PRO ACTIVE & IMAGINATIVE ROLE OF BAR COUNCIL IN LEGAL EDUCATION

Presentationby

Maj Gen (Prof) Nilendra KumarDirector

Amity Law School, Noidaand

Director GeneralAmity Directorate on Research and

Innovation in Law & Allied Areas

This presentation is concerned with the role of Bar Council in Legal Education.

This would call for a comment on the standard of legal education in India now?

Before we start that it would be interesting to find out the state of legal education about a century of fifty years back.

As commented by five great Indians all of whom would continue to be remembered for their contribution to India.

1. Sir Asutosh Mookerjee.2. M.K. Gandhi3. M.C. Chagla4. Nani Palkhivala5. Fali S. Nariman

Sir Asutosh Mookerjee was associated with Calcutta University since 1839.

His views on legal education as it then existed.

“The branch of our educational system which stands in need of the most urgent and radical reforms is that concerned with the teaching of law for our Degree Examinations….As regards the efficiency of these colleges, only one opinion is possible, they are nowhere near the marks and the arrangement made can, at the best, be regarded

as nominal compliance with the Regulations …..Proper continuity of work is hardly possible under such circumstances. The majority of the students have no books, they do not intend to listen to the lectures…..Their only anxiety is to get credit for attendance at a certain number of lectures as required by the University Regulations. Not one of the law classes can consequently pretend to make any

approach to efficiency. No college has got a good law library or a sufficient number of good teachers. No effort is made to enforce discipline among the students. Law students suffered from lack of aim and ideal.”

Mahatma Gandhi had passed his examinations and was called to the bar on the 10th of June, 1891.

Excerpts from “An Autobiography

I knew that Bar examinations did not require much study…The curriculum of study was easy…Everyone knew that the examinations had practically no value….There were regular text book prescribed…, but scarcely any one read them….I had read the laws, but not learnt how to practice law.

M.C. Chagla in ‘Roses in December’

I vividly remember the first day I entered the High Court Bar Library and Common Room…I wondered which solicitor would be so foolish as to put a brief in my hands.

NANI PALKHIVALA

Nani was a bright student at the law college. However, it would be interesting to read his comments on ‘delay in disposal’, a malady for which one of the underlying cause is poor quality of legal education.

…2…

: 2 :

“Legal redress” is time consuming enough to make infinity intelligible. A law suit once started in India is nearest thing to eternal life ever seen on this earth.”

Nani in “Forty Three Years of Independence”

Fali S. Nariman had joined the Government Law College in 1948. His impressions of law studies as recorded in his book ‘Before Memory Fades.’

One did not learn too much in law colleges those days.

It may perhaps be remarked that when they all studied law, the Advocates Act, 1961 was not there. Consequently the Bar Council of India was not there as a regulator and cannot be apportioned blame.

However, for over five decades now, the BCI has been at the driving seat.

This presentation is with regard to the role of Bar Council in maintaining standards of legal education.

DISPENSATION OF LEGAL EDUCATION

Statutory Base Advocates Act, 1961

(25 of 1961)

Statement of Objects and Reasonsenumerated five main features of the Act

‘Legal education’ does not figure in any of the five main features mentioned.

The text merely states that it had taken into account the recommendations of the All India Bar Committee, 1953 and the Law Commission of India relating to legal education.

The Act lists out the role of the BCI and the Bar Councils in the sphere of legal education.

Functions of Bar Council of IndiaSection 7

h) To promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils.

i) To recognise Universities whose degree in law shall be a qualification for enrollment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf.

ic) To recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this Act.

COMMENTS

Despite the law makers having used the words ‘legal education’, the same is only viewed as pertaining to law degree.

But does the term ‘legal education’ only relates to law degree?

Bar Council has no role in teaching of LLM, Ph.D and post doctoral, or in certificate or diploma programmes.

Functions of State Bar CouncilSection 6

ag)To visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of Section 7.

What about the outcome and follow up of the visits and inspections?

LEGAL EDUCATION COMMITTEE

A standing committee of the BCI consisting of ten members, of whom five shall be persons elected by the Council from amongst its members and five shall be persons co-opted by the Council who are not members thereof.

Sec 10 (2)(6)

As such, academics and senior judges have been associated with legal education. However, has this mechanism succeeded?

The statutory function of the Bar Council are therefore :

1. To promote legal education2. To lay down its standards3. To recognise Universities and to inspect

them.

Do these functions imply that the role of Bar Councils would also extend to maintaining standards.

Bar Council of India is viewed as a regulator of legal education.

REGULATOR

A regulatory agency is a governmental body that is created by a legislature to implement and enforce specific laws.

It would be interesting to read the impression of apex court in a neighbouring country on the role of Bar Council in legal education.

“The quality of the Bar and the assistance it renders to the courts to a great extent depends on the legal education. The Bar on general and the – Bar Council in particular therefore have awesome responsibility to improve the quality of legal education because it is the possession of a degree of law which is a sufficient academic qualification for entering the Bar.”

