A critique of the AIJA judgment
Practice as a prerequisite for judgeship
**Rudra Singh Krishna and Rudraksh Chaudhary
In the recent ruling given in All India judges Association v. Union of India the Hon’ble Supreme Court reintroduced the rule requiring prior practise as a prerequisite for being eligible for the lower judicial services examination. The case marked a historic move by the Apex Court towards the earlier position that was overturned in the case of All India Judges Association v. Union of India AIR 1999 SC 1 (third AIJA case). Commendable as it is, it not simply mandates field training as a prerequisite for dispensation of justice; but has tremendous ramifications which are perhaps ignored or even worse, undermined. This article will carefully attempt to bring to the fore that which might not be so apparent after all.
The primary takeaway from this case, especially for young aspirants of the judicial services is that it bars them from appearing for the exam that acts as a gateway to the bench. A grave apprehension that envelops the situation is that such a practice may foster a nepotistic regime, wherein individuals with established backgrounds, already riding high on the horses of their fortune, would get additionally empowered over their less fortunate counterparts, further exacerbating the employment avenues. It would be important to highlight certain legal infirmities at this point. In the case at hand, the Hon’ble Supreme Court answered 8 issues plaguing the lower judiciary, of which the last two dealt with the aspect of qualification for the examination. The first of these dealt with the time period of practise required to be eligible for the examination whereas the second dealt with the relevant date of registration.
This piece limits itself to analysing the position taken by the apex court while answering these last two issues. In furtherance of the same, the first part contextualizes the debate by laying down the rationale of the apex court while deciding the matters in question. The next part argues against the finding of the Court requiring three years of prior practise. It is argued that this rule breaches the threshold of proportionality under Article 14 of the Constitution. Furthermore, the period of three years is also arbitrary since the Court has not provided any reasoning for the same. It also provides an alternative solution to the three-year practise requirement by advocating for post selection training of the selected candidates.
A brief overview of the judgment
The case concerned issues relating to promotions from the lower judiciary to the higher judiciary (the HJS) as well as appointments to the lower judiciary. To address the discrepancies in practice, the Hon’ble Apex Court appointed an Amicus Curiae responsible for collecting the practice of the various high courts of the country and presenting it before the Court. This approach is commendable as it does not overhaul the existing system and instead aims to unify it.
The relevant issues for our analysis are the seventh and eighth issues concerning the appointment to the lower judiciary and the relevant date of registration, respectively. The Court, in its ruling in the third AIJA case in had removed the three-year practice period before which a person became eligible for the examination. The court had relied on the fact that law students got exposure to the nuances of the court through internships undertaken in the duration of their course. It further reasoned that having such a limitation would hinder young talent from competing for the posts in the lower judiciary since three years of practice may change their minds. Furthermore, students from premier law schools are trained extensively over the course of their degree and a limitation would dissuade them. The court also pointed out that proper training of newly recruited judges would remove the challenges being faced presently and hence obviate the need for a three-year practice period.
However, the present case highlighted the problems pertinent in the lower judiciary owing to lack of experienced candidates. Relying on the case of All India Judges Association v. Union of India AIR 1993 2493 (Second AIJA case) which stated that practice across most states was in favor of such a limitation and its removal was detrimental owing to onerous burdens placed on a judge from the first day itself, the Hon’ble Court found for the qualification. The aforementioned judgment had emphasized that a deep understanding of the judicial system and its various components, which would invariably come from legal practice was missing among candidates who entered via direct recruitment. It underlined the fact that the one of the qualifications given in the Constitution itself for being a District judge was 7 years of practice to show the integrality of legal practice for eligibility for judgeship.
In the present case, the Hon’ble Court also sought the opinion of the various High Courts of the country and found that a majority were in the support of a three-year period. Hence, while overruling the third AIJA case, it held that such a time period is an essential requirement. To ensure compliance with the purpose behind the judgment, the court held that a certificate from an advocate with at least 10 years of standing or presiding officer of a court, acknowledging the practice, the candidate had successfully completed.
