Legal Education in India

• to produce not only advocates but judges, law officers, teachers, administrators, draftsmen and legislators, since all of them are drawn from the same graduates;
• to instil professional ethics, which is why section 7(1)(b) of the Advocates Act makes standards of professional conduct and etiquette a matter for the Bar Council of India;
• to serve access to justice, which is why both a State Bar Council and the Bar Council of India are given the function of organising legal aid to the poor by sections 6(1)(eee) and 7(1)(ib), and may constitute legal aid committees under section 9A; and
• to supply the research and criticism on which law reform depends, which connects this chapter to the last one: the Law Commission took up legal education suo motu in Report No. 184 because it regarded it as fundamental to the very foundation of the judicial system.

The development of legal education: what the sources here support

This book is written from sources that were read, and the honest position is that its sources describe the twentieth century development of legal education in India and not the nineteenth. What follows is what they support.

Before 1926: nothing statutory

Nothing in the charters, the letters patent or the Legal Practitioners Act 1879 required a degree in law of anybody. Chapter 750 shows what the qualifications actually were: rules made by each High Court under section 6 of that Act for pleaders and mukhtars, examinations held by the High Court, and, for the High Court bar, the qualifications the letters patent and the court's own rules imposed. A mukhtar was a matriculate who had passed the mukhtarship examination; a pleader in many Provinces was not a graduate at all.

The Legal Practitioners Act 1879 did contain one provision about examinations, and it is the earliest in this book: section 37, under which the State Government appointed examiners. That is the whole of the statutory apparatus of legal education before 1926.

1926: the first statutory power over legal education

Section 15 of the Indian Bar Councils Act 1926 empowered a Bar Council, with the previous sanction of its High Court, to make rules providing for "the giving of facilities for legal education and training and the holding and conduct of examinations by the Bar Council", and for the fees payable for those facilities and examinations.

That is the first time an Indian statute gave a body of the profession any function in legal education. It was provincial, it required the High Court's sanction, and it was permissive.

1953: what the All-India Bar Committee recommended

Chapter 770 sets out the Committee's scheme. Its recommendations on education were three, and each became something in the Advocates Act.

A uniform minimum qualification: a law degree obtained after at least two years' study of law in a University, after first graduating in Arts, Science or Commerce, and a further apprentice course of one year in practical subjects, such as the law of procedure including the rules of the High Court and the Supreme Court, the Court-fees Act, the Stamp Act, the Registration Act and the insolvency and limitation laws, with attendance at a percentage of the lectures arranged for that course.

An examination held by the State Bar Councils in those practical subjects.

And a function for the Bar Councils. The Committee recommended that a State Bar Council should "provide and make arrangements for imparting legal education, holding examinations and training of Advocates under the directions of the All-India Bar Council", and that the All-India Bar Council should do the same, "if necessary, to enter into arrangements with the Universities and other bodies", and should "lay down from time to time standards of legal education, if necessary in consultation with the Universities".

Compare the last of those with section 7(1)(h) of the Advocates Act as enacted and you will see the Committee's words almost unchanged.

1958: what the Law Commission found

Report No. 14 examined legal education and its criticisms are worth knowing, because they explain the shape of the modern law degree.

The courses were too short. Of the then two-year courses the Commission said it is "impossible to traverse even a respectable area of law within two years."

They were part-time in practice. With only about 170 to 180 working days in a year and inconsistent attendance requirements, a serious legal education was not possible.

And the students were inadequately grounded. The Commission wanted graduation to be a prerequisite before legal studies began.

Its recommendations followed from those findings and included: only graduates should be allowed to take the degree course in law; law education requires full-time institutions and full-time teachers; persons in employment or pursuing other studies should not be enrolled; examination standards were "deplorably low" and admission should be restricted by strict testing; a degree alone should not entitle a person to practise, professional courses through the Bar Councils covering procedure, ethics and drafting should follow, with compulsory attendance, an apprenticeship of one year under an experienced lawyer with a work diary, and a rigorous practical examination; and the Bar Council should monitor the standards of colleges and refuse recognition to substandard institutions. It thought a separate Council of Legal Education unnecessary, because the Bar Council could do the work.

