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Deferring the Bar Exam and Mulling on Sudeer


Not exactly IP related: but given that IP lawyers are also (fortunately or unfortunately) part of the bigger fraternity of lawyers, this is something of interest.

I reported earlier on the prospect of an Indian bar exam in the aftermath of a Supreme Court direction in Bar Council of India vs Bonnie FOI Law College.

Kian Ganz, the dynamic founder of Legally India ran a piece a few hours back on a letter that we sent to Gopal Subramanium (Chairman of the Bar Council of India) requesting for a deferral of the proposed bar exam:

“The new bar exam for law graduates is understood to be held in late August with the Bar Council of India (BCI) set to announce the syllabus in a matter of days. Meanwhile, NUJS Kolkata final year students have petitioned BCI chairman and solicitor general Gopal Subramaniam to postpone the exam until 2011 because they argue it prejudices students and is unconstitutional without amending the Advocates Act 1961.”

I reproduce the letter that we sent the BCI Chairman below. I am particularly interested in readers’ views on whether or not the BCI (Bar Council of India) can introduce a bar exam without an amendment to the Advocates Act.

Dear Mr Subramanium:

My heartiest congratulations on your recent election as the Chairman of the Bar Council of India (BCI). It is rather fortuitous that you were elected to this important post soon after your had articulated your vision for an all India bar exam before the Supreme Court in Bar Council of India vs Bonnie FOI Law College.

As you are aware, during the consultative process undertaken by you in the context of Bar Council of India vs Bonnie FOI Law College, I had submitted a paper to you advocating strongly for a bar exam. I attach this again for your reference.

Needless to state, a number of us applaud your initiative and do hope that it will go a long way towards improving the quality of lawyers in India. However, we are concerned about the prospect of holding such exam at such shot notice i.e. a mere two months from now.

May we please request you to defer the proposed bar exam to next year, such that it only applies prospectively to candidates that graduate (with LLB degrees) next year?

First, as you will appreciate, effective notice of the exams came to our students (I speak of the National University of Juridical Sciences (NUJS), Kolkata where I teach) only last week. Although the exam was mandated by the Supreme Court judgment (Bar Council of India vs Bonnie FOI Law College) in December 2009, this order was not made public and is, to this day, not available on the Supreme Court website. I had posted a copy of this order on “Law and Other Things”, a blog, on 5th April 2010.

Subsequent to this blog posting, some newspapers had interviewed you and reported on the prospects of a bar exam. However, even at this stage, most students did not think that it was logistically possible to hold the exams this year. And many of them did not think that such exams could be held without a legislative amendment (in the light of the Supreme Court ruling in V Sudeer, an aspect I will dwell upon later in this letter).

It was only pursuant to my telephonic conversation with you on the 8th of May, that I understood that you were planning on conducting the exams in July-August this year. On the very same day, I announced this to our students at NUJS, who were extremely concerned at this short notice (a mere 2 months) and have requested me to forward their representation to you, which I attach with this letter.

As you will appreciate, a bar exam has never been held in this country since the 1970’s and students had a legitimate expectation that there would be no exam this year. With only a few weeks left for most students to graduate, it will inconvenience them to a very high degree. Many of them have signed contracts with law firms and lawyers and are scheduled to begin working in the months of June-July. Lawyers and law firms may have hired them on the expectation that they are ready to go on day one and not handicapped from appearing in court or practicing law, owing to a bar exam, that has been suddenly instituted after 35 years. Many other students are going abroad for jobs and higher degrees (LLM’s) and will be placed at a great disadvantage owing to this sudden announcement.

Secondly, this exam may prove logistically difficult for your team to execute at this late stage. You are of course the best judge of this, but if I may please be permitted to recount our own experience with such exams: it takes the national law schools a good 10 months’ time to plan and execute the CLAT entrance exam each year–which as you know has approximately around 15,000 candidates each year and only 11 law schools within its fold. More importantly, it already has a history (although CLAT is 3 years old, individual law schools conducted their own exams for several years prior to CLAT), whereas the bar exam that you envisage will be held for the first time in 35 years. Importantly, this exam will require immense planning and co-ordination as it is likely to have at least 45,000 candidates, if one assumes that the 900 odd law schools in the country might generate at least 50 candidates on an average this year.

Thirdly, and perhaps most importantly, the V Sudeer case (V. Sudeer v. Bar Council of India, AIR 1999 SC 1167) does not appear to permit a bar exam by the BCI (Bar Council of India) without an amendment to the Advocates Act. In Sudeer, the court categorically held that any additional eligibility criteria for the practice of law over and above what was mentioned in Section 24 of the Advocates Act was unconstitutional. Particularly if such additional criteria amounted to either a bar exam or a training of some sort, since the power to mandate such exams/training was expressly taken away via an amendment in 1974 to the Advocates Act. As you are no doubt aware, in the light of the 1974 amendment, once a student legitimately cleared his or her exams at a recognized University, he/she was entitled to enroll in a state bar council and practice before any court of law, without having to undergo training or take an exam of any sort.

