Anupam Prabhat Shrivastava
Law Student & Social Activist
SHIFTING OF LIABILITY THROUGH APPARENT VEIL OF ‘INEXPERIENCE’ AND ‘INCAPABILITY’ OF THE JUDICIAL OFFICIALS FOR THE PENDENCY OF THE CASES IN THE SUB-ORDINATE COURTS: PRESS RELEASE OF BAR COUNCIL OF INDIA, DATED 02.01.2021
WHY A LAW STUDENT/GRADUATE SHOULD NOT BACK THE DEMAND OF THE BCI?
The year 2021 was expected to bring happiness and surety in everyone’s life rather it brought a huge confusion and complication for the law students and the law graduates. The Bar Council of India, vide its Press Release dated 02.01.2021, strongly favoured a 3 year minimum experience at the Bar to be prescribed for being allowed to sit for the Judicial Service Exam and decided to file application to seek impleadment as a party before the Hon’ble Supreme Court of India in the matters of Mr. Regalagadda Venkatesh vs. State of Andhra Pradesh (W.P. No. 1479/2020) in which the Petitioner, Mr. Regalagadda Venkatesh, alleged that the controversial notification (9/2020-RC) issued by the Andhra Pradesh Public Service Commission for appointment of Civil Judges Junior Division with the 3years of experience at Bar is illegal and unwarranted. Whereas the Bar Council of India, in its aforesaid press release, pleads that there is the urgency and requirement to have a minimum 3 year experience at Bar as a requirement to be eligible to sit in the Judicial Service Exam as these Judicial Officers do not have practical experience at the Bar and are incapable and inept in handling matters. Besides these, these Judicial Officers are found impolite and impractical in their behavior. Bar Council of India states these reasons to be the major cause for delay in the disposal of cases in the subordinate Judiciary.
This notification by the Bar Council of India is being criticized across the nation by a substantial numbers of law students, law graduates, and law professionals as the Bar Council of India has overlooked many grounds while determining this so-called urgent requirement.
a) Bar Council of India is a statutory body constituted under Section 4 of the Advocates Act, 1961 for the welfare and regulation of the advocates and their corresponding rights. This statutory body is not entitled to decide the criteria and eligibility for the appointment of judges which is solely conducted by the State Public Service Commission of the respective states across the nation. On the other side, the Hon’ble Supreme Court of India in the All India Judges Association & others vs. Union of India has already passed its order on 21.03.2002 that there shall be no bar of requirement of 3 year experience at Bar in the appointment of judges in the lower judiciary.
b) The Bar Council of India in its notification pleads for the judicial officers to be trained with practical knowledge. Here, the point to remember and consider is that the law students are required to observe the practical knowledge of the courts and its functioning right from the first day of their law school. These law students are required to do the 20 weeks of mandatory internship (for 5-year law students) and 12 weeks of mandatory internship (for 3-year law students). Moreover, it is mandatory for the law students to participate in the various National and International Moot Court Competitions during pursuing their entire law course. Further, the law students are required to pay visit to the Courts during their final year of course to learn the working and functioning of the Courts. All these requirements are mandated by the Bar Council of India for the students pursuing their courses in law. All these experiences cannot be disregarded with the view that only the 3 years of experience at Bar after graduation will help in deciding the pending cases.
c) We have a history of great Judges and Jurists who never had to fulfill such requirements before experiencing the ‘Bench’. The experience of working in Judicial System can only be gained by working in the Judicial System. It has to be determined that the work and functioning of the ‘Bar’ and that of the ‘Bench’ is quite separate and parallel. They work in tandem but in their own ambit according to the procedure established. Today, we have 25 State Judicial Academies across the nation along with 1 National Judicial Academy which is entitled to provide training and knowledge of the courts and its functioning. Here, the appointed Judicial Officers are required to learn and experience the working and functioning of the courts along with its practicality and procedures required to administer. The statement of the Bar Council of India declaring the appointed Judicial Officers to be ‘inexperienced’, ‘incapable’, ‘inept’, ‘impractical’, and ‘impolite’ is just as questioning their training provided in the Judicial Academies by the Judicial Minds of the High Courts and various other Courts.
d) The Bar Council of India is illogically stating that the Judges in the sub-ordinate courts are not experienced. These Judicial Officers have to gain 6 months of training at the lower courts to gain the practical knowledge. The Higher Judicial Services requires 7 years of experience at Bar or 10 years experience for High Courts and Supreme Court Judges. Despites these experiences, the Bar Council of India is of the view that the Judges in the Sub-ordinate courts are nor experiences. It takes at least 20-25 years of serving in the Judicial System to reach at the post of District Judge in the sub-ordinate court. So the Bar Council of India is totally being illogical while stating the matter of inexperience of Judicial Officers at Bar.
