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.
