Test of sorts

in New Delhi

MANY leaders of the Indian freedom movement began their careers as lawyers. Though most of them were not very successful lawyers, they played important roles in the making of the Constitution, and were subsequently involved actively in politics and law-making. A degree in law sensitised them to social and political change, while it prepared many others to represent their clients.

This understanding of the dual purpose of legal studies most likely shaped the content of legal education in India since Independence.

The Advocates Act, 1961, established the Bar Council of India (BCI) and aimed to prescribe a uniform qualification for advocates. Section 7(1) (h) of the Act enables the BCI to promote legal education and to lay down standards for it in consultation with universities and the State Bar Councils. The BCI has the power to recognise universities whose degrees in law shall be the qualifying standard for one to enrol as an advocate, and for that purpose it can inspect universities.

There are at present 900 recognised law colleges, including 12 national universities and 145 university departments, and approximately 11 lakh registered advocates. Of the five-lakh-odd students studying law in various colleges in the country, 60,000 join the legal profession every year. A rapidly growing corporate legal sector and a nascent outsourced legal process services sector have brought to the forefront the issue of ensuring quality in legal education.

The Solicitor General and the Chairman of the BCI, Gopal Subramanium, dealt with this phenomenal growth of legal education and its challenges in his vision statement for 2010-12. He said: On the one hand, we face a prosperous future as a country with a growing economy and the aspirations of a billion Indians unleashed upon the world. On the other, we see massive inequities, shortfalls in education/health/infrastructure, delivery of justice and various other ills moving at a similar pace. In such a scenario, the need for a stronger, more robust and ethically driven legal profession in India cannot be overemphasised.

By introducing the All-India Bar Examination from December this year the BCI's aim is to raise the quality of the Bar through entry-level assessment. Legal academics, however, apprehend that the BCI's plan to hold the examination twice a year will reduce law schools to just preparatory schools where students qualify for the Bar examination and the quality of legal education being offered at law schools will no longer count.

In nine languages

According to the BCI, graduates taking the examination have to secure just 40 per cent to qualify to practise law. It is an open-book examination and there is no limit on the number of attempts that can be made. The objective-type examination will be conducted in nine languages, namely, English, Hindi, Tamil, Telugu, Kannada, Marathi, Gujarati, Bengali and Oriya.

The unstated objective of the All-India Bar Examination seems to be to limit the number of graduates entering the legal profession every year. There is a legitimate apprehension that it can seriously disadvantage those from rural backgrounds and those who do not have the opportunity to study in elite law schools, that is, the national law universities.

The BCI's eagerness to limit the number of law graduates enrolling themselves to become lawyers may be the result of its genuine concern to improve the standards of legal practice. But, during the Raj, the British too wanted to limit the number of Indian lawyers because of a different concern. In the early 1940s, Sir Patrick Spens, when he was the Chief Justice of the Federal Court of India, noted:

At every place that I visited, without exception there are far too many barristers and advocates for the work which is available. Everywhere there are literally hundreds with nothing to do except to sit in court and listen and no work to occupy them when they are not doing this. Some years or so of this failure to get work and young men become victims of disappointment, ill will and disaffection [perhaps a reference to the number of lawyers in the nationalist fray]. The fault, I think, is that it is far too easy to become an enrolled advocate at most of the High Courts. As a rule a course at the university with the degree of LL.B and a few months apprenticeship to a local advocate is all that is required for admission to the local Bar. It seems to me that the universities which depend largely upon the number of pupils who come to them are likely to be in favour of the continuation of a situation where the university degree carries such potential subsequent advantages. Moreover, for the purpose of maintaining or increasing the supply of pupils there is temptation to a university to make it easier from time to time the conditions of the qualifying examination for law degree.

In the interests of the Bar itself, I believe, that it might well be desirable either that an agreement should be secured between the universities concerned for a more or less uniform and considerably stiffer examination at all universities for the degree of LL.B, if such degree is to remain the basis of admission as Advocates, or that, as on the original side of the High Court, a further and stiffer qualifying examination is required of a young man before he comes to a bar. (As cited by legal academic Rohit De, on Law and Other Things blog on May 17, 2010)

Gaps in legal education

In a sense, the All-India Bar Examination is an admission of the BCI's failure to maintain the quality of legal education in the universities it has granted recognition. The BCI ought to examine the gaps in legal education offered by universities that are suspect in its eyes and force them to improve standards. Instead, it appears to have adopted the all-India examination as a short cut, even though it is the students who may suffer more than the poorly performing universities by this exercise.

