It has long been said that the Indian legal education system produces lawyers in large numbers, but the quality of majority of the lawyers is not as per the desired standards. In other words, our ‘system’ is producing lawyers who are capable of acquiring a degree in law, but are not necessarily capable of understanding and applying the law. The primary reason for this dismal state of affairs is often attributed to the lack of an entry point as well as a mechanism for continuous assessment of the members of the legal fraternity, which would assist in improving the standards of the legal profession.
In what is being termed as a move aimed at the “makeover” of the legal profession in India, Bar Council of India (BCI) has mandated that the law graduates passing out of the country’s 1,000- odd law colleges/schools from the academic year 2009-2010 onwards will have to clear the mandatory All India Bar Examination in order to practice law in the country. The rationale being that the examination would serve as a ‘benchmark test’ to ensure that those entering the legal profession would possess a basic level of skills and knowledge. The question is whether this step is in the right direction which would contribute towards improving the over-all quality of “lawyering” in India.
Currently, India has approx 900 colleges, 14 National Law Universities and 145 University departments/faculties imparting legal education. It is widely felt that the standard of legal education has failed to meet the present-day challenges of the legal profession. In several law colleges as well as law departments/faculties across the country, legal education has traditionally not been imparted professionally. With the mushrooming of law institutes/colleges, every year almost 60,000 law graduates join the profession, of which a high percentage does not possess the requisite knowledge and skill expected of a prospective lawyer. What is it that plagues these institutions? Some of the most common factors are lack of funds/resources, inadequate infrastructure, low ratio of qualified faculty members, near absence of research facilities, so on and so forth.
There are, however, other larger issues also which plague the legal profession in India. For one, there is a shortage of legal skills training programmes to meet the demands of the present-day dynamic world. Such programs go a long way in putting the academic and practical skills in a symbiotic relationship for budding legal professionals. It is a unique and innovative experience for law graduates looking to enter litigation practice or even opting for corporate jobs, retainer roles in firms/corporate organizations, as these programs focus on overall development of knowledge and its suitable implementation in work-based scenarios. Some specific skills which enhance the quality of a prospective lawyer typically include mock trial, interviewing skills, client negotiation and counseling sessions, legal drafting and writing, legal research (including electronic database and Internet) amongst others.
Additionally, the BCI has identified several other problem areas for the legal profession, viz.,
The above-mentioned issues indicate that the road ahead for the legal profession is daunting. With rapid social and economic changes taking place, lawyers are expected to evaluate their role not just within the legal profession, but also in the society at large. Furthermore, there is a need to examine the increasing friction between the traditional aspects of the practice of law on the one hand and the dictates of modern business practices on the other. The current trend of over-emphasis on economic considerations has led to lesser sensitivity to, as well as importance of, the age-old ethics and culture of the legal profession. In essence, the challenge facing the legal profession today is to adapt to the technological advancement; to be able to provide more effective and affordable access to legal aid and advice to ordinary citizens; and above all to adapt to the economic growth and the changing ‘mores’ of the society. The question is are we up to it?
The most obvious question being raised is as to what is the rationale behind the All India Bar Examination? The stated objective of the exam is to test an ‘advocate’s ability to practice the profession of law in India’. The exam will assess capabilities at a basic level, and is intended to set a ‘minimum standard for admission to the practice of law’ by addressing a lawyer’s analytical abilities and the basic knowledge of law. The BCI thus rationalises the exam as a bold and radical step towards enhancing the credibility of the legal profession in the country.
There has been much criticism and debate about the ‘standard’ of legal profession in India. Allegations ranging from incompetence and patronage to unethical practices have been leveled against the legal fraternity with an alarming regularity. The examination is said to be a step towards addressing some of these issues, by ensuring that the citizens have access to competent lawyers. Experts argue that the exam will prove to be a leveller, in the sense that all law graduates, irrespective of their backgrounds, will be allowed to practise law only upon clearing the examination.
There are, however, fears and apprehensions. For one, the student community feels that holding an “examination after examination” may not necessarily increase the standard of legal profession. More so, since the LLB courses, three-year as well as five-year courses, follow a syllabus approved by the BCI, appearing for one more exam will be equivalent to being tested for the same course twice. Infact the mode of examination adopted by the Institute of Chartered Accountants of India (ICAI), where a successful candidate also possesses some practical knowledge, finds favour with the students. The proposed plan of BCI mandating the law graduates to appear for an examination shortly after upon clearing law school/university examination, may end up as a yetanother ‘theoretical test’ and hence an unnecessary imposition on the law graduates. Some also argue that the exam exhibits BCI’s mistrust in the teaching methodology of law schools/colleges/universities in the country.
Secondly, whether the Bar exam will hold the same significance as it does in developed countries remains to be seen. For Instance, the Bar exam(s) conducted in the different states of USA are the defining factors of the legal education system in the country, and failure to clear the Bar exam leads to loss of placement opportunities. Will the All-India Bar Examination prove to be as effective? In this connection, it is suggested that it would be far more effective to implement ‘bridge courses’ like Pupilage in the UK, which is the final stage of training to become a Barrister and carried out after successful completion of the Bar Vocational Course, usually comprising one year of hands-on training in Chambers.
