding the above difficulty, the evaluation will not be complete in itself if it excludes outcome evaluation. Without outcome evaluation, process evaluation in itself leads to no results because only with reference to outcome evaluation we can analyse success of variables involved in the process evaluations or their shortcomings. In fact, the outcome evaluation will gauge the level of professional competence enhanced in the training intervention by different variables of the process evaluation. Therefore indulging in only process evaluation leaving outcome evaluation untouched is half way attempt at the evaluation from which no results can be drawn and no purpose solved. This kind of half way attempt will run the risk of losing credibility and accountability. According to The Program Manager’s Guide to Evaluation 2003, a comprehensive evaluation must incorporate both—program implementation objectives and participant outcome objectives. This is because if you do not have information about participant outcomes, you will not know whether your program is worthwhile. Similarly, you may be successful in changing participants’ knowledge, attitudes, or behaviors: but if you do not have information about your program’s implementation, you will be unable to identify the parts of your program that contribute to these changes.

According to Armytage judicial educator must distinguish between these two and undertake both to provide means of measuring and

39.

As Malleson (1999) points out, there is overwhelming hostilit y within the judiciary to the idea of performance review. They tend to counter that it will jeopardise their independence. See Kate Malleson, (1999), The New Judiciary: The effects of Expansion and Activism, Aldersh ot, Ashgate/ Dartmouth.

Chap. 5—Evaluating the Judicial Education discourse

197

demonstrating value for both learner and stakeholder.4? According to him, such integration serves a dual research purpose: first, to cover the field of data to be collected, providing alternative means for respondents to supply that data in the most meaningful way; and, second, to provide a means to cross-validate and to interpret data supplied. According to him, a simplest way of doing this would be to ask the respondent trainees to rate responses on a quantitative scale, and they are then asked to describe and comment in their own words on their reasons for these preferences. This qualitative data can be useful in explaining, amplifying and qualifying the quantitative data, and vice versa. 4.

What kind of information should be collected regarding each object?

Rigorous evaluation of an education system requires many inputs like: wider knowledge base of information, collection of data beyond immediate capacity of any one institution, resources and commitment, independence from the state bureaucracy, funding continuity, a critical mass of analysts that would include multi-disciplinary approach, a feedback mechanism to ensure that the data analysed makes its way into the policy formulation process. Therefore, there is need to collect wide range of information regarding the evaluated object without any narrow limitations like outcomes and results guiding its ways and

methods.‘

Guba and Lincoln*? divides the information needed by the evaluator into five kinds: (a) descriptive information regarding the evaluation object, its setting, and its surrounding conditions; (b) information responsive to concerns of relevant audiences; (c) information about relevant issues; (d) information about values; and (e) information about standards relevant to worth and merit of assessments.

Psacharopoulos” clarifies that information is dependent upon the nature of evaluation. He opines that educational evaluation can be descriptive /anecdotal in nature, or, it can be more analytical /statistical. When descriptive, evaluation is done with the help of qualitative methods, using words or narration, opinion surveys, vague or no hypothesis formulations and is more concerned with isms. When analytical,

40. 41. 42. 43.

44.

N.9at 191. Id. at 200. Nevo, n. 29 at 19. Guba,

E.G., and Lincoln, Y.S. (1981) Effective Evaluation, San Francisco,

Jossey-Bass relied upon by David Nevo, “The Conceptualisation of Educational Evaluation: An Analytical Review of the Literature”, in Ernest R. House (eds.) New Directions in Educational Evaluation, n. 5 at 19. George Psacharopoulos, n. 27 at 266.

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Discourse on Judicial Education

evaluation is done with the help of quantitative methods, using numbers, date, fact surveys, testing specific hypothesis and is concerned more with substance.

Armytage includes in the range of information needed for evaluating the JE discourse — experiment, correlation, surveys, client assess-

ment, systematic expert judgment, clinical case studies, and observation.*> Data can be gathered from a variety of sources including interviews, logs, observations, ratings, records, clinical exams, tests, expert

opinion and hearsay.*°

Whole information to be collected for the evaluation therefore may be categorised at two levels. One for conducting quantitative analysis, we will need figures and therefore statistics will play a major role. Second for conducting qualitative analysis, we need to form value judgments on the basis of sgme indicators — which can be the Rule of law, or the human rights, or the constitutionalism. Qualitative testing has to be done on these parameters. From the nature of constituent variables involved, we can say that the process evaluation will more often require quantitative analysis and

therefore we will need statistical information. On the other hand, the

outcome evaluation will require qualitative analysis and therefore it will be less about statistics and more about methods used. It will need reasoning faculty. 5.

What criteria to be used to judge the merit and worth of an evaluation object?

The

classic

formulation

of evaluation

criteria

Kirkpatrick, who organised four foci for evaluation —

was

made

by

reaction, learn-

ing, behaviour and results.47 Cervero*8 developed a number of cate-

gories of evaluation, learner satisfaction, learner knowledge, skills and

attitudes, application of the learning from the program, and the impact of application and learning, which he described as “the holy grail” of evaluators. According to Stewart, out of these whole range of criteria — behaviour and results offer the best indicators because they consider whether conditions have changed and whether such change is an improvement or a deterioration of performance when set against the

objectives.49

eee

45. 46. 47.

48. 49.

See also Anderson SB and Ball S. The Profession and Practice of Program Evaluation, San Francisco: Jossey-Bass, 1978. Armytage, n. 9 at 198. D.L. Kirkpatrick, Evaluation Training Programs, Madison, Wis.: American Society of Training and Development, 1975, Cervero RM, Effective Continuing Education for Professionals, San Francisco: Jossey-Bass, 1988, 144. Stewart, n. 1.

Chap. 5—Evaluating the Judicial Education discourse 6.

199

Who should be served by evaluation?

For educational projects, historically, evaluation has served the policy makers who viewed the evaluation as a definitive procedure for determining whether a particular program is worth its salt, whether it should be continued or scrapped, whether it should be funded further

with tax payer’s money or not.°?

For the JE discourse in particular, evaluation can go long way in improving the state of affairs in the JE discourse. It could clarify assumptions in favour of success of a training program. Therefore evaluation will first of all serve the needs of judicial trainers who through evaluation results will be in position to develop an appropriate model to succeed in terms of learning by the trainee judges and in terms of transfer of such learning by the judges to their judicial work. Secondly, evaluation serves the need of executive which invests in setting up institutions, resources, and other paraphernalia for the JE discourse as evaluation will help them to know whether this expenditure is justified? Whether it is raising professional competencies and skills in judges? Whether judges are able to transfer their learning in the training to their judging job? Also, scientific evaluation will help in justifying to the political leadership and taxpayers on the costs involved in the training. 7.

What is the process of doing an evaluation?

There are some standard ideas about the whole process of evaluation like, it should describe, understand and judge the worth of activities and experience which actually occur within the instructional events of a program (process), and of its outcomes (impact) on participant; it should assess the relevance, effectiveness (significance)

and impact of an intervention, usually in the light of its objectives.>! There are some who opine that evaluation should attempt to determine whether goals of the program that were set up, have been achieved

(Provus>2 and Tyler53) while others (Alkin°4, Cronbach*> and Stuffle-

50.

W. James Popham, Educational Evaluation, Second Ed., Prentice Hall, New Jersey, 1988 at p. 9.

51.

T. Cook and C. Reichardt, Qualitative and Quantitative Methods in Evaluation Research 1979 Beverley Hills, Calif: Sage at 27. M.M. Provus, Discrepancy Evaluation 1971, Berkeley, Calif., McCutchan. Tyler RW. (1950) Basic Principles of Curriculum and Instruction, Chicago, III., University of Chicago Press. MC. Alkin, “Evaluation theory development” 1969 Evaluation Comment, 2-7. Wizh

52. 53. 54.

55,

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Discourse on Judicial Education

beam*°) who consider evaluation to be non-judgmental by collecting information regarding any activity to serve decision making or other purposes.

According to Kemmis?’ describing the programme, formulating issues regarded as significant by those associated with it, collecting judgments and portraying these in ways which are accessible to evaluation audiences —are activities though which the evaluator can contribute to the critical debate about a programme and improve the quality of the critique. According to Groteleuschen the process will involve range of different applications like the process of co-relating the congruence of learner outcomes and program objectives; comparing performance data with commonly accepted standards; comparing actual effects of a program with a variety of demonstrated needs; and judging a program

critically using expert knowledge.>®

Gardner includes in evaluation — educational measurement using a quantitative index of performance; a process of professional judgment with experts giving considered assessment of quality; a comparison of performance data with clearly specified objectives which identifies discrepancies by comparing actual performance to standards or benchmarks of performance; a process of identifying or collecting information to assist decision-makers; and as a goal free process, noting

actual program effects.59

Most of them agree that evaluation should include a certain amount of interaction between evaluators and their audiences at the outset of the evaluation to identify evaluation needs, and at its conclusion to communicate its findings. According to Kemmis® evaluation can subject the views of program audiences — supporters, detractors and those who have not yet a basis for making judgment about it — to critical scrutiny so a ‘conversation’ between the perspectives of those associated with it can be created and maintained. Evaluation therefore cannot be limited to data collection and analysis.9!

a

56.

57. 58.

59.

60. 61.

D.L. Stufflebeam, ‘Evaluation as enlightenment for decision-makin g’ in Beatty, W.H. (Ed.) Improving Educational Assessment and an Inventory for Measures of Affective Behaviour, (1969) Washington, DC, National Education Association. N. 20 at 129. A.D.

Groteleuschen,

“Program

Developing, Administering and Francisco: Joossey-Bass, 75-123 at D.E. Gardner, “Five Evaluation Making in Higher Education” 1977 N. 20 at 120. Nevo, n. 29 at 22.

Evaluation”,

in

A.B.

Knox

AB

(Eds.)

Evaluating Adult Education 1989 San 76. Frameworks: Implications for DecisionJournal of Higher Education, 571-593,

Chap. 5—Evaluating the Judicial Education discourse

201

According to Nevo the process of doing an evaluation might differ according to the theoretical perception guiding the evaluation. A theoretical approach perceiving evaluation as an activity intended to determine whether goals have been achieved might recommend the following evaluation process: (a) stating goals in behavioural terms: (b) developing measurement instruments; (c) collecting data; (d) inter-

preting findings; and (e) making recommendations.®2

In Stake’s Countenance Model, the evaluation process includes (a) describing a program; (b) reporting the description to relevant audiences; (c) obtaining and analysing their judgments; and (d) reporting the analysed judgments back to the audiences. Provus proposed a five step evaluation process including (a) clarification of the program design; (b) assessing the implementation of the program; (Cc) assessing its in-term results; (d) assessing its long term results; and (e) assessing its costs and benefits.

The Phi Delta Kappa Study Committee on evaluation presented a three step evaluation process that included: (a) delineating information requirements through interaction with the decision-making audiences; (b) obtaining the needed information through formal data collection and analysis procedures; and (c) providing the information to decision-

makers in a communicable format.® Scriven provides that according to the naive Social Science model in order to evaluate a program, you (i) identify the goals of the program; (ii) convert them into behavioural objectives; (ili) identify tests or construct them that will measure these objectives; (iv) run these tests on the target population; (v) crunch the data; (vi) report whether or not or to what degree the goals have been met. He classifies simpler evaluations as a generalisation of measurement which involve an immensely important pair of decisions as to what performances are

relevant and how they should be weighed. From above perspectives, we can propose that evaluation of the JE discourse would include following process: taking note of the goals or objectives that are set behind any training program, plans developed to achieve those goals or objectives, judging actual delivery of program to learn whether those goals or objectives have been met by various ways and then conveying the results to decision makers whether program achieved for what it was set up. Evaluation can go further to analyse faults with goals or objectives, whether they are realistic and pragmatic

62. 63. 64.

Nevo, n. 29 at 21. Id. at 22. M. Scriven, “Evaluation as a Paradigm for Educational

Research”, in E.R.

House (eds. ) New Directions in Educational Evaluation, n. 5, 53-67 at 61-62.

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Discourse on Judicial Education

in view of ground realities that are faced in the program delivery or any other problem. 8.

What method of inquiry should be used in evaluation?

Evaluation design is a practical matter. An evaluation must be appropriate to the programme setting, responsive to programme issues, and relevant to the programme community and interested observers. Appropriate evaluations will take into account the social and contextual conditions under which educational programmes operate and include a meta-evaluation component: the evaluation will thus include an element of self-reflection which allows those involved with the evaluation and the programme to monitor its effects on programme development and evolution and on the social life of the programme as a

community.®>

The National Institute of Education in US developed the stakeholder approach to evaluation which was systematically developed over the years by (i) sensitising evaluators to local needs; (ii) funding separate evaluations for different user groups; (ili) undertaking a

systematic canvass of each group’s concerns and criteria for success.

The stakeholder approach to evaluation attempted to build on much of this experience. It took the several pieces involvement of people holding different positions in the social structure of programs, attentio n to their interest and utilities, representation of their priorities, emphas is on feedback and dissemination — and tried to shape them into a coherent package. This approach to evaluation promised (i) appreciation that each program affects many groups, which have divergent and even incompatible concerns; (ii) legitimization of diverse interest at play in the program world; and (ili) recognition of multiple perspectives that bring to judgment and understanding.®’ According to Weiss, this approach emphasises quick response to emerging questions and quick feedback to aid in program design and redesign. However there are some unresolved issues associated with the stakeholder approach like definition of stakeholder and second whether the demands made by various stakeholders can be met by traditional evaluative

procedure.°8

nn On SNR MSI, Sus nia 65.

Kemmis, n. 20 at 139.

66.

Carol H. Weiss, “The Stakeholder Appr oach to Evaluation: Origins and Promise”, pp. 145-157, in Ernest R. House (eds.) New Directions in Educational Evaluation n. 5, at 148. Id. at 153-154. Id. at 151-153.

67. 68.

Chap. 5—Evaluating the Judicial Education discourse

203

Ermest R. House®? developed metaphor approach in which he explains how metaphors are helpful in constructing new meanings and conceptualising and structuring some concepts around us. Metaphors go far than mere serving ornamental purposes and help us in structuring our novel experiences in terms of more familiar terms and expressing cultural notions in physical terms. They relate things to one another and through these relationships, we can see A as B and this helps us in improving our ability to diagnose and prescribe. House then provides utility of metaphors for conceptualising what all evaluation is all about. He analyses use of metaphors such as industrial production, machines, conduits, targets, and containers for programs. According to him these metaphors provide us some of the basic concepts that instruct us how to proceed. If one sees therefore programs to be evaluated as industrial production, then one will evaluate those programs in a certain fashion. Once one is committed to a particular metaphor, certain entailments arise for both thought and action.

According to House, the evaluation of the program corresponds to the perceived nature of programs. Therefore when programs as metaphorically referred to as industrial production or machines or conduits — program elements are defined in terms of time, cost, procedures, or a product. Evaluation therefore is an assessment of whether the program conforms to the design and reaches the target. Sometimes the emphasis is on design specifications and the parts of the program; sometimes it is on the inputs and outputs, and other times the emphasis is placed on outcomes.

The concept of industrial production is not the only way in which program can be conceived, but it is one way of doing so. Of course,

such an overall metaphor entails certain types of evaluations.’° In

conceiving of programs as assembly lines, program elements can be defined in terms of time, costs, procedures and products. In such a metaphoric framework, efficiency quite naturally looms large as a criterion for successful programs. Programs are therefore expected to be efficient just as industrial production is expected to be. But when the metaphor of target or goal is used in thinking about programs, the evaluator is left with measuring the impact of the program on the target. The target metaphor is used to discuss the ultimate effects of the program, and the industrial production metaphor is used in discussing

the monitoring of the program itself.”!

70.

Ernest R. House, “How We Think About Evaluation” in E.R. House (Ed.) Philosophy of Evaluation : New Directions for Program Evaluation, no. 19. San Francisco: Jossey-Bass, September 1983. House, n. 5 at 36.

71.

Id. at 38.

69.

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Discourse on Judicial Education

Both programs and their outcomes can be quantified and measured via their metaphorical conversion into objects and substances. Therefore, programs normally must be converted into other categories such as the time, costs, procedures before the measurement becomes possible. In contrast, outcomes lend themselves more easily to direct measurement. Also, if outcomes are quantifiable, we can define them as

members of a particular statistical distribution, such as normal curve. We might infer from the degree of overlap between the pre and post measured distributions the likelihood of the post-measure coming from a different statistical population. Hence, we begin employing statistical models, in which one treats the outcome scores as member of particular

population./2

Psacharopoulos’> advocates the use of comparative approach to evaluate training effectiveness. According to him, comparative approach can help us to understand the scene in other countries and by knowing what is happening around the world, one can evaluate one’s own system for its shortcomings and therefore pave the way for its improvement. He is critical of the descriptive comparisons undertaken to know which model is working best and stresses on using analytical and statistical comparative approach to evaluate effectiveness of education models as it is scientific method that involves the use of maximum variables with respect to which education and training can be mapped. He acknowledges that this comparative approach may bring about different results for different systems, but then through these different problems there is a greater scope for learning.

Rainaye’* made use of the comparative approach to evaluate the training policies in two prestigious commercial banks of India, namely, the SBI and the J&K Bank Ltd. Rainaye in all distributed 800 questionnaires to management and cashier clerks from both type of banks. Some retained or returned blank questionnaire, whereas some returned partially filled questionnaires. Author collected the perceptions of both cashier clerks and managements regarding different aspects of training outlined in 23 point questionnaire. The assumption was that since training ideally serves the purposes of both the cashier clerks and the management, they are in sound position to estimate their training system. Data pertaining to the banks, their personnel or HRD policies, which has direct bearing on performance of their employees, were collected by a series of in-depth discussions with the employees of their personnel or HRD departments as author could not have direct access

72. FS 74,

House, n. 5 at 45, OUNP LV. Rainaye, Riyaz. “Training effectiveness in public sector and private sector commercial banks: A micro level comparativ e study.” Management and Change, 2004, Vol. 8, No. 1&2: 49-68.

Chap. 5—Evaluating the Judicial Education discourse

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to these policies. The 23-item questionnaire was administered to collect primary data. Various facets of training including — management’s attitude towards training, induction training, training needs, employees’ attitude towards training, training inputs, quality of training programs and transfer of training to the job were focused on to evaluate the impact of training provided by these two different sets of banks. From her comparative framework for which she interviewed both cashier clerks and management side for both banks by circulating 23 item questionnaire to 50 branches of each bank, restricting sample size to 200 cashier clerks and 100 managerial personnel from each type of bank, she was able to deduce that training at both types of banks needed improvement and more improvement was needed for the J&K Banks training whose employees were far less satisfied with the training than their counterparts at the SBI banks. J&K Bank employees perceived lack of proper design and transparency in their training policy. To assess the effectiveness of induction training, respondents were asked to rate a total of 8 items, on a 5-point scale. These items relate to various facets of the induction training, i.e., its planning, importance, duration, usefulness, evaluation, creating awareness about the norms and values of their respective banks, opportunity to learn comprehensively about their banks, involvement of senior officers during induction training. The clerical respondents of the banks opined that induction training is not of sufficient duration, is seldom evaluated, and seniors hardly interested in interacting with newly inducted employees.

From the work of Rainaye we get that both types of banks for their training activities prepare service sheets of employees [employee training inventory] to know the type of training employees have already undergone. There is need for judicial academies in India or elsewhere, and especially for the common law countries, to emulate this practice and keep inventory of judicial officers indicating the type of training

they have undergone, duration, subject of training, etc.’>

Comparative evaluation by Rainaye revealed that for both types of banks, those sponsored for training take it very seriously, but, they hardly go with a clear understanding of the knowledge and skills they

are expected to acquire through training.’° The comparative analysis

also revealed that J&K banks were training more on technical and managerial competencies and ignoring human skills. It further revealed that for the SBI banks, even though the management claims that it

provides conducive climate to implement new ideas and methods acquired by juniors through training, clerical employees refute this 75. 76.

Rainaye, n. 75 Ibid.

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Discourse on Judicial Education

claim. But as far as J&K banks are concerned both management and clerical staff made it clear that transfer of learning to the job is hardly made possible by the managers.

9.

Who is competent authority to undertake evaluation?

Culture is clearly an important factor here. Some organisations have a culture that all training should be provided externally or by external consultants, whereas others have a very xenophobic approach to training and only use internal trainers. The JE discourse too is trapped in these cultural prejudices all over the world. Some are open to external resources whereas others are absolutely closed to the idea of using external consultants. Some believe in having the right mix of both for training programs. Evaluation depending upon this factor is either undertaken by internal machinery or external experts.

According to Nevo, to be a competent and trustworthy evaluator one needs to have a combination of a wide variety of characteristics. These include technical competence in the area of measurement and research methods, understanding the social context and the substance of

the

evaluation

object,

human

relation

skills,

personal

integrity,

and objectivity, as well as characteristics related to organisational authority and responsibility. Because it is difficult to find one person possessing all these qualifications, it often becomes necessary to have a team conduct an evaluation or to choose the person with the most

appropriate characteristics for a specific evaluation task.77 However,

both House and Armytage do not favour this task to be entrusted to external evaluators or consultancies. Both favour from external evaluators to evaluators inside the organisational structures. This according to House has profound implications. Evaluators are located inside internal administrative structures and governed by the authority

relationships

inside their organisations.’’

For Armytage,

external

accountability is not a favourable option as the external pressures can dictate inflexible and inappropriate directions in the educational process.’? Even for Kemmis evaluation is interactive and reactive; it should not be construed as ‘objective’ and outside the whole system of social relationships which constitute curriculum development

programmes in practice.8°

ia re d oaeeirs

ight yep.

77. 78.

Nevo, n. 29 at 23. House, n. 5 at 9.

79.

Armytage, n. 9 at 189. See also, Abramson T, Tittle C and Cohen L (Eds), Handbook of Vocational Education Evaluation , Beverley Hills: Sage, 1979, 573-4.

80.

Kemmis, n. 20 at 136.

Chap. 5—Evaluating the Judicial Education discourse

207

10. How to judge merit/worth of evaluation?

Several attempts have been made in recent years to develop standards for evaluations of educational programs. These standards are summarised by Nevo into four major groups: (a) utility standards to ensure that evaluation serves practical information needs; (b) feasibility standards to ensure that evaluation is realistic and prudent; (c) propriety standards to ensure that evaluation is conducted legally and ethically; and (d) accuracy standards to ensure that evaluation reveals and

conveys technically adequate information.®!

Cronbach and his associates®* clearly reject the judgmental nature of evaluation for that may as pointed out by Nevo has high potential of creating anxiety among potential program managers who will face that their management of the program can come under criticism and be judges as to its rightness and wrongness. Nevo therefore suggests for developing a positive attitude towards evaluation that can reflect on the constructive functions of evaluation in the various domains of

education.*3

11.

When should be evaluation undertaken?

Evaluation may be done frequently rather than just towards the end of the program, so that the perspectives of participants and audiences can be engaged more or less continually rather than in a single confrontation of perspectives. The recurring ‘reports’ of the evaluator can be regarded as a conversation which develops the points of view of those it engages. In this conversational process, interim reports should be less formal and regarded as ephemeral (rather than highly authoritative) by participants and audiences. A final report should reflect the evolution or history of the critical debate in and around the

programme.®4 The question whether an evaluation is formative or summative determines the time at which the evaluation is undertaken which in turn is relevant to the purpose of the exercise. Formative evaluations are undertaken during the course of the education process, usually for the purpose of modifying current proceedings, as required. Summative evaluations are undertaken at the end of the process to draw conclusions on the program at large, usually for the purpose of refining or developing future programs.®>

81. 82. 83. 84.

85.

Nevo, n. 29 at 24. Cronbach, Ambron, Dornbusch, Hess, et al., n. 35. Nevo, n. 29. Kemmis, n. 20 at 130. Armytage, n. 9 at 190.

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Discourse on Judicial Education

According to Reichardt and Rindskopf®® need a good deal of planning and pilot work useful data. Therefore, the first years of a new reserved for conducting formative evaluations summative evaluation.

large-scale evaluations if they are to provide project should often be and for planning the

IV. Challenges to be faced in designing of evaluation to measure the impact of judicial trainings

Evaluation of the JE discourse would involve making of an assessment of how the discourse improved the judge trainee’s knowledge,

skills, attitudes, values and overall effectiveness and competence to do

the judicial work. Given the complex and inherently subjective nature of the judicial work, no single performance indicator can accurately measure these changes. Instead, evaluation would entail a range of indicators to measure both the outputs and outcomes of the discourse,

relying on both objective and subjective indicators.87

No single methodology can be suggested as a model to be followed for evaluation of the JE discourse. Different institutions and trainers have devised their own standards to evaluate the impact of the JE discourse. A unique experimental design was developed by Bond and Lemon®® to evaluate the effects of training on lay magistrates in England. It investigated how those appointed as magistrates change in their sentencing policy and attitudes towards defendants as a result of the experience gained during the first year on the bench and as a result of the mandatory training program. To do so, a group of newly appointed magistrates was randomly assigned to defer their training for one year and compared to those who completed their training during the first year in the usual way. In addition, the use of a group of nonmagistrates as controls enabled a quasi-experimental evaluat ion of the effects of experience on the bench. Magistrates and controls completed a questionnaire in which they sentenced a number of cases at the time of magistrates’ appointment to the bench and again one year later. The result showed that magistrates as a result of their experie nce became more committed to the aims of deterrence and punishm ent, became more pessimistic about the prospects of reforming defendants, regarded the severe sentences as more appropriate, and took a less sympathetic a a eS

86.

87.

88.

ae en

CES

Charles S. Educational

Reichardt and David M. Rindskopf, ‘Randomisation and Evaluation: The ESAA Evaluation’, 3(1) 1978 Journal of Educational Statistics 61-68 at 67.

