Legal Education: Protesting the BCI's Consultative Deficit

Mainstream media has been abuzz with news of a paralytic strike by the Bar Council of India (BCI), protesting against the divestiture of their control over legal education via the proposed Higher Education and Research (HER) bill. The strike has had its fair share of critics, including a contempt petition as also a letter to the Supreme Court of India. 

Without going into the merits or otherwise of the HER bill, it is clear that the BCI has never consulted meaningfully with legal academics, despite a statutory mandate to do so under the Advocates Act. In an Indian Express editorial, I'd argued as below:

"Some say that law is an instrument of power. Little wonder then that regulating access to the corridors of legal power is lucrative business — particularly when the regulatory turf lies in the world’s largest democracy, which now boasts more than 900 law schools.

Recently, the Bar Council of India (BCI) was in the news for protesting attempts by the Ministry of Human Resource Development to usurp its superintendence of legal education through the Higher Education and Research Bill, 2011. This squabble is merely one of many in a series of turf wars between various agencies to assert their dominance over legal education.

All of this naturally raises the question: does the BCI have the competence to regulate legal education in the first place? In terms of legal competence, the answer appears to be in the affirmative. As for institutional competence, the less said, the better.

Even in terms of legal competence, there is an important caveat that seems to have been missed by the BCI in all these years of regulatory dominance. Section 7(1)(h) of the Advocates Act, 1961, requires the BCI “to lay down standards of... (legal) education in consultation with the Universities in India imparting such education”. Past records do not suggest any meaningful consultation with universities. While castigating this deficiency, the National Knowledge Commission noted that of the 10 members of the BCI’s Legal Education Committee, only one was a full-time legal academic.

The lack of proper consultation is not just anathema to the law, but has also had an impact on the quality of BCI norms... To add to its woes, the 184th Law Commission Report noted several complaints from law schools that the BCI’s directives often “tend to be arbitrary.

......the BCI would do well to keep in mind that the purpose of law schools is not to merely mass-produce technically competent lawyers ready to serve the bar. Rather, it is to cultivate critical thinkers, social reformers and creative leaders free to pursue an array of career options. Law schools must therefore be encouraged to experiment with their curricula and conceptualise courses that foster critical and creative thinking beyond the black letters of the law."


Protest Letter

In order to protest against this sordid lack of consultation, some of us came together and drafted a letter to the BCI. This letter has been signed by leading academics such as Professor MP Singh (ex VC of NUJS and current Chairman of Delhi Judicial Academy) and Professor NS Gopalakrishnan of CUSAT.


The protest letter takes issue with deplorable comments made by the BCI in its submission to the Parliamentary Committee reviewing the Higher Education and Research Bill (HER). I extract the relevant portion of our letter below:

"We take very strong exception to your statement to the Parliamentary Standing Committee as below:
  

"How the academicians can decide the curriculum of legal education? The litigants, the needy people come in contact of lawyers, explain their problems and the lawyers and judges in turn, work out the solutions. So the lawyers are well conversant with the problems, and they are the best person to decide as to what is needed for the students perusing legal education. The norms, curriculum and syllabus are thus, the domain of Advocates, so far legal education is concerned. The academics have a limited role to teach the books which are almost all authored either by noted lawyers or the Judges."

We believe this is a seriously misguided sentiment and severely denigratory of the role that legal academics have played and continue to play in legal education today. While the efforts of practising lawyers and judges are no doubt important, the primary responsibility for legal education ought to vest in those that teach law full time i.e. legal academics/educationists."

The letter also calls into question a BCI circular mandating students and law teachers to register and pay money for an alleged online portal/database.
 

If any legal academics (or researchers) are interested in signing onto this letter, please email me (shamnad@gmail.com) and I will add your name. Please mention your full name, designation and your institutional affiliation (as you would like to appear in the protest letter). Please do this within the next couple of days, since we intend to submit this to the BCI at the earliest.
 

Petition at Change.org

We would also like to solicit the support of legal practitioners, law students and others within the larger ecosystem of the "law" (which really includes any member of the public). For this purpose, we have a pithy petition at change.org. You can support the petition by simply clicking on the link here and adding your signature.

All India Bar Examination case: an update

Legally India has this update on the case, and the outcome of the last hearing in the Supreme Court on July 30.

