Bar Before Bench: Mandating Practice Of 3 Years As Advocate To Enter Lower Judiciary In India-How Far Justified?

The present judgment helps in clearing the bell regarding the controversy, while simultaneously adding a pinch of criticism from the judicial services aspirants who start studying from the last year of their law graduation to crack these exams. The decision has both pros and cons. Let us examine the cons first.

Five years in law school to master jurisprudence, bare acts, and the fine art of surviving viva-voces. Now, thanks to the freshly minted 3-year mandatory practice rule for judicial services. One gets to extend his/her unpaid internship era till the ripe old age of 27-just in time to start “life” with no savings, no certainty, and lots of character development. So, one will definitely make a bold career move and will decide to join his/her father's business-as an intern. The perks shall include: rent-free, clause –free accommodation, unlimited meals, full time driver and ofcourse a stipend that respects no industry standard. At this point he/she would leverage ancestral equity over legal ambiguity.

Another concern is regarding the irregularity in exams. State judicial exams are far from regular. Many states publish advertisements once in 4-5 years. The entire selection process itself takes 1.5 years on an average to conclude. Adding mandatory practice years on top of this will act as a deterrent. When the investment of time is so huge and the outcome is uncertain, many brilliant minds will walk away from this path altogether.

Thirdly, this decision is opposite to Roscoe Pound's theory wherein he contests that law is a process of social engineering. Just when women had started to claim space in the judiciary a field historically dominated by men, this judgment could push them out again. Five years of legal education, three years of practice, followed by years of preparation and waiting for results, all in a society where women are still expected to follow rigid timelines for marriage and family. The impact on women's participation in the judiciary will be deeply regressive. Merely adding one more rule in already faulty recruitment process will not ensure quality judicial officers.

In addition to this, there is no guarantee that despite practising law and holding merits, one will become a Judge. Recently in 2024, shockingly, none of the candidates out of 41 vacancies could qualify Cadre of District Judge by way of Limited Competitive Examination, 2024. The notification mentioned “None of the candidates found suitable.” Even after 7 years of practice and qualifying the Preliminary and Mains exam stage, if none is selected, it raises a question mark on the rule regarding compulsory three year practice.

Now let's talk about the pros. There was a disparity in the minimum qualification required for the examination as some States mandated experience at the Bar, with varying years while others allowed fresh graduates to be eligible for application.

Most litigants in India come in contact with only the District Judiciary and they are never exposed to the functioning of High Courts or the Supreme Court. Thus, it is imperative that in order for the litigants to have faith in the working of the judiciary, the District judiciary needs to maintain the highest of standards.

The role of a judge is not only to hear the parties and give a judgment as the Indian judicial system is moving from an adversarial to an inquisitorial model, the role of the judge is as important as that of the parties and their advocates. However, if they are not acquainted with the importance of the stakeholders involved in the entire justice system administration, they will not be able to act as judges in true sense.

The instances of lack of knowledge about the procedure of the court by judges of the District Courts have been observed in the recent past. Certain instances of the High Court judges being furious with the orders passed by judges of subordinate courts had forced them back to training. For instance, the Delhi High Court in 2007 directed an Additional Sessions Judge to undertake a refresher course at the Delhi Judicial Academy in criminal law and procedure for three months citing, “lack of basic knowledge about criminal procedure code.” In another recent case, the Allahabad High Court had directed an Additional District Judge to undergo three month training at the Judicial Academy in Lucknow questioning the competency of the judge to write judgments.

With the rising complaints against judicial officers on the ground of mis-behaviour, the Supreme Court in an earlier judgment had remarked that judicial officers should be humble, polite and exhibit a humane approach in their conduct. Justice Surya Kant had noted:

“They do not behave properly with bar members, seniors or the litigants. I think we need to sensitise our officers about their conduct. I know of a case, where a magistrate was not behaving properly with the Sessions judge. There is a need for some professional training before we hire them.”

The judicial officers struggle with exhibiting professional behaviour as they have not been a part of the professional of lawyers due to which they are not sensitized to the struggles of the litigant and the advocates which lead to complaints of misconduct against them by the members of the Bar and also the parties. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a Judge is likely to remain incomplete.

Most of the High Courts had expressed the opinion that they are in agreement of having a minimum requirement of 3 years of service at the Bar for appearing in the examination of Civil Judge (Junior Division) and had stated their reasons for stating so. Some of them being lack of maturity in dealing with the cases, unable to handle court proceedings properly leading to multiple complaints against the judicial officers and due to lack of court exposure, it takes them to get acquainted with the courtroom environment and decorum. The High Court of Andhra Pradesh had stated that some of the Civil Judges (Junior Division) who did not possess any experience at the Bar, appointed straight away from college to court, are not treating bar members in good spirits.

Most law students still graduate without real exposure to the practice of law, despite the introduction of clinical legal education in the curriculum by the Bar Council of India. Thus, expecting a person to deliver justice in the best way possible without having any exposure to the practical understanding of the justice administration system seems far stretched which cannot be cured by a short span of judicial training at the academy.

The authors are Assistant Professors at School of Law, MIT-World Peace University, Pune Maharashtra. Views are personal.