1 year or 3 years, we are asking the wrong question

Over the past year, much of the debate around recruitment to the district judiciary has revolved around a number: how many years of experience should one have before becoming eligible to compete to be a civil judge or magistrate?

The Supreme Court said 3 years in 2025. A few days back, the Court reviewed the judgment and recalibrated the rule. For future recruitments, the pre-examination requirement now is 1 year of actual practice, followed, after selection, by structured judicial training and clerkship of 2 years.

1 year or 3? It is an important question. Courtroom exposure does matter. But so does avoiding entry-level barriers that keep good candidates out. The latest judgment tries to balance these two but, importantly, while recognising that the quality of Bar experience varies dramatically for candidates from different backgrounds and no two chambers are the same, it also recognises that an inflexible strict 3-year practice requirement may deter some meritorious candidates from joining rather than necessarily produce better judges.

We can all agree that there is no shortage of people wanting to enter the district judiciary. Judicial-service examinations have historically attracted enormous numbers for relatively few posts. The queue, therefore, is definitely long. But the most important question is: are the best people for the job queuing up at all? Who is standing in these queues? And, perhaps more importantly, who is so conspicuously absent from them?

That is where the real judicial-recruitment debate should begin and, I would argue, end.

By the “best” talent, I do not mean the student with the highest score in college exams, the most prestigious degree/college or the quickest recall of an arcane precedent or the exact sub-section number, or the year in which a rule was made. Intelligence does matter enormously in judging. But after a point, other qualities matter as much, if not more.

These are: judgment, intellectual curiosity, independence of mind, courage, patience, emotional intelligence, compassion without undue sentimentality, honesty. Also important is the capacity to listen. The ability to hold two contradictory propositions in one’s head before choosing between them. Kindness without being weak and indecisive. Intelligent skepticism without cynicism. And, most importantly, a humble awareness of the enormous responsibility that comes on one’s shoulders with being able to exercise power over another human being.

These are important qualities but also very difficult (but not impossible) to measure.

The best potential judge, therefore, may not be the university gold medallist. Rather, she is someone who could have done so many other things with her life, but still chooses to judge.

That distinction matters enormously. Let me not be mistaken: there is nothing wrong with being attracted to judicial service because it offers stability. But a great judiciary needs something more and beyond. It needs a motivated task force of people attracted to the love of the work itself. The love of judging, or more appropriately put, the love of justicing. Public service. Making that meaningful difference to someone’s life, one bail application, one injunction case at a time.

The person who actually wants to sit in a trial court because this is where human stories unravel, facts are actually found and discovered, witnesses are heard, parties are (and feel) seen, liberty is first lost or protected and law meets a flesh-and-blood human being rather than mere abstract legal doctrine. For most of the population, a trial court judge is the first and the last judge they ever interact with in person. There’s enormous meaning to this. People who are thrilled by this fact exist, in greater numbers than we think. The problem is that we do very little to find them. And, more importantly, when they look at the institution, they may not always like what they see.

Let me first try and dispel the fascination with ‘numbers-of-years of practice’ as the primary criterion. 

Experience at the Bar is undoubtedly valuable. A good chamber can be a remarkable education, both in life and in law. But which chamber? A year with a demanding senior who is passionate about and discusses law makes a young lawyer draft, research, meet clients, argue, interview witnesses and watch cross-examinations, and most importantly, think like a jurist-in-the-making. 1 year at such a chamber may teach more than several years simply spent doing mechanical filings, running from one court to the other, seeking passovers and adjournments, putting papers together, etc.

Formation depends upon who forms you. And who forms you depends upon access, geography, gender, networks, money and privilege. Access to good chambers is not distributed according to individual merit, more often than not. This is why treating “3 years at the Bar” as a uniform criterion is and was always problematic. The same 36 months can represent radically different kinds and amounts of professional growth and learnings.

If formation of a good judge is indeed the objective, the judiciary should build it deliberately rather than assume that a rather uneven, chaotic and unorganised professional market will provide it equally to everyone. It has never done that and will not do so in the near future. This is where the recent review judgment scores over the previous ones; it provides a nuanced view of what structured training should consist of.

But, sadly, the issue is bigger and still remains. Even if we designed the perfect eligibility rule: would the people we most want to actually apply?

Take a talented young lawyer choosing among a good chamber, a firm, the civil services and judicial service. What does she see?

