ROLE OF BAR COUNCIL OF INDIA IN EXPANDING THE HORIZON OF LEGAL EDUCATION IN INDIA

Sasi K.G.

01. Introduction

The trends in legal education in the pre-colonial era, are divided into Pre-Mughal and Mughal. During the Pre-Mughal era, in absence of a need for trained legal professionals, there was no institutionalization of legal education as a separate branch but the same could be said to have been imparted as a part of general education which revolved around the notion of Dharma.

The Mughal era in India began with the invasion by Babar in 1525 and extended till the ascendancy of British dominion in India. During this period the Emperor was the head of the judiciary. As Islamic jurisprudence derived from the Quran, was treated as immutable by any human agency. The Sunna, which helped in explaining the Quran also became a major source of law. Though a system of third-party representation was formalized in Mughal era, people who could function as such representatives do not appear to have the required specialized legal education and there is no evidence of formal legal education system during that period.

Legal Education and its Transformation in Colonial Era

In the beginning to become Vakils, they were required to study at the Hindu College in Benares, or the Calcutta Madrassa. Though knowledge of Persian was mandatory for every Vakil till 1826; English gradually replaced Persian as an official language in courts. During this period training of Vakils was largely focused on regulations, and the principles of law were completely ignored.

Formal legal education started in 1855, when the first professorship of law was introduced in the Government Ephistone College. In 1857, Bombay, Madras and Calcutta Universities formally introduced legal education. The formalization of legal education became necessary due to the institutionalization of British legal system.

First Indian University Commission recommended in 1902 that a Bachelors degree either in science or arts be required as a qualification to join the LL.B degree course. In 1910, the Chagla Committee concluded that a law student should spend at least 6 years in legal education before qualifying as a lawyer. It also advocated for pre-legal education, with the idea that only those who passed a pre-law exam would be admitted to the LL.B. course. Several legislative attempts were made in the regulation of legal profession, including the Sri Anugraha Narain Sinha Bill, 1936; Sri Akil Chandra Bill, 1939; and T.T. Krishnamachari Bill, 1944.

Early Legal Education in Free India

Radhakrishna Commission in 1948-49 highlighted the lack of internationally known expounders of jurisprudence and legal study in Law Colleges and opined that the Law Colleges existing at that time held neither a place of high esteem nor profound scholarship nor enlightened research. Therefore, the Commission called upon the legal profession to take stock of this situation to contribute to wide social changes taking place in the country.

With the adoption of Constitution in 1949, the 'rule of law' became the basic component of the Indian democracy.  Law and justice could no longer remain distant neighbors. To achieve the constitutional goal of access to justice, legal system ensured moderate court fee, availability of affordable, competent and socially relevant lawyers.

Though several efforts were made in the furtherance of legal education, the efforts made particularly by the BCI, UGC, Law Commission of India and the State were the most productive.

Efforts made to constitute the Bar Council of India

Even after India became independent, the legal profession in India continued to be governed by the laws passed by the British. The Constitution of India came into force on 26th January 1950 and all High Courts of Part B States became High Courts under the Constitution. The Supreme Court of India was established under the new Constitution and had jurisdiction over the whole of

India. As the Constitution of India created a uniform judicial system, concerns were raised in several meetings and conferences stressing the need for an all-India Bar and uniform system of regulating the legal profession.

In August 1951 the then Minister of Law announced on the floor of the House that the Government of India was considering a proposal to set up a Committee of Inquiry to go into the problem in detail. To comply with that promise, the all India Bar Committee was constituted by the Government of India under the Chairmanship of Justice S.R. Das, Judge, Supreme Court of India.

The Committee submitted its detailed report on 30th March 1953. The Committee found that since there was no centralized authority like an All India Bar Council, the qualifications required for enrolment as a lawyer by different High Courts were not uniform. All High Courts required a law degree from a University as a precondition for enrolment as an advocate and each High Court prescribed additional qualifications like practice in district courts or in chambers of a practicing advocate for certain period.

