Three-year legal practice rule for judicial services could deter the brightest minds

Indian Express

12 hours ago

Written by Shailesh Kumar and Raju Kumar
There is no doubt that judges ought to be trained in legal procedures, judgment-writing, evaluating evidence and assessing societal situations. This is particularly so in subordinate courts that are the final arbiters in a majority of cases, and which deal with factual questions, raw emotions, and engage mostly members of marginalised communities. The right question, therefore, is not whether aspiring judicial magistrates in India should have such training, but rather whether such knowledge and experience can only come from three years of practice as an advocate.
Let's begin by acknowledging two public secrets of the Indian legal profession. First, a law graduate can obtain a certificate of practice without entering a courtroom. Second, it is still, primarily — and regrettably so — an institution run by caste-, class-, and gender-based networks, and not by merit per se.
The 14th Law Commission Report (1958) said that subordinate judicial officers would benefit from three to five years' practice at the Bar, but made an exception for the proposed All India Judicial Services (AIJS) for the higher judiciary, where fresh law graduates could be recruited directly by subjecting them to post-selection training. In the All India Judges' Association I case (1992), the Supreme Court directed the central government to set up the AIJS and allowed fresh law graduates to apply for it with post-selection training. And in the All India Judges' Association II case (1993), the Court emphasised that three years of practice as a lawyer was essential for the subordinate judiciary.
Soon after, the Justice Shetty Commission (1999) found that the rule had not drawn the 'best candidates': The most successful ones were nearing 30, while top law graduates chose corporate roles or academia instead. Acting on these findings, the Supreme Court in All India Judges' Association III (2002) struck down the rule to make subordinate judicial careers accessible to fresh law graduates. We must mention here that the first five National Law Universities (NLUs) had already been established, with several batches of NLSIU having graduated by then.
After more than two decades, the matter resurfaced on May 20, when the Supreme Court, led by Chief Justice Gavai, reinstated the three-year legal practice requirement — this time citing High Courts' opinions and without the support of any empirical evidence.
The assertion that appointing law graduates without Bar experience has failed in the past is largely anecdotal. The Court mainly relies on the opinion of the High Courts, but there are no research findings to back this broad generalisation. Without empirical evidence, such sweeping policy decisions may do more harm than good. Back in 1999, the Shetty Commission had advised against this very requirement. Its reasoning was straightforward: The new five-year integrated BA LLB (Hons) programme already includes practical training components, such as internships, moot courts, and simulations.
So, the Supreme Court should have enquired about the demography and institutional background of graduates who entered the subordinate judiciary since 2002, and whether these were the 'best talent' sought, by outlining certain criteria, to assess if the Shetty Commission's objective remained unfulfilled. Reinstituting the three-year Bar requirement not only disregards that recommendation but also ignores how legal education has evolved to bridge the very gaps this rule claims to address. Many top-performing students from NLUs regularly secure roles at leading law firms or express strong interest in public service. Yet they are now told to wait for three years, regardless of their readiness or aptitude. This delay wastes potential and may discourage some of the best minds from pursuing judicial careers altogether.
What about the financial reality? A (discretionary) monthly stipend of Rs 2,000 to Rs 20,000 — where a senior advocate might earn Rs 20 lakh for a single hearing in a higher court — is a severe pay gap and is barely enough to get by, especially in tier-1 and tier-2 cities. For many students — particularly those from SC/ST/OBC communities, economically weaker sections, rural areas, women, or those with caregiving responsibilities — this rule effectively shuts the door on a judicial career before it can begin. After five to six years of education, it unintentionally pushes them into other fields where they can earn a living straight after graduation. The rule favours those who can afford to wait — in other words, the elite class.
India already faces a chronic shortage of judges, especially at the district level. By restricting who can apply, this rule reduces the eligible talent pool even further. Fewer recruits mean higher caseloads for sitting judges, longer delays for litigants, and declining public trust in the system's ability to deliver timely justice. Under this new rule, aspiring judges must wait three years, possibly juggling low-paying work or uncertain prospects in the meantime.
The alternative should be to invest in what happens after selection, or during the course degree itself. Legal education should incorporate daily courtroom exposure in the final year — similar to the clinical internships followed in medical colleges — as an integral part of the curriculum. In the past, there was a two-part training structure: One part involved real-world learning under experienced judges, while the other focused on classroom-based judicial instruction. This method was not perfect, but it worked — and with some updates, it could serve the purpose well again. Rather than holding people back, the system should focus on preparing them thoroughly once they are in.
Let us not assume that the 'best' law students come only from (expensive) NLUs; perhaps the most trained ones do, because of the structural benefits NLU students have in India's several-tier legal education system. Moreover, the learning process for a judge should not end once they take an oath. Like other professionals, judges need to stay updated. One way to do this is by requiring newly appointed judges to undergo structured training — perhaps approximately 200 hours — within their first year and a half on the bench. The goal is to make continuing education a normal part of the job, not a one-time event.
The Supreme Court must also examine the quality of training the High Courts provide for probationary magistrates. Research findings from one of the authors, albeit in a specific context, suggest that judicial training has mostly been poor, and there has been resistance — particularly from district judges — to undergo training. This is a serious policy issue with severe implications for the future. Considering that the problems outlined exist, is this the right medicine? The Supreme Court ought to have relied on solid evidence rather than opinions, even if they came from the High Courts.
Shailesh Kumar is a Lecturer in Law at Royal Holloway, University of London and a Commonwealth Scholar. Raju Kumar is a legal consultant at Prohibition & Excise Department, Govt of Bihar, and a graduate from Chanakya National Law University, Patna