First, a deeply hierarchical institution. A trial judge is independent in deciding a case. But she also works within a service structure in which transfers, career progression, assessments and administrative evaluation are controlled from above and, often, in a way that does not reward creativity and free-thinking. It rewards conformism, volume and sheer number of disposals over quality and other softer elements of judging: compassion, how the witnesses are treated, patience, etc.

There are other problems too. A young judge who believes that an adverse appellate observation may haunt her administratively has an obvious incentive to choose the safest course and become conservative, going forward. In criminal cases and injunction cases especially, refusing relief may feel professionally safer than granting it. This is the tragedy due to which we see an extraordinary reluctance in grant of bails and injunctions, leading to the dockets of appellate courts being clogged with these matters while they should be laying down law and constitutional doctrine.

That is unhealthy and undesirable. Two reasonable judges can and often do disagree. Unsubstantiated complaints or anecdotes - an occupational hazard in a profession where almost every final order disappoints somebody - should not weigh heavily against a judge if the same is not backed by evidence. Also, we should remove the fear that honestly resisting informal pressure might someday reappear as an ostensibly routine transfer.

We’ve seen, in various parts of the country, young magistrates assigned protocol duties, which include waiting at airports to receive High Court/Supreme Court judges for functions, conferences, etc. This is not convention; this is feudalism. It is difficult to tell a young judge that she exercises the sovereign judicial function of the State in the morning and then require ceremonial deference to another judge in the afternoon/evening. Especially when they take the same oath of the Constitution as judges of the higher courts.

The relationship between the High Court and district judiciary should increasingly be intellectual and collegial, not merely supervisory and top-down. Trial judges should interact with High Court judges through teaching, mentoring, workshops and discussions about difficult questions of law, not only through hastened inspections and ‘interactions’.

A civil judge should feel that she belongs to the judiciary, not merely to the lowest cadre of the judiciary.

The prevailing image and rhetoric of judging is that it’s intellectually stimulating. That’s what gets some of us to the system. The daily reality, however, is very different. An impossibly long cause list, repeated service-of-summons kind of administrative problems, procedural applications, adjournments, administrative duties and insufficient support can turn judging into mere docket management.

Give an excellent judge 50 matters a day (often repetitive in nature) and no infrastructure or research assistance and you extinguish their intellectual spirit. There’s no mincing words: If we want great minds in trial courts, we must make it possible for one to use it there.

Research assistance at the district level is due for a long time. Further, court managers, if possible, should handle work that does not require judicial decision-making.   

The quality of a judicial career depends upon the work assigned. An officer who learnt the truly hard problems of law, rules of interpretation and appreciation of evidence, may spend long periods in extremely narrow and repetitive jurisdictions such as traffic matters, cheque dishonour cases or “reliever work” largely involving filling-in for other judges (who are on leave, etc) and recording statements u/s Section 164, identification proceedings etc without being able to discharge actual adjudicatory functions.

All of this is indeed important work. But professional formation requires breadth and intellectual diversity. Higher court rosters change because variety is intellectually useful and in an interconnected world, one thing adds to the other. Young trial judges also need exposure to a wide variety of disputes cutting across commercial, civil, criminal, IPR, AI, tech and other jurisdictions so that expertise develops and they can take on bigger assignments.

In addition to this, the institutional culture must change and it must not discourage curiosity and innovation. If a judge encounters a genuinely difficult question of law, she should not feel that making a reference to a higher court on question of law will be treated as impudence or “thinking-too-much-of-oneself”.

Also, if we want exceptional judges in the trial judiciary, we should trust them with work that is of consequence. Unnecessarily low civil pecuniary jurisdictions, for example, deserve reconsideration. In Delhi, for instance, the civil court’s jurisdiction is a ridiculously low ₹3,50,000. We must understand that responsibility increases exposure and, in turn, produces capacity, knowledge, confidence and stature.

Let me take a step back. A talented 25-year-old is not merely asking what her first posting will be. She is asking: what will my professional life look like 15 years from now?

There’s nothing wrong with that question. Lawyers do it all the time. Those who dedicate their lives at the Bar have the lodestar of silk/seniority, or High Court, Supreme Court judgeship or the public persona and the sheer intellectual challenge of being a lawyer guiding them as they struggle along.  

But where does a young trial court judge see herself?

I ask this, because from where she is, the ladder can appear extraordinarily long and uncertain. There are gaps in the ladder that, unfortunately, networking, flattery and patronage fill. Further, the system has no way to pick up bright lights and fast-track their growth. If excellence and relative mediocrity largely move at the same speed, high performers receive a terrible signal: being exceptional makes little difference and that leads to complacency.

