The Bar Council of India (BCI) has agreed to postpone the planned bar exam to December, we are informed.
Kian has insinuated here that another possible angle in introduction of the proposed Bar Admission examination may perhaps be to meet the 'reciprocity' criterion in the municipal law (e.g.: "You can practice here if you pass our exam.")
Thus, the first argument that introduction of such a Bar Admission examination as a measure of Quality control belies a certain logic.Admittedly, there are about 740 law colleges and 11 national law universities under the control of BCI.The alarming silence of the stand of these 740 law colleges qua the proposed Bar Admission examination makes us wonder as to what and /how the students in these law colleges may be having in their minds. Rs 4 lakhs for 8 months is not the average net loss of students across these 740 law colleges. It maynotbe so for a even in the 11 national law universities.
Since BCI is accountable for the standard of legal education in these 740 law colleges across the country as well as the 11 national law universities, we are all in agreement that there cannot be any comparison at all between the standard of law education imparted in these 740 law colleges qua the 11 national law universities. Therefore, the proposed Bar Admission examination should be conducted in a manner keeping in view the said disparity which is almost akin to the difference between a standard meal in Lunsa , a naxal affected area in the State of Jharkhand and the meal in an average home in Jamshedpur, 2 and half hours away.
The poverty of the nation can be very well compared with the poverty of education and the telling nature of the infrastructure (or the lack of it) in most of these 740 law colleges across the country.
On an average, the cost of education in these 11 national law universities is around 1 lakh a year whereas the total cost of a 5 year law degree in Calcutta University (as a mere example) is around Rupees 20, 000/- only.
The infrastructure, facilities and exposure made available in Rs. 5 lakhs and a mere Rs. 20, 000 needs no further discussion. The fact remains that the standard in both these universities are maintained by the same authority, BCI. How is it possible to maintain the same standard? Is there a paradigm of legal education prevalent in India? Can the students who belong to these two paradigms be subject to the same examination?
In a super specialty hospital in Delhi, the same injection which is worth Rs 10 when injected into a patient admitted to the dormitory becomes chargeable at Rs. 1000 when injected in a patient admitted in a suite costing Rs. 1 lakh a day. Similarly, is the standard of legal education, which is maintained by a single organization across the country have different benchmarks and yardsticks depending on the cost of the tuition fees? If there are different standards, there should be different exams.
Admittedly, the standards are different. Mostly, there in no discernible standard at all. Thus, in the absence of quality control when it came to establishing and maintaining a general acceptable standard of legal education across all law colleges and universities, it is perhaps not correct to introduce quality control at the stage of completion of the said courses run and controlled by the BCI, not having been able to establish and maintain an uniform standard across the 740 law colleges and 11 national universities. The said Bar Admission exam does not act as a bar to higher education but the right to livelihood.
For a moment, it is not suggested that the examination is not a great idea. It is just that it is an idea which completely fails to address the issues pertaining to the majority of the potential examinees. The standard of legal education as well as the standard of the Bar when administered by the same authority, one cannot look at both of these in an isolated fashion. BCI is attempting to create an unnecessary class divide guised in an attempt to project pioneering thought but essentially to cover up years of colossal ineptitude. The proposal, if intended to quality check the standard of the bar, appears to be half baked, ill thought, intellectually weak and belies common sense. .
Further, the number of law graduates from these 11 national law universities who have habitually taken to transactional lawyering, which the BCI Chairman ‘thinks’ does not require one to be a ‘practising Advocate’ in India and can be done by law graduates, the brunt of the said proposal would be borne by the student of the 740 law colleges across India, the standard of law education being non existent in most of these places and especially because the BCI has failed in its commitment and purpose.
