3-Year Practice To 1-Year : Who Gets To Write The Rules Of The Game For Judicial Services?

On August 21, a divided Bench of the Supreme Court modified the three-year Bar practice requirement a little over fifteen months after it had been restored. As per the majority judgment, for recruitments notified from April 1, 2027, candidates will require one year of actual practice, followed, upon selection, by one year of training at a State Judicial Academy and one year of structured clerkship. For the transitional period, candidates have been permitted to apply without satisfying the prior practice requirement. Essentially, since 1993, the requirement has changed four times – introduced, removed in 2002, restored in 2025 and modified again this year.

In an earlier column written in 2023, when Madhya Pradesh introduced three years' practice as one route for entry to the Civil Judge examination, I had argued against the rule at some length. The objection then was largely to the rule on its merits. Relying, inter alia, on the Shetty Commission, the 116th Law Commission Report and the earlier All India Judges Association decisions, I had argued that practical exposure at the Bar was not the only means of preparing a judicial officer, and that the same object could be achieved through structured post-recruitment training. I had also pointed to the exclusionary effect such a rule could have on women and candidates from economically and socially marginalized backgrounds, for whom three years at the Bar may itself operate as a substantial barrier to entry.

Three years later, however, the issue presents itself in a somewhat different form. This is not an attempt to reopen the debate on whether prior practice at the Bar makes for better judicial officers. Instead, the present piece addresses an anterior question – should the Supreme Court, in exercise of judicial review, be writing the rules of the game? It has to be examined against Article 234, which places recruitment to the judicial service below the level of District Judge within the prerogative of the Governor in consultation with the High Court and the State Public Service Commission. Put differently, can judicial review be employed to displace the constitutional process expressly provided under Article 234 for framing those rules?

A curious departure

Ordinarily, the Supreme Court has exercised hands-off approach in matters of recruitment. In a catena of judgments including P.U. Joshi, and Zahoor Ahmad Rather, the Court has held that the prescription of qualifications and eligibility conditions falls within the domain of the competent authority and that courts cannot substitute their own view of what the qualification ought to be. In Sandeep Shriram Warade, the Court went so far as to say that, in the garb of judicial review, a court cannot “sit in the chair of the appointing authority” and decide what is best for the employer.

Judicial service, however, presents a curious departure from this position. The All India Judges Association proceedings began in 1989, and, through continuing mandamus, the Supreme Court has repeatedly issued directions concerning recruitment, promotion, seniority, pay and other conditions of service of the subordinate judiciary. It has also, from time to time, altered conditions governing entry into judicial service.

The Court has itself dealt with the objection that such directions may enter a field otherwise assigned to the executive or the rule-making authorities. All India Judges Association is based on the premise that its directions were intended to secure the performance of obligatory duties and should not be treated as an encroachment upon legislative or executive power. It also described those directions as transitional measures towards the evolution of a national policy for the judiciary. That may explain the continuing jurisdiction in All India Judges Association. But there is still a difference between requiring a constitutional authority to discharge its obligation and choosing, on its behalf, the contents of the rule which it must frame.

The records of proceeding culminating into the 2025 Judgement shows that there was no occasion for the Supreme Court to consider restoring the rule. The applications before the Court concerned LDCE quotas, promotions and allied issues in the judicial service. However, in April 2023, the Court formulated a question regarding restoration of 3 years of practice calling it as an “ancillary question”. It was eventually answered in 2025 by prescribing three years' practice as a prerequisite for appearing in the examination.

Different High Courts, different answers

The 2025 judgment records the responses received from the High Courts. There was considerable support for some form of prior experience, but there was no unanimity on what that requirement should be. Some High Courts favoured three years, some two, Delhi suggested one year, while Rajasthan and Sikkim opposed bringing the requirement back altogether.

Perhaps, the differing views reflect the fact that each High Court wanted to adopt an approach which was more suitable to it. Different High Courts, dealing with different cadres and local conditions, have considered different models to be appropriate. This is important because Article 234 does not itself prescribe the qualifications for recruitment; rather, it lays down the procedure by which recruitment rules are to be framed. It therefore leaves each Governor and the High Court with a degree of autonomy to formulate its own rules, informed by its experience and the conditions prevailing within its jurisdiction.

