The recent press release notification by The Bar Council of India (hereinafter ‘BCI’) discussed the filing of an application before the Supreme Court for modifying its 18-year-old order which removed the mandatory practical experience for Judicial Officers as qualifying criteria. This move by the BCI has brought a great upheaval among the law students aiming to appear for the Judiciary exams.
The main contention put forward by the BCI is that the Judicial Officers who do not have practical knowledge at the Bar are mostly found to be incapable and unskilled to handle such matters as judges. These factors lead them to face difficulties in understanding the aspirations and expectations of advocates and litigants properly and decently.
The notification also stated lack of experience as one of the major reasons for delays in the disposal of the cases in the subordinate judiciary, as the trained and experienced judicial officers can dispose of cases with more efficiency and effectiveness, making the administration of the justice in judicial wing much more structured.
The origins of the debate
The Constitution of India empowers the Governors of states to appoint persons, other than district judges, to Judicial Services of the state following rules as decided in consultation with the State Public Service Commission and the respective High Court of that state.
Earlier, there was a requirement of mandatory three years of practice before the court of law which was abolished later. This debate over a mandatory practice for three years was under scrutiny for a long period and has been addressed from time to time.
The Civil Justice Committee Report of 1924-1925 stated that, "The rule in various states which requires the candidates to have practiced at the Bar for 3 years doesn't guarantee that the candidate has gained any real experience."
This highlights the fact that this practice was a major concern for discussion at that time. However, the recommendations of the report were deemed to be advisory, and no solid steps were taken to resolve the issue.
The next in line was the 116th Law Commission Report which recommended abolishing the practice requirement of three years, because the mandatory practice for just 2-3 years hardly imparted the necessary training to make one a good judge. The 117th Law Commission Report stated that it was wholly unsustainable to assume that standing at the Bar helps to gain the experience for Judicial services.
But a divergence was observed in the recommendations given in the 118th Law Commission report, which suggested that the three-years practice requirement could be continued even though it was not needed. This points to the conclusion that three years of practice does not guarantee the development of fundamental skills of being a skilled judicial officer.
This burning issue was taken up for consideration by the Supreme Court in All India Judges’ Association and Ors. v. Union of India (1993). It was held that the state judiciary must hire lawyers who had an experience of three years. From their very first day in office, judges have to decide issues relating to liberty, property, and reputation of the litigants. Hence, it is neither prudent nor desirable to appoint fresh graduates to the post.
The knowledge from the books and pre-service training can't substitute the experience of legal practice. Unless the judicial officer is familiar with the working of the components of the administration of justice, his education, and equipment as a judge is likely to remain incomplete.
It was the 2002 judgment which removed the requirement of three years of work experience for entry into the Judicial Services. The court accepted the recommendation by the Shetty Commission to remove the practice requirement. The court stated that it created a hindrance in attracting the best talent towards the Judiciary. After three years of practice, law graduates may not find judicial service attractive enough.
The challenges with the 3-year mandate
There are several issues attached with this mandatory practice for three years. First and the pertinent issue to deal with is the threat to the independent nature of the judiciary and transparency in the appointment of judicial officers. The very basic idea of three years practice at a Bar does not ensure it to be a qualifying factor for the post.
Even if this criterion appears to be suitable, what will be the next concrete ground on which these people will be promoted to be eligible for the Judicial exams? The BCI has not come up with any alternate procedure for elevating people who have practiced for three years to the position of the officer.
There is no transparency as to how these young minds are eligible to appear for the examinations and how BCI would have measured their experience. Would it be the number of cases solved in three years of practice or the extent of efficiency?
Another issue will be the assumptive outcomes from three years of mandatory practice. The experiences which BCI has talked about do not match the reality young lawyers at the Bar face in courts.
It takes about a year or two for beginners to start their practice in courts and deal with the day-to-day cases. The demand for such lawyers would be slightly less and the supply for cases and experience would decrease.
Going by the economic aspects of the issue raised, such a move may potentially increase financial dependence for many young practitioners, and not all of them may have the necessary legal background helping them to explore and flourish at the courts.
The BCI should also think about the economic backgrounds of aspirants, as a large chunk of them are not born with a silver spoon. A study had shown that more than 79% of lawyers with less than 2 years of experience have an earning below Rs 10,000. At the same time, ground realities and social pressure should be considered simultaneously.
Lastly, another significant issue still prevailing in Courts is the pendency of a large number of cases. The BCI’s argument gets defeated at its inception when it says that such three years of practice would fasten the efficiency of courts. It has completely ignored the latest data on the number of pending cases in India.
Courts performance across the country varies in terms of geography and as per the levels of the judiciary. About 87% of total pending cases in India come from the lower courts which are the district and subordinate courts.
Instead of addressing this issue of pendency of cases, BCI may have instead simply ended up worsening the problem. Between the end of 2018 and mid-2020, the sanctioned strength of judicial officers in lower subordinate courts went up from 22,833 to 24,203.
The working strength has increased from 17,701 to 19,172. Still, there is a shortage of 5,031 judges, which has led to a huge increase in the number of pending cases in lower courts. 34.5 million cases are pending in the lower judiciary. The idea of three years mandate practice does not go hand in hand with the prevalent issues in Indian Courts.
On one side where we do not have a sufficient number of courtrooms and judges in India to meet the huge pendency of cases, mandatory three years of practice would eventually escalate the issue.
The BCI supports the three-year mandatory practice rule, but has never thought of imparting practical knowledge to students opting for the law as a career. The BCI and UGC should come up with mid-way solutions and grant access to law students for experiencing real court scenarios, and begin such practical learning from their early years in law school itself. The BCI’s move puts this burden on law students to find their solutions, and ultimately discourages them from opting for judiciary as a career.
Judicial academies in each state train young minds and prepare them for the position they have reached. By calling officers incompetent, BCI itself questions such institutions. It showcases the lethargy and inefficiency of these judicial academies to train officers effectively and up to the satisfactory mark.
There is a need for transparency in these institutions and reforming the courses as training. BCI must look after them and modify policies in order to suit the present scenario.
Some suggestions for the way forward
The steps BCI has taken seems to be discriminating against students wishing to become judicial officers. It differentiates the litigating and non-litigating classes altogether with no reasonable classification between the two. No such training or experience is expected for those going to litigate in courts, then why only the class of non-litigators suffers.
There is no such mandate from BCI to the Bar, then why for the Bench?
So, it may be inferred from the recent actions of BCI, that it really pushes one away from the judiciary towards the corporate field, or it wants courts to be filled with litigating lawyers all around. This decision may not solve currently plaguing issues, but would subsequently result in the corporatization of litigation.
In all, we suggest the adoption of higher and stronger training methods to be adopted by judicial academies which would inculcate qualitative skills in young officers rather than mandating three years of practice at Bar as a prerequisite for the same.
A need for checks and balance has to be there on the lookout at these training sessions and courses provided by BCI and judicial academies to culminate the ill effects being observed in the present times. Mandating three years of practice would not eventually solve the issues in discussion but would lend more negative outcomes to the legal fields.
(Lokendra S Chauhan is a third-year student at the National Law University Delhi, and Anuj Shukla is a third-year student at National Law University Odisha)