1. The mandate to the Commission is centred on regulating the conduct of advocates in the profession. It is necessary to point out that it would only be a piecemeal effort of addressing the issues involved if, we do not realise that the regulatory scheme for the maintenance of standards should run in a straight line from the stage of education and training to enrolment and active practice. Any laxity in standard-setting at the foundational level would multiply the problems at later stages.
2. Lawyers have been in the vanguard of a country’s progress and have always zealously guarded human liberties and the rule of law. Having specialised in the legal field, they champion the cause of victims of violations of fundamental and legal rights; protect the civil and human rights of the citizens. They also canvass before the courts that the action of the State cannot be arbitrary. Therefore, legal education should also prepare professionals equipped to meet the new challenges and dimensions of internationalisation where the nature and organization of law and legal practice are undergoing a paradigm shift. Further, there is need for original and path-breaking legal research to create new legal knowledge and ideas that will help meet these challenges in a manner responsive to the needs of the country and the ideals and goals of our Constitution. Today, legal education derives its impetus from the economic, socio-economic and political setup of the society.
A. Historic perspective
3 Legal education plays an important role in promoting social justice. Education or awareness of laws, characterises the lawyers as Social Engineers. Legal education was formally introduced in 1855 when it was started in Government Hindu College, Calcutta, Elphinstone College, Madras and Government Law College, Bombay.
4 Felix Frankfurter observed, “In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them.36”
5 The University Education Commission was appointed by Government of India under the chairmanship of Dr. S Radhakrishnan, “to report on Indian University Education and suggest improvements and extensions that might be desirable to suit the present and future requirements of the country37.” The Commission in its report submitted in August 1949 inter alia recommended substantial improvement in legal education.
B. Constitutional framework
6 The Constitution initially laid down the duty of imparting education on the States by putting the matter pertaining to education in List II of the Seventh Schedule. But it now forms part of List III, giving concurrent legislative powers to the Union and the States. Legal profession along with the medical and other professions also falls under List III (Entry 26). However, the Union is empowered to coordinate and determine standards in institutions for higher education or research and scientific and technical education besides having exclusive power, inter alia, pertaining to educational institutions of national importance, professional, vocational or technical training and promotion of special studies or research.
7 The Supreme Court, taking into account the provisions of articles 21 and 39A of the Constitution, directed the State Governments to provide grants-in-aid to the institutions imparting legal education38.
C. Reports of previous Law Commissions
8 The Law Commission of India, in its 14th Report published in 1958, titled “Reform of Judicial Administration”, emphasised on the standard of legal education and portrayed a dismal picture and lamented the system observing that legal education was imparted in large number of schools by part time teachers of mediocre ability and indifferent merits. There was mushroom growth of law colleges. Most of the schools had skeleton libraries. Students were taught how to pass LL.B. examinations by cramming short summaries published by enterprising publishers. Colleges were housed in dingy rooms without adequate trained staff. Such institutions were basically fee collecting centres as there was no institution with proper facilities. There was no regular attendance of students. Thus, the law college had been producing half-baked lawyers who did not even have basic knowledge of law and were considered as drones and parasites.
9 On the question of the Bar Council’s involvement in the regulation of legal education, it is worth noting that there has been some scrutiny given to the issue of what the appropriate body should be for the governance in higher education. As mentioned in the 184th Report of the Law Commission, the composition of the Legal Education Committee may need to be changed to accommodate specialized and dedicated persons in the education sector while also ensuring that legal education remains relevant to rapid developments in legal practice. The Commission also examined questions relating to standard-setting in legal education, skills and values, globalization and accreditation, ADR training, adjunct teachers from the Bar and the Bench, processes for establishment of law schools, apprenticeship, etc. However, the suggestions contained in the 184th Report have not been taken forward.
10 A similar line of reasoning is found in the National Knowledge Commission’s Report in 200939 which proposed and explained the need for an Independent Regulatory Authority in Higher Education as well as a Standing Committee for Legal Education with 25 persons representing all stakeholders. As part of this set-up, the Commission also made a number of suggestions regarding quality of education, rating systems, curriculum development, examination system, legal research, faculty talent, legal education finance, international dimensions and usage of Information and Communication Technologies.
D. Legal Position
11 The Supreme Court, through its decision in the matter of Bar Council of India v. Board of Management, Dayanand College of Law40, surveyed the statutory powers available to BCI under the provisions of the Advocates Act, as well as the Rules framed thereunder, and concluded that BCI was concerned with the standards of the legal profession and legal education in the country.
12 In Prem Chand Jain & Anr. v. R K Chhabra41, the Supreme Court emphasised at length the role and responsibility of University Grants Commission (UGC) vis-à-vis the regulation of standards of higher education in India.
13 The decision of the Supreme Court in the matter of University of Delhi v. Raj Singh42, is illuminative in this regard. The Supreme Court held that regulations framed by UGC prescribing qualifications for teaching staff would override and prevail over all other legislations in this regard. UGC’s regulatory character was succinctly reaffirmed by the Supreme Court in the case of Prof. Yashpal v. State of Chhattisgarh43, as well.
14 The BCI is envisaged as a body for regulating the minimum standards to be maintained by institutions imparting legal education, and the Rules framed by BCI in exercise of its powers under the Advocates Act, indeed provide for a comprehensive framework for the evaluation of institutions on de minimis criteria. However, a need for the qualitative improvement of the Bar has been long felt, and has also been the subject matter of judicial attention in V. Sudeer v. Bar Council of India44. Two measures have been recognised as imperative for the melioration of the standards of the legal profession, i.e., introduction of a bar examination as well as compulsory requirement of apprenticeship under a senior lawyer prior to admission to the Bar.
15 In 1994, in order to check the declining standards of the legal profession, a High Powered Committee on Legal Education, headed by Justice A.H.Ahmadi was constituted. This Committee recommended and reiterated the requirement for apprenticeship and a bar examination. The Bar Council of India (Training) Rules, 1995, were, therefore, framed by BCI in furtherance to the recommendations of the said Committee, which were struck down by the Supreme Court in V. Sudeer45.
16 The law colleges require transformation in infrastructure and resources. Library facilities in our law colleges need to be upgraded, for which resources have to be mobilised.
17 Legal education in India should be structured in a manner where the BCI, along with legal academics may endeavour to innovate, experiment and compete globally. A balance should be maintained in order to change the entire fabric of legal education system in India, keeping in mind the necessity of globalisation.