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Opinion: Strip BCI of powers over legal education & ‘noble’ professional regulation

In Mint today: BCI is not an effective regulator
In Mint today: BCI is not an effective regulator
Mint’s Nikhil Kanekal argues in today’s edition of Mint that the Bar Council of India (BCI) should be stripped of most of its powers and replaced with an independent regulators who can better oversee legal education and the noble profession.

Last week the Bar Council of India (BCI) called a press conference to tell the government that it was protesting against the move to bring legal education under the purview of the human resource development (HRD) ministry. BCI has threatened to round up lawyers and protest against the intent of the Union government to take away key functions from it in the name of introducing more efficient regulation of the legal sector. However, the government’s objective in this regard (although it has not really implemented much of it) is a desirable end.

Let’s take a moment to appreciate some of the achievements of BCI such as the pan-India bar exam, introduced amid much opposition, in an attempt to filter the quality of lawyers entering practice. More national law schools are being created in areas that don’t have one. The Bar Council of India Trust organizes a moot court competition and offers scholarships to students who show promise. It has firmly opposed the entry of foreign law firms into India, unless corresponding access is given in foreign jurisdictions.

Whether the last item counts as a positive in BCI’s report card is, of course, debatable. It could be regarded as protectionist and deliberately killing nuance in the debate on the entry of foreign law firms. The larger issue, however, is that BCI’s efforts are found wanting when held up against the challenges facing the practice of law and legal education in India. The enthusiasm for reform has waned sharply following the exit of former solicitor general Gopal Subramanium from the BCI chairman’s post.

Legal education in India, except for some of the national law schools and a handful of other state-run and privately owned ones, is still largely in the dumps. Lately, even the functioning of the national law schools has been called into question. For instance, a three-judge committee in September 2011 reported evidence of maladministration at National Academy of Legal Studies and Research University (Nalsar) in Hyderabad, tarnishing the reputation of one of India’s finest institutions.

Separately, the Central Bureau of Investigation has been probing some BCI members over allegations of bribery since late 2010. They were mandated to ensure that law schools were meeting standards set by the council. The law colleges concerned needed to retain their BCI affiliation to be able to confer law degrees.

While the bar exam has largely been a success and is only starting out as a professional qualifying test, it has been mired in organizational issues that have resulted in a delayed entry into practice for some young law graduates. This shouldn’t be read as a brief for the HRD ministry, but it’s time legal education is professionalized beyond what BCI has done and is realistically capable of doing.

On a connected note, the legal practice and clients deserve a better regulator regarding the conduct of lawyers. Former law minister Veerappa Moily had proposed a National Legal Services Board with corresponding boards in each state. Unfortunately, Moily’s successor in the law ministry is too tied up with putting out political fires and engaging in electoral politics.

The Indian legal profession requires an independent legal regulator that is not a club of advocate-cum-politicians elected by their peers; England and Wales created the independent Solicitors Regulation Authority in 2007 for that exact reason. There are anecdotal examples of lawyers (in some cases even senior counsel) accepting briefs from one side and subsequently appearing on the other side, or otherwise providing client service unworthy of the name. Few clients expect an effective remedy from complaints lodged with the BCI disciplinary committee—BCI members usually get elected to office because they are well-connected in the profession.

Purists hold that the practice of law is a noble one and therefore practitioners will ideally adhere to principles of good conduct. The reality is that the profession has evolved into the business of law. Litigation and transactional practice witness fierce competition. There are instances of “negative fees” being paid to some very senior lawyers—meaning that a powerful litigant will pay lawyers to not appear for the other side—in high-stake cases. There are also stray instances of client-poaching through unfair means among corporate law firms. Another problem is the practice of law by those that are not properly licensed by a bar association, such as tax consultants. On top of that, BCI doesn’t even know exactly how many lawyers in India fall within its regulatory net. Neither does BCI exercise any oversight on in-house lawyers working in companies, since they are forced to surrender their practising certificate.

A strong, professional regulator staffed by full-timers who have no conflicts with practitioners in the legal sector is the only way the profession can regain its status. And alternatives to the status quo are pending approval in the offices of government.

This article first appeared in Mint today.

Legally India’s exclusive association with Mint brings fortnightly insight and analysis of major developments in law, courts, firms and universities to Mint and Legally India’s readers.

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