The proposed bar exam will be an open book test exclusively giving litigating lawyers a “license to practice” but would not affect transactional lawyers, proposed solicitor general and Bar Council of India (BCI) chairman Gopal Subramaniam on Saturday, noting that the exam could also apply retroactively to unenrolled graduates from past years.
Although all lawyers and 2010 graduates could be members of the Bar by enrolling with state Bar Councils, said Subramaniam, only those who passed the exam would be allowed to “practice” by appearing before courts and tribunals, creating a new distinction between “enrolment” and “practice”.
He explained that this was not contrary to the judgment in the Lawyers Collective v Ashurst & Ors case, which held in December 2009 that the “practice of law” included all legal work including transactional work.
“I think the Bombay High Court judgment does not concern domestic lawyers but is limited in application to foreign lawyers,” he said.
While details relating to the bar exam are not yet finalised, the proposal could mean that 2010 graduates would not be able to appear to argue in courts before January 2011, as the exam is scheduled for December 2010, although it would not be required for graduates pursuing advisory work and transactional law in corporate firms in India or abroad, judicial clerks, law teachers or students pursuing LLMs abroad.
Noting students’ concerns Subramaniam said: “We understand that there will be difficulties to begin with but we have to start the process somewhere. As with all new qualifying exams there will be some uncertainty in the beginning but we will try to assist students as far as possible.”
However, he ruled out granting provisional licenses to practice before December, as it would be difficult to monitor and issue permanent licenses thereafter.
Subramaniam also announced that the exam would tentatively be an “open book” test and that the format and syllabus would be notified by 1 June on the BCI website.
The exam would involve a 60-40 split between knowledge-based and application-based questions and the pass mark would be pegged at around 40. He also suggested that the BCI was considering online exams for those studying abroad.
Subramaniam made the remarks during a talk entitled “Social Justice and Lawyering” at the campus of NLS Bangalore last Saturday (17 May).
He said that those holding law degrees but who had never formally enrolled with Bar Councils in previous years might also have to pass the bar exam in order to practice in courts, responding to a question posed by NLS Bangalore vice chancellor professor Venkata Rao.
Subramaniam noted that law teachers would not have to pass the bar exam to teach, admitting that this should be evaluated in light of maintaining standards of teaching in law schools.
However, he proposed to hike the minimum pay scales of law teachers, noting that currently a class 4 employee of the Municipal Corporate of Delhi could earn more than contract teachers in many law schools, some of whom earned as little as Rs 7,000 per month.
Photo by pareerica
Comments
TO GS: YOU HAVE GOT ENOUGH TRP RATINGS ON LI EVER SINCE YOU TOOK OFFICE. ENOUGH IS ENOUGH. PLEASE CONSIDER THE ISSUE AT DEPTH BEFORE GRABBING AT PROPOSALS, DAY AFTER DAY :sad:
And to draw the line between what law firm lawyers and accountants and consultants do is artificial.
Bravo!
All that the BCI is concerned is to enrol only those who qualify in the Bar Council Exam, whether it is through Open book exam, or closed book exam. Period. The question of permitting some as chamber lawyers and some as litigating lawyers - seems to be an off the cuff answer to meet the objections of those protest that there will be a gap of 8 to 10 months before the Bar Exam results are out. While Mr. GS is right in saying that somewhere a beginning has to be made, he should stick to that stand instead of trying to create unnecessary class of lawyers - litigating and non-litigating etc.
If Mr. GS says that it would be very difficult to track the provisional enrolment and permanent enrolment, once an enrolment is granted by the Bar Council how on earth he is going to track whether one is enrolled only as a chamber lawyer or a litigating lawyer!
It is for the law firms whether to engage or not those who did not clear the bar exams. But, those who do not clear the Bar Exam should be not be granted the "Advocate" lable.
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#2's comment about GS is funny. Maybe he should open a twitter account and interact with us, After all, the BCI seems answerable to nobody.
During our five yrs studies we vr nevr allowed "Open Book", so y now??
Its lyk law is going back to its initial days i.e 15 yrs back wen open book was allowed and that is the reason y law is still looked down upon.Our counterpart engineers, doctors etc still believe that we give an open book exam for five yrs in law school.
n he is just proving their thinking!no way should an open book be allowed.
What is this new categorization, one wonders. Is the BCI allowed to create classes? The Act says "there shall be one class of lawyers" (in another context) :P And ....
WHAT GOOD IS ENROLLMENT WITHOUT RIGHT TO PRACTICE? Law graduates must be allowed to practice till exam results are announced (if exams are held late). Otherwise, how will they earn their bread (majority law graduates would do lit and that is a FACT; and their seniors would not accommodate them like law firms may). This is realy disturbing, esp. considering that GS is handling this business (since he is sooo good otherwise and a star of the Indian bar).
Also, wonder why the SC isn't taking up this issue suo moto.
Why is GS talking so much nonsense....is it that dificult to come out with a clearcut, rational and coherent policy...why does he have to keep modifying his take on the issue....
I absolutely agree with #2....the authorities must consider the issue at depth before making public statements day after day
Secondly, the distinction is necessary between transactional and litigating lawyers because transactional lawyers anyway never see the face of a court and therefore dont need to be grilled on procedure. The distlinction between solicitors and litigators is desirable. Even in England the barrister's exam is different from the Legal Practice Course for solicitors.