Article and other alerts

* Sitaram Yechury's provocative piece on why we should keep the word socialism in the Preamble: Rework the Agenda

*Shyam Divan's obit on Atul Setalvad: Raising the Bar

*The All India Bar Examination case is coming up before the Court of Justices Dalveer Bhandari and H.L.Dattu on July 30. [Item No.301- SLP (C) 22337/2008 -BCI v. Bonnie FOI Law College.]

Request for Deferring Bar Exam and Mulling on Sudeer

I reported earlier on the prospect of an Indian bar exam in the aftermath of a Supreme Court direction in Bar Council of India vs Bonnie FOI Law College.

Kian Ganz, the dynamic founder of Legally India ran a piece a few hours back on a letter that we sent to Gopal Subramanium (Chairman of the Bar Council of India) requesting for a deferral of the proposed bar exam:

"The new bar exam for law graduates is understood to be held in late August with the Bar Council of India (BCI) set to announce the syllabus in a matter of days. Meanwhile, NUJS Kolkata final year students have petitioned BCI chairman and solicitor general Gopal Subramaniam to postpone the exam until 2011 because they argue it prejudices students and is unconstitutional without amending the Advocates Act 1961."

I reproduce the letter that we sent the BCI Chairman below. I am particularly interested in readers' views on whether or not the BCI (Bar Council of India) can introduce a bar exam without an amendment to the Advocates Act.

Dear Mr Subramanium:

My heartiest congratulations on your recent election as the Chairman of the Bar Council of India (BCI). It is rather fortuitous that you were elected to this important post soon after your had articulated your vision for an all India bar exam before the Supreme Court in Bar Council of India vs Bonnie FOI Law College.

As you are aware, during the consultative process undertaken by you in the context of Bar Council of India vs Bonnie FOI Law College, I had submitted a paper to you advocating strongly for a bar exam. I attach this again for your reference.

Needless to state, a number of us applaud your initiative and do hope that it will go a long way towards improving the quality of lawyers in India. However, we are concerned about the prospect of holding such exam at such shot notice i.e. a mere two months from now.

May we please request you to defer the proposed bar exam to next year, such that it only applies prospectively to candidates that graduate (with LLB degrees) next year?

First, as you will appreciate, effective notice of the exams came to our students (I speak of the National University of Juridical Sciences (NUJS), Kolkata where I teach) only last week. Although the exam was mandated by the Supreme Court judgment (Bar Council of India vs Bonnie FOI Law College) in December 2009, this order was not made public and is, to this day, not available on the Supreme Court website. I had posted a copy of this order on “Law and Other Things”, a blog, on 5th April 2010.

Subsequent to this blog posting, some newspapers had interviewed you and reported on the prospects of a bar exam. However, even at this stage, most students did not think that it was logistically possible to hold the exams this year. And many of them did not think that such exams could be held without a legislative amendment (in the light of the Supreme Court ruling in V Sudeer, an aspect I will dwell upon later in this letter).

It was only pursuant to my telephonic conversation with you on the 8th of May, that I understood that you were planning on conducting the exams in July-August this year. On the very same day, I announced this to our students at NUJS, who were extremely concerned at this short notice (a mere 2 months) and have requested me to forward their representation to you, which I attach with this letter.

As you will appreciate, a bar exam has never been held in this country since the 1970’s and students had a legitimate expectation that there would be no exam this year. With only a few weeks left for most students to graduate, it will inconvenience them to a very high degree. Many of them have signed contracts with law firms and lawyers and are scheduled to begin working in the months of June-July. Lawyers and law firms may have hired them on the expectation that they are ready to go on day one and not handicapped from appearing in court or practicing law, owing to a bar exam, that has been suddenly instituted after 35 years. Many other students are going abroad for jobs and higher degrees (LLM’s) and will be placed at a great disadvantage owing to this sudden announcement.

Secondly, this exam may prove logistically difficult for your team to execute at this late stage. You are of course the best judge of this, but if I may please be permitted to recount our own experience with such exams: it takes the national law schools a good 10 months’ time to plan and execute the CLAT entrance exam each year–which as you know has approximately around 15,000 candidates each year and only 11 law schools within its fold. More importantly, it already has a history (although CLAT is 3 years old, individual law schools conducted their own exams for several years prior to CLAT), whereas the bar exam that you envisage will be held for the first time in 35 years. Importantly, this exam will require immense planning and co-ordination as it is likely to have at least 45,000 candidates, if one assumes that the 900 odd law schools in the country might generate at least 50 candidates on an average this year.

