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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY
Februrary 2012

REGULATION OF LEGAL EDUCATION

Bar Council of India
Vs
National Commission for Higher Education and Research

Hemant Kumar, Advocate
hemantkumar.mallb@gmail.com
After expressing its stiff opposition and strong resentment last year over draft Legal Practitioners legislation which envisaged setting up of a Legal Services Board coupled with an Ombudsman-like institution for advocates, the Bar Panels across the country are now up in arms against the Union HRD Ministry’s Higher Education Bill, 2011 which tends to delegate the crucial task of regulating legal education to a proposed National Commission from the exclusive domain of BCI.

On December 28, 2011 the Union Minister for Human Resource Development, Kapil Sibal introduced the much-awaited Higher Education and Research Bill, 2011 in the Rajya Sabha which , inter alia , provides for setting up of a National Commission for Higher Education and Research (NCHER) for determination, co-ordination and maintenance of standards and promotion of higher education and research, including university education, vocational, technical and professional education. This implies that henceforth the regulation of Legal Education in the country is supposed to come under the purview of NCHER, thus absolving and relieving the Bar Council of India (BCI) of the said task.

The BCI , the apex statutory body created by the Parliament under provisions of Advocates' Act, 1961 for regulating and representing the Indian Bar is so highly resentful by this proposed idea that it appears all set to be in collusion course with the Union Government so as to oppose the move tooth and nail. It even gave a call for nationwide protest day (not a strike which has been deprecated by the Supreme Court) on January 20 this year. In a strongly worded press release dated January 9, it lambasted the Bill terming its proposals as draconian and highly condemnable. The BCI strongly asserts that it has served the cause of legal education and the profession with honour and dignity over the last fifty years without seeking any financial aid or help from anyone else and it desires to move ahead in the same spirit to meet the new challenges of the times.

The apprehension as expressed by the BCI that the new legislation would curb the Independence of Bar as the Government wants to have a direct control over the lawyers, legal profession and legal education, is wholly unfounded. The proposed Bill nowhere undermines the authority of the BCI in any form. On the contrary, it includes the Chairman of the BCI in its General Council to be constituted under the provisions of Clause 26 of the above Bill along with a Vice-Chancellor of a National Law School/University. Further, the proposed Bill nowhere tends to amend or supersede any provision of the Advocates' Act. Moreover, the introduced Bill is yet to be scrutinized by a Parliamentary Committee which might incorporate suitable safeguards so as to address concerns of the BCI and other stakeholders.

There is no denying the fact that the first and the foremost initiative to reform the prevalent state of legal profession of our country, should be targeted towards revamping the current system of legal education in India. The only statute viz . the Advocates' Act, 1961 which deals and governs the legal profession in India grants BCI the exclusive role and powers to promote legal education and to lay down standards of such education in consultation with the Universities imparting such education and State Bar Councils.

Though this concept was relevant at the time of enactment of the Act fifty years back, as then the law colleges were supposed to produce law graduates only for entry into the Bar, in present times when a large chunk of fresh law graduates are joining the corporate world or other allied fields rather than becoming litigant or practising lawyers, hasn't the time come to absolve and relieve BCI of its command over the entire gamut of legal education ?

The Bar Council, as its name itself suggests, should only deal with legal education concerned with entry into the Bar. Even section 7(1)(i) stipulates that BCI should recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect the same either itself or through State Bar Councils. The mechanism of setting a regulatory framework to deal with respect to non-litigant advocates as distinct from BCI is the need of the hour. Perhaps then the BCI would be able to exercise more effective control over the quality and standard of Indian Bar which over the years has been eroding. The National Knowledge Commission
had also made significant recommendations in this regard in its report on Legal Education about five years back but the same are yet to see light of the day for the reasons best known to our law-makers.

Then comes the question of improving the standard of legal education as imparted in our law colleges and institutions. It may be recalled that in May, 2010 while addressing National Consultation for Second Generation Reforms in Legal Education, Prime Minister Manmohan Singh had described state of legal education in India as a " sea of institutionalized mediocrity with a few islands of excellence ". The reforms he suggested included multi-disciplinarity in legal studies, flexible curricula, continued legal education for practicing advocates etc. The legal education system of our country indeed merits re-orientation so as to face imminent challenges in present era of globalization and liberalization.