Those of us who have been through real law schools will know that open book exams are some of the most difficult because you can either write the dam paper or refer to your book. Professors from the US also allow all material inside. In fact it is only those professors who believe in rote learning who dont allow even bare acts. And doctors and engineers are well ... rote learners ... classic ones ...
What good will an "open book" be in a problem based application questions. Thats the real test and GS is smart enough to know that. The reason it will be open book this year is because it is new and needs familiarization. I am sure it will eventually be phased out.
GS also proposed a new identity card system at courts around the country to ensure that only those who have passed the xam can practice
Stop bashing the poor guy. He is atleast trying to weed out idiots from the profession. He also knows that incompetent people dont need to be weeded out from the corporate sector, because hire and fire works there. On the other hand there is no liability and no accountability for a bad lawyers in some mofussil part of the country.
- When you propose to allow enrollment for all law graduates, but say that they cannot practice till they pass the exam, WHO ARE YOU KIDDING? Most law graduates will head into litigation and they will need the right to appear before courts from Day 1 if they have to earn any money.
- Why not give law graduates the right to practice, till exams are held and results are announced (if the argument in defense is on the lines of “logistic problem”, then BCI should simply make this “idea” applicable from 2011.)
- BCI has powers, but exercise of powers must be reasonable. What is the “reasonableness” you cite, keeping in mind you are interfering with Arts. 19(1)(g) and 21?
As an impartial observer, I think that the idea is a brilliant one; but the way its implementation is being handled is far from brilliant, to say the least.
All in all … its another hole in the wall !!!
P.S. – Let me clarify, “you” is not you !!! … Rather, it’s a reference to BCI.
"it takes about 5 years of shadowing a senior for a lawyer to even be heard by a judge with patience."
Which court are you talking about? Would love to practice there. In my experience, it takes much longer than 5 years, around 10 years. Some of our judges sicken me.
Thank god people are realising that a good lawyer is one who can do more than recite all the sections of the CPC/CrPC.
Hell, even best lawyers in this country would not know the whole IPC or crpc or cpc or for that matter the arbitration act by-heart. Isn't it unreasonable to expect the same from a fresh law grad. If he can demonstrate his research and analytical skills by way of an open book exam isnt that what the BCI is ideally searching for?
That being said, the standard of the examination must be such that it brings for the research and analytical skills of the examine (No point having an open book exam and asking the aforesaid question).
On excluding transactional lawyers from the ambit of the bar exam I disagree with GS. I think such a distinction is artificial and affects the mobility of professionals from one arm to the other.
Thank you,
Concerned Student from one of the "Law Schools"
"The distinction between a transactional lawyer and a litigating lawyer is ill-founded, primarily because it validates the proposition that a trans lawyer need not necessarily know what a lit guy does and vice versa. Now, that can sabotage the profession because a client, be it for lit work or trans work, expects that you are competent in the 'law' and trusts you bring to your advice both a contentious and a regulatory perspective."
Which century are you living in?
N yes we had crammed sections during our five yrs and still managed to do application based problems!
~ the real #14
I love the confidence with which you say that! Of course, what you're saying is complete crap! Nonetheless, the way you put it really did tickle me..!
*please remember that body is temple.
~ The Real Shaktimann
Hope you only mean the bare Act,which is allowed!
True story: The son of the owner of a leading law firm used to study in one of the top three law colleges (i'll keep the firm and the college's identity a secret). When this guy was INTERNING as a STUDENT, he got his own chamber and was ordering associates around!! This guy is gonna be a partner in a few years, but I can tell you that my driver knows more law than him! This guy managed to pass his exams through underhand means, and if you ask him that CPC stands for, he'll probably tell you it's the name of a nightclub!
Such lack of empathy for those who are to be your professional brethren really disgusts me..
~ a shaktiman fan
~ Clone Shaktimann and Kekdaa Man
Student of one of the National Law school
You're largely correct. However, in my 5 years in NUJS I remember giving 2 tests where textbooks were allowed (economics and international investment law). in both cases, the teachers tried to cover too much matter and allowing textbooks was some sort of stupid consolation, like a rapist giving a prospective victim a condom.
In the case of eco, every ex-student of NUJS will tell you that the teacher was incompetent, to put it very politely.
alternatively, y not give a take home assignment?
To illustrate, the Kind of Q that would be asked in a typical open book examination would not be, discuss the right against self-incrimination under the Indian Constitution; but would be more like (in a pre narco decision by the SC situation) examine the validity of polygraph tests and their admissibility as evidence. Each question would ideally be a moot problem in itself wherein having a textbook itself would be of no use if you cant apply the law given therein to the facts. This is what lawyers are supposed to do, not mug up sections and case laws.
[I believe the plan is to hold the exam twice a year. Apologies for ommitting to mention. -Ed]
i have encountered some of these oxford/ivy league alumni teaching in nalsar, nlsiu, nujs etc and 90% of them are [insert worst punjabi gaali here].
they are sexually frustrated loser nerds who could not get jobs abroad. they come back and act vindictively and arrogantly towards the students in india. their main aim is to suck up to the respective law college principals so that they can get a good reco and join a foreign univ based on that. they got into oxford/harvard based on their undergrad GPA (we all know how crappy the indian system is) but very few have any worthwhile publications. god help the students if these specimens are going to be in charge of the bar exam!!
Bullshit! NLS has open book exams in a lot of courses and they are bloody tough unlike many 'closed book' exams. They are about analysis and not about writing down provisions of bare acts.