The Committee also recommended the establishment of State Bar Council for each State and an All India Bar Council at the National Level as the Apex Body for regulating the legal profession. The important recommendation of the Committee was that the apex body should also supervise the standards of legal education in India. To implement the recommendations of the All India Bar

Committee, a comprehensive Advocates Bill was introduced in the Parliament and the same was passed as the Advocates Act, 1961.

Establishment of Bar Council of India

The Advocates Act, 1961 was passed by the Parliament of India by virtue of powers under List I of the Constitution of India. Under this Act, an apex body, namely, the Bar Council of India was constituted at national level. Advocates Act required the BCI to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education.

In furtherance of section 49 of Advocates Act, 1961, the BCI framed Bar Council of India Rules, 1965 wherein chapter- IV exclusively deals with minimum standards of legal education. These rules were amended from time to time to improve the standards of legal education in India.

Thus, it is clear under the Advocates Act, 1961, that BCI was empowered to prescribe the minimum qualifications required for a student to get admission to a course leading to a degree in law in any recognized University and to prescribe the standards of legal education to be observed by such Universities.

Bar Council of India have played a very important role in the development of Legal Education in India. BCI is pioneer for structuring the Legal Education System in India as it exists today. The BCI was the first to lay down the standards in terms of system, classroom teaching, practical training and skill, court visits, moot courts, legal aid work, and other practical training programmes for law students.

In 1962, following BCI orders, all Universities imparting legal education changed over from the two-year to the three-year program in law and revised the curriculum as prescribed by the BCI. Some important measures taken by BCI is discussed here under various heads.  

Legal Education Committee

The BCI established Legal Education Committee under Section 10 (2) (b) of the Advocates Act, 1961. The present Legal Education Committee consists of 10 members. It also consists of 16 special invitees who are all advocates and has no faculty representative.

Reforming Legal Education

In early 70's, the BCI decided to adopt a new pattern of legal education in India. In 1975, the BCI recommenced that no student shall be admitted unless he has secured 40% aggregate for Day classes and 50% for the part-time course in the evening in qualifying examination. Admission to the course should be by means of viva-voce test before a Board appointed for the purpose. Medium of instruction should ordinarily be English and it should be included as a subject in the first year. Law Colleges should provide instructions on week days for minimum 3 periods of one hour duration. New colleges should obtain permission from the BCI before starting the institution. These provisions were duly amended from time to time.

Bar Council of India Trust

In addition to prescribing the standards for legal education, the BCI created The Bar Council of India Trust as a public charitable trust on 27th April, 1974. This trust was created to maintain professional standards and to effect improvements in legal education. In this regard, the Trust intended to establish Law Schools of excellence and to promote legal research.

The other objectives were to render legal aid to the poor, publish law reports, text books and case books for students undergoing legal training, offering scholarships to deserving students, and promote welfare of the members of the profession. The Trust is managed by a Board of Trustees. There are five Members in the Board of Trustees who are members of the Bar Council of India. The Chairman, Bar Council of India is ex-officio of the Board of Trustee. The remaining four trustees are elected from amongst the members of the Bar Council of India for a 4 year term. The Trustees elect the Managing Trustee and Associate Managing Trustee. The Managing Trustee is empowered to look after the day to day administration through its Secretary.

The Bar Council of India Trust organizes various academic workshops for advocates under its continuing education program. The purpose of these workshops is to help in updating knowledge and skills of practicing lawyers, and promoting specialization in professional services. A large number of volumes of reading materials on constitutional litigation, advocacy, labour adjudication, tort litigation, administrative law and adjudication, environmental laws, etc., have been assembled to support the continuing legal education.

To promote advocacy skill of the law students, the Trust organizes National Level Moot Court Competition every year. This moot court competition was started in the year 1981. Nearly 35 to 40 Universities participate in the event. In late 70's the BCI undertook several consultations in nature of national seminar, workshops and debates. Finally a joint meeting was organized with the members of the BCI, Legal Education Committee, selected law teachers, UGC law panel and representatives of the Union Ministries of Education and Law. Subsequently the draft plan of new pattern of legal education was discussed in a seminar conducted at Bombay in August 1977. Several recommendations and suggestions which were made were adopted in subsequent meeting between Legal Education Committee, BCI and Government representatives.

