Making law practice a condition for civil judge candidates will hurt India's justice system
In the latest twist in a back-and-forth that has been ongoing for over 30 years, the Supreme Court of India on May 20 reinstated the requirement that candidates for the civil judge (junior division) examination should have practised law for three years.
This judgement threatens to drive a significant pool of talent away from judicial service, making it an unattractive career path for many law graduates.
Civil judge (junior division) is the entry-level position in the district judiciary. Until now, fresh law graduates could directly appear for the judicial service examinations. The judgement changes that position: aspirants must now practice law for at least three years before even applying for the recruitment process.
Far from being a new debate, this ruling is merely the latest in a series of decisions stemming from a case that has been going on since 1989.
A brief legal history
After Independence, states followed divergent practices in prescribing qualifications for civil judges. Some required only a law degree, while others mandated at least three years of legal practice.
In 1993, the Supreme Court felt that in view of the uniformity in hierarchy, designation and service conditions among judges, there should be uniformity in their qualifications and the recruitment procedure as well. The court was of the view that neither bookish knowledge nor training could be an adequate substitute for first-hand courtroom experience.
Based on that rationale, a nationwide minimum period of three years of legal practice was mandated.
But in 2002, the Supreme Court did a volte face and abolished the requirement, relying on the recommendations of the Shetty Commission that had been established to study the service conditions and salary structures of judicial officers.
The commission had reasoned that doing so would attract bright young law graduates from the recently established national law schools, who otherwise preferred high paying jobs in multinationals and law firms over 'struggling' as lawyers for three years.
In its recent judgment, the Supreme Court reinstated the minimum practice requirement on identical grounds as its 1993 judgment. It reiterates that fresh law graduates are not 'steeped into the culture, etiquette, temper, and conduct of the court proceedings'. However, the court in its analysis completely ignores the rationale of its own 2002 decision passed in the same case.
A barrier, not a filter
The three-year moratorium is nothing less than a death knell for the aspirations of many judicial candidates.
Legal practice in India is fraught with economic, structural and cultural challenges. For law graduates from economically weaker backgrounds, jobs in litigation are a route best avoided. Junior lawyers are often paid extremely low stipends and rely on family support even for sustenance. The profession justifies this by claiming, 'in litigation, your learning is your earning'.
Besides, the current format of judicial recruitment examinations assesses a candidate's ability to memorise and reproduce legal provisions. They test neither the skills required of a practicing lawyer nor those essential for a judge. The exam neither rewards practical experience nor requires it.
Lastly, unlike the Supreme Court's reasoning, which seems to go in circles, legal education has evolved in a gradual but progressive manner. At the time of the 1993 judgment, the LLB or Bachelor's in Law programme took two years. Today, law degrees are five-year programmes with mandatory internships, simulated courts, legal aid clinics and academic research. Today's graduates are far better prepared than their predecessors to engage with the justice system.
If India is still not producing desirable candidates despite this legal education system and rigorous competitive examination process, for which millions of candidates appear, perhaps the problem lies in the examination process. The answer cannot be to reintroduce a practice requirement that functions as little more than a trial by fire.
What is also telling is how little public discussion the judgement has attracted. This silence is symptomatic of a broader trend: while op-eds and editorials routinely dissect developments concerning the Supreme Court and High Courts, the district judiciary rarely features in national discourse. But district courts are the first line of defence of India's justice delivery system. The lower judiciary is not any lower in importance.
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Five crucial questions the report indicting Justice Varma does not answer
A three-member committee constituted by the previous Chief Justice of India Sanjiv Khanna to investigate allegations against Justice Yashwant Varma has concluded that there is 'sufficient substance' in the charges. On March 14, half-burnt wads of cash were allegedly recovered at a storeroom in Justice Yashwant Varma's official residence in Delhi when emergency services responded to a fire at his home. No police complaint has been filed thus far in the case, in spite of a petition in the Supreme Court requesting the same. On March 22, the Supreme Court constituted a committee, comprising Chief Justice Sheel Nagu of the Punjab and Haryana High Court, Chief Justice GS Sandhawalia of the Himachal Pradesh High Court and Justice Anu Sivaraman of the Karnataka High Court, to investigate the incident. The committee in its report, dated May 3, held that Varma's misconduct was 'serious enough to call for initiation of proceedings for removal'. 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When Varma offered a 'flat denial and rais[ed] a bald plea of conspiracy', the committee found his explanation wanting. Essentially, the inquiry concluded that since Varma could not prove the money was not his or explain a conspiracy, he must be held accountable for it. The report explained: 'Where presence of burnt cash in the store room is established, it is for Justice Varma to account for the same by either successfully raising a defence of planting of cash in the store room which he failed to do or proving the defence of conspiracy theory by adducing evidence/material that the money/cash did not belong to him but to someone else by disclosing the identity of the real owner of cash. Not having done so, Justice Varma cannot be helped…' 2 Where is the money now? And why was it not counted? The committee noted that despite the discovery of what eyewitnesses called a 'large pile of cash', no official seizure memo was prepared and no panchnama was drawn up at the scene by the police. The committee described the official handling of the scene as 'slipshod'. But it did not hold the police officials accountable for this because its ambit, it said, 'is not to find fault with the action or inaction of the fire personnel or the police personnel'. The committee added that 'quantification of the volume of the currency is of no consequence since it has come from the statements of the witnesses and from the video recordings that there was [a] reasonably large amount of volume of currency in the store room.' Because the cash was never seized or officially counted, its whereabouts are unknown. The committee report relies on 'strong inferential evidence' to conclude that the cash was removed from the scene in the early hours of March 15 by Varma's 'most trusted personnel' – his private secretary Rajinder Singh Karki and his personal staff Hanuman Prashad Sharma and Mohammad Rahil. This conclusion is based on contradictions in their testimonies and their presence at the site from the time of the fire on the night of March 14 onwards. However, this remains an inference. There is no direct evidence – no witness, no video – of anyone physically removing sacks of cash. The evidence at the heart of the case was never secured by the authorities, making its quantity and its fate a matter of speculation. 3 How did the fire start? The report is silent about how the storeroom at Varma's residence caught fire on the night of March 14. The report begins with the series of events that occur once the fire personnel discover half-burnt Rs 500 notes inside the storeroom. But what happened an hour or two before the fire broke out? The report notes Varma's claim that Justice Devendra Kumar Upadhyaya, the Chief Justice of the Delhi High Court, had told him about an incident of 'arson' at his residence – meaning a deliberate attempt to set the room on fire. The news of arson shocked Varma, says the committee report, because 'he was under the belief that it was merely a fire caused by short-circuit'. The committee report added that Upadhyaya had been briefed about the fire by the Delhi Commissioner of Police Sanjay Arora over the phone on the afternoon of March 15. Arora also told Upadhyaya that a report on the incident, which included information about the discovery of currency notes, had already been shared with Union Home Minister Amit Shah, the report said. In a separate report that Justice Upadhyaya prepared for the Chief Justice of India on March 21, he said that Arora had told him about 'an incident of fire that broke out' at the storeroom. The paragraphs following this portion were redacted when it was made public by the Supreme Court on March 22. The committee examined the Delhi Police commissioner, but it does not state what exactly he told Upadhyaya about the cause of the fire in his briefing. 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