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Exclusive: State bar councils take over, want regional bar exams: Legal reform’s swansong?

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State bar councils are planning to hold regional bar exams for each state, as the holding of the all India bar exam has turned into a political circus between the Bar Council of India (BCI), its chairman and the state bar councils. Meanwhile, the BCI will meet in Chennai this weekend (20 November), probably without BCI chairman Gopal Subramanium.

The current proposal by BCI members, which is understood to be backed by state bar councils, will see elected chairmen from five state bar councils and five BCI members form a new committee to coordinate and conduct the bar exam.

After the first March 2011 exam, BCI members have decided that in future each state bar council would hold its own regional bar exam for advocates enrolled in its state, according to authoritative sources.

Next week’s Chennai meeting will be crunch-time to figure out the practicalities of the eleventh-hour and left-field decision to delay the bar exam to 6 March 2011. However, most of thes have clearly not yet been considered by the BCI or the state councils.

And according to sources close to the BCI, Subramanium may not attend that Chennai meeting at all – for one, the solicitor general is currently elbow-deep in dealing with Raja's 2G scandal and secondly, perhaps wisely, he may have realised how politicised and how much of a power struggle the bar exam has now become.

Absence makes the heart grow braver

Last Sunday (14 November), the BCI held that already infamous council meeting at which it deferred the exam to 2011. The primary reason given for postponement was the fact that the BCI and legal industry services provider Rainmaker had failed to deliver exam study materials to a large number of students.

However, unusually Subramanium was only attended the first half of the BCI meeting on Saturday and missed Sunday’s resolution, after falling ill.

Until that date and even since before his appointment as BCI chairman in early 2010, the solicitor general had been a steady feature at BCI meets, as well as a commanding presence.

In fact, his presence along was one of the main drivers in getting the exam this far in the face of state bar council protests, lawyer strikes and more.

Subramanium of course, was well aware of the assault reforms would face from all sides, as he told Legally India in an interview in July, adding that postponing the exam would be "disastrous" as "vested interests" would derail it.

Besieged

Similarly, the BCI itself was long under pressure from all sides: Kapil Sibal's Human Resources Ministry has been seeking to absorb legal education; the Union president described legal education in India as a "sea of mediocrity" and the public and general advocate population has long clamoured about the inefficacy of the body.

Appointing Subramanium as an ex officio member was then perceived as a lifeline to the BCI, which faced getting its livelihood restricted from all sides (the majority of the BCI's relatively modest-sized coffers being filled by legal education and accrediting law colleges, receiving no money from the state).

Unexpectedly, however, the solicitor general may have been far more zealous and ambitious than most BCI members suspected. One word on the street and bar suggests that there may even have been an informal agreement between Subramanium and the new Chief Justice of India SH Kapadia, who has himself embarked on a crusade to fix the judiciary, leaving Subramanium to clean up the bar.

However, best laid plans now seem to remain on the floor and all it took was one BCI meeting without the chairman present for the members to stage a minor coup d'état, and as one bar council member even whispered, a vote of no confidence in the chairman was raised at last weekend’s meeting, although ultimately abandoned.

It is understood that Subramanium will remain BCI chairman for his term, although the damage done by the power struggles over legal reforms could be too much to repair.

Playing at politics

The decision by the BCI to postpone the exam to March 6, as first reported by Legally India, may have been welcome to law students but it was taken without much foresight or planning. And perhaps state bar councils may have had a greater eye on garnering student votes at the next bar council election and to avoid being pushed into irrelevance by the central regulator.

Undoubtedly a centralised bar exam would very much have taken away the monopoly on admission the state bar councils have enjoyed to date, which the state bar councils are now clearly attempting wresting back.

The role of Rainmaker in future exams was also strongly questioned by the BCI at the meeting, with some even leaning towards having no private sector involvement at all in future exams, no doubt part-prompted by the complete lack of transparency so far in the appointment of the company and the lack of results, for which the company can fairly be blamed as much as the BCI itself.

Seeking guidance

As such and as it is, law students have been thrown into a state of utter confusion following the lack of direction.

Some have called for united action to defy the BCI and practice irrespective of what will be decided. After waiting more than six months post graduation, the frustration is understandable.

Then again, this is nothing new. "At the district level no one has given a damn about exams," one graduate tells Legally India. "They are having a jolly good time", practising, filing vakalatnamas and representing as though the bar exam never even reared its head.

"It is a very difficult situation," he acknowledges.

Right now, there is no consensus even within the council. BCI member and Delhi Bar Council member Rajinder Singh Rana told Legally India yesterday that 2010 graduates would not be permitted to practice until they passed the exam, while another state bar council BCI member told a reliable source that they would be.

Practical avenues for practice

Several decisions about the immediate will be available to the BCI members this weekend in Chennai, although none are perfect.

  1. Hold the exam on 6 March, with graduates not being able to practice until they pass;
  2. Hold the exam on 6 March, allowing graduates to practice until then subject to clearing the test;
  3. Allow graduates to practice until the exam, adding a grace period of re-takes so existing legal work-flows do not get disrupted;
  4. Cancel the exam for the 2010 batch;
  5. Kill the exam forever.

The last two options of cancelling for this batch or even forever would be popular with many students (and therefore also with certain state bar councils hungry for the young vote) although this could be a blow that Indian legal reform may never recover from.

In addition, unravelling and repaying the Rs 1,300 exam fees to more than 20,000 graduates will be no picnic for an organisation that has struggled to mail out a far smaller number of books in months.

Not allowing students to practice until March will prejudice students further and may set off large-scale civil disobedience (with the question lingering unanswered whether those flaunting the practice ban could be jailed for up to six months under Section 45 the Advocates Act for practising without being an advocate).

This in turn throws up the whole can of worms that is in the cases of V Sudeer and Bonnie FOI , and whether the BCI has the power to impose restrictions on the practise of enrolled advocates.

The second choice too - allowing practice now subject to clearing the exam later – possesses questionable legal legitimacy but has a certain pragmatism on its side. Although if graduates start representing clients and then do not clear the exam, where does this leave the clients? It would be akin to a practising doctor leaving a patient half-opened on an operating table after failing the medical exam, quipped one graduate.

And all this does not even raise the question of who in India has the authority, ability and bandwidth to police any of this.

Flawed but necessary?

It has now long been clear that the first exam would be far from perfect, perhaps even flawed in almost every possible way.

Nevertheless, the fact remains that India is now closer than it has been for a long time to a bar exam and necessary legal reform. Abandoning that path now completely for internal bar politics and power struggles would be a missed opportunity, no matter how big a mess things may be in right now.

UPDATE 19:30: The BCI is expected to issue a press release tonight with official confirmation of the postponement.

UPDATE 17 November, 12:01: No BCI press release was issued yesterday after all. However, after the Times of India, DNA is now the second mainstream paper to confirm that the bar exam is set to be postponed. DNA also adds the following confirmation of the state bar councils intending to take over the exam: "Speaking to DNA, BCI member Satish Deshmukh said, 'Many students who applied for the examination could not receive the study material. In the meeting the BCI also decided that the state bar councils would decide on the examination centres and would conduct the examination in their respective states.'" 

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Photo by D’Arcy Norman

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