Report No. 184
Training and Apprenticeship
12. Before the Advocates Act, 1961 was enacted, there was a system by which a law graduate had to undergo training by way of apprenticeship in the chambers of a lawyer for one year and pass a separate Bar examination conducted by the Bar Council on the subjects of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1898.
It was only after a law graduate successfully completed his apprenticeship and the Bar examination that he became eligible to be enrolled as an Advocate. (Prior to 1961, the enrolment had to be moved in the court of the Chief Justice of the High Court concerned and the motion for enrolment was to be by a senior advocate practicing in the High Court. There was convention of a brief interview in the chambers of the Chief Justice of the High Court before the enrolment was later moved in open court on the same day).
12.1 After the Advocates Act, 1961 came into force, the procedure for apprenticeship was continued by virtue of clause (d) of subsection (1) of section 24. (The enrolment was, however, to be before the enrolment committee of the State Bar Council.) That clause required the graduate in law to undergo a course of "training in law and pass an examination after such training", before he could be enrolled. Certain categories of persons were exempted under a proviso to the said sub-clause.
12.2 In the year 1964 there were certain amendments to section 24 but it is not necessary to refer to them in as much as in 1973, by Act 60/73, clause (d) of subsection (1) of section 24 was omitted and the amendments made in 108 19.4 to the proviso were also omitted. The result was that after 1973, there was no requirement of the training or the Bar examination.
12.3 Yet another amendment related to the rule making power of the State Bar Councils. In section 28 (2)(b), the clause permitting the State Bar Council to make rules regarding the training and Bar examination was also deleted by the same Act 60 of 1973.
12.4 In 1994, the Chief Justice of India, Justice M.N. Venkatachaliah constituted the Ahmadi Committee on Legal Education. The Committee consisted of Justice A.M. Ahmadi, Justice B.N. Kirpal and one of us (Justice M. Jagannadha Rao). The Committee wrote to all Chief Justices of High Courts seeking their views. Almost all the Chief Justices felt that having regard to deterioration in the standards of students and in skills of advocacy, it was incumbent for the Bar Council of India to reintroduce the Training Programme for graduates. Responses were also received by the Committee from State Bar Councils and the Bar Council of India.
12.5 After the Ahmadi Committee Report in 1994, the Bar Council of India reconsidered the earlier decision of 1973 and decided to reintroduce the Training for one year after graduation. It accordingly made Rules soon after 1994 and the Rules were replaced by fresh Rules made on 19.7.98. It is these rules that were challenged in the Supreme Court. The Supreme Court considered the question in V. Sudheer v. Bar Council of India 1999 (3) SCC 176 whether, having regard to the legislative history which revealed that the Training was part of the mandate in the Act, the same could not be reintroduced by way of a Rule by the Bar Council of India.
The court held that once the relevant statutory provisions in section 24(1)(d) or in the proviso thereto were deleted and also when the subject of Training which was one of the items enumerated in clause (b) of subsection (2) of section 28, (sec. 28 being the section relating to rule making), was deleted in 19.3, the Bar Council of India could not have made any rule regarding Training and such a condition had to be introduced only by an Act by the Legislature. It was also held that it was for the State Bar Councils to introduce Training and that the Bar Council of India could not by itself introduce the Training.
12.6 It must be noted that the Supreme Court in V. Sudheer's case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary. On the other hand, it expressly endorsed the need for reintroducing training and accepted the recommendations of the Ahmadi Committee. It said: (pp. 210.211)
"Before parting with these matters, it is necessary to note that in the light of the experience of various courts in which advocates are practising since the time the Advocates Act has come into force, the Law Commission of India and other expert bodies that were entrusted with the task of suggesting improvements in the standards of legal education and legal practitioners felt it necessary to provide for compulsory training to young advocates entering the portals of the courtrooms. Training under Senior Advocates with a view to equip them with court craft and to make them future efficient officers of the court became a felt need and there cannot be any 110 dispute on this aspect.
In fact, the question of making some suggestions regarding admission to law colleges, syllabus, training, period of practice at different levels of courts, etc., was taken up as Item 16 in the last Conference of the Chief Justices held in December 1993. The Conference resolved that Hon'ble the Chief Justice of India be requested to constitute a Committee consisting of Hon'ble Mr. Justice A.M. Ahmadi as its Chairman, and two other members to be nominated by Hon'ble the Chief Justice of India to suggest appropriate steps to be taken in the matter so that the Law graduates may acquire sufficient experience before they become entitled to practise in the courts.
The said High-Powered Committee, after inviting the views of the Chief Justices and State Bar Councils as well as the Bar Council of India made valuable suggestions. The relevant suggestions in connection with legal education are Suggestions 1, 12, 13, 15, 16 which are required to be noted. They read as under:
1. In laying down the standards of legal education, the Bar Council's 'Legal Education Committee' constituted under Rule 4 of Chapter III of the Bar Council of India Rules, 1965 must reflect the participation of representatives of (1) the judiciary, (2) the Bar Council and (3) the UGC. It is proposed that the Rules be amended and the Legal Education Committee be restructured to involve the bodies above-mentioned.