Reviewing the rule, or writing one?

The Supreme Court can undoubtedly examine whether a recruitment rule is arbitrary, discriminatory or otherwise contrary to the Constitution. The difficulty arises when the Court moves beyond testing the validity of a rule and, out of several constitutionally permissible choices, itself selects the rule which ought to apply.

If a State has prescribed a particular method of recruitment, the question before the Court is whether that rule has legs to stand. Whether another model would be preferable is a policy choice, ordinarily left to the competent authority. Article 234 assumes importance for precisely this reason. It places recruitment below the level of District Judge within a particular constitutional arrangement – appointments are made by the Governor in accordance with rules framed after consultation with the High Court and the State Public Service Commission. Article 235 separately vests control over the district courts and courts subordinate thereto in the High Court.

In State of Bihar v. Bal Mukund Sah, a Constitution Bench treated Articles 233 and 234 as constituting a special constitutional scheme for recruitment to the subordinate judiciary. The Court observed that recruitment at the grass-root level is to take place through rules made by the Governor after the consultation contemplated under Article 234. To be clear, Bal Mukund Sah was concerned with legislative and executive interference with that scheme; it did not decide whether the Supreme Court could issue directions of the kind involved here. But its description of the constitutional structure remains relevant. Recruitment to the subordinate judiciary is not an unoccupied field. The Constitution has identified the authorities involved and the process through which the rules are to be made.

This is not to suggest that judicial review stands excluded. A recruitment rule can certainly be struck down if it violates Articles 14 or 16, is contrary to the applicable rules or is otherwise constitutionally impermissible. The Court may also require a constitutional authority to discharge an obligation which it has failed to perform.

The dissenting view

In Bhumika Trust, Justice K. Vinod Chandran, in dissent, places considerable emphasis on the distinct constitutional character of judicial service. His opinion that judicial service stands on a footing different from ordinary public employment is undeniable. However, it does not answer the question that arises in the present case. The Constitution, while fully conscious of the special position occupied by the subordinate judiciary, nevertheless created, through Articles 233 to 235, a specific and carefully calibrated constitutional scheme governing its appointment and control. The distinct character of judicial service cannot, therefore, be invoked to travel beyond that scheme. Its relevance cannot extend so far as to confer upon the Court a power to prescribe, supplement, or otherwise determine the substantive content of recruitment rules where the Constitution itself entrusts that function elsewhere.

The uniformity argument

Uniformity has been one of the recurring reasons for intervention in the All India Judges Association. In 1993, while prescribing three years' practice, the Supreme Court noted differences in qualifications and recruitment procedures across States and considered uniform qualifications necessary at the lowest rung of the judiciary. However, the text of the Constitution itself does not carry that principle to the lower rung. Article 312 permits the creation of an All-India Judicial Service, but expressly excludes any post inferior to that of a District Judge, as defined in Article 236. The provision for a uniform judicial service, therefore, stops at the level of District Judge and does not extend to Civil Judges. The constitutional scheme, at the very least, does not suggest that national uniformity at the entry level is an end in itself.

The desirability of a uniformity cannot, by itself, justify displacing the choices made by the authorities entrusted with framing recruitment rules under Article 234. It may be a relevant consideration, but it cannot enlarge the scope of judicial review.

The cost of changing the rule

There is also a practical difficulty of uncertainty when recruitment conditions change in this manner. For more than two decades after 2002, fresh law graduates could compete without completing a period of prior practice. That position was changed in May 2025 when three years' practice was restored and was altered again a little over fifteen months later.

The majority in the present judgment itself recognised the difficulty caused by the restoration of the requirement without a transitional arrangement. It has now permitted candidates falling within the transitional period to apply without satisfying the prior-practice requirement, while prescribing one year of actual practice for recruitments notified from April 1, 2027.

The point is not that recruitment rules can never change. They obviously can. But the successive changes show the difficulty when questions of recruitment design are worked out through adjudication. The ordinary rule-making process allows the effect of a new condition, its commencement and its application to ongoing or prospective recruitment to be considered before it is brought into force.