THE Law Minister Shri Veerappa Moily is sincerely trying to bring changes in the subjects assigned to his Ministry. He appears to be a man in hurry and his intentions to reform the legal system including legal education are well known.
But intentions howsoever good must be grounded on factual matrix. Then only they will guide the actions. Otherwise the actions may be counterproductive or barren and may harm the very objective, which was sought to be achieved.
The Minister is laying stress on legal education. The Bar Council under his guidance is planning to conduct an examination before enrolling advocates. It has been stated that the law colleges are churning low quality graduates hence a filter has to be put in place to sift the grain from the chaff. The accusation sounds strange to say the least.
The Bar Council is empowered by the Adovcates Act, 1961 to control legal education. More than a decade back the Bar Council had prescribed the course content for LL.B. It has specified compulsory and optional subjects in minute detail. Much can be written about the prescribed curriculum but I refrain from it at present. There is no room left for universities to make any substantive change. Nowhere in the world such restriction has been imposed on the universities to draft curriculum for themselves. Universities were always considered autonomous. The Bar Council has snatched the autonomy. They are no more think tanks. Their job now is menial.
Of course every university has a Course Committee for law, a Faculty Board and finally an Academic Council to decide the course content. After Bar Council’s prescription all these committees have become redundant though they continue to exist. Previously the courses would undergo revision every year, now they have become static. They do not march with the times.
Every state has some legislations peculiar to it. The universities would take note of it and include it in the curriculum. But the Bar Council has prescribed only such subjects which are taught in the USA or UK or which are required by corporate lawyers in Delhi or Mumbai.
For example, in UP the Rent Control Act, the laws relating to educational institutions, consolidation of holdings and the elections to local bodies are some of the areas which form a considerable segment of litigation at the district level. In Delhi, the Municipal Corporation Act is a fertile ground of litigation. In Madhya Pradesh the law relating to forests, liquor and motor accident claims attract litigation. But these are not taught to a prospective lawyer. Great stress is laid on ephemeral subjects like Intellectual Property Rights as if they are matters of life and death. In the whole of India there are no more than 50 lawyers exclusively practising in the area of intellectual rights which generally means trade marks.
Earlier in some universities e.g. Lucknow University, the procedural laws-Cr PC and CPC were taught by top ranking practising lawyers. Taxation was taught by tax lawyers. Now they are taught because of the Bar Council rules by persons who have never drafted a plaint or seen the inside of a court of law.
The Bar Council conducts inspection of every law college before granting recognition. Earlier it was a one time affair which has now become an annual event and also a lucrative source of earning to the Bar Council. The college is forced to pay substantial amount as inspection fee which is increased regularly. The universities are not logging behind. Some of them are no more granting affiliation on a permanent basis. Naturally, the college has to pay cash for renewal of affiliation. It is widely alleged that payments are to be made below the counter also.
After this strict control of curriculum, qualifications and remuneration of teachers, annual inspection by the Bar Council and regulation by the affiliating university how can the Bar Council turn around and comment on the quality of graduates. If it has not been able to maintain the quality of the graduates the fault lies with the Bar Council. It must admit failure and leave legal education to the Universities.
For every advocate practising in the Supreme Court and High Court there are a few thousand practising in the subordinate courts and tribunals. They are working through the medium of local state language. What has the Bar Council done for this multitude.
The Bar Council lays stress on globalisation and international contracts. One would like to know the number of lawyers engaged in such work. The vast number of lawyers who are serving the poor litigants are totally ignored. If a person wants to serve in a lawyer firm which serves foreign clients he may join a special course or the law firm itself would impart him the necessary know-how. If a person needs a glass of water you do not go to dig a tank or dam, a river for this purpose.
