The Madhya Pradesh government has recently introduced an amendment making three years practice a mandatory requirement to appear for judicial services examination at the civil judge level. Are the requirements based on an intelligible differentia?
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ON June 23, the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 were amended to make three years of practice compulsory to be eligible to appear for the civil judge entry level test in the state.
The amendment exempts "outstanding law graduates" who have secured at least 70 percent marks in the general and Other Backward Class (OBC) categories from the mandatory requirement of three years practice. It also exempts Scheduled Caste and Scheduled Tribe candidates securing 50 percent marks. These exemptions only apply if a student has passed the examination in their "first attempt".
The introduction of these rules has drawn flak from judicial services aspirants and law students. On the other hand, many from the legal community have lauded this step.
The Bar Council of India (BCI), the regulating body for legal practice in India, has a history of favouring such rules of getting 'experienced' judges. In a press release, the BCI called judicial officers not having practical experience at the Bar as "incapable", "inept", "impolite", and "impractical".
In 2021, the BCI also filed an application before the Supreme Court to amend a 18-year-old Order, which had removed the mandatory practical experience for judicial officers as qualifying criteria.
“As per the India Justice Report 2022, a significant number of women are breaking into the 'Old Boy's Club' by entering district court-level judiciary, with around 35 percent of judges in district courts being women, whereas only about 13 percent of judges in high courts are women.
The Constitution of India, through Article 234, empowers a governor to appoint a person other than a district judge to the judicial service of the state in accordance with the rules made by him, after consultation with the state public service commission and the high court of the concerned state.
When the possibilities of All India Judicial Services were being discussed, in the 116th Law Commission Report, the grievance of a judge was also addressed, that the "catch them young" concept should not be applied in the case of appointment of judicial officers.
In the discussion it was stated by the judge that a judicial officer requires experience, knowledge of the law and exposure to form the correct perspective.
But, the same can be achieved by training the judicial officers after their appointment.
The Shetty Commission headed by Justice Jagannatha Shetty, also reiterated the discussion made under the 116th Law Commission report.
The Shetty Commission elaborated on the same issue and noted that the Supreme Court in All India Judges Association versus Union of India (1993) had declared three years of legal practice as an essential qualification for recruitment at the lowest level in judicial hierarchy.
However, in All India Judges Association and Others versus Union of India (2001), the Supreme Court overruled the requirement of mandatory three years of practice and allowed the induction of fresh law graduates into the judicial services.
This narrative has numerous problems. The cardinal argument against this narrative is that it is against the interest of marginalised communities and women.
Also, data on diversity in district judiciary shows a desperate need for more judges from among marginalised communities and women, and the narrative of three-years of practice would make increasing the number of women and marginalised community judges a distant dream.
As per the India Justice Report 2022, a significant number of women are breaking into the 'Old Boy's Club' by entering district court-level judiciary, with around 35 percent of judges in district courts being women, whereas only about 13 percent of judges in high courts are women.
“The new policy and the assertion by the BCI towards making the three-year experience a norm throughout the country for entry-level judiciary is likely to reduce the number of women and marginalised community lawyers.
At the same time, representation of female judges at subordinate levels in Goa is as high as 70 percent, and in Meghalaya and Nagaland it is a respectable 63 percent each.
There is not much diversity along the caste vertical in the judiciary as well. As per available data, OBCs make up around 12 percent and Dalits around 14 percent of judges at the district level (2018 data).
However, the new policy and the assertion by the BCI towards making the three-year experience a norm throughout the country for entry-level judiciary is likely to reduce these numbers.
Firstly, the new policy encourages only candidates from well-off families to appear for the entrance exam. The apparent reason is the question of sustenance after the completion of either a three-years undergraduate degree along with a three-years LLB degree, or a five-years integrated law course.
Candidates from financially disadvantaged backgrounds struggle through these long years it takes to complete a law degree. Many simply do not have the wherewithal to practice for three years before attempting to find a stable job (which the judicial services offer).
It is an open-secret that junior lawyers are paid a pittance and cannot sustain on the meagre incomes which the legal profession offers in the early years of practice.
This is an even more difficult situation for female lawyers and lawyers from marginalised backgrounds. Female lawyers are under various pressures, including deep-seated reluctance to allow them to step into the legal profession where they might have to work odd hours and the constant goading towards getting married. Lawyers from the marginalised backgrounds might have families or younger siblings to support financially.
A three-year waiting period might be too long for many among them.
Secondly, this norm will slowly distract young law graduates who will find respite in joining corporate firms and offices that would reward their degrees with better pay. This trend is already on the rise with the establishment of National Law Universities. Fresh law graduates have started preferring corporate firms to traditional law practice for reasons of the latter being tiresome and exclusionary.
These Rules have been introduced at a time when Madhya Pradesh is plagued with pending cases. Around four lakh civil cases and around 1.5 million criminal cases are pending, thus making up almost two million pending cases at the district court and taluka level.
The district court level judicial services in Madhya Pradesh have 18 percent vacancies and introduction of the norms would narrow the number of candidates appearing for the exam.
“Fresh law graduates have started preferring corporate firms to traditional law practice for reasons of the latter being tiresome and exclusionary.
Further, the amendment has been drafted without an intelligible differentia. The amendment provides an exception— which prima facie looks like ordinary demarcation. It differentiates candidates based on the aggregate marks obtained in their course of legal education.
This is, prima facie, discrimination as there is no standardised or uniform marking system in India— a candidate might score 75 percent aggregate in one university but might find it hard to score 65 percent aggregate in another university where the checking is quite stringent.
So how far can this exception be considered valid? It is more disadvantageous towards students from traditional law universities, which are notorious for awarding low grades to students.
The exemption for securing 70 per cent marks in the general and OBC categories and 50 percent marks in the Scheduled Caste and Scheduled Tribe categories on the "first attempt" is also ambiguous.
If a student scores 75 percent marks but prefers to give an improvement exam to make it to 80 percent, will that be counted as a first or second attempt?
If a student falls sick during an exam and has to repeat the exam, will they have to practise for three years after their degree before appearing in the judicial services qualifiers?
In conclusion, it is essential to revisit these Rules in the background of the ruling in All India Judges Association.