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.

Legal Education in India

By Arushi Garg

Recently, in an interview of Professor Upendra Baxi, the Rainmaker explored the condition of legal education in India, and his sustained endeavours to make legal education in India socially relevant.

Professor Baxi’s concern started with his first teaching assignment in India when he realized “with a degree of astonishment, if not horror” what passed off as legal education in India. The basic reason was the focus of Indian education on doctrinal modes of study and the law as it is, coupled with the relegation of the exploration of the law, as it ought to be to optional and “wayside” courses. He drew upon his activist experience in Sydney and Berkeley to have a meaningful dialogue about how to proceed in his attempt to provide a social-science base to the understanding of law.

His efforts received support from both pioneers in the field of legal education as well as from young, upcoming scholars. The idea was to promote a healthy academic environment aimed at legitimating a different perspective as co-equally important as doctrinal research without debunking the importance of the latter. It was in such an environment that the idea of a National Law University (NLU) first emerged.

On the question of the Bar Council of India (BCI) and the NLUs, Professor Baxi was somewhat restrained in his responses. He did talk about being invited to help in the proposal of an NLU by the Ram Jethmalani, Chairman of the BCI at that time. While there was no question of his leaving DU at that stage, he reminded them of how the BCI has a special stake in legal education. Today, he is disturbed that hardly any senior counsels keep this fundamental fact in mind. While the BCI is mostly willing to regulate legal education in India, they are strangely reluctant when it comes to contributing resources.

This point raised by him is specifically important because in real terms, this means that often, law students are incapacitated from seizing the opportunities that are available to them, with many of the brightest minds in the country being simply incapable of financing themselves through international moots, summer schools or exchange programmes.

The direct consequence of the BCI’s general unwillingness to provide aid also means that a lot of institutions that were meant to be centres of excellence are practically privatized bodies, with little regard being given to equity. Mediocrity has been accepted as the norm, especially when it comes to faculty. There is either a dearth of good faculty, or the unwillingness to look for them actively.

The Vice-Chancellor of one of the best-known law schools in the country has been known to respond to complaints of incompetent faculty by saying, “If you can find them, I will appoint them.” Hardly the job description of a law student, but when you hear these responses often enough, slowly, and sadly, they stop sounding outrageous.
The failure to achieve culture of “excellence” that the NLUs sought to create remains the bitterest disappointment of all. Legal education has been broken down to CVs, and unhealthy, cutthroat competition. The average NLU student will learn how to answer the question, rather than solve the problem. A common lack seems to be the ridiculous emphasis on handwriting and presentation in exams—a problem other places have solved by digitizing exams with the help of anti-cheating softwares.

This is not to say all is lost. As a student of these Universities, I can vouch for the fact that I have sat through at least some courses that have changed me in very fundamental ways and challenged me to think in innovative ways about issues of justice and equity. I am sure a lot of other students in my position feel the same way. But this should not take away from the fact that there is a long way to go.
Professor Baxi’s only hope is that these institutes will realize that it is time for introspection, to examine their faculty as well as their original goals in the light of their current structure. In saying this he echoes the hope of NLU students across the board.

When asked about the new generation of legal education in India, Professor Baxi expressed his impatience when it came to ministerial “mission statements” and some “excess known as the Knowledge Commission.” In his words, “What do new generations signify? Growth in self-reflection, wisdom, and capacity to serve the underprivileged. Now by this criteria, there is no new generation - broadly speaking - of legal education.”

This is an apt summation of the crisis in legal education that has hit the country. After all the lofty goals we read about, for the average NLU first year, law school can stand to symbolize very bitter disillusionment. The emphasis on learning by rote, statutory provisions, case names and bench strengths can be stressful as well as meaningless. This is in sharp contrast to most other Universities in the world, where most students are given the option of take-home exams, research papers and at the very minimum, are allowed to take in external material for classroom exams that shift the burden from mugging up to understanding.

The social relevance of the law cannot be restricted to adding subjects to the course even though this is the all-important first step. Understanding and writing about law and poverty in India can be an exercise entirely divorced from internalizing what you learn.

Professor Baxi has talked of realizing the dream of having both kinds of law persons—“those who are technocratically competent and those who can perform the roles of soldiers of justice.” This is the laudable aim with which the NLUs started off, but as of now, this goal remains largely elusive.

