The BCI is Mistaken in Proposing Three Years of Experience for Judicial Services

The Bar Council of India proposed to bring three years minimum experience at the Bar to be prescribed for a Judicial Service Exam in a press release on 2 January 2020. BCI said that presently fresh law graduates are being allowed to sit for Judicial Service Examination without having any practical experience at the Bar. The Judicial officers not having practical experience at the Bar are mostly found to be inept in handling matters. BCI also mentioned in the press release that most of the officers are found impolite and impractical in their behaviour with the Members of the Bar and Litigants. The BCI alleged that inexperience at the Bar is one of the primary and major reasons for delays in the disposal of cases in the sub-ordinate Judiciary. The sudden proposal of the BCI has brought shock to hundreds of students preparing for judicial service exams. Many fear that they might not be eligible for upcoming vacancies if such proposals are accepted by the State governments.

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The controversy triggered when the Andhra Pradesh Public Service Commission invited application for the appointment of Civil Judges (Jr. Div.) having minimum eligibility requirement of three years as practising advocate.  Before 2002 different State Service Commissions had prescribed work experience at the Bar for joining Judicial Services. However, in  All India Judges Association & Ors. v. Union of India, the Supreme Court of India struck down the minimum work-experience eligibility and stated:

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“…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. 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…”

The Shetty Commission took the view of various High Courts, Associations, State Governments and jurists on this issue. J. Ranganath Misra, J. R.S. Sarkaria and J. D.R. Khanna opposed three years of bar practice as the condition and preferred ‘selection of brilliant young law graduates and intensive training after selection.’ (Shetty Commission Rep. pg no. 309). The Punjab and Haryana High Court stated:

“…In the initial three years of legal practice, the lawyers neither gain any experience nor earn anything in the absence of any work with them. Imposing such condition serves no useful purpose at all to improve the efficiency in judicial services and on the contrary, it will have a negative effect on young Law Graduates who want to take judicial service as a career. They would be totally frustrated by the remaining in the Bar without any work for three years…” (Shetty Commission Report, pg no.310).

It must be noted that in order to practice at the bar in India, a fresh graduate will have to join a Chamber Advocate or a law firm. While some law firms usually give a good salary, there is no such rule for mandatory payment of salary to junior advocates. This is one of the reasons that most of the first-generation law students tend to prepare for judicial service examination than joining the bar.  The problem of payment of salary is grave.  A few have begun to raise voices to fix a fair living wage or a minimum wage for junior advocates. Other regulatory bodies such as Institute of Company Secretaries of India have already made rules for payment of minimum stipend to apprentice. The Medical Council of India has also approved the proposal for a stipend to MBBS students at private medical colleges on internship. The Apprentices Act, 1961 says that the employer shall pay to every apprentice during the period of apprenticeship training such stipend at a rate not less than the prescribed minimum, rate, or the rate which was being paid by the employer to the category of apprentices under which such apprentice falls, whichever is higher. The BCI needs to come up with mandatory payment of stipend to law interns and junior advocates.

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The Calcutta High Court gave similar reasons as of Punjab and Haryana High Court for rejecting the idea of minimum work experience. It also said that aspirants do not devote themselves whole-heartedly to practice with an eye on the service. The Allahabad High Court stated that if three years is also added to the life of an Advocate, he would have to wait for 8 to 9 years after completing 10+2 course. The cream of fresh law graduates would not go for judicial service and may try their luck elsewhere rather than waiting for a chance to enter the judicial service.

The Law Commission in its 116^th Report stated that why not catch people young and give them intensive training. A short practice hardly trains effectively. If intensive pre-service training is given to the fresh young recruits, they will turn out to be better judges (Ch. IV para 4.4.). The Shetty Commission concluded those three years of Standing at the Bar as the minimum qualification for entry into the judicial service may be wholly unnecessary and uncalled-for. The attention of the concerned authorities is invited to judicial education and training through filed placement. The commission recommended the induction training course for about one year by qualified trainers (Shetty Commission Report, pg no.312).

It must be noted that the Bar Council of India plays a huge role in the legal education in India. The BCI was the first to lay down the standards in terms of system, classroom teaching, practical training and skill, court visits, moot courts, legal aid work, and other practical training programs for law students. The five years integrated law course was introduced on the recommendation of BCI. The recognition of law college is also done by the BCI. Thus, from establishing a law college to its quality education, curriculum, enrolment at the bar, the appointment of judges at the High Court and the Supreme Court of India, almost everything comes under the purview of the BCI. However, the BCI has not yet developed any mechanism to interact with law students directly. In India, it is not allowed to teach in a law school and practice at the bar simultaneously.  Late, Prof. Shamnad Basheer even wrote a letter to BCI to relax the rule barring legal academics from practising in courts. The letter was backed by the late Prof. Madhav Menon and Prof. Faizan Mustafa.

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In India, the BCI has failed to create sustainable eco-system to attract fresh graduates in the practice. Before making three-year compulsory practice for judicial services, the BCI must look into the matter as to who will have the luxury of spending three years at the bar and also preparing for the judicial services. The advocacy is a noble profession, it must not become a luxury profession. Here it must be noted that lower judiciary is the only place in the entire legal system in India which attracts most of the first-generation lawyers. A report published by Hindustan Times says that Around 50% of the judges of high courts and 33% judges in the Supreme Court are family members of those in “higher echelons of the judiciary.” Another report suggests that every third High Court Judges is uncle.

In bottom lines, I would like to say that BCI should not only make rules for the regulation of legal education, recognition of law schools and service rules for fresh law graduates. The BCI should rather actively engage with law students. The State Bar Councils and the District Bar Councils do not engage with students as an institution. BCI should develop infrastructure at the District and State Bar Councils for engagement of members of the bar and law students. In fact, the BCI should come up with an Association for law students. Once the students have access to the bar without having any ‘godfather’, they might be attracted towards the practice than memorising the sections of bare acts. There is data which shows that three years of practice at the bar is better than the pre-service intensive training. Moreover, since the quality of education is governed by the BCI and UGC, the students should not be blamed for not getting a quality education. Ramanuj Mukherjee raised this in his write up How Indian law colleges are killing their students and the legal profession.

Author: Mohd Imran is the Founder of the Indian Society for Legal Research. The views are personal.