Leigh Toomey, Measuring the Impact of Judicial Training, INPROL Consolidated Response (07-005), July 14, 2007. The full text of the report can be downloaded from http://www. inprol.org/node/19 9 1. Rod A. Bond and Nigel F. Lemon, ‘Trai ning, Experience and Magistrates’ Sentencing Philosophies’, Law and Huma n Bahaviour, Vol. 5, Nos. 2/3,

1981.

Chap. 5—Evaluating the Judicial Education discourse view of the defendants. ameliorate these effects.

The training program,

however,

209 tended to

Stewartnotes that in the US to measure the impact of the gender training, a questionnaires was administered to lawyers and court staff to assess whether they consider that courtroom practice has improved. Judges were interviewed to elicit changes in approaches, and judge-

ments were monitored for evidence of changed attitudes.8? Armytage postulates the use of a Judicial Systemic Performance model which provides educators with the means to assess and demonstrate the attainment of professional competence without infringing judicial independence. This model uses already developed criteria which are already available within the judicial management and administration system (trial disposal rate, reversal rate, complaint rate)

without infringing judicial independence.” These criteria can include among other possible indicators: —

Trial disposal rates and through put times (which measure the passage of time for particular proceedings and thereby the efficiency of judicial service)

—

Reversal rates and appeal outcomes (which measure incident of judicial mistake at the level of the trial bench;

—

Complaint rates (which measure

an

an incident of perceived

satisfaction by users of the justice system).?! Above suggestions and experiences indicate that there is lot of flexibility attached to the methodology of evaluation process and no hard and fast norms govern this area. Each institutions therefore has to make pragmatic choice regarding methodology it will employ to evaluate and such choice will be controlled by constraints of time, cost and expertise available to it. Thomas who studied different jurisdictional approaches in training evaluation provides us that the effectiveness of training in achieving learning, attitudinal and behavioural change and improved professional conduct and performance should be measured by a combination of — pre, post and year end focus groups/surveys; participant satisfaction and self-evaluation interviews; assessment of court data and records; personal interviews with

designated officials; independent expert appraisal.”

89. 90. 91. 92.

N. 1. N.9 at 213. Id. at 212-213. Dr. Cheryl Thomas, Review of Judicial Training and Education in other of University Project between Appointment Judicial jurisdictions. Birmingham

School of Law and JSB, London : Judicial Studies Board, UK,

May 2006 at 42.

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Discourse on Judicial Education

However, every JE institution depending upon its social and cultural contexts has to develop its own suitable framework for evaluating the impact of trainings administered to judges. Before developing the framework, both trainers and evaluators must bear in mind short-

comings and biases that affect evaluation work. The most important shortcomings of evaluations are: narrow, unrealistic, irrelevant, unfair,

and unused. These are explained by Weiss”? as follows: (1) Narrow — because evaluators too often select for attention the issues that are easy to study with available socialscientific

tools, not the issues

that are

important.

These

narrowly selected issues may have nothing to do with the needs of people;

(ii) Unrealistic — because evaluators choose outcome measures that are difficult to budge. For instance, if the program is a relatively modest effort, it is unlikely that changes will be of sufficient size to move the indicators into the zone of Statistical significance. To expect a reading program that meets two hours a week to affect reading scores significantly or to expect a counselling program for delinquents to prevent all further delinquent behaviour is to impose standards of success that are unreasonable. By the choice of such measures, the evaluator almost dooms the program to a judgment of failure. (iii) Irrelevant — because much of the data collected and analysed by evaluators is unresponsive to the real needs of people involved in the program. (iv) Unfair — because evaluations rarely consider the needs and wants of less powerful groups such as program recipients. (v) Unused — because evaluation reports are hardly used, they seldom influence decisions about the course of the program. The evaluator conducts the study, completes the report, and leaves. Program managers take comfort from the findin gs that are positive and bury or forget the findings that suggest a need for major reform. According to De Coninch et al?4, evaluation can (1) evoke fears, real or imagined: the fear of having one’s mista kes exposed, of seeing one’s authority undermined, of having to spend large resources in time and money, of being all too complicated; (ii) it can be used for proving that what is being done is right way of doing which is outward looking function and another can be for improving which is more inward SEE 2D. 94.

ee

nC

LE een

TET

SNe, De Coninch, Chaturvedi, Haagsma, et. al, n. 7 at. 36 and 37.

Chap. 5—Evaluating the Judicial Education discourse

211

looking function undertaken to learn about what is happening is right or wrong. According to Scriven, evaluation research can be a far more complex business than hypothesis testing, which is only part of some evaluations. Many evaluations involve no traditional experimental design and no quantitative analysis at all; but even those that do, involve many more dimensions such as cost and ethics. Yet it is completely wrong to conclude from this design complexity that evaluation is of its nature epistemologically or inferentially complex.?° Above shortcomings are applicable to the evaluation of the JE discourse as well. Armytage critiques the prevailing practice of evaluating the JE discourse which he finds to be deficient, inappropriate and of limited utility. These deficiencies arise because evaluation practices are characterised by the selection of predominantly formative, reactionbased assessment methodologies; a concentration on educational process rather than outcomes; an almost universal tendency to rely solely on subjective, qualitative data rather than to integrate objective quantitative data; and a general avoidance of any meaningful measure-

ment of results in terms of enhanced judicial performance.”® For this

state of affairs he blames (1) limited resources in terms of time, money, expertise; (ii) qualified institutional support, goal ambiguity, multiplicity of purpose and fear of results; (111) technical constraints such as complexity, research design problems, lack of data; (iv) absence of consensus amongst judiciary in the common law world over behavioural performance indicators on which they can be judges; (v)

doctrine of judicial independence.?’ Staats, Bowler and Hiskey?® blame it on the complexity of the concept of judicial performance itself which is multi-dimensional and includes a wide array of elements, due to which accumulating data sufficient to measure judicial performance across all its dimensions becomes difficult. At least five components of judicial performance — accountability, independence, efficiency, effectiveness and accessibility are recognised in almost all the scholarly works. Evaluation of the judicial education discourse will include assessment of educational impact on these five components.

Further there are practical difficulties in linking the evidence in support of change in performance to training/educational interventions.

95. 96. 97. 98.

Scriven, n. 64 at 59. Armytage, n. 9 at 184.

Id. at 200-201. Joseph L. Staats, Shaun Bowler, Jonathan T. Hiskey, “Measuring Judicial Performance in Latin Society. 77-106.

America”

47(4) 2005

Latin American

Politics and

912

Discourse on Judicial Education

Quantitative indicators in such measurement are not readily available.?” Pearson notes that it is extremely difficult to show a direct cause and effect relationship between the stimulus of a single judicial education activity and the response of a specific change in behaviour attributable

solely to that activity.!0° Further judges are reluctant to be assessed for their performance through any means other than the formal appellate

process. !®! Conclusion

Evaluation of the JE discourse in India assumes high importance with more than 20 state judicial academies and 1 national level

academy sponsored by the government!” to disseminate this discourse, making judicial training now a fact of professional life for the member of the judiciary throughout India. Taxpayers who are sharing the financial burden for running these academies have every right to know the benefits accrued to the society through this kind of investment. They have right to know the accomplishments of these academies in terms of reduction of delay or improved court performance or increased trust in courts or improved decision making and so on. However, to conduct evaluation effective knowledge management system has to be developed that provides baseline data on every aspect related to courts and that monitors on regular intervals records of courts and judges to know the changes produced in the justice system. Hitherto such system is talked about in some circles and some breakthrough is achieved in the state of Maharashtra where the Bombay High Court has developed its own knowledge management system with the help of the NIC. But till date the state judicial academy has not effectively used it for the evaluation of its own education discourse for demonstrating its benefits or shortcomings. The only evaluation if at all is done on the performance of expert faculty members who were involved in the particular training activity, which consists mostly of eminent academics, judges, advocates, civil society representatives.

To learn about the impact of training on judicial work done, interview could be taken for sample of judges, which after two questions on attitudes towards continuous training, can start with the following

question:

eee

99. 100.

101. 102.

See knox n. 58 and Armytage, n. 9 at 196-197. Pearson T, Adult Education Perspectives for Judicial Educato rs, JEAEP (SJ),

1992, 8.1-8.13, at 8.8. Armytage, n. 9 at 194, In the US, in the year 2006, there were 65 state and nationa l institutes enaged actively in the dissemination of the judicial education discourse. Source: TRENDS, newsletter of the National Centre for State Courts , USA,

Chap. 5—Evaluating the Judicial Education discourse

213

“there are various possibilities for work related training. Thinking about the past three years, for your own job related education, have you read books and journals, participated in conferences or work related courses?”

Those who answered yes, could be questioned about the duration, goal, content, cost and benefits that accrued to them due to this training. It is likely that trainee judges may have forgotten about some training episodes and their impact on them which occurred for them long time ago. Therefore it is always a good practice to know the impact of training held in last three years for them, preceding to the interview date. One important question that needs to be asked from trainee judges is whether training undergone by them helped them to do their current job better? And what private and personal benefits were accrued to them as a result of training? For instance, job promotion or wage rise or their being utilised as a resource person for future training, efc.

CHAPTER SIX

GLOBALIZATION OF THE JUDICIAL EDUCATION DISCOURSE

Introduction

This chapter deals with the globalization phenomenon and how it has effected changes in the judicial profession throughout the world. It discusses how supra-national judicial system came into being, how access to the supra-national judicial authorities started undermining the relevance of domestic judicial system, why their access is becoming more common and why citizens are increasingly approaching these authorities? It also explores how the globalized world is making jurisdiction as an irrelevant issue for entertaining claims/conflicts from around the world. It further explores what future holds for the national Judicial systems in the era of reigning superiority of supra-national Judicial institutions and how to develop the training discourse to help the national judiciaries sustain the faith in them? The utility of the global alliances and partnerships in the development of judicial training discourse to strengthen the national judicial systems is also discussed. I.

Globalization induced changes on the Judicial Profession Lawrence Friedman in his paper provides how globalization has led to convergence in legal cultures.! This convergence can be felt at various level — most common being, reliance on precedents and legislations of foreign countries to solve domestic disputes. It also led to evolution of some common and accepted legal principles among nation states like (i) the society must be ruled by law, not by the passions of the mob or the ambitions of powerful leaders ; (ii) the governments and individuals alike are accountable to publicl y known,

|.

L.M. Friedman, ‘Is there 125. At 125.

a Modern

Legal Culture?’ (1994) Ratio Juris. 117-

[214]

Chap. 6—Globalization of the Judicial Education Discourse

215

non-arbitrary rules equally applicable to all; (iii) the existence of an independent judiciary, the due process of law and the right to counsel are the pre-requisites that cannot be compromised. As the time passed by, many more ideals of human rights, fundamental freedoms, transparent governmental institutions, stable and corruption free legal system, separation of power etc. were seen as worthy of promotion around the globe by the legal profession. All these principles were stitched together to create a concept of the rule of law (ROL), and thus started the ROL movement — a loose network of individuals and institutions around the globe that used tactics such as litigation, advocacy, policy-relevant research, technical assistance, and pilot demonstration projects to help consolidate the ROL at home and abroad.

The post second world war period proved that the societies in absence of the ROL are more likely to engage in tragic violence? and create unsafe atmosphere for the rest of the world as well.? In such societies, the institutions of law and justice are used by the political leadership to maintain an effective control on the society and suppress any political opposition. These are “rule of political law” societies in contrast to the ROL societies. In such societies, the institutions of law

and justice are undermined and not allowed to gain any independence from the will of the political executive.* It is also revealed that the institutions of law and justice are the first causalities in territories slipping into chaos, war, perpetual rebellions, etc. It was thought that an external help could remedy the situation for such societies. This is where the ROL movement stepped in for providing an external help and thus began the global interest in the promotion of the ROL, supported by international and western aid agencies like the World Bank, the IMF, the WTO, UN missions through UN agencies, though for separate reasons. The ROL promotion for economic reasons lays stress on providing technical assistance whereas the ROL promotion on political reasons provides international administration, both with same goal in mind to strengthen the justice system to make the ROL a reality. The ROL projects push for new organizational structure, judicial

2.

Bosnia and Herzegovina, Albania, Kosovo, Cambodia, East Timor, efc. are

some examples. 3.

Afghanistan,

4.

Africa; Iraq in the middle east are some examples incidents can have a spiralling effect on neighbours Pakistan, Sri Lanka, Zimbabwe were some nation resign under the political pressure. See Jennifer A. of Law (W.W. Norton, New York 2001).

Pakistan,

Sri Lanka

in South

Asia; Libya, Sudan, Niger in

which prove that domestic and others. states where judges had to Widner, Building The Rule

Discourse on Judicial Education

216

reforms in court administration enforcement of court decisions.

systems, judicial training and the

Bretton Woods Institutions promote the ROL around the world for economic reasons. They support the nation state which agrees to the utility of and positive relationship between good laws, effective judicial agencies and economic development. Faundez provides detailed outline of the involvement of the World Bank in judicial reform projects — which includes the Bank’s support in building infrastructure for courts, designing and implementing automated information systems, modernizing the organizational and functional capabilities of courts, establishing career paths for judicial and administrative personnel, strengthening the transparency of the judicial branch, introducing ADRs, etc. all with sole aim to improve the judicial efficiency so as to support the investment climate in developing countries.> In the wake of financial crises in Indonesia, the IMF insisted on having a group of international experts with a hands-on-role in the drafting of a new law on Bankruptcy and establishment of new Bankruptcy Court, and on having this law and this Court fast-tracked through the parliament.® Both the WB and the IMF cite economic development and eradication of poverty to promote the ROL; whereas the WTO adopts ‘free trade brings economic prosperity’ line to support the ROL programmes in the nation states..

The UN and its agencies advocate political reasons for promoting the ROL, relying on security and peace agenda on behalf of which and in language discourse of which, it promotes the ROL. This paradigm of the ROL first of all obligates nation-states to incorporate international conventions and treaties advancing human rights of citizens, in their national laws. Secondly, it pushes for the good governance, the corrupt free legal system, a strong and independent judiciary, a separation of power on national polity. Interest in the justice sector: when it started?

Legal reform was the initial strategy adopted for the ROL promotion and it was thought that once proper laws are provided to any nation-state, the rest of the things—will fall in place. The ROL promo-

5.

6.

J. Faundez, ‘Rule of Law or Washington Consensus: The Evolution of the World Bank’s Approach to Legal and Judicial Reform’ in A. Perry-Kesaris, Law in Pursuit of Development (Routledge, London 2010). Per Bergling, Rule of Law on The International Agenda: Internat ional Support to Legal and Judicial Reform in International Administ ration, Transition and Development Co-operation, (Antwerpen: Intersentia, 2006) at 66.

Chap. 6—Globalization of the Judicial Education Discourse

pig

ters at that stage were more concerned with successful transition of a nation-state to the free market economy. The methodology therefore rested on replacing, reforming, developing a new set of commercial laws modeled on laws of developed economies. This large scale copying known as ‘hasty transplant syndrome’ led to foreign laws being developed for new nation without sufficient translation and adaptation to the local legal culture. Problems did not end there. The copying and transplantation was at a speed and secrecy that it violated the basic notions of the ROL of democratically passing laws by engaging in public debate.

The exclusion of public and local cultural considerations by the ROL promoters became controversial and there was local resistance and reluctance to accept laws promulgated with the help from the ROL promoters. Uninformed, misplaced, out of time strategies adopted for pushing legal reforms through state actors in nation states came under heavy criticism and it became clear that it is cognitively impossible for small group of outsider analysts to determine ex ante appropriate legal solutions for a given problem in any nation.’ Realizing their mistakes, the ROL promoters shifted their interests from the institution of legislature to the institution of judiciary. Even the UN missions established to provide for the emergency law enforcement services, committed themselves to taking the process a step further in the justice chain by default, realizing there is little point in providing for the law enforcement unless there is an efficient and capable judicial structure to deal with the perpetrators once identified and apprehended. The ROL movement thus moved beyond mere prescription of legal reforms and got involved in much wider range of activities to influence the manner in which domestic social and distributive objectives are to be conceptualized, prioritized and implemented. They started viewing a well-functioning judicial system both as an end in itself and as a means to facilitate and leverage the achievements of other development

objectives.’ II. Regional alliances and their impact on the judicial profession

Realizing that the conflicts of every kind are best resolved in the courts manned by the judges, whether locally selected or internationally appointed, the international /regional treaties and conventions provided

7.

See Wade Channell, ‘Lessons Not Learned About Legal Reform’ in Thomas Carothers (ed), Promoting The Rule of Law Abroad (Carnegie Endowment for

8.

The World Bank’s Justice for the Poor J4P project and UNDP’s Access to Justice A2J project are examples of wider involvement by ROL promoters in the justice systems.

International Peace, Washington 2006).

Discourse on Judicial Education

218

for the supra-national judicial remedies by establishing courts, tribunals, committees and commissions to hear the claims of citizens and

groups. African, American and European continents formed the regional blocks that offer supra-national judicial remedies through quasi-judicial bodies. Therefore when domestic judicial remedies fail or exhaust, the recourse can be taken to these regional judicia! forums if the nation-state happens to be the member of the regional forum. These remedies are accessible to citizens and the civil society groups (CSOs) against wrong doings of the member states. On several occasions, complainants have been provided remedy, against the might of their nation state. These forums have not hesitated to direct the member nation state to rectify its conduct, overturn its rules, directions, policies

and compensate the complainants. Most CSOs, and even citizens in the case of Europe, prefer bringing complaint before these forums rather than the national justice system fearing lack of impartiality and fairness on the part of domestic courts to act against the interest of the governments. The large volume of case law is generated by these supra-national judicial forums. For the African continent, following supra-national judicial bodies

exist: the Court of Justice of the Arab Maghreb Union (AMU CJ)°, the Common

Market for Eastern and Southern Africa Court of Justice

(COMESA Court)!°, the Economic Community for Central African States Community Court of Justice (ECCAS CCJ)!!, the East African Court of Justice (EACJ)!?, the Economic Community for West African

States Community Court of Justice (ECOWAS CCJ)!3, the Southern

African Development Community Tribunal (SADC Tribunal)!4 and, at the continental level, a plethora of bodies such as the African Economic

Community Court of Justice (AECCJ)!> and the Court of Justice of the

9. 10. Il. 12.

13. 14. I5.

Treaty instituting the Arab Maghreb Union, 17 February 1989. Treaty establishing the Common Market for Eastern and Southern Africa, 5 November 1993 (hereinafter COMESA Treaty). COMESA replaced the previous Preferential Trade Area (PTA) established in 1981. Treaty establishing the Economic Community for Central African States, 18 October 1983. Treaty for the Establishment of the East African Community, 30 November

1999 (hereinafter EAC Treaty). The EAC originally existed from 1967 to nes and, in effect, the Community was largely re-established under the 1999 reaty. Protocol on the ECOWAS Court of Community Justice, 6 July 1991. See more at http://www.sadc-tribunal.org/pages/papers.htm. Treaty for the Establishment of the African Economic Community, 3 June 1991.

Chap. 6—Globalization of the Judicial Education Discourse

219

African Union (AUCJ)!®. The constituent treaty instruments spell out the functions of the judicial bodies. Additionally, they stipulate the entities that have the legal capacity (or /ocus standi) to refer matter to those bodies. Citizens from different nation-states of African continent show immense faith in the above mentioned bodies. By now we have a fair amount of jurisprudence protecting the rights of citizens against the might of the state emanating from the African Commission of Human

and People’s Rights.!7 Twenty five Latin American countries have adopted and ratified the American Convention on Human Rights accepting the jurisdiction of the Inter American Commission of Human Rights and Inter American Court of Human Rights. The Commission is expressly authorized to examine complaints/petitions regarding specific cases of human rights violations and after reviewing the responses to those claims by the nation state, the Commission can bring the case before the Inter American Court of Human Rights. The Commission and the Court have contributed to the human rights jurisprudence by upholding the historic claims and redressing the abuses of the nation state in a large number of cases.!8 They provide more integrated, comprehensive and victim oriented remedial framework as compared to its counterparts in European and African continent.!? They have developed the concept of ‘other forms of reparation’, including rehabilitation

16.

17.

Constituent Act of the African Union, 11 July 2000, Article 5(1)(d). The functioning of the AUCJ is formally provided for under the Protocol of the Court of Justice of the African Union, 11 July 2003, article 2 (hereinafter AUCYJ Protocol). Amnesty International (on behalf of Chirwa) vs. Malawi, decided on oe October 1995; Institute for Human Rights and Development in Africa vs. Republic of Angola, 292/2004, 23rd and 24th Activity Report of the ACHPR (2008), Annex II; 15 IHRR 1180 (2008), at para. 1.; Mouvement Ivorien des Droits Humains (MIDH) vs. Céte d'Ivoire, 246/2002, 25th Activity Report of the ACHPR (2009), Annex IV at para. 2.; Ivorian Human Rights Movement

(MIDH) vs. Céte d'Ivoire, 262/2002, 26th Activity Report of the ACHPR (2009), Annex

2; Marcel

Wetsh’cokonda

Koso and others vs. Democratic

Republic of Congo, 281/2003, 26th Activity Report of the ACHPR Annex 2; COHRE

vs. The Sudan, Decided on August

(2009),

13, 2010 Communi-

cation 296/05 filed by Centre on Housing Rights and Evictions against the Sudan; Mme Hadijatou Mani Koraou vs. The Republic of Niger, 27 October

2008, ECW/CCJ/JUD/06/08. 18.

19.

Yanomani vs. Brazil, (1985); Sawhoyamaxa Indigenous Community vs. Paraguay, Judgment of 29 Mar. 2006, Series C No. 146; Mayagna (Sumo) AwasTingni Community vs. Nicaragua, Judgment of 31 Aug. 2001, Series C.

No. 79; The Saramaka People vs. Suriname, Judgment of 28 Nov. 2007, Series C No. 172. See Nikolas Kyriakou, ‘Enforced disappearances in Cyprus: problems and prospects of the case law of the European Court of Human Rights’ (2011) European Human Rights Law Review, 190-199.

Discourse on Judicial Education

220

measures for victims, restoration of honour, education programs for the

state agent, and many others. The formation of the EU regional block and the establishment of three special courts under three different treaties: (1) the Court of European Communities at Luxembourg under the Treaty of European Union in 1954 also known as European Court; (2) the European Court of Human Rights at Strasbourg under the European Convention of Human Rights; (3) the Court of First Instance of the European Communities attached to but independent of the European Court — brought many changes to the legal systems of the member states. For instance, in Britain, judicial review of administrative action, which was

buried till 1960, became a possibility2® and the European directives started interfering with appointment process of judges.2! Not only Britain, but even the other EU members are affected by the supranational judicial remedies available at the EU level. In Lopez Ostra vs.

Spain?*, Spain was held guilty of violating Article 8 of the European Convention of Human Rights by allowing construction of a waste treatment plant near the complainant’s home. The Court held Spain guilty for failing to strike a fair balance between the interests of the town's economic wellbeing and the complainant's effective enjoyment of her right to respect for her home and the family life. Spain was ordered to pay damages of PTA 4 million plus costs. On similar lines,

Russia too in Fadeyeva vs. Russia? was held guilty of breaching the complainant's rights under article 8 of the European Convention on Human Rights as it failed to provide for her resettlement away from a steel plant. Also, every EU member stands affected if its investments in other countries violate the human rights of people. A litigation before the forum like the European Committee of Social Rights is possible which is set up in pursuance to the European Social Charter. Out of 43 EU members, 14 EU member states accept the collective complaint procedure against them brought before the committee by (1) international organization of employers and trade unions; (2) employers organizations and trade unions in the country concerned; (3) international CSOs enjoying participatory status with the Council of Europe. So far 62 complaints have been received in total mostly by International CSOs.

20. 21. 22.

23.

Ridge vs. Baldwin, [1964] AC 40 (1963); Padfield vs. Minister of Agriculture, [1968] AC 997; Anisminic vs. Foreign Compensation Commission, [1969] 2 AC 147 provide evidence to the effect. Robert Stevens, The English Judges: Their Role in The Changing Consti-

tution. Oxford; Portland, Or. : Hart Pub., 2005 at 72, 89, 99, A/303-C decided on 09 December 1994, (1995) 20 E.H.R.R. 277.

55723/00, 30 November 2005.

Chap. 6—Globalization of the Judicial Education Discourse

221

Presently, France, Italy, the Netherlands and Norway accept complaints against their multinational firms before the Committee whereas the UK, Germany, Spain do not accept complaints against its firms before the Committee. Impact of regional bloc on Asian countries Compared to other continents, Asia has shied away from forming any one regional bloc and creating supra-national judicial remedy under it. Asian countries are not united, reflect too much diversity, show no maturity to come together under one umbrella bloc, exhibit lack of consensus on large number of issues. There is absence of integration objective. Therefore presently, the citizens of this huge continent do not have access to justice in any regional supra-national judicial body. Recently, the ASEAN Intergovernmental Commission on Human

Rights (AICHR)

was established?4 and since 2010, CSO

reports

submitted on human rights abuses have been accepted by the Commission despite the fact that it has no mandate to investigate rights abuse cases. The Commission is currently based at the ASEAN Secretariat in Jakarta. The Centre on Housing Rights and Evictions, a Geneva based CSO, had asked the Commission to take an action against Cambodia for epidemic of housing rights violations in Cambodia. However, as the Commission could not persuade Cambodia, it approached the World Bank which suspended lending to the government until it resolved

disputes over mass eviction of families from Phnom Penh.”° III. Jurisdictional Disputes created by the Globalization The globalization has thrown five jurisdictional challenges for the courts of the national justice systems. First, the globalization of businesses results in contracts between the parties of different nationstates and the remedy for breach of these contracts are sought in their respective national court systems, with the result that different legal orders in different nations are faced with problem of solving the same

puzzle.*° The travel of litigation back and forth from the courts in the US and India in Bhopal Gas Leak disaster involving the Union Carbide

24.

25.

26.