A student who has read chapter 780 will recognise how much of that list is now in the Advocates Act.

1961 onwards: the statute as it stands

The Advocates Act 1961 put legal education under the Bar Council of India, and the provisions are these.

• Section 7(1)(h): it is the function of the Bar Council of India to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils.
• Section 7(1)(i): to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate, and for that purpose to visit and inspect Universities, or to cause the State Bar Councils to do so on its directions.
• Section 6(1)(gg): it is a function of a State Bar Council to visit and inspect Universities in accordance with those directions.
• Section 10(2)(b): the Bar Council of India shall constitute a legal education committee of ten members, of whom five are elected by the Council from among its members and five are co-opted persons who are not members of the Council. Half of the body that supervises legal education is therefore from outside the Council's own elected membership, which is how academic voices reach it.
• Section 24(1)(c): the degree requirement for enrolment. For a degree obtained after 12 March 1967, a person must have undergone a three-year course of study in law from a University in India recognised for the purposes of this Act by the Bar Council of India, or hold a foreign degree so recognised.
• Section 49(1)(af): the Bar Council of India may make rules prescribing the minimum qualifications required for admission to a course of degree in law in any recognised University.
• Section 49(1)(d): and rules prescribing the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose.

Put those together and the modern position is exact. A University may teach law; whether its degree lets the holder practise is decided by the Bar Council of India. The Council fixes the minimum qualification for entry to the course, the standards the University must observe, and the inspection by which they are enforced; and section 24(1)(c) makes the degree of a recognised University a condition of enrolment.

Section 7(1)(ic) completes the picture outwards: the Bar Council of India may recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate, which should be read with the reciprocity provision in section 47.

2002: the Law Commission returns to it

In Report No. 184 the Law Commission took up legal education suo motu, that is, on its own motion, on the footing that it was fundamental to the very foundation of the judicial system, and confined that report to legal education alone. Among the issues it identified were the respective roles of the Bar Council of India and the University Grants Commission in maintaining standards of legal education, and an effective procedure for consultation by the Bar Council of India with the Universities; and it observed that those roles have been demarcated by constitutional provisions and by judgments of the Supreme Court and the High Courts, and have ultimately to be harmonised. It recommended, among other things, colleges for the professional training of law teachers in consultation with the Bar Council of India and the University Grants Commission, and legal education libraries at the Bar Council of India, the State Bar Councils, the Universities and the law colleges.

That report identifies the standing structural problem of Indian legal education in one line: two regulators. The Bar Council of India controls legal education because a law degree is the gateway to the profession; the University Grants Commission controls it because a law degree is a University degree.

A worked example

You are the student this book is written for: on a five-year B.A. LL.B. at a college affiliated to the University of Mumbai. Trace your own position through the statute.

Why does the course combine arts and law? Because the objects of legal education are academic as well as vocational, and because the Law Commission in 1958 wanted graduation before legal study; an integrated course reaches the same result by teaching the general degree and the law degree together.

Who decided you could be admitted? The minimum qualifications for admission to a course of degree in law are prescribed by rules of the Bar Council of India under section 49(1)(af).

Who decides that your college's teaching counts? The Bar Council of India lays down the standards of legal education to be observed by Universities under section 49(1)(d) and 7(1)(h), and enforces them by inspection under 49(1)(d), 7(1)(i) and 6(1)(gg).

Who decides that your degree will let you practise? The Bar Council of India, by recognising the University under section 7(1)(i); and your degree qualifies you under section 24(1)(c) only because the University is recognised.