No doubt, in the last two and a half decades we have got 15-odd elite National Law Schools/Universities, which have got excellent infrastructure with state-of-the-art technology, trained faculty as well as lucrative placement avenues for students graduating out of these institutions, but what about the plight of other University Law Faculties and 900-odd law colleges in the country. The status of legal education as prevalent in latter institutions no doubt depicts a sorry state of affairs.

Though the basic purpose of establishing the 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 cannot be disputed that these talented law graduates are desperately required in new emerging legal avenues, sectors of trade, commerce and industry, but at the same time, there should be also a sizeable influx to the Bar. The percentage entering to the latter is declining considerably 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. The senior counsels in High Courts and Supreme Court need to be more generous in attracting them with fairly good packages in order to ensure their adequate entry into the Bar.

The concept of Bar Exams has been introduced by the BCI by way of a resolution and incorporating the same in the Bar Council of India Rules. It is imperative that the Bar Exam is accorded statutory sanction by incorporating its prescription in the Advocates' Act as also recommended by the Law Commission of India in its 184 th report (2002). Those unable to qualify Bar Exams should be allowed to continue as in-house counsels. Also the BCI 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.

Last, but not the least, the time has come that the archaic Advocates' Act which is over fifty years old is thoroughly reviewed, re-drafted and re-enacted in terms of contemporary needs and challenges which the present day legal profession is facing or is bound to face in near future. But in this regard it must be ensured that rather than enacting or enforcing a relevant statute as prevalent in any other country we rather ought to have a new legislation consistent and practicable with conditions existing in our country otherwise it would face the same stiff opposition as was evident in respect of Legal Practitioners legislation of 2010 which was emulated from the UK.

Finally, it can be concluded that exhaustive rejuvenation of prevalent state of legal education in India both in terms of scope and quality brook no delay. Any possible confrontation between the BCI and the Union HRD Ministry over the issue of controlling regulation of legal education is wholly unwarranted and it ought to be avoided in the larger interest of our country. The Union Government on its part ought to fully assure and address concern(s) expressed by the legal fraternity that by creation of an apex regulatory body viz. NCHER, the powers conferred upon the BCI as enshrined in the Advocates' Act would not be encroached upon or usurped in any way. If still certain grey areas persist, it would be wise if a broad consensus with the Bar is reached and its active and whole-hearted support is solicited before kick-starting new generation reforms in the area of legal education.

Speaking to LAWYERS UPDATE, Zafar Ahmed Khan, Vice Chairman, Bar Council of India and N.A. Naqvi, Chairman, Bar Council of Rajasthan said that Section 60 read with the first proviso to Section 83 (2) of the Draft HER Bill, misleadingly indicate that the Bill may interfere with the legitimate domain of the universities, the BCI and the State Bar Councils, which has been envisaged under Sections 7 (1) (h) and (i) of the Advocates' Act.

K.C. Kaushik, Hony Secretary, Supreme Court Bar Association added that to clear the imbroglio the BCI has requested the HRD Minister Kapil Sibal, to make the following amendments in the proposed Draft Bill:-

  1. In sub-section 2 of section 83, the 'Advocates' Act, 1961 ' be deleted.
  2. In the proviso of section 83 of sub-section 2, instead of words 'concerning practice in the court', the words 'it shall be all aspects of profession of law' shall be substituted.
  3. First Proviso of section 83 (1) is to be deleted.
  4. The independent sub-section 8 is to be added to section 83.
    ( Nothing in this Act shall have effect on the powers of the Bar Council of India as enumerated in section 7 (h) and (i) of the Advocates' Act, 1961. However, the National Commission for Higher Education may have the power to advise the Bar Council of India, and the BCI may bear in mind the advise rendered while exercising its power in framing its Rules and Regulations under the Advocates' Act, 1961.)
  5. With regard to Schedule-I, ' Bar Council of India ' is to be deleted.
  6. In section 60, after the words ' other than Companies Act, 1956 ' the words ' Advocates Act, 1961 ' be added.

K.C. Kaushik also pointed out that the proposed legislation would be lowering the status of the legal profession and that the Government through this move is stealthily trying to invite foreign firms to settle down in India, thereby depriving the legal profession in India of its legitimate claims. It will also impinge on the autonomy of universities and will lead to bureaucratization.

Views expressed at the Congregation at New Delhi on HER Bill, 2011

Inputs by Hasan Khurshid

 
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