Members are Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia,

Myanmar, Philippines, Singapore, Thailand, Viet Nam. http://www.cohre.org/news/press-release/cam accessed on 30/12/2011 at noon Indian time. See Martin Gebauer, ‘Lis Pendens, Negative Declaratory-Judgment Actions And The First-In-Time Principle’ in Eckart Gottschark, Ralf Michaels, Gisela

Ruhl and Jan Von Hein (ed) Conflict of Laws In A Globalised (Cambridge University Press, New York 2007) at 89-100.

World

222

Discourse on Judicial Education

Corporation, chemical and polymers company of the US,?/ and the recent Yahoo! Case,28 involving the French court which asserted its jurisdiction over the US Corporation Yahoo! on mere basis that its website was accessible from the French computers — prove that as of yet there is no internationally agreed statutory consensus over the question of jurisdiction of national courts over the corporate entities of other countries or transnational or multinational corporations. Competing norms float in this domain. Second, the globalization encourages the concept of party autonomy with respect to the choice of law.?? Both Europe (Rome Convention) and United States (Restatement (Second) s. 187 and UCC s. |105) allow parties to choose the applicable law in contractual mattes. In the U.S., Oregon and Louisiana, have enacted statutes that do not require any connection to the chosen law. Additionally, Texas has enacted a provision that allows a choice of law for transactions involving not less than US $ 1,000,000.00 regardless of whether the transaction bears a reasonable relation to that jurisdiction. By the same token, California, Illinois and New York allow for a free choice of their

own law without any further requirements as long as the transaction in question covers, in the aggregate, not less than US $ 250,000.00. This concept was always available in arbitration and is now pushed by globalization in the national courts. For instance, in Evans vs. Harry Robinson Pontiac-Buick, Inc3°, the Supreme Court of Arkansas upheld

a choice of Texas law relating to a retail installment agreement entered into in Arkansas between an Arkansas buyer and Arkansas car dealer on the fact that the contract had been assigned to a Texas finance company. The court found that this assignment, in combination with the buyer’s knowledge of it, established a sufficient relationship with Texas to justify the application of Texas law to the retail installment

agreement. Similarly in Hodas vs. Morin>!, the Supreme Court of Massachusetts upheld a Massachusetts choice of law. The case revolved around a contract for surrogate motherhood between a Con-

27.

28.

29. 30.

31.

The Bhopal gas leak disaster was an industrial disaster that took place at a Union Carbide subsidiary pesticide plant in the city of Bhopal, India, on the night of 3" December 1984, exposing more than 500,000 people to the plant released 42 tonnes oftoxic methyl isocyanate (MIC) gas. UEJF et Licra c. Yahoo! Inc. et Yahoo France, Tribunal De Grande Instance Paris, May 22, 2000, available at http://www.juriscom.net/txt/jurisfr/cti tgiparis20000522.htm; English translation available at http://www. Juriscom.net/txt/jurisfr/cti/yauctions20000522.htm. Ruhl:163, /nfra n. 32. etd S.W. 2d Supreme Court of Arkansas. Opinion delivered January 28, Richard I. Hodas & another vs. Kimberly Morin & others, 442 Mass. 544, June 30, 2004—August 26, 2004: Berkshire. County.

Chap. 6—Globalization of the Judicial Education Discourse

223

necticut couple and a New York woman. According to the gestational carrier agreement, all of the steps necessary to carry out the contract, including implantation and prenatal care were to take place in Connecticut. Yet, when the genetic parents brought an action for prebirth judgments of parentage and for issuance of a prebirth record of birth, the court upheld the Massachusetts choice of law. It argued that

Massachusetts had a substantial relationship to the transaction because the contract envisaged delivery of the child in a hospital in Massachusetts. Even legislatures are increasing this kind of party autonomy in the US. Ruhl points out that whereas judges in England, Germany and France generally tend to favour party autonomy, courts in Switzerland did not allow parties to choose the applicable law with regard to the

validity of the contract.?2

Theory of economics support choice of law concept on the basis that individuals are assumed to be rational maximisers of their own welfare and to have idiosyncratic knowledge about their preferences unavailable to anyone else. There are many reasons why parties think that they will be better off with a choice of law like a foreign law is better tailored to their needs than the otherwise applicable law or it has an established body of case law that facilitates interpretation of legal rules and thereby avoids future disputes, or it is a neutral law different from that of their respective domestic laws. Accordingly, no matter what the reasons for the choice are, as long as the parties agree on the applicable law, and as long the choice does not reduce the welfare of third parties, the choice will lead to Pareto efficiency. Third, globalization dilemma provides the Hague Convention on Choice of Court Agreements??. This convention, at one level, encourages litigation in national courts, and at another level precludes courts from accepting litigation before it, if the parties had contracted earlier about any other authority/court to litigate. Simultaneously the courts are to honour contracts between alien parties with the alien nature of dispute which have mentioned them in their contract as a chosen forum. Therefore at one level, the respect for litigation over

arbitration?’ is introduced and yet at another level, the jurisdiction of courts is made subject-matter of party’s contractual freedom.

32. 33.

34.

See Giesela Ruhl, ‘Party Autonomy In The Private International Law of Contracts: Transatlantic Convergence And Economic Efficiency’, in Conflict of Laws in A Globalised World, supra n. 26 at 153 -183. The Hague Convention on Choice of Court Agreements is the litigation counterpart to the New York Arbitration Convention. The New York Arbitration Convention provides for recognition and enforcement of arbitration agreements and the resulting awards in over 130 Contracting States.

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Discourse on Judicial Education

Fourth, global business practices allow multitude of proceedings in different jurisdictions by the same corporate house which is running its business in all these jurisdictions or which files cases of infringement of its IPRs against different players situated in different jurisdictions.

The Lego cubes case>> and Benetton shock advertising case?® are the prime examples of this practice.

35.

Lego cubes invented a system of basically unlimited demand. As a consequence, competitors adopted all sorts of copying strategies. First, they copied the Lego cubes in a one-to-one manner. This was prohibited by the courts as unfair competition or trademark infringement (judgment of 8 November 1960,

BGE,

Swiss

Supreme

Court,

Schweizerische

Mitteilungen

zum

Immaterial giiterrecht 71 (1961)). After this, competitors started to create their own cubes with a different brand and different colours, but in exactly the same size so that their cubés could be built together with the Lego cubes. Lego brought action in at least 10 different jurisdictions, including the US. The company scored its most important victory in Germany. The German Supreme Court held that using exactly the same size as a Lego cube is not just about creating confusion or a likelihood of confusion. Even if another brand and a different colour is used, the fact that a competitor uses exactly the same size means that he or she profits from a demand that has been created by somebody else (BGHZ 41, 55; BGH, Judgment of 7 May 1992, Case I ZR

36.

163/90, 94 GRUR 619 (1992); BGH, 102 GRUR 521, 525 (2000)). In Switzerland and in Norway, Lego lost its cases. The Swiss Supreme Court did not mention the judgment of the German Supreme Court (judgment of the Supreme Court in Schweizerische Mitteilungen zum Immaterialgiiterrecht 157 — Lego II (1962)). In its 1994 judgment, the Norwegian Supreme Court quoted Lego judgments from Germany, France, Denmark, Sweden, and the United Kingdom (Norwegian Supreme Court, 1995 Gewerblicher Rechtsschutz und Urheberrecht Iternationaler Teil [GRUR Int.] 508). It found that in the light of the similarity of the legal question and the legal orders, those judgments were, as a matter of principle, relevant. Since the line of reasoning of those courts was not uniform, the Norwegian Supreme Court concluded that it had to find its own solution. In the end it confirmed the judgment of the court of appeal, which had dismissed Lego’s claim. In the same year, the Supreme Court of Hungary granted Lego protection and indirectly referred to the case law of the German Federal Supreme Court (Legfelsébb Birés4g, 25 May 1994, 1996 GRUR Int. 1237). This footnote should read as: In many European countri es and in the US, Benetton, an Italian fashion designer popular among young people and parents of small children, showed pictures of particularly horrifying events in connection with the promotion of Benetton merchandise. Images included, for instance, a duck covered in oil after a crash of an oil vessel, small

children doing hard work in a developing country and the unifor m ofa soldier killed in the Bosnian war with the bullet hole and the blood stains around it. In another case, Benetton showed a vessel containing people from Albania trying to flee the country, falling into the Adriatic Sea and drowni ng. The most famous picture

displayed was a human upper arm with an ‘HIV positiv e’ stamp on it.

In Europe, Benetton also ran a campaign showin g death row in the US. The text always read: ‘Sente nced bio, sentenced to death for this crime. To be execut ed At the bottom it read: ‘United Colors of Benetto n.’

convicted prisoners on to death. Name. a short on such and such date.’ Benetton was sued in Contd. .....

Chap. 6—Globalization of the Judicial Education Discourse

225

Fifth, many jurisdictions now have laws that allow non-citizens to file tortious claims against multinational entities in their courts: the US, the UK, the Netherlands, Sweden, Norway, Canada being prime examples of nation states that offer judicial services to foreigners. In the US law passed by its first Congress in 1789, the Alien Tort Claims Act (ATCA), allows the foreigners to bring claims for the violations of customary international law. The Act was meant to signify that the young republic would honour and uphold the international rules. Therefore a non-US citizen was empowered to bring a tort action in the US courts for violations of ‘the laws of nations’. ATCA was on the US statute book for over 200 years, but for the first time the Act was rediscovered in 1980 when the Court of Appeals for the Second Circuit in New York found that it had jurisdiction over a tort action brought by the family of JoelitoFilartiga, a 17-year-old Paraguayan who was tortured and killed in retaliation for his father's political activities and beliefs, against the Paraguayan Inspector-General of Police, Americo Norberto Pefia-Irala. The court was asked to find whether Pefia-Irala, who was then residing in Brooklyn, New York, could be held directly responsible for the death of JoelitoFilartiga through the commission of acts of torture. The court declared the torturer ‘hostishumani generis, an enemy of all mankind.” On remand and following the entry of default judgment, JoelitoFilartiga's father and sister were awarded a

total of $375,000 in compensatory damages and $10,000,000 punitive

damages.3’ Nearly 15 years later, in Kadié vs. Karadzié38, the Second

Circuit was approached under the ATC Act to take action against the self-proclaimed president of the RepublikaSrpska, Radovan Karadzi¢, by Bosnian Muslim and Croatian victims of rape, torture, summary execution, forced pregnancy and other acts alleged to constitute genocide, crimes against humanity and war crimes. Drawing primarily

Contd.| ..... many different jurisdictions. In Germany, the company lost in the ordinary

courts, including the Supreme Court. The German Supreme Court found that the HIV stamp constituted a violation of the dignity of mankind. Showing the stamp and exploiting the fact that so many people suffer from AIDS, the Supreme Court found, is not compatible with article 1 of the German Constitution (BGH, 97 GRUR 600, 601 (1995)). The Norwegian Markedsradet followed the German example and decided accordingly (Markedsradet, Judgment of November 21, 1994, 1996 GRUR Int. 256, 259). The Swedish Consumer Ombudsman even refused to take the case before the courts and Finnish (Finnish Supreme Court, Judgment of March 17, 1995, 1996 GRUR Int 251) courts, on the other hand, dismissed the lawsuits against Benetton

based on unfair competition law. It should also be noted that the German Constitutional Court annulled the decision of the German Supreme Court (BVerfGE 102, 347). 37.

Filartiga vs. Pefa-lrala, 630 F.2d 876 (2d Cir. 1980).

38.

630 F.2d at 881.

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Discourse on Judicial Education

on the Genocide

Convention, the Geneva Conventions

and the post-

World War II precedents, the court found that genocide and war crimes could be committed by non-state actors, and thus non-state actors could

be held liable under the ATCA for their direct perpetration of these offences. In the mid-1990s, in Doe vs. Unocal??, 15 Burmese plaintiffs alleged that the private US-based corporate defendants jointly participated with Burmese government officials in forced labour, rape, torture and murder in connection with a gas pipeline project. The Court of Appeals for the Ninth Circuit adopted a ‘knowingly providing practical assistance that has a substantial effect’ standard for aiding and abetting. The court held that the plaintiffs sufficiently proved that the Unocal aided and abetted the commission of forced labour, murder and

rape by state actors. Under this Act, many multinational corporation that aided the human rights violations committed by a state known to have a poor human rights record, have been taken to the US courts and parties have been successful in Wiwa vs. Royal Dutch Petroleum/

Shell; Mujica vs. Occidental Petroleum Corporation*!; The Presbyterian Church of Sudan vs. Talisman Energy, Inc*?; Doe vs. Exxon

Mobil Corporation;*? Bowoto vs. Chevron Corporation, Bridgestone

for its operations in Liberia*> and so on. This case law generated by the US courts under the ATCA is forcing the companies to examine the way they operate their business across the borders. The whole jurisprudence has led to the development of new paradigm for business: the Corporate Social Responsibility (CSR). Further, it has started influencing even those jurisdictions which do not have anything in place similar to the ATC Act in their statute books. Therefore, even though the UK does not have any comparable statute to the US statute ATCA, in 1997, a group of five South Africans suffering from asbestos-related disease brought suit against Cape PLC in the English High Court seeking compensation for their injuries from Cape’s asbestos mining and milling activity in South Africa. The plaintiffs, former Cape workers and individuals living in the vicinity of Cape’s operations, alleged that Cape exposed its workers to 30 times the British legal limit of asbestos dust without adequate protective gear and that asbestos related injuries were suffered by those living near Cape’s eee

39. 40. 41. 42.

43. 44. 45.

[2002] USCA 9708; (395 F. 3d 932 (9th Cir. 2002). 626 F. Supp. 2d 377 (S.D.N.Y. 2009). Wiwa vs. Royal Dutch Petroleum Co., 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 28, 2002). The settlement agreement at http://www.ccrjustice.org/files/Wiwa v Shell_ SETTLEMENT AGREEMENT. Signed-|.pdf (visited 11 May 2010). 564 F.3d 1190 (9th Cir. 2009). 582 F.3d 244 (2d Cir. 2009). 503 F.3d 974 (9th Cir. 2007).

Chap. 6—Globalization of the Judicial Education Discourse

22]

asbestos operations. In 2001, Cape agreed to a £21 million out-of-court

settlement to plaintiffs.*°

Sixth, international criminal law is having considerable influence on the national judicial systems. Even though the International Criminal court (ICC) set up under the Rome Statute is unable to assert jurisdiction over corporations, nations fortified by the legal system created by the Rome Statute, have begun to legislate to prosecute the corporations for the breaches of international law even in the absence of a direct connection to the place of the crime or the nationality of the perpetrator. They have begun to implement international criminal law within their national systems more systematically, thus revitalizing the prospects for prosecution of international crimes in national courts. For instance, Canada’s Crimes Against Humanity and War Crimes Act (CAHWCA), enables it to exert jurisdiction over corporations that have been involved in the commission of certain forms of international crimes. CAHWCA made Canada the first nation to incorporate the obligations of the Rome Statute into its national laws. Its provisions allowed Canadian prosecutors to charge DésiréMunyaneza_ with participation in the Rwandan genocide in 1994, and could allow Canada to prosecute corporations for acts committed prior to the enactment

of CAHWCA.

In the Netherlands,

in 2005,

in Public

Prosecutor vs. Van Anraat*’, Dutch criminal court convicted the businessman Frans van Anraat of aiding and abetting war crimes for supplying the Iraqi government with chemicals needed for the production of mustard gas, which was used in massacres against Kurdish minorities in Iraq. The second such case has been criminal trial against the Dutch Timber trader GuusKouwenhoven who in his position as Director of Operations of the Oriental Timber Company (OTC) and of the Royal Timber Company (RTC), managed the biggest timber operations in Liberia. The Dutch prosecution authorities indicted Kouwenhoven with aiding and abetting war crimes committed by

Liberian militias and with the violation of an UN arms embargo.*® Also, post 9/11

events

in the US, the world has witnessed the

judicial profession judging over the official acts of another nation state relating to the human rights abuses. Recently, courts in Australia in Habib vs. Commonwealth of Australia*?;, Hicks vs. Ruddock, Downer

and the Commonwealth of Australia®®; courts in the UK in R (on the

46. 47. 48.

49. 50.

Business and human rights weekly. LJN AU 868. Liberia’s Taylor to be called witness in arms case. Reuters News, February 1, 2011. [2010] FCAFC 12. [2007] FCA 299.

228

Discourse on Judicial Education

application of Abbasi) vs. Secretary of State for Foreign and Commonwealth Affairs>!; R vs. Bow Street Metropolitan Stipendiary Magistrate>*; Jones vs. Ministry of the Interior of the Kingdom of Saudi Arabia>3; courts in the US in Arar vs. Ashcroft°*; Samantar vs.

Yousuf>>; courts in Italy in Ferrini vs. Federal Republic of Germany°®, indicted foreign government officials for the human rights abuses and allowed foreign citizens to bring claim against their own governments in the foreign courts. This so far happens to be the most liberal approach of the judicial profession on jurisdictional matters. IV. Judicial response to the globalization

The US Supreme Court rulings expanded the moral and the constitutional authority of assertions of the court power, in both popular consciousness and in the law thereby leading to greater hopes being placed on the judicial institutions. Marbury vs. Madison (1803), Brown I (1954) and Brown II (1958) introduced the judicial power over and above the bureaucratic power. This made the justice system to be perceived as a mechanism to balance the competing values.°’ Judges since then are viewed as the supreme and final arbiters of constitutional meaning in the struggle for civil rights. This court led rights revolution in the US was closely followed abroad and proved highly influential around the world, inspiring many countries to accept the radical empowerment of their judiciaries at the expense of democratically

elected legislatures.>* Today even the US Supreme Court refers to

foreign practices, public opinions and court decisions as well as international agreements to decide the domestic policy issues. Similarly, the Supreme Court of India which in as many as 22 cases relied on the decisions of European Court of Human Rights to arrive at

51. 52.

[2002] EWCA Civ 1598. (No. 3) [1999] UKHL 17; (2000) 1 AC 147 (Pinochet (No. 3)).

53. 54.

2006] UKHL 26; [2007] 1 AC 270 (Jones vs. Saudi Arabia). :+ oo 2d 250 (certiorari denied by the US Supreme Court on 14 June

55.

No. 08-1555, slip op. (US 1 June 2010). In this case, a former Prime Minister and Defence Minister of Somalia was accused of torture and extrajudicial killing by plaintiffs bringing a suit for damages under the ATCA and TVPA. Italian Court of Cassation and Ferrini vs. Germany, Appeal decision (no. 5044/4), 11 March 2004; (128 ILR 658 (2006)). D.Z. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (OUP, Oxford 2005) at 180. Ken I. Kersch, ‘The New Legal Transnationalism, The Globalized Judiciary,

56.

57.

58.

and the Rule of Law’ (2005) 4 Washington

Review 345-38.

University Global Studies Law

Chap. 6—Globalization of the Judicial Education Discourse

decisions

relating to important constitutional

229

liberties°?, has now

become a major source of inspiration on constitutionalism for judiciaries in other countries like Sri Lanka and Singapore who rely

heavily on its precedents to decide the matters before them.®? The scholars have welcomed this trend and coined another phrase for this two way traffic on inspiration from each other, namely ‘Judicial Globalization’. Everyone who writes on this process of judicial

globalization (Amann®!, Koh®?, Baker®?, Baudenbacher®4, Anne-Marie

Slaughter®>, Kersch®® efc.) is very optimistic about this process of ‘turning the outside in’, which according to Amann, “is inevitable on account of globalization of human activities in the field of migration, commerce, crime and information spheres.” This process of judicial globalization (1) allows judiciary in a nation-state to turn optimistically to judiciaries in other nation-states to break their own policy deadlocks and advance the cause of civil liberties and human rights; (11) creates opportunities for judges around the world to work together transnationally to hone their performance, abilities and expertise; (111) guides judges to work together in harmony, rather than at cross-purposes. Judicial response to globalization is not uniform and judges can be

bracketed as “nationalistic” and “internationalistic’”.°’ The “nationalistic’”” ones show their commitment to territoriality, extreme deference to national executive power and political institutions; whereas the “‘internationalistic” ones recognize that in a globalized world there is need to merge national with international and foreign laws. Evidence

59.

The Supreme Court of India till 13"" January 2009, relied on judgments of the European Court of Human Rights in 22 cases; 2 cases in years 2008; 3 cases in 2007; 4 cases in 2006; 3 cases in 2005; 1 case in year of 2004, 2003, 2000, 1997, 1995, 1994, 1988, 1982, 1980 and 1979. The first such case was in

60.

(1979) 4 SCC 573; Organo Chemical Industries and Anr. vs. Union of India (UOL) and Ors. This was told to me by the district judges from both Sri Lanka and Singapore whom I met at the 5" International Conference of Judicial Trainers at Bordeaux, France in October-November 2011.

61.

62.

63. 64. 65. 66.

67.

Diane Marie Amann, ‘Raise The Flag And Let It Talk’: On The Use of External Norms in Constitutional Decision Making’ (2004) 2 International Journal of Constitutional Law 597. Harold HongjuKoh, ‘International: Law as part of Our Law’ (2004) 98 American Journal of International Law 42. John S. Baker, ‘Citing Foreign and International Law to Interpret the Constitution: What’s The Point?’ (2006) 69 Albany Law Review 683. Prof. Dr. Carl Baudenbacher, ‘Judicial Globalisation: New Development or Old Wine In New Bottles?’ (2003) 38 Texas International Law Journal 505. Anne-Marie Slaughter and Walter Mattli, ‘Europe Before The Court: A Political Theory of Legal Integration’ (1993) 47 Int. Org. 41. Ken I. Kersch, Supra n. 58.

Koh divides judges into these two brackets. See Supra n. 62.

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Discourse on Judicial Education

from the work of scholars suggests that internationalistic trend to be on the rise amongst judicial profession. Benvenisti provides how national courts are increasingly using international and comparative law as a ‘sword’ to challenge legislative and executive actions rather than as a

‘shield’ to protect them.°* Shany observes the perception of ‘a certain quantitative and qualitative change’ taking place, with “more international law [being] applied by more national courts in a more conse-

quential (and less parochial) way.°? Anne-Marie Slaughter provides

that judiciaries are opting for co-operation with each other to the extent that the judicial comity has become a possible legal concept. She gives many instances of co-operation: agreements between courts of two nation-states with respect to the adjudication of disputes, the convergence between judges from different nations-states on many issues, increasing acceptance for cross-pollination and dialogue, acceptance of

learning from foreign precedents. V.

Globalization of the JE discourse: how helpful to the judicial profession?

At least three different.reasons emerge in support of the idea of having alliances, partnerships and joint ventures in the sphere of judicial training discourse and they are: (i) global articulation and support for the ROL; (ii) supporting the judicial globalization project; (ili) forging respect for the community law where supra-national Judicial remedies are available. Role of judicial training in Global articulation and support for the ROL

Bretton Wood institutions (the World Bank and the IMF) have been financing the judicial reform projects to supplant autocratic and state central systems with the ROL so that the judiciary in nation states

is objective, impartial, rational, efficient, transparent, predictable and

accessible. Between 1990 and 2003, the World Bank spent around $2.9

EE

68.

E Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and

International Law by National Courts’ (2008) 102 AJIL 241, 243. See also E

Benvenisti

OF

and

G Downs,

‘National Courts, Domestic

Democracy,

and the

Evolution ofInternational Law’ (2009) 20 European J Intl L 59. ery Shany, ‘National Courts as International Actors: Jurisdictional Implications’ (2009) Federalism 1, 2 70.

accessed 30 October 2010, Anne-Marie Slaughter, ‘A Global Community of Courts’ (2003) Harvard

LJ 191.

Int

Chap. 6—Globalization of the Judicial Education Discourse

2a

billion on 330 projects in its pursuit of securing the ROL.7! All the projects undertaken to support the global articulation of the ROL incorporate judicial trainings so as to bring the convergence of judicial stand on the disputed issues.

The EU supports the ROL projects in their former colonies and provides for their judicial capacity building. In the period 1998-2004 the European Commission, through the Phare programme, funded 64 projects directly related to the judicial reform: 59 addressed judicial education, either because they aimed at reforming judicial education or because they include training sessions in projects primarily addressing other aspects of the judiciary such as governance, administration or procedural rules. Of those 59, in 19 projects judicial education was the

main objective of the cooperation.’* As investigated by Piana’?, the French model of training continues to inspire the judicial training discourse practices in central and eastern European countries and serves as a model blueprint for the EJTN which is transnational discourse developer for the EU. The ENM (the French national judicial training school) is helping many countries in central and eastern Europe to set up, improve upon in the area of JE discourse and it has turned to be a leading actor in 71.4% of projects including 63 EU funded projects directly aimed at reforming the training discourse. Further, most of the UN missions providing international administration

in difficult and war

affected

territories

such as Cambodia,

Bosnia and Herzegovina, East Timor, Afghanistan and Kosovo have been institutionalizing the judicial training discourse for sustaining the ROL for all times to come. Many other entities like the ADB, WTO, OECD, Swedish International Development Authority (SIDA) are supporting judicial training projects for improving justice. Also, number of foundations and political activists are sponsoring an increasing number of workshops and seminars persuading legal and

71. 72.

73.

http://www.worldbanktribunal.org/judicial.html [last visited 17/01/09, 13.40 UK time]. Open Society Institute (2002) ‘Judicial capacity, EUMAP Report available online; Piana, D. (2005) ‘Networking the rule of law’, paper presented to the UACES conference in Brussels, 14 October; Piana, D. (2005) Legal Experts and International Cooperation Between Old and New Members, Open

Society Institute. Available online; Piana, D. (2005) Reforms and Judicial Cooperation in the European Promotion of the Rule of Law: A Comparative Analysis of New Members, Open Society Institute. Available online; Piana, D. (2006) ‘Constitutional Cultures in New Member States. Between Tradition and Europeanization’, in J. Ziller and W. Sadurski (eds.) After Enlargement, Dordrecht: Kluwer Publishers. ; discovering actors: the French transfer, policy “Unpacking Daniela. Piana, Model ofjudicial education, between enlargement and judicial cooperation in the EU.” French Politics: Houndmills, April 2007, Volume 5, issue 1: 33.

