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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY
BAR EXAM Now Practising Law - No More A Cake Walk
Hemant Kumar, Advocate

In April, Gopal Subramanium, the Solicitor-General of India (SG) was elected as new Chairman of Bar Council of India (BCI). Amongst his top priorities in his new avatar lies refurbishing the image and repute of Indian Bar, the standard of which has been eroding since past few years. The idea regarding introduction of mandatory entrance test before entry into Bar or “Bar Exam” likely to be conducted from this year seems to be only a kickstart towards voyage of reforming the legal profession. Albeit, the announcement has spread worrying signals among law students, especially those appearing in the final year, who are all aspiring to get enrolled as fresh advocates in coming months. The BCI, which earlier maintained conducting such Exam in August 2010, recently informed the Supreme Court that the same would be possible only by December this year. Thus, one may conclude that Bar Exam is on the anvil particularly as the initiative also has backing of Union Law Ministry but nevertheless, the final word in this regard lies with the Apex Court.

Actually, the genesis of the move lies in a submission made before the Supreme Court by Mr. Subramaniam in December, 2009 in Bar Council of India v. Bonnie FOI Law College and Others wherein he asserted that Bar Exam shall be conducted in July-August 2010 by a specially constituted independent body consisting of experts of various disciplines of national stature. Though the above pending case deals with the affiliation and recognition of law colleges by the BCI, a three - member committee headed by Mr. Subramanium was set up by the Supreme Court to submit a report regarding the future of legal profession in the country. The Committee recommended, inter alia, that qualifying a Bar examination should be made a requirement prior to admission to the Bar by all State Bar Councils across the country. Meanwhile, a body named “Directorate of Legal Education” has also been operationalized under the aegis of BCI , perhaps for the purpose of conducting Bar Exam.

The idea of Bar Exams is not new for the country as the original 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, by an Amendment Act this provision was deleted and since then any law graduate from an institution/ university recognized by BCI can straightaway get enrolled as a practicing advocate. Though the BCI attempted to introduce an apprenticeship training course during late 90s whereby fresh law graduates were required to get themselves attached with a senior counsel before they could enrol as advocates, the Supreme Court in V Sudeer v. BCI (1999) struck it down on grounds of lack of competence of BCI.

The Apex Court held that under the prevailing statutory framework, the BCI does not have the authority to prescribe training after graduating in law before getting enrolled as for that purpose the Advocates Act needs to be amended suitably to confer such powers on BCI. Though the Court still went on to explicitly endorse the need for an apprenticeship and a Bar examination, but only after effecting appropriate statutory amendments in this regard.

In one of his interviews soon after assuming office, Mr. Subramanium asserted that as of today, the entrance test for becoming an advocate is necessary. According to him, it is important for the person entering the profession to have some basic skills, fundamental knowledge and the ability to cope with other challenges of modern era.

He is also supportive of the idea of imparting apprenticeship /internship to fresh law graduates so as to get them conversant with court procedure, to understand how to acquire confidence and to be able to know how to conduct oneself as an advocate.

On May 15, during an address in NLSIU, Bangalore Mr. Subramaniam hinted that the proposed structure of Bar Exam would be “Open Book Test” and the exam would involve a 60-40 split between knowledge-based and application-based questions and the pass marks would be pegged at around 40. He also asserted that the BCI was considering online exams for those studying abroad. All those holding law degrees but who had never formally enrolled with Bar Councils in previous years might also have to pass the Bar Exam in order to practice in courts.

The justretired Chief Justice of India (CJI), Justice KG Balakrishnan, in his speech made on National Consultation on Second Generation Reforms in Legal Education (May 2010) also supported the idea of Bar Examination. He said proposals for introducing vocational training after the completion of a law degree as well as a mandatory Bar Exam warrant an extensive debate. These proposals are in line with the practices followed in some Western countries and are intended to improve the quality of those who enter the legal profession.

Renowned legal academician and one who has been associated with legal education for over five decades, Professor (Dr) NR Madhava Menon, Founder- Director of National Law School University, Bangalore also supports the idea of Bar Exams. He opines that there should be compulsory apprenticeship, Bar Examination and screening on acceptable parameters before a law graduate, Indian or Foreign, can be licensed to practice in Indian courts. Those who want to practice as non-litigating lawyers should have a different role for enrolment and a separate entry exam, perhaps under a special professional body within the Bar Council.

