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Need For Minimum Practice As Advocate For Judicial Service : Reigniting The Debate

Shashank Pandey
8 Jan 2021 3:22 AM GMT
Lawyers
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Lawyers

"Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid; make decisions" - Professor Pannick, Judges

Recently, Rule 5(2)(a)(i) of the Andhra Pradesh State Judicial Service Rules of 2007 was challenged before the Supreme Court (SC). The rule laid down a pre-condition of three years of practice as an advocate to be eligible to write the Civil Judge exam in the State. On 2nd January, the Bar Council of India (BCI) said that it will file an impleadment application before the Apex Court seeking modification of the 2002 Supreme Court order in All India Judges' Association v Union of India (2002 AIJA case) wherei the court rejected the eligibility criteria of 3 year experience at the bar for giving state judicial service exam.

This BCI move reignited a dormant debate of whether minimum practice at the Bar should be a pre-requisite for entry into judicial service even at the lowest level i.e. subordinate judiciary. The issue holds prominence as subordinate judiciary is considered to be the foundation of the edifice of our judicial system. There is no denial of the fact that fresh law graduates lack practical experience. Their knowledge is restricted to theories, bare provisions and idealism which may not be sufficient to understand the working of law within court premises.

'Judicial Officers Not Having Experience At Bar Mostly Found To Be Incapable' : BCI To Move SC For Mandatory Practical Experience For Judicial Service

Caught up in dilemma

The debate on the minimum eligibility of judicial officers is a long one and is mostly dictated by the times in which decision/suggestions on it were made. The history of this debate has been traced in details by VIdhi Centre for Legal Policy in its report on "Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates".

In pre-constitution times, the issue of three year experience requirement was considered by the Rankin Commission in 1924 which observed that "The rule in force in certain provinces requiring candidates to have practice at the Bar for a period of three years or more furnishes no guarantee that the candidate has acquired any really useful experience."

After independence, Article 234 was adopted in our constitution which authorised recruitment of judicial officers below the district judge but this article was not substantively debated in the Constituent Assembly. However one of the qualifying criteria for Civil Judges and Judicial Magistrates in India has been a practice requirement of three years before a court of law, after graduation combined with an examination and an interview conducted by the State Public State Commission in consultation with the High Court that has jurisdiction over the state.

Law Commission of India (LCI) in its 14th Report followed the footmarks of Rankin commission when it observed that under the conditions prevailing in the legal profession it is virtually impossible for a person to acquire any meaningful experience or training in the period of three to five years. However, in its conclusion, the LCI leaned in favour of retention of the three year experience criteria as it provided some, though limited, experience to fresh law graduates and exposure to working of law in courts.

Next LCI came up with a series of recommendations in its report to revamp the sub-ordinate judiciary-

  • 114th Law Commission of India report- Setting up Gram Nyayalayas
  • 116th Law Commission of India report- Setting up an All India Judicial Services
  • 117th Law Commission of India report- Setting up an Academy for Training Judicial officers at all levels
  • 118th Law Commission of India report- Method of Appointments to Subordinate Courts/Subordinate judiciary

Both 116th and 118th Report emphasised how 2 to 3 years of practice didn't provide sufficient experience and hardly qualified an individual to be a better judge. However in conclusion 118th report agreed on retention of three year experience requirement.

These dilemmas remained unresolved and meanwhile respective state governments modified their judicial service rules to amend the eligibility criteria. Few states scrapped the requirement of three year experience requirement while few retained it. It was only when Supreme Court got involved in All India Judges' Assn v Union of India (1993 AIJA case) that an attempt was made to bring some uniformity. Apex Court asked state governments to reintroduce the three year experience requirement criteria because "..the recruitment of law graduates as judicial officers without any training or background of layering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the judge has to decide, among others, question of life, liberty, property and reputation of the litigants, to induct graduates fresh from the Universities to occupy seats of such vital powers is neither prudent nor desirable." (Para 20)

The Supreme Court also laid emphasis on uniformity characteristic and observed that since Judges of District Court, High Court and Supreme Court need minimum period of experience as an advocate to suffice eligibility criteria, the same should also be implemented in subordinate judiciary.

