21-05-2025
The 3-year rule: a setback to judiciary aspirants
There has been growing anxiety for months around the anticipation of a verdict from the Supreme Court (SC) that would bring back a rule wherein an advocate would need three years of practice in order to become eligible to write the judicial services examinations.
And now, on May 20, a three-judge Bench headed by the Chief Justice of India (CJI) B.R. Gavai, which also included Justices A.G. Masih and K.V. Chandran, has made practical experience of three years a pre-requisite to appear for the subordinate judicial services exam. The judgment has substantiated the hypothesis that the SC has been consistently inconsistent on this issue. No empirical evidence was presented to the court about the 'lower quality' of fresh graduates (para 57), and neither was the number of fresh graduates who qualified for judicial services within a year of their graduation given in the judgment. The court simply went back to the three-year rule because majority of the High Courts advocated for it.
History of the rule
This matter has taken multiple twists since it was addressed in the 14th Law Commission of India (LCI) report in 1958, chaired by M.C. Setalvad. The Commission contended that persons with experience ranging from three to five years shall be eligible to compete in the examinations for lower subordinate judge in every State. This exam was to have questions of practical aspect and would not depend upon rote memorisation alone. Ability to draft pleadings, appreciate evidence and write judgments were also to be tested. Unfortunately, current question papers of most judicial services exams continue to test rote memory only.
For higher judiciary, an All India Judicial Services (AIJS), a centralised recruitment system for judges, was proposed. The Commission report was of the opinion that it was necessary to tap brilliant university graduates at the right time to judicial services. Therefore, the AIJS required no practical experience. Anyone holding a law degree, ranging from 21-25 years of age would be eligible, and practical experience was to be developed through a 'carefully devised scheme of training' which includes practical working in the courts. The exam was to be conducted at the National level. That is, the report contended for two different sets of eligibility criteria for recruitment at the State-level (lower subordinate judge exams) and at the national level (AIJS).
In the All India Judges' Association versus Union of India, 1992, the question of 'uniformity' in service conditions of judges across India was taken up. The judgment endorsed the LCI Report and its provisions on AIJS including the recommendation to allow fresh law graduates to compete in the exam. The top court issued directions to the Union of India to set up the AIJS. However, a review petition of the Judges' Association case, filed in 1993, held that a minimum legal practice of three years was essential to qualify for the subordinate judicial services examination.
The court in All India Judges' Assn. (II) versus Union of India, (1993) held 'in most of the States, the minimum qualifications for being eligible to the post of the Civil Judge-cum-Magistrate First Class/Magistrate First Class/Munsiff Magistrate is minimum three years' practice as a lawyer in addition to the degree in law. In some States, however, the requirement of practice is altogether dispensed with and judicial officers are recruited with only a degree in law to their credit. The recruitment of raw graduates as judicial officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the Judge has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct graduates fresh from the Universities to occupy seats of such vital powers is neither prudent nor desirable.'
The court went on to observe, 'the experience as a lawyer is, therefore, essential to enable the Judge to discharge his duties and functions efficiently …'
The court thus gave a strong order, '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.'
Attracting talent
The Justice Shetty Commission, set up in 1996, found that while almost all States had complied with the three-year rule, some States had gone beyond and prescribed more than three years as minimum qualification. The report also stated that advocates with 4-7 years of experience were getting selected only at the age of 27 to 30. Therefore, in the All India Judges' Association versus Union of India (2002), the Supreme Court accepted the recommendation of the Shetty Commission that the three-year-rule had failed to attract the best talent to judicial services, and scrapped the rule. The court was candid in admitting that, '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 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…'
Now, the Supreme Court has again gone back to the three year rule, as the crucial question of how to balance attracting the best talent along with the necessary skills is still valid.
For that one must understand ground realities. No one can deny that the best law students today are in National Law Universities. Most of these students get lucrative corporate placements with huge pay packages. Many of them also need to repay education loans as almost all law universities' five-year fee ranges between ₹12-₹15 lakh. Reputed private law schools charge even more, between ₹20-₹40 lakh.
The SC yet again hopes that three years' of practice may help future judges in addressing courtroom decorum, complex procedural cases and in understanding the perspectives of all stakeholders of the judicial system. Young candidates are said to lack maturity, empathy and patience. The reality is, however, that most candidates wishing to practice don't see judicial services as a career option, while those who wish to enter judicial services rarely see practice as a career option. Most States find it difficult to fill vacancies of the higher judicial services due to the poor performance of candidates in the written examinations. Recently, Rajasthan notified that not a single candidate was found suitable.
The fact of the matter is that the mandatory three-years of practice rule will significantly discourage brighter minds from joining the judicial services. Economically backward and SC/ST/OBC candidates would be the worst hit, as they cannot afford to wait. It becomes necessary for them to start earning. These candidates would be keen to write examinations to enter civil services, public sector undertakings (PSUs), or even join academia.
Various challenges
The Bar Council of India has encouraged senior advocates and firms to pay a minimum of ₹15,000 in rural areas and ₹20,000 in urban centres to junior lawyers. This bare minimum stipend is not enough for a law student having no connections in the field. Non-matriculants in Delhi are paid ₹20,371 a month for clerical work or supervisory work in scheduled employment. An unskilled worker is paid ₹18, 456 a month as per the minimum Wages Act. Only financially sound candidates would have the luxury to appear for judicial services if the three year condition is brought back.
Additionally, as per the India Justice Report, women account for 38% of the judges in district judiciary. Nine out of the top 10 candidates from the recently held Bihar judicial services exam were female candidates. Now, if the three-year rule is implemented, a number of these women, going through career breaks or maternity leaves, will suffer a setback.
Another problem is with regard to age. To appear for the civil services examinations, the minimum eligibility criteria is to be a final year student of a three-year degree programme. But for the judicial services examination, five-six years of education together with three years of experience would make them highly financially vulnerable as well as older compared to their counterparts in the civil services. This classification would neither be based on intelligible differentia nor achieve the rational object of attracting the best minds. Moreover, unlike the civil services, the judicial services exam in most States is not held at regular intervals. Even if a candidate has fulfilled the three year criteria, he/she has to wait for another few years for the exam to be advertised.
What can be done?
The solution is to catch young talent and enhance the training period to two years or more and use the best of academic and practical skills to enhance efficiency of the lower rung of the judiciary. Trainee officers may be required to serve as probationers to serving District and Sessions Judge or Justices of the High Court to enhance their understanding of the courtroom. For six months, they may be attached to senior lawyers as well.
We must also reform the examination and come up with innovative questions. The examination should be based on scenario-based questions, and judgment writing should carry more weightage. Excluding fresh talent may do more harm than good to our judicial system.
Faizan Mustafa is Vice-Chancellor, Chanakya National Law University, Patna. Shrey Shalin is an is LL.M. candidate at National Law University, Delhi. Views expressed are personal.
