“Who brought open economy here - Dr. Manmohan Singh or Indian Judiciary?” Adv. Shanmugham D Jayan - Part I

Murali Krishnan August 14 2017
constitution

Shanmugham D Jayan is a visiting faculty at National University of Advanced Legal Studies (NUALS) Kochi, and Cochin University. He teaches Constitutional Law, Jurisprudence, IT Law and Law of Taxation. He is also a lawyer specialising in taxation and frequents courts and authorities of first instance. An expert in Information Technology Law, he has three publications to his credit.

In this free-wheeling chat with Bar & Bench’s Murali Krishnan, Shanmugham speaks on myriad subjects including legal education, quality of the Bar, the judiciary and the Supreme Court.

As I walk into his very modest office situated right opposite the High Court of Kerala, at 10.30 in the morning, I find Shanmugham D Jayan standing at the entrance, scratching his head. On spotting me, he exclaims, “Ah Murali”. The man has changed little in the last six years. Stubble on his face, twinkling eyes and the trademark hands on hips posture all take me back to the good old days of Shanmugham’s Constitutional law lectures at NUALS.

I am soon seated opposite him as he begins to talk.

“What do you have in mind?”, he asks me, unsure about what the conversation is going to be about and how it will progress.

The man is adept at story-telling and I need to get him to talk. “I am not sure”, I reply.

And we end up talking late into the evening.

How Law?

Why did he choose law after graduating in Physics? He has no qualms admitting that he “ended up” doing law.

“A good number of lawyers who belong to my generation, including me, ended up doing law because we could not get admission for other courses”, he says.

But there is an interesting story behind that too.

“After I graduated in Physics, I was planning to do MCA from Cochin University. However, in the application form, there was an option to choose other entrance exams including LL.B. and MBA. I ticked against MBA and LL.B. apart from MCA. I did not make it for MCA and MBA but got through LLB.

After LL.B., I thought I would do MBA. Then again, there was an option to tick against LL.M., which I did (laughs). This time, however, I got through MBA and started attending classes. The results of LL.M. entrance exam came later and I cleared that too. Some of my batch mates from LL.B. had also cleared the LL.M. entrance. They coaxed me – “Nee vaada namukku LL.M. padikkam” (Come on man, we will study LL.M. together). So, I left MBA and pursued LL.M.”

The conversation is then driven forward as he talks about how LL.M. was a game changer.

LL.B. is just a course, LL.M. is not like that

“LL.B. is just another ‘course’. But LL.M. is not like that. If you ask me, I would say that LL.M. transformed me in a major way. It brings a significant difference in one’s approach. I have no regrets in pursuing LL.M. instead of MBA, which would not have brought about such a transformation. If I had pursued MBA, I would also have been a typical white-collar stereotype.”

He also has an interesting take on the pros and cons of 3-year LL.B.

“Everybody thinks law is an easy subject – that cannot be farther from truth.

Laws of physical science are observed while laws [of social science] are imposed. A lot of thought must go into it before imposing a law. In physical science, we are always in the process of identifying causative factors. But in society, we impose the law. Our reasoning based on which we impose the law, is wisdom that we acquire after identifying all relevant factors.

I purposely used the word ‘wisdom’ instead of knowledge or information because wisdom is a word of much wider connote. Importantly, it is not one single subject that governs that wisdom. It could be a very big subject or umpteen subjects.”

Now coming to your question, in 3-year LL.B., we have people from different education backgrounds coming to study law. In 5-year LL.B., we have students with basic schooling being taught law.

In 3-year LL.B., since students from various streams are being taught law, if they interact properly in the classroom, everybody gets inputs from each other. But if they do not, then depending on the stream and background from where they hail and their understanding of law, they will contribute in different ways. That will, ultimately, not be beneficial to the system because as part of the Bar or the Bench, if they respond differently in similar situations depending on their backgrounds, it might affect the homogeneity of the system.

So, the system, as a whole, will not benefit much from training these students from different backgrounds in one classroom. All we get is people who think differently but equipped in law. In a precedent based system, are such products relevant?”

5-year LLB and critical thinking

LL.B. is just a course. Why does he think so?

“Is it possible to think beyond books in a 5-year course? No. It is not possible if we take average intelligence as a benchmark. As far as the 5-year course is concerned, what we try to impart to students is various attributes of law and what is understood and recorded by experts in the field. But to inculcate critical thinking beyond a point is not possible in a 5-year course.

I think it is best to target such a learning process at the Masters level”.

I have a difference of opinion.

“But we 5-year LL.B. students also started thinking critically, or at least had the urge to do so, particularly after the second or third year of our course”, I retort.

He replies,

 “Yes you will definitely!. I will answer that through a theory.”

Politicians and Lawyers

Shanmugham D Jayan

At NUALS

Why are many law graduates ending up as politicians and the other way round, why do those who want to enter politics study law?

Consider a person who is part of a political party. He may have many personal convictions. But once he is part of a political party, he sets aside his personal convictions when voicing his opinions through the political party’s platform. Many ‘leftists’ might have right leaning beliefs, likewise many on the right might have leftist convictions.