The Minister has spoken about the need for an institute for research in law and stated that he is planning to establish one. In 1959, the Indian Law Institute was founded with this very purpose. The President of India is its patron and Chief Justice of India is its president. The Minister for Law and Justice is its vice-president and so is the Attorney-General. Among the members of the executive are the Minister of Home Affairs, the Minister for Human Resource Development, the Solicitor General of India, the Chairman, Law Commission of India, Chairman of University Grant Commission, two vice-chncellors, 5 judges of High Court, 5 deans from universities, 10 persons elected from the members of the Institute and 5 persons nominated by the Chief Justice of India (at present they are Justice AK Sikri, Justice AM Ahmedi, former Chief Justice, Dr Arijit Pasayat, retired judge of Supreme Court and TR Andhyarujina, senior advocate). Justice RV Raveendran of Supreme Court is the treasurer.
In the sixties another institute came into existence in Delhi, Institute of Constitutional and Parliamentary Studies. Speaker of Lok Sabha is its chairman. It has in the governing council eminent persons (similar to the Indian Law Institute). As many as 14 National Law Universities have been established to promote research in Law. If the Minister feels that there is need of one more institute he has in a way admitted that these institutes as well as the National Law universities have been a failure in this regard. If the Indian Law Institute and Institute of Constitutional and Parliamentary Studies with such eminent and illustrious governing body has been a failure, the Minister must share the blame as vice-president and also as the Minister in charge who releases the grant for these institutes. And if such eminent persons have not been able to make the Institute an ideal centre for research where will the Minister find better and more qualified people? Condemnation is easy but building an institution is a heavy task. Something difficult to achieve.
The Ministry of Law has apart from these institutes a Law Commission of India to do research and advise the government in its quest to reform the law. The Indian Penal Code, Indian Evidence Act, Transfer of Property Act and the old CPC and Cr PC and mumerous Acts were enacted on the recommendation of Law Commissions established by the British Government. After Independence, the Law Commission has given more than 200 reports. Some of them show deep study and understanding of law. But hardly a few recommendations have been implemented with regard to arrears in court after the 14th Report of Law Commission in 1958 the government constituted and convened a number of commissions, committees and conferences to advise it on reduction of arrears in courts. In 1969, a committee was constituted with Chief Justice Hidayatullah as president. He was succeeded by Justice JC Shah. In addition to these, there are several reports of the Law Commission of India. A committee under Justice Malimath gave a useful report. Another committee was constituted under Prof. Madhav Menon. But what has the Ministry done? It established 500 fast track courts. After five years they were to be wound up but the Supreme Court forced the government to continue them. This is only one of many examples that may be given to show that even elementary reforms are not carried out.
I have mentioned above two research institutes maintained wholly by the Ministry of Law-the Indian Law Institute and the Institute of Constitutional and Parliamentary Studies. The Ministry of Law itself appointed a committee to look into the working of these institutes of advance learning. It would be instructive for the Minister to have a look at the report and to find how much it has been implemented before establishing another Institute.
Excessive control kills initiative and innovation. For example, the Institute of Chartered Accountants of India and the Institute of Company Secretaries take examination and prescribe the courses. They make no attempt to control the institutions that teach the courses.
The Bar Council should only prescribe certain essential subjects, give general guidelines and leave the rest to the University. Prescribing a dress code is ridiculous. No other professional college prescribes a dress code. Only schools do so. It should refrain from conducting annual inspection. A college is run by a society. The society under the law would not be able to sell the buildings, the books in the library and other furniture and fixtures. The inspections serve only one purpose-bringing money to the Bar Council. They are an aberration and a source of harassment and corruption. Inspection may be made only on receipt of a written complaint which is supported by cogent evidence.
The Council for Technical Education, the Indian Medical Council and Council for Teachers Education etc. do not undertake annual inspection. It is the duty of the affiliating University to ensure that the teaching college abides by all the rules. Fixing the standards of education and controlling educational institutions are two different things.
(The writer is retired Additional Secretary to Government of India and can be contacted at M-103, Dharma Apartments, 2, IP Extension, Delhi-110 092)