There ought to be credible ways for extraordinary officers to progress faster. Elevation from the district judiciary to the High Court should also be sufficiently certain and visible so that an outstanding young officer can regard it as a real and tangible career possibility rather than a mere theoretical dream based on unfortunate variables like patronage, flattery, etc.    

Continuing education matters too. Good judges should have opportunities to teach, research, take advanced courses and remain part of the wider intellectual life of law. There are various opportunities for the higher courts to do this; they should be extended to the trial judges too.

Then there is the examination itself. Traditional judicial service examinations test a great deal of legal knowledge. They must. After all, judges apply law and must know a lot of law. But memory is not equal and can never replace judgment.

A judge works with ambiguity. Witnesses contradict themselves. Records are incomplete. Both sides sometimes have plausible arguments and it’s difficult to select one. A legally available power may be unwise to exercise. A law may be facially valid, but unconstitutional on a deeper scrutiny.

How much of this do we test? Having looked at the examination pattern for a lot of states, very little, I would say. Give candidates a realistic record of a case containing relevant and irrelevant material. Ask them to sift. Give them contradictory testimony. Ask them to decide where veracity lies and, most importantly, why.  Ask them to write a bail order or decide interim relief on incomplete facts. Test whether they can distinguish bald assertion from evidence, mere suspicion from proof and mere existence of power from the discretion, grace and wisdom of exercising it and, more importantly, not exercising it. Test clear writing.

Test temperament better. How does someone respond to an aggressive lawyering, a sensitive situation of child custody, a frightened witness or a court employee who loses the court record? Test whether she can listen to an argument she instinctively dislikes and still test it fairly. Can she change her mind? Can she say: I do not yet know enough to decide this? Is there self-awareness?

I agree that no examination can perfectly measure empathy, courage or kindness, but it doesn’t mean it can’t be done at all. Currently prevalent interviews with a mere 5-7 minute interaction often only reinforce the bias of first impressions rather than giving people an actual and real opportunity to show who they are.

We often complain that young judges lack temperament after selecting them through a process that barely attempts to test it. We select heavily for rote-learning and then complain about temperament.

The finest firms recruit. The best chambers identify promising juniors. Universities compete for talent. The judiciary largely waits for applications and then tests them often on arcane facts. Why?

Selection must remain transparent and competitive. High Courts and judicial academies should visit universities. Students should spend meaningful periods attached to trial courts. Trial court judges would also immensely benefit from the help by bright law clerks, which they have been so far inexplicably and unjustifiably denied of.

Outstanding young judges should speak about what it means to decide a case rather than argue one. And this cannot be confined to the so-called elite law schools. Talent can be found anywhere. Opportunity should also reach everywhere. The search must reach State universities, smaller cities and first-generation law students.

The trial court should be one of the most prestigious places in which a young lawyer can work. Appellate judging is enormously important. But the trial judge sees the case happen. In short, make trial court judging great again.

Which brings us back to what we started with: 1 year and 3. The latest judgment wisely and rightly directs that the new scheme be revisited after 5 years using material concerning recruitment quality, training, clerkships and officer performance. Perhaps the evidence will favour 1 year. Perhaps 3 or 2. Perhaps the quality of exposure will prove more important than duration as is being hypothesised here in this column. Either way, we should follow the evidence wherever it leads. We should also evaluate and compare performance, quality, temperament and conduct across various officers and ranks, juxtaposing and comparing specifically those with Bar experience and those without and come to a more reasoned verdict on the way forward.

But while debating all of this and the size of the doorway, we should not ignore the good ones simply walking past the building and the ones never queuing up to begin with.

We must ask: do exceptional young lawyers see the trial judiciary as a place where independence is protected? Will difficult and mentally stimulating work come to them? Will excellence matter and lead to different outcomes? Will they continue learning? And will the institution actually go looking for them and, once selected, look after them and give them the respect, opportunity and independence that they deserve?

There is no shortage of applicants. But litigants, who are the ultimate consumers of justice, deserve judges with intelligence, independence, empathy, courage, humility and an almost dogged commitment to honesty, fairness and justice. People like that exist. The real task is to build a trial judiciary that would find them and, hopefully, it would be one that they would also actively choose, over all the other options.

We have spent years asking how long someone should wait before becoming eligible to enter the judiciary. We should spend much more time asking what would make the very best want to enter it at all and if they do, remain.

Bharat Chugh is an advocate and a former judge.