This article is written by Aryaa Singh, pursuing BBA LLB (Hons) from NMIMS school of Bangalore. This is an insightful article on BCI’s proposal requiring 3-year experience for judicial services.
Table of Contents
Introduction
The Bar Council of India is a statutory organisation that governs and represents the Indian legal profession. It establishes professional conduct norms, etiquettes, and has disciplinary authority over the Bar. It also establishes standards for legal education and recognised universities whose law degrees will serve as a certification for students to register as advocates upon graduation. Its members are chosen from among India’s lawyers and thereby represent the Indian bar.
History
Following the establishment of the Indian Constitution on January 26, 1950, the Inter-University Board passed a resolution highlighting the necessity for an all-India Bar and the importance of equally high standards for law exams in different universities. The Madras Provincial Lawyers Conference presided over by Shri S. Varadachariar, resolved in May 1950 to form a committee appointed by the Government of India to devise a strategy for an all-India Bar and to revise the Indian Bar Councils Act, 1926 to comply with the new Constitution.
Shri Syed Mohammed Ahmad Kazmi, a Parliament member, introduced a Bill to alter the India Bar Councils Act on April 12, 1951. The Indian government concluded that the Bill needed to be sponsored by the Government. In August 1952, a Board of Inquiry was formed to investigate the feasibility of establishing a unified bar in India, the continuation or abolition of the double system of counsel for each state, the possibility of establishing a separate Bar Council for the Supreme Court, and the revision of legal enactments.
Structure of Bar Council of India
The Bar Council of India has 18 members. The Attorney General and Solicitor General of India are ex-officio members of the Board, and the other 16 members represent the country’s 16 state bar Councils. Participants are elected for a five-year term, and the Chairman and Vice-Chairman are elected for a two-year term from among the members of the Bar Council of India. The Bar Council also has several committees, including the Legal education committee, the Disciplinary Committee, the Executive committee, the Legal aid committee, the Advocates welfare fund committee, the Rules Committee, and various other committees formed to look into specific issues that arise from time to time.
BCI Rules on the judicial service examination
The Bar Council of India (BCI) filed an application before the Hon’ble Supreme Court of India to make three years of practise at the Bar mandatory for those who would want to apply for judicial services exams, arguing that judicial officers without practising experience are incapable of handling matters.
The Bar Council of India discussed filing an application with the Supreme Court. The BCI seeks modification of the Supreme Court’s 2002 decision in All India Judges Association v. Union of India (2002)expelled the mandatory practical knowledge for judicial officers as a qualifying criteria.
The most crucial point raised by the BCI is that judicial officers who lack actual experience at the Bar are frequently found to be incompetent and inept to handle such situations as judges. These factors make it impossible for them to effectively and decently understand the objectives and expectations of the advocates and plaintiffs.
It also stated that one of the biggest reasons for delays in the disposition of cases in the subordinate judiciary is the lack of experience because trained and experienced judicial officers can deprive of cases with greater efficiency and effectiveness, making the judiciary system in the judicial wing much more structured.
Advantages of 3 year experience necessity proposed by the BCI
Judicial officers who lack actual expertise at the Bar are frequently found to be ineffective and inept in their handling of cases. The majority of such officers are seen as unpleasant and impracticable in their interactions with members of the Bar and litigants.
They do not grasp the hopes and expectations of advocates and litigants in terms of proper and acceptable behaviour, according to BCI Secretary Srimanto Sen in a news statement released on January 2. According to the Council, one of the key and major reasons for delays in the disposition of cases in the subordinate judiciary is inexperience at the Bar. 7,492 trained and experienced judicial officers can perceive and resolve issues at a far faster rate, resulting in more efficient administration of justice, according to the report.
The Supreme Court, in a decision issued in March 2002, abolished the need for three years of bar experience. The BCI stated that it will submit an application with the Supreme Court to get that order modified.
The remark came in response to a petition filed with the Supreme Court. The Andhra Pradesh Public Service Commission had solicited applications for the appointment of civil judges (junior division) in the AP State Judicial Administration for advocates with minimum eligibility criteria of three years as a practising advocate through a December 2020 announcement. A lawsuit has already been filed with the Supreme Court challenging the Andhra Pradesh notification, arguing that the demand of three years of experience at the Bar is unlawful and unjustified.
Bar Council favouring exclusivity : a detriment for law graduates
The Bar Council of India’s suggestion mandating three years of experience at the bar has caused much consternation among law students preparing to take the judiciary exam.
According to the Bar Council, this experience is what allows new lawyers to gain expertise and capabilities. However, the Bar Council fails to recognise the underlying difficulties raised by the proposition.
The elite legal profession will become even more elite as a result of this action. This action may result in the disqualification of qualified individuals from non-legal and lower socio-economic backgrounds.
The debatable time period proposed by the BCI in connection to judicial service
The Indian Constitution permits state governors to appoint persons other than district judges to the state’s judicial services in accordance with the rules established, in collaboration with the State Public Service Commission as well as the respective High Court of that state.