The last issue concerned the calculation of the 3-year period as to whether it should begin from the date of provisional enrollment/registration or from the date of passing of the AIBE. While the court emphasized the importance of clearing the AIBE, it stated that it would be inequitable for the candidates if the extra time which is required for the processing of the results is considered.
The next section analyzes the latter two issues as decided by the Hon’ble court on the anvil of fundamental rights.
The constitutional clash and the way forward
The restriction in the first place seems questionable as it tends to bar young minds from membership in the bench. The very idea, and the way it has been implemented are both under heated debate. With lack of concomitant safeguards, they are left to grapple with the unknown. Given the creaking state of litigation in the country, aggrieved parties too would have their due apprehensions against employing unexperienced practitioners for their long pending cases. In such circumstances, mandating practice at the bar not just disincentivizes young students to pursue the path of judgeship but also disadvantages those without a background in the field.
Article 14 of the Constitution mandates equality and equal protection before law for all within the territory of India. The equality jurisprudence has been branched into the old and the new equality regimes. The old regime requires the twin satisfaction of the intelligible differentia and rational nexus test, i.e., a legitimate what and a well-reasoned why. In Triloki Nath’s case, the court concluded that owing to administrative efficiency, the differentiation between diploma and degree holders was justified and not in contravention of Article 14. Similarly, Sukumar Mukherjee’s case, on similar lines, found the distinction enabling private practice for doctors serving in government run hospitals valid due to concomitant requirement of teaching doctors for the purpose of research. Comparative unreasonableness, in the case at hand requires analysis of the distinction between graduates of law with 3 years of practice and those without, which, is a legitimate distinction. The reasons behind this distinction are traceable to the concerns levelled by members of bar regarding misconduct, etiquette, misbehavior etc., which are genuine first-hand experiences.
Despite the satisfaction of the old equality regime, the proposed system of practice seems disproportionate as a solution. As laid down in the recent electoral bonds case, the proportionality test requires a legitimate goal, a suitable means of reaching that goal and the chosen means should create the least amount of friction against the impugned right. A blanket bar upon young graduates seems excessive. If, post selection, training mechanisms can be enhanced, no such radical measures would be required. An equilibrating path that does not divorce merit from cronyism has not been explored by the court.
The Third AIJA ruling in tandem with the Shetty Commission proposed for at least one year and preferably two years of practice post induction in the judicial services. The previous system of prior practice was rejected since practicing lawyers may not find judgeship an equally attractive avenue post years of successful litigation. The Rankin committee as long back in 1925 had pointed out that such short duration of practice ‘deteriorates’ a young man and only the one with favorable backing could effectively learn something, while the rest continue to struggle.
The current training system varies from state to state; however it generally includes a three to six months’ training program at various courts in their posting districts under the guidance of their seniors before they preside over their own courts. Also, judicial academies have been established in various states, which offer an on-site induction training program for a duration of 6 months. It also offers several refresher courses to help the judicial officers keep abreast with the latest developments in law.
We propose that post selection training must be made more participatory rather than observatory, such as the training undertaken by selected candidates of the civil services. While the roles of a civil servant and judge cannot be compared on an identical platitude, it must be highlighted that no requirement of prior experience has been leveled against young civil servants. This is attributable to the rigorous training that the commission guarantees for each of its selected candidates. Such a framework would be less intrusive of the existing merit-based system and the goals sought will ultimately be met, not before joining the services, but after. This system addresses another shortcoming of the 3-year practise rule since the rule fails to take into account wide discrepancies in the quality of practise across different bars of the country. In such a context, the assumption that three years of practise will benefit all the candidates equitably is immensely flawed. Post selection training will lead to specialized and equitable training for all the selected candidates which may be tailor made for the roles which they are expected to don. Hence, instead of blindly hoping that potential judges will pick up the requisite skills during three years of practise, it is a much more suitable alternative to provide them specialized training post selection.
