Legislations and Policies

A Policy Analysis of the Bar Council’s Notifications

Avinash Kumar Yadav, Amartya Vikram Singh

BCI

In an attempt to reform the legal profession, the regulatory body for Legal Profession and Education in India – the Bar Council of India notified the abolition of the 1 Year LL.M. course currently being offered in most law colleges across India and has also recommended a mandatory 3-year prior work experience as an advocate for those seeking to join the Subordinate Judicial Services so that judicial magistrates don’t suffer from lack of experience. This piece seeks to analyze these two decisions which are expected to have huge implications on aspiring litigators and judges across the country.

3-YEAR MANDATORY PRACTICE FOR JUDICIAL SERVICES EXAM ASPIRANTS

In 2020, the Bar Council of India (BCI) filed an interpleader application before the Supreme Court of India in Regalagadda Venkatesh v State of Andhra Pradesh in which the petitioner sought to quash Rule 5 (2)(a)(i) of the Andhra Pradesh State Judicial Service Rules, 2007 as violative of Articles 14 and 21 of the Constitution of India, for mandating 3-years of prior experience as an advocate for appointment as a civil judge. In a press release, the BCI stated that “The inexperience at the Bar is one of the primary and major reasons for delays in the disposal of cases in the subordinate Judiciary Trained and experienced judicial officers can comprehend and dispose of matters at a much faster pace, thereby leading to the efficient administration of justice.”  


The ‘Mandatory Experience’ Clause

A similar ‘mandatory experience’ clause stipulating three years of experience as an advocate as a condition for judicial appointment has already been adjudicated upon and removed by the Supreme Court in All India Judges Association and Ors. v. U.O.I.(2002), where it was held that “…experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an Advocate for at least 3 years should be done away with.” The court had also recommended that freshly recruited judicial magistrates should be imparted judicial training for a minimum of one, and preferably two, years – to supplement their inexperience at the bench.

Therefore, the present ‘mandatory experience’ clause is colored in the language of judicial pendency: the crux of the BCI’s argument is that judicial pendency and delays primarily emanate from the inexperience of subordinate judicial magistrates at the bar and that a three-year minimum legal practice will improve this situation. However, structural analysis of the functioning of the judicial system reveals otherwise. The Economic Survey (2018-19), Volume 1 released by the Union Government presented an in-depth account of the working of lower judiciary and judicial delays. The survey pointed out that only by filing up all the existing judicial vacancies could the judicial system achieve a 100% case clearance rate  (implying zero pendency).

According to the survey, the backlog in lower courts can be cleared in five years, by operating at its full sanctioned strength with a cumulative efficiency gain of 24.5%. At current working strength, it would take a cumulative efficiency gain of an exorbitant 58% to resolve our pendency, but at 100% working strength the judicial system would only require a net 4.3% increase in efficiency to beget similar results. The Survey further identified that criminal cases constitute the bulk of pending matters, implying that there is a need for additional specialized judges to dispose of such matters to reduce pendency in criminal matters. Attention has also been drawn  to certain procedural matters causing judicial delay. In civil cases, certain stages such as the records and proceedings stage take up to 398 days; similarly, in criminal cases, stages like the evidence stage take up to 235 days. The process for both civil and criminal cases can be significantly accelerated by targeting the delay in these specific stages. Thus, it is not judicial inexperience  but reasons like judicial vacancies, absence of specialized judges and other procedural issues which are at the center of judicial pendency in India.

Having thus identified the problem-solution mismatch that informs the Bar Council’s notification, this piece will now elaborate upon the policy implications of the same.


Financial Stability for Young Lawyers

The Judicial Services examination has economic viability, in light of the intense competition at the Bar across the country, where fresh law graduates and especially first-generation litigators often aspire towards judicial service as a primary career choice since it is a respectable field securing financial independence for such young law graduates by allowing deserving candidates to enter the legal profession on the basis of objective criteria viz a 3 stage exam. In the Justice, Access and Lowering of Delays Initiative (JALDI) Report, the Vidhi Centre for Legal Policy has surveyed lawyers across the 8 most prominent High Courts in India including Delhi, Allahabad, Madras etc., and found out that nearly 80% of those surveyed said that advocates with less than 2 years of practice earn less than Rs.10,000 a month, whereas candidates who have cleared the Subordinate Judicial Services examinations draw a starting salary of Rs.58,000-70,000, along with other perks and facilities.

In the immediate aftermath of the Bar Council’s recent recommendations, the apprehensions of the Justice Shetty Commission 1996  – that 3 years of mandatory prior experience could make judicial services less attractive for law graduates – might just ring true. As such students would look to enter amongst others, the booming corporate law sector to gain financial stability, a trend that has already captured the mainstream with the advent of the National Law University (NLU) model of legal education in India. To this effect, the notification is counterproductive to the BCI’s stated intent in curing judicial pendency.


