Two reports are related to the Department of Legal Affairs (Implementation Cell) as under
Report No.184 was submitted under the Sixteenth Law Commission headed by Chairman: Mr. Justice B. P. Jeevan Reddy (2000-2001) and Chairman Mr. Justice Jagannadha Rao (2002-2003) on "The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956".
SUMMARY OF RECOMMENDATIONS UNDER CHAPTER XIV OF THE REPORT.184
This summary of recommendation is gathered from various Chapters I to XIII and arranged subject-wise for convenience.
- In as much as the Bar Council of India cannot be required to consult all Universities, as now stated in section 7 (1) (h), the provisions of section 7(1)(h) have to be amended by prescribing that the Bar Council of India must consult a body which effectively represents all the Universities and that such a body should be constituted by the University Grants Commission. This requires amendment of the Advocates Act, 1961 and the University Grants Commission Act, 1956. (para 2.22)
- The consultation procedure between the Bar Council of India and the Universities must be simple and effective. (para 2.21)
- Section 7(1) (h) has to be amended by providing for ‘consultation' as proposed in sections 10AA to be inserted in the Advocates Act, 1961 with the Legal Education Committee of the University Grants Commission. (para 3.13(1).
- Clause (b) of subsection (2) of sec. 10 has to be amended to provide for the membership of the Legal Education Committee of the Bar Council of India, representing different classes of person. The Committee shall comprise of 5 members from the Bar Council of India, one retired Judge of the Supreme Court of India, one retired Chief Justice/Judge of a High Court both to be nominated by the Chief Justice of India and three academicians in law to be nominated by the University Grants Commission and these three should be members of the proposed UGC Committee on Legal Education and all three of them must be in the office and one of them must be Director/Vice-Chancellor of a statutory Law University. The retired Judge of the Supreme Court shall be the Chairman of the Committee. (para 3.12(2))
- The Attorney General for India can, at his option, participate in the meetings of the Legal Education Committee of the Bar Council of India and the Chairman of that Committee shall be entitled to request the Attorney General to participate in the proceedings of the Committee and when he so participates, he is entitled to vote. (para 3.13 (3))
- The Bar Council Legal Education Committee shall decide all matters in its meeting by a majority of votes of the members present and voting, and in the event of an equality of votes, the Chairman shall have and exercise a casting vote. (para 3.13 (4))
- The Bar Council Legal Education Committee shall meet at least once in three months. (para 3.13 (5))
- In sub-section (4) of section 10A, for the words ‘every committee thereof except the disciplinary committees', the words ‘every committee thereof except the Bar Council Legal Education Committee and the disciplinary committees', should be substituted. (para 3.13 (6))
- The U.G.C. Committee on Legal Education to be constituted by the U.G.C. The Committee to consist of ten members, of whom (a) six shall be academicians of the level of Professors, Deans or Principals or of equal rank, (b) two shall be law teachers of similar ranks who have retired and (c) two shall be Directors/Vice-Chancellors of statutory Law Universities. Section 5A to be inserted in the UGC Act, 1956 for the constitution of the UGC Legal Education Committee. (paras 4.14 and 4.21)
- The procedure for consultation referred to in sec. 7(1)(h) shall be as follows: After the Legal Education Committee of the Bar Council of India consults the State Bar Councils, it shall consult the Legal Education Committee of the UGC which shall forward its views back to the Legal Education Committee of the Bar Council of India and the latter Committee shall then make a final decision. Section 10 AA to be inserted in the Advocates Act, 1961 for providing consultation procedure to be followed by the Bar Council Legal Education Committee. (Paragraphs 4.3 and 4.20)
- The UGC can also initiate proposals by sending the same for consideration of the Legal Education Committee of the Bar Council of India, in which case the same procedure will be followed by the Legal Education Committee of the Bar Council of India, which it follows in the matter of proposals initiated by it. (para 4.4)
- The Bar Council of India should implement the decisions of the Legal Education Committee of the Bar Council of India. (para 4.15)
- TThe Bar Council Legal Education Committee should take into consideration various factors mentioned in para 4.17 before passing any resolution in respect of standards of legal education. (para 4.17).
