By SHARATH. P. NAIR
Once, Engineering and medicine were hitherto considered to be the predominant career option compared to ‘Law’. However, globalization brought a new perspective to the legal education because legal career today widened its scope to Court practice, work in a law firm, LPOs (Legal Process Outsourcing), In-house Counsel in Companies etc. Similarly, even in ‘Court practice’ there is various opportunities viz. domestic as well as international practice.
There are several issues in today’s legal field that demands change, which should begin with setting right the legal education as it produces lawyers, for strengthening the legal system in the country. Or else, the entire legal system stands like a building sans firm foundation.
To say the least, today there are wide disparities among lawyers in terms of their competition. For instance, the rich and influential accused are able to afford the benefit of engaging expert lawyers of their choice in a particular field of law being juxtaposed with the provisional deprivation of the same advantage to the victims having no choice but to participate in the trial with prosecution lawyers appointed by the Executive. This imbalance and weak competition among the ‘prosecution’ and the ‘defense’ results in painful injustice. Therefore, reforming the legal education in these lines all the more becomes the mother to reforming the legal system in the country. Though some token steps have been taken in this direction, they are vastly inadequate.
With the realm of legal education in the hands of the Bar Council of India, the All India Bar Exam (AIBE) was introduced in 2010 requiring law graduates to clear the Examination if they intent to practice as an Advocate. But, the AIBE is generally viewed as a short-cut solution under the garb of thirsty reforms to alleviate the deficiencies and bring about quality in the profession of law. Nevertheless, in reality since the constitutional validity of the exam has not attained finality before the Apex Court the aspirants taking the exam are themselves clueless about the purpose of the same and hence, the aforesaid plethora of petitions before the Supreme Court.
Whether AIBE could produce efficient practising Advocates is, in itself, doubtful because the present academics of law graduation do not effectively teach the students the practical application of law in Courts. A defective system in the root cannot be redressed by making additions to it. The introduction of the AIBE under these circumstances is only an addition to the already defective system. Thus, the reformatory process is expected to begin by reforming the present inadequate legal education system.
The introduction of the five year courses in law is a complementary step taken under legal education reforms but mere theoretical preparation for all the five years turns out to be inadequate. The Bar exam thus only proves to be just another Examination without guaranteeing advocacy skills to a law student. This manifests the urgent necessity to scrap the exam.
The term “profession” includes intellectual skills which can be gained only through practice and experience. The intellectual skills cannot merely be tested through an Examination. If the Examination like AIBE ensures professional skills of an Advocate one need to undergo the same exam perhaps in every year to examine whether the Advocate maintains the same expertise and acumen by the passage of time. If so, this applies to all the contemporary advocates in the country including senior advocates whether they maintain skills as expected by the Bar Council of India (BCI). This shows that the introduction of exams is not the solution to produce quality Advocates. If BCI’s introduction of AIBE is in right direction and purpose oriented, all the professionals in the country regardless of their field are expected to undergo periodic exams to ensure that they are intact with their ability in their own field.
The reality in this profession is that if a person has to survive he/she has to to update the knowledge of law and advocacy skills to compete and survive in a country where about 70,000 fresh lawyers graduate every year. Since such tough competition exists in the field, only a lawyer with the requisite abilities and advocacy skills survive and others naturally wither away. In this way, the very profession itself safeguards its interest in creating professionals thus making AIBE irrelevant. A mere certificate of an exam (Certificate of Practice) cannot transplant the professional qualities embodied in a lawyer. Therefore, an additional examination can neither guarantee a good lawyer nor can it produce one. It is a sheer drudgery for the young aspirants to have such an exam under the pretext of producing quality in lawyers.
The examination is introduced without even a shred of credible evidence that it is beneficial to the law graduates in their career ahead. Is it only to minimize the professional competition and maintain the hegemony of successful/ to be successful professionals? Advocacy skills are gained by consistent exposure to Courts and procedures. And, only a stiff competition in the area of legal practice can guarantee this. If the Bar Council’s argument that AIBE produces quality lawyers is correct, then the applicability of this examination should also be made mandatory for law graduates aspiring for corporate placements to maintain the Indian law firms’ professional edge globally. Or else, it would tantamount to pushing the so called “inefficient” lot to legal firms/corporate placements, with an hidden agenda to bring down the present professional edge in the Corporates in favour of global competitors to rule the roost in the country.
The introduction of the examination involves certain substantial question of law like ‘whether the executive law exists over the legislative law?’, since AIBE is introduced by the Bar Council Rules without any amendment to the Advocates Act, 1961. The Act permits law graduates to enrol at the Bar Council of a State to practice law in Courts. By introducing AIBE without amending the Advocates Act to that effect, the exam violates the Right to freedom of profession as enshrined under Article 19 (1) (g). In the judgement of the Supreme Court in All India Judges Assn. Vs. Union of India [2002 (4) SSC 247], the Court issued a direction that fresh law graduates must be enabled to directly enter the Judicial service at the lowest cadre instead of requiring a minimum experience of 3 years at the Bar. However, they are fortunate to get a year’s training after joining the judicial service. Similarly, in the case of Bar Council of India Vs. Bonnie Foi Law College, the Court did not warrant a direction to hold the exam (AIBE) despite the statements made by then Solicitor General of India, Mr. Gopal Subramaniam who fortuitously turned out to be the Chairman of BCI subsequently. The Parliament has also not amended the Advocates Act as recommended by the Supreme Court in V.Sudeer’s case [AIR 1999 SC 1167]. The observations of the Supreme Court in the aforesaid judgments appear to have gone unnoticed or astonishingly ignored by the BCI which adopted a resolution in 2010 to conduct AIBE.
The Rules pertaining to the AIBE states that one can practice in courts for not more than two years without passing the exam. The prerequisite to write the exam is that a fresh law graduate should acquire membership of the respective State Bar where he wishes to practice. Now this means that even a graduate who is classified “imperfect/inefficient” if he fails in AIBE, can practice for two years without qualifying the exam that purportedly produces “efficient” lawyers. Therefore, it is beyond logic and comprehension that the Bar Council of India has introduced this exam as a desperate and short-cut solution.
[The opinion expressed in this article is that of the author. TCO does not take any responsibility for the opinion so expressed.]
THE AUTHOR IS AN ADVOCATE AT THE HIGH COURT OF MADRAS.