In 2002 Supreme Court taking cognisance of the Justice Shetty Commission report in 2002 AIJA case, reversed its earlier ruling of 1993 and asked for scrapping of minimum experience requirement. The rationale was based on the observation in Shetty Commission that because of this requirement, brilliant young minds are drifting away from the judicial services. The court failed to take cognisance of the revolutionary move introduced by Prof Madahav Menon in the form of integrated law degree and National Law Universities (NLUs). The legal education was just gaining traction and becoming more competitive with more young minds voluntary opting for the field.

No other major common law country has removed the criteria of minimum practice requirement. United Kingdom has a complex judicial structure as it is the by-product of 1,000 years of evolution. Different types of case are dealt with in specific courts: for example, all criminal cases will start in the magistrates' court, but the more serious criminal matters are sent to the Crown Court. Appeals from the Crown Court will go to the High Court, and potentially to the Court of Appeal or even the Supreme Court. Civil cases will sometimes be dealt with by magistrates, but might well go to a County Court. Again, appeals will go to the High Court and then to the Court of Appeal – although to different divisions of those courts.

Judicial Appointment Commission is responsible for appointment of judges in these magistrate courts. In its eligibility criteria for legally qualified candidates there is a statutory requirement for at least 5 or 7 years of post-qualification experience (PQE) for legally qualified posts.

In Australia different states have their own eligibility criteria, for instance in Western Australia a person is qualified to be appointed as a magistrate of the Court if he or she has had at least five years' legal experience, in South Australia for appointment to the Magistrates Court an appointee must have been a practitioner of at least five years standing, in Australian Capital Territory to be eligible to become a magistrate or special (acting) magistrate in the ACT.

Don't compare apple with oranges

The obvious contention raised against the BCI resolution will be by drawing parallel between judicial services and executive service more specifically services allotted by Union Public Service Commission. If a person can become an Indian Administrative Service officer then why can't a person become a judge at 21 years of age? The underlying presumption here is that both services are similarly situated in terms of nature of employment. A closer scrutiny is required to confirm this hypothesis.

Since the constitution provides detailed procedure of employment, eligibility and other requirements vis-à-vis Supreme Court and High Court judge, there is little doubt that these are constitutional positions and there is no requirement of further clarification. The issue of nature of employment arises in lower judiciary where all executive and judicial organs of state are involved in appointment and dictating service condition of judges. Article 236 of the Constitution defines the expression judicial services as "means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge."

Supreme Court in All India Judges' Association v Union of India (1993) specifically held that judicial service is not a service in the sense of employment and judges are not employees. Justice Sawant speaking for the court clarified in detail the underlying difference between the two. The paragraph is self-explanatory and is reproduced below:

"....The judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the state-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, legislators and the judges and not between the Judges and the administrative executive...... The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally." (Emphasis intended)

Law Commission of India in its 14th Report also emphasised the importance of judicial officers which denotes their different stature:

"...the great responsibility of the work which a judicial officer is called upon to discharge needs no emphasis….Judicial integrity is of the greatest importance....

..If the public is to give profound respect to the judges the judges should by their conduct try and observe it: not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them."(Emphasis intended)

The role and duties discharged by the judges are in stark contrast to the administrative duties discharged by the lower executive. The duties and responsibility vested in judges in identical in the entire judicial setup only the jurisdiction differs. The SC, re-affirming the observation of 1993 AIJA case in High Court of Judicature at Bombay through its Registrar v. Shirishkumar Rangrao Patil., highlighted the role of lower judiciary in following words:

"The trial judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the day-to-day proceedings in the Court. on him (/her) lies the responsibility to build a solemn atmosphere in the dispensation of justice, the personality, knowledge,, judicial restraint, capacity to maintain dignity, character, conduct...." (Para 13)

SC went so far to say, and rightly so, that if the rule of law is to function efficiently under the aegis of our democratic society, judges are expected to nurture an efficient and strong and enlightened judiciary.

