"I don't think students are against the exam, only against the waiting period," says solicitor general and Bar Council of India (BCI) chairman Gopal Subramanium, who is the architect of the proposed all India bar exam. The exam remains controversial because this year's final year students would not be able to practice law until 2011. Legally India asks the BCI chief some of the questions that have preoccupied students.
In a 30 June comment on an article on Legally India Subramanium addressed students directly and wrote: "The bar exam is a very major step to bring in a measure of equal respect for professionals amongst themselves and a level playing field that people who have passed the bar exam will be looked upon with added respect. The image of the profession needs to be upped because we have unwittingly lost commercial business to overseas lawyers for failure to modernise and be forward looking."
"I have no vested interests or personal gain from this position," he later tells Legally India in an interview. "I am trying to offer sincere leadership for change. I am glad that students can democratically participate in my thought processes. I can take their views into account but ultimately I take responsibility for the decision."
"More than anything else students must know that I am investing my energy for the future of legal education including the legal profession for the next 10-15 years. I only wish I could cry out and tell the students that earmarking their achievements in India is so necessary for them to regain their professional turf."
"I am also taking the law students on board and trying to engage with them. I'm in touch with them on the telephone. I said to them, you've got to hear my point of view too, why is it that I think the bar exam is important and why I think we have to go through with this."
|Edited excerpt of Subramanium's 30 June comment on Legally India story
"Dear friend, [...]
I am not in the least intending to harm anyone's professional career. On the contrary I need to tell you the truth about the exam and I have done so in a webcast which appears in the Bar Council website.[...]
"As far as the exam is concerned I want you to know that I consulted a wide range of academics, scholars and a lot many people to bring under one roof a qualified professional community. These colleges had different times for declaration of results.
"If I had chosen a month after 15th June, only select law school students would have been able to sit for the exam. The rest of the students would have been left out in the cold. Further the enrolment committees do not sit overnight since there is a great deal of paperwork involved. That took us to September. The course material had to be made available to the students and they are being printed in 8 different languages. We got special academics to look at and design the course material and the sample question papers. The exam is intended to test knowledge 60% and reasoning 40%.the exams are going to be held in proper fool proof conditions. Since we thought that every student must have at least 6 weeks with course material the date got pushed to December. The logistical supports are in place. In fact, I anticipate that you will enjoy the exam and recommend that we should have more exams.
"Well charity begins at home, I have a son like you who too has to clear the exam. I understand the anger but I want you to appreciate that we are behind schedule in lawyer reforms and I am like Randy Pausch with a limited time (my term is 2 years).
I sit the whole day reading mails and trying to see how all of us can come together and forge a mutual understanding."
Warm regards and best wishes to each one of you, Gopal
Q: Why not hold the exam in early 2011?"There will always be a gap of one or two months given that enrolment is a bit of a tedious process. This year is a bit difficult," admits Subramanium.
"The short question is, should you allow [graduating law students] to practice without the exam? If you are calling this a certificate of licence, no."
But he acknowledges that this can cause some hardships for students this year and that concessions could be made. "I understand that," he says, "but the best I could consider is it is mandatory to clear [the exam] with permission to practice until then."
"I think the resistance would go if [graduates were] allowed to practice, subject to clearing the exam."
"The BCI is holding general discussions on this," he says, but adds: "It's just an idea on the outer fringe of my mind – I don't think it would be right. It would be very difficult really, it will be awkward doing it for just for one year – you'd have to do it next year as well. There are pluses and minuses."
"From next year onwards the delay will be much less," he predicts.
Subramanium told Legally India that the exam would not preclude lawyers working under seniors and that the only question is that 2010 graduates who have not cleared the exam can not act as a lawyer by signing opinions or appearing before court.
But postponing the first exam until 2011 is not an option, according to Subramanium. "That would be disastrous - that would just now mean it never happens."
Q: Do you fear vested interests preventing the exam from happening at all?"Absolutely true – there are too many vested interests," says Subramanium, who started his two-year term as chairman of the BCI only in April 2010. "It is quite complex – we are not dealing with frontal attacks on reform – we are making latent attacks on reforms."
"It is disappointing to see that many academics against it."
Some academics are against a body like the BCI, which has not had the best track record in the field, having too much power over legal education?
"It's a two-way argument – I agree the [BCI] track record [on education] is not very good," concedes Subramanium, "but that is no ground not to change the track record and I don't see academic track records as very good either."
"The only way change will take place is with somebody willing to take the correct choices - in collaboration with academics of course; we are not at war with each other."
"But many academics have willingly participated in all these spurious law colleges."
Q: Have the writ petitions against the bar exam made a difference?"I am clear in my mind that it's legal and constitutional," says Subramanium. "We are planning to also get these petitions transferred to the Supreme Court because [the petitions are all] dealing with one aspect."
Q: How to enforce graduates' and lawyers' compliance with a practice ban until exam-clearance?"No bar council anywhere in the world has got a police force – it is internal regulation substantially – but it is the ability of the regulator to persuade internal regulation where the success of the institution will count," says the BCI chairman.
"For that purpose the regulator has to be seen as attempting to regulate."
Q: Can you guarantee that law firms not disadvantage juniors for six months until they passed the bar exam?And Subramanium's 30 June comment on Legally India, he added: "By the way no firm will revoke its offer. If there is a problem contact me."
Later he tells Legally India: "We are discussing that with SILF [the Society of Indian Law Firms] and we are sorting it out – I don't think anybody needs to have that fear."
Q: What about advocates disadvantaging juniors or paying them less?"First of all, I don't think we have very clear guidelines about seniors paying juniors – and this has been a subject of discussions."
"Time has come to give more discussions of this subject," he says. "It needs to be looked at."
"We looked at many, many parties - traditional parties, IIMs and IITs but they didn't have the expertise for a law exam – I had the choice between some foreign agency which I wouldn't have liked very much and then decided to look at people who are very interested in change themselves and decided to vote. They [Rainmaker] got the vote."
"They are providing logistical support, the responsibilities are entirely that of the Bar Council," he adds. "Everything is done under our supervision and our correction."
Q: There have been objections from students that the exam was expensive and a licence for Rainmaker to make money"I don't thinks so, it's a completely unfair statement to make against Rainmaker, just because they are different," objects Subramanium. "I don’t think the way Rainmaker has worked with me in the last two months, or at least a month, day-in-day-out justifies that.
"I think they have every right actually to run away from me, I don't think I've left them in peace at all. I've been very disciplined and very, very demanding - unrealistically demanding – and they've coped with it. I wouldn't expect anyone else to have been able to."
Subramanium also adds that the BCI had attempted to keep the cost of the exam low at Rs 1,300 per student. "Let me put it this way – we tried to bring it down as much as possible – it's not very expensive for law students."
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