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The bar of being at “The Bar”

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The Indian judicial system can broadly be classified in a 4 step hierarchical structure with the Supreme Court at the apex, the High Courts for each state, a State Higher/Superior Judicial Service and at the entry level we find the State judicial service.    

Fresh law graduates armed with a LLB degree and without any actual work experience are eligible to be appointed to the entry level service once they are able to wade through the recruitment process of written examination followed by a viva voce akin to the process adopted for recruitment to Civil services under the State and the Union.  

These fresh recruits are then imparted a training of usually a year before they come to hold court. 

The issue of eligibility criteria for appointments of judges to subordinate courts has been debated and deliberated over for many years. The issue has once again come into light with the press release wherein the Bar Council has called for the requirement of three years of practice at the bar to be made mandatory before being appointed to the subordinate judiciary. The Press release was in response to the petition filed in the Supreme Court challenging Rule 5(2)(a)(i) of the Andhra Pradesh State Judicial Service Rules of 2007 which lays down the pre-condition of a three years practice period as an advocate to be eligible for the posts of civil judge junior division.  

The present structure of the Indian judicial system is a continuation of what was left to us by the colonial rulers. Not much changed in this structure post independence apart from the fact that the system came to be manned exclusively by Indians. However, with coming into force of the Constitution the Judicial system became the sentinel on the qui vive instead of being a merely wing of the state for administration of justice. As a protector of the fundamental rights of the citizen, independence of the judiciary came to be the most exalted principle. Apart from the independence of judiciary the other equally important aspect is the efficiency of judicial administration. An independent and efficient judicial system is part of the basic structure of the constitution.   

In the All India Judges’ Association case reported in 2002(4) SCC 247, the Honb’le Supreme Court held, “The subordinate judiciary is the foundation of the edifice of the judicial system. It is therefore imperative, like any other foundation that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary.”   

In the same case the Apex Court devised a three pronged recruitment process to the higher judicial services:- 

  1. 25% from amongst practicing advocates  
  1. 25% by limited competitive examination from the civil judge cadre  
  1. 50 % by promotion on merit cum seniority basis    

It is astonishing that on occasion no candidate has been able to make through the 25% limited competitive examination and the result is a baffling one line statement “none found qualified to be called for the interview”. This shatters the fallacy of on the job training and much remains to be said about the efficiency of the judges manning the subordinate judiciary.   

The huge population of under-trials languishing in jails in your Country for petty crimes and invariably bail is eventually granted by either the Sessions or the High Courts, for the simple reason that the practical application of the principle of “Bail is the rule and jail is an exception” is not understood in the right earnest by the subordinate judges.  

Inordinate delay in small causes matters in another example of judicial inefficiency.  

What are the real objectives of any judicial system? Efficiency and effectiveness in dispensation of justice.  

Judicial system cannot afford to adopt the principles of sufficiency of services as followed in the administrative services and justice needs to be complete and absolute. Human resources are a critical element of any human organisation. Efficiency of the judicial system requires manning by efficient human resource. 

The principles of equating the executive with the judiciary for eligibility and pay-scales was rejected by the Supreme Court and therefore it has to be borne in mind that a fresh graduate entrant to the civil services without any prior job experience is altogether differently situated from a fresh graduate civil judge with no prior experience in litigation  

The 2002 All India Judges’ Association lamented on the inadequate number of judges and ascribed this as the reason for delayed justice and increasing backlog, however it is also the lack of trained judicial officers.  

The three year eligibility criteria has been frequently debated. In 1958, The Law Commission in its 14th report to the government recorded the reasons opposing this criteria; some of the reasons stated that under the conditions that prevailed at that time in the legal profession it was impossible for a person to have three to five years of experience of practicing as an advocate because it was only the young and exceptional people who had the advantage of having relations with the senior member of the Bar otherwise only those people aspired to become a judge who failed to make a living in the profession and had no hopes of prospering in it. The Law Commission in its 116th report also stated that although common law countries required a practice before being appointed as a judge but it has been generally seen that practicing for a short span of time hardly makes any difference on making a person a good judge. But then Supreme Court went against this contention in 1993 in the matter of All India Judges’ Association and Ors. vs. Union of India and observed that appointing fresh law graduates as judicial officers has not turned out to be good as from the first day of appointment a judge has to decide questions pertaining to life, property, liberty and other important matters that require a certain level of maturity. Therefore, vesting law graduates with such vital powers is not desirable. The Apex Court also drew a distinction between knowledge derived from books and first-hand experience of the working of the Court by stating that practicing at any court of law cannot be substituted by knowledge derived from books because mechanism of the Court system can only be understood by practising as an advocate.  

This Judgment of the Court was then overruled in 2002 in All India Judges’ Association and Ors. vs. Union of India. The Apex Court relying on the recommendations made by the Shetty Commission removed the criteria of minimum practice for three years and stated that after the practice of three years most of the exceptional and young law students do not find judicial services suitable enough for them because of which judicial services are anyway robbed of the really talented people.  

Civil Judge and Judicial Magistrate are junior most posts in the Judicial hierarchy but they nonetheless play a very important role in our justice system. The judge is burdened with responsibilities as his actions affect the lives of the litigants. They have a very important role to play for example Article 22 of the Constitution of India mandates police to produce the arrested person before the judicial magistrate within the period of twenty four hours. Now, it’s the judicial magistrates’ discretion to give the police further custody of the accused. It is very important for a judge to have first hand practical experience while dealing with serious cases such as that of sedition because interpretation of it may not be made by just reading the bare text of the law. In the light of above-mentioned scenarios it is clear that a judicial officer has very important role to play and a person dealing with such situations is required to have practical experience. There is thus a clear need for revisiting the eligibility criteria for appointment to entry level jobs of the subordinate judiciary.  

Sumit Teterwali & Animesh Upadhyayii 

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