Supreme Court brings back 3-year practice rule for entry-level judges, experts raise questions

Earlier this week, the Supreme Court reinstated a rule that was scrapped in 2002, requiring candidates aiming for judicial magistrate and civil judge posts to have at least 3 years' experience as practising lawyers. The 2002 judgment had overruled a 1993 verdict that had mandated a minimum practice requirement of 3 years.

The practice requirement was abolished because lawyers between 21 and 27 years were being appointed to these entry-level, but crucial, posts without having practised in courtrooms even for a single day. Apart from this, most of these judges are upper-caste and upper-middle-class individuals with little exposure to the travails and tribulations of unentitled adult life.

Unsurprisingly, complaints against these judges started piling up before high courts, leading to some states bringing back the practice requirement. Until the apex court's 2002 judgment.

But the top court's latest reinstatement of the 3-year rule has missed the mark again, having failed to ground its decision in sound reasoning or empirical evidence. It relies solely on the subjective opinions of high courts, which have stated that the selection of fresh graduates to judicial office has not been a successful experience. Similarly, it fails to justify why it confines itself to a 3-year practice requirement, which is too short a time to gain any meaningful experience at the bar.

The Constitution mandates a practice requirement of a minimum of 10 years as an advocate to apply for judgeships at higher courts. In practice, however, most appointees to high courts have more than 20 years of experience, since it is unusual for any lawyer younger than 45 to be appointed to the bench. Similarly, for the office of the district judge, the practice requirement is a minimum of 7 years. But most states have gone beyond this.

In Madhya Pradesh and Karnataka, average age of appointment for district judges is 44 and 50 respectively. This means that appointees would have practised for at least two decades before appointment. These examples demonstrate how the state values experience. Yet, when it comes to the office of the judicial magistrate or civil judge - which serves as the first line of defence for civil liberties - this concern goes out of the window.

It's time to question the basis for prescribing different practice requirements for judicial offices depending on location of the office within the hierarchy. Knowledge of law and judicial instincts required by a judicial magistrate and a civil judge are the same as those required of a district judge.

When a person is arrested, police need to produce the accused before a judicial magistrate within 24 hours. Many are produced without legal representation. It is the judicial magistrate who must peruse the paperwork filed by the police and determine whether the arrest is legal, and whether the detainee has been tortured by the police. This is an onerous responsibility requiring a great degree of skill.

But the hierarchy-obsessed Indian mindset can't conceive of a world where different judicial offices are treated on an equal footing when it comes to qualification requirements. This is not the case in other countries. In the US federal judiciary, a magistrate judge - first rung of the hierarchy - is typically appointed at 50, and has, on average, 23 years of experience. The incumbent chief justice was appointed to the court at 50.

Besides, the question of practice requirements for judges of the district judiciary is a question of policy, not law. This is evident from a reading of the top court's judgment. Courtrooms are unsuitable sites for policymaking, especially because discussion remains confined to issues framed by courts, leaving little room to discuss meaningful, far-sighted reforms that challenge underlying assumptions of the legal system.

Even worse is the Supreme Court's contempt for the federal constitutional scheme, which vests the power to decide this policy in democratically-elected state governments, working in consultation with top courts. Not only has the top court ignored this mandate, but it has also consistently missed the mark.

Reddy T is senior resident fellow, and Jain is research fellow, Vidhi Centre for Legal Policy.


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