Attempts to have an eligibility criterion of three years' practice for joining the lower judiciary lack purpose. It will also keep women out as prospective candidates as it will change the age at entry-level to 26 and above, reversing all the circumstances that otherwise permit a woman to consider the judiciary as a workplace. What's more, at least four Law Commission reports conceded that this requirement offered no guarantees that a candidate had useful experience, write DIKSHA SANYAL AND SUMATHI CHANDRASHEKARAN
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RECENT attempts by the Bar Council of India (BCI) to reintroduce a mandatory requirement of three years' practice as eligibility for joining the lower judiciary is unimaginative, ill-founded and lacks purpose. Not only that, but the proposal is also likely to detrimentally impact the already afflicted judiciary as it threatens to keep out women as prospective candidates.
Data shows that the practice requirement is correlated with fewer women joining the judicial workforce. Data also shows that when the practice requirement does not exist, an average of half the candidates entering the system is women. Reintroducing the requirement without considering this aspect is likely to effectively remove women from the system, again.
The three-year practice requirement for joining the judicial services was the norm until 2002. The reason it stayed in the statute books is not clear. Many committees expressed dissatisfaction over the years but did not recommend removing the requirement either. The Supreme Court, in its 1993 decision in the All-India Judges Association (AIJA), concluded that the requirement should stay as "the judge has to decide, among others, the 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".
But the tide turned in 2002 when the bench hearing the AIJA case changed. The Court removed the requirement, noting that many bright, young law graduates would find the judicial service unattractive after spending three years in litigation. It speculated that the only reason candidates appeared for judicial service examinations is because they could not adapt to litigation. Thus, today, we no longer have a practice requirement as a necessary condition for entering the judiciary at the lowest rank.
Reviving the practice requirement will undo an unexpected benefit that the Indian judiciary has been served over the past decade–that of having half the people entering as judges being women.
In a 2019 study, we found that between 2007 and 2017, the number of women entering the lower judiciary at the entry-level (civil judge) increased exponentially. In the 15 states we studied (Chhattisgarh, Delhi, Gujarat, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Rajasthan, Sikkim, Tripura and Uttar Pradesh), an average of 50% of those clearing the latest recruitment cycle were women. Some states reserve seats for women (Rajasthan, Uttar Pradesh, Chhattisgarh, Jharkhand, Karnataka), but we found that reservation was not a factor in the general overall upward trend in these numbers since 2007.
Compare this with the data on women entering the judiciary as district judges in the same time period, where the criteria are that candidates must be at least 35 years old, and have a minimum of seven years' continuous practice. In five states (Gujarat, Jharkhand, Madhya Pradesh, Uttarakhand, and Uttar Pradesh), less than 15% of the total number of judges selected for recruitment were women, and worse, none of them joined the Assam services at all. Of the states studied, only Delhi and Meghalaya saw about 40% of women enter the services.
These numbers become more interesting when we look beyond the data.
At age 35, an Indian woman is likely to be married, and invariably sandwiched between caring for young children and old parents. Barring minor regional variations, marital obligations and domestic responsibilities combined with the demands of long working hours and very low pay as a litigating lawyer invariably lead to women dropping out of practice, and indeed, the job market generally. Compare this with the situation of a 23-year old Indian female law graduate, who is less likely to be married, or have dependents or other similar responsibilities, and thus, might consider the judiciary as a career option. While litigation may appear adventurous and exciting, it takes the better part of a decade to achieve respectable earnings and cement a reputation. In contrast, the judicial services offer guaranteed, secure and salaried jobs, with defined working hours.
Re-introducing the practice requirement will impact this situation in many ways. It will change the age at entry-level to 26 and above, and thus reverse all the circumstances that otherwise permit a woman to consider the judiciary as a workplace. Add to this the irregularity and delays endemic to state judicial service examinations, which would realistically extend the three-year requirement to a much longer period. Consequently, the percentage of women entering the judiciary will likely fall well below the half we see now, and perhaps even reach the abysmal lows of women entering at the district judge level.
At some point, we must also ask what the purpose of the three-year practice requirement really is. If it is to improve the quality of adjudication, there is no evidence to suggest that these are correlated. Can practice be presumed to guarantee experience? Surely, a person's "experience" or "worldliness" is a subjective measure, as anyone in human resource planning would agree. The 1924 Rankin Committee, and at least four Law Commission reports (Nos. 14, 116, 117 and 118), all conceded that three years' practice requirement offered no guarantees that a candidate had useful experience.
Re-introducing the practice requirement would also remove parity in the treatment of fresh graduates in other public offices. Even as 21-year olds are dispatched into the woods as bureaucrats by the Indian Administrative Services, bafflingly, 23-year-old law graduates are deemed incapable of being trained to become good judges.
In 2002, when the Supreme Court recommended that fresh law graduates be allowed to enter the judicial services, it stressed that this ought to be accompanied by states investing adequately in improving the quality of judicial training. Surely, this is sound advice. It is impossible for any government policy or parliamentary legislation to control the experience that a three-year practice requirement would provide a 23-year old. But investment in improving the quality of judicial training is entirely possible.
Sadly, judicial training in India remains severely wanting. One study shows that in most states, this training is rote-based with inadequate emphasis on practical training. Clearly, systemic changes to enable better adjudication have not been made. In this scenario, a three-year practice requirement only serves to deflect attention from more meaningful, fixable issues.
The mandatory practice requirement also creates additional barriers. Many law graduates do not choose litigation as a profession for practical reasons. The entry level pay, which sometimes lasts for years, is extremely unattractive. One survey found that most lawyers earn at most between Rs 5,000 to Rs 20,000 per month in the first two years of litigation practice. Unsurprisingly, many (especially first-generation) lawyers, for whom survival trumps the love of the law, choose not to pursue litigation.
This impact is likely to be worse for female lawyers who face additional challenges in a male-dominated profession like law; and those with multiple marginalisation due to caste, disability, gender, or sexual preference have it much worse. For instance, in an infrastructure survey of district courts, we found that the state of basic services was dismal. At least 100 district courts across the country did not even have an accessible washroom for women. Only 27% of district court complexes had accessible ramps and/or lifts for persons with disabilities.
We already have evidence showing that the number of women entering the judicial services drops dramatically where there is a requirement of a minimum of seven years' continuous practice for entry at the district judge position. Instituting a similar practice requirement at the civil judge position, in a social milieu that already places so many limitations on women, only erects more barriers for them.
Any decision to introduce a practice requirement must consider these questions: How will it affect the pool of prospective candidates? Does the judiciary run the risk of losing out on a rich talent pool that it is currently able to access? Does such a policy really affect the quality of prospective candidates, and if so, how? Discussion on these issues needs to go beyond mere anecdotalism and populist argumentation. Instead, any proposal for a policy change in the judicial sphere should require evidence backed by data that explains its structural implications. The Indian judiciary, and indeed, the public, deserve at least this much consideration.
(Diksha Sanyal is an Assistant Professor of Legal Practice at Jindal Global Law School; Sumathi Chandrashekaran is a policy lawyer based in Delhi. The views expressed are personal.)