Practical Legal Education

The BCI  has been statutorily empowered as the primary body to regulate legal education in India. Its grievance regarding the inexperience of subordinate judicial magistrates could have been remedied at the entry stage itself. The Bar Council could feasibly mandate all law colleges across India to update their course curriculum to ensure students also gain practical knowledge of the legal system during the pendency of their course. This could be brought about even by taking innovative steps like adding a subject called ‘Practical Laws’ in every semester – which would require law students to complete short term assignments in different fields of the legal profession i.e. under  Judges, Lawyers, Magistrates, Law Firms etc. as they proceed through different stages of law school. The students can then be evaluated based on the experience gained from this exercise as a part of the law school’s overall evaluation methodology. However, such a proposal to add a mandatory ‘Practical Laws’ course should not be substituted for voluntary internships which laws shall be free to undertake as suited to their interests. Such innovative solutions would ensure that fresh law graduates do not suffer from a lack of experience or familiarity with the legal and judicial system. 


Judicial Training

One constant counter-argument to the enforcement of a mandatory experience clause recommended by the Bar Council of India is the 1-year mandatory training clause for newly recruited judicial magistrates, the importance of which was also emphasized by the Supreme Court in the 2001 All India Judges Association case. Currently, most states follow a 1 Year Judicial training program, the duration of which could be suitably increased to 2 or even 3 years, and which could be expanded to include a defined minimum period of supervised work, under the supervision and guidance of eminent advocates in addition to the period that judicial trainees already serve under the supervision of a Senior Civil Judge. A recusal clause could be inserted in the judicial service rules which would debar a magistrate/judge from presiding over any case which involves an advocate under whose supervision the judge/magistrate had been trained. Adding eligibility criteria such as this for new recruits to assume charge as Judicial Magistrate (2nd Class) could further mitigate the issue of judicial inexperience sought to be tackled by the BCI. In any case, a number of alternate solutions within the scope of the BCI’s power, such as the ones discussed above, could have been leveraged to resolve the issues of inexperience and pendency – other than the mandatory experience clause.


INCREASE IN DURATION OF CURRENT 1-YEAR LLM COURSE

On January 2, 2021, in exercise of its power to regulate legal education in India under section 7(1)(h) of the Advocates Act, 1961,  the BCI issued the notification titled Bar Council of India Legal Education (Post-Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education), Rules, 2020. One of the significant highlights of the said rules is the scrapping of the one-year L.L.M. course introduced by the University Grants Commission (UGC) in 2013, and the introduction of a Post Graduate Common Entrance Test in Law (PGCETL) to replace the existing Common-Law Admission Test PG (CLAT-PG). Rule 5(b) of the said rules states that with effect from the academic session after these Regulations are notified, a post-graduate legal course (LL.M) will be understood to mean a two-year course extending to 4 semesters. However, this move by the BCI has been severely criticized for several reasons, the most significant of them being that an increase in the duration of the LLM program is expected to discourage many deserving candidates from pursuing the Postgraduate degree, and that rule 20(3) of the notification regarding LLM from any ‘highly accredited Foreign University’ is ambiguous.  

The current one-year postgraduate course in India is quite expensive and costs up to Rs.2.5 lakhs per annum in the National Law Universities, and upwards of Rs.4.0 lakhs per annum in private institutions. These figures are already higher than the fees charged for undergraduate courses in such institutions. As such, an increase in the duration of the LLM degree is most likely to double the amount that the students will have to pay for the course, making it unaffordable for numerous students with a poor economic background to enroll for them. The situation is worse for women candidates, who are forced into marriages at a comparatively lower age than men. According to Table 1.12 of a report by the Ministry of Statistics and Program Implementation titled ‘Women & Men in India 2019’, the mean age of women at the time of marriage was found to be 22.1 years. Early marriages almost make it impossible for women to pursue further education and hence the new guidelines are a hindrance to women above a certain age aspiring to obtain a postgraduate degree. Further, the increase in the duration of the course will lead to delay in employment opportunities which might discourage people, and force them to take up early jobs rather than pursuing an LLM degree. Hence, the BCI’s move naturally makes the postgraduate course inaccessible for a lot of students across India.

Rule 20(3) of the notification states that a one year LLM degree from any foreign university shall not be considered to be equivalent to a two-year one from an Indian University. However, it provides for an exception in case the postgraduate degree is obtained from any highly accredited Foreign University, in which case the degree holder shall be eligible to be appointed as a visiting professor in any university in India. The notification in this regard doesn’t provide any clarity on the foreign universities covered under this category nor does it lay down any criteria for determining whether a foreign university will fall under this category. Also since all the Prominent foreign countries offering legal education have been running one year masters courses, such a change would go against prevalent global academic standards for a postgraduate degree.


CONCLUSION

The BCI’s recent notifications and decisions restrict access to both legal education and profession: in the first case the BCI’s argument that a lack of prior advocacy experience of Judicial Magistrates is the primary cause for inordinate judicial delay and pendency, and the inefficiency in the administration of justice fails to show how the proposed mandatory experience requirement addresses these problems, and is based on rather subjective assumptions. Nonetheless, the piece acknowledges that the Bar Council’s apprehensions are not entirely unfounded and could be remedied through alternative solutions within the scope of the BCI’s power. The ‘two-year’ postgraduate program is likely to increase the economic burden on aspirants making the course inaccessible for many. This change would also go against prevalent global standards for a masters program which envisages the same to be a one-year degree. The BCI’s notifications are visibly out of touch with the ground realities of legal education and the legal profession and are therefore likely to do more harm than good in the long run.


Avinash is a third-year student at National Law University.

Amartya is a third-year student at the Rajiv Gandhi National University of Law.