The Bar Council of India (“BCI”), in a press release on Saturday, has said that it will file an application in the Supreme Court seeking modification of the order which allowed fresh law graduates to become judicial officers. It said that the BCI and the State Bar Councils are "strongly in favour" of a 3-year minimum experience at the bar for being considered eligible to sit for judicial service exam.

In this article, we will discuss the veracity of the claims made by the BCI in the light of existing reports and data. Further, we will discuss the existing position in law, how it came to be, its basis and a comparison of similarly placed officers. We will discuss the legitimate expectations of judicial services aspirants. Lastly, we will discuss the suggestions and alternatives to the issue raised by the BCI.

The BCI in its press release has stated that “The inexperience at the Bar is one of the primary and major reasons for delays in the disposal of cases in the sub-ordinate Judiciary Trained and experienced judicial officers can comprehend and dispose of matters at a much faster pace, thereby leading to efficient administration of justice”.  We will discuss the veracity of claims made by the BCI in light of statistics on delay in disposal of cases by the subordinate judiciary. We will also juxtapose the selection criteria and the powers of an executive magistrate with that of a judicial magistrate second class. This exercise will better help the readers understand if there is any need at all to bring in an additional requirement of a three year practice period.

Delay in disposal of cases – ‘Pendency’

The BCI claims that there has been an increase in the pendency of cases due to the fresh graduates in the subordinate judiciary. We bring before you publicly available statistics on the pendency of cases before the subordinate judiciary and the higher courts. A study named “Pendency of cases in the Judiciary” conducted by the PRS Legislative Research says that between years 2006 to 2016; “The disposal rate has stayed between 55% to 59% in the Supreme Court, at 28% in the High Courts, and at 40% in the subordinate courts.” The disposal rate in the subordinate judiciary is higher than that of the High Courts in the country. Further, concluding the data on pendency, it says that there are 23% of the cases in High courts as against only 8% of the cases in subordinate courts, which are pending for over 10 years.

The study further says that between 2006 and 2018, there has been an 8.6% rise in the pendency of cases across all courts. Pendency before Supreme Court increased by 36%, High Courts by 17%, and subordinate courts by 7%. The increase in pendency is the lowest in terms of percentage.

These statistics fairly represent the true efficiency of subordinate courts. These statistics hit at the very root of the issue as claimed by the BCI in their press release. An efficient administration of justice is a virtuous objective but can surely be achieved by attempts which do not hinder with the existing eligibility criteria and procedure.

Existing Eligibility and Procedure

In most of the states, the eligibility for appearing in a civil judge cum magistrate exam is ‘candidate should be a law graduate from a recognized institutions’ and above 21 years of age. Selected candidates undergo rigorous training for one year, and then they are posted as Civil Judge and Judicial Magistrate (Second Class).

The requirement of an experience of three years as an advocate was removed by the Supreme Court in the case of All India Judges Association and Ors. v. Union of India (UOI) and Ors. [(2002) 4 SCC 247]. The court had stated:

“With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an Advocate for at least 3 years should be done away with.”

The Supreme Court had observed that a fresh law graduate is comparatively better than the one that comes after three years of standing. The observations of the court were based on the detailed report submitted by the Justice K.J Shetty Commission along with the suggestion of the learned amicus curiae in the case. The court further directed all High Court to amend the provisions accordingly. It stated:

“We, accordingly, in the light of experience gained after the judgment in All India Judges' case (supra), direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in even three years of practice, to be eligible to compete and enter the judicial service. We, however, recommend that a fresh recruit into the judicial service should be imparted with training of not less than one year, preferably two years.”

Presently such selected candidates go through rigorous training of one year where they are subjected to the proceedings of the court. In the initial few months, after training, they are deployed under the supervision of a senior judge. It is only after this rigorous training and the training with a senior judge that they are given the responsibilities of Civil Judge cum Judicial Magistrate (Second Class). Therefore, the existing eligibility criteria and procedure for induction as a Judicial Magistrate (Second Class) are sufficient enough to understand the ‘aspirations and expectations of advocates and litigants in the matter of proper and decent behavior’.

Executive vs Judicial Magistrate

The Code of Criminal Procedure, 1973 (“CrPC”) defines separate functions for executive and judicial magistrates. Some of the powers are exclusively given to the executive magistrates. In this section, we will discuss the comparison between the eligibility and responsibilities of both the magistrates. In most of the states, the executive magistrates are recruited through UPSC and State PSC (“civil services”) exams. The eligibility to appear in civil services exams is “graduation from a recognized institution” and above 21 years of age.

The CrPC provides for several powers to the executive magistrate which are at par with the Judicial Magistrate (First Class). These powers include, inter alia, the power to arrest and issue warrants.