Guest Post: Is the Binayak Sen Case really an anomaly?

This guest post has been contributed by Sidharth Chauhan, who is currently a graduate student at the University of Pennsylvania Law School.

The initial outrage at the conviction of Dr. Binayak Sen and two others for conspiracy to commit sedition and several other terrorism-related offences was amplified by the fact that all three defendants have been sentenced to life imprisonment. The trial judge’s failure to account for the material inconsistencies and omissions in the prosecution version has already been highlighted in a note prepared by Dr. Binayak Sen’s well-wishers as well as in journalistic coverage (linked in a previous post by Arun). For those who may be interested, I have tried to summarise the shortcomings in the appreciation of the evidence in a longer version of this comment (available here).

While not intending to trivialize the grave consequences that will be faced by the defendants and their families, one can easily foresee pedagogic uses of this verdict, primarily as an example of how criminal law and procedure should not be applied and interpreted. This could be in pursuance of suggestions (made by Professor Upendra Baxi among others) that mainstream legal education in India should move away from its selective emphasis on progressive decisions rendered by higher courts which are not representative of the functioning of the judicial system as a whole. Instead, more attention should be drawn towards erroneous decisions that are routinely made by trial courts that are the first point of access for litigants. Of course, it goes without saying that Dr. Binayak Sen is no ordinary litigant. The fact that he has spent nearly three decades providing healthcare among deprived tribal communities and unorganised labour undoubtedly contributed to the widespread public criticism of his prolonged detention without bail (between May 2007 and May 2009). It will continue to be a factor in public conversations as this case proceeds to the appellate stage. While it is reasonable to say that both the conviction and the unduly harsh sentence are likely to be overturned on appeal, the high-visibility of this particular decision makes it a prime candidate for thorough discussion and dissection in academic settings. The trial judge has unintentionally (and may I say unwittingly) produced a writing sample that captures many of the structural flaws in our criminal justice system – namely, legislative overbreadth and obsolescence in defining offences and prescribing sentences, numerous irregularities in investigation on part of the State police, a finding of guilt despite insufficient and unreliable evidence and to top it all a clear abuse of sentencing discretion.

There are of course many prominent voices that have alluded to the irony of convicting an acclaimed human rights defender for sedition at a time when numerous scam-tainted public officials go scot free, but that is more of a rhetorical claim which should be clearly separated from the legal considerations. To be sure, in the trial stage Dr. Binayak Sen’s defence counsel did argue that he had been falsely implicated by the State police in retaliation for his documentation and criticism of the atrocities committed by the State-backed ‘Salwa Judum’ militia which had been organised to counter-act the Naxalites. Such claims of selective prosecution are very difficult to establish since investigators and prosecutors have considerable discretion in the filing of charges and the follow-up action leading up to the framing of the charge-sheet by the trial judge. Now that the trial judge has recorded a very questionable finding of guilt, in the appellate stage the emphasis should primarily be on the quality of evidence (or the lack of it) that was relied on during trial, with the ideological overtones and comparisons with other ‘prisoners of conscience’ taking a backseat.

The prosecution’s chief claim was that the three defendants were involved in a conspiratorial relationship wherein Maoist ideologue Narayan Sanyal passed on some letters to Dr. Binayak Sen during their meetings in Raipur Central Jail, which were subsequently passed on to Piyush Guha, a Kolkata-based businessman for further dissemination among Naxalite operatives in Kolkata. The trial judge has bought the prosecution version despite there being no admissible evidence to show Dr. Binayak Sen’s involvement as an intermediary and an extremely doubtful narration about the time and location of Piyush Guha’s arrest as well as his subsequent custodial statements. The even more worrisome features of the trial court’s verdict are the illogical surmises leading up to the finding that all three defendants were involved in Naxalite activities, even though there is hardly anything on record to show specific involvement in the planning or commission of any violent or subversive acts. The one-sided tenor of the judgment is best captured by the blanket dismissal of the objections to the prosecution testimonies that were raised during the course of cross-examination. While the prosecution testimonies about the grave threat posed by Naxalite activities in general and Dr. Binayak Sen’s alleged acquaintance with several hardcore Naxalites occupy a considerable part of the decision, the defence’s objections are not even outlined and have instead been disposed off in one paragraph. It is hard too imagine how a judge can take such a one-sided view, even if it were assumed that his personal sensibilities were those of being ‘conviction-minded’ and in support of a hardline approach against Naxalite operations. As many commentators have already pointed out, political posturing and ideological beliefs can neither be a justification or a means for diverting attention away from shoddy fact-finding.