Thirdly, and perhaps most importantly, the V Sudeer case (V. Sudeer v. Bar Council of India, AIR 1999 SC 1167) does not appear to permit a bar exam by the BCI (Bar Council of India) without an amendment to the Advocates Act. In Sudeer, the court categorically held that any additional eligibility criteria for the practice of law over and above what was mentioned in Section 24 of the Advocates Act was unconstitutional. Particularly if such additional criteria amounted to either a bar exam or a training of some sort, since the power to mandate such exams/training was expressly taken away via an amendment in 1974 to the Advocates Act. As you are no doubt aware, in the light of the 1974 amendment, once a student legitimately cleared his or her exams at a recognized University, he/she was entitled to enroll in a state bar council and practice before any court of law, without having to undergo training or take an exam of any sort.

Therefore, if such an exam needs to be conducted by the BCI, it can be done only through a legislative amendment. The court in Sudeer stressed that an enrolment comes with an automatic right to practice—subject to conditions of practice framed by BCI, High courts and the Supreme Court.

Therefore, the BCI cannot, in my personal view, attempt to pass off a bar exam as a “condition of practice”, since such an exam would effectively emasculate the concept of enrolment i.e. enrolment is meaningless without the right to practice. In short, the court is likely to see this cleverly crafted condition of practice as nothing more than a camouflaged “pre-enrolment” condition, a condition that the BCI has no authority to impose under the present statutory scheme.

As you are aware, the court in Lawyers Collective vs Ashurst defined the term “practice” to widely include not just the right to appear before courts, but to also include all kinds of non-litigious practice as well (transactional work and legal advise etc). Therefore divesting enrolled lawyers of the right to practice upon enrolment will have serious consequences for all law graduates this year. Rather than expending resources into the conduct of a bar exam this year and risking the wastage of resources in the event that the court strikes down the bar exam as outside of the BCI’s current competence and therefore unconstitutional, we strongly urge you to push for an amendment to the Advocates Act and conduct the exam next year.

Given all the above circumstances, I hope you will kindly consider deferring this exam to next year, such that it applies prospectively to only those law graduates that pass out next academic year. To conclude, let me please reiterate that we are very much in support of your wonderful initiative for an all India bar exam and are ready to help in whatever way you deem fit to make this a success. We however feel that rushing it through within the next 2-3 months may result in a sub-standard and badly executed exam and prove counterproductive to your vision for regulating the profession in a more optimal manner.

Warm wishes,

Shamnad Basheer

Bar Exam Coaching Already?

For those of us harbouring notions that Indians aren't entrepreneurial enough, think again. Previous posts highlighted an Indian bar exam in the offing. Despite the lack of any indication from the Bar Council as to what form such exam would take and the likely timelines for its implementation, we already have websites that are beginning to offer coaching for potential bar aspirants!

With coaching centres mushrooming this early in the game, we can be sure that is the next big money spinner in the "legal" arena.

The advent of such coaching centres ought to alert us to the fact that a bar exam cannot be a proxy for effective regulation and accreditation of proper law schools/colleges. For students would simply focus on such bar training through centres, without bothering about the quality of legal education that they receive from the various law schools/colleges.

Secondly, a bar exam simply tests one for his/her capability to practice the law (whether in a court room or in an advisory capacity). A good legal education on the other hand ought to do much more in terms of encouraging one to think critically, drive social change etc . Lastly, the pass or fail rates at the bar exam may not be much of an indication for how good the candidates' law school or college is. Rather all it might tell us is how good or bad the particular bar exam coaching centre (that the candidate went to) is!

Bar Council Election and the Prospects of an Indian Bar Exam

Gopal Subramanium, the current Solicitor General was recently elected as the Chairman of the Bar Council of India. We wish him the very best as he pilots this body and the profession that it represents to new heights.

In an earlier post, we highlighted a Supreme Court ruling that relied extensively on a report by Mr Subramanium and mandated the conduct of bar exams this year. Now that he has been elected as the Bar Council Chairman, the prospects of such an exam in the near future seem real.

Raising the Indian "Bar": Legality and Feasibility of a Proposed Exam

Despite being passed in December 2009, a Supreme Court judgment with tremendous ramifications for the practice of law came to our notice only recently.

In Bar Council of India v. Bonnie Foi Law College, Justice Dalveer Bhandari and Justice H. L. Dattu mandated the Center to conduct bar examinations to test candidates for their suitability or otherwise for entry into the legal profession.

You heard right: current law students who expect to graduate this year may not be able to don the robes of an advocate without first clearing a bar exam.