Contrary to this, a major question arises upon the Bar that despite being so trained and experienced, most of the advocates seeks a numbers of adjournment in the case when there is the Rule of not taking more than 3 adjournments in the case. This may be reacted with the instance that the justice cannot be delivered in haste and the same reaction could be from the side of Judiciary while questioning the pendency of cases. Here the major concern in regards to the pendency of cases is the lack of number of judges in the Courts in comparison to the number of cases pending in the courts, and not the inexperience of the Judicial Officers.
e) The Advocacy and Judicial Service are the two sides of the balance. They can never be on the same side. The Bar Council of India is ignorant in considering the condition of the law students and the law graduates. The requirement of 3 year experience at Bar shall affect the tenure of service of the Judicial Officers. Besides this, the peer pressure upon the candidates and especially upon the female candidates must not be ignored. This will certainly degrade the number and quality of judges as nobody would be ready to serve as a judge who shall be appointed in his/her age of 30s ,and who can’t even think of becoming a district judge or being promoted to the High Court or the Supreme Court before his/her retirement.
f) Another point is that nobody thinks of investing his/her huge efforts in the advocacy just for the 3 years and then to leave them in vain. This will lead to the injustice with the victims/sufferers. Just suppose a candidate who was practicing for 3 years and then got selected as a Judicial Officer has to leave his clients to somebody in whom such clients/sufferers have not vested their faith. This would lead to the injustice with such victims.
g) It has to be understood that the Advocacy and Judicial Service are two different professions emerging from the same branch of the trees. The candidates aspire to be a lawyer or to serve as a Judicial Officer. These two legal professions are the matter of choice and not of option. If this requirement is implemented, it will become impossible for the candidate to prepare for judicial services exams with gaining the so called experience at Bar. The profession of choice will turn out to be the profession of option.
The requirement which the Bar Council of India seeks to implement is the exercise of its ultra vires power by shifting the liability through creating an apparent veil of inexperience and incapability of the Judicial Officials for the pendency of the cases in the sub-ordinate courts. Whereas the major reason for this situation is that there is insufficient numbers of judges in the courts and a lot of seats remain vacant throughout the years. The Bar Council of India wants Judges to be polite and practical in their behavior, but the reality is that the judges need to be humble and practical with the established procedures and laws while exercising them within their courts. The Court cannot fulfill the aspirations of Advocates and Litigants of both the sides (plaintiff and defendant) while adjudicating a case as the rights can be upheld of either of the parties and the court does not work on morality of politeness.
It seems that the only attempt of the Bar Council of India is to illegally interfere in the functioning of the other organs to show its supremacy and to have forced enrolments, i.e., can be summed up in the phrase of ‘Bar over the Bench’. If the Bar Council of India really wants to add something into the issues then the council may take these suggestive steps into their consideration:
a) It can bring changes in the syllabus of the law schools. The designed syllabus is faulty in nature as the laws which need to be learnt in the early years/semesters of the course are taught in the end/last of the course and vice versa, due to which the law students faces problems while understanding the procedure of the court during their studies.
b) The Bar Council of India needs to execute a proper plan for making an arrangement and providing internships to the law students as promised to the Delhi High Court that the Council and the law schools will arrange internships for all law students, in the suo moto proceedings pertaining to the suicide of an Amity Law School student Sushant Rohilla.
c) The Bar Council of India must ensure and design the forums for the internship as when and where should a law student intern.
d) The Bar Council of India must issues directives to the law school mandating every law students to experience the court and its proceedings.
e) The Bar Council of India must issue directives to the law schools to train the students accordingly to their aim and choice. The one who wants to litigate must be trained with the technicalities of the advocacy and the one who wishes to serve in judicial services must be trained with the technicalities involved in the judiciary.
With these ways Bar Council of India can bring changes in the legal profession without any dispute. Both the Bar and Bench are the profession of ‘aspiration’ and ‘choice’, and they must not be compelled to be opted as an ‘option’. Thus, the demand raised by the Bar Council of India is not authentic. The Bar and Bench should go hand in hand to ensure the justice to the victim and not with the motive of claiming the supremacy over other.
(Views expressed are purely personal and Legal Angles does not take any responsibility of the views of the Author)