The findings pertaining to Dr. Binayak Sen’s alleged support for and involvement in Maoist activities are partly based on stray references to naxalite activities in magazines and pamphlets recovered from his residence and the contents of his personal computer ( including e-mail correspondence) that were transcribed and presented as evidence. Taken to the logical extreme, such an interpretation could imply that any individual could face prosecution for merely researching and documenting terrorist activities. As one ploughs through the text of the judgment, what initially appears to be a bundle of errors turns into a legitimate apprehension of collusion between the prosecution and the trial judge.

The proverbial icing on the cake lies in the sentencing decision. All three defendants have been sentenced to life imprisonment for conspiracy to commit sedition, which is the maximum prescribed sentence. This is a clear abuse of the sentencing discretion that is accorded to the trial judge for differentiating between the various degrees of culpability and the gravity of an offence. Even if one were to disregard the investigative lapses and flimsy evidence presented in this case and assume that the handing over of letters constituted a conspiratorial relationship, such conduct cannot be equated with acts of physical violence or direct incitement for the same. Instead, the sentencing transcript cites the grave threat posed by Naxalite activities in general as the basis for awarding the maximum sentence. It is unclear how the punishment will serve the ends of deterring Naxalite violence or even those of retribution if one were to take the view of hardliners. On the contrary, such an excessive sentence could serve as fodder for Naxalite propaganda and recruitment in the region.

It would not be stretching one’s imagination too far to see this verdict as a symptom of the many woes of India’s criminal justice system. Irrespective of the divergent and sometimes polarized positions on how to tackle the Naxalite mobilization, this case is an apt illustration of why responsiveness in the framing of penal legislation as well as fairness in investigation, prosecution and adjudication matters to all citizens. For far too long, our Parliament has delayed the necessary re-evaluation of many obsolete offences that remain on our statute books. This case amply highlights the dangers of offences that are defined in a vague and overbroad manner while providing for a wide sentencing range. The trial court’s ignorance of Supreme Court precedents which restrict the definition of ‘sedition’ to direct incitement of violent acts is not a one-off occurrence of such ignorance in the lower courts. If one takes a random sample of criminal appeals in the higher judiciary, one will readily find many cases of such erroneous application and interpretation of statutory offences. The Indian Penal Code was enacted by the colonial government in 1860 and till this day it is the mainstay of substantive criminal law in our legal system. While there have been piece-meal changes from time-to-time, both in respect of prescribing ingredients of offences and sentencing ranges, there is no sustained move towards a coherent overhaul of the criminal law. In recent years, there have been some studies such as the Draft National Policy on Criminal Justice (2007) that have suggested a holistic re-examination of the scope and justifications of existing statutory offences and sentence-ranges. It must also be reiterated that several important legislative changes in our criminal justice system have been triggered by questionable verdicts. Examples that readily come to mind are the Nanavati case in the early 1960’s where an acquittal in a ‘crime of passion’ ultimately led to the legislative abolition of jury trials, the Mathura Rape Case in the early 1980’s which led to the expansion of the definition of ‘rape’ to cover custodial circumstances as well as the prohibition on references to ‘past sexual conduct’ during trial, and in more recent times the Ruchika Girhotra molestation case which finally convinced the Law Ministry to push for an expansion of the definition of ‘sexual assault’. It remains to be seen whether the regrettable verdict given by the Raipur Court will trigger at least a piece-meal legislative change such as an amendment to the definition of ‘sedition’ under the Indian Penal Code. A more likely consequence could be the judicial invalidation of some vaguely defined offences under the Chattisgarh Special Public Safety Act, 2005 if the defence counsels choose to attack the constitutional validity of that law before the higher courts.

Access to Quality Legal Education: 3 vs 5 Years?

I'm pleased to bring you a guest post from Kshitij Malhotra on a topic close to my heart.

As Kshitij rightly argues, we need to create more 3 year programs of a quality that matches up to the best 5 year programs. The Rajiv Gandhi School of IP law at IIT Kharagpur is a good step in this direction. DU has always had an enviable 3 year program record. And now the Jindal Global Law School (JGLS) promises to give a complete face-lift to 3 year courses.