12. Rule 21 of the Bar Council Rules directing that every university shall endeavour to supplement the lecture method with case method, tutorials and other modern techniques of imparting legal education must be amended in a mandatory form and it should 111 include problem method, moot courts, mock trials and other aspects and make them compulsory.
13.(i) Participation in moot courts, mock trials, and debates must be made compulsory and marks awarded, (ii) practical training in drafting pleadings, contracts can be developed in the last year of the study, and (iii) students' visits at various levels to the courts must be made compulsory so as to provide a greater exposure.
15. Entrance into the Bar after 12 months or 18 months of apprenticeship with entry examination. For obtaining the licence/sanad from State Bar Councils it must be prescribed that one should secure at least 50 per cent or 60 per cent marks at the Bar Council examination.
16. So far as the training under a Senior Lawyer during the period of one year or 18 months of apprenticeship, the Act or the Rules must stipulate that the senior must have at least 10 or 15 years' standing at the District Court/High Court and the student's diary must reflect his attendance for three months in the grassroot level in a civil court and for three months in a Magistrate's Court and at least six months in a District Court. The advocate in whose office he works must also certify that the student is fit to enter the Bar. Unless these formalities are completed, the student should not be permitted to sit for the Bar Council examination."
12.7 After saying so, the Supreme Court further observed (p. 211) as follows:
"It is true that these suggestions of the High-Powered Committee clearly highlighted the crying need for improving the standards of legal education and the requirements for new entrants to the legal profession of being equipped with adequate professional skill and expertise. There also cannot be any dispute on this aspect. However, as the saying goes "a right thing must be done in the right manner". We appreciate the laudable object with which the Bar Council of India has framed the impugned Rules for providing training to the young entrants to the profession by laying down details as to how they should get appropriate training during their formative years at the Bar.
Unfortunately for the Bar Council of India, that right thing has not been done in the right manner. We equally share the anxiety of the Bar Council of India for evolving suitable methods for improving the standards of legal education and legal profession. The aforesaid recommendations made by the High-Powered Committee could have been put into practice by following appropriate methods and adopting appropriate modalities by the Bar Council of India."
12.8 The Supreme Court further observed that the need to introduce training is a matter which cannot be left to the decision of the State Bar Councils. In as much as an enrolled lawyer can practice anywhere in India, this power of prescribing training and examination must be entrusted to the Bar Council of India so that the training could be uniform. The Supreme court observed: (p. 212-213)
"It is easy to visualize that appropriate amendments in sections 7 and 24.(1) would have clothed the Bar Council of India with appropriate 113 power of prescribing such pre-enrolment training for prospective entrants at the Bar. That would have provided an appropriate statutory peg on which the appropriate rule could have been framed and hanged. It is also necessary to note in this connection that merely leaving the question of providing pre-enrolment training and examination to only the State Bar Councils may create difficulties in the working of the all-India statute.
It goes without saying that as an enrolled advocate is entitled to practise in any court in India, common standard of professional expertise and efficient uniform legal training would be a must for all advocates enrolled under the Act. In these circumstances, appropriate statutory power has to be entrusted to the Bar Council of India so that it can monitor the enrolment exercise undertaken by the State Bar Council concerned in a uniform manner.
It is possible to visualize that if power to prescribe pre-enrolment training and examination is conferred only on the State Bar Councils, then it may happen that one State Bar Council may impose such pre-enrolment training while another Bar Council may not and then it would be easy for the prospective professional who has got the requisite Law Degree to get enrolment as an advocate from the State Bar Council which has not imposed such pre-enrolment training and having got the enrolment, he may start practice in any other court in India being legally entitled to practise as per the Act.
To avoid such an incongruous situation which may result in legal evasion of the laudable concept of preenrolment training, it is absolutely necessary to entrust the Bar Council of India with appropriate statutory power to enable it to prescribe and provide for all-India basis pre-enrolment training of 114 advocates as well as the requisite apprenticeship to make them efficient and well-informed officers of the court so as to achieve better administration of justice. We, therefore, strongly recommend appropriate amendments to be made in the Act in this connection."
12.9 The Supreme Court suggested that before the Act is amended on the above lines for introducing Training, in the meantime, in-house training may be given to the new recruits after enrolment, as a temporary measure for a period of one year.
12.10 The Supreme Court also referred in (para 34) to the suggestions of the court as extracted in a letter dated 24.9.1977 of the Counsel representing the Bar Council of India. Those suggestions also included the Training programme for one year and a practical test. Certain further suggestions were given in para 5 in relation to those who have worked in solicitors' offices or as corporate lawyers.
We may refer to the following observation at p. 213 of the Judgment:
"We, therefore, strongly recommend appropriate amendments to be made in the Act in this connection."