In Search of a Better Judge: Evaluating Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 – Amendment of 2023

In June 2023, major changes were introduced in the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994¹, inter alia, to the eligibility criteria for the post of Civil Judge Junior Division. In particular, the Rules now require the fulfilment of two eligibility criteria in the alternative:

(i) the candidate must be continuously practising as an advocate for three years on the last date fixed for submission of the application; and

(ii) a law graduate with 70 per cent marks in aggregate throughout his entire course, with an additional stipulation that the exams must be passed on the first attempt.²

On 15-12-2023, the Madhya Pradesh High Court informed the Supreme Court that all candidates would be permitted to appear for the Civil Judge Junior Division (Entry Level) Recruitment Exam 2023, regardless of whether they meet the prerequisites of earning 70% in the LLB exam or practising law for at least three years following enrolment. The Supreme Court provisionally permitted all applicants to take the January 14 exam, even those not before the Court, based on the High Court’s submission. This relief is subject to how the M.P. High Court rules on the petitions contesting the legality of these changes.³

It is relevant to note that Madhya Pradesh is not the first State to bring advocacy experience as an eligibility criterion for the Civil Judge (Junior Division) Examination. Andhra Pradesh had also amended its State Judicial Service Rules, which mandate three years of experience as an eligibility criterion. Furthermore, under the Andhra Pradesh State Judicial Service Rules, 2007⁴, there was no exemption for the candidate who had secured 70 per cent marks in their law degree as there is in Madhya Pradesh. Proponents of the revised regulations contend that admittance into the judiciary, at the subordinate level, must require a minimum practice at the Bar since the subordinate judiciary is regarded as the cornerstone of our legal system. It is reasoned that fresh law graduates lack real-world experience. Their understanding is limited to theories, the bare minimum of the law, and idealism, which might not be enough to comprehend how the law operates in a courtroom.⁵ However, critics argue that the revised regulations will deter young lawyers from joining the Judicial Services. It is because Judicial Services offers an objective evaluation of a candidate’s merit, making it the primary choice for first-generation lawyers. The pitiful income offered to fresh law graduates in the substantial number of chambers further contributes to the high number of first-generation lawyers choosing to join the judiciary.⁶

In addition to these arguments, M.P.’s exam for recruitment in the subordinate judiciary is one of the few regularly conducted in the country, making it one of the most sought-after exams law graduates seek to take. Thus, an adjudication on the validity of these changes will significantly impact the lives of aspirants and litigants alike, making the changes in the eligibility criteria a critical topic of discussion. The points of discussion form the subject-matter of this article, which is structured in a manner that would reflect the pros and cons of the changes in the aforementioned rules, entailed by a set of arguments which attack the eligibility criteria based on legal as well as logical reasoning, concluding with the plausible way to move ahead with minimum friction amongst stakeholders.

The amended eligibility criteria

Three years of continuous practice

Concerning the first condition of being a practising advocate for three years, in the past, the Supreme Court has categorically set aside the eligibility criteria in 2002 in the landmark case of All India Judges’ Assn. (3) v. Union of India.⁷ Previous attempts by other States to introduce the same, which, on the face of it, went against the law laid down by the Supreme Court, have been held unconstitutional. For example, the Andhra Pradesh High Court set aside the condition in the following words:

28. … Under Article 235⁸ of the Constitution, the High Court has the power of control and supervision over the District Courts and the courts subordinate thereto, it cannot be countenanced that the High Court can simply wish away the direction of the Supreme Court inasmuch as under Article 141⁹ of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India.¹⁰

A potential argument with the State is that the judgment of the Supreme Court was given more than two decades ago. Since then, it has followed the direction of the Supreme Court that the training period should be increased to two years. Despite the same, in its experience, the candidates who are getting selected are not suitable enough for the post. However, if this argument is allowed to stand, it is opined that the State will be allowed to take benefit despite its own wrong. The basis of the opinion is that, except for a few, in every State, including Madhya Pradesh, there is no minimum salary fixed for an advocate. Due to the lack of a fixed standard, the advocates are the subject of acute financial exploitation. According to a Vidhi Centre for Legal Policy report, 79% of advocates with less than two years of experience make less than Rs 10,000. Given the money and time one spends pursuing a law degree, such a salary cannot be considered to provide an effective means to live a meaningful life.¹¹ As a result, prospective candidates cannot be expected to invest three years of their lives on such a paltry salary before becoming eligible to appear in the exam. Thus, it is argued that if this criterion is allowed to exist, the prospective candidates, to avoid servitude, will be compelled to look elsewhere professionally to sustain their lives and support those dependent on them. Logically, this is one of the prominent reasons why a bright young law graduate, after three years of practice, might not find the judicial service attractive enough.¹²

Another spectrum of debate is invited on the issue of enhancing women’s candidature in judicial services examinations. For women candidates, despite there being fewer registrations at the Bar, there has been a comparative surge in the number of successful candidates in the lower judiciary. This has been made possible, inter alia, because of doing away with the condition of three years of continuous practice. Comparing this to the number of women as District Judges, the picture is much bleaker, and one of the primary contributing factors is the stipulation of seven years of continuous practice, which collides with their societal and familial responsibilities. Thus, if the condition of three years is allowed to remain, there will be fewer registrations and, consequently, fewer women candidates. The resulting lack of diversity is problematic because diversity in public institutions, including gender diversity, sensitises the institutions to community needs, enhances social dialogue and improves communication across society. This results in a representative judiciary, inspiring confidence amongst the people. Additionally, women in greater numbers also encourage and mentor other women to enter the system, which ensures that the wheels of change keep moving.¹³

Passing the exam with seventy per cent marks in aggregate throughout graduation in the first attempt

The stipulation that a student must clear all exams on the first attempt does not consider several situations that can compel a student not to take and/or clear exams on their first attempt. These factors have been considered by a different High Court in one of its decisions¹⁴; when a student was rendered unable because of justifiable cause to take an exam on the first attempt, the student, who was otherwise eligible for being recognised for merits (e.g., university gold medal for academic distinction), it was held, will not be precluded from being recognised for his achievements. This results in an anomalous situation in which the present stipulation will prevent the legally recognised student with the best academic record from a university from even applying for the post.