But these schools are few and far between and we need more such degree programs.

However, I'm not so sure that Kshitij's proposal that lateral entry be permitted for graduates from other disciplines to the NLU's (in the 3rd year) is a viable one. Most national law schools do not just offer BA subjects (social science courses such as economics and sociology) in their first two years. Rather they intersperse it with a good sprinkling of basic legal subjects as well. This appears sensible policy to me, as students need some sense of the law in their first two years. A thoroughly compartmentalised BA vs LLB program defeats the very purpose of an integrated BA LLB course. And if this were to be the case, we may as well have just had separate BA and LLB courses and degrees.

Without much ado, I give you Kshitij's thoughtful musings on this theme. But first, a little background on Kshitij:

He is a qualified chemical engineer from Indraprastha University, and a student of law at University of Delhi (LC2). He is a registered patent agent, and working as a patent professional since 2006. Presently, he is involved with a start up company in Intellectual property service domain. Before working with this start up, he had a brief stint at an IP law firm, ZeusIP Advocates. He started his career from a knowledge process outsourcing company, Evalueserve.

Lack of 3 year LLB programs at top law schools: Restricting access to quality legal education

Gone are the days, when the term lawyer imaged a black robed guy sitting in a court chamber. Lawyers are now commonly seen in the carpeted bays of corporate offices. The practice has moved from saving shady criminals to overseeing merging of multi-national companies. From contending a family feud over a piece of land to getting injunctions over intellectual property infringement. Certainly, the legal profession is rapidly evolving, and so are the firms in the legal services industry. Cross-domain professionals are now highly sought. Company Secretaries well aware of business and compliance laws, Charted accountants that are versed with tax laws and PHDs that are well versed with patent laws.

Such professionals are accepted with open arms, and of course remunerated very well. Going forward, there seems to be an optimistic demand in the industry regarding such professionals. However, the concerns remain regarding the supply. The question therefore arises whether our legal education system is providing doctors, engineers, PHDs, CAs and civil administrators with enough opportunities to access quality education? The Bar Council of India, the body responsible for accreditation of courses at law schools, prescribes two streams of law courses required to be enrolled as an advocate viz. a 5 year integrated LLB degree open for students after 10+2 or 11+1, and a 3 year law course for graduates. The onus of choosing what to offer rests on the law schools.

At present, none of the top law schools including NLSIU, NLUI, NALSAR and NUJS, provide 3 year LLB programs (although initially few of the top law schools did offer 3 year LLB programs, but, then they gradually moved to the 5 year programs). This leaves graduates, and more importantly professionals, with very few options to pursue quality legal education. The reasons for not providing 3 year LLB programs are best known to these law schools. Some suggest that 5 year programs are easy to mange, and students are able to save a year in completing their education.

However, most often than not lack of interest in students for 3 year LLB courses is quoted as an excuse. But, is lack of interest really a justified reason to restrict these programs? Recently, IIT Kharagpur started a 3 year LLB program restricted to engineers, doctors and post graduate in sciences, and it has been a success. The 3 year LLB program at University of Delhi (the only program that has some credibility and quality) has always been well attended by professionals from civil administration, police, corporate, engineering, and information technology, and most of them enter into the legal profession as a litigator or a consultant, after the completion of the program.

Jindal Global Law School, probably the first law school set up with a vision of providing globalized education in India, has also instituted a 3 year LLB program. 3 year LLB programs at other universities, such as Banaras Hindu University and Banglore University, are also seriously attended. This clearly shows that takers of 3 year LLB programs have always been present.

Another reason given by administrators is that professionals do not consider study of law seriously, and only see it as a part time vocation. Law is serious business, and market forces cannot be allowed to govern studies in law. This argument though partly true, is not true in its entirety. Lackadaisical attitude has been prevalent in many students regarding legal education, wherein working professionals pursue LLB programs with a typical “ho jayega” (we will manage it somehow) attitude, and wherein graduates pursue LLB programs with a typical “kuch nahin se kuch to sahi” (better study law then do nothing) attitude.