Previously, there was a three-year mandatory practise requirement before a Court of law, which was eventually repealed. This issue about a three-year required practise has been ongoing for a long time and has been addressed on several occasions. According to the Civil Justice Committee Report 1924-1925, “the norm in some states requiring candidates to have practised at the Bar for three years does not guarantee that now the candidate has gained any genuine experience.”
The aim was to push women out of the judiciary, which will result in limited female involvement in the judiciary, and thus will have a significant effect on our country’s legal system. Our legal structure is dependent on citizens confiding in a lawful dynamic; they value and require judges who reflect their image; and they will not trust the judiciary if they perceive it as a figure of elitism, exclusivity, and privilege.
Currently, there is just one female judge in the Hon’ble Supreme Court, and there’s never been a female Chief Justice of India; this demonstrates that only the privileged may get there, and that advantage is being a man.
The admission of women judges to the legal realm, from which they had previously been prohibited, has been seen positively; women perceive the female judge as a beacon of hope, which is also true to some extent.
This demonstrates that this behaviour was a big topic of discussion at the time. However, the report’s suggestions were deemed advisory, and no concrete steps were taken to address the problem. The 116th Law Commission Report was the next in line, and it proposed that the three-year practise requirement be abolished, because required practise for only 2-3 years scarcely provided the essential training to make one a qualified judge.
Challenges associated with the 3 year mandate
There are various concerns associated with this three-year required practise. The first and most pressing issue to address is the threat to the judiciary’s independence and transparency in the nomination of judicial officers. The very basic concept of three years of practise at a bar does not guarantee that it will be a qualifying element for the position.
Even if this criterion looks to be appropriate, what will be the next tangible ground on which these individuals will be advanced to be eligible for judicial exams? The BCI has not devised a different mechanism for upgrading those who have been practising for three years to the status of the officer.
There is no transparency about how these young minds qualified to take the exams or how BCI would have assessed their experience. Is it the number of cases solved in three years of practise, or the level of efficiency?
Another difficulty will be the expected results of three years of forced practise. The experiences discussed by the BCI do not correspond to the reality that new attorneys at the Bar face in Court. It takes around a year or two for new lawyers to begin practising in courts and dealing with day-to-day cases. The need for such lawyers would be significantly lower, as would the supply of cases and experience.
According to the economic components of the matter, such a move could potentially increase financial reliance for many young practitioners, although not all of them may have the requisite legal background to explore and flourish in the courts.
The BCI should also consider aspirants’ economic origins, as many of them are not blessed with a silver spoon. According to a survey, more than 79 percent of lawyers with less than two years of experience make less than Rs 10,000. Simultaneously, ground realities and societal pressure should be acknowledged.
Finally, a big concern that is still present in courts is the pending status of a huge number of cases. The BCI’s argument is undermined from the start when it claims that such three years of experience would improve judicial efficiency. It has entirely ignored the most recent data on the number of cases pending in India.
The performance of the courts varies across the country based on geography and the degree of the judiciary. The lower courts, which include district and subordinate courts, account for around 87 percent of all pending cases in India. Instead of addressing the issue of cases pending, BCI may have simply exacerbated the situation. The sanctioned strength of judicial authorities in lower subordinate courts increased from 22,833 to 24,203 between the end of 2018 and the middle of 2020.
The working force has risen from 17,701 to 19,172. Still, there is indeed a judge shortfall of 5,031 people, which has resulted in a significant increase in the number of pending cases in inferior courts. In the lower judiciary, 34.5 million cases are pending. The concept of a three-year mandate practise does not fit with the common concerns in Indian courts.
On the one hand, because India lacks a sufficient number of courtrooms and judges to handle the massive backlog of cases, requiring three years of practise will exacerbate the problem. The BCI supports the three-year mandated practise regulation, but has never considered providing practical knowledge to law students. The BCI and UGC should find a middle ground approach and provide law students with access to real-world Court settings, beginning with their first years in law school. The BCI’s decision places this burden on law students to develop answers, thereby discouraging them from pursuing a career in the judiciary.
Each state’s judicial academies educate and equip young minds for the positions they have attained. By labelling, BCI calls such organisations into doubt. It demonstrates the judicial academies’ sluggishness and inability to educate officers properly and satisfactorily. Transparency in these institutions in curriculum is also essential, as is training, BCI must check after them and adapt policies to fit the current situation.
Analysing the case of All India Judges Association v. Union of India and Ors.
- The Constitution of the United States envisions a unified judicial system in the country against the backdrop of a federal form of governance in terms of the legislative and executive. Given that now the Constitution, in Chapter VI, Part VI, principally vests the appointment and service criteria of the subordinate judiciary in the governor, in conjunction with the High Courts of the individual states, service conditions were frequently found to be uneven within the country.
- In All India Judges Association v. Union of India (1992), the Court reviewed, among other things, pay scales and conditions of service of members of the subordinate judiciary. It ordered the states and union territories to evaluate and review the salary structure of judicial officers independently as and when the states establish pay commissions for their personnel.
