BCI steps towards exclusivity and elitism by favouring 3-year experience at the Bar for judicial services exam

The Bar Council expressed the need for a minimum of three-year experience at the Bar before they can be considered eligible for the Judicial Services Examinations. According to the Bar Council, this experience is what helps the young lawyers build experience and their capability. But the Bar Council fails to see the deeper issues surrounding the suggestion. SAMARTH SANSAR and SHREYA take a look at why the suggestion is flawed and write about working towards a system beyond the paper.

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The Bar Council of India (BCI) expressed its inclination towards having a minimum of 3-year experience at the Bar to be considered eligible for appearing in the Judicial Services Examination through a press release, earlier this month.

Through an application, the BCI seeks modification in the 2002 judgment by the Supreme Court in All India Judges Association v. Union of India (2002) 4 SCC 247. They stated that the judicial officers with a lack of practical experience are incapable of handling situations.

A lack of understanding in matters of proper and decent behaviours is considered one of the primary reasons for the delay in disposal of cases at the lower judiciary. This issue came to the forefront after a petition was moved before the Supreme Court seeking to quash the notification mandating three-year practice experience for Civil Judge Exam in Andhra Pradesh, in which the BCI seeks to implead as a party.

The move by the BCI triggered the debate which was settled by the apex court back in its 2002 order, wherein the court, while accepting the recommendation of Shetty Commission (First National Judicial Pay Commission), stated that "the need for an applicant to have been an advocate for at least 3 years in order to be eligible to appear for judicial services should be done away with."

The court recommended further that the fresh recruits be given training which isn't less than one year, but preferably two.

Exclusion of Bright Candidates

If the challenge by BCI is allowed, this move will make the elite legal profession more elite. This move may lead to the exclusion of bright candidates emerging from the non-legal and weaker socio-economic sections of society.

One of the primary arguments put forth by BCI suggests that young graduates who have no experience at the Bar, are incapable of satisfactorily handling matters. The press release stated, "such judicial officers lack understanding of aspirations and expectation of advocates and litigants in a proper and decent manner."

The BCI fails to provide particular empirical evidence suggesting that the judicial officers with a lack of practice at the Bar are inefficient, and the training by judicial academies offers no value addition.

There is no compelling reason to believe that getting a candidate enrolled in the Bar ensures acquiring the skills to be an efficient judge. Keeping this in mind, the proposal of reviving the compulsory practice is highly problematic and suffers multiple fallacies, which will be discussed here.

The three-year experience isn't enough

It is evinced that a person who joins litigation as a first-generation lawyer with no acquaintances at the Bar will face difficulty to excel in the practice within a span of three years. With the necessary support, the people with acquaintances get served with cases that others may not get despite similar intellectual levels.

Without legal backing, fresh graduates would be considered lucky if they can work as a junior in a lawyer's office amid the cut-throat competition. Therefore, subjecting each candidate through the same mandatory practice without keeping in mind the factors that affect opportunities would be biased.

If the challenge by BCI succeeds, this will further promote elitism and nepotism in the legal profession, for all practical purposes.

In 1924, The Civil Justice Committee, popularly known as the Rankin Committee had also opined that the requirement of three years or more of practice at the Bar provides no guarantee that the candidate has imbibed any useful experience. It was noted that only a few exceptional candidates with a favourable situation along with the advantage of having a senior member at the Bar could acquire expertise in a short period.

The Shetty Committee expressed a similar view where the Report stated that no responsible work will be entrusted to the junior during the initial period unless the junior is his son or would-be son-in-law.

Also, there is substantial doubt on how the BCI or the State Bar Councils would ensure that the candidates who have enrolled in the Bar have practised, as a person can get registered and still choose not to do anything. Practising in different state bar councils would lead to entirely different experiences where they may experience ample opportunity in one, whereas dearth in the other.

The acumen that helps deal with cases as a judge needn't come from practising at the Bar alone. Even if the aspirant lawyer is fortunate with a few cases, they only deal with a limited number of subject matters.

This limitation wouldn't be sufficient to imbibe the qualities for dealing and deciding cases across various laws and subject matter as a judge. The 116th, 117th and 118th Law Commission Reports have also recommended against the Bar's compulsory practice to be eligible to appear for judicial services examinations.

