Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010

Draft for ‘ Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010’  – request for suggestions.


Full text of the bill available at Answeringlaw.

Prof Madhava Menon outlines roadmap to reform 'sea of institutionalised mediocrity' in legal education

At a National Consultation organised by the Law Ministry during May 1-2, 2010, Prime Minister Manmohan Singh described legal education in India as a “sea of institutionalised mediocrity with a few islands of excellence,” and stressed the need for dramatic reform in terms of its scope and quality. He wanted the legal education system to be sensitive to the needs of the marginalised sections of society, particularly in the context of globalisation and the retreat of the state from some of its traditional roles. He felt that in future, domestic legal mechanisms will increasingly interact with both international and foreign legal systems and that the law schools should prepare themselves to face consequent challenges. The reforms he suggested included multi-disciplinarity in legal studies, flexible curricula, improved service conditions for law teachers, continuing education programmes for legal professionals and placement-internship programmes for all students.

This subject has indeed received the attention of several expert committees recently, including the National Knowledge Commission and the Committee on Renovation and Rejuvenation of Higher Education (the Yash Pal Committee). These commissions and committees found three fundamental drawbacks in the objects, structure and content of legal education as it is being imparted in nearly a thousand law colleges in India, most of them functioning in the private sector.

First of all, the objects of legal education in the changing socio-economic context are neither clear nor prioritised. The Advocates Act and the Bar Councils seem to think that the only object of legal education is to produce lawyers to practise in courts. Today, people seek legal education for a variety of purposes: to meet the demands of trade, commerce, industry, governance and international relations. The practising profession itself is getting increasingly internationalised, warranting the study of other legal systems and practices. These multiple goals raise questions of content, structure and regulation.

Currently, the content of legal education is considered to be a function of the regulatory bodies (read Bar Council of India) and the universities are obliged to follow it. This has adversely affected curriculum development in terms of serving the multiple objects of legal education and inhibited innovation and experimentation that are essential for academic and professional excellence. In a sense, it has alienated law schools from its essential function of legal research and development.

Law grows when it engages with society and interacts with other branches of knowledge. Engagement with social problems and movements make legal education relevant and contextual. For this to happen, a liberal, holistic and decentralised approach to curriculum planning and development is necessary, for which each university teaching law should have the primary responsibility. This was the essence of the National Knowledge Commission's and the Yash Pal Committee's recommendations. In other words, according to the expert committees the future of legal education will depend on how the role of universities (law schools) is conceived on the one hand, and on what the goals and objects of legal education are determined to be, on the other. Whichever way one looks at the situation, one thing is clear: the existing regulatory mechanism under the Advocates Act, 1961 is far too weak and inadequate to chart the future course of legal education.

Access and equity are important considerations in higher education, and this is particularly so in law education. The Bar Council's efforts over the last 50 years did succeed in making the so-called legal education accessible to all sections and keeping the costs low for students. But in the process, quality was neglected or allowed to be diluted. Many universities practically avoided their responsibilities, and put the entire blame on the Bar Council. An attempt was made at the instance of the Bar Council to improve quality by introducing the five-year integrated LL.B. programme, and by establishing a series of autonomous National Law Schools. But they have remained islands “in a sea of mediocrity” — as the Prime Minister described it.

The challenge before legal educators and the regulators of higher education today is two-fold.

First, how to promote competitive excellence in a global context in the few National Law Schools and others of its kind that are maintaining some degree of quality in education. Secondly, how to take the mediocre institutions — which are too many in number — to improve their performance towards achieving some degree of professionalism and academic excellence in the shortest possible time.

The major problems cited in this regard are inadequacy of resources including lack of competent teachers in adequate numbers. Given that most of these institutions are privately managed and have very little investment and faculty resources, it is not possible to transform them unless the managements themselves mobilise the finances. Others that are in the government sector, including university departments, can prepare plans for development and seek funds from governments, Central and State. There exists a case to increase tuition fees and development charges while making the institutions provide better teaching and learning facilities to consumers of education.