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Discourse on Judicial Education

judicial community to adopt a global sensibility in arguing and deciding domestic issues. Supporting the judicial globalization project Networks and friendships forged while training abroad is one of the reason for judges taking part in the process of judicial globali-

zation.’* Travel is expanding opportunities for cross-fertilisation, faceto-face meetings between judges from different nation-states and opportunities to forge judicial networks as judges from different nations do not view each other as political servants representing sovereign interest, but as a fellow professional in a profession that transcends the national borders. This respect towards each other as fellow professionals has led to the ‘borrowing’ from each other and the foreign precedent influences are becoming visible inevitable influences in judgment writing. It also led to realization of similarities in the problems confronting judiciaries around the world.

The cognitive openness to decisions, laws and legal events in other systems through the globalised discourse can lead to better development of law for the benefit.of citizens of nation state whose courts engage in Teubnerian reflexive analysis of norms and legal events

taking place world over’. It can allow free movement of judgments

and their internalization because certain legal concepts like liberty, equality, due process have undergone transformation at global level and have become global concepts. Drawing upon interpretation given to these concepts in foreign countries can result in better protection of

human

rights in issues

homosexuality.

like assisted

suicide, abortion,

hate speech,

Further, the training discourse can ensure that the interaction between judiciaries is not limited to interactions between the West

only. As noted by Baudenbacher’®, global judicial comity cannot be

realized unless and until there are biases exercised by judicial fraternity towards their counterparts in less developed and less powerful nation State. Judiciaries need to travel further than their immediate neighbours for inspiration. The global level interaction among the judicial education discourse providers to expose issues that arise in different jurisdictions — whether west, African or other Asian counterp arts becomes imperative in the light of kinds of issues that are travellin g before the national courts. a

74. 75.

76.

John S. Baker, Supra n. 64. Gunther Teubner, Autopoietic Law: A New Approach to Law and Society, European University Institute Series, Walter de Gruyte r and Co.; Berlin 1987, Prof. Dr. Carl Baudenbacher, Supra n. 65,

Chap. 6—Globalization of the Judicial Education Discourse

233

The globalized training discourse enhances technical competence of judges by giving them opportunity to learn about new technologies operating in an increasingly interconnected world system, better ways to manage a judicial system in tight budgets, new methods of transfer of learning, innovations in monitoring and evaluation of performance which have made judicial system more transparent and accountable in other jurisdictions. The global engagement between judicial trainers also presents an opportunity to share the best practices developed for training from around the world to serve the needs of judiciaries around the world.

The global alliances formed in the training discourse can (i) increase acceptance of external influences — be they regional and international norms or precedents outside national territory; (ii) provide exposure in the form of opportunities to travel and education abroad; (ili) widen exposure to other legal or non-legal events taking place around judges by providing resources for the same; (iv) help judges to internalize innovations and breakthrough made in the legal field elsewhere. Forging respect for the community law in national judicial profession

Giorgi and Triart propose that judges of nation-states who resist the idea of the intrinsic supremacy of Community law, preferring to find the source of the primacy in their own legal order, must be offered a new theoretical context to help them reconcile their role as supreme

guardian with the taking into account of the pluralist context.’/ According to these authors, irreconcilable positions of national constitutional courts and the European Courts cannot be overcome other than through the adoption of a pluralist conception of law. This will require deepening the awareness of each of the supreme judges that the ‘other’ and ‘elsewhere’ exists. The global interaction and dialogue will be more effective in forging respect for the Community Law at the national level. The global engagement in the training discourse will be helpful to forge the respect for the community law as clarified by Mahoney’® who has stressed on the need to institutionalize the judicial training on the European Courts and its case law for the EU member states so that judges are able to afford better protection of rights and freedoms to their citizens at national level itself and the Strasbourg Court is saved

77.

78.

Florence Giorgi and Nicolas Triart, ‘National Judges, Community Judges: Invitation to a Journey through the Looking Glass — on the need for jurisdictions to Rethink the Inter-Systemic Relations beyond the Hierarchical Principle’ 14(6) European Law Journal, 693-717 (2008). Id.

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Discourse on Judicial Education

from the flood of cases that travel to it as a result of citizens who feel their national courts have failed in the protection of rights and freedoms as guaranteed to them by the European Convention of Human Rights. Such respect cannot be brought by the national level discourse due to strong national sentiments that rule the institutions set up to administer the judicial education. For instance, in England, due to broad reception of EU treaty /convention law by judges, discourse of training in UK was thought best way to curb liberal and activism attitude and judges

were lectured to walk the path of judicial restraint!7?

The importance of judicial training for the effective application of EU law has been repeatedly underlined in recent years by the European Parliament, notably in its 2008 Report on the role of the national judge in the European judicial system, in its 2009 Resolution on the Stockholm Programme, and in its 2010 Report on the implementation of the Stockholm Programme in Civil Matters. The European Council set ambitious targets for judicial training in the Stockholm Programme and the European Commission published its communication on judicial in line with the Stockholm Action Plan on 13 September 2011.80 Conclusion

As the importance of private international law continues to grow, it is creating unprecedented consequences for the judiciary. Its role under the constitutional scheme as providers of social service is shrinking due to all kinds of judicial reform policies encouraging efficiency drive and settlement culture. Judiciary is seen as service provider to the consumers of litigation. The training discourse has to engage judicial comity more than ever before to come together and discuss these developments, their approval and disapproval to such trends. Also, there is a need to go further than Europeanization of law to appreciate the political-legal dynamics of international justice. This calls for ‘cross-fertilisation of ideas’8! for widening horizons, for exploring and experimenting on education curricula and methodologie s so that the discourse is able to bring improvement in the court systems around the globe and eventually establish the ROL globally. Therefore the need for the globalization of the judicial training discour se is felt. a

79.

80. 81.

ee

eee

Stevens quotes Jack Straw, the Home Secretary, to have said that the purpose of judicial training was to explain how best to deal with ‘sharp lawyers’ who would make ‘disruptive’ points in hearings before ‘busy’ county court and Crown Court judges. See Robert Stevens, Supra n. 21 at 112. From www.curoparl.europa.eu/delegations/en/studies download.html?.

See Clifford Wallace, Globalisation of Judicial Education’ (2003) 28 Yale J of Int. Law 355.

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With increased international interaction and cross-fertilization of ideas afforded by the globalization of the judicial training discourse, judges would be in better position to appreciate regional and international contexts in an increasing global world. Whatever may be differences in institutionalization structure of the judicial training discourse from one nation-state to another, basic aim of the training has to remain the same throughout globe and globalized training discourse will only supplement and not replace the national level training discourse by offering three distinct benefits of improving the method, results and resources devoted for the national level training discourse. Governments around the world tend to look to each other when enacting new legislation even without being forced to do so. This again is a development that is leading to the convergence of national laws. It is now turn of the judicial institutions to bring convergence of judicial opinions on similar problems and the judicial training discourse can provide them the methodology to do so.

Apart from the EU initiative to engage judges regionally to share and learn best practices through the training discourse, there are hardly any important international efforts to engage judges on global level to share the best practices developed through the judicial training framework. The IOJT at the moment is only bi-annual opportunity that judicial trainers get to come together on common platform to discuss problems and share the best practices. The need is felt for more than one event in a year and the funding is always an issue. The UN involvement in judicial training is needed to get adequate funding support to develop and support global alliance for the judicial discourse development by providing judicial trainers regular opportunities to engage with each other. Also, in the absence of the UN involvement, the financial burden of providing such opportunities is shared by developed western countries. With the UN involvement, not only global engagement will rise but will also provide chance to other countries to host these conferences.

CHAPTER SEVEN

THE LIMITATION OF THE TRAINING DISCOURSE FOR CONTINUING PROFESSIONAL DEVELOPMENT OF JUDGES

The present chapter deatls with the constraints faced in the effective delivery of judicial training. It discusses obstacles that may confront the judicial professionalization project aimed through the training discourse, thus failing the training discourse in its judicial reform objectives. The chapter focuses on the _ institutional arrangements that undermine the goal of judicial professionalization, specific environmental factors that demotivate judges in the learning process, and the socio-legal environment that hinder raising skills and abilities in judges. Important research questions investigated herein are: what kind of impediments are there in the path of professionalization of the judiciary? Are these impediments universal in character? What specific impediments constrain raising knowledge, skills and professional abilities in judges? How much failure can be attributed to the trainees, trainers, system and the status of trainees? Introduction

The constraints faced in the judicial trainings are delineated from four sources: (i) literature review from sociological and psychological studies that provide why training adult professionals proves to be a difficult task; (ii) field experience in the training discourse; (iii) experience of others, about the hostilities and difficulties they faced in the training discourse; and (iv) the online debates and discussion groups formed amongst justice sector professionals who share their hardships in judicial reform projects. This paper uses these four resources to discuss how trainee judges contribute to limiting their own learning, how trainer characteristics hinder the achievement of training objectives, and finally how the systemic arrangement and institutional set-up block the path to reformative success through the training discourse. [ 236 ]

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Prof. Thomas from London University author of a comparative analysis project on the nature of judicial training offered throughout Europe, identified six types of constraints faced in the judicial trainings in the European context: funding, time, geography, judicial dominance, institutional inertia and resistance to new training approaches.! This paper summarizes further analysis grounded in eight years’ experience in the field of judicial training. I have divided the paper into three parts. Part I discusses constraints faced as a consequence of inadequate and faulty institutional arrangements made for the training discourse; Part II provides how trainings fail on account of trainee judge characteristics; and Part III locates these constraints in the relationship between judicial trainer and judge trainee. Part I: Institutional arrangements made for judicial trainings 1.1

The Structural mess

To understand the background in which judicial trainings are administered in India, it is useful to know the structural setting of the judicial system. India has pyramid hierarchy for its judiciary. At the highest point of the pyramid is the Supreme Court of India with 31 judges. Decisions of the Supreme Court are law of the land under Article 141 of the Constitution of India, and therefore binding on every entity. Below the Supreme Court are 21 high courts with about 800 constitutional judges. Precedents of these 21 high courts are binding on the district judiciary in their respective geographic jurisdictions. The district judiciary is subordinate to the high court judiciary and under the administrative control of the latter. It, too, is organized on the hierarchical lines. The lowest level court in the hierarchy is designated as the court of Judicial Magistrate First Class (JMFC) when taking up criminal matters, and the court of Civil Judges Junior Division (CJJD) when hearing civil disputes. The majority of JMFC or CJJD are fresh law graduates who clear the competitive exams to obtain an appointment as a judge. A small percentage comprises practicing advocates who gave up the practice of law to join the judiciary so as to avoid uncertainties and economic insecurities associated with legal practice. To them, the judiciary offers safe and secure employment with a fixed monthly income.

When these judges complete five years successfully, they become eligible for promotion to the next higher post of Civil Judge Senior Division (CJSD) on the civil side, or the post of Chief Judicial Magistrates (CJM) on the criminal side. The jump from this second

1.

Thomas, Dr. Cheryl. Review of Judicial Training and Education in other jurisdictions. Judicial Appointment Project between JSB and University of Birmingham School of Law, London: JSB, May 2006, pp. 11-114.

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step in the hierarchical ladder to the third step consists of being appointed or promoted as an additional district judge (ADJ). This takes considerable time and also is highly dependent upon several factors which no one clearly spells out at least to the public. Performance is certainly one criterion out of all, but there is a struggle within the judiciary to accept or deny openly whether this is the only criteria employed for promoting the judges to this higher post. Also, competition for this post is increasingly challenging because there are fewer positions and because practicing advocates can compete for them directly from the bar by passing an open examination and being directly appointed. From the post of ADJ, one is eligible for promotion to the highest and most prestigious position within the district judiciary—of district and sessions judge. Administratively this judicial position has significant powers and responsibilities, including maintaining performance records for all suberdinate judicial officers. Moreover, around 20 to 30 percent of district and sessions judges are considered eligible for elevation to the position of high court justice, which is ranked as a constitutional judgeship and carries significant respect, facilities, power, status. As a consequence, the competition for appointment to the high courts is extremely.rigorous. This structure of the Indian judiciary combines elements of common law and civil law systems. High court judges and the Supreme Court judges function as judges in any common law jurisdiction function — as equal partners with the legislature and executive in governance, whereas the district judiciary is a career judiciary having all semblance of the judiciary in any civil law country. The career oriented district judiciary in India, unlike the constitutional courts — the Supreme Court and 21 high courts — is highly dependent on the various state law ministries for its administrative support, staffing and oversight. Even though they are governed by the rules framed by the high court, which has constitutional obligation to supervise the district judiciary, the judges of the district courts do not consider themselves as an independent judicial professional but as the state government employees. This opinion gets formed because of their appointment. Most of them are selected as judges by passing a competitive exam conducted through the state government’s civil service bureau known as state public service commission. Judges of the respective high courts are present only at the stage of conducting interviews. 1.2 Environmental factors posing hindrance to the learning process

Above structural location ofthe district judiciary in India, coupled with the poor quality infrastructure made available to the district courts and poor quality of legal training that judges have to undergo, makes the task of judicial training extremely difficult. The discussion below clarifies it further.

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1.2.1. Infrastructure to do the judicial work In the Indian context, the most important reason for lack of motivation in training is inadequacy of infrastructure to do the judicial

work. Take, for instance, a criminal case before the trial court where an

opinion of forensic expert would the truth of an allegation made. forensic labs and trained forensic evidentiary sample to the court

be essential for the judge to determine If the state does not have sufficient experts who can send the report about in reasonable time, judges must wait

until the results are be delivered to them to decide the matter, thus

delaying the court proceedings. While training young CJJD/JMFC in Maharashtra Judicial Academy on the usefulness of forensic science in their judicial work, I found that they had no enthusiasm for the subject. On closer interaction, I leant that the state of Maharashtra has only five forensic labs to cater to 2000 courts, and due to the heavy workload,

these labs are unable to complete and transmit the reports to the court on a timely basis. One judge reported that she has been waiting for the DNA test results for four years, resulting in inexcusable delay in a case assigned to her and leaving her very frustrated that she will be held responsible for keeping this case file pending for so long in her court. The others all echoed her frustrations and narrated similar problems they face when forwarding any document to the handwriting expert for verifying the signatures or writings that are contested. Another judge highlighted yet another difficulty with this kind of evidence. In prohibition statutes which bar drunk driving, the police neither collect a blood sample to test the alcohol level in the body in many instances as prescribed by the law, nor do they forward samples, when they do take them, to the lab for testing within the period stipulated by the statute. In such cases they wondered how magistrates can help if the blood sample is not seized as per the procedure prescribed by the law. And when the courts, due to absence of reliable evidence, do not punish drunken driving offenses,

society blames them for not responsibly processing such cases. These limitations on access to forensic science and incompetent police made judges reluctant participants in an educational module that encourages reliance on the forensic science to verify the charges. The same problem occurred again when an attempt was made to draw judges’ attention to the utility of electronic case and court management. In September 2011, the U.S. Department of Justice and the U.S. Trade and Patents Office in India conducted a course for the senior district judges in Maharashtra to raise awareness on the issues relating to the trademark and copyright infringement. In this program, Judge Morrison England of the U.S. District Court, Eastern District of California demonstrated how the new reforms from past 12 years have changed the federal courts in the U.S. tremendously. He practically demonstrated to trainee judges from Maharashtra how he accepts e-filings, e-documents and digitally signs and writes his orders and

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judgments through his I-Pad even without being physically present in the court or the country. Senior trainee judges, rather than accepting the benefits that accrue if they take advantage of the advancements in the judicial profession around the world, started questioning the usefulness of all this progress. This negative response to the electronic court management process stems from the fact that the government of India has not allocated laptops to all the judicial officers in the trial courts, and not completed the computerization of all the trial courts. Therefore, even now there are trial courts with no computer and _ internet connectivity, no soft sources of law which can be easily accessed and incomplete libraries for reference. Most of the judges do not know how to use computers and draw a blank when acquainted with their benefits.

1.2.2. Legal education quality Problems of obsolete laws demand judicial innovation to meet the demands of modern and complex societies under the laws that did not anticipate future directions of progress of society. Frontline judges selected right after their law graduation can sit as judges without even any type of internship in a court. Equipped with poor legal education? they are unable to apply these obsolete laws to the present circumstances.

It is not that there are not lawyers who take interest in their own learning and are very bright, but most such talented men and women avoid joining the trial court bench because of the conditions that persist in many of those courts. Except for some newly constructed courts in some metropolitan cities, the physical conditions make these courts very stressful and depressing places. Poor physical infrast ructure, dilapidated buildings, little furniture, lack of sanitation and hygiene, gloomy settings with no sitting arrangements for litigan ts, broken windows and dirty conditions characterize many of these courts. Libraries and information resources for lawyers and judges are nonexistent, photocopying equipment is heavily burden ed, corruption amongst clerical staff who handle filing and record keeping is widespread. Ambitious men and women prefer better working conditions. They prefer to join the bar, engage in the practice of law, and then pursue a judicial career via direct appointment to a judgeship in a constitutional court which offers a much more attractive environment — physically and intellectually. The upshot is that the trial court Judiciary generally comprise an inferior quality ofjudicial officer, one ee eee sla ea See

2.

ag

See S.P. Sathe, “ Acces

s to legal education and the legal profession in India” in R. Dhavan, N. Kibble and W. Twinner (ed.) Access to Legal Education and Legal Profe

ssion 165 (1989): R. Segal, S.R. Bhosa le “Legal Education in India: Restructuring and Reshaping” India n Bar Review 1999 Dec. 26: 37-46: Dr. G.S. Pathak in Prof. S.K. Agarwal ed. Legal Education in India. Problems & Perspectives (1973) p. 2-3,

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seeking a secure job that promises monthly emoluments. Thereby, trial court judgeships are reduced to the status of almost routine civil service government jobs in the justice system. Part II: Trainee judges’ characteristics

_There are number of reasons for unsuccessful training that can be attributed to trainee judges. These are: 2.1 Poor legal scholarship and secrecy

The major constraint in the training discourse are judges themselves who believe that their work is confidential, that the public has no business inquiring into their analysis and reasoning in how cases are adjudicated. Some of them view training as a useless endeavor and waste of exercise. Their poor scholarship prompts them to view criticism as a threat to their job security. More and more judges of mediocre scholarship are now making it to the top. This is aptly described by Krishna Iyer as: “*..choices are almost personal, uncontrolled by socially accountable canons and compromises among the thesis. The candidates once selected or rejected are jettisoned or again midwife for unknown grounds. The bar and the public are in the dark. Judges, transferred for suspect behavior emerge as chief justices of a high court or even members of the Supreme Court. One high court Judge who rarely attended court or wrote a judgment was made chief justice of Kerala High Court by the bizarre wisdom of the feudal few of the apex court accidently at the top. To be brief, in the art of choice, the process is a riddle wrapped in mystery, inside an enigma. Management of the judiciary needs vigilance, research, social perspective and national commitment, people’s concerns and socialist, secular convictions.” 2.2 Lack of motivation

Many trainee judges, on account of their closed mindset, traditional value systems, narrow thought process, limited exposure, and egocentric position, remain unmotivated if they are unable to climb up in the hierarchical career, questioning the utility of the educational discourse against their practical court work experience.*

3.

4.

fyer, V.R. Krishna. The Majesty of the Judiciary. New Delhi: Universal, 2007. H.M. Hutchins, L.A. Burke and. “Training transfer: an integrative literature review.” Human

267.

Resource

Development

Review, 2007, Vol. 6 : 263-296 at

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2.3 The problem of participating in self-learning

Not all adults feel comfortable with the idea of participation, very much want the training to be ‘done to them,’ and are either reluctant or refuse to contribute to their own learning. Most adult professionals, including judges, are able to help themselves in the various situations

of work and life they are accustomed to, but some feel helpless in the

new educational and learning situation.> Contrary to popular belief that adult educational methods work successfully for adult professionals, senior judges unwillingly participate in the role play and simulation exercises. Only newly appointed judges are found enthusiastic.

2.4 Training and the tendency to maintain status quo As observed by Tracey et. al., reactions to training play a critical role in the training process.® Positive reactions influence an individual’s willingness to use newly acquired knowledge and to attend future training programmes. Reactions may be classified into — affective and utlity reactions. Affective reaction refers to the extent to which a trainee likes or enjoys training, whereas utlity reaction refers to the percieved applicability or usefulness of the training for subseq uent job performance.’ Utility reaction creates in judges the tendency to resist any change that is being proposed. In the Indian context , I found that this tendency emanates in judges from three sources — personality of the judge, socio-cultural upbringing of the judge, and the quality of education that is undergone by the judge. 2.4.1. Personality

Personality is an important dimension that restricts learning new ideas in the training discourse. Almost on all batch es of the frontline judges that I have administered the MBTI personalit y test®, it emerged that the majority of them are comprised of ISFJ and ISTJ type. This personality resists change, reforms, and innovation s to be brought in to the existing system. These personality traits prompt the judges to oppose judicial reforms. This becomes quite evident when judges are a ee

5. 6.

ee

eT

Malcolm S. Knowles, The Modern practice of adult education: andragogy versus pedagogy, New York, 1970: p. 40.

J. Bruce Tracey, Timothy R. Hinkin, Scott Tannenbaum,

John e. Mathieu. “The influence of individual characteristics and the work environment on varying levels of training outcomes.” Human Resource Development Quarterly, Vol. 12, No. 1, spring 2001: 5-23, at p. 10. 1+. Ve6t i. 8. Created by Isabel Briggs Myers the author of the world’s most widely used personality inventory, the MBTI or Myers-Briggs Type Indicator — is developed and modeled around the ideas and theories of psychologist Carl Jung, a contemporary of Sigmund Freu d and a leading exponent of Gestalt personality theory,

Chap. 7—The Limitation of The Training Discourse

243

told to acquire new skills. There is huge resistance to proposals for proposed court reforms such as doing away with the stenos, typists and additional clerks used for manual filings in the courts. Many judges show reluctance to accept computer automated operations. This same personality also presents itself as a hindrance when legislature introduces progressive legislation. Judges of these personality types challenge the judicial education discourse that calls for change in attitude or approach. 2.4.2. Socio-cultural upbringing Judges from the rural areas are not accustomed to new inventions that are changing the world, and their cultural and educational background does not encourage investment in self-development. Therefore, even when they have good salaries, they spend little or nothing of that salary towards their own intellectual development. There is reluctance to spend even | % of the salary earned to learn new things by investing in books or journals or computers for themselves. This socio-cultural background shows that judges do not give much importance to their own professional development.

The rural upbringing with too much stress on caste, colour, religion and culture in the lives provides yet another challenge to the training discourse and also to the learning process. There is a group that does not believe in equality of gender; does not like men and women sitting together in classroom; shies away from taking part in any collective activity; resorts to character assassination of female litigants, advocates and fellow colleagues; pays too much attention on outer exterior of people who appear in the courts; and draws conclusions about character from this outer exterior. These prejudices then find their way into the decision-making process. 2.5 Prior-experience

Even when adult professionals are well aware of the fact that their experience is not perfect and in need of some correction and completion, it becomes difficult for them to admit these imperfections, because they define themselves largely by experience, and they have a deep investment in its value.? It goes without saying that if a judge unwittingly relies on irrelevant past experience and has thereby become obsolete as times change he/she is unlikely to be cooperative and openminded as an active and eager participant in the training course. To my experience, difficulties of this kind are many, and they threaten to a high degree the effectiveness ofthe learning process during the training discourse.

9.

Malcolm S. Knowles, The Modern practice of adult education: andragogy versus pedagogy, New York, 1970; p. 44.

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2.6 Barriers to learning

Illeris points out to three barriers to learning: mislearning, defense

against learning, and resistance to learning.!° Mislearning is caused by lack of qualifications, lack of concentration, and misunderstanding; defense against learning is being selective in what one learns and resistance to learning is obstruction to learning something in situations that are experienced as unacceptable. Illeris states that there are many individual and situational reasons for non-learning. Learning processes may be blocked or derailed for a variety of reasons, partially or totally. Judges are not free from such barriers. 2.7 Open acceptance for the need and benefits of training Kadens reveals that judges may not openly acknowledge benefits they derive from training:

‘Even those who admit to having had a learning curve remain coy about what they did to teach themselves how to be judges. When asked directly, however, judges readily admit to the difficulties of

learning their jobs’ (2009: 143)."!

Pischke in his paper about continuous training in Germany found out that trainees are reluctant to spend personal time for training activities. Most of those who had undergone training clearly indicated that they would not have participated in the training without the financial assistance received from their employer side or another source.!2 This reluctance to invest in personal development shows lack of commitment to continuing education on part of professionals. Judges too, whether in India or elsewhere often participate in learning only when it

is provided it free of cost.!3

.

A stark difference is found in the attitude towards judicial education between some civil law and some common law countries. Where judicial education is publicly recognised and accepted for judges in most advanced and some developing civil law countries, in some developing common law countries, many judges prefer to keep the process hidden from public awareness, presuming that judges already know everything they need to know. To that extent, we have this process going on under the blanket of titles like conferences, retreats, a

10.

Wg 2. 13.

Illeris, K. How we learn. Learning and non-learning in school and beyond. London: Routledge, 2007. Kadens, Emily. “The Puzzle of Judicial Education: The Case of Chief Justice William de Grey.” Brooklyn Law Review. 2009. Vol. 75, issue no. 1: 143200. Jérn-Steffen Pischke, Continuous Training in Germa ny, Discussion No. 137, March 2000, MIT, Cambridge and IZA, Bonn at p. 8. Report of EU 2012.

