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'Open book' bar exam could herald split in profession; More details 1 June, says Subramaniam

Open book
Open book

The proposed bar exam will be an open book test exclusively giving litigating lawyers a "license to practice" but would not affect transactional lawyers, proposed solicitor general and Bar Council of India (BCI) chairman Gopal Subramaniam on Saturday, noting that the exam could also apply retroactively to unenrolled graduates from past years.

Although all lawyers and 2010 graduates could be members of the Bar by enrolling with state Bar Councils, said Subramaniam, only those who passed the exam would be allowed to "practice" by appearing before courts and tribunals, creating a new distinction between "enrolment" and "practice".

He explained that this was not contrary to the judgment in the Lawyers Collective v Ashurst & Ors case, which held in December 2009 that the "practice of law" included all legal work including transactional work.

"I think the Bombay High Court judgment does not concern domestic lawyers but is limited in application to foreign lawyers," he said.

While details relating to the bar exam are not yet finalised, the proposal could mean that 2010 graduates would not be able to appear to argue in courts before January 2011, as the exam is scheduled for December 2010, although it would not be required for graduates pursuing advisory work and transactional law in corporate firms in India or abroad, judicial clerks, law teachers or students pursuing LLMs abroad.

Noting students' concerns Subramaniam said: "We understand that there will be difficulties to begin with but we have to start the process somewhere. As with all new qualifying exams there will be some uncertainty in the beginning but we will try to assist students as far as possible."

However, he ruled out granting provisional licenses to practice before December, as it would be difficult to monitor and issue permanent licenses thereafter.

Subramaniam also announced that the exam would tentatively be an "open book" test and that the format and syllabus would be notified by 1 June on the BCI website.

The exam would involve a 60-40 split between knowledge-based and application-based questions and the pass mark would be pegged at around 40. He also suggested that the BCI was considering online exams for those studying abroad.   

Subramaniam made the remarks during a talk entitled "Social Justice and Lawyering" at the campus of NLS Bangalore last Saturday (17 May).

He said that those holding law degrees but who had never formally enrolled with Bar Councils in previous years might also have to pass the bar exam in order to practice in courts, responding to a question posed by NLS Bangalore vice chancellor professor Venkata Rao.

Subramaniam noted that law teachers would not have to pass the bar exam to teach, admitting that this should be evaluated in light of maintaining standards of teaching in law schools.

However, he proposed to hike the minimum pay scales of law teachers, noting that currently a class 4 employee of the Municipal Corporate of Delhi could earn more than contract teachers in many law schools, some of whom earned as little as Rs 7,000 per month.

Photo by pareerica

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