Finally, if quality is to be improved the key institutions for regulating legal education should be the universities themselves. Let there be competition among universities to deliver quality educational services. The external regulator's function should be limited to setting goals, setting minimum standards, and facilitating the exercise of academic autonomy by individual institutions. In this regard, the proposal of the Knowledge Commission for a multi-member single regulator involving all stakeholders is an excellent idea that deserves attention. The shortage of teachers can be addressed partly through a flexible approach in faculty composition: this may include more visiting and adjunct teachers, partnership arrangements, contractual engagement of professionals and so on. There could also be an organised plan to prepare teachers by selected institutions with special support from government.

It will take a decade or more to create a research environment in the existing law schools, particularly for cutting-edge research that contribute to law reform and development. Meanwhile, the recommendation of the Knowledge Commission to set up a few advanced research centres that can attract available talent to plan and develop legal research is worthy of immediate attention. This is where the Central government should invest, as it did in the field of scientific and industrial research in the early 1960s and 1970s. They can be networked with the law schools of the region: this will be of mutual advantage.

The initiative on Second Generation Reforms developed by the Union Law Ministry (2010) and the Task Force on Legal Education constituted by the Union Ministry of Human Resource Development should work together to develop a plan of action to push forward the agenda of legal education reforms. This should serve not only the needs of the practising profession but also the emerging demands of society and government for law trained persons. The Judicial Academies training judges should tie up with selected law schools of the region to enrich the content and process of judicial education and training, while providing opportunities to law schools to understand and inform themselves of the problems and challenges of the administration of justice. Bar Councils should set up a chain of continuing legal education centres, similarly tying up with law schools for mutual benefit. What the nation needs now is an organised movement involving legal educators, lawyers and judges, not only to learn the practice of law but to transform law and legal institutions to maximise justice in society and to put legal education at the centre for better governance under democracy and rule of law.

Source:- http://beta.thehindu.com/opinion/lead/article470073.ece?homepage=true

BCI chair Gopal Subramaniam interview (part 2): Foreign firms only once Indian lawyers 'reclaim business' | Interviews | Legally India |

The Bar Council of India (BCI) has been pivotal in the debate on the entry of foreign law firms. The Solicitor general and newly elected BCI chairman Gopal Subramaniam tells Legally India about what has to happen before foreign lawyers can practice here.

Legally India (LI): What is your take on the entry of foreign lawyers in India?
Gopal Subramaniam (GS): I think the issues are a little more complex and they may have a bearing on our democracy. Now, if say the entry of the foreign lawyers is necessary because of their expertise to deal with commercial matters, we have no less [expertise].

We are going to work on improving our skills and making sure that we are the best. And in fact what we have to do is really reclaim the business, which has even gone out of India, which we have lost out to other jurisdiction on account of adverse publicity of the Indian legal system.

And I say this very consciously that the Indian lawyer has to reclaim his business which has gone out. I think we need to first get it back. We need to be on a level playing field.

The second thing is the element of reciprocity - I think this is very important unless there is reciprocity there is no question of any further consideration.

LI: What do you mean by reciprocity? Many Indian lawyers are practicing abroad.
GS: Indian lawyers do not practice there because they are Indian lawyers. They practice there when they qualify to practice there under their rules. Reciprocity means if I allow you to practice here then you allow me to practice there.

But having said that let us understand how many actually can go and establish a law office in New York or London? See the kind of expenses which are involved for setting up the office there.

So we must understand that there are many issues which will have to be internally debated. Therefore I must say that at this juncture our profession has to be first looked upon.

Our legal community will be looked upon as an important resource base. We have to preserve the Indian lawyer - if we don’t preserve the Indian lawyer, it can have telling implications on the democracy.

Anything else can be considered later but at this stage I think the task before us is reorganising ourselves as capable, efficient lawyers at all levels.

I am talking about every lawyer in the trial court as fellow brethren, I am talking at all levels in all places. You have to bring about uniformity. You have to bring about high quality.

LI: In simple words, you are not in favour of the entry of foreign lawyers?
GS: At this stage I am not in favour of entering of foreign lawyers. This is without any doubt.

Link-http://www.legallyindia.com/20100423730/Interviews/bci-chair-gopal-subramaniam-interview-part-2-foreign-firms-only-once-indian-lawyers-reclaim-business

Moily's 2nd generation education reforms: transactional law LLBs, new unified law school entrance test

The Union Government has announced a 'National Consultation' to radically overhaul Indian legal education, which will include the introduction of a common admission test for all Indian law schools, three new super-specialised LLBs focusing on transactional, litigation or public law as well as shortening LLM courses to one year.

