Report No. 117
Approach of The Law Commission
3. Law Commission has in its One hundred sixteenth Report recommended constitution of Indian Judicial Service to which recruitment would be from three independent sources: (i) direct recruitment on the result of a competitive examination through which fresh law graduates would enter service; (ii) promotion from the State Judicial Service; and (iii) direct recruitment from amongst senior and experienced members of the Bar. The time honoured approach envisages practice in the courts for a period ranging from two to three years before one can qualify for entering judicial service at the lowest rung of the ladder. Article 233(2) of the Constitution prescribes practice of not less than seven years at the Bar before being eligible for entering service at the level of district judge or the term as explained in Article 236.
Standing at the Bar for a certain period was considered adequate to equip the entrants to judicial service for effectively handling causes and controversies and resolving them according to law. The assumption underlying this approach was that a certain number of years of practice at the Bar enables the person not only to be effectively acquainted with various stages of trial and the method of dealing with them but also observation of working of the court, so that the entrant to judicial service could be presumed to be adequately equipped for performing the duties of a judge.
Apart from the fact that this assumption has been found to be wholly unsustainable,1 now that a fresh law graduate is being given an opportunity to enter judicial service, the need for pre-service training which was keenly felt since long as pointed out hereinabove, is further accentuated by this radical departure in doing away with the essential qualification for entering service, namely, standing at the Bar. A degree in law, presumably, may equip the holder thereof with the knowledge of rudiments of law. The art of advocacy is acquired in the course of standing at the Bar. Rendering justice is an art in itself and acquiring rudiments of art needs training.
The minimum equipment to render justice requires a keen intellect to shift grain from the chaff, to perceive falsehood, to appraise relative claims, to evaluate evidence, a fair and balanced approach, needs of the society, the constitutional goals and above all a keen desire to do justice. None of these aspects are dealt with in the syllabus prescribed at law colleges. If training is imparted to an impressionable mind, not contaminated by some of the prevailing undesirable practices in vogue in the present day Bar, amongst others by judges who have mastered the art of rendering justice, the same can be acquired.
In order therefore to equip a fresh law graduate to be a good judge a pre-service training is indispensable. Similarly, those who enter state judicial service at grass-roots level will equally need training in the art of rendering justice. While the basic tenets of training in respect of both may be same, the duration may vary depending upon the minimum qualification prescribed for becoming eligible for entering service. The Law Commission must cater to the needs for pre-service training at both the levels, institutional as well as practical training.
1. Civil Justice Committee in its Report, para. 8, page 183, observed that, "The rule in force in certain provinces required the candidates to have practised at the Bar for a period of three years or more furnished no guarantee that the candidates have acquired any real useful experience."