However, this does not mandate closing the doors of quality education for professionals who are serious about studying law. I am sure, if given an opportunity of studying at top law schools of the country, a professional will definitely think of means to balance professional occupation with studies, and even might think of taking a sabbatical. Also, when a professional decides upon pursuing legal education, then his/her decision is based on much more deliberated grounds as compared to the decision of a typical teenager, who usually enters these top law schools right after completing schooling.

Also, opening up 3 year LLB courses does not mean compensating standards of education, such as relaxing minimum attendance criteria etc. Neither does it mean mandatory setting up of evening classes. Maintaining the standards of education is always in the hands of administrators. However, having evening classes scheduled for students, who are needy and want to work side by side for their sustenance, might not be a bad idea. Offering late evening classes has been a known concept at the B-schools in India. University of Delhi successfully runs an evening program at two of its centres. The onus of meeting the expectation of a law program is completely on the students enrolled at the program. In fact, the strict curriculum and attendance policies (some of which requires a minimum attendance of 75 percent) will automatically instill a sense of urgency and seriousness, if lacking in enrolled students.

The old Bar Council of India (BCI) rules (rule 5, 7 and 8 of section A) mandated all law schools to provide an option of lateral entry in their 5 year LLB courses, wherein graduate and post graduate students can enter the 3rd year of such programs. Notwithstanding, the concept of lateral entry might not be an attractive proposition anyway for professionals as this would mean studying with fellows, who are easily 5-6 years junior to them. This at least provided flexibility to professionals, post graduates and graduates to enter laterally into the 5 year LLB programs. However, these rules have been scrapped by the BCI and the latest set of BCI rules (rule 13 of Section A) prohibits such lateral entry and exit. In fact, the latest proposed rules of the BCI suggest implementation of an age bar to the entry of both 5 year and 3 year LLB programs. As per the proposed rules, no candidate above the age of 20 would be admitted to the 5 year LLB program, and nobody above 30 years of age will be allowed to join the 3 year LLB program. Imposition of such bar is not at all mandated.

On one hand, policy makers consider law to be sacred and a profession of the mature, and on the other hand, they are restricting entry of experienced and learned administrators, police officers, doctors and scientists into the profession!

Therefore, a review of 3 year LLB policy at top law schools is highly desirable. Further, a review of lateral entry to 5 year LLB by the BCI is also necessary as this might provide means for professionals and graduates to pursue quality legal education. Opening up evening classes on the lines of law program at University of Delhi can also be looked upon. Until then, it might be fair to say that our legal education system, which is supposed to imbibe the philosophies of justice, might be ignorantly or intentionally imparting injustice to law aspirants, and especially to a class of professionals including civil administrators, engineers, doctors, PHDs, CAs and CS. Excluding such a class of professionals will not only ruin the chances of taking up the level of legal profession in India, but might also ruin any chances of having domino effects on the standards of our judiciary.

Recent legal scholarship on India and South Asia

Several law journals are continuing to post their content online for free. Here are some recent issues of interest:

i) The NALSAR Law Review's latest issue features articles by student authors on issues relating to criminal law, constitutional law, arbitration law, commercial law, trade/foreign investment law, and international law. Most of these focus on Indian law, though some have a broader perspective. The issue contains an article titled 'Doctrine of Arbitrariness and Legislative Action' by fourth year law students at NALSAR, Deepika Sharma and Radhika Gupta, that analyses equality law under Article 14 of the Indian Constitution, and takes as its foil a 2008 article in the Indian Journal of Constitutional Law by Abhinav Chandrachud, who is a contributor to this blog. My recent research on the Indian Supreme Court's equality jurisprudence reminded me of the doctrinal fluidity - and ambiguity - that characterises this area of the law, and the exchange between these pieces brings this out quite sharply.

The issue also contains an interesting case comment on the decision in R.K. Anand v. Registrar Delhi High Court (which was briefly discussed in this previous blogpost). The website of the journal appears to be temporarily down, but links to individual articles can be found on the blog Something About the Law here.

ii) The print issue of the NUJS Law Review's last issue (dated Oct-Dec 2009) has been out for a while, but is still unavailable on the journal's website. Hopefully, the editors will get their act together, because the issue has some very good pieces, including perhaps the first detailed treatment of the Supreme Court's decision in Santosh Bariyar's case (which has been discussed extensively in previous blog posts).

iii) Lastly, the latest issue of the recently established Drexel Law Review focuses on 'Perspectives on Fundamental Rights in South Asia' . It contains articles on : the use of foreign decisions in constitutional cases in India, Sri Lanka and South Africa, including such use in the Naz Foundation case (by Shylashri Shankar); socio-economic rights in Nepal (by Elisabeth Wickeri); uterine prolapse and gender rights in Nepal; gender rights and federalism issues in Jammu and Kashmir (by Sehla Ashai) and political censorship in Indian cinematographic laws (by Arpan Banerjee). The issue features a preface by Anil Kalhan and a foreword by Marc Galanter. Links to the PDF full text versions of each of these articles are available here.