Paper

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workshops, seminars, efc. This difference according to Kadens emerges because: ‘In civil law countries, the judiciary has long been viewed as a career, an honorable one, perhaps, but just one amongst many choices a young lawyer could make. The law student or law school graduate selects the judicial track, recives focused training, and progresses up the hierarchy of courts as his or her abilities, interests, and experience warrant. In such a system, the fact of judicial education is openely acknowledged. In common law countries, by contrast, a judgeship long ago became a reward for a successful career as a practitioner. It was not the career the young lawyer prepared for; it was, and remains, the plum he hoped he might earn by service in another branch of the law’.'4 2.8 Attachment style of individual learners

Another constraint in effective transfer of training relates to attachment style of individual judges. Developed primarily by

Bowlby,!> attachment theory holds that from infancy people form an internal working model of other people as well as themselves, based upon the perceived accessibility of their primary care taker. Attachment styles systematically influence how people seek and process information, interact with and evaluate others, engage in tasks

and regulate their emotions.!© The two variables that determine a person’s attachment style are (i) one’s belief that one is worthy of love and (ii) one’s belief that significant others can be depended upon to be

accessible.!’ At present, three attachment styles have been identified — secure, anxious-ambivalent and avoidant. According to attachment theory, people with secure attachment style view others as trustworthy and themselves as worthy of care; anxious ambivalent attachment results in a high dependence on others for a sense of well being. There is over-involvement in close relationships characterized by incoherence in discussions, unnecessary intrusions and interruptions, and ex-

14.

(Kadens 2009:145).

15.

Bowlby, J. (1969). Attachment and loss. New York: Basic Books. See also, Bowlby, J. (1979). The making & breaking of affectional bonds. London: Tavistock Publications. Lopez, F. G., & Brennan, K. A. (2000). Dynamic processes underlying adult attachment organization: Toward an attachment theoretical perspective on the healthy and effective self. Journal of Counseling Psychology, 47, 283.

16.

16.

17.

See also, Rice, K.G., & Ali Mirzadeh,

S.A. (2000). Perfectionism, attach-

ment, and adjustment. Journal of Counseling Psychology, 47, 238-250.

Gary P. Latham and Peter A. Heslin, Training the Trainee as well as the Trainer: Lessons to be Learned From Psychology, Vol. 44, issue 3, pp. 218-231.

Clinical

Psychology,

Canadian

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aggerated emotionality.!® The desire for closeness, combined with a fear of rejection often triggers angry protests when a significant other is perceived as ignoring them or as inaccessible.!? An avoidant attachment style stems from consistent rejection of attempts at closeness. This sometimes culminates in a positive view of self and a negative view of others because of their perceived lack of availability.

Attachment styles determine how trainee judges will view training activity as well as their work or job. Considerable research and empirical studies prgus that attachment styles affect task exploration and engagement.?° They further demonstrate that secure attachment style is the most positive style and people with this style work without undue distraction, ambivalence or anxiety.2! On the other hand, anxious ambivalent people find relationship concerns affecting their work and productivity and they often get feeling of being misunderstood.

unappreciated and fear other’s impression about their work.22 It has

been also found that people falling in the third category — with avoidant attachment style use their work as a means to minimize social interactions. Different attachment style of individual Judges implies great variations in the participation by judges in their learning for any given training programme. -

Part III : Judicial Trainer and methods employed for trainings Like all interactions between human beings, training is a complex business, involving both the personality and skills of the trainer, or facilitator, together with the teaching environment in which the training takes place and the willingness of the trainee to learn. Trainee judges are not solely responsible for the failure of learning from the transfe r of training. Collins et. al.23 in their work cast the heavy responsibility on the trainer and make trainer responsible for failure or success of learning. According to these authors, trainers have to create an atmosphere in the training duration conducive to successful learning by the trainees. Judicial trainers need to note the heart of Dewey’s teaching: the aim of eee

18.

19. 20. 21.

22.

23.

Searle, B. & Meara, N.M. (1999). Affective dimensions of attachment styles: Exploring self-reported attachment style, gender, and emotional experience among college students. Journal of Counseling Psych ology, 46, 147-158. Bowlby, J. (1969). Attachment and loss. New York: Basic Books. Bowlby, J. (1969). Attachment and loss. New York: Basic Books. Horowitz, L.M.., Rosenberg, S.E., & Bartholome w, K. (1993). Interpersonal problems, attachment styles, and outcome in brief dynamic psychotherapy. Journal of Consulting & Clinical Psychology, 61, 549-560, Hazan, C., & Shaver, P.R. (1990). Love and work: An

attachment-theoretical perspective. Journal of Personality & Social Psych ology, 59, 270-280. Stewart Collins, Margaret Coffey, Francis Cowe. “Stress, Support and well being as perceived by probation trainees.” Proba tion Journal, 2009, Vol. 56, No. 3 : 238-256.

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education is to teach learners ‘how’ to think and not ‘what’ to think.24 The military-type instructions churned out during the judicial education discourse to judges who have been given vast discretionary powers under the various statutes do not prepare judges on ‘how’to think.

Some of the reasons for the failure of learning by judges attributable to judicial trainer are: (1) lack of understanding about andragogy as a discipline; (ii) lack of skills to motivate adult professionals to participate in their own learning and development; (iii) no scientific qualifications to undertake continuous educational activities; (iv) supply side deficiency; and (v) arbitrariness. 3.1 Judicial education institutional management in India

There being a divide between the career judiciary and the higher judiciary, the judicial education needs of both groups are addressed with different strategies. For the career judiciary, the lowest post to enter the judicial system being that of CJJD or JMFC, the consensus amongst the high courts is to train these officers for a one-year period in the judicial education institution before appointing them the bench. In the state of Maharashtra, under the high court of Bombay directive, once selected, candidates are sent to Maharashtra Judicial Academy for four months of residential training. After this training judges are sent to the courts for six months to obtain practical experience in judging. After completing six months in the courts where they sit along with senior judges and observe working of the court, they return to the Academy for another two months of residential training.

Again not all states in India follow this timeline; from state to state, there is variation. Ideally each state should have its own high court and its own judicial education institution but this is not the case. Several high courts have territorial jurisdiction over more than one state. For instance, Bombay high court has jurisdiction over Maharashtra, Goa and union territories Daman and Diu, and Lakshadweep. Similarly, Gauhati high court has jurisdiction over seven sister states of northeast India — Assam, Meghalaya, Manipur, Mizoram, Nagaland, Tripura and Sikkim. This extension of jurisdiction well beyond the boundaries of the state is justified on account low rate of litigation in some territories and therefore it was not thought fit to have a separate institutional judicial framework for these territories. For instance take the case of Gauhati high court. Even after having a jurisdiction over the seven sister states, this court has the lowest litigation rate because the population there prefers that its claims be addressed by alternative

24.

John Dewey, Ethical principles underlying education. In : Early Works of John Dewey. Carbondale, IL, Southern Illinois University Press, 1971, Vol. 5,

pp. 54-83.

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Discourse on Judicial Education

dispute

resolution

forums

rather

than

the

formal

court

dispute-

resolution process.?> Likewise is the case of judicial education institutions in India. Ideally there has to be one apex institution under the supervisory control of the Supreme Court of India and at least 21 others in different states in the supervisory control of the high courts. However, this is not the case. At the national level, under the administrative control of the

Supreme Court, there is National Judicial Academy at Bhopal established and operational since the year 2004. At the state level, not every high court accords the same level of importance to judicial training. In fact, at the state level, judicial education dissemination is

directly dependent on the priority that the high court gives to it. Therefore, state judicial academies, are not functional in all the states.

Also, some states have established more than one institution to provide judicial training. Presently; Maharashtra and Tamil Nadu have more than one judicial education institution whereas the states like West Bengal and seven states in the northeast do not have functional judicial academies. They send their judges to Delhi for the judicial training.

Judicial education in .most states is not backed by any sound planning and policy. Senior district judges detailed to judicial academies and entrusted the task of educating fellow judges often lack a vision for training and sometimes even do not fully understand the purpose of training for their colleagues. Occasionally a district judge posted at judicial academy has lots of enthusiasm. Also, enthusiasm for judicial training as opposed to cynical feelings towards its utility will not be sufficient to develop the discourse to raise intellectual abilities in judges to appreciate law and provide reasoned decisions. The discourse has to provide them judicial skills required for justice according to constitutional morality and mere enthusiasm for training on the part of management will not translate the training into a skill-development exercise. Enthusiasm is not helpful in stabilizing the core ingredients of the training. Few district judges have professional training in the principles of curriculum development, and many treat their posts in the judicial education institution as an extension of their court work. They know of no scientific principles to be employed in designing of curriculum,

teaching

methodology,

faculty

selection,

vision and goal for education, tools to be employed effectiveness of the professional education.

mission

and

in monitoring

There have been various reports by committees constituted by the government of India from time to time, for example the Shetty Commi ssion, to do away with the wide variance in the type of induction a

25.

Chief Justice Madan B. Lokur in his address on court and case management issues to trainee judges in Maharashtra Judicial Academy acquainted everyone present with this fact.

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training programmes for judges in terms of duration, content and quality. From year 2006 to 2010, the National Judicial Academy at Bhopal conducted many consultation meetings with the then-directors of state judicial academies to help them evolve a common approach to Judicial education, and it also developed a minimum core curriculum for judicial education, both for induction and for continuing education. However, the state judicial academies are free to adopt or abandon this

proposed curriculum and even today, every state judicial academy is doing its own things with no coherent national strategy and systemic training objectives in place. The only standardization that these seven years of judicial training has yielded in my experience is in the topic of constitutionalism. Judges almost in every state are now made to realize through the judicial trainings the relevance of constitutionalism to their judicial work. The time invested in training is directly related to the status of a judge in the hierarchical system. CJJD/JMFC judges are deemed appropriate candidates for a one-year residential training requirement. Judges at the next-higher level of CJSD/CJM at most are provided a one-month residential orientation course. Judges one level above them, ADJ, may not be provided more than 10 days of training. High court judges have no obligation to participate in training and typically do not spent more than two or three days at the National Judicial Academy in Bhopal in any seminar. Supreme Court justices from years 2004 to 2011 attended only two retreats, one in 2005 and one in 2008 of four days each. Not all judges are able to attend training programmes during their careers, even with so many institutions engaged in training Indian judges. One widespread perspective on judicial training is that it should be required only of the subordinate judiciary; some even give it the colour of punishment. For instance, there have been incidents of a judicial order that sends a judge to a specific course at the judicial

training institute on account of judicial error.”° Close observation of the district judiciary reveals significant challenges within the district judiciary. Every objectionable vice-wrath,

26.

In Rohit Kumar vs. State of NCT of Delhi, 2008 Cri LJ 3561, a Delhi High Court judge in an appeal from the order of ADJ found that he had not correctly applied the criminal procedure. He therefore in open judgment ordered the judge to undergo a 3 months refresher course in criminal law at Delhi Judicial Academy and even asked to Academy to submit his performance at training report back to the court. Usually this decision could have been made at administrative side without exposing identity of the judge to the whole world and making him a topic ofthe gossip circles. Also, judicial training at the Academy run by his fellow colleagues or even his junior colleagues, makes one wonder, how sure one can be that at appropriate course would be offered to judge to give up his misconceptions.

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greed, sloth, pride, lust, envy, and gluttony —

can be identified.*’

There is a huge misuse of hierarchy and performance appraisal tools. I focus the remainder of this article on this segment of judiciary to enumerate the kinds of difficulties one may encounter in the process of judicial training. 3.2 Training in the absence of needs assessment

The state judicial academies managed by district judges are not equipped to assess the professional training needs of judicial officers from time to time in their state, in part because they have not been trained in evaluation techniques to determine the utility of training delivered. Further, although trainee officers are selected by the high court, the actual selection function often falls to the registry of the high court. Indeed, in some high courts some trainees are sent to multiple training sessions while other judges never have the opportunity to undergo training during their careers. Another problem is that trainee judges are not asked about their willingness to undergo trainings. This results in forced training for a judge who has no inclination or need to learn the subject. Also, some judges on the verge of retirement are sent for the training. They question the relevance of the training for them. High court registry offices cannot be blamed for poor selections because they already are heavily burdened with other tasks related to court management, budget formulation, protocol follow ups, etc. There is no system in place for assessing needs to match judges to programs. 3.3

Training by employing disciplinary techniques

methodology

of fear, sanctions

and

Trainee judges are not solely responsible for the failure of learning from the transfer of training in the judicial education discourse. Collins et. al. in their work cast the heavy responsibility on the trainer and make trainer responsible for failure or success of learning. According to these authors, trainers have to create an atmosphere in the training

duration conducive to successful learning by the trainees.28 This means

that the training has the potential to change learner mindsets at any age or any stage of the career provided that an appropriate methodology is eeeee

27.

28.

ee

Even though recently former judge of the Supreme Court of India, justice Ruma Pal in her speech at fifth V.M. Tarkunde Memorial Lecture on ‘An Independent Judiciary’, acknowledge that the higher judiciary is guilty of these sins, I would like to add to her observation that the Judicia ry below this higher judiciary [which the constitution designated as the subordinate judiciary] is no less better, but far more worse. See Higher judicia ry guilty of 7 sins: ex-SC judge pulls no punches, Indian Express Newspaper, 10 November 2011. Stewart Collins, Margaret Coffey, Francis Cowe. “Stress , Support and well being as perceived by probation trainees.” Probation Journal , 2009, Vol. 56, No. 3: 238-256.

Chap. 7—The Limitation of The Training Discourse

24

employed by the trainer. Absent correct methodology, the trainings cannot shred hardened attitude of adults who feel reluctant to change. My experience and interaction with the state judicial academies in India reveals amusing and unusual techniques deployed by the district judges who manage their day-to-day functioning. One prominently used is the technique of instilling fear to inspire respect for themselves and compliance with their directions. They create concern on the part of the trainee judges that the district judge teaching the class may tomorrow become a guardian judge, administrative judge or the principal district judge and may have some influence on the promotion, performance review, or disciplinary procedure against the trainee judges. This fear of the future ensures that trainee judges remain obedient in the class, do not question the utility of what is being taught, and maintain the standard of discipline dictated. At the end of the training period, an interview is conducted where the trainer judge tells trainee judges about their performance during the training period; a written report is subsequently forwarded to the high court for its information. This interview and reporting process make young entrants to the profession very nervous; it also produces responses from the trainees in the form of sessions or two or more hours during which they praise and sing songs to appease the trainer judge. Also, the evaluation feedback form asks trainee judges to identify themselves by providing their name, place of posting, efc. Hence, if trainees criticize the trainer for poor delivery or inadequate mastery of the topic or record other comments reflecting bad management of the Academy, in all likelihood it would result in a quid pro quo on their personal performance reports that the academy prepares and sends to the high court. Such tactics are adopted by almost all the fully functional state judicial academies in India managed by the district judges. . 3.4 Perception about successful career and judicial trainings

Perception, a product of many environmental factors, plays an important hindrance role in judicial training. Almost all young trainee judges join the judiciary with an optimistic attitude, but that perception soon devolves into a highly pessimistic attitude about their career growth. They are brainwashed to believe that the career growth is linked not to their performance on the bench but to the extraneous circumstances like family background, financial capability, political connections, ability to keep superiors happy, good fortune and networks within the higher judiciary. This perception is nurtured by their peers and seniors who have spent considerable time in the judicial system. It persists because there is no transparency criterion or national policy communicated to everyone of the factors considered in promotions,

demotions,

transfer and removal

of the judicial officers.

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Discourse on Judicial Education

This perception is created in the minds of young entrants by the senior hawks in the career judiciary who wish to exercise control over the future of these young entrants so as to create obedience, subjugation, loyalty and allegiance among the junior entrants. This pessimistic perception about career growth based on performance in the system demotivates the young entrants to take full advantage of their judicial training opportunities. 3.5 Treating different personalities on the same level

Ten Have (1973)? brings to our notice one major blunder that trainers commit; it is treating adult as a homogeneous group, shadowing on different personalities that emerge as a result of aging process. He acquaints us with six different types of attitudes that have been scientifically, medically and socially proved to exist in adults after age of 40. These six attitudes produce six types of adults?°. All of them have different educational and therapy requirements of which judicial trainers are not aware. 3.6 Lessons learnt from some specific training courses

I will now recall my personal experiences in the trainings to provide how the background of a judge stands as an impediment to learning process. 3.6.1. Refresher course for the Family court judges

Family court judges in Maharashtra State belong to two different cadres or groups. One group is appointed directly to the family courts through written examinations; the other group comprises judges transferred to the family court for a period of three years. The Supreme Court judgment in the year 2011 made clear that judges who are directly appointed to the family courts in Maharashtra cannot be considered for elevation to the high court. This decision meant that once a judge has been selected for appointment as family court judge then he /she will remain in that capacity until retirement at the age of 58 years. Therefore, family court judges can be transferred only from one family court in the state to another family court. They can be transferred neither to any other type of court nor, like their counterparts in the district judiciary, be considered for elevation to the high court. This separation has not been accepted well by family court judges because it effectively eliminates any possibility for promotion. They

29.

30.

he T.T. Ten. “Andragogy in later life.” SCUTREA 1997. SCUTREA, 73. 1-25. 1. The accepting type; 2. The expanding type; 3. The introverting type; 4. The struggling type; 5. The relaxing type; 6. The resigning type.

Chap. 7—The Limitation of The Training Discourse

ya,

feel they also suffer because they have no opportunity to adjudicate different types of cases or to improve their status. In July 2011, in the refresher course on the changing nature of matrimonial litigation for the judges of the family court, the high court registry had nominated judges from both the groups along with counselors who are attached to the family courts for encouraging mediation and conciliation amongst the litigants. On the first day, I experienced firsthand the frustrations of the family court judges who are not eligible for elevation. I learned in the opening session that judges who had put more than 20 to 25 years in service as family court judges felt entrapped within the system. They also were hostile, given their many years of experience, to this particular course because they felt they already knew so much that there was no need for them to undergo any additional training discourse at this moment in their careers.

The other group comprised newly appointed family court judges on transfer basis. These judges, prior to being transferred to the family courts, presided over cases in drug courts or other special criminal courts dealing with serious offences. Judges from this group lacked basic understanding of the objectives of the family court. In fact, one judge throughout the three-day course, displayed biases and prejudices against women in matrimonial discords. This judge had a problem with almost every trainer on the gender justice issues and had a strong reservation on maintenance and alimony to be afforded to women. These reservations that some judges displayed toward progressive legislation presents a challenge to the successful transfer of learning in the training process.

In December 2012, in yet another refresher course for newly appointed family court judges, I found some judges to be highly conservative about outer appearances of litigants. Some expressed an open dislike of women litigants who dress well, wear makeup or show no remorse and hurt in the divorce proceedings. Also, some of them expressed dislike for nuclear families as they themselves resided in joint families. Persuading family court judges abandon their personal cultural assumptions poses another formidable challenge to the training process. It is highly unlikely that they will give up their personal morality and do judging based on the constitutional morality.

3.6.2. Refresher course for the juvenile justice board members In the year 2000, in order to conform to the mandate of the UN Convention on the Rights of the Children to which India is signatory, the parliament raised the legal age of a child under law from 16 to 18 years. Eleven years have since transpired, yet even today some trial

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Discourse on Judicial Education

court judges question the wisdom of the parliament requiring treatment under law of a person below the age of 18 years as a child. They prefer the earlier statute and argue that 16 years was sufficient to afford protection to children. Continuous seminars, conferences, refresher courses and workshops have not been able to change the mindset of the trial judiciary on the treatments to be afforded to adolescents aging 16 to 18 years. They even come out with the reasons to reduce the age of child from 18 to 16 saying that this group is largely involved in all kinds of criminal activities. The use of disciplines like psychology in the training discourse to shake this view has not proved very successful. The only way forward seems to be a strong message to be circulated to the trial court judiciary from the high court to stop challenging the parliamentary wisdom.

3.6.3. Orientation programme for the senior district judges In a month-long orientation programme for newly appointed or promoted district judges in Maharashtra Judicial Academy, I found district judges questioning the precedents of the high court and the Supreme Court of India; intheir view, these precedents were immoral. For them, the constitutional courts are compromising Indian culture and values by validating same-sex relationships, live-in-relations, and sex outside of marriage; therefore, these should be discarded. Since the cultural and moral value index differs from one set of judges to another, judicial trainers like me are challenged as to how to move forward. The gap in cultural and moral values, anchored in the education a judge may have undergone, plays a crucial role in his/her selection and appointment at different levels within the judiciary. | have learned that the best methodology to move forward under such circumstances is to insist that judges from all levels rely on the morality set forth in constitutional precedent rather than one’s personal and cultural morality. The constitutional morality reflects the larger values of freedom, equality, dignity, equity and fairness that must be reflected in judicial decision making is a new concept to the trail court judiciary, but a minority of judges are sufficiently open minded to internalize this idea. In fact most of them found it to be an academic imagination and not practical approach for the courts. 3.6.4. Induction courses for frontline judges

The dynamic of training changes depending upon the power invoked by the judicial trainer. Trial court judges who undergo training react very differently to judges and non-judges. They do not question, for example, judge trainers for fear of reprisal on the utility of the ADR in their case management course. They pretend to be in complete agreement with the philosophy and utility of the ADR in court and case management. However, this pretension soon fades away if the acade-

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255

mic trainer is substituted for the judge trainer. Suddenly a volley of questions is hurled at the trainer, demanding to know why there is a need to privatize the justice! This step-motherly treatment of the academic trainers has led to the exit of some eminent academic trainers from the judicial training field. Conclusion

Whereas promotions to judgeships at the high courts and the Supreme Court of India are earned after undergoing high-quality legal education, success in the legal profession, standing in the bar efc., the trial court judgeship 1s all about an ability to crack a competitive exam. There is therefore a huge ideological difference between the two groups of judges in India. The level of education, experience and exposure to the world segregates these two into separate groups with dramatic differences in status. It then falls to judicial education institutions to narrow the gap in knowledge, understanding and competence of these two groups. However, one question remains: can this task be fulfilled by the judicial academies under the immediate supervision of judges from the career judiciary (although under the management control of the high court) on the very lines as if they are courts under the administrative control of the high court. My experience tells me that the senior district judges are reinforcing the very values from which the judiciary needs to free itself. If this situation is not analyzed and resolved, no long-term improvement can result from the judicial education discourse and no benefit will accrue to the system. With the system remaining as it is from where we began, the public expenditure on the judicial education discourse?! will not be sustainable in the long run. Further, while choosing trainers for the judicial trainings, the policy makers. in the High Court and the Supreme Court, need to take note that many jurisdictions are now insisting on qualified trainers. In

England and Scotland there are regulations** requiring trainers in the further education sector to have qualified or be actively working toward a stipulated qualification.2? There is the usual ‘grandfather’ clause

31.

32.

33.

13th Finance Commission provides the grant of INR 2500000000 for the period 2010 to 2015 to state judicial academies so as to bring the desired judicial reforms through the judicial education discourse. See para 12.84, p. 221, chapter 12 of the thirteenth Finance Commission report available online on the website of the Finance Commission ofIndia. (S.1.No.1209 Further Education Teachers Qualifications (England) Regulations). See Ofsted report in 2003, a DfES report in 2004 Equipping Our Teachers and a FE White Paper in 2006. (S.1. 2007 No. 2264 — The (England) Regulations 2007).

Further

Education

Teachers,

Qualifications

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Discourse on Judicial Education

allowing those already working to continue, but trainers new to the profession will have to be fully qualified.

Further, there is a need for a shift in the field of training — from mere emphasis on trainees who are recipients of training to the trainer

who administers the training.>4 No actual benefits will accrue if the role of the administrator of training is completely ignored and marginalized. The trainer’s capacity building is equally important to maximize the trainee’s learning. Training of trainers has been completely ignored and hardly any attention is paid to the role of the trainer for organizational

survival in a dynamic environment of hyper-competition.?>

Snr ee et

34.

35.

Gary P. Latham and Peter A. Heslin, ‘Training the trainee as well as the trainer: Lessons to be learned from Clinical Psychology’, Canadian Psychology, 2003. Electronic copy available http://ssrn.com/ab stract= 1275117,

Hamel, G. (2000). Leading the revolution. Boston, MA: School Press.

Harvard Business o

CHAPTER EIGHT

CONCLUSION

AND RECOMMENDATIONS

Three different judges, from three different states of India, whom I met during the development and dissemination of the JE discourse, when asked, either as trainer judge, or as trainee judge, about their take on the role of the JE, provided me a very interesting feedback.

A judge from Delhi who was providing fellow judges from Maharashtra, 40 hours of judicial training on mediation, told me while discussing about the judicial training on sentencing issue, that he would use his discretion, which the penal law gives, from imposing fine to sentencing three years of rigorous imprisonment, for a crime of theft, to award the maximum punishment, i.e., three years of rigorous imprisonment. He reasoned that judges should not see who is criminal or why he committed crime, but judges should see how much victim of the theft/crime has suffered due to the theft/crime. Judges must consider how much victim of theft was in need of the money that was stolen from him/her. Maximum punishment of three years for this crime, as prescribed by the penal law, would deter others from indulging in such acts in future. A judge from Maharashtra India (justices of the high courts the Indian culture by legalizing mutual agreed on divorces and finish all the Indian culture very the society and their judgments taught by the judicial academy.

told me that higher ranking judges in and the Supreme Court) are polluting living-in relationships, homosexuality, such judges who are so liberal will soon. They are threat in themselves to should not therefore be relied on or

A judge from the state of Uttar Pradesh, who was training judges in the state judicial academy, told me that judicial education is not very different from what parents teach their children. If your child fights or gets injured or bullied by another child who belongs to decent family, then by all means take the case to other child’s parents and tell them to see that their child does not bully or injure your child. But if the parents of other child are highly influential and or the mafia kind, then you must slap your own child, rebuke him for such company and further

[ 257]

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Discourse on Judicial Education

provide proof that he/she are no good at anything in life by pointing to the less marks secured in the examination. Similar approach is to be followed in the JE discourse. Junior judges are to be discouraged from voicing their complaints about unpleasant happening or occurrences in the court. They need to be trained for saving their job and avoid or ignore court atmosphere or lawyers that may intimidate. If a judge comes with some problem or complaint, then lecture him/her why only he/she gets into trouble. Nothing similar is ever happening to others and further discourage by giving opinion of poor performance of junior judge. He then told that me only senior judges can teach all this to their Junior judges. Outsiders and academicians neither have any idea as to how a junior judge may be harassed and therefore will not be able to advise properly. Because of wrong teachings a judge may lose his/her job!

