Lexpert

Indian students are to examinations what Aussie cricketers are to cricket – practiced, professional and passionate. Indians take exams all their lives – many of us were examined before we entered nursery school and have never stopped being examined ever since. We take exams to get into school, we take exams while we’re in school, we take exams to get past school. Then we take exams to get into universities, exams to get into graduate institutions, exams to join the civil services and other government jobs and in some cases, exams to get promoted. The average Indian student takes an exam with the same ease that Michael Schumacher took those tight turns in Monaco.

So what difference does one more exam make? Especially when it’s an exam about stuff you’ve spent five years studying? Quite a lot, when that exam decides whether you get to get a job, follow your passion or even just be recognized as a qualified professional. That’s the importance of the new All India Bar Exam.

Most developed jurisdictions require lawyers to take a bar exam of some kind. And in almost every jurisdiction that imposes a bar exam, there exist teachers or preparation classes to take students past the bar exam. This is a curious phenomenon. If law students train for the bar exams through special classes, then what on earth do they learn during their time in law school?

For example, every single one of the subjects tested on the Multistate portion of US bar exams (which applies no matter which state’s bar you take), is taught as part of the basic curriculum for US law schools. So why should law students need to take separate classes for the bar exam? The simple answer is because the law is vast and memory is limited. Even a diligent student is likely to forget the finer points of the legal principles he studied three years ago, in the absence of continuous practice and familiarity. Quick test – offhand, can you name the four cases in which culpable homicide constitutes murder under the Indian Penal Code?

So that’s what bar classes do – they ensure familiarity with the basics, they allow you to take practice tests and they teach you to manage your time in an exam situation. What law schools teach you is very different – they teach you to think about problems like professional lawyers, they teach you long-term skills such as reading and distinguishing cases and how to draft effectively. At least, that’s what law schools are supposed to do – many don’t seem to take these responsibilities sufficiently seriously.

US law schools consciously do not teach with the bar exam in mind. A single course on criminal law might focus on murder and rape and consciously decide not to teach areas such as kidnapping, arson or robbery. Some professors may teach courses entirely from their point of view or with a single theme in mind – for instance Constitutional law might focus on restraints on government action or on federalism. The focus is on learning to think about the law – the nitty- gritties of specific statutes may be left to bar preparation.

This system has some merits. Students might learn to apply their analytical skills more effectively, they might learn to discern and acknowledge the two sides of an issue and they may learn to argue and defend their positions with greater efficacy. Nevertheless, there are drawbacks too. Being taught by an overly idiosyncratic professor might mean that you learn much less than you otherwise would. If you’re not very motivated, there might be significant gaps in your knowledge and clients who need solutions and partners who need research are not going to be impressed if you don’t know a loan from lien.

So the question is – which direction will Indian law schools take? Now that we have a bar exam, will they start teaching their students with the bar exam in mind? Or will they continue along their traditional path and leave it to Brilliant’s Tutorials or Lawentrance to start providing bar preparation classes?

Let’s look at the subjects that the bar examination will cover. Category I on the bar exam covers 11 subjects, each of which will be tested by 7 multiple choice questions. These subjects might be considered as basic to any law school’s curriculum. They include Property, Constitutional Law, Evidence, Criminal Law, Civil Procedure, Contract and Criminal Procedure. The odd man out is probably Jurisprudence. When academics at some of the leading institutions worldwide have not yet come to agreement on several fundamental jurisprudential questions, one wonders how to test candidates on these issues through multiple choice questions.

Category II covers 23 questions on subjects such as Company Law, Family Law, Administrative Law, Environmental Law, Labour Law and Tort. Here, the odd man out is Tort, which is a subject so basic that it should have been covered in Category I. Its inclusion in Category II might reflect the comparatively underdeveloped state of tort law in India.

What is most important is that each of these 20 subjects in Categories I and II form part of the compulsory curriculum of the Indian law schools – i.e., all students are assumed to be familiar with them. So, does this mean that Indian law schools will now start teaching their students in accordance with the requirements of the bar exam? If they do, my view is that students’ familiarity with Category I subjects will probably improve but students’ ability to think through complex issues in Category II subjects may be somewhat hampered.

Subjects such as Company Law, Family Law and Environmental Law involve complex social questions and consequences which law students need to be familiar with and which cannot necessarily be adequately tested solely through 5 multiple choice questions on each topic. Of course, this does not mean that students can simply plead ignorance of the basic law on each of these topics. The question I am raising here is whether law schools in India should teach these Category II subjects primarily with a view to passing the bar examinations. I would suggest that schools should concentrate on developing critical thinking on Category II subjects while leaving it to professional bar exam providers to provide the kind of succinct, short-term knowledge required to pass the bar exam. To teach these complex and nuanced subjects in simple multiple-choice form would be a disservice both to students as well as to the subjects themselves.

The All India Bar Exam may not pose much of a challenge to our exam-hardened veteran students. But the challenge that it poses to India’s system of legal education is vast and profound.

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