perspectives Law

Lowering the Bar

How the Bar Council of India undermines legal education in India

By Alok prasanna Kumar | 1 May 2017

On 3 March, the Supreme Court stayed the operation of a circular issued in September by the Bar Council of India, or BCI, that imposed age limits on people enrolling for law degree programmes in the country. The circular barred anyone above the age of 20 from entering five-year programmes, and anyone above 30 from entering three-year programmes (with relaxations for students from communities entitled to reservations). The court’s decision came as a relief to those who had been affected by the rule, which has a tumultuous history.

The BCI, which is responsible for regulating both legal education and the legal profession in India, first introduced the rule in 2008. It was challenged in multiple courts in the years that followed. Confusingly, different courts reached varying conclusions about the legality of the rule: the Madras High Court upheld it as valid and constitutional, but the Bombay High Court and the Punjab and Haryana High Court struck it down as unconstitutional. Then, in September, the BCI issued a circular declaring that the rule was “restored.”

The situation has also long been muddled by the BCI’s failure to explain what an individual’s age has to do with their suitability for a law course. Its members and lawyers have made vague statements about improving “quality” and ensuring “commitment” to the profession, but the BCI has never made a cogent case for the rule.

The BCI’s now-thwarted effort raises larger questions about its role as a regulator. It has great power over legal education and the legal profession, but its performance as a regulator has been far from satisfactory, and its actions have often been detrimental to both. Meanwhile, attempts by the government to reform its role, have not made headway, making it likely that for the foreseeable future, the BCI will continue to impose poorly thought-out rules on an already stressed legal system.

The BCI draws its mandate from the Advocates Act of 1961. Some of the body’s responsibilities, as listed in the act, include laying down “standards of professional conduct and etiquette,” safeguarding “the rights, privileges and interests of advocates,” and specifying standards for legal education “in consultation with the universities in India imparting such education” to the state bar councils. It is also responsible for recognising universities “whose degree in law shall be a qualification for enrolment as an advocate.”

The legal-education system has stagnated because of the domination of the BCI by practising lawyers with little pedagogical experience. Apart from a few select institutions, colleges have largely adhered to an old-fashioned format of teachers delivering lectures, offering students insufficient practical training and conceptual grounding.

In addition to producing poorly equipped lawyers, this has also affected the academic output of Indian institutes. Academic training in the law can be applied to a wide field of work beyond litigation. Those with law degrees can undertake research, join think tanks, carry out international legal negotiations, and perform multiple other functions that may not require them to step into a court. These aspects of legal education have received little attention from the BCI. Its expertise in considering these concerns is limited considering that, currently, its Legal Education Committee, which is appointed by the council and which oversees legal education, has only two academics out of its ten members—only one of the two is a legal academic.

The lack of academic expertise in the body overseeing legal education is reflected in the still-nascent state of legal research in India. There is very little rigorous commentary or analysis of cases decided by courts, or empirical legal research—which deals with observable evidence, instead of just commentary and analysis—carried out in Indian universities. With a few notable exceptions, much of the path-breaking empirical research over the decades on Indian laws and legal institutions has been done by scholars from outside India. A prominent example is the work of George H Gadbois Jr, whose magisterial study, published in 2011, of every Supreme Court judge appointed between 1950 and 1989, remains unparalleled in its wealth of detail.

More pernicious problems have also arisen under the BCI’s watch, such as the mushrooming of law colleges with no permanent faculty and insufficient facilities, many of which run degree-for-cash rackets. Within legal circles, accounts of BCI members taking bribes to approve colleges have circulated for many years. One such case, in Ghaziabad, is currently being prosecuted by the Central Bureau of Investigation, and several of those involved, including BCI members, have already been convicted.

