In the two announcements dated 2 January 2021 and 4 January 2021, the Bar Council of India (BCI) has proposed to make ground shifting changes in the lives of recent law graduates.
A SETBACK TO JUDICIARY ASPIRANTS
Through its Press Release dated 02.02.2021, the BCI notified its interest in changing the pattern of entry in the Indian Judicial System. BCI has clarified its intention to seek impleadment as a party to the on-going case in the Supreme Court (“SC”), titled Regalagadda Venkatesh v. State of Andhra Pradesh W.P. (C) No.1479/2020 where the petitioner has challenged a notification issued by the Andhra Pradesh Public Service Commission bearing No. 9/2020-RC dated 03.12.2020, which invites application for appointment of Civil Judges Junior Division in the Andhra Pradesh State Judicial Services. The notification states that eligible candidates for applying for the post shall be advocates having a minimum eligibility requirement of 3 years as a practicing advocate. The same has been challenged by the petitioner contending that “requirement of 3 year experience at the Bar is illegal and unwarranted”.
With the Press Release, BCI stated that it strongly favours a minimum of 3 years’ experience for advocates to gain an entry in the judiciary via Judicial Service Exam. BCI stated that the present system which gives access to judiciary to fresh graduates overlooks that the new entrants’ lack experience and thereby might not be well versed and able to efficiently handle and deal with matters. The BCI went on to say that “Most of such officers are found impolite and impractical in their behaviour with the Members of the Bar and Litigants. They have lack of understanding of the aspirations and expectations of Advocates and Litigants in the matter of proper and decent behaviour.”
BCI also attributed the delay in disposal of cases to inexperience of the new entrants in the judicial system. According to the BCI, trained and experienced judicial officers can comprehend and dispose of matters at a much faster pace, thereby leading to efficient administration of justice.
BACKGROUND TO THE ELIGIBILITY CRITERIA
In the case of All India Judges Association & others v. Union of India (2002) 4 SCC 247, the Division Bench of SC opined that “With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough.” The Court had accepted the recommendations of Shetty Commission and held that the need for an applicant to have been an Advocate for at least 3 years should be done away with. With this, from 2003, judiciary was made accessible to the new law graduates for their contribution as judicial officers.
The BCI said that it will file an application before the SC seeking modification of the above mentioned order.
REMARKS
This move of BCI seems to be an answer to the selection of a 21 year old person who cleared the Rajasthan Judicial Services (“RJS”) examination by securing the first position. The state had reduced the minimum age of eligibility to sit in RJS exam from 23 years to 21 years. At the time when this person secured the first position, many had the opinion that due to his young age, he will not be able to comprehend the complex procedures adopted in the Courts of law.
But instead of making three years practice as a lawyer to be mandatory, it would have been far much better to increase the age of eligibility. This move gives a huge set back to the judiciary aspirants who have been preparing and looking forward to the examinations.
The authors would be discussing in detail that why in their view, such a step by BCI is not in the best interest of law students as well as future judiciary aspirants.
As we know that judiciary suffers from an acute lack of sufficient judicial officers. While putting blame on the current system of giving entry to fresh graduates in the judicial system of India, BCI overlooked the fact that delay in disposal of cases is due to less number of sitting judges in Courts. This move will only make judiciary more unapproachable, which in-turn, may result to a very less amount of lawyers applying for the post of judicial officer.
As rightly said in the All India Judges Association & others v. Union of India, judiciary is not much of a lucrative option even today, and after such a move, more and more people will prefer alternative career options. This three years time gap gives opportunities to fresh graduates to prepare and sit for other examinations, which also brings more pay with it.
As the BCI has stated that the fresh law graduates lacks an experience when they are posted as judicial officers, this problem of inexperience will still persist. It takes a number of years for lawyers to set them up and learn each and every nuance of the legal system. In reality, there are very few lawyers who practice independently which gives them a chance to learn and explore. Whereas, the lawyers practicing under seniors or firms would not be able to acquire all the knowledge in regards to procedural and substantial aspects as such lawyer do not deal with the case first-hand and do not receive the case from the start. This renders them having half experience of all the aspects of the proceedings, but not full knowledge can be acquired in this span of time.
