The Bar Council of India has argued that young graduates, who have no experience at the Bar, are incapable of satisfactorily handling matters and made a remark that “such judicial officers lack understanding of aspirations and expectation of advocates and litigants in a proper and decent manner”. How flimsy is the argument submitted by the BCI! Really this type of argument is beyond the expectation, beyond the expression and even beyond the imagination. Recently BCI expressed their concern towards the mandatory three year experience at bar to be eligible for the judicial services examination. A lot of hue and cry took place when this news came in the light.
Before 2002 it was required for an applicant of the judicial services to have an experience of three years working as an advocate but the Shetty commission submitted their report on 11th Nov, 1999 and declared that it should not be mandatory for an advocate to have three year experience to be eligible for the judicial services examination. After the final report of the Shetty Commission, in the case of All India Judges Association And Ors vs Union Of India And Ors. the supreme court had held that after taking all the circumstances into consideration, we accept the recommendation of the Shetty Commission and the argument of the learned amicus curiae that it should be no longer mandatory for an applicant desirous of entering the judicial service to be an Advocate of at least three years standing. The court also directed the High Courts and the State Governments to amend their rules so as to enable a fresh law graduate who may not even have three years of practice, to be eligible to compete and enter the judicial service. However the court recommended that a fresh recruitment into the judicial service should be imparted with training of not less than one year, preferably two years.
Actually the dispute which was disposed successfully in the year 2002, again got erupted by the move of the Andhra Pradesh government. In December 2020 had invited application for the post of civil judge but in the notification the required qualification was a minimum experience of three years as an advocate along with a law degree. Aggrieved by this condition a petition was filed in the apex court challenging the notification which is still pending stating that it was illegal and unwarranted in the light of the case All India Judges Association And Ors vs Union Of India And Ors.
When the petition filed before the Supreme Court challenging the notification by Andhra Pradesh, the BCI made a statement that they will file an application seeking to make minimum three-year practice at the Bar mandatory to become a judicial officer and this statement again started the settled debate.
48% of total population of India is women out of which only 245 women somehow or the other managed to be a judge in the higher court of law which is almost less than 3.3%. Vidhi centre for legal policy situated in Delhi in their research shows that only 28% of lower judiciary judges are women. This shows how low the number of women judges is! And imposing a limitation of experience will further decrease the number of women judges. It is so because women in India are not given sufficient time for exceling her careers. Rather they are forced to settle through the marriage ceremony and imposing three year experience will drag back the women.
The BCI has not presented any data or any research showing that experience is proportionate to the efficiency of the judges and stating that young judges have lack of expertise of law. This will put a serious question mark on the training imparted by the judicial academies of different states. It will lead to a rapid increase in nepotism and elitism in the legal profession because the aspirants who are not from an economically sound background will refrain from joining the legal fraternity. It is well known that those who don’t have any legal background face a paramount of hardship in the earlier phase of litigation hence only those who belong to an elite family will excel in the practice because they will get an already established business of law.
As we know that the National Law University fees are very high and people with lower income join with a hope that after becoming a judge in their first attempt it will be easy for them to pay the loan amount which is taken by them as education loan but imposing such a bar of experiment will make their life full of hardship because in the starting phase of advocacy the income is not sound to pay the instalment of education loan . So this move of BCI will make the study of law very far from the reach of middle class families and will make the study of a bird of gold which can only be captured by elite family and this will result in discrimination on economic basis. There are strong reasons that prompt fresh law graduates to take up transactional jobs, and avoid litigation.
Further, how can BCI guarantee for the efficiency that someone who has experience of three year will deliver judgment efficiently? If it were true then perhaps not any appeal would have pending in Supreme Court. Recent example can be seen from the act when The National Commission for Women moved the Supreme Court against the Bombay High Court on the verdict that had held that groping a child’s breasts without “skin-to-skin contact” does not amount to sexual assault under the Protection of Children from Sexual Offences Act.
It can also happen that someone who made their enrolment into the bar but not made a practice in the court then how will BCI make any difference between those who have actually practiced or not? This seems that the submission of BCI will make the situation worse.
The Rankin Committee in the year 1924 also had made their remarks that there is no guarantee that the candidate has imbibed any useful experience even after three year experience. So the submission of the BCI is only a matter of assumption.
A reform should be initiated right from the academic situation of the school of law. Law students should be given a chance to indulge in practical aspects of law along with the bookish knowledge. In a research titled Schooling the Judges The Selection and Training of Civil Judges and Judicial Magistrates it is mentioned that the current pattern of examination for judicial magistrate which tests the memory of a candidate rather than the reasoning and the analytical skill of the candidate, so the examination pattern should be changed.
The training period for the judicial magistrate should be made compulsory for at least two year and it was also suggested in the All India Judges Association case in 2002 by the apex court. The training should be more related to function of court than the subjective training because in law schools they have been taught law.