Report No. 184
(ii) Second stage of consultation thereafter should be with the body nominated by UGC, as now proposed:
4.2 The consultation by the Bar Council of India with the UGC Committee on Legal Education will be after the consultation with the State Bar Councils and will have to be as follows.
4.3 As stated above, the Legal Education Committee of the Bar Council of India will consult the State Bar Councils and will have to provisionally finalise its proposals. This will be for the purpose of the further consultation with the UGC Committee on Legal Education. The said proposals will then have to be sent by the Legal Education Committee of the Bar Council of India to the UGC Committee on Legal Education.
That Committee will have the benefit of the views of the three academicians who are also in the Bar Council of India's Legal Education Committee and once the views of the UGC Committee are finalized, the decision of the UGC Committee will have to come back to the Bar Council of India's Legal Education Committee for discussion. Once again the three academician members can explain the views of the UGC Legal Education Committee to the Bar Council of India's Legal Education Committee.
The two members from the Judiciary will also consider these views. Once the Bar Council Legal Education Committee considers these views, a collective decision has to be taken in the said Committee by all the ten members, including the Chairman (the retired Judge of the Supreme Court). In the new scenario, it is expected that the BCI Legal Education Committee and the UGC Legal Education Committee will give due and proper consideration to each other's views and arrive at a consensus.
Of course, in 39 the absence of a consensus, the majority view of the Legal Education Committee of the Bar Council will have to prevail. It is expected that at such a meeting, all the members and, in particular, the retired/sitting Judge of the High Court, will invariably be present to help in the emergence of a satisfactory solution to any problem arising out of differences between the BCI Committee and the UGC Committee.
4.4 In certain situations, the Faculty may like to initiate and place some suggestions before the Bar Council of India. There must, therefore, be a separate procedure whereby the UGC Committee on Legal Education may initiate and send its suggestions to the Legal Education Committee of the Bar Council of India. In that event, the latter Committee shall first consult the State Bar Councils and then after arriving at a provisional view, refer the same to the Legal Education Committee of the UGC. The said Committee will give its final views and forward the same to the Legal Education Committee of the Bar Council of India.
4.5 The second aspect which the Bar Council has to take care of is that whenever a new curriculum is introduce.- sufficient advance notice must be given to the law schools so that they can take steps to conform to the prescriptions. Let us assume that new subjects in intellectual property or cyber law or environmental law are proposed to be introduced. It may be noted that all the 460 law schools may not immediately be able to get 460 law teachers in each of these subjects who are duly qualified and who can take up these classes.
There may be other difficulties like non-availability of standard books which can meet the requirements of students. There have been serious complaints from managements and faculty that some of 40 the Bar Council's directives tend to be arbitrary. These reactions of the law schools cannot be treated as resistance or disobedience. The practical difficulties in the way of law schools must also be taken into account.
4.6 For example, in the recent curriculum which has been circulated by the Bar Council of India, there are quite a good number of matters which perhaps require a second look. The manner in which some important subjects have been put in the list of optional subjects and the manner in which two subjects which have not much of connection, have been joined together in one paper, appears to require correction. In a number of conferences and articles published by the Faculty, these anomalies have been pointed out.
It appears to the Commission that there is considerable force in the view of the Faculty that effective consultation and greater interaction with the Faculty would have eliminated such anomalies. This view was also expressed at the Conference on 12.8.2002, of Law Professors organized by the National Law School of India University. Several articles have been published by experienced Professors in the volume published after the All India Conference of Faculty at the Delhi University in Jan. 1999 entitled "Legal Education in India in 21st Century, Problems and Perspectives" edited by Prof. A.K. Kaul and Prof. V.K. Ahuja.
The suggestions of the Faculty require serious consideration. We have already referred to Prof. Gurdeep Singh's article "Revamping Professional Legal Education: Some observations on the LL.B Curriculum Revised by the Bar Council of India" and we feel that it will be extremely useful to read the said article.
4.7 It must be noted that standards of legal education relate to various aspects of legal education. They are known to the Bar as well as to the Faculty. Hence, they must be arrived after a thorough study and after an effective interaction between the Bar Council and the Faculty. Bar Councillors and Judges and faculty members of the Legal Education Committee must make an in-depth study of the subject of 'Legal Education' which is a specialized branch by itself. It is not sufficient either for the Bar or Faculty to have a general or vague idea about Legal Education.
There is voluminous literature both Indian and foreign on the subject. If one reads the Report of the Curriculum Development Centre of the UGC 1988-1990, one will notice that it is very elaborate and consists of various aspects of Legal Education and runs into 800 pages and the subsequent Report of 2001 consists of 500 pages. There are several earlier reports. (See also the articles in the Journal on Legal Education available in the Indian Law Institute). The recent curriculum prepared in 2001 by the National Law School University, Bangalore is said to be on the basis of the Mac Crate Report and Harvard models.
Of course, whatever is adopted must suit Indian conditions. New courses are necessary in the light of liberalization, privatization and globalisation. The standards of legal education concern the entry to the college, the curriculum, as also the method of examination at the time of entering the college and leaving it or entering the profession and the qualification of teachers etc. There must be full coordination between the Bar Council and the Faculty on these matters.
4.8 There is one other aspect here which concerns the implementation of the recommendations of the Legal Education Committee of the Bar Council of India by the Bar Council of India. The earlier Working Paper of the Law 42 Commission suggested that the Bar Council of India should accept and act in accordance with the decisions of the Legal Education Committee of the Bar Council of India. It is very gratifying to note that in the letter of the Bar Council of India dated 3.8.2000, the Bar Council of India has agreed to implement the recommendation of its Legal Education Committee without raising any objections.