The Supreme Court order dated on 14 December 2009, came in the light of recommendations by a special committee constituted by the court and headed by the Solicitor General, Gopal Subramanium. This committee was primarily tasked with making recommendations concerning the manner of affiliation and recognition of law colleges by the Bar Council of India.

Upon receipt of the Committee report, the Supreme Court mandated the Centre to implement the recommendations, explicitly referring to the introduction of a Bar Examination:

“The most significant achievement of this entire exercise has been the introduction of the Bar Examination. Learned Solicitor General submits that the first Bar Examination shall be conducted in July-August, 2010 by a specially constituted independent body, consisting of experts of various disciplines of national stature. In the facts and circumstances of this case, we deem it appropriate to direct the Central Government to ensure that the entire programme framed by the three-member Committee is operationalized forthwith. We further direct the concerned institutions to fully cooperate with the Bar Council of India.”

India is not new to bar exams. The Indian Advocates Act, 1961 required holders of law degrees who wished to enter practice to complete a course in practical training and also pass an examination. But, in 1973, this provision was deleted by way of amendment, and since then, a law graduate from a BCI-recognized university could directly enroll as a lawyer. The BCI attempted to introduce an apprenticeship or practical training course in 1998, whereby recently graduated law students would have to work for a year with a counsel before they could enrol as advocates. However, the Supreme Court struck it down on grounds of lack of competence (see V. Sudeer v. Bar Council of India, AIR 1999 SC 1167).

The Court held that under the prevailing statutory framework, the BCI did not have the authority to prescribe conditions for training and examinations after graduation; it would first have to amend the Advocates Act to confer such powers unto itself. Notwithstanding this, the court still went on to explicitly endorse the need for an apprenticeship and a Bar examination, albeit after appropriate statutory amendments in this regard.

In the light of the V Sudeer case, one is forced to contend with the legality of the current Supreme Court mandate in favour of bar exams. Needless to state, the Supremes are well within their right to reverse Sudeer or distinguish it, but neither of it happened in the present (Bonnie vs OUI) case. In fact, the Supreme Court was not even deciding the issue of whether or not bar council exams could be introduced by the Bar Council without an enabling amendment to the Advocates Act.

The other tricky part of this ruling is that it could be construed as a judicial mandate for legislative amendment. In effect, the Supreme Court has directed the Center to implement the Committee report and permit the holding of a bar exam by a certain date. But if such bar exam can only be legally instituted after legislative amendment, one might argue that the court has effectively directed the center to move such legislative amendment. Is this constitutionally sustainable? If such amendment is indeed part of the mandate, can the government formulate such a bill and present it before the end of this budget session to comply with the July-August 2010 date?

In fact, the report by the SG committee clearly recognizes the need for legislative amendment in this regard:

“A Bar Examination should be introduced for the purpose of admitting law graduates to the Bar: As discussed supra, the introduction of a bar examination would ensure maintenance of standards in the legal profession, as well as standardization and constant innovation in the standards of curriculum, teaching methodology etc. The Committee is, therefore, of the opinion that qualifying a bar examination should be made a requirement prior to admission to the Bar by all State Bar Councils across the country. In light of the decision of the Supreme Court in the V. Sudeer case, such a requirement may be introduced in the Advocates Act, 1961 by means of a statutory amendment."

Given that the Supreme Court was only directing an implementation of the Committee Report, one might argue that their order be construed as a mandate to the Centre to also begin the process of amending the Advocates Act. If this is so, can the Center comply with the courts time-frame to permit the Bar Council and other relevant authorities to hold such examinations by July-August 2010? The Center is already reeling under the pressure of multiple bills, some of which it now fears will not sail through as it initially expected (the one on nuclear liability limitation posing the greatest set of problems for it). Given that it is thinking of stalling some of these bills, will it take on another one at this stage and within this short time frame?

Anyway back to the report of the Committee. Prior to framing his report, the Solicitor General had solicited comments from a few of us involved in legal education. Pursuant to his request, we sent him a rather lengthy note, strongly recommending a bar exam as a potential “quality” control measure. For this interested, we’ve put up this note on SSRN (we are in the process of revising this note for the purpose of publication in a law journal).

In this piece, we specifically note:

"This note (prepared in response to a request from a Supreme Court Committee) begins by analysing the constitutional and regulatory framework pertaining to legal education in India with special emphasis on the two principal authorities in this sphere: The BCI and the UGC. It then goes on to describe ambiguities and criticism regarding the ambit of the BCI’s powers, and accreditation mechanisms in higher education in a few other countries.