Therefore, if such an exam needs to be conducted by the BCI, it can be done only through a legislative amendment. The court in Sudeer stressed that an enrolment comes with an automatic right to practice—subject to conditions of practice framed by BCI, High courts and the Supreme Court.

Therefore, the BCI cannot, in my personal view, attempt to pass off a bar exam as a “condition of practice”, since such an exam would effectively emasculate the concept of enrolment i.e. enrolment is meaningless without the right to practice. In short, the court is likely to see this cleverly crafted condition of practice as nothing more than a camouflaged “pre-enrolment” condition, a condition that the BCI has no authority to impose under the present statutory scheme.

As you are aware, the court in Lawyers Collective vs Ashurst defined the term “practice” to widely include not just the right to appear before courts, but to also include all kinds of non-litigious practice as well (transactional work and legal advise etc). Therefore divesting enrolled lawyers of the right to practice upon enrolment will have serious consequences for all law graduates this year. Rather than expending resources into the conduct of a bar exam this year and risking the wastage of resources in the event that the court strikes down the bar exam as outside of the BCI’s current competence and therefore unconstitutional, we strongly urge you to push for an amendment to the Advocates Act and conduct the exam next year.

Given all the above circumstances, I hope you will kindly consider deferring this exam to next year, such that it applies prospectively to only those law graduates that pass out next academic year. To conclude, let me please reiterate that we are very much in support of your wonderful initiative for an all India bar exam and are ready to help in whatever way you deem fit to make this a success. We however feel that rushing it through within the next 2-3 months may result in a sub-standard and badly executed exam and prove counterproductive to your vision for regulating the profession in a more optimal manner.

Warm wishes,

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

11 comments.

  1. Dr. Raman Mittal

    I am all for an entrance exam for lawyers. But I am concerned about its timing. As I learn from your post that the BCI plans to conduct this exam in late August—that means we can expect results only in September. Now, the LLB exams close in May in Delhi University Law Faculty and we expect the results by June. Why should the students waste 3 months just for the all India exam.

    The BCI may go ahead conducting the exam in August this year, provided an exemption is given to those who manage to complete LLB plus manage to apply for Bar’s membership before the actual date of the All India exam.

    Whether exam takes place this year or next year, it should be conducted in tandem with the LLB exams, so that the students are not made to spend even a day extra for the all India Bar exam. It could preferably be conducted in the month of March with the LLB final year students being allowed to appear. We can draw an analogy here with the National Eligibility Test (NET) conducted for teachers of colleges and universities. One can appear in NET when one is in the final year of one’s masters degree and its score is valid for a year or two thereafter. Same principle could be applied here.

    Raman Mittal

    Reply
  2. Anonymous

    Dear Shamnad:

    Can you please post the Bonnie Foi judgment on your website…law and other things is firewalled for some of us unfortunate law firm slaves…

    Reply
  3. I

    Dear Shamand,

    A part of your opening statement – ‘IP lawyers are also (fortunately or unfortunately) part of the bigger fraternity of lawyers’, reminds me of something else on which your blog should consider commenting on its constitutionality.

    The issue of denying admission to law colleges after one has crossed 30 yrs of age. This is of particular importance to IP practitioners since a good number of IP practitioners are science graduates (already Patent Agents or to be) with considerable amount of core industry experience. Obviously these people at some point of time will decide to or have already decided to do law. Unfortunately, given the fact that they joined the IP bandwagon a little late, they might have already crossed 30 the time they have gained some experience in IP and eventually decide to study law. The is prejudicial to them and should be vehemently opposed.

    Your comments:

    P.S – The Bombay high court decided in favour of BCI upon challenging the above through a PIL. This was challenged in the Supreme Court which clubbed many such PILs filed in other states. SC has stayed the above decision. I don’t know when the hearing is scheduled to being or has already begun.

    Reply
  4. Aswin Unnikrishnan

    I quite donot understand the need for a Bar Exam. It is the legal education system that should be changed. Only students with a genuine interest in the subject should be admitted to law schools. That will solve the whole issue of lack of quality lawyers.

    It is not just the students who have written their final exams and have their PPOs the ones who will be affected by the announcement of the Bar Exams out of the blue, even the ones who are currently pursuing their studies at various law schools are affected. None of them would have ever thought of having to write a Bar Exam when they joined the course.

    I strongly feel the Bar Exam will end up as nothing more than a means to burden the students.

    If Mr. Subramaniam feels a Bar Exam is essential let the same be made a pre-requisite for admission into bar in 2015, so that atleast the ones who joined the law schools without any idea of having to write a Bar Exam are saved from the burdening themselves with another exam, failure in which will prove their 5 yrs at law school futile.

    Reply
  5. Divs

    I agree with Dr. Mittal, that the timing is an issue. I believe the solution lies in the fact that exams be conducted next year on. The current pre-final year students will have sufficient time to prepare themselves, both academically and mentally. Further, I agree with Prof. Mittal, that they should be conducted in tandem with the final year exams- as a result, qualifying both final year exams as well as the Bar Exam, can be a condition to be met for being finally taken on roll.

