CASE DETAILS : ALL INDIA JUDGES ASSOCIATION AND ORS. v. UNION OF INDIA AND ORS| W.P.(C) No. 1022/1989
The Supreme Court considered the issue of whether the condition of three years of practice at the Bar in addition to a legal degree needs to be restored to appear for the Civil Judge(Junior Division) exam in light of various issues faced by the High Courts in terms of lack of exposure on the functioning of courts. This requirement was done away with by the Supreme Court in the All India judges Association Case (2002)
A bench of Justices B.R. Gavai, AG Masih and KV Chandran is currently hearing a writ petition filed by the All India judges Association in which various issues from judges’ pensions to service conditions have been raised. One of the issues on which the deliberation took place through Senior Advocate and Amicus Curiae Siddharth Bhatnagar is whether the three years of legal practice should be restored.
Amicus Curiae raised concerns about allowing fresh law graduates entry to the judicial service without any practical experience as an advocate.
Bhatnagar submitted that the issue was first dealt with in the All India judges Association Case (1993) in which the Court had observed:
“Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the court-system and the administration of justice begotten through legal practice. The practice involves much more than mere advocacy a lawyers has to interact with several components of the administration of justice. The experience as a lawyer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection.
Many States have hence prescribed a minimum of three years’ practice as a lawyer as an essential qualification for appointment as a judicial officer at the lowest rung. It is, hence, necessary that all the States prescribe the said minimum practice as a lawyer as a necessary qualification for recruitment to the lowest rung in the judiciary.
In this connection, it may be pointed out that under Article 233(2) of the Constitution, no person is eligible to be appointed a District Judge unless he has been an advocate or a pleader for no less than seven years while Articles 217(2)(b) and 124(3)(b) require at least ten years’ practice as an advocate of a High Court for the appointment of a person to the posts of the Judge of the High Court and the Judge of the Supreme Court, respectively. We, therefore, direct that all States shall take immediate steps to prescribe three years’ practice as a lawyer as one of the essential qualifications for recruitment as the judicial officer at the lowest rung.”
However, based on the recommendation of the 1996 Justice K.J. Shetty Commission(First National Judicial Pay Commission), the requirement was done away with in the 2002 judgment of the All India Judges Association.
In the 2002 judgment, as read by Bhatnagar, the Supreme Court observed:
“In the All India Judges’s case [1993] 4 SCC 288 at p. 314; this Court has observed that in order to enter the Judicial Service, an applicant must be an Advocate of at least three year’s standing. Rules were amended accordingly. 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 year 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.
After taking all the circumstances into consideration, we accept this 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 we accordingly, in the light of experience gained after the judgment in All India Judges’ cases 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 years, preferably two years.”
Shetty Commission reasoned that because of the three years of practice, young law graduates are no longer attracted to judicial services. It was stated that instead of the three years of wait, it is better that some training is imparted to them for a year or two.
However, Justice Gavai stated that earlier the service conditions were not “attractive” but now it is. He said: “Now, the service conditions are so attractive that a lawyer with three years of practice would be more than willing to [enter in judicial service].”
The amicus took the Court through the views of the various High Courts in this regard and argued that more or than all High Courts have taken a stand that a prior practice of two or three years is required for efficiently functioning as judicial officers. He submitted that most High Courts and States are of the view that the entry of fresh law graduates to judicial service was “counter-productive.”
Bhatnagar pointed out that the only place where there is a lack of consensus between the various High Courts is whether two or three years of practice should be there. He recommended that two-three of training including two years of practical training and one year of institutional training.
For instance, Andhra Pradesh and Assam High Courts have maintained that a minimum of two years of practice should be there. Andhra Pradesh has stated that some instances have come to light that fresh graduates have not treated members of the Bar, staff and other judicial officers in “good spirit”.
Whereas, Punjab & Haryana High Court calls for 3 years of practice. It is also the case of the Punjab and Haryana High Court that the provisional registration at the Bar for two years could be counted as practice. Whereas, Uttarakhand High Court has maintained that the three-year period begins after the All India Bar Examination is cleared.
Sikkim and Chattisgarh are some of the only High Courts that have stated that three years of practice need not be restored.
How to ensure effective practice at Bar?
The next issue that the Court faced was if the two to three years of practice at Bar is restored, how to ensure that the advocate is effectively practising as an advocate. Justices Masih and Gavai both shared their practical experience on the same. Sharing an experience of an interview, Justice Masih referred to instances where candidates spent time preparing for exams without actually practising in courts. They might be having on-paper practice, since they might be signing vakalatnamas along with others, but no effective appearance.
: “A very good candidate, father a very leading advocate at the District Court. But for two years, the son did not go for a day to the Court…He had two years as an advocate but then, where do we get that experience? This is what we are looking for,” Justice Masih said.
Justice Gavai added: “The presiding judge of the Court before whom the advocate is practising, he could give a certificate that the [advocate] has sufficient [experience] because in two or three cases, he may be proved he is very good. But somebody adjudicating him in 50 cases where he only appears for adjournment[ what would happen to the experience then]?”
Justice Gavai sharing his experience stated: “We had a lawyer in Nagpur who said he could write a book on subject: ‘100 ways of seeking adjournment’.”
He added: “Some modus operandi has to be there.”
Court will consider the issue on next date ….