Law is a means to an end and justice is that end. Judges are bestowed with the responsibility of dispensing justice to the people. SC in Supreme Court Advocates-On-Record Association v Union of India observed that "...the role of the Judiciary under the Constitution is a pious trust reposed by the people. The Constitution and the democratic polity thereunder shall not survive, the day the Judiciary fails to justify the said trust."(Para 329)

Many elephants in the room
Irrespective of how commendable the BCI resolution is, it is not devoid of flaws. Press release dictates only the proposal to re-introduce the 3 year experience eligibility. The details of the proposal can only be gauged after perusal of the detailed application filed by BCI or at the argument stage. However it is imperative to mention few pressing issues that should be taken into consideration by BCI otherwise the move will reverse the wheel of change in legal profession.

Judicial Services is usually the preferred choice of first generation lawyers because of its objective assessment of candidate's merit wherein you don't need to have "contact" in the legal fraternity. LCI in its 14th report observed : "It is only the exceptional young man, favourably situated and having the advantage of a senior member of the Bar interested in him, who gathers any experience at all at the Bar in so short a period of time. Such an exceptional person would naturally not care to be a competitor for entrance into the subordinate judicial service."

The reason why so many first generation lawyers opt for judiciary is the miniscule amount of salary paid to the fresh law graduates in lawyer's chamber. Vidhi Centre for Legal Research study showed that 79% of advocates with less than 2 years of experience earn less than Rs 10,000. There is a demand for minimum wages for junior advocates so that they are not subjected to hand-to-mouth existence.

The BCI also needs to address the concerns pointed out by Shetty Commission that "…In the initial three years of legal practice, the lawyers neither gain any experience nor earn anything in the absence of any work with them". The commission was right in pointing out that in absence of nay work the fresh law graduates may be frustrated and drift away from the judicial services. BCI is also the regulator of legal profession and dictates the professional standard of advocates enrolled.

Additionally, BCI also mentioned that most of the judicial officers are impolite and impatience. BCI regulated legal education in India and has made Professional Ethics and Moot court/clinical trial a compulsory subject. These observations are an admission of the failure of such initiative to impart essential qualities. The BCI and the University Grant Commission (UGC) are the regulatory agencies in legal education in India. The UGC, determines the standards of legal education and it has set a panel on legal education, BCI is empowered to prescribe standards of professional legal education. Thus, on the one side, the BCI Trust specifically monitors the legal education and the entry of lawyers in the profession and the other side is the UGC, which also recognizes the degree awarded by the legal institutions especially relating to higher studies in law. However, there is lack of uniformity in the aims and objectives of legal education projected by these regulators and this multiple regulators dichotomy is not blamed for the sub-standard of legal education.

It should also be mentioned herein that the reason why many law students appear "impractical" is because they are not able to pursue internship as they are unpaid and hence cannot afford itstudy that I conducted highlights that majority of the students don't get stipend and if they do it is minuscule sum. The synergetic effect of expensive legal education and unpaid internship lead to many students lacking the required practical experience as desired for being a judicial officer.

Few thoughts

The BCI is probably few of the those regulating agency which takes decision by being completely detached from the realities of law students. There is no direct link between law students and BCI nor is there any consultation mechanism before taking decisions.

Legal education in last two decades has seen tectonic shift. Observation made by the Shetty commission and the All India Judges' Assn decision (2002) surely need revisiting. However this re-visit should be made with a pinch of salt taking into consideration the new problem originating out of this tectonic shaft.

Lord Devlin, a great Law Lord with profound common sense had said sometime on the courts of England - and it would be interesting to narrate what he said - that

"if our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back".

To prevent ourselves from sliding into this intellectual bankruptcy BCI move provides some respite. Its enforcement is something we don't know until we know.

(The author is a final year law student at Dr RMLNLU. He may be reached here).


As used in Madhya Pradesh.

As used in Tamil Nadu.

Chapter II: The Debate on the Practice Requirement for Civil Judges and Judicial Magistrates

Ibid

Rule 25 of the Bar Council of India Rules 2007 prescribes that every registered law student is required to intern during the academic year


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