One is eligible for being an executive magistrate if he has a graduation degree along with the required age. Worth nothing is the fact that there is no requirement for a graduation degree from a specialized stream only. An aspirant could even be a graduate in physical sciences and still be eligible for assuming the role of an executive magistrate.

On the other hand, one requires a minimum college education of 5 years (3 years mandatorily in law) for appearing in the civil judge exam. The Magistrate (Second Class) , on the other hand, has very limited powers under the CrPC  as opposed to the powers of an Executive Magistrate. Several powers are subject to prior permission from the Chief Judicial Magistrate. The new addition of a three year practice period is against equality and logic. Even the executive magistrates like the SDMs ADMs and DMs have adjudicatory courts where they decide upon civil matters of land revenue etc. The same advocates appear there also and these magistrates are also expected to understand the expectations of advocates and litigants. Moreover, these executive magistrates are subjected to direct public administration and emergency situations. The irony is that a fresh law graduate can become an executive magistrate and handle judicial as well as executive functions while he cannot become a Civil Judge cum Judicial Magistrate (Second Class).

With the parity in the powers of a Judicial Magistrate (Second Class) and an Executive Magistrate, the introduction of an additional three-year practice period falls short of broad principles of equality.

Legitimate Expectations

In the present times, law education is considered a bright career option as it opens several prospects like litigating advocates, In-house counsels, law firm associates, and judicial officers. In the 5-years integrated courses, the students are aware of their choice of profession towards the last couple of years of their courses. The students shape their specialized education accordingly. Moreover, several law schools provide for specialization in selected areas of law from the third year itself.

As per the current syllabus of the civil judge exam across various states, there is hardly any paper on commercial laws. Someone who aspires to be a judicial officer is most likely to go for Constitutional and Criminal Laws specializations. A judicial aspirant who has molded his specialized course accordingly, has dug his own grave. Why? His prospects in corporate law firms and as in-house counsel were dwindled the day he opted for constitutional and criminal laws as his specialized courses.

Currently, in most of the states, the eligibility for appearing in the exam is a person being “a law graduate” and above 21 years of age. Presently, it is open for all law graduates who are working in PSUs, Law firms, In-house counsels, etc. Law graduates who are in ‘permanent employment’ are not considered as Advocates under the Advocates Act and they cannot apply for enrollment or remain enrolled in the roll of State Bar Council. If this comes into the picture then only registered advocates will be able to appear in these exams.

The kind of ‘urgency’ as expressed by the BCI in its press release, is very likely to result in grave injustice and violation of the legitimate expectation of the current and prospective aspirants of judicial services exams.

Suggestions and Conclusion

There are several questions that how will the authorities determine ‘Actual Practice’? Will that be merely the period of enrolment or some mandatory appearances or vakalatnama? Is BCI trying to say that only good advocates can become good adjudicators?

If the BCI wants to contribute towards high standards of judicial officers, it can recommend changes to the exam pattern, training curriculum or the state can increase the training period. Although there are already three-tier exams in all state judicial services which are conducted under the strict supervision of the High Courts of the states. For several exams like Delhi, Haryana, and Madhya Pradesh, the exam is based on the practical application of the law in facts based illustrations. The exam is designed by the various Hon’ble judges of the higher judiciary who are very well capable of testing the entrants of the subordinate judiciary. As this procedure involves several stakeholders like High Courts and Public Service Commissions of various states, it remains to be seen what their opinion on the issue at hand is.

The Anxiety of an Aspirant

I completed my school education in 2014 and then joined a CLAT coaching. I appeared in CLAT 2015 and joined a law school for a five-year integrated B.A. LL.B. The major aim behind joining the law school was to become eligible for appearing in judicial services exams of various states. In law school, I consciously opted for subjects that were part of the syllabus in judicial services exams. I opted for Constitutional and Criminal Law specialization while there were other options like Business Laws and Intellectual Property Law. I did not sit for college placements, did not apply for other jobs as I always wanted to appear for the judicial services exam. In 2020, I graduated and became eligible for appearing in these exams. I got enrolled with the Bar Council of Delhi in October 2020. Simultaneously, I am preparing for these exams and waiting for vacancy notifications of various states which are already delayed due to COVID-19.

On 3-January-2020, my morning turned into a nightmare with the notification on my mobile phone - “Judicial Officers Not Having Experience at Bar Mostly Found to Be Incapable’: BCI to Move SC for Mandatory Practical Experience for Judicial Service”. WhatsApp is full of forwards related to the issue and anxiety texts from peer aspirants. The Anxiety continues till the Supreme Court decides Writ Petition (Civil) 1479/2020.