Beyond Merit: Does the Three‑Year Practice Rule Silence Women's Judicial Dreams?

This Blog is Written by Yamini Banerjee, 4th Year, BA LLB, JIMS EMTEC, GGSIPU, New Delhi.

Blog 06 | Edition VII

A recent reform that says that one must hold a legal license before sitting for the Civil Judge (Junior Division) exam is proposed as a measure to bolster the bench. The goal is simple: that the person who presides over a trial has experience in the courtroom, know how to handle procedures, evidence, deal with clients, court room ethics, etc. However, while the rule's intent is to enhance judicial competence, it is important to consider whether the rule has an unintentional impact on the pathway to the judiciary for women. The need for the three-year practice requirement is sound. Adjudication is not just about legal reasoning – it is also about developing skills from exposure to live litigation. Framing issues, witness examination, timelines and limitations of the court are skills that advocates gain in the process of getting things done, ones they have greater insight and ability to apply when managing dockets, determining witness credibility, and writing operative orders. It is meant to minimize unnecessary delays, enhance the quality of decision-making at trial, and enable judges to deal with the procedural facts of the court room from the start.

A rule that is formally neutral can, however, have different effects in practice. Indirect discrimination is when one seemingly equal requirement is combined with social inequalities to make them at a disadvantage. From an Indian perspective, there are several structural issues that can make it difficult for many women to achieve the three years of regular litigation experience they need. First, the expectations for the woman to take up the role of a caregiver or eldercare, which is usually the woman's role, leads to a disruption in the career path. One, the role of caregiving that is usually the responsibility of women, makes the career path discontinuous. Women may be married earlier and be engaged in family responsibilities, leading to a decrease of the number of continuous practice years, or be diverted toward less time-consuming positions like drafting or advisory. Second, the first few years of litigating are very precarious for many young attorneys—they don't always get paid for court work on time. Women who do not have personal or family financial buffers can choose to go into the salary jobs to provide them with stability. Third, safety issues and inconsistent work hours of litigation (late hearings, travel between court locations) may prevent women from sustained practice in court, particularly in court locations or the court environment that are not safe or women friendly. Fourth, access to mentorship and networks—which are vital to receiving briefs and courtroom access—is still uneven; male advocates are likely to have informal networks that help them get started in fewer years.

These facts do not blame but do raise questions. Will the three‑year rule have a negative effect on the number of women seeking judicial services? Could it limit the number of women that acquire the needed experience to enter the pipeline and thus the number of women on the Bench? It is not the symmetric form of equality which is prescribed by the Constitution. Articles 14, 15 and 16 guarantee equality and prohibit discrimination while permitting reasonable classification and affirmative state action to ensure substantive equality. The jurisprudence acknowledges that sometimes, ‘equal treatment' will demand varying treatment to redress unequal starting positions. When a credential that is seemingly neutral disproportionately excludes one gender because of structural issues, then the state should consider implementing alternative measures to achieve equal access. An honest analysis of an issue should also take into account the other side. The three year rule is for both men and women; it aims to ensure judicial competence. The judiciary requires direct experience of trial process, for theoretical knowledge is not enough to equip new judges. A great many women advocates do make it through the difficult early years of litigation and rise to a distinguished career of judges. A wholesale elimination of experience requirements is a risk to the very purpose of the rule and quality of trial court adjudication. With these conflicting values, a compromise is better. Instead of eliminating the requirement, we can put in place measures that can help more women fulfil it. Practical steps include: 

• Mentorship and placements: Development of structured mentorship programmes where senior litigators guide women law graduates to get exposure to court work and developing drafting skills early on.
• Reduction of safety barriers: Safe and inclusive infrastructure (better lighting, women friendly waiting areas, complaint redressal etc.,), security around court complexes.
• Funding for young women advocates' economic instability in early advocacy years through fellowships, stipends, or seed grants.
• Exemptions for flexible pathways: Accept equivalent experiential pathways, including but not restricted to an accredited internship attached to trial judges, litigation clinic experience under supervision and legal aid courtroom experience, as meeting part of the Practice requirement.
• Institutional encouragement: Bar councils, high courts could promote early recruitment and briefing of women advocates as well as encourage senior counsels to take on women advocates.

They would safeguard the purpose of the requirement, which is the capacity for judicial competency, and overcome the structural barriers that may prevent women from gaining the required years of practice experience. They are also in line with constitutional values: ensuring that merit is always the first principle, but also that substantive equality is followed, so that merit is available to all in a meaningful sense. The reform debate shouldn't be simplistic binary. There is indeed such a thing as experience and trial courts need judges who have been in the trenches of litigation. Equality of opportunity also requires us to consider how formal rules, in combination with ongoing social restrictions, result in unequal outcomes. Judicial reform should not only establish standards, but also make sure that everyone has an equal opportunity to uphold those standards.

The Real Question is: Does Experience Matter? 

It does. The question becomes: does everyone who wants to become a judge have an equal chance of obtaining that experience? Any system to strengthen the judiciary that is designed to increase the diversity of the judiciary should come with intentional and institutionally-supported measures to eliminate unnecessary impediments for women. A truly inclusive bench will be one where the judges are experienced, and representative of the society they serve.

(Write to the author at yaminibanerjee25@gmail.com.)