The BCI claims that the first All-India Bar Examination, to be conducted on December 5, 2010, is intended to test an advocate's ability to practise law in the country. The BCI says the examination will assess capabilities at a basic level and help set a minimum standard for admission to practise law; it addresses a candidate's analytical abilities and basic knowledge of law.

The notification bringing the examination into force was passed by the Legal Education Committee and members of the BCI at duly constituted meetings on April 10 and April 30. Initially, it was proposed to hold the examination in August, which was rescheduled to December in order to give State Bar Councils more time to complete their enrolment process after the graduation of students from colleges in their States.

Curiously, the BCI did not consult the stakeholders before introducing the examination. It is not clear why it did not consult universities, as it was bound to under the Act, before introducing a far-reaching change in the eligibility to practise law, which has a bearing on the standards of legal education being offered in universities.

Indeed, the prelude to the announcement of the examination suggests haste, although it was mandated by the Supreme Court in Bar Council of India vs Bonnie FOI Law College. In this case, Gopal Subramanium appeared for the petitioner before he became chairman of the BCI. He was part of a three-member committee that was asked to prepare a report on the issue of affiliation and recognition of law colleges. In its report, submitted to the court, the committee proposed the holding of an all-India bar examination.

The committee was clear that in the light of the Supreme Court's decision in the V. Sudeer case, the holding of the examination required an amendment to the Advocates Act. As it originally stood, the Act required holders of law degrees to complete a course in practical training and also pass an examination if they wished to practise. In 1973, this provision was deleted through an amendment.

The BCI attempted to introduce an apprenticeship or practical training course in 1998, whereby law graduates would have to work for a year with a counsel before they could enrol as advocates. However, the Supreme Court struck it down in the V. Sudeer case on the grounds of lack of competence.

Asked about this, Subramanium told Frontline that in the V. Sudeer case the issue was whether the BCI could lay down conditions prior to enrolment, whereas now it has made it mandatory for fresh graduates from the 2009-10 batch onwards to clear the examination after enrolment in order to secure the certificate of practice from the BCI.

However, as Prof. Shamnad Basheer of the National University of Juridical Sciences, Kolkata, pointed out, the attempt to pass off the bar examination as a post-enrolment condition is a camouflage. The examination, he explained, would effectively emasculate the concept of enrolment as it was meaningless without the right to practise.

The examination also raises the question whether the imposition of additional criteria to qualify for practise is a colourable exercise of power by the BCI as the Act in its present form does not enable it to do that. The term legal practice includes the right not only to appear before courts but to engage in all kinds of non-litigious practice, namely, transactional work and tendering legal advice.

The chronology of the announcement of the examination suggests inexplicable haste on the part of the BCI. In December 2009, the Supreme Court directed the Central government to ensure that the entire programme framed by the three-member committee was operationalised forthwith. On April 10, the BCI adopted a resolution to introduce the examination. Following this, changes were introduced in the BCI Rules, which were notified in a gazette on June 12, thus avoiding any need to amend the Act as recommended by the three-member committee to the Supreme Court.

The BCI claims to draw its power to conduct the examination from Section 49 (1) (ah) of the Advocates Act, according to which it may prescribe the conditions subject to which an advocate shall have the right to practise. Critics like Shamnad Basheer, however, contend that a pass in the examination cannot justifiably be prescribed as a condition of practice.

The BCI has also to convince the final-year law students, who have opposed the examination on the grounds that they had no prior information about it and that they would be jobless for seven months until the Bar Examination results are declared in February 2011. They are also aggrieved that companies that gave them pre-placement orders have withdrawn the same in view of the announcement of the examination.

In a note submitted to the three-member committee appointed by the Supreme Court while hearing the Bonnie FOI Law College case, some legal academics pointed out that legal education ought to encompass much more than merely training students for the bar. Indeed, the aim, they said, ought to be to create an effective social engineer who is socially sensitive and uses the law in myriad ways to help better society.

But is the BCI listening?