- Section 7(1)(h) be amended to provide that standards of legal education shall be laid down by the Bar Council of India following the recommendations made by the Legal Education Committee of the Bar Council of India after consultation with the State Bar Councils and the Legal Education Committee of the UGC, as mentioned in the proposed section 10AA and the word, ‘standards' shall mean various matters referring to curricula, etc. (para 5.24) /span>
- AADR training must be introduced for law student and lawyers as follows:
- for students, ADR system to be made a compulsory subject in LL.B. course; and
- for lawyers, short-term training, certificate, diploma courses on ADR to be introduced on a massive scale all over the country, for purpose of section 89 of Civil Procedure Code. (para 6.5, 6.6)
- The High Court and the Bar Council of India, the State Bar Councils, the Indian Law Institute, and the ICADR and similar organizations should start ADR training programs for lawyers and judicial officers. The training should be a short one for one week, or it may be a one-month certificate course or a six-month or a one-year diploma course. (para 6.11) /span>
- Section 7 (1) (h) to be amended to enable the Bar Council of India to promote ADR as a subject of academic study in the law school to students and also to promote continuing education on ADR to a legal practitioner. (para 6.11)
- Bar Council of India can lay down minimum standards necessary for courses for students who will come into the legal profession but not in respect of other law courses which do not lead to a professional career. UGC can prescribe higher standards. (para 4.10 to 4.12)
- UGC and BCI to introduce a system of Accreditation of law colleges. Section 7 (1) (h) should be amended to enable the Bar Council of India to promote excellence in legal education for the accreditation system. (para 5.22)
- It is proposed to recommend amendment of clause (h) in sec. 7(1) enabling the Bar Council of India to lay down procedure and conditions for appointment of Adjunct teachers who are to be appointed from among members of the Bar and the retired Judges. This has to be done in consultation with the State Bar Councils and the Legal Education Committee of the Bar Council of India and the Legal Education Committee of the UGC. (para 7.12)
- It is proposed that a separate provision be inserted in the Advocates Act for providing that no law college or a law department of a university shall impart instructions in the course of study in law which lead to enrolment as an advocate unless the Bar Council of India has granted permission in this regard. It is also proposed that no law college or law department of a university or any other institution shall continue to impart instruction in such course if the permission granted by the Bar Council of India has been withdrawn. Further that any fees collected towards admission in violation of this provision shall be refunded. It is also proposed that violation of this provision shall amount to an offense punishable under the proposed new section 45A.
- It is proposed that existing section 7A be renumbered as 7D and after section 7, above mentioned provision be inserted. (paras 8.3.1 & 8.3.2)
- A separate clause in sub-section (1) of section 7 is added to enable the Bar Council of India to grant permission for imparting instruction to a law department of a university or a law college and to withdraw such permission. (para 8.13)
- It is recommended that separate provisions be incorporated in the Advocates Act, 1961 for providing that in case of any conflict in the inspection reports of the Bar Council of India and of the UGC/Universities or where there is a big gap between the claims of the management and the Inspection Committee, a Task Force should inspect the same lines as in the Regulations of the AICTE in which a Judicial Officer would be a member. For this purpose, it is proposed that new sections 7B and 7C be added to the Advocates Act. Consequently, inspection Rules framed by the Bar Council of India should be amended. (para 8.12)
- The existing section 7 (1) (i) should deal only with the recognition of universities. For inspection of law colleges and universities, separate provisions should be inserted in the form of section 7B and 7C. Consequently, sections 6 (1) (gg), 7 (1) (i), 49 (1) are also required to be amended. (para 8.13)
- It is recommended that the ‘problem method' be introduced in the examination system to an extent of about 75% in each paper, apart from 25% for theory. The students should obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the students to apply their minds seriously to every subject. This will also eliminate malpractices like copying or seeking the help of invigilators. Attendance at classes is also bound to improve. (para 9.21)
- It is also recommended that clinical legal education may be made compulsory in legal education. (para 9.15).
- The Central Government should start at least four colleges in the country for providing professional training to law teachers in consultation with the Bar Council of India and the University Grants Commission. (para 9.18)
- SSection 7 (1) may be amended by adding clauses (ie) and (if) as follows:
" (ie) to take such measures to establish institutions for continuing legal education for law teachers; (if) to take measures for raising the standards of teaching in law in consultation with the Central Government, the State Governments, and the University Grants Commission." (para 9.20).