Thirdly, the timing of the first examination scheduled to be held in December 2010 has created somewhat of a panic amongst students as the law graduates passing out this year will be “unemployed” for a period of six months till they appear for the exam. It is a difficult situation from the perspective of students who have availed education loans to finance their LLB courses, since they will be unable to start work immediately after graduation.
Legal profession is dynamic in nature. Today, law touches upon and addresses myriad issues, viz., trade and commerce; governance; international relations, to name a few. The practice of law is getting increasingly global and universal, requiring familiarisation with other legal jurisdictions and practices as well. As a consequence, issues pertaining to ‘quality, structure and regulation’ of the legal profession arise. It is widely felt that ‘mediocrity’ thrives in the Indian legal profession and now the time has come to move towards ‘excellence’ and only then can we be assured of a constant “supply” of competent legal professionals.
The creation of a new breed of competent lawyers will depend on a variety of factors. Legal education curriculum development and revision is one aspect and the same will have to be guided by ushering in a change in the ‘aim and emphasis’ of legal education. Since innovation and experimentation are critical for academic and professional excellence, radical steps are required to galvanise the legal education. It is in this context that the ‘Second Generation Reforms in Legal Education’ have been developed by the Ministry of Law alongwith the Task Force on Legal Education constituted by the Ministry of HRD. These reforms aim to focus on “the three pillars of expansion, inclusion and excellence”, wherein expansion will enable an increasing number of students to have access to quality and affordable legal education; inclusion will enable candidates from deprived backgrounds to compete with the ‘cream’ of the society; and excellence will help in locating and encouraging the talented. The thrust as stated by the Prime Minister will be on “multi-disciplinarity in legal studies, flexible curricula, improved service conditions for law teachers, continuing education programmes for legal professionals, and placement-internship programmes for all students”.
The challenge facing the reformers of legal education today is two-fold. For one, promoting excellence, in a global context, in all the National Law Schools as well other law schools and faculties/departments of universities which are maintaining quality in legal education. Secondly, improving the lot of the mediocre institutions, which are in large numbers in the private sector, by improving their professionalism and academic excellence.
It is well-known that in several law colleges across the country, private as well as non-private, a large number of students are enrolled to study LLB in a batch for a particular academic year, which numbers are neither manageable nor feasible. Infact a sizeable ratio of students is part-time in the so called full-time colleges. In the absence of day-to-day preparation on the part of most students, the preparation is reserved for a short period preceding the examinations and that too by way of cramming and negligible application of mind. It is obvious that students of these institutions have no serious interest in law as a career. Most have opted for law either because they are unsuccessful in other streams and thus view the time spent at the law college as a short-term involvement till a “better” opportunity comes along, or because a law degree would be helpful for gathering other formal qualifications in future. In such a scenario, how do we ensure that the new entrants in the legal profession are competent and credible How do we send out a strong signal to those contemplating joining a law college/department as a ‘stop gap’ arrangement?
In addition to the proposed reforms in legal education system as discussed above, there is also a need for a viable “entry-point”. Most developed countries have a mandatory Bar exam for admission of law graduates to the Bar. For Instance, USA has separate Bar exams for each state, and in the UK there are separate exams for qualifying as a Solicitor, and as a Barrister. Consequently, there is merit in the argument advanced by BCI that we need to put in place a “minimum criteria” to enter the Bar in order to ensure certain minimum professional competence on the part of new entrants to the legal profession. The Bar Examination may not instantly ensure the standards of the Bar, but it is the first step towards reforming the ‘Indian legal profession’.
A competent lawyer has to be well-conversant with not just the law, but also its practical application, lest he finds himself in the “deep-end of the ocean” early on in the career. Interestingly, prior to the Advocates Act 1961 coming into force a law graduate had to undergo training by way of apprenticeship in the chambers of a lawyer for one year, and pass a separate Bar Examination conducted by the BCI. After successfully completing the apprenticeship and the Bar Examination, a lawyer could be enrolled for practicing. In 1973, this requirement was deleted from the Advocates Act. Although, the BCI re-introduced the mandatory one-year apprenticeship in 1996, it was for a brief period only as it was challenged in the Supreme Court, which ruled that the subject of apprenticeship was one of the items of the Advocates Act and had been done away with.
An amendment to the Advocates Act to re-introduce the mandatory one year long apprenticeship is next on the BCI’s wishlist. However, there is need for caution. An effective mechanism should be in place to ensure that students get a fair opportunity of undergoing their practical training with credible practicing lawyers. In this connection, BCI should use its influence and network with the legal community across the country so that India’s aspiring lawyers get a fair chance of training themselves.
