Written by: By Edrich Miranda[1]

The ugly issue of Judicial immaturity has once again raised its head, with the Bar Council of India (B.C.I.) seeking to be impleaded before the Supreme Court (S.C.), for modification of the S.C. Order in “All India Judges Association v/s. Union of India”[2], where the court declined the eligibility criteria of three years practice, before appearing for State Judicial Service Exams.

If the imbroglio has to be critically analyzed, the present suggestions may fall short of the ideal requirement, by merely increasing the years. Experience need not necessarily tide over shortcomings; which is often confused with seniority. Earlier the experience for an advocate to function as a public prosecutor (P.P.) was seven years; therefore for all rational reasoning, for a judge, it ought to be more. Even assuming but not conceding, the present three years of practice, prior to the post of magistrate or session judge is adequate, a number of question remain unanswered,  inasmuch as, should time period of three years be the essence of the experience; or quantum of cases handed during that time period? Again one can stretch the argument further, not only the quantum of cases disposed, within the period of three years; but the quality of results from the number of cases handled, meaning how many cases, weren’t overruled, in appeal or revision.

Another criteria for assessing the cream of knowledge and wisdom, of aspirants  to  the bench, could be a broad spectrum open test, by a large board or committee, comprising of retired Superior Court Judges, State Executives,  Legislators and other stake holders, having law background, directly, questioning the candidate in an open forum, or expressing their opinion, about his,/her competence, like the judicial process practiced  in the U.S., By examining the candidate’s responses to a comprehensive Personal Data Questionnaire, forwarded to the committee by the Department of Justice;  by examining the candidate’s legal writings and reviewing reported court decisions, briefs, legal memoranda, publications, speeches, hearing and argument transcripts, articles, and other writings by or involving the candidate;  by conducting extensive confidential interviews of a broad cross section of  judges, lawyers, and others who have served, or had other professional contact, with the candidate, to obtain their assessments of his or her integrity, professional competence, and judicial temperament; and  by interviewing the candidate near the end of the evaluation process, affording  him or her “a full opportunity to address and rebut any adverse information or comments” that might have come to the evaluator’s attention during the evaluation process. After completing the above steps, the evaluator prepares an informal report for the committee chair. The report, in evaluating the candidate’s professional qualifications, rates the candidate as either “well qualified,” “qualified,” or “not qualified.” After reviewing an informal report for 66 in 2009,  Obama Administration reinstituted the White House practice.

“In addition, interviews may be conducted by law school professors, deans; legal services and public interest lawyers; representatives of professional legal organizations; community leaders and others who have information concerning the prospective nominee’s professional qualifications.”

 Then again, the curriculum of Law Universities, need a slight change, student need not pass in exams based on the prescribed curriculum, as that would not motivate desiring candidate, to explore, learning further then what is prescribed for exams, thereby narrowing the knowledge base.

Few examples of judicial immaturity at subordinate courts, nevertheless at times fatal for a litigant, cause a case or suit, one tried and finally disposed of, usually cannot be tried again. Secondly, evidence cannot be added or lead in appeal or revision, mostly all that happens, happens at the trial court, mainly magistrates court, and sessions court, which are trial courts for most cases, in very limited cases the high court functions as a trial court. Let’s examine a mutual divorce matter between A & B, filed before the hon’ble  Ld Judge, Palghar at Vasai, which was finally disposed of off, after both parties explicitly agreed to the facts and the prayer of the joint petition. Their respective advocates were present, the parties have averred on affidavit, after the contents were read and explained to them in the language understood by them; further the Hon’ble Ld Judge, personally posed queries,  to the respective  parties, as to whether they have any claims of property or otherwise; against each other, which were answered in the negative,  thereafter surprisingly, the lady petitioner  (Party “B”) files an application u/s 125 Cr.P.C. for maintenance, which was  admitted by the hon’ble Ld magistrate, and  notice issued to the respondent Gent (Party “A”), when the facts about no claims by the respective parties against each other, was brought to the knowledge of the magistrate, he  continued  to hear the mater even though he did not have jurisdiction to adjudicate, a matter finally deposed off by a session court, even worse, the magistrate  continuously went on passing  interlocutory orders of interim reliefs, production of income of respondent etc, one and only one plausible inference can be drawn, “that the Hon’ble Magistrate did not understand  the rudiments of law. Another example, a case filed against police, for refusal to register an FIR against co-operative bank management, for inducing adivasis to deposit money, and suddenly without notice winding up the bank; closing its registered office, without due process of law, and absconding. The first query posed by the hon’ble magistrate to the complainant was, do you have sanction u/s  197 Cr.P.C.? Without a shadow of a doubt, it can be summarized these attributes of a magistrate or sessions judge are conclusive indications of his /her deficiency of knowledge, which knowledge can only be gained through experiences and therefore the three, five, seven or more years of practice is justified before one is called to the bench. There is no ambiguity in the interpretation of section 197 Cr.P.C. the language is very clear, in the bare Act, which can be appreciated by a person of normal prudence. Section 197 Cr.P.C. states, “Sanction to prosecute Judges and public servants, for acts done in discharge of duty”; here lies the essence of interpretation, emphasis ought to be laid on whether the public servant or judge did a particular act while discharging his/her duty? It cannot be said by any stretch of the imagination that failing to do one’s duty, as enjoined upon by a statute, can afford the protection of that section, because duties of a police officer, have been specifically enumerated, in the Mumbai Police Act, The Cr.P.C. the IPC, etc.

  Some other remedies to surmount the disastrous, vexatious issue, would be to throw open the post of judicial appointments, at the subordinate judiciary, to anybody having knowledge and experience of law; subject to the condition that aspiring candidates, a contest for the post, all on the same footing, with a level playing field, with the same set of theory and the same set of practical’s, which again should be assessed by a large board or a large committee. Some advocates may raise a stink over the preposition, that non-advocates be permitted to participate in exams for State Judicial Services; but what is paramount is, nation and the welfare of its citizens; and not petty politics or catering to any lobbies. An argument may be advanced by jealous and ignorant advocates, as to, how can a non-advocate have knowledge of law? Well if these disgruntled advocates refresh their memory, that they themselves learned law, from lecturers and professors, who were and/or are, superior to them. It is not as if only advocates know the law, the law minister, the secretaries, deputy secretaries, joint secretaries, additional secretaries, heads of department, section heads, senior and junior clerks, at the ministry of company affairs, the ministry of law and judiciary; besides Chancellors, deans, professors, lecturers besides; others know the law, but do not fit within the definition of “Advocate[3]. The essence of appreciating this concept is to read other laws in conjunction with Article 13 of the Constitution of India.

In conclusion, it can be said, the broader the board or committee set up to decide the merit of candidates eligibility for State Judicial Services Exams, the less is the probability of error or shortcomings, going by the principles of the preponderance of probabilities. Also, judges sitting adjudicating over such disputes may distort the course of justice, as an element of bias can creep in, by virtue of belonging to the same fraternity, as candidly admitted by late Hon’ble Justice Bhagwati of the S. C. in his speech telecast over Doordarshan on the eve of his retirement, (He said the mind of a judge is not a vacuum, slight elements of bias exist, depending on the society one is exposed to, one’s culture, education, etc), similar thoughts were endorsed by Hon’ble Justice Varivya. Therefore in the interest of the nation, its citizens, and justice as a whole, it is imperative, aspirants to the bench comply with the aforesaid suggestions or any further suggestions in that direction.

REFERENCES:

[1]

[2] (2002) 4 SCC 247.

[3] Section 29. Advocates Act 1961.    

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