Judges Need Not Know All Laws

Judges Need Not Know All Laws

Bapoo Malcolm
07 September 2016 1  

In an LLM (Master of Laws) class that this author was attending, students insisted that every judge should know every law. Being the sole opponent of that view was not an enviable position. Yet, the best of jurists have declared that it is not necessary for all judges to know all the laws. It is the duty of the contesting advocates to highlight their stand as effectively as debunking that of the opposition.

What is required of judges, so say the greatest of them, are two qualities. Honesty and courage. A good judge will ask all the right questions; a good advocate will point out the right answers from the statutes. He will present, to the judge, previously decided cases, notings from the legislative exercise that led to the law, and, above all, the repercussions on future problems, should the order not be passed in his favour.

A magistrate passed an order releasing an impounded passport. He had heard arguments in favour of such an order. He felt convinced and said so. The next day, he had doubts, nagging doubts. What was the argument that swung the case? Did the magistrate get the gist right? Can he placate his conscience?

 You be the judge. What would you do?

This is how the matter unfolded. The magistrate asked the court clerk to phone, asking my presence in court at four that evening.

"Why should I release the passport?" asked the magistrate.

"But, your Honour, you have already released it yesterday."

"Yes, but I want to hear your arguments again."

At the very end, "If My Lord will allow me to say so, your order is in contempt of itself."

He countered, "But we have always been doing it this way."

"That is no reason to continue doing it, My Lord. Today, you have a chance to correct it."

The honourable magistrate had the moral courage to change the typed order, in ink, and hand it over. Honesty and courage exemplified.

Last year, judges were appointed to the Bombay High Court. Being handpicked, the calibre was universally high. Yet, as senior counsels do, one judge was steeped in a particular branch of law. Before him was a rare, complicated matter that delved deep into procedure. He questioned the lawyers relentlessly, each one then referring to various Supreme Court cases to buttress his stand. As the discussion, not an argument, ended, the judge complimented and thanked both the advocates for enlightening him. Egoless courage.

More recently, a client from out of Mumbai called to say that the judge, before whom we had pleaded, was averse to passing the order, feeling that he had insufficient knowledge. He and the local advocate trooped back for the afternoon session.

They requested the judge to allow us to resume the arguments the next time, until we had satisfied him. The judge had the integrity to say that he had no previous experience in the matter and that, if we asked for a transfer, he would not mind it. Both sides rightly refused the offer. Adversarial system worked in a gentlemanly environment. Everyone came of age.

Are lawyers, advocates or gladiators? Maybe a bit of both. Like a gladiator, a good lawyer has to be sharp in his thinking. A small mistake can be fatal, if not to him, to his client. He is paid to fight, put up a good show, defend and attack, win the day.

The cut-and-thrust of debate, thinking on one's feet, ever ready to counter attack, all backed by intense preparation, is a must. Every conceivable aspect has to be forethought, an answer kept ready. The 10-minute performance follows long hours of study. The blood on the floor is invisible.

It is, therefore, the lawyer's job, to know all the answers. He must convince the judge, the man who must be convinced. There is no other way. One has to assume that all judges need to be informed; even appraised.

The client has a supreme duty too. To tell the lawyer the truth, the whole truth and nothing but the truth. It pays to keep his weapons sharp.