It then goes on to recommend reforms, most of which can be effectuated within the corners of the existing regulatory framework, without the need for statutory reform. Others may require statutory amendments.

The principal recommendations made in this note are as follows:

i) Indian legal education ought to encompass much more than merely training students for the bar. Indeed, the aim ought to be to create an effective social engineer who is socially sensitive and uses the law in myriad ways to help better society.

ii) The Bar Council of India (BCI) has no legal/constitutional authority to regulate the full spectrum of legal education, independent of the Universities. In fact, Section 7(1)(h) of the Advocates Act clearly mentions that the BCI is to lay down standards of legal education in consultation with the Universities in India imparting such education and the State Bar Councils.

iii) An all-India Bar Entrance Examination should be introduced as a quality-control mechanism, instead of the existing accreditation system which is patently flawed, ineffective, costly and subject to abuse. It will not only ensure a qualitative check on the number of lawyers entering the Bar, but would also give the Bar Council scope to regulate legal education in a more robust manner.

iv) As a more substantive policy measure, we recommend a more thorough overhaul of the present regulatory structure pertaining to legal education in India. The BCI powers should only extend to regulating that aspect of legal education that is intrinsically connected with the practice of law at the Bar. Some of the regulatory functions that are presently being performed by the BCI, and which do not relate directly to practice at the Bar should be devolved to another authority. This authority should ideally be a standing committee on legal education under the IRAHE as proposed by the NKC."

Interestingly, the Supreme order also endorses the Committee’s recommendation for a Directorate of Legal Education under the BCI – a body meant to specifically regulate legal education within the bounds of the BCI powers. This was recently made operational, under the leadership of Prof. VB Coutinho. Rahul Singh, who taught at NLS Bangalore till recently, has been appointed as the Deputy Director. Our very best wishes as this body tries to navigate the rather challenging terrain of legal education.

By: Shamnad Basheer and Sroyon Mukherjee

Bar Council of India vs Bonnie FOI Law College and Ors

Petition(s) for Special Leave to Appeal (Civil) No(s).22337/2008 (From the judgement and order dated 17/03/2008 in WP No.13698/2007 of the HIGH COURT OF M.P. AT JABALPUR)

BAR COUNCIL OF INDIA: Petitioner(s) VERSUS BONNIE FOI LAW COLLEGE & ORS: Respondent(s)
(With appln(s) for exemption from filing O.T., vacating stay, directions and with prayer for interim relief and office report) (FOR FINAL DISPOSAL) Date: 14/12/2009

This Petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DALVEER BHANDARI
HON'BLE MR. JUSTICE H.L. DATTU

For Petitioner(s): Mr. Gopal Subramanium, SG, Mr. Anand Varma,Adv. Mr. Sanjeev Sachdeva,Adv., Mr. Nagendra Kasana,Adv.

For Respondent(s): Mr. B.K. Satija,Adv.

UPON hearing counsel the Court made the following ORDER.

We have heard Mr. Gopal Subramanium, learned Solicitor General of India. In pursuance of the directions of this Court, the time frame for implementation of the three-member Committee report has been given to the Court. According to this time frame, preparation of parameters and list of experts for inspection of Law Schools/Colleges would be completed by 31st December, 2009.

Mr. Subramanium also submitted that the Directorate of Legal Education will be operationalized by 31st of December, 2009 and the Directory of Law Schools and Law Colleges will be prepared by 15th January, 2010. He further submitted that the institutions which have not been inspected earlier, would be inspected on or before 31st January, 2010. Mr. Subramanium further submitted that preparation of a detailed database of all law schools and law colleges would be prepared by 31st January, 2010. He also informed the Court that a meeting of the National Legal Knowledge Council has been fixed on 1st February, 2010.

The most significant achievement of this entire exercise has been the introduction of the Bar Examination. Learned Solicitor General submits that the first Bar Examination shall be conducted in July-August, 2010 by a specially constituted independent body, consisting of experts of various disciplines of national stature.

In the facts and circumstances of this case, we deem it appropriate to direct the Central Government to ensure that the entire programme framed by the three-member Committee is operationalized forthwith. We further direct the concerned institutions to fully cooperate with the Bar Council of India. We deem it appropriate to list this matter for further directions on 8th February, 2010 at 2.00 p.m.