    I am uncomfortable with the idea of exams being conducted this august- a. With due respect to Mr. Subramanium and his team, I think that the same needs to be well planned out, with clear instructions as to the nature of the exam- I am caught unaware if the same will be objective or subjective, based on case analysis or on the provisions of law alone. I think this is where students will need time and practice. b) I fear that if a hurried exam is conducted in August, the same may prove too easy or too tough- students need an explicit guideline to conform their preparation to. c) Students who pass out before the exam date, if allowed to register, will definitely do so, probably even one day prior by the circulation method.

    These are my views- as on a personal front… am glad am done and out with the ordeal!!!

    Reply
  6. Ram K Kaushik

    I agree with Raman that bar exams must be conducted as soon as possible. Now with the December deadline students have no choice but to wait. The inefficiency of BCI is very apparent as even the basic level preparation has not been undertaken yet. Further, the age limit of 30 years is absurd, rather unconstitutional, and same must be withdrawn as soon as possible.

    The students of Faculty of Law, University of Delhi must make a representation to BCI to conduct exams in Aug/Sep 2010. If the BCI is serious it can do so otherwise it cannot do so even in Dec 2011.

    Reply
  7. Anonymous

    CALL TO ACTION
    Final year Students Unite! You have nothing to lose but your chains!
    We are under attack from the repressive tyrannical Bar Council.
    All of us who have worked so hard over five years of law sweating it out at internships, writing papers, winning moots, doing summer courses and what not, to land ourselves our dream jobs will now have to be faced with the prospect of losing it all!
    The Bar Council and the esteemed members of the bar have no care or interest for our plight. Sh. Subhramniam seems to be hell bent on not letting us practice till we give the bar exam even if it is a decade from now!
    The fact of the matter is the incompetent Bar Council does not have its own house in order and it now wants to make us the scape goats. First they wanted to conduct the bar exam in July- almost like a surprise assignment and now they say they are not well prepared and so the exam will be in December. (To top it all they still haven’t given an assurance that it will happen in December, but they are sure they won’t let us practice till then!). The minimal implication of this is we lose eight months pay and this whole disruption may threaten some of our jobs.
    Is there any logic in denying us the right to practice because they cannot conduct the exam?
    The quintessence of a civilized community is freedom from terror. However, unfortunately in our country whimsical administrators have always had their sway over the life’s of people, destablising their plans and bring their hard work to naught.
    Today, our future is threatened and time for sitting on the ropes is past. We must enter the battlefield with all weapons at our disposal. Our single point demand should be – conduct the bar exam in July or allow us to practice without it.
    The fact is that today there is nobody who is interested in our future, those on the bar are happy to do give us meritocratic moral preachings while they gain eight months free labour at our expense. The Hon’ble Supreme Court, as yet not apprised of our plight, is more focused on uplifting the standard of legal education. Whilst behind the shadows those in favour of foreign law firms in India are strongly backing the bar exam. (Of course we do not oppose foreign firms). At this stage to sit back and think that someone else will do something about it will be fatal. The macro scenario is against – in the forward march of the legal community, we are going to be the road kill.
    Each of us must fight against this oppression. The following steps are suggested:

    Signature Campaigns and Open Letters addressed to Bar Council, Hon’ble Chief Justice of India, and the Minister for Law and Justice.
    Meetings & Discussions in all Colleges
    All-India Level Co-ordination
    Approach teachers sympathetic to our cause
    Approach sympathetic bar members
    Approach prospective employers esp. law firms against the entry of foreign law firms to flex their muscles.
    File Writ Petitions, get our selves impleaded in the Bonni Case (perhaps some one can draft a writ and post it here)
    If need arise Delhi Chalo! to protest in front of the Bar Council Office.

    More Suggestions are welcome at [email protected]

    Dr.Basheer and Dr.Mittal. Thank you for your support

    Reply
  8. Shamnad Basheer

    Thanks for all your comments. I guess the BCI is caught between the devil and the deep sea. If it tries for an exam in July, it will end up doing a shoddy and sub standard job. And make a mockery of the bar exam. And if it postpones the exam to December (with results due in February), it will have disadvantaged thousands of lawyers, as Raman rightly points out. Particularly those from small towns and rural areas) who may have been waiting to litigate from day one..and whose livelihood may be impacted. Do these lawyers have a good claim under the “theory of legitimate expectation” i.e. that they expected to work and earn immediately, rather than wait for 8-10 months after graduating…

    Which is why we requested that they defer this to next year–to apply to the next batch. Unfortunately, our representation was not heeded. Rather, they merely postponed the exam from July to December!

    Reply
  9. rajan

    sir,
    As we are aware that the supreme court of india is hearing a bunch of petitions against BCI’s 30 years age bar condition in admission to LLB 3 years course. I want to know whether the students who have already taken admission in the wake of stay granted by the hon’ble court will have to lose their admission if the stay is vacated later on or the PILs dont succeed. thanks

    Reply
  10. rajan

    Sir,
    From where i can know about the present stage/status of the writ petitions/PILs. filed against the BCI’s rule regarding 30 years of age bar in admission to LLB 3 year Degree Course.

    Reply
  11. hevinjose

    Zia Mody is a cardinal legal consultant and also an important member of Bahai Faith in India. She is refer as to control over securities law and corporate merger.

    Reply

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