Further, the BCI was slow to implement a bar exam—the Law Commission of India recommended introducing one in 2002, in its 184th report, but the BCI did not do so until 2011. In fact, prior to 1961, when lawyers were divided into multiple classes, certain classes had to clear a bar exam before they could practice in high courts—but the exam was done away with entirely once the Advocates Act came into force to govern all bar councils. Many countries use bar exams to test the outcomes of legal education that students have received, specifically with respect to their readiness for litigation. The exam prevents unprepared graduates from practising law.

In India, the combination of a rotten legal-education system and the lack of a professional qualification exam allowed lawyers to enter the system unchecked for years. This has led to a drop in the quality of legal professionals, as well as considerable turbulence within the profession itself. Unable to attract enough work to be able to practise law and make a living, lawyers have regularly been involved in violent protests and clashes, as seen in Chennai in 2009, Bengaluru in 2012 and Rohtak in 2016, to cite a few examples. Some lawyers also run rackets that are effectively organised crime—one such story on the Egmore magistrate court in Chennai, on the website the News Minute, described how lawyers systematically extorted people who came to the court.

Strikes, often accompanied by violence, are par for the course. The 266th report of the Law Commission lists the number of working days lost to strikes between 2011 and 2016 in various districts across the country. Some of the numbers are staggering: out of a possible 1,325 working days in five years (or 265 days a year) in Uttar Pradesh courts, 791 days were lost to strikes in Muzaffarnagar, 689 in Faizabad, 594 in Sultanpur and 529 in Chandauli. The situation in Tamil Nadu was just as dire. Of 1,100 possible working days between 2011 and 2016, courts were shut for 687 days in Kancheepuram, 585 days in Kanyakumari, 577 days in Madurai, 461 days in Cuddalore and 408 days in Sivaganga.

The problems with the BCI’s role and functioning have not gone unnoticed. In 2011, the United Progressive Alliance sought to curb its powers by separating the regulation of legal education from the regulation of the legal profession. Its Higher Education Bill, 2011, proposed an “expert advisory group” to be presided over by the head of the BCI, which would make recommendations to the National Commission of Higher Education and Research, or NCHER, which falls under the ministry of human resource development. In this model, the BCI would play a role in legal education, though the NCHER would wield the final authority. The BCI, meanwhile, would continue to prescribe standards necessary to enter the legal profession, and to regulate it.

The BCI, however, resisted this move, submitting a detailed memorandum opposing it to the standing committee examining the bill. In 2014, the National Democratic Alliance government withdrew the bill.

Another opportunity to move towards reforming the BCI was missed in the Law Commission’s 266th report, which stated that legal education “should also prepare professionals equipped to meet the new challenges and dimensions of internationalisation where the nature and organization of law and legal practice are undergoing a paradigm shift.” It recognised the need for improving the country’s academic output, noting that “there is need for original and pathbreaking legal research to create new legal knowledge and ideas that will help meet these challenges in a manner responsive to the needs of the country and the ideals and goals of our Constitution.”

But the report makes only general recommendations towards these aims. About the Legal Education Committee, it suggests that as “mentioned in the 184th Report of the Law Commission, the composition of the Legal Education Committee may need to be changed to accommodate specialized and dedicated persons in the education sector while also ensuring that legal education remains relevant to rapid developments in legal practice.” It goes no further in suggesting changes to the regulations governing the Legal Education Committee, or specifying how the “specialised and dedicated persons in the education sector” should be appointed. It does not address the question of whether legal education should be taken out of the purview of the BCI at all, making for a disappointing end to a promising exercise.

It is vital that people involved in legal education and the legal profession continue to discuss the future of legal education in the country. The BCI’s flaws significantly hamper India’s progress in the field of legal research and contribute significantly to the persistent delays and inefficiencies of the legal system. These problems detract from India’s attempts to become a just society governed by the rule of law.

Alok Prasanna Kumar is an advocate based in Bengaluru. He has practised at the Supreme Court of India in the chambers of the former solicitor general, Mohan Parasaran, and has been a senior resident fellow at the Vidhi Centre for Legal Policy.

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