During this period the BCI resolved that Law Colleges or Departments running both, day and evening courses shall be converted into whole-time day course latest by June, 1982. To consider whole time, the working period of the Law Colleges and Departments need to be spread over at least 6 1/2 hours every working day comprising of class room lectures, contact hours with teachers, library work and other curricular and co-curricular work of a similar nature. The library shall remain open for at least 8 hours on every working day. The strength of part-time teachers shall not be more than 25% of the total strength of the teachers. BCI also suggested that multiple copies of the prescribed books be made available in the library and the seating arrangement in the library shall be provided for at least 15% of the students at a time in the reading hall Further, the circular also mentioned that the teacher student ratio is at least 1:20. The maximum strength of students in each class (LL.B I, II, III) shall not exceed 350, and 80 in any section of each such class.

Introducing Five years integrated LL.B. Course

The BCI issued instruction in March 1979 to all Universities and Colleges imparting legal education, to adopt the new pattern of five year integrated course and three years' time was given to change over. Nearly after 5 years of deliberations with the Universities, State Bar Councils and the Legal Education Committee, the BCI recommended changing the 3 years LL.B. program to 5 years.

In 1982 many Universities expressed their inability to change over and asked for more time. Accordingly the BCI obliged the request and extended the time for another two years. Further, the BCI after receiving several requests from the colleges, passed a resolution that it had no objection for granting an intermediate B.A. degree after completion of first 3 years of 5 years course though such a degree would not entitle the person to practice.

Due to pressure from the Law Colleges and the State Bar Councils, the BCI further amended these Rules. Under the new amendment, the BCI divided 5 years course into two parts. Part — I would be a two year course program of pre-law study and Part — II would be a three year program of professional training in law. Accordingly lateral entry to Part — II of the five year law course was permitted to the students who had a three year degree or a post graduate degree.

In addition to these efforts, the BCI requested the BCI Trust to undertake the preparation of text books on all pre-law subjects. BCI Trust duly agreed to prepare standard text books at cheap prices on the newly introduced subjects. The Trust also agreed to consider the request of organizing teacher training courses in collaboration with the Universities in teaching law related social science subjects.

The BCI pursued the matter of grant in aid to Law Colleges with the respective state governments. It made scheme of transition in such a way that the infrastructural requirements need to be met by the Universities for the integrated course was phased over a period of 4 to 5 years in order to not to burden the Universities. BCI Trust made efforts to set up a model deemed University and in the year 1987 National Law School of India University was established in Bangalore.

In spite of all these efforts, many Universities failed to adopt the new pattern of legal education as envisaged by the BCI. The BCI succumbed to the pressures from the institutions offering legal education and failed to phase out the three year program. Thus, it was forced to give further extensions from time to time to 3 years course.

Only change that was brought by the BCI is that many Colleges which offered three year degree course also started offering five year integrated course. This created a new opportunity to the Colleges to combine three year degree course with five year integrated course. Many Colleges offered only pre-law subjects for first two years for five year integrated course and third year onwards they introduced law subjects. The lateral entry rule by BCI permited graduate students to join five year integrated course in third year. Many colleges having both courses, developed a new trend of joining five year integrated course students with three year degree students.

Law Colleges designed the subjects in such a way that 3 rd, 4th' and 5th year subjects of five year integrated course were same as 1 st, 2'nd, and 3rd year of three year degree course.

The BCI issued a circular in 1986 clarifying the right of practicing advocates to take up law teaching under Section 49A of the Advocates Act. The BCI resolved that only practicing Advocates can take up law teaching but a full time law teacher could not be enrolled as an advocate. Further, the BCI imposed a restriction on practicing advocates not to engage in teaching more than three hours in a day. Any advocate employed in any educational institution for teaching law is deemed to be a part-time teacher.