The successor to the comparative unreasonable test is the non-comparative unreasonableness or the new equality discourse. In the words of Justice Bhagwati, “equality is antithetic to arbitrariness…where an act is arbitrary, it is unequal both according to political logic and constitutional law and therefore violative of Article 14.” This framework does not entail a comparative analysis like the old regime; it rather emphasizes upon the factum of the unreasonableness being imposed. This is where the judgement in the present case seems to falter.
Along the new equality discourse, it is humbly submitted that the adoption of a specific three-year duration seems arbitrary and unjustified. The court has not furnished adequate reasoning for justifying why and how, within a period of exactly three years an individual would incorporate all the necessary skills that may be required of a judicial officer, which he would have failed to cultivate, in absence of the practice at bar for the said duration. Why not a year more or a couple less have not been proposed, is not clarified, which is what makes the direction fall prey to the non-comparative unreasonableness framework. Analogically, Ajay Hasia’s case can be referred to, wherein the reduction of weightage of interview in an engineering entrance exam from 33% to 15% was held to be arbitrary and thereby violative of Article 14. It proposed a reduced limit, which had no statistical basis as such thereby, proposing a solution arbitrarily to counter another arbitrary arrangement. The Hon’ble Court in the 6th AIJA case too must furnish its due reasons for setting the bar at only three years to prevent the apparent violation under the new doctrine.
It is also important to highlight that following the expansionist exercises pertaining to Article 21, the right to work can also be read within the right to life guaranteed to all in the constitutional scheme. While there does exist the possibility to compete in the process, the apparent hurdle in the form of 3 years of practice can be equated to a practical denial of the said fundamental right. The Hon’ble High Court at Allahabad had clarified that the right to take an exam is also a fundamental right, something which the requirement of practice vexes.
Articles 233(2), 217(2)(b) and 124(3)(b) of the Constitution also command significance since they state the requirement of prior practice only for officers of the District Judge Cadre and those belonging to the High Courts and Supreme Court. Judges of the lower judiciary were excluded from such a constitutional framework which draws further adverse inference against the recently proposed framework. The lower judiciary is the edifice of the comprehensive judicial system of the nation. Attempts must be made to expand it better cater to our rather humongous population, than to turn it exclusive.
With a complete lack of clients or cases, young lawyers will be subjected to being heavily underpaid, and experience severe mental hardship. Feeling undervalued or exploited, would be considered an Article 21 violation. To prevent which, some protective frameworks determining fair remuneration for the said period should be put in place. The Bar Council of India did attempt to traverse this space by notifying through the circular BCID-5383-2024 of a minimum stipend for junior advocates at Rs 20,000 and Rs. 15,000 in urban and rural regions, respectively. While a step in the right direction, devoid of a strict judicial or legislative acknowledgement, it may never be put to practice. Perhaps an enhancement in the quantum of wages would be more practicable considering contemporary socio-economic realities.
Finally, at the end of their practice period, they are required to obtain certificates from experienced advocates or presiding officers of the courts; this may potentially lead to the creation of a ‘certificate mafia’ requiring young advocates to pay hefty amounts to get the necessary acknowledgement or creation of fake certificates. Such problems however unfortunate are possible to surface within our system. It is thus quintessential for the Hon’ble court to address such concerns and take the necessary actions to be able to truly meet the ends they set out to achieve.
Conclusion
This piece sought to highlight the inconsistency of the judgment within the present constitutional framework. Though the case presented a commendable effort by the Apex court in dealing with the problems plaguing the lower judiciary, the three-year timeline will cast a death knell on the aspirations of many. In this context, it becomes important to provide alternatives. If the court maintains its position regarding the three-year qualification, better safeguards should be laid down to ensure the rights of fresh law graduates. Despite this, the authors believe that a sustainable long-term solution would be a rigorous post examination training for freshly selected candidates to the judicial services. This would ensure targeted building of skills instead of laying down a three-year practice requirement and blindly hoping for the best.
**Rudra Singh Krishna is a 4th year Law student at WBNUJS Kolkata. He has a keen interest in Constitutional law, Service laws intellectual property laws and arbitration.
**Rudraksh Chaudhary is a 3rd year student at WBNUJS Kolkata. He has a keen interest in constitutional, corporate and environmental laws.
**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.