One threat which this change will pose is of ‘favourism’. A lawyer having three years experience of practice would eventually be connected with a lot of people belonging to the legal fraternity. These connections could be easily materialised during proceedings, turning the odds in favour of the person known to such judicial officer.
Instead of making three years experience mandatory, the BCI should make provision of proper training of the newly recruited judicial officers under senior judicial officers. Such training could range from a time span of one to two years and should be extensive in nature, so as to solve the purpose of BCI of bringing quality talent into the judiciary and speeding up the judicial process. A classic example of this can be posting of officers through Union Public Service Commission (“UPSC”) examination. These officers are given rigorous training and are made ready by the academies, instead of asking them to be firstly prepared and then sit for the exams. Such officers also perform judicial and quasi-judicial functions, irrespective of the fact whether they are law graduates or otherwise. A similar training mechanism should be devised for new entrants into judiciary which will make them ready to face the challenges they might encounter as judicial officers.
THE NEW RIGOROUS PATH TO LLM
On 04.01.2021, the BCI notified Bar Council of India Legal Education (Post-Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education), Rules, 2020 (“BCI Rules”), which will bring a change in the Post Graduate Legal education in India.
Under the new education policy, 2020, the Higher Education Commission of India (“HECI”) alongwith National Higher Education Regulatory Council (“NHERC”) did not touch upon the legal education and left it for the BCI to regulate. To promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education as per section 7(1)(h) of the Advocates Act, 1961, BCI has notified standard for:
Post Graduate and research education;
Continuing Legal education;
Vocational and Para-legal Education;
Technology and Court-management education
The BCI will also provide direct and institutional set up necessary for all such levels of education to deliver quality in all forms of legal education, including on-line virtual education and off-line education in real terms, para-legal education for wider access to and timely delivery of justice.
Appointment of Special sub-committee
The rules provide for setting up of a special sub-committee, the tenure of which would be three years. The committee will undertake implementation of these Regulations under the overall control and guidance of Legal Education Committee (“LEC”).
MASTERS OF LAW
Abolition of One Year LL.M.
In January, 2013, one year LL.M. programme was introduced on the recommendation of the Expert Committee constituted by the University Grants Commission (“UGC”), which is now abolished by the BCI Rules. The LL.M. will of two years, spreading in four semesters.
Entry Requirements of LL.M.
LL.M. candidates cannot be persons without a recognised LL.B. degree (three year LL.B. or five year LL.B.). A Master degree in any specialized branch of Law offered in the Open System to any graduate, such as Business Law or Human Right, or International Trade Law without having LL.B degree (three year LL.B. or five year LL.B.) as the requisite entry level qualification shall not be designated as LL.M. It may be designated as Master’s degree in Business (MBL), Master’s in Governance and Public Policy (MGPP), Master’s in Human Rights (MHR), Master’s in Industrial Laws (MIL) etc., but it is not considered as equivalent to LL.M.
Introduction of Common Entrance Test
BCI has made provisions to introduce an All India Common Entrance Test under the name of Post Graduate Common Entrance Test in Law (“PGCETL”) which would be conducted annual by Bar Council of India, either directly or through its Trust for giving admission into LL.M. programme. After introduction of PGCETL, it would be mandatory for Universities to admit students on the basis of merit list.
EQUIVALENCE OF LLM FROM FOREIGN UNIVERSITIES
LL.M. from foreign universities would be deemed to be equivalent to Indian LL.M. only when the entry requirement of Indian LL.M. is fulfilled. One year LL.M. obtained from any foreign University is not equivalent to Indian LL.M. degree. However, one year LL.M. degree obtained after an equivalent LL.B. degree from any highly accredited Foreign University may entitle the person concerned to be appointed as a visiting professor in an Indian University for at least one year so as to consider such one year LL.M. degree with one year teaching experience as a Visiting Faculty/internee faculty/clinical faculty the Master degree obtained on one year term may be considered equivalent.