Entrance Examinations and Access to Legal Education

The Law Minister recently announced that all law schools and colleges would have a common entrance test (CET) to admit candidates. Given that there around 900 law schools and colleges throughout India, I'm not entirely sure if such a common entrance test is a feasible option...illustratively, how would one rank the various colleges for the purpose of student choice and allotment of seats etc?

Further, an exclusive entrance based test to filter candidates for admissions comes with its own set of problems.

CLAT And "Access" Issues

I reflect on the above ministerial announcement in this Indian Express piece here, where I review the problems with a common entrance examination (CLAT) already conducted by a group of law schools commonly referred to as the "National Law Schools". The main thrust of the piece is on access to legal education and I note that:

"In 2009, it was abruptly decided that “legal reasoning” would be dropped from the ambit of the CLAT paper. This jaw-dropping initiative by NALSAR, a Hyderabad-based law school, turns the concept of a legal entrance exam on its head. Wouldn’t “legal reasoning” be the most important test of legal aptitude and potential for study at a law school? Interestingly however, the paper that year had a separate section on “legal knowledge” testing candidates on their specific knowledge of court cases and legal doctrines. This section constituted 25 per cent of the total marks!

One wonders why law aspirants ought to come pre-loaded with the knowledge of the law. Shouldn’t they be tested instead for analytical abilities and legal aptitude, that is, a potential for the study of law?

By testing prior knowledge of the law, CLAT 2009 may have admitted students adept at cramming copious amounts of legal maxims in expensive coaching centres, but not necessarily those with demonstrable legal aptitude.

Most problematically perhaps, an exam that tests a candidate’s prior knowledge of the law ends up disadvantaging certain sections of society that may not have ready access to such sources of knowledge.

One is not suggesting that the standard of the exam be lowered to cater to such entrants, but merely that the nature of questions bear a rational nexus to one’s intrinsic potential for the study of law, without in any way discriminating against those from certain strata of society that are not “culturally” exposed to certain kinds of knowledge.

Illustratively, a student may be stumped by a question that assumes prior knowledge of “hole in one”, a golfing term likely to be most familiar to the urban elite.

Apart from a worrying lack of consistency and external review, the current CLAT process exacerbates existing inequities. For one, the cost of a CLAT application is Rs 2,500 for all students, with no concessions in favour of poor students. Given that the CLAT process is likely to have yielded more than Rs 4 crore last year, reducing these fees will not seriously bankrupt the CLAT collegium. Second, copies of past exams are only available at the law schools for a fee. In this day and age of open access, one wonders why such papers are not available for free download on the CLAT website.

Third, CLAT has no documented policy on access to disabled students, despite the promise of 3 per cent reservations at most law schools for this sector. And last, CLAT does not make any concession to those from vernacular-medium schools who may be blessed with exceptional legal aptitude but cannot compete on a level playing field with those educated in English-medium schools."

IDIA: Increasing Diversity by Increasing Access to Legal Education

I also mention very briefly a project that we've just initiated to redress some of the problems with lack of access to quality legal education:

"A current initiative of which I am part seeks to redress this “access” issue to some extent. At its very core, the IDIA (Increasing Diversity by Increasing Access to Legal Education) project seeks to find ways to reach out to hitherto under-represented groups, sensitise them to law as a career option and help those interested in acquiring admission to these law schools by imparting intensive CLAT training, including English training.

One hopes that the law ministry will give some serious consideration to this “access” issue, as they set about conceptualising an optimal model to screen potential students for the study of a socially transformative instrument called “law”.

For those interested, more details on the IDIA project can be found here. Although this project grew out of NUJS, it is a pan India project and we encourage maximal participation from all law students, lawyers, alumni of national law schools and other interested folks interested in this vision. Legally India covered this project in this article here.

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.