- As a result, the Court proposed that the service conditions of judicial officials be established and evaluated on a regular basis by an independent commission formed only for that purpose and that the composition of such a commission reflects adequate representation on behalf of the judiciary.
- On 21.03.1996, the Union of India formed the first National Judicial Pay Commission, chaired by Shri Justice K J Shetty, in accordance with the directives of the Court. The Justice Shetty Commission issued a preliminary report on January 31, 1998, and a final report on January 11, 1999. In All India Judges Association v. Union of India (2002),the Court accepted the Shetty Commission’s recommendations with changes in the ruling. It instructed the Union of India and the states to put the decision into effect and report on compliance.
- A review of the law reports for the year would reveal how many times the Court had to interfere to effectively get the Shetty Commission’s recommendations implemented. Following a decade of directives, one would have predicted the executive to proactively establish another judicial pay commission, given that, in the meantime, a Sixth Pay Commission was established and its recommendations were implemented after modifications by the Indian Union in respect of government employees under the executive. Therefore, in All India Judges Association v. Union of India, the Court was compelled to act and establish a Pay Commission chaired by former High Court Judge Justice E Padmanabhan. This was followed by a similar set of decrees and judgements aiming to put the Commission’s recommendations into action.
- A pay commission was formed under the chairperson of Justice P Venkatarama Reddi. The Commission presented its interim report on March 9, 2018, and the Court, by order dated March 27, 2018, directed the official respondents to implement the Commission’s recommendations for interim relief.
- The Commission has officially presented its report on the pay, pension, and allowances of judicial officers to the Court on January 29, 2020. The report is now up to the individual states and union territories to consider and execute. Over the years, it has been clear that the primary hindrance to the implementation of several directives governing the service conditions of the subordinate judiciary is a clear lack of financial resources. We hope that the same objections that were rejected by this Court in All India Judges Association v. Union of India (1993) would not be brought again. The Court stated in the aforementioned judgement that the financial burden imposed by the orders given therein is minor when compared to other plan and non-plan costs.
Some suggestions for the way forward
The procedures adopted by BCI appear to be discriminatory against students aspiring to be judicial officers. It completely separates the litigating and non-litigating classes, with no meaningful distinction between the two. If no such training or experience is required for individuals who intend to litigate in Court, why does only the non-litigator class suffer? If the BCI does not provide such a mandate to the Bar, why should the Bench?
So, it may be deduced from BCI’s recent act that it truly drives one away from the judiciary and into the business arena, or that it wishes for courts to be crammed with litigating lawyers all around. This ruling may not resolve current concerns, but it will result in the corporatization of litigation.
Overall, the judicial academies use higher and more rigorous training approaches to instil qualitative capabilities in young officers, rather than prescribing three years of practise at the bar as a precondition for the same.
There must be checks and balances in place at these training sessions and courses provided by the BCI and judicial academies in order to bring the current harmful effects to a close. Requiring three years of practise would not resolve the difficulties at hand, but would have a severe impact on the legal fields.
Conclusion
The Bar Council of India is entrusted with many functions, and by exercising those functions, it has the ability to rebuild and reinterpret the whole legal field in the country. There are certain gaps in the legal system in India today that the Bar Council must address in order to defend the law’s standard and retain the same standards.
The selection and training of civil judges and judicial magistrates should focus on the existing examination pattern, which assesses applicants’ memory rather than their reasoning, application of the law. Similarly, there is a lack of clarity in the interview session (duration, types of questions etc.). Refining the selection procedure by modifying the evaluation pattern and bringing it in line with the requirements will aid in the process’s improvement. Furthermore, a research emphasised the lack of permanent faculty at state judicial institutes, strong control of High courts, and a lack of time for trainees, which may be the primary causes behind the BCI’s contentions.
The Law Commission’s 117th Report specified courses (produced by the then-CJI) on Court management, management system, legal concepts, and practical training in addition to theoretical exercises, while suggesting a three-year practise phase the involved authorities may consider extending the training duration to two years or more. This lengthier training, with a specific emphasis on practical exercise, would be more beneficial since it would prepare them for the demands of being a judge, as opposed to the three-year bar experience, which does not guarantee to imbibe a judge’s skills in the majority of instances. Instead of assuring a full revamp of the system, the BCI is cherry-picking concerns and is unconcerned about the long-term implications.
However, now that the BCI has filed the petition, it is up to the Supreme Court to carefully consider the advantages and cons of the action and ensure that the optimal mechanism is implemented for both the system and the candidates.
References
- http://indianbarassociation.org/wp-content/uploads/2013/12/BAR-COUNCIL-OF-INDIA1.pdf
- https://indiankanoon.org/doc/214169/
- https://www.casemine.com/judgement/in/5609ac66e4b014971140ec2d
- https://www.jurist.org/commentary/2021/02/chaturvedi-raza-bci-women/
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