Sunday, July 22, 2012

Legal Education: Protesting the BCI's Consultative Deficit

Mainstream media has been abuzz with news of a paralytic strike by the Bar Council of India (BCI), protesting against the divestiture of their control over legal education via the proposed Higher Education and Research (HER) bill. The strike has had its fair share of critics, including a contempt petition as also a letter to the Supreme Court of India

Without going into the merits or otherwise of the HER bill, it is clear that the BCI has never consulted meaningfully with legal academics, despite a statutory mandate to do so under the Advocates Act. In an Indian Express editorial, I'd argued as below:

"Some say that law is an instrument of power. Little wonder then that regulating access to the corridors of legal power is lucrative business — particularly when the regulatory turf lies in the world’s largest democracy, which now boasts more than 900 law schools.

Recently, the Bar Council of India (BCI) was in the news for protesting attempts by the Ministry of Human Resource Development to usurp its superintendence of legal education through the Higher Education and Research Bill, 2011. This squabble is merely one of many in a series of turf wars between various agencies to assert their dominance over legal education.

All of this naturally raises the question: does the BCI have the competence to regulate legal education in the first place? In terms of legal competence, the answer appears to be in the affirmative. As for institutional competence, the less said, the better.

Even in terms of legal competence, there is an important caveat that seems to have been missed by the BCI in all these years of regulatory dominance. Section 7(1)(h) of the Advocates Act, 1961, requires the BCI “to lay down standards of... (legal) education in consultation with the Universities in India imparting such education”. Past records do not suggest any meaningful consultation with universities. While castigating this deficiency, the National Knowledge Commission noted that of the 10 members of the BCI’s Legal Education Committee, only one was a full-time legal academic.

The lack of proper consultation is not just anathema to the law, but has also had an impact on the quality of BCI norms... To add to its woes, the 184th Law Commission Report noted several complaints from law schools that the BCI’s directives often “tend to be arbitrary.


......the BCI would do well to keep in mind that the purpose of law schools is not to merely mass-produce technically competent lawyers ready to serve the bar. Rather, it is to cultivate critical thinkers, social reformers and creative leaders free to pursue an array of career options. Law schools must therefore be encouraged to experiment with their curricula and conceptualise courses that foster critical and creative thinking beyond the black letters of the law."


Protest Letter

In order to protest against this sordid lack of consultation, some of us came together and drafted a letter to the BCI. This letter has been signed by leading academics such as Professor MP Singh (ex VC of NUJS and current Chairman of Delhi Judicial Academy) and Professor NS Gopalakrishnan of CUSAT.


The protest letter takes issue with deplorable comments made by the BCI in its submission to the Parliamentary Committee reviewing the Higher Education and Research Bill (HER). I extract the relevant portion of our letter below:

"We take very strong exception to your statement to the Parliamentary Standing Committee as below:
  
"How the academicians can decide the curriculum of legal education? The litigants, the needy people come in contact of lawyers, explain their problems and the lawyers and judges in turn, work out the solutions. So the lawyers are well conversant with the problems, and they are the best person to decide as to what is needed for the students perusing legal education. The norms, curriculum and syllabus are thus, the domain of Advocates, so far legal education is concerned. The academics have a limited role to teach the books which are almost all authored either by noted lawyers or the Judges."

We believe this is a seriously misguided sentiment and severely denigratory of the role that legal academics have played and continue to play in legal education today. While the efforts of practising lawyers and judges are no doubt important, the primary responsibility for legal education ought to vest in those that teach law full time i.e. legal academics/educationists."


The letter also calls into question a BCI circular mandating students and law teachers to register and pay money for an alleged online portal/database.
 
If any legal academics (or researchers) are interested in signing onto this letter, please email me (shamnad@gmail.com) and I will add your name. Please mention your full name, designation and your institutional affiliation (as you would like to appear in the protest letter). Please do this within the next couple of days, since we intend to submit this to the BCI at the earliest.
 
Petition at Change.org

We would also like to solicit the support of legal practitioners, law students and others within the larger ecosystem of the "law" (which really includes any member of the public). For this purpose, we have a pithy petition at
change.org. You can support the petition by simply clicking on the link here and adding your signature.

1 comment:

Tarunabh Khaitan said...

Thanks for highlighting this issue Shamnad. I believe that the stranglehold of the Bar Council on legal education in India is the chief reason why our law schools have remained vocational institutions which make reasonably competent lawyers, but have failed miserably in becoming places of genuine legal scholarship. In my short stay at the NUJS recently, it was evident that most of the faculty in the place had a fairly good idea of the structural reforms that would be needed to make it a real 'university'. shame they have negligible say in the Executive Committee. Unless academics run a university (with external input, where necessary), the place has little hope.