Regarding the criteria for 70 per cent marks throughout a degree, there is no uniform standard for checking the paper. It means that in one university, hardly anyone will cross the required threshold [e.g., Campus Law Centre (CLC), Delhi], while the stipulation is much easier to achieve at other institutions. When juxtaposed with the fact that the students at CLC are statistically amongst the best-performing candidates in the judicial services exam, some of the most capable candidates are deprived of showcasing their merit without even a chance. The problem becomes aggravated by the fact that there seems to be no material based on which the authority has determined 70 per cent as an eligibility criterion in the alternative.

For eligibility criteria to be struck down, the same has to be so arbitrary or irrational that no reasonable person could have taken such a decision. The criteria of 70 per cent marks in graduation is prima facie arbitrary and irrational as it has no reasonable nexus with the objective that it seeks to achieve. Furthermore, there is a classification within the two stipulations, which distinguishes between individuals with 70 per cent marks in graduation and those with at least three years of practice.¹⁵ The former is put on a higher pedestal as he is eligible to take the exam right after graduation, while the latter must undergo training for three years. If the object is to ensure that candidates undergo practical training and discourage rote learning, in that case, the percentage of marks cannot be considered a reasonable basis for exempting them from getting practical training. As a result, the classification is prima facie without a reasonable basis and thus violates Article 14¹⁶ of the Constitution.

However, the criteria mandating three years of practice encapsulates its own set of pros and cons, painting a grey shade with a mix of idealism and practicality. The requirement can neither be reasonably considered arbitrary nor irrational since it is logical to assume, even if such an assumption is not backed by specific research, that the said stipulation will produce Judges who will be in touch with the needs and be able to differentiate it from the wants of litigants as well as the lawyers, along with being able to factor in the interests of other stakeholders. The problem lies in the execution of the idea, an example of which is how three years of continuous practice are calculated in M.P. As per the impugned changes, for showing three years of continuous practice, the candidate must show, inter alia, a minimum of six appearances in order sheets/orders/judgments each year for three years and furnish the same to be eligible for the examination

To grasp the problem in calculating three years of practice, it would be prudent to learn how training is imparted in a foreign jurisdiction. The United Kingdom has four Inns of Court: Gray’s Inn, Lincoln’s Inn, Inner Temple, and Middle Temple. These Inns are associations for barristers in Wales and England that offer members selection, training, and regulation in the legal field. A lawyer needs to enroll in any one of them. These Inns have disciplinary and supervisory powers over their members. Additionally, these Inns offer its members professional lodging, dining options, and libraries. Aside from that, every member of this body has a chapel or church adjacent to it and a separate precinct where barristers customarily practice and train. It has been centuries since this training has been going on.¹⁷ However, the situation is not the same in India. We do not have any such Inns of Court to provide formal training to newly enrolled lawyers. Due to this, the nature of training differs from chamber to chamber. Apart from that, there is a real possibility that the advocate does not indulge in proper law practice and their name is incorporated in the order just to meet the eligibility criteria. Since there is no such professional body to look after the legal training of the newly enrolled advocates, it becomes hard to trace the legal training acquired by the lawyer at the Bar. This, in turn, would frustrate the entire purpose of adding advocacy experience regarding judgeship for subordinate courts.

Conclusively, the arguments for doing away with these changes are multipronged:

(i) quantity-wise, an increase in the number of candidates, which logically increases the chances of selecting the most suitable candidates;

(ii) quality-wise, doing away with the criterion will ensure that the bright law graduates are not compelled to look elsewhere; and

(iii) diversity-wise, women will be able to participate in the process meaningfully.

Way forward

Even if the appointing authorities are sceptical towards the suitability and efficiency of the fresh recruits, the solution lies in finding ways to dynamically improve the training structure in the judicial academies. Additionally, confirmation of the service can be made subject to more strenuous conditions post-probation. At this juncture, it ought to be mentioned that the problems discussed hereinafter are not specific to the Madhya Pradesh State Judicial Academy.

Unfortunately, the debate on reforms in judicial training academies has not been given enough consideration. Even though every High Court has succeeded in seeing State Judicial Academies built, providing fresh recruits with relevant induction training has been difficult. The Report by the Vidhi Centre for Legal Policy referred to earlier, shows that many of these State Judicial Academies do not have the faculty necessary to provide new Judges with an organised induction training program.¹⁸ In a similar vein, the majority of State Judicial Academies seem to be repeating the same topics taught to candidates in law school when it comes to the curriculum for inducting Judges. The majority of State Judicial Academies appear to have poorly planned and poorly implemented the practical or clinical training component, as evidenced by the fact that most sitting Judges who are expected to mentor and assess new Judges in their courtrooms are not provided with guidance on how to do so.

Judicial education and training are serious issues that require full-time attention. Thus, these Academies must be led by full-time professionals instead of sitting Judges who alternately serve as directors of the majority of State Judicial Academies. To conclude, it would be prudent for State Governments and High Courts to amend their respective Judicial Service Rules and implement them to guarantee that candidates are properly trained and are assessed based on their performance in the Judicial Academy as well as their clinical or practical training before being admitted to the Bench.