By Kian Ganz
The Indian legal system is well known for not being an enjoyable place for most litigants; cases can drag on for dozens of years, outcomes are never certain, and low-level corruption is endemic at some courts. For years, India’s government has proposed solutions but the problem has proved to be too vast to handle. The livelihoods of more than 1 million lawyers in India depend on the system and its inefficiencies as they currently stand.
The most realistic approach therefore looks further into the future towards the next generation and starts right at the beginning: improving Indian legal education.
The need for reform in education is necessary both in its own right as well as for the positive effect this would ultimately have on the country’s legal profession.
And interestingly, legal education in India is currently in a state of flux that has not been seen for decades, if ever.
India has more than 900 law colleges, of which around 300 are “condemnable” according to Gopal Subramanium, the country’s solicitor general and current chairman of lawyers’ only regulatory body, the Bar Council of India (BCI).
The subtext to “condemnable” in this context is that for years the BCI has given permissions for law colleges to open all over India, and according to almost everyone familiar with the process, things were not always kosher.
Whether someone was allowed to open a new law school depended less on the faculty and institution of learning one wished to assemble and build, but more on local political connections, clout and in some cases allegedly, even outright bribes.
India’s Prime Minister Manmohan Singh in June 2010 described Indian legal education as a “sea of institutionalised mediocrity,” in which there were only “a small number of dynamic and outstanding law schools.”
“But I am afraid,” he added, “they remain islands of excellence amidst a sea of institutionalised mediocrity.”
The law ministry has announced an ambitious plan for every state in the country to have its own “national law school,” which will be part-state funded and more heavily regulated.
But more changes that have more immediate repercussions are taking place too.
Subramanium has made education reform a centrepiece of his unusual tenure as BCI chairman, being the first ex-officio and unelected chairman of the regulatory body.
One of his aims is to reduce the number of law colleges to something more reasonable, “consolidating” the number to 175. In other words, he would like to reduce the size of the sea of “institutionalised mediocrity” by effectively closing more than 700 law schools.
Such a rationalisation of colleges is unlikely to hurt the quality of legal education. A large number of purported legal educational institutions do not have significant or experienced faculty (or even any in some cases), library resources are barely existent, if at all, and any commitment to being a centre of learning is negligible. Students who graduate from such institutions will have learned only a little about the law.
“It has become necessary to filter out the law graduate who got his law degree without attending the minimal percentage of lectures or who cheated his way through the exams or who studied in dubious law colleges where degrees were up for sale or where qualities for education were so sub-standard that their degrees were not worth the paper they were printed on,” argues Chennai-based advocate Elizabeth Sehadri. “I shall call this category of law graduates the ‘pseudo-lawyer’.”
While many such pseudo-lawyers are already roaming free in the wild of the courtrooms, stopping that tide is important if the wheels of the legal system – its lawyers – are to one day turn smoothly again.
What has been one of the most controversial but potentially effective plans by the new BCI is the introduction of an India-wide bar exam, which all new Indian lawyers will have to pass before they can practise.
The first exam is scheduled for 5 December 2010 and the plan of action has been carried out at breakneck pace, with many 2010 graduates in fact having started practising law in the summer of 2010 and finding out only later that technically they were not permitted to practise law until they passed the exam six months later.
Understandably, this has sparked serious resistance from graduates with more than 10 different cases challenging the constitutional legality of the exam and the BCI’s power to conduct it. The Supreme Court is set to hear the petitions but so far there has been one adjournment after another, which is not unusual in Indian courts.
Resolution by December is unlikely and it appears that the bar exam will most likely go ahead.
So can the exam make a real difference, and particularly also weed out the pseudo-lawyer? The plan right now is for it to be an open-book multiple-choice exam that will take three-and-a-half hours to complete.
The model questions and answers were published in early September and the difficulty level seems reasonable – roughly 80 per cent of student takers of a web poll on Indian legal website LegallyIndia.com thought they would “definitely” or “probably” pass the exam after studying for it.
The barrier may not be very high but it may just be high enough to weed out the “pseudo lawyer” and with more than 50,000 law students estimated to be graduating in India every year, it could mean that as many as 10,000 graduates will be left without the ability to practice law. All of them would of course have begun their studies never expecting to be examined on their legal knowledge.
The likely reality of the situation is, however, that many of those 10,000 will try and be able to practise law anyway. Due to the speed of implementation of the exam, there is currently no mechanism in place for enforcing whether or not a lawyer is practising or not.
All one has to do in most courts is slip on a black gown, wear a white band around the neckline, step confidently in front of a judge, and start arguing.
The BCI is fully aware of this problem, and it often appears that Subramanium’s intention is simply to get the exam running as quickly as possible, even if badly, ignoring vested interest groups and stakeholders along the way and sorting out the kinks later.
In the meantime, the BCI will be working on building electronic databases to track the enrolment and practice of every lawyer in India. It will likely take years until such systems have fully permeated the Indian legal system and reached also the smallest courts in rural India.
But perhaps that is the only way possible.
Kian Ganz is Editor of legal news website LegallyIndia.com and can be contacted at firstname.lastname@example.org.