One Year Apprenticeship Rule

In 1994, the Bar Council of India introduced the one-year training rule after graduation as per recommendations of the Ahmadi Committee. The Committee has recommended that every law graduate should undergo one year of training under a senior lawyer with a minimum of 10 years’ experience at the District Court or High Court. Students were to work for three months in a trial civil court, three months in a Magistrate's Court, and at least six months in a District Court. To enter the Bar, the students would need to obtain a certificate from the senior lawyer in whose office they worked, describing that they were fit to enter the Bar.

These conditions were to be made mandatory. After fulfilling these conditions, students were required to appear for an examination for entry to the Bar; without these formalities a law student would not be eligible to sit for the Bar Council examination. The Committee also recommended that students should secure at least 50 or 60 per cent marks at the Bar Council examination to become eligible to practice at Bar.

After reviewing these recommendations, the BCI introduced a one-year training rule" while it discarded the suggestion of entrance examination.

This rule was challenged in the Supreme Court. In V. Sudheer v. Bar Council of India 1999 (3) SCC 176, the Supreme Court struck down the rule as ultra vires to the Advocates Act and held that the Bar Council of India is not competent to pass such a rule. Such a rule can be introduced only by the legislature.

While declaring the training rule as ultra vires, the Supreme Court recognized the crying need for improving the standards of the legal profession. It recognized the value of equipping lawyers with adequate professional skills and expertise, and held that "a right thing must be done in the right manner." The apex court shared the anxiety of BCI for developing suitable methods for improving the standards of legal education and legal profession. It suggested that these recommendations should be put into practice using appropriate methods.

Uniform syllabus and Mandatory Clinical Component

A three day All India Consultative meeting of BCI, Universities, UGC and State Governments was held at Bangalore in the month of October 1996. The members who attended the meeting unanimously agreed that there shall be a uniform syllabus for both three-year and five-year law courses throughout India. The members also felt the need to introduce Clinical Legal Education.

The Legal Education Committee made certain changes in the curriculum recommended by the Consultative Meeting. BCI approved the curriculum prepared by Legal Education Committee with certain modification. This was amended from time to time.

Issues in implementing the Clinical Curricula prescribed by the Bar Council of India

Introducing mandatory four practical papers was viewed as a big step in offering practical lawyering skills. As the Clinical Legal Education has been formally introduced into legal education, the biggest challenge which lay ahead was of developing legal pedagogy to offer the four practical papers in a meaningful way.

Apart from prescribing the title of these four papers the Bar Council has not specified the nature, contents and the method of teaching, and evaluation of these four papers. No attempt was made as to identify the purpose for which the practical papers were introduced by the BCI.

The outstanding success of the National Law School led to the setting up more such schools similar to the Bangalore Model. Today there are 11 National Law Schools in the country. This had given a special impact to Indian legal education.

However, BCI has failed to improve the quality of Legal Education in the remaining 749 law colleges in India in par with National Law Schools. It has not been able to maintain the same standards in all the 11 National Law Schools too.

BCI is still fixated with the view that the sole purpose of Legal Education is to generate practicing lawyers. The aim of Legal Education should be to create lawyers who are comfortable and skilled in dealing with the differing legal systems and at the same time remaining strong in one's own national legal system.

Role Allocated to BCI under the Advocates Act 1961

Under the Advocates Act, 1961 the role allocated to BCI was limited to promote legal education and to lay down minimum standards necessary for those students who would ultimately enter the legal profession to practice in the courts.

According to the Supreme Court in India, in O.N Mohindroo v. BCI and Bar Council of UP the subject covered by the Advocates Act, 1961 is referable to Entries 77 and 78 in List I of Schedule VII of the Constitution of India. These two entries deal, among others, with the subject: persons entitled to practice before the Supreme Court (Entry 77) and persons entitled to practice before the High Court (Entry 78).

Under section 7(1) (h) of the Advocates Act, the BCI has been entrusted, as stated above, with a limited role of “promoting legal education and laying down practice”. Section 7(1) (h) requires the BCI to “consult the universities for the purpose of laying down these standards in legal education”. Section 7(1) (i) of the Act enables the BCI to grant recognition to universities whose law degrees shall be sufficient qualification for enrolment as an advocate. The BCI, may for this purpose, visit and inspect the universities concerned whose degrees in law may be recognized for the purpose of enrolment of law graduates as lawyers. Similar power is conferred by Section 6(1) (gg) of the Act on the State Bar Councils in regard to inspection. Section A of Part IV of the Rules made by the BCI deals with the five years course. Section B deals with the three years course and Section C deals with inspection.

