February 15, 2020
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70 Years Of Indian Judiciary | Opinion: Indians In Their Mid-Twenties Are Delivering As Judicial Magistrates, How Alarming Is That!

Unlike the army or the police, the judiciary is an institution that should welcome older, more experienced lawyers to hold office, writes Prashant Reddy

70 Years Of Indian Judiciary | Opinion: Indians In Their Mid-Twenties Are Delivering As Judicial Magistrates, How Alarming Is That!
Ye English Justices of Peace
An illustration from a 15th century manuscript shows the king’s bench at work—the first known depiction of a typically vibrant English court
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70 Years Of Indian Judiciary | Opinion: Indians In Their Mid-Twenties Are Delivering As Judicial Magistrates, How Alarming Is That!
outlookindia.com
2020-01-24T18:47:12+0530

Judicial magistrate: does the title evoke images of a stern, middle-aged jurist? Think again. Late in 2019, newspapers proudly announced that a 21-year-old had cracked the judicial service exam, paving the way for his appointment as a first-class judicial magistrate. After a brief training stint in the judicial academy, this young man—who, till 1988, would have been considered barely of voting age—will be hearing criminal cases. Or, as a civil judge, sitting in judgment on civil cases. He is no exception. Most judicial service appointees join right off law college—with negligible or zero experience. Their average age: usually in the mid-twenties.

In a private lawyer’s chambers, new law graduates are at most allowed to draft pleadings and almost never all­owed to argue: any lawyer worth his salt is aware that mere bookish knowledge is insufficient to successfully defend a case. Practical experience and skills picked up only by observing law in action are vital. As the famous American jurist Oliver Wendell Holmes Jr once put it, “The life of law is not logic but experience”. This is perhaps true of other professions too, but you would hardly expect it to be disregarded in a field like law. Yet, the very same law graduates who would never be trusted by a private client due to their inexperience sit on the same cases as judicial magistrates!

Why does it matter?

Judicial magistrates perform three crucial functions. The first and foremost is their role as the first defenders of civil liberties when the police produces accused persons before them within 24 hours of arrest, as required by the Constitution. This is a crucial hearing: it decides whether the arrest was lawful and a further remand in police custody is warranted. Or unlawful, and the person can be released on bail or freed. All too often in India, there’s an air of pro forma slackness at this stage—although an occasional judicial magistrate will crack the whip on cavalier cops.

Their second critical mandate is deciding whether the prima facie ingredients of an offence been made out in non-cognisable cases brought by private complainants or the police are grounds enough for ordering investigations and prosecutions. Last but not the least, the judicial magistrate has the power to sentence guilty persons to a prison term of up to three years. (They’re also invested with additional powers under special laws like the dom­estic violence act and various environmental laws.)

How is it then that young Indians in their mid-twenties, with no experience, are being appointed as judicial magistrates? Historically, all states have had a minimum practice requirement of three years before courts in order to qualify for writing the judicial service exam. In the early ’90s, the Supreme Court justified it thus: “The recruitment of law graduates as judicial officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the judge has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct graduates fresh from the universities…is neither prudent nor desirable. Neither knowledge derived from books nor pre-service training can be an adequate substitute for first-hand exp­erience…. Practice involves much more than mere advocacy as lawyers have to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a judge is likely to remain incomplete. Experience as a lawyer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection.”

But, in 2002, another bench of the Supreme Court ordered the abolition of the three-year clause on the following grounds: “…experience has shown that the best talent available is not attracted to the judicial service. A bright young law graduate after three years of practice finds the judicial service not attractive enough.” Only a caveat was added that such recruits be given training of one to two years before being allowed to hold court.

The Constitution bestows on state governments the power to determine the qualification requirements for judicial magistrates, in consultation with the high courts. The Supreme Court should perhaps not have run roughshod over these powers. Pragmatically, it is highly doubtful whether judicial academies can ever impart the kind of skills that are learnt through practice. A study we conducted found that most state judicial academies are simply not in a position to fill that breach (Schooling the Judges). Indeed, it is not unc­ommon at present to hear stories from practising lawyers of young judicial magistrates taking breaks during a hearing to consult colleagues on WhatsApp, seeking advice on how to deal with particular cases. This deficit at the heart of the Indian justice system does not bode well.

One reason why new judicial magistrates are so young in India, compared to high court judges (who are usually 45-50 when appointed), is that most states have an age-cap of 30 years for applicants. This is without doubt a mind-boggling limitation for a judicial office. Unlike the army or police, where it makes sense to recruit young people, the judiciary is an institution that should be welcoming older, more experienced lawyers to hold office. In fact, removing the age-cap entirely may help fill up vacancies—that would widen the applicant pool by allowing experienced advocates to write the exam. As of now, high courts are unable to find enough suitable candidates from the thousands who do apply. Instead, some high courts (e.g. the Rajasthan High Court) have lowered the minimum age qualification from 23 years to 21 years to bring in even younger judicial magistrates!

For comparison, take the US judicial magistrates appointed to the federal judiciary. They boast an ave­rage 22 years of experience at the bar, and their average age is 50. In India, the debate on judicial app­­­­oi­­nt­­ments focuses almost entirely on higher cou­rts: even academia does not much look at magistrates. But take in the issue through a double lens—the vac­ancies on the one hand, and the vital nature of the off­ice itself—and the way forward is obvious. It is time we thought of ways to attract more exp­­e­rienced lawyers and not limit ourselves to greenhorns.

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(The writer headed the judicial reforms initiative at the Vidhi Centre for Legal Policy for 2019. Views expressed are personal.)

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