What must you do after the degree? Apply to the State Bar Council within whose jurisdiction you propose to practise, under section 25; the application goes to its enrolment committee under section 26; on admission your name goes on the State roll under section 17; and by section 30 you may then practise as of right in every court in India, including the Supreme Court.

And who examines the whole arrangement when it goes wrong? The Law Commission of India, of its own motion, as it did in Report No. 184.

What beginners get wrong

"The University decides whether a law degree qualifies you to practise." It does not. The Bar Council of India recognises the University under section 7(1)(i), and section 24(1)(c) makes a degree from a recognised University the qualification.

"Legal education is only for producing advocates." The Law Commission's own statement is wider: training for the legal profession and for the public services, international organisations and business concerns, alongside the academic object of law as an instrument of liberal education.

"The Bar Council of India runs legal education alone." The University Grants Commission is the other regulator, and Report No. 184 identified the demarcation of their roles as one of the central problems.

"The legal education committee is a committee of Bar Council members." Half of it is not. Under section 10(2)(b) it has ten members, five elected from the Council's own members and five co-opted persons who are not members of the Council.

"Legal education became a national subject in 1926." Section 15 of the Act of 1926 gave each provincial Bar Council power to make rules about legal education, and only with the previous sanction of its High Court. It became national in 1961.

Limits and criticism

Two regulators is one too many. A law college in India answers to a University, to the University Grants Commission through it, and to the Bar Council of India, whose recognition decides whether its degree is worth anything to its students. The Law Commission said in 2002 that the two jurisdictions have to be harmonised, and the difficulty has not gone away.

The apprenticeship the reformers wanted was never fully built. The All-India Bar Committee recommended a one-year practical course with an examination held by the State Bar Council; the Law Commission in 1958 recommended a year's apprenticeship with a work diary and a rigorous practical examination; section 24 as enacted requires neither. What the Act requires of a graduate is a recognised degree, an age, citizenship and a fee. Everything else has been left to rules made by the Bar Council of India, and the history of those rules is a history of the same argument being had again.

And the profession regulates the education of its own entrants. That is defensible, because nobody else knows what a practitioner needs to know; and it is also the reason the standards of a law degree in India have been settled by a body of practising advocates rather than by teachers, which is a criticism this book records rather than resolves.

What should be said for the arrangement is what the Advocates Act achieved by making it national. Before 1961 the qualification for practice was whatever each High Court's rules said, and the six grades of chapter 750 each had a different one. Since 1961 there is one class of practitioner, one qualification, and one body that decides what the qualification means, and the student sitting this paper is inside that system rather than outside it.

Quick revision

• Objects, from Law Commission Report No. 14: the academic or cultural object, law as "a means of intellectual development and an instrument of liberal education"; and the vocational object, training for "the legal profession" or "public services, international organizations or business concerns". And: "there need be no conflict between an academic and a practical training in law."
• Before 1926: no statutory requirement of a law degree; qualification by High Court rules and examinations under the Legal Practitioners Act 1879, whose section 37 provided for examiners.
• 1926: section 15 of the Indian Bar Councils Act lets a Bar Council, with the High Court's sanction, make rules for facilities for legal education and training and the holding of examinations.
• 1953: the All-India Bar Committee recommends a law degree after two years' study following a first degree, a one-year apprentice course in practical subjects with an examination by the State Bar Council, and that the Bar Councils impart legal education, hold examinations and lay down standards in consultation with the Universities.
• 1958: Report No. 14 finds two-year courses too short, teaching effectively part-time on 170 to 180 working days, and students inadequately grounded; recommends graduates only, full-time institutions and teachers, strict admission, a professional course through the Bar Councils with one year's apprenticeship and a practical examination, and Bar Council monitoring with refusal of recognition to substandard colleges; a separate Council of Legal Education unnecessary.
• 1961: s.7(1)(h) promote legal education and lay down standards in consultation with the Universities and State Bar Councils; s.7(1)(i) recognise Universities whose degree qualifies for enrolment, and visit and inspect them; s.6(1)(gg) State Bar Councils visit and inspect on those directions; s.10(2)(b) a legal education committee of ten, five elected and five co-opted from outside; s.24(1)(c) a three-year course from a recognised University for degrees after 12 March 1967; s.49(1)(af) rules on minimum qualifications for admission to a law degree course; s.49(1)(d) rules on standards of legal education and inspection of Universities; s.7(1)(ic) reciprocal recognition of foreign qualifications.
• 2002: Report No. 184, taken up suo motu, legal education fundamental to the foundation of the judicial system; the central problem is the respective roles of the Bar Council of India and the University Grants Commission.

