Report No. 184
12.11 In view of the specific recommendation or rather directive of the Supreme Court of India, it becomes necessary to reintroduce the provisions relating to Training programme and examination.
12.12 As per the information furnished in the "Directory of Commonwealth Law Schools, 2003/2004" published on behalf of the 'Commonwealth Legal Education Society, UK', in most of the countries like Australia, Bangladesh, Canada, Hong Kong, Malaysia New Zealand, Pakistan, Singapore, South Africa and UK, some period of training or apprenticeship or pupilage and the passing of Bar examination, completion of course are mandatory before a student enters into the legal profession. Similar is the situation in other countries like Botswana, Cameron, Caribbean, Malawi, Malta, Mauritius, Namibia, Nigeria, Papua New Guiana and Zambia.
In the recent conference in the National Law School, Bangalore on 12.8.2002 of faculty from all over India, lawyers and judges expressed their views in regard to apprenticeship. Sri K.K. Venugopal, Senior Advocate, stated that having regard to the fact that 90% of students are likely to go to the Bar in courts located in mofussil areas or district headquarters and as these students have come from several colleges located in those areas, apprenticeship after law degree and before practice and Bar examination must be reintroduced for such students.
12.13 No doubt, in recent times, some law schools are deputing their students for 'placement' to the chambers of several senior lawyers or law firms in cities like Delhi, Bombay, Calcutta, Chennai, etc., for a few weeks each year. This method of 'placement' is good and must be encouraged. But, it must be noted that students from only a few of the top law school.- may be about 10 or 20 law schools in the countin.- are now getting this benefit but the bulk of the students from the remaining over 400 law schools are not getting the benefit. In fact, it is practically difficult for 116 senior counsel in these big cities to increase the number of 'placement students'.
The senior counsel cannot be overburdened by sending a large group of students nor will senior counsel agree to take a large number. The Bar Council has, therefore, to take care of the students who cannot get entrance to the chambers of seniors in big cities and indeed, who cannot afford financially to stay in the big cities for the purpose of placement. A student in a remote college in Madhya Pradesh, North East or Gujarat or Bihar or from the South cannot go to these big cities or get placement.
The Law Commission is, therefore, of the opinion that 'placement' is not a substitute for 'apprenticeship'. Further, placement in chambers of seniors in Supreme Court or High Court does not always give an insight of what is happening at the grass-root level in the trial courts. Students must get sufficient knowledge and experience of courts at various levels. That is why, placement procedure, which cannot cater to the needs of students from all the 400 law schools and odd.- cannot be an effective substitute for one year apprenticeship.
12.14 In this connection, we may point out that in several countries across the world, a graduate from the Bar is not permitted to get enrolled and practice straightaway. There is a period of training between one year or more. In some countries it even extends to 5 years. Today, an advocate in India, once enrolled, can directly address even the Hon'ble Judges in the Supreme Court of India. We do not think that in India we should allow the law graduates to address any Court straightaway without further training and a Bar examination.
12.15 There are other good reasons why a graduate should undergo the Training and pass the Bar Examination. It is true that several parts of the legal skills have been introduced into the curriculum. But still, there is a great difference between learning about the skills in the college curriculum and witnessing the actual presentation of skills in court.
Once a person joins the office of a senior and studies an individual case, either at the trial stage or at the appellate stage, watches the preparation and research of the senior in his chamber, or assists him in the preparation or research or the actual process of witness examination, discovery, inspection procedures in a civil case or the actual arguments in interlocutory matters, (e.g. injunction or receiver applications) or the arguments at the final stage of the trial or appeal or watches the preparation in a criminal case from the stage of anticipatory bail to the ultimate stage of arguments after the tria.- then only can he realize the difference between reading about skills and the actual performance of skills .
There are so many legal skills in the profession which can be learnt only in the chambers of a lawyer or in a court and these are learnt day by day. All these cannot be learnt in the college even though, the studying in college may give the student some idea of the skills. In fact, there is a further difference between a lawyer assisting his senior in the court and the lawyer himself arguing the case.
12.16 In the light of the observations of the Supreme Court, the opinion of the Ahmadi Committee and the opinion of the Chief Justices of the High Courts, and the need to revamp the Legal education system, we recommend amendment of the Act, reintroducing the Training Program and the Bar examination.