The major proposals include the creation of an entrance test that will apply to all law colleges in India, rather than just to national law schools like the Common Law Admissions Test (CLAT). The Government also wants to create three separate LLB programmes that specifically focus on training transactional, litigation or public lawyers, as well as to introduce a new one-year LLM degree.

Law minister Veerappa Moily, additional solicitor general Mohan Parasaran and Moily's special adviser T K Vishwanathan announced the radical reform plans at a press conference in Delhi today (21 April). Moily said that the law ministry was collaborating with the Bar Council of India (BCI) and National Law University Delhi to organise a National Consultation for a "second generation" of reforms in Indian legal education.

He explained that the consultation would create a road map to bring radical institutional reforms in legal education to meet not only the requirements of the bar but also the needs of trade, commerce and industry in view of the growing internationalisation of the legal profession. Moily said: "Our aim is to focus on legal education as an instrument of economic and social architecture. The aim of this National Consultation is that the advocate in a Munsif court can have access to a system of continuing legal education and he can aspire to appear before the Supreme Court."

Additional solicitor general Parasaran added that the Government was also proposing three specialised LLB courses, to enable students to focus on either of litigation, transactional or public law. "The syllabus in most of the law colleges is more than 20 years old and is not relevant to present-day requirements," said Parasaran. "Reforms are the need of the hour. We propose to have a common law entrance test for all the colleges across India just like we have a common entrance test for national law colleges."

Parasaran also announced that India would have a one-year LLM course, just as countries such as the US and UK. "The change has been proposed and the decision to this effect shall be taken in near future," he said. Parasaran continued: "There is a proposal to establish a National Council for quality and standards of legal education. Experts from all the fields, namely Bar Council of India, state Bar Councils, attorney general, solicitor general and various jurists and academicians shall prescribe the syllabus for the law colleges."

Moily also supported a compulsory entrance test to become a lawyer, mirroring the proposal by the new Bar Council of India chairman Gopal Subramaniam. "We are working in tandem with Bar Council of India and we support the proposal," said Moily. He also said hat in an era of globalisation there was a need to raise the standards of legal education in India. "The domain of the Indian lawyer shall be the entire world and not only this country." Moily also expressed concern over the fact that most law students joined the corporate sector after completing their degrees. One of the issues before the National Consultation would be why students from national law schools seemed to prefer careers in corporate law firms and how the legal education system could cater to the emerging needs of the new economy.

The National Consultation would also examine how to organise training and education for alternate dispute resolution systems, particularly arbitration. The National Consultation first meeting will be held on 1 and 2 May 2010, said Moily, and would be inaugurated by India's prime minister Manmohan Singh, with Moily presenting a vision document on the India's second generation of legal reforms. When asked about the issue of entry of foreign lawyers at today's press conference, Moily said that the Bombay High Court had already decided on the issue and the Government would deal with the issue at an appropriate stage after consultation with all the sectors on the issue.

Source:- Legally India

BCI chair Gopal Subramaniam interview (part 1): We need continuing legal education | Interview by Legally India !!

Solicitor general and newly elected Bar Council of India (BCI) chairman Gopal Subramaniam talks to Legally India about his top priorities, the need for a bar exam and continuing legal education, in this first part of a two-part interview.

Legally India (LI): What are your priorities at the BCI?
Gopal Subramaniam (GS): I think at the moment there are some overwhelming priorities which need to be addressed.

The first thing to do is to evolve various ways and techniques by which the self esteem of those who belong to the profession is raised and to understand their professional roles and changing society.

The second important priority is that we as the legal fraternity have to be connected with each other. We are not adequately connected with each other, we do not communicate with each other as a result of which there is fragmentation of the legal community based on region, based on locality and based on other factors.

We need to work together and for which purpose I think the Bar Council of India must act as a great connector by which we able to reach out to a lawyer who is practicing even in the most far-flung areas of the country.

The third priority is that we need to upgrade our own skills on account of competitive environment. Today, you have large number of people who enter the legal profession and it becomes necessary that we are efficient, competent and transparent so that we would be able to actually have both a prosperous community of the lawyers on the one hand, and at the same time we would be a community which would protect the under-privileged.