- It is recommended that in sec. 7 (1), clause (ig) be added as follows: /span>
a. to create awareness of the latest trends in legal education by establishing legal education libraries at the offices of the Bar Council of India and all State Bar Councils and universities and in law colleges." (para 10.9)30)
b. Section 7(1) (i) to be amended for providing disaffiliation or derecognition of a College or a University in case a College or University does not implement the lawful directions of the Bar Council of India or State Bar Councils. (para 11.1)
- Section 49 (1) following clause should be added, namely:
“(aj) the procedure regarding recognition and de-recognition of such universities as referred to in clause (i) of sub-section(1) of section 7 and the procedure regarding the issuing of direction to a university to disaffiliate a Law college;" (para 11.3)
- Training for one-year (Apprenticeship) in the Chambers of a lawyer with at least ten years standing and a Bar Examination to be introduced for a law graduate before he enters the legal profession, by amendment of the Act. Power to do so to be vested only in the Bar Council of India. Sections 7, 24, and 49 to be amended. (para 12.23)
- OOfficers in private or public service dismissed or removed from service or convicted on the ground of charges involving moral turpitude, to be debarred totally from entering into the profession. Section 24A (1) should be amended. (paras 13.2 & 13.6)
PRESENT STATUS OF REPORT NO: 184
The Ministry of Human Resource Development had constituted a Committee to Advise on Renovation and Rejuvenation of Higher Education in India under Prof. span>YYash Pal to review the status of existing regulatory organizations such as UGC and AICTE in higher education. The Committee has recommended the creation of an all-encompassing National Commission for Higher Education & Research (NCHER), a constitutional body to replace the existing regulatory bodies including the University Grants Commission (UGC), All India Council for Technical Education(AITE), National Council for Teachers Education(NCTE) and the professional bodies such as AICTE, Medical Council of India (MCI), Bar Council of India(BCI), Council of Architecture(COA), Indian Nursing Council(INC), Pharmacy Council of India(PCI), etc to be divested of their academic functions, which are recommended to be restored to the universities. The National Knowledge Commission (NKC) has also recommended the establishment of an Independent Regulatory Authority for Higher Education (IRAHE) on the same lines. Ln pursuance of the recommendations of NCHER and NKC, Government has constituted a Task Force to aid and advise the Central Government in the establishment of a Commission for Higher Education & Research which would unify technical, professional including legal education and university education other than medical education and agricultural education.
Report No.266 was submitted under the Twenty-First Law Commission was headed by Chairman: Dr. Justice B. S. Chauhan (2000-2001) on “The Advocates Act, 1961 (Regulation of Legal Profession)" was submitted on 23.03.2017. The report concluded with the following comments:
“The law colleges require a transformation in infrastructure and resources. Library facilities in our law colleges need to be upgraded, for which resources have to be mobilized. Legal education in India should be structured in a manner where the BCI, along with legal academics may endeavor to innovate, experiment, and compete globally. A balance should be maintained to change the entire fabric of the legal education system in India, keeping in mind the necessity of globalization."
PRESENT STATUS OF THE REPORT NO: 266
The Department of Legal Affairs has sought the comments of Stakeholders like the Bar Council of India (BCI), State Bar Councils, etc on the recommendation made in the report. Department had also convened a meeting on 05.07.20'16 to discuss the said issue with various stakeholders. The Hon'ble Supreme Court of India in its judgment dated 13.03.201 8 in Civil Appeal Nos.7875-7879 of 20'15 titled Bar Council of India Vs A.K. Balaji and Ors. held that foreign law firms cannot set up offices in India or practice Legal Affairs in Indian Courts, but there is no bar for the foreign law firms or foreign lawyers to visit India for a temporary period forgiving legal advice regarding foreign law on diverse international legal issues on a 'fly in and fly out basis if it does not amount to practice. The Hon'ble Supreme Court judgment dated 13.03.20'18 and 266th report of Law Commission of India is under consideration of the Department of Legal Affairs.
The Current Status of Law Commission Report No.184 and 266 is “PENDING".