12.17 There is a strong view that when some students are passing out of good Law schools, there is no need for further training. Here we have to keep in mind not the students coming out from the few star colleges or universities but from the bulk of the colleges in various other places in the cities, district headquarters and other mofussil areas.
These are the students who go to the courts at the grassroot level upon enrolment. Rules regarding pre-enrolment training and examination cannot be restricted to a few students. They have to apply to everybody. The Supreme Court in Sudheer's case suggested exemption only in two types of case.- those trained in solicitor's office or in corporate work but we have considered this aspect and do not recommend any exemption, having regard to the current scenario of deteriorating standards.
12.18 Some more objections to training are raise.- some say that a student can easily 'cook up' the diaries meant to be maintained while attending the chamber of a senior lawyer or after attending court. Some say that very few seniors have time to interact with these young graduates. We do not agree that these objections have any relevance.
If there are some students who do not take the training seriously or if there are some seniors who take these apprentices into their chambers and do not have time, we cannot blame the system. Then why are these same critics supporting 'placement' with seniors. One should see how a similar system is working satisfactorily in the case of Chartered Accountants. Again, a medical graduate has to go through 'housemanship' for one year. We do not see any good reason as to why law graduate should not.
12.19 Yet another objection is that the student has already spent 5 years at the college level and his right to make a living should not be postponed by one more year. We do not agree. The student, once he starts practicing in the court, is dealing with important rights of those who approach the court, such as civil rights or constitutional rights or rights relating to the liberty of a person accused in a criminal case. A single mistake in drafting a legal notice may ruin a case or an error in a plaint or written statement may ultimately be the cause for a person losing a case.
A single wrong question in cross-examination may again be the sole cause for a party losing a civil case or in his getting convicted in a criminal case. We are of the view that the 'legal profession' is a profession which is at least as serious as that of a chartered accountant or a medical doctor. Unfortunately, in the last five decades, everybody has come to think that it is easy to pass a law examination, and that whatever be one's training or knowledge and whatever the means, it is not difficult to attain success in the profession. It is this attitude that has diluted the quality of the profession.
12.20 We may next refer to another aspect of the matter. In a recent judgment in All India Judges Assn. v. Union of India, 2002 (3) Scale 291, the Supreme Court issued a direction that law graduates from college must be enabled to directly enter the Judicial service at the lowest level instead of being required to have a minimum experience of 3 years at the Bar but that after entering service, they should be given one year's training.
12.21 We have referred to the above judgment of the Supreme Court in the context of the question relating to 'training'. If in some States law 120 graduates are proposed to be recruited straightaway as observed by the Supreme Court, at least a one-year apprenticeship and Bar examination before enrolment, would be certainly advantageous and, in fact, will be necessary.
12.22 We may also point out that in some countries, apart from training and Bar examination, there is also a requirement of periodical renewal of the permission to practice granted by the Bar Council. There are mandatory requirements for attending courses in continuing legal education. We do not have such a system. In that light, to insist upon one year training and Bar examination at the threshold before enrolment, cannot, in our view, be objected to seriously.
12.23 We, accordingly, recommend reintroduction of training and Bar examination by the Bar Council of India as follows:
(A) Insertion of clause (ha) in sub-section (1) of section 7 as follows:
"(ha) to ensure that sufficient practical training is imparted to candidates seeking to enroll at the Bar, by way of attachment to legal practitioners and also to prescribe for matters relating to the conduct of Bar examination for such candidates in accordance with the provisions of clause (d) of subsection (1) of section 24."
(B) Insertion of clause (d) in sub-section (1) of section 24 as follows:
"(d) after obtaining a degree in law recognized under clause (i) of sub-section (1) of section 7, he has undergone a course of training by way of attachment to a legal practitioner of more than ten years' standing, for such duration not less than one year and has qualified at the Bar Examination in such manner as may be prescribed by the Bar Council of India".
(C) Insertion of clauses (ai) in section 49 as follows:
"(ai) the period of training and conduct of Bar examination and matters relating thereto under clause (ha) of sub-section (1) of section 7 and clause (d) of sub-section (1) of section 24;
Back
