C.M Koul
While adopting the West Minister Model of Governance for governing us in our country, the judiciary is invested with the powers and charged with the duty to play a significant role in resolving the disputes in accordance with law in our country.
Apart from being the guardian of our Constitution, the judiciary provides an effective and un-polluted dispute resolution mechanism in our country. Be it a dispute between the individuals or between a citizen and the state, the judiciary in the country is the only forum for the resolution of the disputes in accordance with law barring arbitration or consumer matters etc.
To perform the aforementioned sensitive and pious duty, the Courts are insulated against any kind of interference in the performance of its duty. This gives the total independence to the judiciary to perform its duty in our country in a very upright and dedicated manner.
The Courts of Law in our country perform its duties in very difficult and trying circumstances. Be it the blood boiling heat or freezing temperatures, the Courts of Law perform the duties unobstructed/un-interfered with by any circumstance.
The Courts of Law are comprised of a Judge, the counsel and the ministerial staff. The counsel in the Courts of Law present their respective cases and project the provisions of law supporting their respective contentions and it is the Judge who balances the issues, separates the grain from shaff and then passes a judgment resolving the disputes projected before a Court of Law. Thus, a Judge has a significantly sensitive and serious duty to perform.
Therefore, a Judge is supposed to be calm, cool, patient, with the brilliant qualities of head and heart, affectionate and above all upright and firm. A Judge, thus, must have a clear and complete understanding of the human pain which manifests itself in various forms and gets reflected in varied cases presented before a Court of Law for adjudication. In order to determine the controversies projected before a Court of Law effectively and in an upright manner, a Judge is required to be very patient, cool and a sober person incapable of being swayed by the external sweeps. These qualities are required to be inculcated mediculously in a person who chooses a career in dispensation of justice as a Judge.
A law graduate who comes out of a law school armed with a degree lives in an entirely different world which is identifiably different and distinguishably separate from the atmosphere in Courts. A law graduate once enters a Court room is entirely a novice to:-
i// The decorum of the Court;
ii// The procedure followed by the Courts of Law in dispensation of justice;
iii//The process of interpretation of law and its application to the disputes raised before it;
iv//The etiquette and manners that a Judge is required to have while holding a Court to dispense the justrict.
A fresh law graduate hardly knows as to how the cases are prepared in the chambers of a counsel and has the least knowledge of advancing an argument before a Court of Law projecting a brief. The appreciation of law and facts by a Court of Law, the arguments of a counsel and the application of law are some of the predominant issues to which a fresh law graduate has no access.
The art of writing a judgment, the issuance of an ad-interim direction in the facts and circumstances of a case and above all the Court management are hardly known to a fresh law graduate.
The chisel a young law graduate into a counsel or a Judge is a formidable task. It begins with the shaping of the mental attitude of a fresh law graduate which is definitely different from that of common person. The frame of mind of a counsel or a Judge is required to be very static which does not oscillate by the humane conduct. It has to stick like a firm rock unshaken and unpolluted by any external situation that can be precipitated by and interested party.
Therefore, until quite recently no fresh law graduate could appear in an examination to be appointed as Magistrate/Munsiff of a Court of Law in the absence of possessing the required experience. The first and foremost requirement for being appointed as a Munsiff or Judicial Magistrate 1st Class has been until quite recently that an interested candidate was required to gain the experience of working in the Courts of Law for at least two years and more. A young law graduate could learn the working in judiciary as a lawyer or as a Judge while working/assisting a senior lawyer. By watching the working of senior lawyers in the Courts also enlightens a young mind about the working in the Courts of Law and in the process of
dispensation of justice.
As is well said that the Judges are not born but are made by gaining experience, learning the working in the Courts of Law and adding to one’s knowledge in law. Thus, in the absence of a law graduate having the experience of at least two years of working in the Courts of Law under the guidance of a senior counsel, no law graduate should be entitled to appear in an examination for appointment as a Judge in the subordinate judiciary.
The appointment of a young lawyer as a Judge can be the source of earning his livelihood, but primarily and predominantly, the discharge of duty by a Judge is ‘divine in nature’ and is, thus, ‘definitely more than a source of earning livelihood’.
Therefore, the possession of at least two years of experience at the bar must be the necessary requirement to appear in an examination to be appointed as a Judge in the subordinate judiciary in order to ensure that we contine to have a very vibrant, robust and the sensitive Courts of Law in our country.
The issue in this behalf, therefore, merits to be re-visited at the highest/appropriate level before it is too late.
(The author is the practicing counsel in the High Court of Jammu and Kashmir)