The first and foremost attempt to reform the legal profession should be targeted towards revamping the present system of legal education in India. The only statute viz. Advocates’ Act, 1961 which deals and governs legal profession in India grants BCI the exclusive role and powers to promote legal education and to lay down minimum standards required for entry into Bar. Though this concept was relevant at the time of enactment of Act, as then the law colleges were supposed to produce law graduates only for entry into the Bar, but in present times when large chunk of fresh law graduates are joining the corporate world or other allied fields rather than becoming litigant or practicing lawyers, the time has come to absolve and relieve BCI of its command over the whole gamut of legal education.

The Bar Council, as the name itself suggests, should only deal with legal education concerned with entry into the Bar. Perhaps then the BCI would be able to exercise more effective control over the quality and standard of Indian Bar. The National Knowledge Commission (2007) has also made significant recommendations in this regard in its report on Legal Education. The incumbent UPA government is mulling setting up of National Commission for Higher Education and Research (NCHER) to deal with all aspects of impart of higher education including legal education. After the recent scandal in Medical Council of India (MCI) , debate has started over revamping regulatory bodies.

The new CJI, Justice SH Kapadia during Golden Jubilee celebrations of Bar Association of India (BAI) also stressed that legal education system should meet the needs of not only the Bar but also trade, commerce and industry, particularly in the context of growing internationalization of the legal profession.

No doubt, in recent years we have got 14- odd National Law Schools, which have got excellent infrastructure with state-of-theart technology, trained faculty as well as lucrative placement avenues for pass-outs, but what about the plight of other more than 900 law colleges in the country? The status of legal education as prevalent in these traditional institutions, no doubt, depicts a sorry state of affairs.

We can’t afford to have more and more law colleges across every nook and corner of the country without improving the quality of legal education, otherwise a large breed of traditional law graduates would be flooding the society who would be unable to meet the future challenges in current era of globalization and privatization. As also observed by Law Commission in its 184th Report on Legal Education (2002) that setting up of few star colleges is not enough as primarily they are the traditional law colleges which mostly send law graduates to the Bar.

Though the basic purpose of establishing National Law Schools was to improve the quality of Bar, subordinate judiciary and the academia, in practice most pass outs from these elite institutions are lured by corporate players. While it can’t be disputed that these talented students are needed in sectors of trade, commerce and industry, but at the same time, there should be also sizeable influx to the Bar. The percentage entering to the latter is almost negligible because in present times, men of talent seek the opportunities and challenges of service as well as financial reward sufficient to provide adequate degree of comfort and security.

Further, the present system of Three-year and Five-year law degree course should be rechristened to provide for last one year and two years, respectively, for learning and acquiring skills only in such subjects/areas in which the student wants to make a career. The proposal would result in availability of “Specialist Advocates” rather than “Generalist Advocates”. Also BCI / State Bar Councils ought to set up National and State Legal Academies on the pattern of Judicial Academies to provide periodic short term/ refresher courses for practicing advocates in order to acquaint and train them with latest developments in law.

At the outset, if the BCI is serious enough to introduce Bar Exams from this year, it should urge the Government to table a Bill incorporating appropriate amendments in the Advocates’ Act or in other words restoring the pre-1973 position when such a provision used to exist. The provision of mandatory preenrolment apprenticeship also ought to be prescribed before appearing in Bar Exams. The aforesaid Bill must be passed well before December this year when Bar Exam is scheduled. A draft of such Amendment Bill has already been proposed by Law Commission in its 184th Report on Legal Education and Professional Training (2002). Anything less than an amendment would be an open invitation for anyone to approach the Supreme Court praying striking down the provision of Bar Exam as was evident in case of BCI prescribing maximum age for grant of advocate license as 45 years (1995) as well as in introduction of mandatory apprenticeship training for fresh law graduates (1999). Hope the new BCI chief as well as Union Law Minister, both of whom are themselves seasoned legal practitioners, would ensure taming all possible legal hiccups before launching their agenda of legal reforms.

 

 
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