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's Judicial Service Rule-Making Power Questioned After Practice Requirement Change
The ’s recent decision to modify the mandatory three-year bar practice requirement for entry into the has sparked a critical debate: should the apex court, through , be writing the rules of the game for judicial service recruitment? The judgment, delivered by a divided Bench on , reduced the prerequisite to one year of actual practice for recruitments notified from , with a allowing candidates to apply without prior experience. This marks the fourth change to the rule since —introduced, removed in , restored in , and now altered—raising fundamental questions about the under and the limits of .
A History of Shifting Requirements
The requirement of prior practice at the Bar has had a turbulent journey. Originally mandated by the in as part of the proceedings, it was removed in after objections over its exclusionary effect. In , the Court surprisingly restored the three-year condition, only to relax it again fifteen months later. The majority judgment now prescribes one year of actual practice, followed by one year of training at a and one year of structured clerkship. For the transitional period, candidates may apply without any prior practice.
These rapid shifts have created uncertainty for aspiring judicial officers. The Court itself acknowledged the difficulty caused by the restoration without a , leading to the current modification. However, the underlying issue remains: is it appropriate for the judiciary to repeatedly alter recruitment eligibility based on evolving judicial preferences rather than through the ?
The Under
of the Constitution explicitly vests the power to frame recruitment rules for the (below the rank of ) in the Governor, acting in consultation with the and the . further places control over the district courts and subordinate courts in the . This is a carefully calibrated constitutional arrangement designed to balance with .
The has traditionally adopted a hands-off approach in recruitment matters, holding that prescription of qualifications and eligibility conditions lies within the domain of the competent authority. In and , the Court refused to substitute its own view for that of the . Yet, the line of cases represents a curious departure. Since , the Court has exercised to issue directions on recruitment, promotions, and service conditions for the .
The source of this jurisdiction, the Court has argued, is to secure the performance of and to evolve a . But as critics point out, there is a difference between requiring a constitutional authority to act and dictating the substantive content of the rules it must frame.
The Dissenting Voice: Justice K. Vinod Chandran
In a related case, , Justice K. Vinod Chandran dissented, emphasizing the distinct constitutional character of judicial service. His opinion underscored that judicial service stands on a footing different from ordinary public employment. However, the Constitution itself, through Articles 233 to 235, created a specific scheme for appointments and control. The distinct character of judicial service cannot be invoked to travel beyond that scheme.
As the news source notes,
"the Constitution, while fully conscious of the special position occupied by the
, nevertheless created, through Articles 233 to 235, a specific and carefully calibrated
governing its appointment and control."
Thus, even the special nature of judicial service does not confer upon the Court a power to prescribe the substantive content of recruitment rules where the Constitution entrusts that function elsewhere.
The Uniformity Argument: National Standards or ?
One recurring justification for the ’s intervention has been the need for across states. The judgment noted differences in recruitment procedures and deemed uniform qualifications necessary at the lowest rung of the judiciary. However, the constitutional text does not support this principle for posts below . permits an but expressly excludes any post inferior to that of a . The scheme stops at the level, leaving states autonomy for civil judge recruitment.
The response from High Courts to the 2025 judgment reflected this diversity. Some favoured three years of practice, others two, Delhi suggested one, while Rajasthan and Sikkim opposed bringing back any prior practice requirement. This diversity is not a flaw but a feature of the . Each state, through its Governor and , is best placed to assess local conditions and craft appropriate rules.
The Cost of Judicial Uncertainty
Beyond constitutional principle, there is a practical cost to the rapid changes. For more than two decades after , fresh law graduates could compete without prior practice. That changed abruptly in , and again in . The majority judgment now provides a transitional period, but the uncertainty remains. Judicial interventions that alter recruitment conditions mid-stream can disrupt career planning and discourage potential candidates.
The ordinary rule-making process allows for careful consideration of transitional provisions, commencement dates, and
. Adjudication, by contrast, is reactive and piecemeal. As one commentator observed,
"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."
Conclusion: Who Gets to Write the Rules?
The ’s power of undoubtedly extends to examining whether a recruitment rule is . But there is a fine line between testing the validity of a rule and, out of several , selecting the rule that applies. entrusts that choice to the Governor, the , and the .
The current controversy highlights a tension within the Indian constitutional framework: the need for to protect the independence of the judiciary versus the respect for the . As the legal community watches the evolving requirements, the question remains—should the be the rule-maker, or should it limit itself to policing the boundaries set by the Constitution? The answer will shape the future of judicial recruitment and the balance of power in India’s constitutional democracy.