Interpreting these three observations, it emerges that for a particular judge from Delhi, who was very emotional about property lost wrongfully, as a judge or as a judicial trainer, his message to junior judges through the JE discourse would be deal sternly with wrongdoers. Therefore before him as well as before the others whom he could influence in the training discourse, the chances of accused successfully presenting defence in their support are much narrower. For a judge from Maharashtra, law and morality are not different things and, if in

the future, he undertakes the task of development and dissemination of

the JE discourse, then trainee judges under him, would be mentored to do judging based on their personal morality, forgetting about the constitutional morality. A judge from the largest state of India, Uttar Pradesh, thinks that the JE discourse is nothing but senior judges training junior judges to save their jobs/ services at any cost. After all judges get good perks, good status, and inherent in it are hidden so many opportunities to rise up. Why to give up these good things over the problems that exist. They will remain as they are. A judge should only know how to wriggle out of the problematic path. Judicial discretion like the police and the prosecutorial discretion is inevitable. However, as the world becomes more transparent, court statistics easily available at the click of a mouse, number of studies and

scholarships on the rise showing an interest in the court operations, there have been exposure and shocking revelation about number of problems that are arising with the exercise of such discretion. The scholarship reveals that all is not well in the discretion department of the judiciary. For instance, a study by Atkins and Pogrebin! prove that in matters pertaining to bail, evidence, argument hearing, imposition of senten ce, ——————

1.

Burton Atkins and Mark Pogrebin, The Invisible Justice System: Discretion and the Law, Criminal Justice Studies: Anderson Publishing Co. 1978: USA.

Chap. 8—Conclusion and Recommendations

259

all over the world, and especially in the common law jurisdictions, there is lot of vagueness in criteria adopted by trial courts. On bail matters this study proves that

“judges develop their own modus operandi not only in relationship to how much the amount of bail should be, but also in relation to the function that pretrial release or detention should serve. Not surprisingly then judicial discretion has a considerable impact upon the bail decision since each judge has his own perception of the seriousness of a crime and of the defendant’s moral character. It is not at all uncommon for judges to set their own bail rate schedules. In some instances these schedules are idiosyncratic in that they reflect the judges’ perception of the seriousness of offences and not society’s view of the severity of crime....” An another study by Ares et. al.* found that in New York judges generally imposed higher bail in robbery and burglary offences than in sex-related offences even though the latter are crime against persons as opposed to crime against property. This view of New York judges treating property offences more serious than sex-related offences suggests priority of legal values that might be questioned by feminist legal theorists. D’Esposoto? in his research revealed that (i) judges in North Carolina imposed an average of 77.6 months upon narcotic violators, whereas those in South Carolina working within the same statutory parameters and generally within the same geographic area within the US, sentenced narcotic violators to an average of 56.3 months in jail; (ii) one federal district court in Texas sentenced forgers to an average of 43 months, yet another in the same state sentenced forgers to only 27.2 months.

According to Atkins and Pogrebin,

“the causes of sentencing disparity and discretion lie in the combined effect of legislative policies that impose maximum and minimum thresholds for sentence, indeterminate sentences, and the judge’s perception of the utility of certain legal policies..”* Carlo Ginzburg, from Italy, tells us the story of one trial stretching for more than 30 years, with grave injustices done to various courts in actors involved in that trial, insensitivity of judges, impact of off-hand

2.

3. 4.

Charles E. Ares, Anne Rankin and Herbert Sturz, The Administration of Bail

in New York, 38 N.Y.U.L. Rev. (1963). Julian C.D’Esposoto, Jr., Sentencing J.C.L.C. and P.S. (1969) at p. 183. Atkins and Pogrebin, n. | at p. 7.

Disparity:

Causes

and

Cures,

60

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Discourse on Judicial Education

remarks made by a judge leading to one after events and arrests, courts inventing new tools of evidence to suppress unrests and organised crimes in Italy. Through this one trial, the insensitivity on the part of judiciary and the story of miscarriage of justice is narrated leading to proof that judges are not infallible.°

The limited understanding on the role of the training discourse and or its contribution to the career of a judge, and with so many studies demonstrating the need to improve administration of justice through the courts of law, I set myself for a journey to explore what should be the aim of the judicial training and how the JE discourse can help judges in improving the ways they exercise their judicial discretion. This book is based on the doctoral study® which was undertaken to explore theories and conceptual framework that already exists in the training literature and to draw from it relevant principles, values and methods to be applied in the further education of judges’ so as to develop a desire in judges for self-improvement.

To understand what should be the aim of the JE discourse and why should the state and tax payer be allowing investments in this discourse, I started doctoral study to analyse how other disciplines are conceptualizing further education of their professionals, what benefits are accruing as a result thereof, what kind of pedagogies for training, further education of adults are being developed, which of these can be used for judicial trainings, what should be the eventual aim of the further education to be given to judges, and so on. Various chapters of the doctoral study which is now the present book therefore suggest improvement in the state of things that exist presently so that the discourse does not end up providing opportunities to travel, build relationships, explore food and weather in different locations—all at the cost of the state money or even tax payers’ money.

I started with the hypothesis that the judicial professionalization should form the ultimate aim and objective for the JE discourse so that through the judicial professionalization we are able to enhance judicial performance, erase subjectivity, personal morality and bureaucratic mindset prevailing amongst judges, and contribute to judicial institutions that provide justice based on rationality, constitutional morality, and objectivity.

5.

6.

7.

Carlo Ginzburg, The Judge And The Historian, Verso: London (1999).

Done at University of Delhi from 2006-2011 with Commonwealth Split Site Scholarship at UK for 2008-2009. Which henceforth would be termed as the judicial education discourse or simply as the JE discourse.

Chap. 8&—Conclusion and Recommendations

261

This book therefore provides link between judicial professionalization and the training discourse. It provides why there is need to professionalize the judicial workforce, how the JE discourse can help in the judicial professionalization project, what are impediments to the effective learning from the discourse by judges.

Qualitative and quantitative information on the need for a separate educational discourse for judges to improve their performance, professionalism, attitude, thought process and behaviour, through case outcomes, the opinions of senior judges and training experts is provided throughout. An examination of the effectiveness of the discourse to serve the cause of justice too is explored. Information on different jurisdictions of the world regarding their judicial trainings and how it serves the agenda of judicial professionalization is also discussed. Research data in support of the claims that I make is either have been collected through email interviews provided in Annexure IV at page 290 of the book or personal interviews as enclosed in Annexure VII at page 295 of the book or from the official websites.

I have done literature review of wide disciplines, and have not restricted my study to just legal materials. The commonwealth scholarship period and the UK exposure was beneficial and useful in this regard and I immensely owe this work to it. Accessibility of sociology, psychology, teaching discipline materials at the libraries in the University of Warwick, UK and the Indian law institute, New Delhi helped me to give proper perspective and direction to my thesis work along with the academic inputs from my supervisors—Justice Arjan Sikri, Ann Stewart and Prof. Upendra Baxi. This book is about judicial education which is a young science.8 The JE discourse concerns about the development and dissemination of the knowledge discourse that is not restricted only to the judicial matters,

but

draws

from

many

other

disciplines,

social

sciences,

economics, politics, pure sciences, psychology, efc. all amalgamated in right proportion to help judiciary in their justice dispensation functions. The subject has not been as widely covered as constitutionalization or globalization or competition law, and, therefore, academic pieces be they in book, journal or report of international repute have been few. The limited work done previously has its own advantages: one is able to find new ideas, and produce works which has not drawn too much inspiration from the other works. Therefore this book gave me lot of scope to say about my own experience.

8.

Wheeler, Robert Carp and Russel. Sink or swim: The Socialisation of a Federal District Judge, Journal of Public Law (1972): 359-70.

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Discourse on Judicial Education

A series of analysis in preceding chapters supports the need for further education of judges, the need for judicial professionalization, the need for having an effective educational discourse that helps in the judicial professionalization. In this conclusive chapter, I sum up all previous analysis and provide suggestions to future research that should incorporate a multilevel framework and consider the multi-dimensional nature of the training outcomes.

After examining the context to the establishment and development of the JE discourse, the lack of clarity about the policy objectives of the JE discourse, the lack of vision to realize the long term effects of the discourse, the lack of methodology by which transfer of learning is possible, important suggestions are provided throughout so that a systemic, planned and well thought out training is provided to judges

because most of these trainings are for duration of 2 or 3 days or

sometimes a week long course is provided. The need for well thought out agenda for the training, so that it does not end up into conferences where higher ranking judges or experts keep reinforcing the very same values from which we need to get rid of, is stressed by all the chapters.

The book proves that developing and conducting effective training programme is no easy task. Careful consideration needs to be given to a seemingly infinite number of variables and issues. In every chapter this is pointed out-with different examples.

Chapter seven about constraints faced in the path of judicial professionalization clarifies that judicial officers have lot of negative perceptions about their work, power, authority, position in the hierarchy and this conception about their limits have a negative effect on pre-training motivation which in turn influences training reactions and learning.

Chapter four and seven together clarify that in order to succeed in making any impact through training interventions, consideration has to be given to the factors that may affect pre-training motivation and to the subsequent impact of pre-training motivation on training outcomes. Multiple dimensions of relevant training outcomes need to be considered in order to gain a more complete understanding of training effectiveness. Attention needs to be paid to design and structure of trainee’s position in the system so that appropriate program which helps the individual judge is delivered to him or her.

The first chapter on the role of JE discourse provides ten differe nt reasons for the financial support to be given to further educat ion of judges. It also provides twelve more reasons on why the legal education that judges have undergone would not be adequate to help them in judicial decision making. It searches answers for following research questions: why not to train judges to attain competence in judging work before assigning them the task of decision making? What effect training

Chap. 8&—Conclusion and Recommendations

263

can have on judges’ productivity and performance? How through improved performance on the Bench, those who access justice system can benefit? It proves various roles that the judicial education is playing: increasing judicial productivity and performance, increasing capacity to perform complex tasks, ensure timeliness of decision making process, enhancing capacity to innovate new remedies by providing greater clarity on the role of law and the role of a judge in a democratic constitutional framework, improve judicial work culture, provide easy access to justice etc. This chapter apart from establishing the need of institutionalizing the continuous education for judges, suggests for the addition of suffix discourse to ‘judicial education’ or ‘judicial training’ to opt out of nomenclature preferences of one over another. This is helpful to incorporate widest possible objectives in further education to be met.

My second chapter is a sociological inquiry on judiciary to understand if the judiciary in India and elsewhere can be grouped as a profession. Before my research, one such similar attempt was made by Paterson.” Alan Paterson applied the sociology of the professions to the English judges by examining different characteristics or traits of professionalism such as occupational autonomy, career pattern, control over production of producers, ethics code, professional association, professional training and self perception to the judiciary in the UK to know if it constitutes an occupational group to which the label profession can be attached. He came to conclusion that judiciary is an ambiguous entity. It has some of the traits of a profession but lacks others. This chapter demonstrates that just because judiciary falls short of some attributes, does not make the case for its exclusion in the category of the profession. It also provides the advantages that the legal and justice system stands to gain through the judicial professionalisation project are far many and therefore through the JE discourse the misgivings on the part of judges to exclude themselves as an independent professional are worth taking on.

This chapter therefore moves from the generality to specificity on reasons for having the JE discourse. This specificity is also the principal hypothesis of the doctoral study on judicial education which is now presented as this book, i.e., judicial professionalization as the aim and objective of the JE discourse. To test the hypothesis, judiciary as an institution is mapped against sociological attributes of a profession. This mapping reveals to us that judiciary is a profession and 9.

Paterson, Alan. “Becoming a Judge” in Lewis, Dingwall and Philip edt. The Sociology of the Professions: Lawyers, Doctors and Others. London: Palgrave Macmillan, 1983. 263.

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professionalism is expected from judges for having fair, reasonable, rational, objective output (justice) from them. Besides this chapter answers important research questions— Whether Judging requires professionals? What benefits will accrue ifjudges act as professionals?

After establishing the scientific basis for categorizing the judiciary as a profession, it became imperative to know whether the judicial professionalization is cared for, whether the training discourse can help judges to internalize attributes of a profession and _ thereby attain judicial professionalization. To this effect, in third chapter, I test the hypothesis of judicial professionalization as the aim of the JE discourse in different jurisdictions. It provides how different jurisdictions of the world contribute to judicial professionalization? What actually signifies judicial professionalization? Should we adhere to weberian model or should we rely on sociological model to understand whether judicial professionalization is adopted as a Strategy in different places?

This chapter provides the extent of judicial professionalization in

the US, UK, some select jurisdictions in the EU, Israel and India. It also

proves how the JE discourse in these select countries is supporting the judicial professionalization. This chapter, in a way, validates the assumption made in the hypothesis. Further it proves that common law and civil law world varies in its conceptualization of judicial professionalization. For the common law world judicial professionalization signifies judiciary taking active role in the governance framework to protect democratic values provided in the constitution, whereas for the continental world, judicial professionalization implies raising technical professional criteria of judicial capacity, productive and performance.

This chapter also deals with research questions: Do judges (magistrates to apex court) perform different functions in different jurisdi ctions? Do judge in different ethical environments have differe nt needs of training? Through the answers to these questions it emerges that every country has its own challenges to judicial professionalizatio n. For France, its investigating judges who are special magistrates with power

to determine whether suspects should be sent to trial, order police raids,

call on experts, compile and weigh evidence, question witnesses and keep suspects in detention as they try to determine whether a irial is warranted or not, in the Outreau pedophilia case, named for a town in northern France, had its investigating magistrate Fabrice Burgaud called in the Parliament to explain why he convic ted 13 persons. He was charged with abuse of powers, turning a deaf ear to accused persons insistence that they were innocent. Almost the media trial was conducted on Burgaud who continued to plead that he worked in good faith. Lack ofjudicial professionalization in the French judicial system added to this kind of lynching atmosphere. Because an investigating

Chap. 8—Conclusion and Recommendations

265

judge wears a double hat — both an investigator and arbitrator, checks

and balances sometimes fail.!° Therefore the training requirements of

trial judges in France are bound to be different than that of trial judges from the common law world.

It further provides that almost all nation states undertake some form of judicial training and further, unlike the legal education discourse, the JE discourse

is still not institutionalized in most of the

jurisdictions. Also, in some nations the Rules of the higher courts make it mandatory to undertake the JE discourse in life time of a judge, whereas in some jurisdictions it is voluntary. Mandatory judicial education in the US state courts has led to the creation of a common judicial culture which tacitly if not explicitly approves of the policies

and goals adopted by judicial policy makers.!! Even the control over the JE discourse varies from one jurisdiction to another. Annexure II provides details on the control in some jurisdictions. One suggestion that emerges from this chapter is that the practice in England where training calendar is prepared in advance and circulated to all judicial officers, giving them an option to select the course 1n which they want to participate for a given year, needs to be adopted as the trainee judges when given this flexibility to choose subject of their own liking will be willing participants rather than imposed upon participants. This will make sure judges take part in their own growth and development. As far as selection of trainee for the discourse in India is considered, no freedom exists to them to opt for a course of their choice. The High Court Registry takes the final decisions regarding nomination of judges to various educational programmes. The scientific method is not followed by the Registry in allocating trainees from various cadres to different programmes and

judicial officers are not asked about their willingness to join the different programmes. Nobody questions this arbitrariness. Another lesson to be drawn for India, which almost is combination

of common law and continental world in terms of judicial structure, is that the higher ranking judges need to undergo the JE discourse to know their role in the governance framework, whereas the trial judges, whose selection, appointment and structure resembles continental judiciary, needs undergo the JE discourse to improve their performance, capacities and capabilities to appreciate law and facts. This becomes

10. 11.

Jamey Keaten, French legal system grapples with fallout of pedophilia case fiasco, Associated Press Writer, 24 January 2006. Frank V. Williams, II] Reinventing The Courts: The Frontiers of Judicial Activism In The State Courts, 29 Campbell Law Review, Spring 2007,

591-735.

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necessary because India does not have a jury system and therefore judges have to perform the part of jury also. The trial judges in India, who have to unearth facts on the basis of which correct law can be applied to a given situation, have to be provided educational discourse that will help them identifying true cause of dispute, real intention of the parties who are approaching the courts and so on. The JE discourse therefore in the context of Indian judiciary has to help them in their juror role as well so that they arrive at correct conclusion with respect to facts in a case presented to them.

After having established in first three chapters the general need for having the JE discourse and specific aim of the JE discourse to raise the professional competencies of the judges, the fourth chapter explores on how to develop a systematic educational discourse for judges that can lead to the judicial professionalization. It focuses on important areas of delivery methods, trainer effectiveness, curriculum designing and learning materials — improvement in which can contribute to professionalism on the Bench.

This chapter provides evidence to the effect that there is no utility of assembling the judicial workforce and making them sit from morning to evening, bombarding them with sermons from peers and experts. This practice needs to be discarded and a well-planned discourse needs to be developed taking a leaf from other disciplines which have made advancement in continuing professional development trainings. We need to borrow on the issues of effective occupational preparation, maintenance of knowledge and skills in an era of considerable technological, economic and social change. The important research questions that were answered in this chapter were: Why method of delivery of training matters? How many methods are available to us? What distinguishes them from one another? What delivery methods are successful for adult professional developm ent courses? What utility will they be of, if imported Jor the JE discours e? Which training methodology works? Why? Which methodology fails to deliver the message? Why?

This chapter provides a number of effective training metho ds than can raise professional competencies of judges, and simul taneously, lists out those methods that fail to achieve specific intended objectives/outcomes of the JE discourse. Numerous methods to tap the rich load of experience that judges bring to the table when they come to attend the training programs are suggested. The chapter provi des various pedagogy techniques that can help in making judges masters of their own learning so that the judges are able to approach and deal with their tasks independently. Apart from training methodology, theoretical framework on curriculum designing is also provided which can help judicial educators to

Chap. 8&—Conclusion and Recommendations deal with as well as of human tencies of

267

issues that emerge in the discourse development for judges, help them to determine which selections from the great field inquiry can, if properly delivered, raise professional compethe judges.

It lays down broad framework on curriculum development for the professionalization of the judiciary, makes a distinction between curriculum and instruction, and suggests ways for involving the judges in the process of curriculum designing. One suggestion that emerges from this chapter is to make use of the technological support, as I experienced with the learning material prepared by the JSB in the UK, and graduate skill orientation programmes held at the University of Warwick. Poor or nil R&D investment will result in the poor quality materials to be circulated, which would not serve needs of the trainee judges. Training system which is grossly underfunded which is geared towards the production of low

grade skills will not serve any purpose.!2 The decentralized judicial academies need to undertake research projects which could be assigned to team of researchers under retired judges or professor appointed by the high court. These teams should study the judgments delivered by judges which are now available online, find out the weaknesses in terms of structure, appreciation of facts, appreciation of evidence presented, timeliness, application of law, use of discretion in sentencing, reasoning power and feed that into training needs assessment portal to be developed by the judicial academy. Similar portal is prepared by the Judicial School in Spain called Ontology of Professional Judicial Knowledge. On the basis of this needs portal, targeted modules can be prepared for judges. With the help of technological support, learning materials can be sent to them in advance, periodically updated, and provided to all. One more observation that comes through this chapter is that the courts which are already burdened and has less strength than required for the dispute resolution work, should not be sparing their judges for the non-judicial work. The court administration, accounting, auditing, library, law ministry posts, decentralized judicial education institutions, information management system in the courts should not be allocated to the district judges who are neither expert in these fields nor are they able to raise their vision to a level which is required in these fields. The art of delegation is yet to be mastered by the judicial profession.

12.

Peck, Jamie. The Politics of Training in Britain: Contradictions in the TEC initiatives, Capital Class (1991, Vol. 15): 23-34.

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Discourse on Judicial Education

The decentralized judicial academies largely responsible for training of front line judges continue to neglect and are not even aware of learning theories that are prevalent in other disciplines. Learning assumes importance in view of the facts that degree of effectiveness of learning relates to cost invested in training and workplace performance and forms basis for later learning required to keep updated on changes

in technology and work procedures.!3 These academies are also ignorant of curriculum theories. Also they are failing to develop mechanism to monitor quality of training, evaluation criteria to learn about level of learning achieved through the discourse. A well-known professor of law, sitting and retired judges are called upon to give lecture and some of them being IT savvy end up converting their lecture into power point presentations. This nature of training that is going on does not help to raise professional competencies, alteration in thought process or values or behavior or perceptions. Further these academies are clueless on the performance of judges who have undergone training under them. There is no system developed to see if anyone’s performance in terms of appreciation of law, analysis of facts, use of discretion is improved pursuant to training undergone.

Last but not the least, chapter four also provides there is more than one way of developing the JE discourse and we should not just put our energies into one method. There is need to look beyond andragogy

model developed on the basis of psychological assumptions.!4 The JE

discourse grounded in social and political thought rather than psychological theory can open up ways of thinking about the individual and society that in the andragogical model are eclipsed by psychologism. Such revival of social context will emphasise on individuals and their needs and therefore will provide competencies required for fulfilling social roles and the satisfaction of individual cultural interets. Therefore there is much to be emulated from the Canadian Social Context Judging model developed by the NJI.

Going further from methodology of developing the systematic JE discourse, chapter five on the need of evaluation of the JE discourse proves that training, if only properly planned, conducted and evaluated, is the golden key to improving rational economic performance, enhancing organizational productivity and profitability, freeing management time, reducing the time necessary to achieve desired level of quality and quantity in output, reducing wastages. There has to be some 13. 14,

Cornford, Ian R. Rediscovering the importance oflearning and curriculum in vocational education and training in Australia, Journal of Vocational Education and Training (1999, Vol. 51, issue 1): 93-116, Rubenson, Michael Law and Kjell. Andragogy: the return of the Jedi. SCUTREA 1997, 1988. 232-237,

Chap. 8—Conclusion and Recommendations

269

evaluation of what training is resulting in. At present, after completing a training program, the trainees are asked to rate their own performance and also suggest alternative ways to make the training more effective. This feedback is used for designing future training programs.

However, evaluation of learning is the subject which is still not worked on. Chapter five to this effect suggests utility of evaluation, methods of evaluation, and various techniques of doing evaluation which needs to be tested for the JE discourse as evaluation is an inevitable pre-requisite to ensure that future policies and practices will be more successful than previous ones in achieving the outcomes that they strive for. Chapter provides that more often than not, the data required for convincing evaluation will not be available ‘off the shelf’, but will have to be collected as part of the reform. Also, the proper evaluation techniques for any education reform will usually not be waiting to be simply lifted off the shelf, but instead will need to be carefully designed with respect to the specific problems that arise with the particular program that is to be evaluated. It therefore suggests that in order to set up convincing evaluation designs, it may also prove helpful to involve evaluators in designing the policy ex ante. It also suggests that even for the feedback, the JE discourse needs to employ online evaluation system. More research is needed to design a professional feedback form in OMR sheet formats so as to understand participant satisfaction on every account.

Chapter six provides how a new type of judge is emerging, together with a new role for the courts in society, and both are based upon a new understanding of the “judicial power” broadly bestowed on courts and judges by the various constitutions. By expanding their jurisdictions on subjects and territories in matters of dispute resolution, courts are expanding their direct involvement in the affairs of the community outside the courtroom, outside their jurisdiction state, outside their region, and outside their nation state. Judges are now able to act upon and modify individuals and entire communities in ways thought by them to be therapeutically beneficial. Because of their new position and influence in the government and society, judges have

become increasingly powerful social engineers.!° They are changing social context by adding an expanded repertoire of therapeutic techniques to solve a broad range of social, economic and political problems among individuals and entire communities. They are transitioning from decision makers to life changers, employing new techniques to

15%,

Nahas

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manipulate individuals and entire communities modifying individual and collective life.

for the purpose

of

The chapter proves how the whole concept of corporate social responsibility came to be developed as a result of the US courts holding corporates guilty of human rights abuses in other nations. It also provides how in lifetime of every nation, at one point of time, a dramatic shift occurs in the power from individuals to the state and a reapportionment of power from the popular branches of government to

the courts.!¢

This chapter suggests for the international and global level JE discourse development to provides judges methodology to meet demands unleashed in the global context on judgeship. Moving from the global scene, chapter seven is about constraints faced in the development and dissemination of the JE discourse. Whereas 19" century witnessed the struggle for the Judicial independence — both at personal and institutional level, 20" century and the present debate occupies the judicial space with the notion of ‘judicial capacity’. According to Atkins:

The notion of judicial capacity as related to the individual judge refers to his/her competence to perform the judicial function efficiently, independently and impartially....The development ofjudicial institutional capacity is the aspiration to create a judiciary which performs in an efficient and timely manner, operates independently, gains public trust, and serves the public interest. Therefore, it is a joined endeavor involving judiciary, government, and

society as a whole.*7

The JE discourse as a separate and independent discipline gained momentum with the notion of judicial capacity occupying top most priority in judicial reform endeavours. However, there is still a long way to go before this actually happens.

Chapter seven provides number of impediments in the way of achieving judicial professionalisation through the JE discourse. First, the complascent attitude towards making this discourse a separate and independent science from the legal education emerges from various ——

16.

The courts are assuming increased responsibility because other institutions and branches of government are either unwilling or unable to do so. See Tom Tyler, Conference Transcript, National Conference on Public Trust and

Confidence in the Justice System (1999) (a copy of transcript is on file with

the author).

17.