DOCTORATE OF PHILOSOPHY
Provision for Ph.D./SJD
For pursuing Ph.D./SJD, LL.M. shall be minimum entry requirement. The programme shall be a minimum of three years. The students should preferably be Junior Research Fellow (JRF). Each student shall have Teaching Assistantship and every student must participate in credit-based teaching learning for required number of classes weekly for at least one semester in any undergraduate/postgraduate program. On successful defence of the scholar in public and on the assessment of the thesis, the Ph.D./SJD may be conferred.
Educational Up-gradation and efficiency enhancement of Professional Education
Associate Programme: The B.C.I. Trust will introduce two professional efficiency enhancement continuing education courses only for Advocates who are enrolled with any State Bar Council. The associate programme will be equivalent to LL.M. which would be conducted over a period of three years. The teaching methodology for this programme will be home study, completion of questions on lessons and sending the answers through emails, feedback from the evaluators and one-to-one online discussion for doubt clearance.
Fellowship Programme: The fellowship programme of BCI would be equivalent to Ph.D. LL.M. and/or Associate Programme would be entry qualifications for the fellowship programme. The programme shall not be less than three years. The Rules provide for teaching methodology and assessment systems.
INTRODUCTION OF BCI COURSES
Short Term refresher courses, the duration of which will range from five days to fifteen days in any general or specialized field of law shall be conducted. On successful completion of the course, certificate of participation in terms of credit points acquired in such courses shall be issued. BCI shall notify the details of such courses.
BCI Trust may conduct para-legal (including land survey work, notarization, registration and all other judicial work of court and lawyers’ chamber management) and technology and Court Management courses of suitable duration either in online and/or in offline mode, to facilitate para-legal works and court-management.
Apart from the above mentioned ‘reforms’ in the eyes of BCI, these Rules also provide for improvement of faculty and teacher training, teaching internships alongwith outlining the prospective LL.M. programme.
REMARKS
Although the idea to enhance the quality of legal education in India is an impressive one, but elongating the time period for pursuing LL.M. from India does not sound to be a pleasing one.
The first reason that extra year for LL.M. is not feasible is because to the total tally of years pursuing the complete legal education in India. To become a lawyer, a student has to invest either 5 or 6 years of their precious time, depending whether they undertake an integrated course or not. An addition to the years of pursuing higher legal education does not appease the prospective students.
The other reason that this extension to the programme is uncalled for is due to spike in the cost of the education. Adding another year to LL.M. means doubling the cost of pursuing LL.M., as against to its original cost.
India is a country which is slowly and steadily attaining a platform in the international domain. LL.M. from foreign universities lets Indian students have access to finest legal education and a chance to explore the law in an international perspective. Every jurisdiction accepts the one year LL.M. programme, thereby expanding their horizons to teach and reach the laws globally. Certain laws in current times are transnational and are especially taught by the foreign universities. By not recognising one year LL.M. offered by foreign universities, the BCI is isolating the scope for Indian law students to explore and grow. This rule is also unfair as the Indian law students aspiring or planning to pursue LL.M. from a foreign university would now be compelled to pursue the same from India, instead of availing the facility of world class education offered by the foreign institutes.
The decision of scraping of one year LL.M. and derecognizing the LL.M. from foreign universities has been challenged in the SC by a law student. The petition says that this decision is in violation of the Right to Education and amounts to interference in the right to practice profession and will adversely affect future career and liberty of choosing quality education.
It can be said that this progress in the field of LL.M. does not seem to be a progressive step to Indian law students.
CONCLUSION
Although the intention of BCI is to make amends in the existing legal framework (education and judiciary) to make it more efficient, but the changes announced by the BCI are hitting hard on people associated to the legal fraternity. Current times need a more empathised approach, especially towards the new graduates who are perplexed about the situation while entering into the most crucial aspects of their lives. Whereas the two decisions of BCI in regards to judiciary and LL.M. are disregarding the efforts students have been making during their college times to prepare for judiciary or LL.M. examinations.