Wednesday, February 20, 2008

Reforming the Judiciary, Reforming the Legal Profession

For those of you interested in judicial reforms the Campaign for Judicial Accountability and Judicial Reforms is holding the Second National Convention on the Judiciary and the Poor at ILI in Delhi on Saturday, Feb. 23rd.

Also, in today's Hindu N.R. Madhava Menon has a piece where he argues that when we discuss judicial reforms we should spend more time considering the reforms of the bar and legal profession that are also necessary. He makes ten proposals about changes he views are needed. The first two are:

(a) Legal education should be liberated from the dominant control of the Bar Councils and entrusted to legal academics with freedom to innovate, experiment and compete globally. The National Knowledge Commission has made some recommendations in this regard which deserve attention of the Bar, the judiciary and the government.
(b) There should be compulsory apprenticeship, Bar examination and screening on acceptable parameters before a law graduate, Indian or foreign, can be licensed to practise in Indian courts. Those who want to practise as non-litigating lawyers should have a different roll for enrolment and a separate entry examination, perhaps under a special professional body within the Bar Council.

I know less about his other eight proposals, but in my experience these first two strike me as quite accurate and important. He suggests that the legal profession is unlikely to reform itself. I am curious where he thinks the source of this reform will come from though. Is there need for Parliamentary intervention? Judicial? Or is it just about creating enough media exposure that then the bar will begin to reform?

Also, if someone who knows more can lay out in greater detail how the power structure of the bar in India works I would appreciate it and I know some other readers are also curious. What power does it exactly have? How does it maintain this power? How are decisions made? It seems like this could be a topic for a good ethnography, especially in comparison to the bar in other South Asian countries like Pakistan. I think some of my American lawyer friends were surprised and proud of how vigorously the bar opposed Musharaff in Pakistan. I think that the Indian bar also has some of the same features that would allow it to potentially play a similar role as in Pakistan (although my understanding is that they largely did not respond vigorously to the Emergency). I wonder if the Pakistani bar's ability to respond though was tied to certain institutional and cultural features that also handicap the legal system in other ways.

4 comments:

Poornima said...

Prof Menon 's other suggestions are also equally important. I am particularly interested in the the training of para legals and other professionals to help deliver the legal aid system which is hardly working in India. The bar seems to be the least concerned.

Perhaps there is need for an introspection for all Indian lawyers on their role in the larger social and political context. Only if they see themselves as important stakeholders in the running of the country will bar associations be more interested in legal aid than in striking or organising felicitations for visiting dignitaries.

Perhaps freedom to innovate at university level will inculcate in young law students of their role beyond solicitors or counsel.

Talha Abdul Rahman said...

Prof. Hieneman delivered a lecture on the role of lawyers as leaders in the society - something that transgresses mere litigation or law firm role assigned to law graduates. The same can be found at http://yalelawjournal.org/2007/2/16/heineman.html

Certainly, Dr. Menon's suggestion deserve serious thought; but the curriculum of legal education in India, even if decided by the academics and not the Bar Council, I apprehend would not change much. Especially because of the hierarchy that is imposed in law schools on one's thought, generally marauding any ability to think out of the box, and challenge the settled tenets of law, or operational law.

Rightly as Poornima said, there is a need to re-orient legal education in India, to churn out "lawyer-statesman" and "lawyer-leader" kind of people who will play prominent role in reconstruction of modern India.

It is only as a matter of exception that law graduates from national law schools join the Bar. Of course, I agree that there is more to a lawyer than just practise, but after all - what was the purpose of setting up national law schools.

Thriyambak J. said...

The suggestions of Prof. Menon indeed do deserve credence, but I fail to understand the need for an examination for the purpose of enrollment. True, it is a practice that is followed in the United States and possibly other jurisdictions as well, Japan and Germany for instance. Yet, using the United States as a base, the requirement is more so since each state has its own laws and legislations and the candidate who sits for a particular bar exam is tested on his knowledge of that particular state's law. In India, that is not the case since it is more a federal system of law's that are in place and all law school's do teach the commonly applied federal laws. It is no doubt credible to borrow ideas from the more sophisticated legal systems, but aping a system without a reason leaves a lot to wonder, why do this.

Rajat said...

Thriyambak J.:

BUT This doesn't take away the fact that we shouldn't have Bar exam in India. The bar exam will obviously ensure that deserving candidates are enrolled. You are focusing your argument on United States. Even though they have different state laws, bar exam certainly controls the number as well as quality of lawyers. If you look at Japan, Italy, Germany and several other countries, bar exam in in place NOT because there are different state laws. In Germany, there is a written exam followed by an oral exam.