Might the COVID-19 crisis be the opportunity that legal reformers in India have been waiting for?

Might the COVID-19 crisis be the opportunity that legal reformers in India have been waiting for?

Recently, the Chairman of the Bar Council of India (BCI) declaimed, in a rambling letter to the country’s Chief Justice, that at least 90 per cent of Indian lawyers are technologically illiterate. It brings to mind another similar pronouncement, made a few years ago, by a maverick former Supreme Court judge that at least 90 per cent of Indians are fools.

Such statements have, alas, become commonplace, so much so that they barely evoke any serious comment, except possibly in the ephemeral world of social media.

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No fair-minded person can deny that the Chairman has, even if only unintentionally, drawn attention to a state of affairs which should cause widespread concern in any society.

The problem has, if anything, been grossly understated: without quibbling about the exact percentage, it would be safe to say – on the strength of freely available evidence – that an overwhelming majority of those who pass off as lawyers in India are at best semi-literate (and not just in matters relating to technology but more generally).

Against that backdrop, the Coronavirus crisis has, curiously enough, presented the nation with an opportunity to cleanse the Augean stables of the Indian legal profession. There have already been suggestions from various quarters to ensure that the ‘new normal’ which emerges at the end of the crisis should incorporate some reforms, including the routine use of video conferencing to replace – or at least, supplement – conventional face-to-face hearings in courts and tribunals across the country.

Unsurprisingly, those suggestions have met with considerable pushback from vested interests within the profession, including of course, lawyers’ trade unions. The letter referred to above is a classic, if contemptible, example of special pleading and reflexive resistance. But that should not be a reason for faint-heartedness; on the contrary, those who hold the levers of power should consider the present circumstances as most propitious for change.

Given the deep-rooted nature of the rot that has almost hollowed out the core of the Indian legal profession over the past half century, any serious reform that is attempted will not only be painful but will have to contend with widespread protests and obstruction. It will therefore have to be accompanied by strong determination, a hard-nosed approach, strong strategic skills and low cunning. Given that such reform will also, inevitably, involve the infliction of hardship on a substantial scale, attention needs to be given simultaneously to mitigation measures to cushion those affected against destitution.

The central plank of the reform programme has to be a drastic reduction in lawyer numbers, coupled with a massive programme of quality upgradation for those unaffected by the cull (and for future entrants to the profession).

The sad reality – which has been ignored for decades – is that India not only has too many lawyers, but it has an unacceptably large number of sub-standard lawyers. A misguided pursuit of egalitarianism in the 1960s and later – which saw an unseemly relaxation of quality controls at the stage of entry into law schools and the abandonment of vocational training requirements – led to the market being flooded with hundreds of thousands of mediocre lawyers who could ply their trade without let or hindrance.

An even bigger travesty was that none of these practitioners had to subject themselves to any periodic evaluation by their peers and superiors, because there was – and is – no system in place for renewal of practising certificates. In other words, once registered, a lawyer is entitled to practice in any court across the vast expanse of India for life without ever having to subject himself to any quality assurance procedures from a regulatory body. It is worth noting as well that such rules as exist against professional misconduct or unethical behaviour are seldom enforced with any seriousness or vigour.

The crying need of the hour, therefore, is to bring numbers down drastically. Perhaps the first step in this process might be to introduce a system of renewal of practising certificates which would require the lawyer to subject himself to a rigorous aptitude test (including in basic legal knowledge, professional ethics and the use of information technology) annually. It is a safe bet that a very large number – possibly as high as 50 per cent – of existing practitioners will be unable to cross the quality threshold imposed by the aptitude test.

Simultaneously, there needs to be a reduction in the number of law schools offering degrees that would allow a graduate to enter the legal profession. This is not as radical an idea as it may seem, because that is exactly how legal education is organised in most countries around the world. The runaway proliferation of law colleges (many with sub-par staff and inadequate library facilities) has blighted the prospects of any real improvement in standards at professional level.

Even if closing down existing colleges is not feasible – for economic or socio-political reasons – a workable way forward would be to ensure that only certain institutions and certain degrees provide a pathway for entry to the legal profession. Courses leading to such degrees, usually called Qualifying Law Degrees (QLDs), will have to be carefully vetted and approved by a truly independent, knowledgeable and incorruptible body, with the total number of available places capped at a few hundred every year (as used to happen in medical colleges until some years ago). A stringent entrance examination, properly protected against malpractices, will further filter out undesirable or unmeritorious aspirants to the legal profession.

Important though these measures are, they are clearly not enough. Much attention needs to be paid to such other matters as recruitment of high quality law teachers and provision of vocational training for those emerging with QLDs, a rigorous bar examination, and continuing professional development (CPD) schemes for practising lawyers.

There is also a dire and urgent need to undertake a root-and-branch reform of regulatory bodies and procedures which are no longer fit for purpose. Given the parlous state in which the system is currently in, the task is gargantuan. Resources will have to be found for this large-scale reform, and that is unlikely to be easy. The challenge cannot, however, be ducked if there is any appreciation of the imperative for change.

A question that will undoubtedly – and fairly – arise is: might these reforms not lead to the legal profession lapsing into elitism and shutting out men and women from less privileged backgrounds? The answer to that question is two-fold: first, elitism – in the neutral, benign sense of that word – is per se not a bad thing. Would it be considered elitist – and therefore unacceptable – if, for example, strong filtration mechanisms are put in place for students who wish to train as brain surgeons? Why should consumers of legal services be treated less favourably?

Secondly, the problem of access for poor students to the legal profession can easily be solved by providing sumptuous scholarships and other forms of assistance to bright and talented candidates both at pre-entry stage and during their progression through law school and vocational training. Such targeted subsidies will not only be affordable but also eminently fair by any reasonable standard.

The cleansing of the Augean stables of the Indian legal system cannot, of course, be accomplished without far-reaching reforms being undertaken at the level of the judiciary. That will involve an equally colossal programme of reconstruction encompassing: thoroughgoing changes to working practices; new approaches to the recruitment of judges and magistrates; progressive removal of existing deadwood in both the judicial and administrative branches; augmentation of salaries and improvements in conditions of service; strengthening of judicial independence; raising of the retirement age for judges; and equalisation of retirement ages for all members of the superior judiciary.

Crucially, in the context of the Coronavirus crisis, one overarching reform which will have to be given pride of place is a more comprehensive embracing of technology in the functioning of the courts – a subject on which there has been an abundance of comment in recent weeks. There appears to be a growing consensus, at least among the better informed observers of the legal scene, that any reversion to the inefficient practices of pre-Covid-19 days will be inexcusable.

The real challenge is for the decision-makers at various levels to overcome the tsunami of opposition that has begun emerging from vested interests against meaningful change.

Lest it be thought that reforms on this scale can either be executed in a short-time frame or can yield the desired results quickly, it needs to be reiterated that any such hope would be unrealistic. Given how entrenched the existing ills are, it will probably take a generation or more for the system to be cleansed thoroughly. But if it is accepted that a start needs to be made without any further dilly-dallying, this is undoubtedly as good a moment as any to make that start.

The author is a barrister and legal academic based in the United Kingdom.

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