Not long ago, the Bar Council of India found itself amidst a controversy regarding the qualifications required to practice law. Despite resistance from law students, it introduced an examination that law graduates would have to take in order to enroll at the bar. The measure, notwithstanding its uncertain legality as per a strict reading of the Advocates Act 1961, was an ambitious one: law schools have, by and large, focused on regulating the input of students, thereby ensuring quality; this change aimed at scrutinizing the output as well. If made to work well, it could potentially impact both the quality of lawyers and the quality of legal education. Now, only a few months later, another controversy has erupted involving the Bar Council, and threatens to radically impact legal education in India.
The controversy involves the Higher Education and Research Bill 2011, a law which aims to establish the National Commission for Higher Education and Research. The proposed Commission is one that “shall...take all such steps as it may think fit for the promotion and coordination of higher education and research” and “make regulations to determine, coordinate and specify standards of higher education and research.” As Sections 16(2) and 17(2) of the Bill confirm, the steps and regulations envisaged are wide-ranging and the Commission exercises broad powers. The need for such a single all-encompassing regulatory body in higher education is a large and complex question, and one that has invited some commentary. The Bar Council’s concern is, of course, not the general sentiment towards higher education regulation that animates the Bill but its intrusion into legal education.
Legal education is currently the responsibility of the Bar Council, and Section 7 of the Advocates Act empowers the body to “promote legal education” and regulate its standards. According to the Council, the Bill takes away this power and goes against the Advocates Act. The point here isn’t a legal one – Parliament can pass a law that runs against a previous law; the doctrine of implied repeal will apply – but one that attempts to bring to light a change in the regulatory regime. On June 11th and 12th, around 1.7 million lawyers went on strike in protest of the Bill and in a submission made to the Standing Committee of Parliament on Human Resource Development in May, the Bar Council launched a litany of charges, alleging that the Bill violated federalism, democracy, and professional autonomy.
Notwithstanding the hyperbolic statement, the Bar Council did rightly emphasize the success of the National Law School of India University, Bangalore, and the five-year B.A., LL.B. dual degree model. We now have fifteen such schools, and they threaten to continue to mushroom with remarkable energy. But we should recognize that the growth of law schools does not confirm the Bar Council’s effective regulation of legal education. In fact, the growth of such schools seems to be taking place without reflection upon either institutional considerations like faculty quality or other goals like the pedagogical purpose of legal education. There is a growing sense that such institutions are being pulled along entirely on the strength of their students, and even when basic changes in infrastructure and so forth take place, they do so as a result of student agitation. Furthermore, as we go lower down the food chain, it is clear that these rapidly-emerging institutions aren’t being pulled along at all.
Although a law degree has now become a rather prestigious enterprise, and lucrative job opportunities follow those from the leading law schools, there has been little discussion about the aims of legal education. Such law schools hoped to improve the quality of the bar. But, in reality, few embrace the life of a litigating lawyer, and not entirely without good reason. More seriously, perhaps, there has been little effort to create a culture of legal education which promotes genuine research output that can understand and shape legal change. The LL.B. course still does not have even a basic set of quality student textbooks in each area of law, let alone a respectable and authoritative law journal that can create a conversation between students, scholars, lawyers, and judges.
Does the current Bill provide a better solution? Although it identifies a problem, the solution hardly seems better. No regulatory option is a priori superior, and we are always limited by choice rather than imagination. Our current crisis of accountability is such that the proposed model seems even less likely to succeed. The Bar Council has raised an important and valid claim: the uninspiring track record of regulatory bodies like the one proposed in the Bill. Legal education at the level of a doctoral and masters degree (Ph.D. and LL.M.) lies within the domain of the state and not the Bar Council, and it is this area of legal education that remains most neglected. More importantly, though, other fields of education within the state’s exclusive domain only confirm this tragic reality.
Very few can honestly deny that the Bar Council has been a poor self-regulator. How many lawyers ever get into trouble for malpractice? One can also not deny that even India’s best schools suffer from serious and basic institutional challenges, from faculty to infrastructure. The Bar Council has not addressed these with the enthusiasm that shines through its submission to the Standing Committee. But it’s also true that concern and attention around these factors is growing, that the alumni of such institutions will, in time, play a larger role in their affairs, and that recent measures like the bar examination are good signs for the future. The present Bill will destroy this slow but moving train. It vests complete power in members nominated by the government, and will shower us with the same problems of state-regulation that have plagued Indian higher education for so long. Despite all our current problems, the solution does not lie with government appointees. The Bar Council has certainly built the buildings; it now needs to nurture the space for ideas within them.
Madhav Khosla is a Ph.D. candidate at Harvard University. His first book, The Indian Constitution (Oxford India Short Introductions) will be published in Fall 2012. Email: madhav.madhavkhosla@gmail.com.
India in Transition (IiT) is published by the Center for the Advanced Study of India (CASI) of the University of Pennsylvania and partially funded by the Nand and Jeet Khemka Foundation. All viewpoints, positions, and conclusions expressed in IiT are solely those of the author(s) and not specifically those of CASI and the Khemka Foundation.
© 2012 Center for the Advanced Study of India and the Trustees of the University of Pennsylvania. All rights reserved.