Further, the creation of a new distinction between "enrolment" and "practice" is perhaps not well founded. In the USA, a person having failed to clear the bar examination cannot practise even in the transaction side of the profession. His status is equivalent to that of a para legal. He cannot be hauled up by the Client for negligence or misconduct. The law firms are under a legal requirement to disclose how many lawyers who are working on such non litigious matters have not cleared the bar exam and the particular bar exam cleared by the lawyers who have indeed cleared. The same contention finds support in the words of Chief Justice Swatanter Kumar (as he then was) and Justice J P Devadhar in the case of Lawyers Collective wherein the Bench stated as under:
Section 33 of the 1961 Act is a prohibitory section in the sense that it debars any person from appearing before any Court or authority unless he is enrolled as an advocate under the 1961 Act. The bar contained in Section 33 of the 1961 Act has nothing to do with the persons entitled to be enrolled as advocates under Section 29 of the 1961 Act. A person enrolled as an advocate under Section 29 of the 1961 Act, may or may not be desirous of appearing before the Courts. He may be interested in practising only in non litigious matters. Therefore, the bar under Section 33 from appearing in any Court (except when permitted by Court under Section 32 of the 1961 Act or any other Act) unless enrolled as an advocate does not bar a person from being enrolled as an advocate under Section 29 of the 1961 Act for practising the profession of law in non litigious matters. The Apex Court in the case of Ex-Capt. Harish Uppal (supra) has held that the right to practise is the genus of which the right to appear and conduct cases in the Court may be a specie. Therefore, the fact that Section 33 of the 1961 Act provides that advocates alone are entitled to practise before any Court / authority it cannot be inferred that the 1961 Act applies only to persons practising in litigious matters and would not apply to person practising in non litigious matters.
It was contended that the 1961 Act does not contain any penal provisions for breaches committed by a person practicing in non-litigious matter and, therefore, the 1961 Act cannot apply to persons practising in non-litigious matters. There is no merit in this contention, because, Section 35 of the 1961 Act provides punishment to an advocate who is found to be guilty of professional or other misconduct. The fact that Section 45 of the 1961 Act provides imprisonment for persons illegally practising in Courts and before other authorities, it cannot be said that the 1961 Act does not contain provisions to deal with the persons found guilty of misconduct while practising in non litigious matters. Once it is held that the persons entitled to practise the profession of law under the 1961 Act covers the persons practising the profession of law in litigious matters as well as non-litigious matters, then, the penal provisions contained in Section 35 of the 1961 Act would apply not only to persons practising in litigious matter, but would also apply to persons practising the profession of law in non-litigious matters. The very object of the 1961 Act and the Rules framed by the Bar Council of India are to ensure that the persons practising the profession of law whether in litigious matters or in non litigious matters, maintain high standards in professional conduct and etiquette and, therefore, it cannot be said that the persons practising in non litigious matters are not governed by the 1961 Act.
In view of the aforesaid extracted portion of the Bombay High Court judgment, which is an interpretation of the scope of Section 33 and other sections of the Advocates Act, 1961 as mentioned above and more so in view of the words "There is no reason to hold that in India the practise in non litigious matters is unregulated," it is difficult to lend support to the thought that the Bombay High Court judgment does not concern domestic lawyers but is limited in application to foreign lawyers.
Further, if such an examination is for the purpose of meeting the ‘reciprocity’ criterion in the Act, then the threshold of these examinations would be required to be fashioned in view of the standards prevalent in such reciprocating territories.
The intention of the BCI is noble but the BCI should start with the standardization of law education across the country first and having met that objective, introduce the proposed bar admission exam. A holistic approach is the only solution. Nothing short of that would do. A colleague at the Bar went as far to suggest that such an exam does not guarantee the quality of the Bar since the legal education system in India, be it one of the 740 colleges or a National university, does not does not have a curriculum focusing on litigation and the students across the vast paradigm start learning only on the job. The ability to learn on the job depends of individual ability and aptitude and not on the educational institution one went to. Thus, the proposed Bar exam attempts to alter and/or eliminate the level playing ground as it exists today.
On a lighter note, an enrolled colleague at the Bar, hailing originally from the Chota Nagpur region and an alumnus of the same College where retired Justice of the Supreme Court studied law, said that these 740 law colleges are much more confident about clearing the proposed Bar admission examinations and thus have not asked for any postponement unlike a particular National Law university which is unsure and thus has sought postponement of the same.
The absurdity of such a proposition made us have a great laugh but then again, the alarming silence!!!!!