Pakistan Bar Council V The Federal Govt.;2006 SCC online Pak SC 8

UNDISPUTED AUTHORITY ABOUT ROLE OF BCI

The BCI has been given the power and jurisdiction to supervise the institutions which impart training to the future lawyers.

Krishna Kumar G V UOI; AIR 1999 Ker 303

A Directorate of Legal Education is to be set up and function under the Bar Council of India as envisaged in Chapter IV of the Rules of Legal Education, 2008.

The Directorate has been active at times but mostly headless or inert.

The operation of such a Directorate could perhaps be more transparent.

Bar Council of India Rules Part IV presently govern the legal education dispensation.

The Bar Council of India Training Rules, 1995 as amended upto 19 July 1998 have almost become defunct.

The vision, action plan and mandate of the BCI is now manifest from two documents.

The vision, action plan and mandate of the BCI is now manifest from two documents.

Rules of Legal Education 2008

The 51 page document runs into six chapter and has 13 schedules.

The rules are elaborate and concise.

Bar Council of IndiaInspection Manual

2010

Detailed guidelines indicating the procedure of inspection, benchmark standards for infrastructure as well as sumary of the scheme of programme, norms of administrative staff, faculty requirements and hostel accommodation etc.

Syllabus of law degree programme envisages normal and honour streams.

52 papers or subjects have been indicated for integrated degree (honours programme)

OMISSIONS

Interpretation of statutes, legal method and land laws are not included in the compulsory or other papers.

Ironically, Legal Method has been shown as a course for second semester in one of the examples, cited on Page 29 of BCI Rules Part IV.

Specific areas where Bar Councils could play a meaningful role.

Current syllabus has a bias towards urban and metro areas.Presence Absence

Company Law Laws concerningPublic Interest WaterLaw ForestTaxation MinesLabour Law Land and its managementIndustrial Law

A number of courses have little relevance for the law professionals who practice in district or mofussil courts.

SPECIALIZATION GROUPS

The syllabus prescribes seven groups

1. Constitutional Law Group2. Business Law Group3. International Trade Law4. Crime & Criminology5. International Law6. Law & Agriculture7. Intellectual Property Law

On most of the courses indicated against above specialization groups, there is a complete void of standard text books or study material.

Bar Council may wish to play a more active role in getting the books prepared on various courses prescribed by it under specialization baskets.

To illustrate, there were hardly any books to help the students on Law, Poverty and Development.

Till, the presenter came up with his book.

There is a need to expand the list of subjects so as to introduce e.g. energy laws, IT laws, consumer protection or environmental laws etc.

CLINICAL LEGAL EDUCATION

There was hardly any literature to guide the students on how to go about internship, mock trials, legal aid clinics and moots etc.

Till the publication of book

The Bar Council of India Training Rules, 1995 as amended upto 19 July 1998 were struck down by the Supreme Court in V Sudeer V BCI; AIR 1999 SC 1167. Sixteen years have since elapsed.

Perhaps, the Rules need to be recast.

INTERNSHIP

This is a component of paper No. 24 falling under compulsory clinical courses (Paper No. 24). However, the contents could be made more elaborate.

Internship

The BCI circular dated 11 September 2014 calls for internship only during winter and summer vacations. Such a policy calls for a review because a number of courts and senior advocates may not be functional during the summer break.

The Rules expect minimum 20 weeks of internship during the entire period of legal studies. This is perhaps not adequate to acquire practical exposure.

Hence, there is a case to revisit the policy

Seek help from greater number of law practitioners.

OTHER SUGGESTIONS

Raise funds to provide sponsorship to law colleges.

No. 1Senior advocates may be requested to regularly contribute one percent of their taxable income to the cause of legal education.

No. 2

Prepare and circulate a list of advocates available to devote time to law colleges.

No. 3

They may devote time to sit as judges for moots and debates.

No. 4

BCI may wish to suggest new skills, latest case laws and issues under legal debate.

No. 5

Point out diverse modes of academic delivery suited for different courses.

They may be based on lecture mode or role model, mock exercises, seminar, group exercises etc.

No. 6

Legal aid clinics can be successfully held under the presence and guidance of experienced law practitioners.

No. 7Advocates may be called upon to accept invitation as visiting or adjunct faculty.

Also as guest speakers.

No. 8Bar Council may seek help from law colleges to organise continuing legal education.

Also for teachers training, advanced specialized professional courses, research on professional legal education and standardization and legal research etc.

VENTURE OUT IN NEW AREAS

No. 9

1. Education of para legals is one area which is yet to be introduced.

2. Training of notary public and deed writers.

In order to discharge its statutory obligation to promote legal education and lay down its standards, the Bar Council must regularly and systematically interact with all stakeholders.

DIFFERENT STAKEHOLDERS1. Bar 2. Bench3. Students4. Alumni5. Law college management6. Law offices & firms7. UGC8. Litigantsand many others like law makers and enforcers

Such interactions would help to ascertain what are the expectations and suggestions concerning delivery of legal education.

CONCLUSION

Purpose of Education

Education has been called the technique of transmitting civilization. In order that it may transmit civilization; it has to perform two major functions; it must enlighten the understanding and it must enrich the character.