Contrary to the popular perception that the proposed Bar Exam and the talk of reviving the apprenticeship scheme is a mere imitation of the rules in force in other countries, it is infact reintroduction of a requirement that already existed in the Advocates Act and was later removed. Clearly, the declining standards of the Bar have been a cause of concern not just to the government, but also the judiciary. The current requirement, wherein in order to pursue a legal career a law graduate must go through an ‘interview’ with the BCI, is more a matter of form and procedure rather than a filtering process. A change in the method of gaining admission to the Bar is thus long overdue. Unless we put in place an effective filtration process, ‘rasing the bar’ of the Indian Bar will remain a pipe dream.
Ranbir Singh Vice Chancellor, National Law University, Delhi
I am in agreement with the Bar Council of India and we had been thinking of holding such a test for a very long time. I think it is a very laudable step in the right direction.
Going by statistics, legal education institutions consist of 750 colleges out of which 95% are managed by private institutions. There are more than 150 law faculties and 15 law universities. The standards of legal education vary between these law universities and the colleges. Justice Frankfurt once said: “You can’t have good judges unless you have good lawyers. And we can’t have good lawyers unless we have good law schools”. All these three aspects are closely connected because ultimately the raw material has to come from the law colleges, faculties or the universities. Unfortunately in many law colleges and majority of the law faculties, legal education is not taken very seriously for various reasons like difficulties with finances, inadequate library facilities, absence of good research software or wifi facilities, shortage of full-time faculty members. The net result is that a lot of lawyers are being churned, but the quality of those lawyers is not good. So, we can conclude that we are producing a lot of unskilled lawyers who are able to earn a degree but it is not necessary that each of them knows the law. Hence, in this situation, it is very laudable to have examinations for the new entrants. I seriously believe that this would improve the quality of lawyering in this country.
Well, BCI’s main aim is to recommend the courses and lay down a curriculum for the law colleges. This examination is taking place because The Advocates Act 1961 empowers the BCI to monitor the legal education standards of the country through its legal education committee. Whether or not the BCI is the right body to hold the examination is very much a debatable issue. And I echo Mr. Madhava Menon’s viewpoint here, i.e., it should be left to the universities to monitor their own standards. I am also of the view that it would not be possible on the part of the BCI as a body, to monitor the standards of each and every university. The BCI has a responsibility, but a greater responsibility lies with the universities themselves. If the universities discharge their responsibility well, it would further help the BCI.
So let’s not leave it entirely to the BCI as it is not reasonably practical to expect them to inspect each and every college. As a matter of fact, there are colleges where students with zero attendance get to appear in the examinations. And let us not speak about the evening colleges, as we are all aware as to how many students go to attend the evening classes or be it the case of early morning classes at few universities in Rajasthan and Bihar.
I will not say that they are only focusing on making money, but I stand by the fact that they are certainly not the best as far as maintaining legal education standards are concerned. Maintaining the standards can be left to them provided they monitor their own standards. They can be disaffiliated if they fail do so. Now, discussions are being held to create a body which would inspect these colleges and it would be mainly dominated by senior academicians.And if these colleges do not maintain a particular standard, they will be closed down. To my mind, that would make some sense. But the difficulty lies with the fact that BCI grants temporary affiliation to the college initially, following which students take admission. And after the students take admission, it becomes difficult to close down the college even if it fails to maintain certain basic standard. This happens because of the fact that the moment the closing down is initiated, students knock on the doors of the Courts stating that their future is at stake. I am of the firm opinion that no college should be granted temporary affiliation. Affiliation should be granted only when the BCI is fully satisfied that the college has right standards, the right kind of library and faculty. Unfortunately, the standards are not improving and there is no point producing unemployable advocates as we would end up producing “Badvocates”.
I completely agree with that. There should be certain courses which are beyond education and regular courses as the same would enable the upcoming lawyers to upgrade their skills. One of my patented phrases goes like this: “we have to produce lawyers who are technically sound, professionally competent and socially relevant”.All these factors go into the making of a good lawyer and ultimately the mandate of BCI is to produce good lawyers who are also good human beings.
Becoming a lawyer is not an employment, it is a profession. One does not start earning money within a period of six months. If we have to maintain certain standards, we may have to forego certain privileges.
Practically speaking, it would not be possible to conduct examinations for the people who are already practising. But certainly we could make continuing legal education compulsory for them which would require them to undergo an updating programme akin to the one in medical profession, referred to as CME. In the legal profession, we can call it CLE (continuing legal education) and make it mandatory for every lawyer to undergo the CLE every five years.
I am a patriot but when it comes to the Indian mindset, we are basically ‘status quoists’. If you remember, when Rajiv Gandhi introduced computers, there was criticism all around that this would generate unemployment and people used to mock at him by calling him ‘computer boy’. But what IT has done to India is no secret.
After IT engineers, time has come when we need to produce the best of lawyers and for this we have to take hard decisions to maintain the best of standards. I think the BCI has taken a right decision to conduct the examination for the lawyers. We should opt for this change and welcome it as it is for the better. …As told to Avinash Mohapatra
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