The affirmative conclusion of all these three Law Commission Reports found the assumption "standing at the Bar for a certain period is adequate to equip the entrants to judicial service for effectively handling causes and controversies and resolving them according to law," to be unsustainable.

Issues faced by courts

As mentioned above, the BCI stated that the primary reason for the colossal pendency at the lower courts is due to the lack of experience at the Bar. They suggest that these judicial officers are inept and incapable of dealing with the cases. The statement by the BCI reflects the denial in addressing the root of the problem of pendency.

The Malimath Committee Report (1990) stated that the judicial vacancy is a significant reason for case arrears burdening our judiciary.

Even the data released by the Ministry of law and Justice in November 2019 in response to a question raised in the Parliament, reveals that the judge-population ratio in India is 20 Judges per million people. The ratio suggests that it is lesser than the required 50 Judges per million people recommended by the 120th Report of Law Commission of India to ensure the judiciary's smooth functioning.

The Supreme Court in 2018 took suo-motu cognisance of the high vacancies in the subordinate judiciary and found out that almost 23 per cent of the sanctioned strength of lower judiciary is vacant. There is no recruitment process for more than 25 per cent of those empty seats. Furthermore, the Supreme Court in a report titled "Subordinate Judiciary-Access to Justice (2016)", has opined that infrastructural constraints such as shortage of courtrooms, secretarial and support staff and residential accommodation for judges are also prominent reasons behind the mounting pendency of cases in subordinate courts.

Alongside these significant problems, several other key issues are also incidental to clearing case arrears like setting up of fast-track courts and steps to be taken in furtherance of compulsory alternative dispute resolution mechanism.

Recent data suggests that there are 15 states and Union Territories which have not established even a single Fast track Court till date and almost 60 per cent of the fast track courts as proposed by the 14th Finance Commission are yet to be set up. Thus, backlogs at the lower judiciary result from a combination of factors that need immediate attention. However, the BCI is completely negating these factors and labelled inexperience at Bar as one of the primary reasons for the delay in disposing of the cases. Instead of altering the course of entry, we should work towards the appropriate steps to tackle the impending problems.

The pre-requisite experience of three years at the Bar will not serve the purpose of the BCI. This would instead create a divide as it excludes and dissuades young candidates from the process. To ensure the judges' capability to handle the cases is untainted, improving the current selection and training process is the way to go.

What can be done?

A 2019 study by VIDHI, titled, "Schooling the Judges: The Selection and Training of Civil Judges and Judicial Magistrates", highlights the current examination pattern where it tests the memory of candidates rather than their critical thinking, reasoning, and application of law required for a judge. Similarly, the study also suggests the lack of clarity regarding the interview process (duration, types of questions etc.). Refining the selection method by changing the evaluation pattern and bringing it in with consonance with the requirements will help improve the process.

Moreover, the VIDHI report had further highlighted the lack of permanent faculties at the state judicial academies, excessive control of High courts, lack of time for the trainers which may be the prime reasons behind the contentions highlighted by the BCI.

The 117th Report by the Law Commission prescribed courses (prepared by then CJI) on court management, system management, legal principles and practical training apart from theoretical exercises while recommending the dilution of three years practice.

This suggested the deployment of trainee judges alongside the sitting judges to learn the profession's nuances and develop a better understanding of court craft. Such guided training would equip the upcoming judges with the skills necessary rather than ticking the criteria of mandatory bar experience which cannot be efficiently regulated. There hasn't been much done despite the dilution for compulsory practice requirement.

Furthermore, the concerned authorities might also consider increasing the training period to two years or more, as was suggested by the Supreme Court in its 2002 ruling. This extended training and the particular focus on practical exercise would be more effective as it prepares them for the challenges as a judge unlike that of the three-year bar experience, which doesn't guarantee to imbibe a judge's skills in the majority of cases.

Instead of ensuring a complete overhaul of the system, the BCI is cherry-picking issues without being bothered about the far-reaching consequences.

However, now that the BCI has moved the petition already, it is up to the Supreme Court to closely scrutinise the pros and cons of the move and ensure that the best mechanism both for the system and the candidates, is put to practice.

(Samarth Sansar and Shreya are law students at the National University of Juridical Sciences, Kolkata. The views are personal.)