Test yourself

1. State the objects of legal education in India. Two, on the Law Commission's own statement. The academic or cultural object, under which law is a means of intellectual development and an instrument of liberal education, comparable to mathematics or philosophy; and the vocational object, the training of those who will enter the legal profession or the public services, international organisations or business concerns. The Commission added that there need be no conflict between an academic and a practical training in law. To those may be added the production of judges, teachers, draftsmen and administrators, the instilling of professional ethics, the service of access to justice through legal aid, and the supply of research on which law reform depends.

2. Who controls legal education in India today, and under what provisions? The Bar Council of India. By section 7(1)(h) of the Advocates Act 1961 it promotes legal education and lays down its standards in consultation with the Universities and the State Bar Councils; by section 7(1)(i) it recognises the Universities whose law degree qualifies for enrolment and may visit and inspect them, the State Bar Councils doing so on its directions under section 6(1)(gg); by section 10(2)(b) it constitutes a legal education committee of ten members, five of them co-opted from outside the Council; and by section 49(1)(af) and (d) it makes rules on the minimum qualifications for admission to a law degree course and on the standards to be observed by Universities and their inspection. Section 24(1)(c) then makes a degree from a recognised University, after a three-year course for degrees obtained after 12 March 1967, a condition of enrolment.

3. What did the Law Commission find wrong with legal education in 1958? That the two-year courses were too short, it being impossible to traverse even a respectable area of law in two years; that teaching was effectively part-time, with only about 170 to 180 working days a year and inconsistent attendance requirements; and that students were inadequately grounded before beginning legal study. It recommended that only graduates take the law degree, that legal education be given in full-time institutions by full-time teachers, that admission be restricted by strict testing, that a degree alone should not entitle a person to practise but be followed by a professional course through the Bar Councils with a year's apprenticeship and a rigorous practical examination, and that the Bar Council monitor colleges and refuse recognition to substandard institutions.

4. Trace the development of statutory control over legal education in India. Before 1926 there was none: qualification for practice was governed by rules made by each High Court under the Legal Practitioners Act 1879, and section 37 of that Act merely provided for the appointment of examiners by the State Government. Section 15 of the Indian Bar Councils Act 1926 first gave a Bar Council power, with the previous sanction of its High Court, to make rules for facilities for legal education and training and the holding of examinations, but only for its own Province. The All-India Bar Committee in 1953 recommended a uniform qualification and a national body to lay down standards in consultation with the Universities, and the Law Commission in 1958 set out what was wrong and what should replace it. The Advocates Act 1961 enacted the national scheme, giving the Bar Council of India the power to lay down standards, to recognise Universities, to constitute a legal education committee and to make rules about admission and inspection. The Law Commission returned to the subject in Report No. 184 in 2002, identifying the relationship between the Bar Council of India and the University Grants Commission as the outstanding problem.

5. Why is there an argument about who regulates legal education? Because a law degree is two things at once. It is a University degree, and so falls under the University Grants Commission and the Universities themselves; and it is the gateway to a profession, and so falls under the Bar Council of India, which recognises the University for the purposes of the Advocates Act and lays down the standards it must observe. Report No. 184 identified the demarcation of those roles as one of the central issues and said they have ultimately to be harmonised.