In the said letter dated 3.8.2000, the Bar Council of India has further explained the various matters in regard to which the Legal Education Committee could give its views. This is a very happy augury and obviates the introduction of any provision like section 20 of the Medical Council Act, 1956 which requires that in the event of any difference between the Committee of the Medical Council and the Medical Council of India, the matter will be referred to the Central Government. The proposal of the Bar Council of India in its letter dated 3.8.2000 is that section 7(1)(h) should read as follows:
"to lay down standards of professional legal education in accordance with the recommendations of the Legal Education Committee of the Bar Council of India, which, inter alia, includes curriculum, teaching methods, examination, admission of students, number of teachers, location and infrastructure requirements, and management in consultation with."
4.9 There can be no objection to this proposal. Therefore, the views of the Legal Education Committee of the Bar Council are to be implemented by the Bar Council of India.- without demur.
4.10 As to the co-ordination between the Bar Council of India and the faculty, it is advantageous to refer to the 14th Report of the Law Commission in regard to 'Consultation process and the minimum standards' to be prescribed by the Bar Council of India. As to the meaning of 'standards', we shall dealt with this aspect in Chapter V.
4.11 The 14th Report of the Law Commission (1958) presided over by Shri M.C. Setalvad dealt with the above aspects in extenso. It is worthwhile to refer to that Report. It stated (p. 546, para 54) as follows:
"We have already seen how in England, professional legal education and the admission to the profession are controlled by a body consisting exclusively of professional men. There is no reason why a similar control and regulation should not be vested in the profession in India. Co-ordination between the bodies regulating professional training and the Universities with a view to ensuring minimal standards can be achieved in the manner indicated above.
In our view the Legal Education Committee of the All India Bar Council may be empowered to keep itself in touch with the standards of legal education imparted at the various Universities by visits and inspection as in the case of the medical and dental professions or as is done by the American Bar Association in the case of the American Law Schools.
If the Council or its Committee is of the view that the standards prescribed by a particular University in legal education are not adequate or that institutions established by it or affiliated to it for imparting legal education are not well-equipped or properly run, it may decide to refuse admission of the graduates of that University, to the professional examination till the University has taken steps to reach th e minimum standards."
That is how the principle of the Bar Council of India laying down minimum standards necessary for the profession came into existence. Obviously, the UGC or the University cannot reduce these standards. Of course, they can certainly require higher standards (say) for LL.M and Ph.D. degrees even for LL.B they can lay down higher standards.
4.12 In this connection, it is necessary to refer to the recommendation 25 at page 550 of the 14th Report of the Law Commission which is as follows:
"train whether law colleges maintain the requisite minimum standards and should be empowered to refuse recognition, for the purpose of entry into the profession, of degrees conferred by institutions which do not conform to the minimum standards."
Similar is the view expressed by the Justice Ahmadi Committee in 1994. After referring to the judgments of the Andhra Pradesh and Karnataka High Courts, the Committee stated:
"It is also the view expressed by Courts that the Bar Council lays down only the minimal standards required at the entry point into law college and the enrolment point into the profession. (AIR 1972 AP 206 and AIR 1985 Karn. 223)"
In the Karnataka High Court Judgment quoted by the Committee, viz. Sobhana Kumar v. Mangalore University (AIR 1985 Karn 223), Rama Jois, J (as he then was) observed:
"A combined reading of these provisions (Sec. 49(1)(af) and section 7 of the Advocates Act) show that the Bar Council is invested with the responsibility of ensuring standards of legal education and it is also empowered to prescribe the minimum conditions of eligibility for admission to the law course. Therefore, the universities cannot prescribe any conditions of eligibility for admission to the law degree course which is lower than the conditions of eligibility prescribed by the Bar Council."
4.13 This appears to be the legal position.- It is hoped that, if the Bar Council of India and the faculty implement the proposals made in Chapters III and IV, the difficulties faced by the Bar Council of India in regard to consultation with all Universities and the grievance of the faculty in regard to insufficient consultation, will get resolved.
4.14 The proposals are, therefore, for the constitution of the Legal Education Committee of the University Grants Commission of ten members, of whom six would be academicians in office of the level of Professors, Deans or Principals or of equal rank and two law teachers of 46 similar ranks who have retired and two should be Directors/Vice Chancellors of statutory Law Universities.
4.15 The further proposal is in regard to consultation between the Legal Education Committee of the Bar Council of India and the Legal Education Committee of the UGC and its acceptance and implementation by the Bar Council of India.
4.16 Provision is also to be made for the Legal Education Committee of the UGC to initiate and make suggestions to the Legal Education Committee of the Bar Council of India, and the latter shall then follow the procedure of consulting the States Bar Councils and the UGC Legal Education Committee.
4.17 It is also proposed that the Legal Education Committee of the Bar Council of India shall, while passing resolution concerning standards of legal education, have regard to the following factors:
(a) the time required for the law schools to provide the necessary infrastructure;
(b) availability of books or faculty members who are qualified to teach any new subject that may be introduced in the curriculum;
(c) availability of funds with the law schools to implement the resolution or the time required to gather the necessary funds.
4.18 The proposals for the constitution of the UGC Legal Education Committee are contained in the proposed amendment to the UGC Act and 47 the proposals for the consultation process are contained in the proposed section 10AA to be inserted in the Advocates Act, 1961.
4.19 The consultation process will be as stated in para 4.3, 4.4, 4.5 above and in the other paras of the Chapter.
4.20 We, therefore, recommend that new section in the form of section 10AA be inserted in the Advocates Act, 1961 for providing consultation procedure as follows:-