Rules of Legal Education - 2008

Bar Council of India has framed a set of new Rules known as ‘Rules of Legal Education – 2008’. All law colleges in India are directed to implement these Rules and revised curriculum of law degree courses from the academic year 2009-2010. Law Colleges will be known as ‘Centres of Legal Education’ under these new Rules. The Bar Council of India, while framing these Rules, is guided by the motive of improving the standard of legal education.

Approval to the Centres of Legal Education

BCI will grant either ‘Temporary Approval’ or ‘Regular Approval’ to the Centres of Legal Education. ‘Regular Approval’ is also a kind of temporary approval, because it is valid for maximum five years. There is no provision for ‘Permanent Approval’. All law colleges who may have been earlier granted permanent approval will now be included in the category of ‘Regular Approval’ by virtue of definition of ‘Regular Approval.’ Law colleges are required to seek accreditation by NAAC and again re-accreditation every five years. Law Colleges which have obtained temporary affiliation of University are required to apply to their Universities periodically for their continuation of affiliation. The college administration has to face three different types of Inspection Committees now and then. Bar Council of India Inspection - Manual 2010 is the guideline of BCI in this regard.

Total Number of Subjects

Till 1998, total number of subjects prescribed by BCI for Three Year LL.B. Course was 18. BCI increased the number of subjects from 18 to 28 with effect from the academic year 1998 – 1999. From the year 2009 – 2010 BCI has once again increased this number from 28 to 30. Now there are 24 Compulsory Papers, 8 Optional Papers 5 Practical Tests and a Viva voce for three year LLB Courses.

There are similar provisions for integrated five year courses also. One major subject having six papers and two minor subjects, each with three papers will have to be provided in this curriculum. In addition, English will be a compulsory subject. The students of this course are expected to learn at least one foreign or Indian language.

Every law student is required to complete minimum of 12 weeks of Internship for Three Year LL.B. Course and 20 weeks for Five Year Integrated Degree Course during the entire period of legal studies.

Age Limit: The maximum age for seeking admission to Five Year Integrated Degree Course is limited to 20 years in case of general category of students and 22 years for SC, ST and other backward community students. For Three Year LL.B. Degree Course, this age limit is 30 years for general category of students; University being empowered to extend this limit to 35 years for the students belonging to SC, ST or any other backward Community. This is being challenged and the admissions to aged people are controlled by interlocutory orders.

Faculty

BCI likes to use the phrase ‘Core Faculty’ for ‘full time faculty’ for the Centres of Legal Education. The Rules require the colleges running only Three Years LL.B. Course to be staffed by eight full time lecturers and where both the Courses are run, ten full time lecturers would be needed. To be qualified as law lecturer, one should have obtained LL.M. Degree with minimum of 55% marks and also cleared NET or SET examination.

Conclusion

While marching towards excellence in academic arena, it is desirable for BCI to find out via media between ideal and practical considerations. Striking a balance between pragmatic and dogmatic approach will be highly appreciated. The far reaching effect of, and the unprecedented growth of law has posed great challenges before BCI. The general awareness seems to be that BCI as an institution has not been able to perform its legal responsibilities in its real sense, and often has gone after its own powers. The National Accreditation Regulatory authority for Higher Educational Authorities Act, 2010, The Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010, The prohibition of Unfair practices in Higher Educational Institution Bill, 2010, and The National Law Schools Bill, 2011 included attempts to control the power of BCI in legal education.   By a 2010 Bill, even the existence of BCI was challenged. However BCI continued with stronger steps such as Bar Council of India Certificate of Practice and Renewal Rules, 2014 and its subsequent amendments in 2015. These were held ultra vires by various High Courts and the Supreme Court has taken up the matter. An enlightened and responsible spirit with better sense of constitutional democracy and capacity to foresee the future advocacy is highly recommended for BCI.