Atkins, Lucie. August 2002. 10th January at 20.06 UK time January 2009 .

Chap. 8—Conclusion and Recommendations

yi |

quarters who view the judicial education as part of legal education, not realising that both have different objectives to achieve and methodology for both is distinct and separate. Second, there is constant tussle between judiciary and executive over the control and investment issues in the judicial education discourse. Third, there is judicial opposition to the involvement of academia who can help the discourse in gaining an independence and distinct science /discipline status. As noted by Malleson, in the name of judicial independence, the control over judicial training is not allowing the development of the discourse in professional and systematic manner.!® Till recently, judges viewed training as a threat to the judicial independence. As clarified by Malleson, it is difficult to sustain this claim (1997:655). Judicial training in England, according to Malleson (1997:664) is intended to encourage an important service ethos in judges so that they are ready to meet standards of legal knowledge, coutesy, patience, judicial skills and public has a right to expect these standards and a degree of consistency from their judges. But as revealed by Malleson, the discourse is not developed in a satisfoactory and professional way. To quote her:

The chairman of the JSB has described the present arrangement of training which relies on the goodwill and commitment of a small group of tutorial judges working in their spare time as being “not a satisfactory professional basis on which to proceed”. Within the JSB itself there is currently a drive to increase the formalisation of training to improve the services it offers (1997:663).

Fourth, judiciaries all over the world are reluctant to meet at a common platform to decide the standard common curricula and dissemination methods. Fifth, in most of the countries, including India and the UK, andragogy —method to be used for the dissemination of the JE discourse is not a popular and separate discipline; there are not universities offering degrees in this discipline and therefore judicial trainers will not be equipped with the minimal requirement for taking up their job as a trainer — knowledge of andragogy as a science and how to integrate it for the purpose of judicial training. Last, but not the least, there is no consensus amongst nation states to develop qualification criteria of persons to be made responsible to design the discourse, ensure its dissemination, evaluate the impact of the discourse every year and carry out improvements over it. Unless the system is put in place that can test the theoritical framework devloped around and about the discourse, there would be no full fledge recognition for the discourse. For such system to be established, both money and innovation will be required in plenty amounts. It is hoped that this book

18.

Kate Malleson, The Legal System, (3rd Ed., OUP, 2007).

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Discourse on Judicial Education

will be helpful in arriving at some consensus achieves what is required.

in that direction and

Finally, there is need to ponder over the way judicial training is being developed and style of training being approved by policy makers who are advocating formalism and deleting subjective experiences, making judges follow precedents/guidelines laid by those above them in mechanical way. For formalism, justice is a matter of regularity and predictability. And these virtues are best assured by confining the decision maker to a relatively small number of matters or ‘elements’ ideally of an easily ascertained sort. “It’s this kind of case, so I must apply this

rule, and only material elements A,B,C are relevant and not D, E, F and G”.!° Formalism is a rule of exclusion. Life, however, is diverse and

unruly. New cases arise all the time. A familiar looking case may

present elements A, B, C, and yet something about this defendant or

setting may argue for a different result. Our sense of Justice may rankle — the result, while right in the ‘landmark’ legal case that handed down the rule, may seem wrong now. Formalism — reduces number of considerations a court may take into account — equity, mercy, economics and class relations to name a few. Formalistic legal decisions tend to have an abstract, bloodless quality, devoid of the gritty details. Before the legal realist revolution, judges professed to be applying law in a neutral, value-free manner. A prince and a pauper, the state and the dissenter, would receive the same treatment. The approach was mechanical, logical and deductive. Opinions were thought to take the form of a grand syllogism: here is the law, here the facts, applying law to these facts, we reach this result. Indeed this approach was equated

with legal virtue — justice was blind. Cases like Plessy vs. Ferguso n,

a

19.

20.

Ee

dea

Jean Stefancic & Richard Delgado, How Lawye rs Lose Their Way: A Profession Fails Its Creative Minds, Duke University Press: Durham & London, 2005.

In 1896 the Supreme Court considered one of many Jim Crow

laws by which southern states sought to roll back black gains achie ved during the short-lived period known as Reconstruction, When a light skinned African American challenged such a measure — a law requiring separate railroad cars for blacks and whites — the Supreme Court upheld it again st a challenge that it violated equal protection. The cars were formally equal, the court wrote, and the law requires nothing more. To the idea that Separ ate seating areas were an insult to one race — the black — but not the other, the Court turned a deaf ear: that complaints had to do with social practices not law. Separate facilities were an insult only if blacks chose to place that interpretation on them. For the court, only one fact mattered — that the two cars were functionally equal. The decision initiated an era, lasting nearly 60 years, of separate schooling, public swimming pools, and many other facilities for African Americans — facilities that often were equal in name only to those provided to whites.

Chap. 8—Conclusion and Recommendations

213

Lochner vs. New York!, show that formalism in the history has been unsuccessful, as judges bring to bear a host of background considerations — class preference, personal predilections and ingrained habits in reaching a result. This book, therefore, calls for not relying on just one technique or one methodology but diverting to other disciplines and discourses in search of new methods, new skills, new values that can be integrated into judicial work and help judges in meeting the present day challenges.

For instance, many skills imparted in the management level training hold relevance for the judicial work too. Management discipline provides training course for its professionals in assertiveness to help them in stating their needs in a non-aggressive open manner without invoking any feeling of guilt, ignorance, anxiety so that they can calmly and persistently listen/state the problem, resist being sidetracked, resist anger and loss of control in solving a problem before them. These skills have been found useful for avoiding and be part of the manipulation by others, in resisting peer pressure toward unwanted things. As we all know that the judicial work will also require these skills and personnel involved will greatly benefit with these skills. Therefore the JE discourse needs to tailor a similar skill instilling program for judicial personnel at all levels. Training has been, and will continue to be, a valuable tool for

managing many current and future challenges. To enhance the return on training investments it is crucial to look beyond the classroom in order

21.

In this US SC considered a challenge to a New York law limiting the number of hours that bakery employees could work to ten per day, or 60 a week. The legislature had enacted the law after listening to evidence of widespread abuses in the industry, including dangerous workplace conditions and forced labour. After hearing arguments from both sides, the court invalidated the law as impairing freedom of contract. Workers were free to accept or reject onerous conditions of work, just as employers were free to find workers who would tolerate them. Each side was free to contract. This case struck down New York’s regulatory scheme by seeing the case in starkly narrow terms — liberty of contract. Considerations such as social welfare, the health of the labor market, protection of children and families and the right to a decent

livelihood did not enter the picture. the expense of the working poor. Lochner, workplace safety was so great that the period has come to

The decision solidified corporate power at At the time the Supreme Court decided abysmal, and corporate profits were so be known ironically as the Gilded Age.

Fatalities in industries such as textiles ran high, one-third of workers did not

live to see their 25th birthday. The courts employed abstract doctrines such as freedom of contract to strike down one worker protection law after another, ignoring that freedom meant one thing to an impoverished worker and another to a capitalist. This trend continued till the time President Franklin Roosevelt threatened to pack the court by appointing additional, more sympathetic justices to it.

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to understand how and why training works or does not work. This book aimed to highlight the importance of several individual and workrelated factors for training preparation and demonstrated the differential effects of motivation on varying levels of training reactions and knowledge acquisition. Although additional research is required, this book takes a first step toward the development of a more comprehensive understanding of training effectiveness.

ANNEXURE

LIST OF PARTICIPANTS

: PILOT BATCH

NAME AND POSTING THEN Mrs Manju Goel Addl. District & Sessions Judge

1

(1995-96)

PRESENT POSTING, CONTACT DETAILS Retired as judge of Delhi High Court |[email protected]

Karkardooma Court, Delhi

Hon. Mr Justice M.A. Khan

Retired as judge of Delhi High Court

Judge, Delhi High Court New Delhi

email:

Mr HR Malhotra

Retired as judge of Delhi High Court

Judge, Delhi High Court New Delhi — 110001

[email protected]

Mrs Roshan Dalvi

Presently judge at Bombay High Court

Judge, City Civil & Sessions Court, Greater Bombay, Old Secretariat Building, Bombay — 400032

[email protected]

Mrs Mridula R Bhatkar

Presently judge at Bombay High Court

[email protected]

Judge, City Civil & Sessions Court, Greater Bombay,

Old Secretariat Building, Bombay — 400032 Mrs S S Phansalkar Joshi

Presently joint director of state judicial

Addl. District & Sessions Judge District & Sessions Court Nashik 422002 (Maharashtra)

academy in Maharashtra

Mr I. A. Ansari Judge, Guwahati High Court Guwahati

Presently judge at Guwahati High Court

Mr Basu Deo Agarwal District & Sessions Judge Sibsagar (Assam)

email ID - [email protected]

Now Justice at Gauhati high court: email ID - [email protected]

[ 275 ]

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NAME AND POSTING THEN

PRESENT POSTING, CONTACT DETAILS

Mr Arunabha Barua

justice Arnabh Barua retired from

Judge, Calcutta High Court

Calcutta High Court

Kolkatta

email ID - justice. [email protected]

Mr S P Talukdar

Justice S.P. Talukdar at Cal High Court

|

56/A South End Park Calcutta - 700029

West Bengal . |Mr Partha Sakha Datta

Now retired judge of Cal HC.

Registrar( Vigilance)

Calcutta High Court, Kolkatta . |Hon. Ms. Justice Manjula Chellur, Judge Karnataka High Court, Mysore

Presently president of Karnataka judicial academy email : [email protected]

.|Mr B A Muchandi Addl.District & Sessions Judge Tumkur, Karnataka

Now retired district judge.

.|Ms B S Indrakala

Present judge Small Cause Courts Ph: 080 22212173, 09916516841

Principal Judge, Family Court, Bangalore . |Mrs Hema Kulangaredath State Transport Appellate

email ID: [email protected]

Presently Kerala High Court Judge

Tribunal, Ernakulam, Kerala

.|Mr D Sreevallabhan

Addl. District Sessions Judge Trivandrum, Kerala - 695011 .|Mr K P Nair

District & Sessions Judge Kozhokode, Kerala - 673032

Presently Registrar General at Kerala High Court email [email protected]

Now former judge of Kerala High Court. Presently he is serving as judicial member of the Armed Forces Tribunal, regional bench Kochi

Mr M Thanikachalam Principal District & Sessions Judge, Changalpattu, Tamil Nadu

Presently consumer district commission president

Mrs R Bhanumati Judge, Madras High Court, Chennai. Tamil Nadu

Present High Court Judge

.|Mr A Selvam

Email ID: [email protected]

Present madras High Court judge, Madurai Bench

Annx. 1—List of Participants :Pilot Batch (1995-96) NAME AND POSTING THEN

277

PRESENT POSTING, CONTACT DETAILS

Mr T Madan Mohan Reddy Presently member of AP administrative Ill Addl. District Judge Court __|tribunal Complex Tirupathi — 517501 Chittoor Distt, AP

. |Mr Bhavani Prasad Grandhi

Presently AP High Court Judge

Sessions Judge, Chittor,

Legislative Affairs, Hyderabad .|Mr R C Mishra

Registrar, National Judicial Academy, Bhopal

Presently MP High Court Judge, jabalpur

.|Mr Vijay Kumar Srivastava District Judge, Raipur (Madhya Pradesh) .|Mr Vijai Varma Joint Registrar Allahabad High

Presently ADJ Mathura

Court Allahabad - 211002, UP

.|Mr Virendra Kumar Dixit Secretary II, State Legal Services Authority, Lucknow (UP)

Now judge High Court, Lucknow [email protected]

.|Ms Ujjawala Garg Special Judge, Anti Corruption Vigilance (UPSEB), Bareilly (UP) email ID - [email protected] . |Mrs Gous-ul-Nisa Jeelani Ist Addl District Sessions Judge Srinagar, Saddar Courts Srinagar . |Mr Hakim Imtiyaz Hussain Now justice Imtiyaz Hussein of J&K Registrar Vigilance, High Court |High Court of Jammu & Kashmir . |Mr Gurdarshan Kumar Rai

Addl. District & Sessions Judge, Jullandhar

.|Mr Ashok kumar Laxminarayan Dave,

Judge, Gujarat High Court Ahmedabad _|Mr Ahmed Kureshi President, Consumer Redressal

Forum, Gandhinagar _|Mr M P Misra, Director, Orissa Judicial Academy, Cuttack, (Orissa)

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Discourse on Judicial Education

NAME AND POSTING THEN 4.|Mr A.P. Subba Registrar, High Court of

Sikkim, Gangtok

TST AOE 5

.|Mrs Aruna Kapoor

Presiding Officer Industrial Tribunal Court Shimla .|Mr Amar Dutt Judge, Punjab & Haryana High Court, Chandigarh — 160017

. |Mr R P Choudhary District & Sessions Judge Madhepura, Bihar - 852113. . |Mrs Nisha Gupta Addl. District Judge No. 2 Civil Courts, Beni Park,

Jaipur, Rajasthan ) Mr Kapil Bhargava ‘i

Addl. Distt & Sessions Judge No. 6, Civil Courts, Beni Park,

Jaipur, Rajasthan .|Mr S K Sardana

Addl. District & Sessions Judge, Sonipat, ; Haryana LL. Hon. Mr Justice Manohar Lal i

Visa, Judge Patna High Court

Patna 800001, Bihar

.|Mr S.S. Shah, Member Secretary Gujarat State Legal Services C/o High Court of Gujarat, Sola, Ahmedabad

PRESENT POSTING, CONTACT DETAILS

ANNEXURE 2

CONTROL OVER THE JUDICIAL EDUCATION DISCOURSE IN DIFFERENT JURISDICTIONS

Type of organisation delivering training

Training body

1

Judges' & Prosecutors' Training Unit

Justice ministry department Multiorganisations

Scope

Judges & prosecutors

only

Voluntary or compulsory

Voluntary but requirement to develop skills

Voluntary

+ university affiliation

Training entitlement

Judges average 3-4 days per

year

New judges objective: 10-15 days per year for 4 years

Judicial self-

governing body committee

Judges' Training Committee

France

State judicial school

5

Judges &

Ecole nationale de la magistrature (ENM)

Justice ministry department

State judicial school

Department of Judicial Administration

| Voluntary All judges Compulsory | entitled to 5 prosecutors for some senior promotions

Ge

Deutsche

Judges &

Richterakade

prosecutors

mie

Eero]

| Voluntary

280

Discourse on Judicial Education Type of organisation delivering training Judicial self-

governing body committee

Training body

Training Commission of Consiglio Superiore della

Scope

Judges & prosecutors

[New state | Magistratura judicial schoo created] Netherlan | Justice ds Bis

State judicial

Voluntaryor| Training compulsory | entitlement

=

Judges & | Voluntary prosecutors Judges only

Voluntary

State judicial |Escuela school Judicial

Judges only

Voluntary

MultiNational organisations | Judicial

Judges &

school

3

Centro. do estudos

Judiciaries

£ university affiliation

College Federal Judicial

| Voluntary

Require-

court staff |(federal) Compulsory (state)

ments vary by state: 7-15 hours per year average

Judges & | Voluntary magistrates

Developing entitlement statement

Center National Center for

State Courts

Australia |Multiorganisations ae

university affiliation

National Judicial College of Australia & others

ANNEXURE 3

THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT, 2002

(The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November 25-26, 2002) Preamble

WHEREAS the Universal Declaration of Human_ Rights recognizes as fundamental the principle that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of rights and obligations and of any criminal charge. WHEREAS the Jnternational Covenant on Civil and Political Rights guarantees that all persons shall be equal before the courts, and that in the determination of any criminal charge or of rights and obligations in a suit at law, everyone shall be entitled, without undue delay, to a fair and public hearing by a competent, independent and impartial tribunal established by law.

WHEREAS the foregoing fundamental principles and rights are also recognized or reflected in regional human rights instruments, in domestic constitutional, statutory and common law, and in judicial conventions and traditions. WHEREAS the importance of a competent, independent and impartial judiciary to the protection of human rights is given emphasis by the fact that the implementation of all the other rights ultimately depends upon the proper administration of justice. WHEREAS a competent, independent and impartial judiciary is likewise essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law.

[281]

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WHEREAS public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society. WHEREAS it is essential that judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system. WHEREAS the primary responsibility for the promotion and maintenance of high standards of judicial conduct lies with the judiciary in each country.

AND WHEREAS the United Nations Basic Principles on the Independence of the Judiciary are designed to secure and promote the independence of the judiciary, and are addressed primarily to States.

THE FOLLOWING PRINCIPLES are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge. Value 1 : INDEPENDENCE Principle:

Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. Application:

1.1

A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

1.2

A judge shall be independent in relation to society in general and in relation to the particular parties to a disput e which the judge has to adjudicate.

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283

1.3

A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

1.4

In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions which the judge is obliged to make independently.

A judge shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary. A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence. Value 2: IMPARTIALITY Principle:

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Application: Jigs

A judge shall perform his or her judicial duties without favour, bias or prejudice.

Did

A judge shall ensure that his or her conduct, both in and out of court,

maintains

and

enhances

the confidence

of the

public, the legal profession and litigants in the impartiality of the judge and of the judiciary. Pa

A judge shall, so far as is reasonable, so conduct himself or herself as to minimise the occasions on which it will be

necessary for the judge to be disqualified from hearing or deciding cases. 2.4

A

judge

before,

shall or

not

could

knowingly, come

before,

while

a proceeding

the judge,

make

is any

comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.

Zip

A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the

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matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where

2.5.1

the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;

2.5.2

the judge previously served as a lawyer or was a material witness in the matter in controversy; or

2.5.3

the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy:

Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act

could lead to a serious miscarriage of justice. Value

3: INTEGRITY

Principle:

Integrity is essential to the proper discharge of the judicial office. Application:

al a2

A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.

Value 4: PROPRIETY

Principle:

Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge. Application: 4.1

A judge shall avoid impropriety and the appearance impropriety in all of the judge’s activities.

4.2

As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity ofthe judicial office.

of

Annx. 3—The Bangalore Principles of Judicial Conduct, 2002

285

4.3

A judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge’s court, avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.

4.4

A judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case.

4.5

A judge shall not allow the use of the judge’s residence by a member of the legal profession to receive clients or other members of the legal profession.

4.6

A judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.

4.7

A judge shall inform himself or herself about the judge’s personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the judge’s family.

4.8

A judge shall not allow the judge’s family, social or other relationships improperly to influence the judge’s judicial conduct and judgment as a judge.

4.9

A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties.

4.10

Confidential information acquired by a judge in the judge’s judicial capacity shall not be used or disclosed by the judge for any other purpose not related to the judge’s judicial duties. Subject to the proper performance of judicial duties, a judge may: 4.11.1 write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters;

4.11

4.11.2

appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters;

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4.11.3

serve as a member of an government commission, body, if such membership the perceived impartiality of a judge; or

official body, or other committee or advisory is not inconsistent with and political neutrality

4.11.4

engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties.

4.12

A judge shall not practise law whilst the holder of judicial office.

4.13

A judge may form or join associations of judges or participate in other organisations representing the interests of judges.

4.14

A judge and members of the judge’s family, shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties.

4.15

A judge shallnot knowingly permit court staff or others subject to the judge’s influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done in connection with his or her duties or functions. Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality.

4.16

Value 5 : EQUALITY Principle:

Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. Application:

5.1

A judge shall be aware of, and understand. diversity in society and differences arising from various sources. including but not limited to race, colour, sex. religio n, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes (“irrelevant grounds’’).

Annx. 3—The Bangalore Principles of Judicial Conduct, 2002

287

5.2

A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.

5.3

A judge shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses,

lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. 5.4

A judge shall not knowingly permit court staff or others subject to the judge’s influence, direction or control to differentiate between persons concerned, in a _ matter before the judge, on any irrelevant ground.

5.5

A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy.

Value

6: COMPETENCE AND DILIGENCE

Principle:

Competence and diligence are prerequisites to the due performance of judicial office. Application:

6.1

The judicial duties of a judge take precedence over all other activities.

6.2

A judge shall devote the judge’s professional activity judicial duties, which include not only the performance judicial functions and responsibilities in court and making of decisions, but also other tasks relevant to judicial office or the court’s operations.

6.3

A judge shall take reasonable steps to maintain and enhance the judge’s knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which

should

be made

available,

to of the the

under judicial

control, to judges. 6.4

A judge shall keep himself or herself informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.

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288

6.5

A judge shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.

6.6 A judge shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity. The judge shall require similar conduct of legal representatives, court staff and others subject to the judge’s influence, direction or control. 6.7

A judge shall not engage in conduct incompatible with the diligent discharge of judicial duties.

IMPLEMENTATION

By reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions. THE UN BASIC PRINCIPLES ON THE INDEPENDENCE OF THE JUDICIARY

Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Whereas in the Charter of the United Nations the peoples of the to establish conditions under which justice can be maintained to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination, world affirm, inter alia, their determination

Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, Whereas the International

Covenants

on

Economic,

Social

and

Civil

and

Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant

on

Political Rights further guarantees the right to be tried without undue delay, Whereas frequently there still exists a gap between underlying those principles and the actual situation,

the vision

Annx. 3—The Bangalore Principles of Judicial Conduct, 2002

289

Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality,

_ Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles, Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens, Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct,

The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist. Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 2. The judiciary shall decide matters before them impartially, on

the basis

of facts

and

in accordance

with

the law,

without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from

any quarter or for any reason. 3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial

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Discourse on Judicial Education

decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions. Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens

entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights,

judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their Judicial independence. Qualifications, selection and training

10.

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other Opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

Annx. 3—The Bangalore Principles of Judicial Conduct, 2002

291

Conditions of service and tenure

11.

The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

12.

Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

13.

Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

14.

The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.

Professional secrecy and immunity 15.

The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.

16.

Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

Discipline, suspension and removal

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18.

Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

ANNEXURE 4

QUESTIONNAIRE ON THE WORKLOAD MAILED TO JUDGES

For my doctoral research on the subject of “Judicial Education”, | need to bring out difference between workload of the justices in the high courts of India and the justices of the Supreme Court of India as compared to the workload of the justices in the US and UK. Kindly therefore, if possible, provide rough estimates regarding below mentioned queries at your earliest: (1) A judge writes between et opinions in a year. (2) Mostly judges of my high court constitute panel of

to

(3) A judge decides

fully briefed cases in a year. (4) Cases are taken for motions, jurisdictional dismissals, etc. in a year by individual judge or panel. (5) cases are taken up for oral arguments in a year.

I do not require exact figures, but only rough estimates to substantiate some points in my chapter. Also, are you aware of any surveys done on the courts or judges in your State - by local newspaper or any other local organisation? If yes, will it be possible for you to mention their names or any other links that you are aware of? The information asked is only for research purposes and it will not be published or misused. —

[ 292]

Geeta Oberoi

ANNEXURE 5

JSB WORK

Date

PROGRAMME

Training and materials to be provided

Monday 19 January

Civil Continuation Seminar

FOR GEETA

Location, Time of event | Scarman House, Warwick

OBEROI

JSB Contact

Patience Lusengo Steel House

2009

11 Tothill Street

pane te3 Course Directors: Either please join the 30 pe *Y | District Judge Chris |Course for lunch at

London SW1H 9LJ

(morning only) Wednesday 21 January

Lethem and Judge David

12.30 or attend at 13.50 for a 14.00 start

Tel 020 3334 0676

Scarman House, Warwick

Diane Lennon and Jeff Smith

Mitchell

(if available) Materials:

Course Programme and CD rom containing course materials will be sent to you prior to the course Tuesday 27 January

2009

Criminal Continuation

- | Seminar Course Directors:

Steel House Please arrive at 8.50 for | 11 Tothill Street 9.00 start London SW1H

Judge Alistair

9LJ

aioe judge

Tel 020 3334 0673

QC Materials:

Course Programme and CD rom containing course materials will be sent to you prior to the course

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Discourse on Judicial Education

294 Training and materials to be provided Thursday 29 January 2009

Criminal Induction Seminar Course Directors:

Judge Simon

Tonking and Judge John Wait Materials:

Course Programme and CD rom containing course materials will be sent to you prior to the course

Location, Time of event | Scarman House, Warwick Please arrive at 8.50 for

9.00 start

JSB Contact

Diane Lennon and Jeff Smith Steel House 11 Tothill Street London SW 1H

9LJ Tel 020 3334 0673

ANNEXURE 6

PREPARATIONS

FOR MEETINGS

IN THE UK

Dear Judge Phillips, First of all, I would like to express my sincere gratitude for the invaluable support of the Judicial Studies Board and in particular for the opportunity to undertake these interviews which will contribute significantly to my doctoral research on judicial education. I greatly appreciate the time which you have made available to me. I have a small request to make. I would like to be able to tape the interviews in order to make best use of the time available. The tapes will only be used for the purposes of my doctoral research and all contributions will be anonymised. I am happy to provide you with the questions that I intend to ask if this would be of assistance.

With respectful regards, Geeta Oberoi GEETA OBEROI PROGRAMME FOR TUESDAY, 16 JUNE AT THE JSB

10.00 Meet with Lynne McGechie, Head of Training Advice Division and Brioni Allcorn, Senior Education Adviser — the identification of training needs, the design and delivery of training and its evaluation [5 questions on Evaluation and Globalisation]

10.30 Meet with Michael Committee senior adviser

Williams,

[ 295 ]

Equal Treatment

Advisory

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Discourse on Judicial Education

[5 questions on the training for a professional judiciary]

11.00 Meet with Judith Lennard, Head of Judicial Division — overview of Judicial Training Division

Training

[5 questions on the working of the JSB] 11.30 Meet with Kathleen Turner, Judicial Training Strategy (JTS) Project Manager — JTS principles [5 questions on costing and budgeting] 12.00 Meet with Heather Goddard, Judicial Training Programme

Manager — how the training programme works and the JTS [5 questions on mode and scheme of training]

12.30 to 13.30 Lunch 13.30 Meet with one of the course organiser teams [5 questions on mode and ‘scheme of training]

14.00 Meet with Judge John Phillips, Director of Studies — overview of the JSB [5 questions on independence of training] 15.00 questions

Meet

with

Kathleen

[5 questions on any other aspect]

Turner

—

review

of the day and

ANNEXURE 7

QUESTIONNAIRE

Meeting at the

JSB

Tuesday16 June at the JSB

10.00 Meet with Lynne McGechie, Division

and

Brioni

Allcorn,

Senior

Head

of Training Advice

Education

Adviser

—

the

identification of training needs, the design and delivery of training and its evaluation EVALUATION

I

I would

like to know

from the JSB, as to what is the

method of evaluation of the training programmes developed by it? What are indicators developed to measure the impact of training programmes? Are decisions of judges trained vis-a-vis decisions of judges not trained compared? What have been, if any, results of this evaluation done so far?