LI: Do you think that an entrance test or bar exam is necessary?
GS: I think as of today, the entrance test for becoming a lawyer is necessary. I think it is important that for the benefit of the person who is going to enter the legal profession, he must actually have some basic skills, fundamental knowledge and the ability to cope with other challenges of the modern Indian lawyer, whether he is in the rural area or whether he is in any other area.

We also planned to actually have a resource web in the Bar Council of India which will be a knowledge web where lawyers and law students will have continued access to resources including courses and continuing legal education.

I think continuing legal education along the entrance to the bar is very important. One is those who are going to enter the bar now will have at least an examination, but those who are practicing as a lawyer […] must be persuaded to opt for continuing legal education courses so that they are updated.

One of the problems in the legal profession is that we are not updated with reference to the advances is in law, advances is in technology and advances is in science.

In today’s time, a lawyer has to be as inquisitives as a scientist, he has to discover the facts and for this purpose we want to develop the resource web through the medium of the Bar Council. I think it is a very ambitious project and I have received overwhelming offers of support from professors, academicians in India and overseas who think it is the most important for the Indian legal profession to have a resource web.

LI: Do you think the legal education system in India has failed? Is that why you are looking for an entrance test for lawyers?
GS: The legal education in India is not uniform. There are problems which are confronting our legal education today. There is a shortage of academicians, there are a shortage of people who actually want to teach law as a subject. Now we need to correct the distortion and we need to correct this imbalance.

Now one of the important considerations is that when you want to enter the professional course it is necessarily that you should have the adequate training. So we would like to develop our curriculum by which you have not only basic knowledge of law but you also have practical knowledge of law.

If your ability as commercial lawyer has to be tested, you have to have the skills for it. If you have to protect the fundamental rights of a person who is in the street, you must be able to protect it.

I regret to say that the role models who used to exist in the legal profession who have been able to also carry the momentum in the legal profession - their numbers have decreased. Now to reenergise it is always not possible to only get role models but you will have to do it by means of support through information and through rational development for lawyers.

This is our agenda. This is our priority list, which is that we become a resource pool where people can actually come to us. As the Bar Council, we are also going to interact with sections of civil society because it is important that the legal profession is never perceived as a manipulator of the law and one of the reasons why there has been fall in the esteem of the legal profession is because law is viewed as an instrument of manipulation, an instrument of exploitation as an instrument of being able to harass citizens.

LI: What would be the necessary requirements a student needs to fulfill to become a lawyer? What do you propose to do?
GS: This is going to involve the same consultative process. We are beginning a transparent consultative process with lawyers, with law students and also with academicians, those who are in India and those who are abroad. And I am very happy to say that the community is offering completely free support for this particular movement and I think we should be able to seize these initiative and design the curriculum, make it contemporary, relevant and make it socially useful.

And I think that requires a two way traffic. This will involve a lawyer and it will also involve the support of the judiciary and I am very confident that the judiciary will support this initiative because this is the most dynamic moment of the legal profession.

LI: Can you elaborate on proposals that there may be a mandatory internship before becoming a lawyer?
GS: I personally believe that the apprenticeship and internship with the lawyer is necessary to know court procedure, to understand how to acquire confidence and to be able to know how to conduct oneself as a lawyer.

Now this needs training and commitment from the senior lawyers those who have years of experience to able to teach juniors. So we in the Bar Council are going to appeal to lawyers who have ten years experience to ask them to take juniors as a part of their service in return to the profession

We are also going to appeal the senior advocates to have not less than three to five juniors that are trained. This will have two benefits: one that you train the juniors when they become lawyers, the other is you have mandatory training programs in the law course itself as part of the curriculum.

There I feel that training under the lawyer, preferably practicing with the trial court, should be made mandatory because there is where justice truly commences. And I think the success of any justice system will be always gazed at in terms of the ability of the primary tier to be able to fulfill the aspiration of people.

My dream as a lawyer is that one day in India, we will have a legal system where the competence of the lawyers as well as the judiciary in all the three limbs, whether it be primary, secondary or the appellate level would be equally compatible.

The second part of this interview will be published on Legally India later this week and will include Subramaniam's views on the entry of foreign law firms, reciprocity and striking lawyers.