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Testing India’s Lawyers

Madhav Khosla
August 16, 2010

Later this year, the Bar Council of India will introduce an ambitious measure that modifies the qualifications required to practice law in India. Law graduates will now be required to take an examination after graduating to complete their enrollment to the bar. An examination that tests legal knowledge is a common prerequisite for enrollment in several countries, and the measure aims at creating a minimum standard amongst graduating law students. While the measure’s primary target is lawyer quality, it should also indirectly serve to improve standards in legal education.

Presently, standards outlined in the Advocates Act 1961 impose few conditions for bar enrollment in India. The primary qualification involves graduating from a recognized law school, and consequently places considerable reliance upon the standard of education imparted. The proposed All India Bar Examination recognizes the need for greater scrutiny of the quality of lawyers that are admitted to practice law through a universally applicable test that sets a certain threshold.

Since the measure sets a threshold based on outcomes, it promises to have an important if indirect impact on legal education. Legal education in India has been transformed with the establishment of the national law schools, a process that began with and was encouraged by the success of the National Law School in Bangalore. The quality of these institutions has been secured through a model that controls input. In other words, a rigorous competitive examination ensures that they invite an intellectual elite; a group of students who, as a function of being able to enter, are likely to exit as capable lawyers. Like in the case of the Indian Institutes of Technology (IITs), this input-based model places little emphasis on faculty quality or the institution’s independent research output, and places excessive emphasis on the students’ ability to educate and inspire one another.

Despite the success of the input-based model in institutions like the national law schools, the reality remains that the model fails as we move down the food chain. The focus on the potential problems associated with the national law schools has resulted in the unfortunate neglect of those institutions that produce the vast majority of India’s lawyers. The Bar Council of India’s attempt to introduce an All India Bar Examination is a timely reminder that reforming legal education in India should neither begin nor end with the national law schools. The measure shifts the conceptual focus from an input-based model to an output-based one; it emphasizes that students who graduate from law schools must possess a certain degree of legal knowledge. Consequently, the measure should, at least in principle, result in the long-term improvement of law schools throughout India, which will now be required to move towards imparting education that, at the very least, meets the threshold tested in the examination.

Expectedly, however, the proposed measure has invited a range of concerns; some of these are understandable but must ultimately be rejected. For instance, several final-year law students have claimed that the examination would impact their employment plans upon graduating, an impact which could be detrimental at this stage of their professional trajectory. This concern presumes however that the postponement of immediate plans by a few months would translate into those plans being defeated. Such a presumption is unlikely as the proposed measure is being initiated across the country, and will apply universally to all graduating lawyers. Another concern highlights the role of legal education, and regards law schools as being centers of a true liberal education that should do more than simply prepare students for the bar exam. This concern appeals to the right sentiment but misses the nature of the proposed measure: the exam will simply set minimum requirements at law schools; law schools have the freedom to move beyond merely educating their students to pass the bar examination. The proposed measure does not rob them of this freedom and, ideally, a diverse set of institutions should each seek to move beyond the measure in ways they individually deem fit.

There are two other issues, however, that admittedly merit greater attention. The first relates to the standard of the examination, and will require the resolution of several competing tensions. On the one hand, a low standard will make the examination an entirely symbolic exercise and render the measure meaningless. On the other hand, a high standard will display an insensitivity to the standard of education imparted in the vast majority of Indian law schools. The legal reform that the examination promises to initiate will take several years to effectuate, and a high standard could impose unrealistic conditions on schools and students during the interim period. Finally, there needs to be greater engagement with the areas of substantive and procedural law that the examination will assess, and the ways in which the proposed multiple-choice format can best meet desired outcomes. It is with some measure of delicacy and foresight then that the examination’s standard and specific format would have to be determined.

The second issue that requires further discussion is more technical in nature. Many have suggested that the Bar Council of India lacks the statutory authority under the Advocates Act 1961 to initiate the proposed measure. Reference has also been made to the Supreme Court’s decision in V. Sudeer v. Bar Council of India [(1999) 3 SCC 176] in which rules that mandated pre-enrollment training for lawyers were struck down as ultra vires the Council’s powers under the Advocates Act. The Bar Council has attempted to distinguish the present scenario from that in V. Sudeer by treating the examination as a post-enrollment measure rather than a pre-enrollment one. In its Resolution passed on April 30, 2010, the Council appealed to Section 49(1)(ah) of the Advocates Act under which it has the power to frame rules to determine the conditions to practice. While it is no doubt true that Section 49(1)(ah) regulates post-enrollment conditions, the use of this provision to govern the very right to practice itself hits at the central scheme of the Advocates Act which does envisage a scenario wherein a person is enrolled but does not have the right to practice.

As the examination nears, and a case challenging the measure is heard by the Indian Supreme Court, the ambiguity that presently surrounds the scope of Section 49(1)(ah) should hopefully be resolved. There is little doubt that the proposed measure cannot be the sole engine that drives the change required in India’s law schools or courtrooms. But considering the status quo, the examination, if conducted appropriately, could play an important role in the reformatory process. At the very least, this proposed measured appears to be asking the right questions.

Madhav Khosla is a Research Associate at the Centre for Policy Research, New Delhi.He can be reached at madhavkhosla@gmail.com


India in Transition (IiT) is published by the Center for the Advanced Study of India (CASI) of the University of Pennsylvania. All viewpoints, positions, and conclusions expressed in IiT are solely those of the author(s) and not specifically those of CASI.

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