How this evaluation does take place? Who evaluates?

Do you think that JSB has been impactful till now in its work? Do you think — training has resulted in better justice administration of citizens? Why? First ? Change to what do you consider to be the impact of the training? I understand that training of lay magistrates takes place over 6 sessions of 3 hours duration. Do you consider this period to be sufficient? Why do citizens choose to become magistrates? GLOBALISATION OF TRAINING of the EU and for the current 4. After formation drive/movement aimed to strengthen the EU project, what

[ 297]

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Discourse on Judicial Education

steps are taken in the training field? Are you intending to standardize? Harmonise? training patterns in the EU continent? Will there be a step taken to bring uniformity in the judicial system in all nation states falling within EU? 5. What are your future plans for developing global cooperation in judicial education and training? Do you send course directors to attend meetings of judicial trainers that are organized in Asia and the Pacific? At the IOJT? At the CJEI? At the EJTN? What sorts of affiliations does it have with other institutions within and outside Europe? How many nations JSB has ended up helping in terms of training? In terms of sharing its training resources?

6. Working Party conceived judicial population of UK very different from that of judicial population of other countries. Does this perception of judiciary in UK being different than that of judiciary elsewhere still holds true even now? What are thesimportant distinction in your opinion that makes them separate from their brother/sister judges elsewhere? Does such perception restrict judiciary’s outlook towards the external rule of law notions? 10.30 Meet with Michael Williams, Equal Treatment Advisory Committee senior adviser TRAINING TO PROFESSIONALIZE

7. To what extent can professionalism be promoted consciously and actively to enhance work performance through the training discourse? What are the influential factors in the development of professional identity and commitment, which are stressed by JSB in their training?

Do you see a relationship between training and the use of substantive experience? Is What is to be achieved by professionalisation of judiciary? Why and which professionalism values can be practically taught to judges? How will they be of any help to judges? 8. According to Terrence Ingman, the title ‘justice of the peace’ covers both lay magistrates and professional district judges in the magistrates’ courts. Will it be correct to assume from this statement that lay magistrates are not part of the professional judicial branch? What is the purpose of magistrate training? In your view does training distance them from the citizens whose disputes they are going to consider ?

Annx. 7—Questionnaire

299

9. At one end, the judicial education discourse has to be developed and disseminated by judiciary itself as a response to its professionalisation and for maintaining the judicial independence, but, on the other hand, such internal management of the discourse runs the risk of re-enforcing the same values back to the system from which the system wants to get rid off. How do you balance these twin but competing interests? 10.

We assume, but we really do not know, that much of professionalization is inevitable in modern society. But to verify our assumptions, we need to look for exceptions to the rule, and we may have to develop new concepts to describe these exceptions. Can we find any situations in which de-professionalization may be occurring today, or may be expected to occur in the future? Do we see traces in present developments as to what may be the next outstanding development in our occupational culture and organisation? Beyond professionalization, what? Is lay magistracy, ADR — part of deprofessionalization strategy? What kind of de- professionalisation training is undertaken by the JSB and why?

11.00 Meet with Judith Lennard, Head of Judicial Training Division — overview of Judicial Training Division

ABOUT THE JUDICIAL STUDIES BOARD LA:

Why even till now, after completing 25 years of existence, judicial school in UK is yet to be established? Whether in future UK will have its own ENM as it exists in France?

12.

How is the head of the organization (director) selected? What are the criteria used to select a director? What is the director’s term of service? Is the director of your country’s judicial training center a judge? If the current director is a judge, is the judge a trial or appellate judge? If the current director is not a judge, what is the background and training of the individual who holds that position? Bridge’s report envisaged that the seat of Director of the JSB would be occupied by prominent academician. Then what went wrong with this suggestion? How many academicians have been posted to this seat till now?

The creation of judicial self-governing bodies has significantly affected the relationship between judges and

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Discourse on Judicial Education

the political system, at least in those countries in which this institutional innovation has had the time to fully develop its effects. What relationship JSB shares with judicial self-governing bodies in England — like JAC/SGA/ SAP? Do you work in co-operation for mutual benefits? Or both are divorced from each other? As to the training at the Scarman House, are lay magistrates invited for training there? If not, where are they trained? By whom? Can I have access to any of their trainings? 11.30 Meet with Kathleen Turner, Judicial Training Strategy (JTS) Project Manager — JTS principles

COSTING iboy Is cost-benefit analysis a correct and reasonable excuse to limit the sphere of professional judiciary and outsource the judicial work to lay members of the public? One of the reasons for having lay magistrates in England is cited as - to minimize the expenses of the judiciary. Is this view correct? Is it alright to bear cost analysis in mind in matters as important as dispensation of justice? Are we not triviliasing justice administration by keeping lay, voluntary persons for handling more than 70% of criminal trials?

Para 5.8 of the Bridge’s Report talks about training on large scale being uneconomical. According to this logic then implication is this —

larger the number in a breed, more the

expense on their training and therefore stronger the case for their exclusion. Such economics logic will defeat the whole purpose of training. Should not training be for all? If ultimate object of training is to improve the performance, then irrespective of number/strength of category, irrespective of their hierarchical position, it has to be provided for all. What is current JSB administration’s take on this view?

Para 5.21 of the Report mentions for providing remuneration to some judges for attending training. Are these judges not salaried? If they are, how can be they given extra money for getting trained? What is logic in this thought?

Para have any from

5.24 talks about the cost of training. Surely it must spiraled since its foundation in the beginning. Is there way of knowing budgets allocated each year to JSB last 25 years?

Annx. 7—Questionnaire

301

12.00 Meet with Heather Goddard, Judicial Training Programme Manager — how the training programme works and the JTS 19.

Is there a regular training program for newly appointed judges at all levels? How long it lasts? What general subjects are covered? Are they again called for the additional continuous training? After how much gap?

20.

What is the system of selecting judges for training? Who decides on issues related to judge selection for training? What rationale methods are followed?

pan

Working Party was envisaging JSB for training of judges who sit in the Crown Court, High Court and Circuit Judges, Recorders, Deputy Circuit Judges. Does that mean JSB has no authority to train judges higher than this post? What about judges of the highest court? Is there no training at all for them? Why?

22.

Status Passages refers to transitional points in the passage of trainees through the system. Are there clearly marked points of transition which inform the trainees about where they are in their movement or development?

12.30 to 13.30 Lunch 13.30 Meet with one of the course organiser teams

Zon

Did the trainees have a clear perception of what was expected of them? Did they encounter differing conceptions of what roles they should be playing or how these roles should be enacted?

24.

How do you train judges to reconcile the unrealistic expectations associated with their image and their profession?

ZS.

Bridge’s report somehow takes position that longer the experience at Bar/Bench, the lesser the need for training. But judges themselves are coming out and admitting that they lack certain values and attitudes necessary for the judicial work and through the judicial education discourse they need to experience values of different systems and interlink those in their work and to improve their performance. In such a setting, how will you sustain the myth that ‘longer the practice/position, lesser the need for training’? are oriented towards ‘skill many programmes How teaching’? Why so much stress is given on technical knowledge and skills when it has been demonstrated

26.

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Discourse on Judicial Education

repeatedly professional response?

by

educationists!

spheres,

that

most

problems in

call for moral rather than a technical

14.00 Meet with Judge John Phillips, Director of Studies — overview of the JSB EXECUTIVE AND TRAINING/ INDEPENDENCE IN TRAINING

27.

Is your country’s judicial training under the courts or the Ministry of Justice? Considering the Beijing Statement on Independence of the Judiciary, do you believe it is important to have the courts in charge of judicial training?

28.

Tracing back the history of Judicial Education in UK, it becomes clear that ‘sentencing’ provided the sole rationale for setting up of the JSB in UK. In a recent discussion of judicial independence, Dame Mary Arden said that it involves at least.two things: (1) individual independence due to which the judge in any individual case is free to reach the decision which he or she considers to be in accordance with the law, free from any influence; (2) institutional independence, wherein the respect is given to the judiciary as an institution. When sentencing guidelines are issued by the executive restricting discretionary power of judges to decide the case? I would be interested in your views on the role of sentencing guidelines. 29. Are judges required to undertake training?

30.

I am not sure what this question is about? Is it seeking views on the extent to which training offers guidelines on the role of the judge in the context of UK constitutionalism?

31.

Judicial independence means judicial system should be They will have no idea what autopoietic means — ask something simple and descriptive to get what you want

I. CARR,

D.

Towards

(1994)

Education

a Copernican

Inquiry

Revolution,

and

Professional

20(/) Educational

Knowledge:

Studies,

p. 33-52.

According to Carr, “To speak of a bad plumber, for example, is by and large to identify someone who does a technically poor repair job rather than (say) overcharges, whereas talk of an unsatisfactory lawyer or general practitioner is for the most part said of someone who does not take proper time to understand his or her client’s needs in a proper spirit of care and concern,..Where concerns are professional, then, the emphasis is upon the Peet principled or moral quality of the responses to the clients’ needs...”

(p.

47-48).

Annx. 7—Questionnaire

303

such as what is your view on the role/ contribution ‘external experts’.

of

Then prompt them ‘with follow ups such as use of gender/race experts, psychologists, immigration experts etc. should have ability to reproduce its norms. However, autopoiesis requires strong communication networks and cognitive openness to other /external systems from which relevant information can be processed back and translated into the system. But strong reservations and suspicions that are held by judiciary towards external resources delinks the system, stagnates its further development as communication is closed and makes it cognitively closed. Judicial training offers a strong and helpful discourse in which judges can avail of the opportunity to meet experts from other systems, their counterparts in wider legal system — academicians/ lawyers etc. and take information and process relevant information by translating it into legal communication. In this scenario how relevant it is today to exclude academicians/ lawyers/ other experts from the system of discourse on the pretext that they have no relevant court experience? Bridges report found academicians of use in training only for giving pedagogical inputs. Does the present administration responsible for training also holds the same view? Or some relaxation and experimentation being done in this area?

Again too complicated — ask something simple and straightforward — such as do you consider that the role of the judiciary is becoming more difficult in the present political context — differing views over the role of human rights, liberty and security etc.? If so what contribution does training play in supporting the judiciary. Do you consider judicial education has a wider role to play in terms of 15.00 Meet with Kathleen Turner — review of the day and questions aa

Describe how the judicial training organization is governed, i.e., who makes appointments to the organization, and who is ultimately responsible for the training?

35.

Outline

the courses

given in period from

2000

to 2008,

their length, the number of judges attending, the subjects given, and the title of the teachers or trainers who made the presentations. (Use another page if necessary.) How many institutions in UK are providing judicial training? 34.

How many seminars and workshops were organised by JSB to persuade judges to adopt global approach in deciding

304

Discourse on Judicial Education

cases before them? In how many programmes “globalisation” as a process was stressed on? 20): Approximately how many judges are there in your country: at the trial level? at the appellate level? Who does the judicial training at your country’s training programs? Judges? Law professors? Other (describe). What criteria are used for selecting the trainers? Are the trainers taught how to teach? If yes, describe how. Does your country’s judicial training center include classes or courses for court staff/court administrators? If the judicial training center does include classes or courses for court staff: (1) what is the nature of the training? (2) How often is it provided? (3) What is the background of the faculty members for such training? Describe any other characteristics of this kind of training. ;

36.

If the judicial training center does not include classes or courses for court staff, when the training center was established and in the planning process, was it ever contemplated that court staff-would be included? Are there plans to expand the judicial training center curriculum to include court staff?

Sik

How large is the non-teaching staff? How many teachers are permanently assigned to the organization? Of these, how many are: (1) Judges? (2) Non-Judges?

38.

How much is the annual budget? Does your country have a permanent training building? If yes, describe it. If no, what facilities are used for training?

39: Does your country’s training facility produce written judicial aids? Law summaries? “Bench books”? Other? (describe) Are these produced on annual basis? 40.

Does

your

country’s

training

library? An audio-visual

facility have:

A

research

library? Video, audio, or written

copies of prior seminars given? Does your country’s training facility have the capacity to do research to solve problems confronting the judiciary? If yes, describe. 41.

After the Constitutional Reforms Act, 2005 becoming operational, what changes are brought in the ‘training’ field?

ANNEXURE 8

LETTRE

D’INVITATION

DES

HAUTES

SAQNLA UNS MInNSTITUT LA JUSTICE

LETTRE

D’ INVITATION

A l’attention des autorités consulaires francaises Londres, Royaume Uni

Mlle Geeta Oberoi, chercheur a la National Judicial Academy de Bhopal, en Inde, est invitée 4 venir visiter notre institut pour un séjour de recherche d’une semaine, a partir du 12 juillet 2009.

Cette visite a pour objectif de rapprocher nos deux institutions et de renforcer leur expertise commune en matiére de formation judiciaire internationale et comparée. Fait a Paris, le 12 décembre 2008.

Le Secrétaire Général de I'IHEJ,

Antoine Garapon.

institut des Hautes

Etudes sur la Justice

fel. + 33 (0)1 40 51 02 51

—Fax.

-8 rue chanoinesse

+ 33 (0)1 44 07 13 88

[ 305]

75004 Paris,

—~www.ihej.org

France

Subject Index Ability, pp. 1, 12, 29, 84, 85, 95, 124, 132, 134, 136, 143, 144, 145, 149, -151..1703-205,. 25 1. 255

Bloom’s Taxonomy, pp. 138, 158 Career, pp. 9, 63, 64, 68, 69, 81, 91, 102, 115, 118, 134, 157, 158, 171, 216, 238, 240, 241, 245, 247, 249, 250, 251. 252, 253, 255, 260, 263

Abstract conceptualization, pp. 143, 144, 145, 147, 148 Active experimentation, pp. 143, 144, 145, 147, 148

Choice of law, pp. 222, 223 Cognition, cognitive, cognitive psychology, pp. 38, 54, 58, 73, 74, 126, 128, 129, 130, 134, 137,. 140, 141, 152,153, 156, 158;,1605165,-176,.179, 217, La9)

Age, pp. 1, 100, 112, 128, 135, 138, 149, 250, 252, 253, 254

Alien torts Claims Act (ATCA), p: 225; Amartya Sen, pp. 1, 31, 127, 136

Competence , pp. 1, 9, 20, 36, 52, 61, 67, 85,86, 88, 101, 1027 121. 122, 127, 143, 149, 173, 194, 196, 206, 208, 209, 233, 255, 262, 270

Amnesty International, pp. 20, 33, 40, 219

Andragogy, pp. 138, 139, 173, 242, 243, 247, 252, 268, 271

Concrete experience, pp. 143, 144, 145, 146, 148, 155,

Aristotle, p. 144

Attachment style, pp. 245, 246

Conference, pp. 12, 101, 104.117, 175; 180, 181, 231, 235, 244,

Attitude, pp. 12, 39, 60, 87, 102, 113, 116, 124, 133, 134, 152, 174, 180, 193, 195, 196, 198, 205, 207, 208, 209, 212, 234, 243, 244, 251, 252, 261, 270 Attributes, pp. 51, 64, 65, 72, 73, 74, 75, 79, 81, 86, 91, 95, 96, 112, 117, 119, 263, 264 Australia, pp. 7, 8, 51, 52, 67, 102, 103,104, 123, 13741395171, 175, 178, 227, 268 Australian Institute of Judicial

Administration (AIJA), p. 104 Bias, pp. 37, 38, 39, 45, 47, 48, 49, 50, 143, 175,

16, 25, 31, 100, 122. 165,173; 188, 215, 229, 254, 262, 270

Conflict, pp. 10, 13, 24, 29, 39, 54, 63, 76, 95, 97, 149, 155, 214, 2175224, 223 Constitution, constitutionalism, pp. 198, 229, 249 Continuous training, pp. 9, 87, 108, eA, 244

Cost benefit analysis, p. 2 Court management, pp. 101, 175, 239, 240, 250 Court staff, pp. 6, 101, 161, 209

[ 307 ]

Subject Index

308 Critical studies, p. 27 Curriculum, pp. 4, 52, 122, 125, 126,

166, 170, 173, 174, 175, 176, 177, 178, 179, 180, 182, 184, 194, 206, 248, 266, 267, 268 Dead Poet’s Society, p. 166 Delay and arrears reduction, p. 15 Delivery method, pp. 125, 126, 127, 142, 164, 266 Democracy, pp. 15, 16, 17, 18, 20, 21, 22, 23, 63, 94, 95, 109, 115

Dewey, pp. 144, 246

Dignity, pp. 17, 56, 68, 254

France, pp: 52,62, 115, 116,117, 124, 177

Freedom, pp. 11, 15, 17, 22, 24, 31, 78, 81, 84, 87, 105, 149, 163, 215.223. 233, 234, 254, 265 Gender justice, pp. 9, 47, 49, 50,

139, 253

Generativity, pp. 148, 149, 150 Germany, pp. 9, 52, 62, 108, 109,

EOS 119. 374,221 223, 224. Dwi SapP2

Globalization, pp. 214, 221, 222, 223, 228. 229.250, 232, 234, 235, 261

Disciplines, pp; 2, 7,9, 13, 23,27, 28, 63,-16; 83557257126: 127: 149, 151, 167, 173, 184, 254, 260, 261, 266, 268, 273

Gobind Das, p. 23

Discrimination, pp. 46, 48, 50, 98, 99, 146, 154, 155 *

Human rights, pp. 20, 34, 46, 57, 61, $3,107, 116; 175;.198;215, 216, 219, 220, 221, 226¢ 227, ULoge2 252, 234, 210

Dispute resolution, pp. 25, 117, 248, 267, 269

District judiciary, pp. 173, 237, 238, 249, 252 Empathy, pp. 136, 152, 170

Equality, pp. 24, 34, 50, 98, 122, 163, 232, 243, 254 Equity, pp. 24, 132, 133, 163, 254, 272 Erasmus, p. 182 European convention on Human rights, pp. 107, 220, 234

European Union (EU), pp. 108, 220 Evaluation, pp. 36, 59, 61, 69, 73, 98, 106, 110, 112, 114, 137, 149, 138; ho, dene, del d,.b/ 7, 181, 186

High road learning, p. 130 Holocaust, p. 20

Humanistic education, pp. 133, 134

Identity, pp. 51, 64, 71, 93, 106, 112, 148, 149, 150, 154 Impartiality, pp. 38, 39, 50, 83, 94, 98, 109, 110, 112, 113, 218 Infrastructure, pp. 2, 16, 19, 31, 34, OL, 9S. 1200127 137, too. loo, 216, 238, 239, 240 Injustice, pp. 15, 45, 46, 55, 90, 121, 259

Inter-disciplinary, p. 7 International law, pp. 57, 58, 225, 227, 230, 234 Intimacy, pp. 148, 149, 150

Expert opinion, p. 198

Israel, pp. 17, 39, 105, 106, 107, 113 123, 264

Fairness, pp. 24, 66, 67, 88, 163, 218, 254

Italy, pp. 90, 113, 114, 221, 228. 259, 260

Federal Judicial Centre (FJC), pp. 15, 100

Flexib pp. 9,il 136, it 138, 177, y,179, 209, 265

Formalism, pp. 23, 272, 273

Judging, pp. 2, 5, 10, 36, 39, 47, 52, 53, 60, 61, 63, 76, 91, 94, 97, 103, 106, 107, 116, 117, 138, 149, 153, 175, 199, 200, 201,

227, 247, 253, 258, 262, 264, 268

b]

Subject Index Judging process, pp. 91, 107, 153

Judicial accountability, p. 84 Judicial administration , p. 104 Judicial appointment, pp. 19, 40, 76, 96, 97,99, 103; 112 Judicial association, p. 107 Judicial budget, p. 31 Judicial capacity, pp. 231, 264, 270 Judicial culture, pp. 77, 86, 93, 122,

265 Judicial diversity, pp. 47, 48 Judicial error, pp. 21, 24, 99, 249 Judicial ethics, pp. 12, 16, 80, 122,

176, 179, 180 Judicial hierarchy, pp. 118, 237, 245, 250, 262 Judicial integrity, pp. 80, 95 Judicial officer, pp. 4, 5, 6, 7, 31, 51,

53, 77, 78, 104, 118, 156, 158, 173, 205, 238, 240, 250, 251, 262.265 Judicial philosophy, pp. 100, 149 Judicial process, pp. 61, 76, 96, 154 Judicial promotion, pp. 19, 102, 114, 1585.173,213,:237, 238.251, 252,259 Judicial record, p. 17

Judicial reforms, pp. 122, 124, 214, 242

309 Learning materials, pp. 125, 126, 166, 179, 180, 181, 182, 184, 185, 266, 267

Learning style, pp. 128, 139, 140,

142, 143, 144, 145, 151, 195 Legal culture, pp. 50, 214, 217 Legal education, pp. 2, 53, 54, 55, 50,57, 98; 59, 91, 106,122. 181, 240, 255, 262, 265, 270, 271

Legal profession, pp. 60, 66, 70, 79, 85; 90, 91; 93, 97; 106, 112, PISS 7S So 8 Ds) Levels of learning, p. 126 Life cycle theory, pp. 148, 183 Literature, pp. 2, 13, 23, 24, 38, 39,

60, 70, 72, 75, 83, 107, 126, 139, 166, 182, 190, 191, 192, 194,195, 196, 236,260; 261

Logic, pp. 71, 118, 152 Low road learning, p. 130 Magistracy, pp. 97, 103, 115, 116 Management, pp. 8, 9, 26, 34, 52, 53,

64, 66, 76, 83, 101, 112, 113, P21, 122,42554265127, 147, [51,1595 173,175; 183,204, 205,206, 207, 209, 212,239, 240, 241, 247, 248, 250, 254, 259,290, 267,268, 273

Mediation , p. 253 Metacognition, p. 153

Judicial responsiveness, pp. 31, 33

Michael Foucault, p. 14

Judicial review, pp. 18, 26, 27, 114, 220

Mindfulness, pp. 152, 183

Judicial selection, pp. 15, 39, 87, 97, 100, 103, 109, 110, 164, 165, 172, 173, 178, 181, 1848250, 254, 265

Judicial service, pp. 187, 209, 225 Judicial Studies Board (JSB), pp. 2, 39, 52, 54, 97, 98, 165, 166, 185, 187, 267, 271

Modularization, p. 177 Motivation, pp. 131, 132, 133, 160,

171, 239, 241, 262, 274

National Judicial Academy, pp. 2, 121, 154, 248, 249 Nazi ideology, p. 174 Niger, p. 20

Juergen Habermas, p. 14

Objectivity, pp. 35, 38, 39, 83, 94, 119, 152, 206, 260

Language, pp. 6, 14, 15, 25, 56, 91, 142, 161, 216

Occupation, pp. 11, 86, 87, 88, 171, 77

Subject Index

310 On the job training, p. 54 Orientation, pp. 10, 29, 35, 73, 78, 98, 104, 181, 185, 249, 254, 267

Outcome evaluation, pp. 195, 196, 198

Perception, pp. 35, 37, 118, 151, 15351702201, 204,230, 251, 952259, 202, 203, 208

Performance, pp. 44, 61, 64, 75, 83, $5; 121, 122, 127283, 134; 132, 137, 170, 186, 187, 196, 229, 233, 242, 263

Personality, pp. 34, 38, 127, 139, 152, 165, 183, 242 Plato, pp. 78, 166

Prejudice, pp. 35, 78, 124, 161, 175, 206, 243, 253 Prestige, pp. 69, 73, 87, 94, 106, 115, 124

Presumptions, pp. 36, 37, 71 Process evaluation, pp. 195, 196, 198 Profession, pp. 11, 60, 63, 64, 93, 97, LO6:2E1 2.017, 118,150; 164, 172, 251, 264

Rural postings, p. 34 Seminar, pp. 3, 29, 35, 38, 104, 115, 122" 1815231,.254

Sensitivity, pp. 34, 49, 156 Sentencing, pp. 37, 47, 61, 97, 101, 182, 208, 267

Service orientation, pp. 73, 78

Skill, p. 170 Sociologists, pp. 72, 74, 76 - Socrates, pp. 150, 166

State judicial academy, pp. 212, 249, 257 Subjectivity, p. 35 Subjugation, p. 252

Telephone justice, p. 19 The World Bank, pp. 9, 215, 230 Theory ofjustice, pp. 127, 136, 150 ee

Professional education, pp. 2, 125, 139, 248

Trainee characteristics, pp. 241, 242

process, pp. 135, 241, 261,

Three Idiots, p. 166

Transfer of learning, pp. 173, 189, 206, 2335. 253, 262

Provocation, p. 151

Trial judge, pp. 1, 3, 48, 109, 156, 265

Public scrutiny, p. 88

Upendra Baxi, pp. 46, 261

Quality of justice, pp. 2, 3, 113, 150, 18

V.R. Krishna lyer, p. 3

Purchasey Approvakationality, pp. 38, 83, 91, 94, 260

Gratis

Acc NoW

M 30140

®

:

\

Rule of law, pp. 22, 58, 63, 77, 81, 95, 117, 124, 198, 215

Professional development, pp. 13, 92, 142, 150, 165, 169, 184, 236, 243, 266

Program implementation, pp. 194, 195, 196