Similarly, when a lawyer conducts a case, he might have his own views. But when he conducts the case of his client, he puts forward the case of his client vehemently despite his own views about the case. Patrick Delvin, an English jurist has said that, these two communities, that is lawyers and politicians, have the capacity to reason and justify or defend views notwithstanding that they themselves might not agree with the views which they are canvassing.

So, that is more or less what happens towards the final year of your LL.B. course. You start developing the capacity to set aside your personal conviction and think beyond that.”

Two academicians, NLS Bangalore, and the dearth of law teachers

At this point, I raise the topic of lack of good teachers in law schools. Shanmugham has a story to tell – about a conversation between two academicians.

“What I am going to say is hearsay and am not disclosing names. When there was this attempt to establish National Law School, one academician opposed it strongly because of the thrust given to the LL.B. program and job placement immediately upon completion of the same and was of the opinion that there would be no one to teach after some time.

Anyway NLS, Bangalore and other National Law Schools were established. Later, during a private discussion, the first professor lamented at the shortage of good teachers and the second professor told him how he had warned him beforehand. The first professor went silent for a moment before asking:

 ‘Sir, are there any good students in your University who would be willing to teach?’

So yes, it is very a big problem.

Recently, I received a very nice story. It is about the Goan Chief Minister, Manohar Parrikar and two farmers – a father and a son – who grow watermelons in Parrikar’s village. When Parrikar went to his village, he found that the size of watermelons had greatly reduced in the recent years.

He was wondering what the reason could be. He soon found out. When the father used to grow the watermelons, he used to separate the good, large ones and give it to villagers. But the son thought he could sell off the bigger watermelons too. He didn’t realise there was a reason why his father had done what he did. If he gave the bigger watermelons to the villagers, then the seeds of those watermelons would stay in the village. So, again he would get good watermelons.

But the son did the farming his way, and the watermelons deteriorated in size and quality over time. Same is the case with National Law Schools. The best of the students, after LL.B., got jobs and went their way. Then what is left? We have to find a way out to resolve the problem.

I have voiced this concern in many places. After LL.B., the best of the students get jobs and go their way. Then there would be none left to teach. We have to find a way out to solve this problem.

We have to identify, through a scientific process, those LL.B. students who are eager and have the aptitude to teach. They have to be taken care of by providing scholarship for LL.M., creating tie-ups with Universities and absorbing them into teaching posts in those Universities.”

Are there any dangers to the mushrooming of Private law schools?

Shanmugham does not think so.

“National Law Universities are government-controlled factories established by a statute, while the other is factory by a private venture. That’s all. There is no other difference. Let both systems [NLS and private colleges] continue and let us see which one survives.”

Moreover, according to Shanmugham, there is a positive side to private law schools.

“National Law Schools don’t get good teachers nowadays. But they have been around for so long, and they still haven’t done anything to produce good teachers.

But private sector colleges might not sit back like that. They have a profit motive, and students who go there will also demand quality for the kind of fees they are made to pay. Demand for good faculty would definitely be one of the demands by the students. This might ultimately emerge as a path for creating quality teachers.”

Speaking of ‘quality’, it is not a word that is exactly synonymous with the legal profession in India. And that is my next query. Why has it remained largely mediocre over the years?

Mediocrity in legal profession

“Many who study law, be it the 3-year or 5-year, don’t take it seriously. Law is a vast subject. In my opinion, an in-depth analysis is required whenever we assert something with regard to law. Whether we are doing that or not is debatable. Even those occupying the highest echelons, who are duty-bound to analyse and make a deep study, do not do that. Their thought process is also very shallow and that is dangerous.”

I prod him further and he explains, in great detail.

Who brought in capitalism in India – Manmohan Singh or Indian judiciary?

“I will give you an example relying on the concept of Henry Maine’s ‘status to contract’. According to that, the subjects free to contract among themselves. Thus “status to contract” essentially means let the people interact as they please. In such a scenario, the reach/growth of a person is a direct function of his capacity. The system is unconcerned. In the long run, anyone can be anyone and it will depend on the individual’s capacity.

The utility of this concept could be explained based on USA. People with motivation and entrepreneur skills came to a place with natural resources. There were no existing structures to be protected there unlike, say England.

Hence, every individual was given freedom as per the prevalent circumstances/ situation. So what is due to him depends on that person and the situation – hence the basic law/ document in such a place has the concept of “due process”. Hence, the capitalist concept which has only a larger framework but no protective gear like licensing raj, subsidy regime or the larger object that there should be equitable distribution of resources.

But in India, there were some existing structures and the need to protect many things. Hence, ‘procedure established by law’, socialism etc.

However, in 1970s, our Supreme Court for highlighting personal freedom read ‘procedure established by law’ as ‘due process’. This was something which the Constituent Assembly had expressly rejected.

So my question is, who brought open economy here? Dr. Manmohan Singh in 1990s or Indian judiciary in 1970s?

As he gets busy in office, Shanmugham suggests that we resume the conversation at his residence in the evening. He offers to cook puttu and chicken curry for dinner and I am more than eager to experience the culinary skills of my Constitutional law teacher and see his famous 13th floor balcony. But more on that in the next part.

(This is the first part of the interview. Premium subscribers can read the full interview here).

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.

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