Bar no age

Amy Bharucha

On 14 September 2008 , the Bar Council of India (BCI) amended the Rules on Legal Education to restrict the age of entry into the 5 and 3-year LLB courses, to 20 and 30 years respectively. This move was almost unanimously condemned.

BCI’s reasoning

M D Joshi, secretary of the BCI, claimed in an interview with The Telegraph that the age rule was an attempt to streamline legal education by ensuring that law was not a ‘last option for many students who do not qualify for other professional courses.’ In the same interview, he also claimed that the rule would weed out sub-standard institutions by ensuring that colleges did not admit more than capacity by permitting older students.

A R Lakshmanan, the Chairman of the Law Commission of India agreed with this reasoning. In an interview with the Indian Express, he said “by restricting admissions for students above a certain age to law courses, the BCI must be ensuring younger minds into the profession.” The Principal of the Government Law College, Mumbai also said that the college would abide by any rules the BCI laid down and refused further comment.

Lawyers’ recourse to the law

Statira Ranina of ALMT Legal, Mumbai, points out that universities overseas do not place any restrictions on students according to their age – indeed, in the UK , provisions are made for students over the age of 21 who wish to study the law. She said that “[h]igher education should be made accessible to all and people should be encouraged to study law and take up law as a career, no matter what their age.” Rabindra Jhunjhunwala, a partner with Khaitan & Co said: “I did not choose law as a first option, I chose it because I could not pursue my medical ambitions and this was the ‘second best’ option for me!”. He also pointed out a lot of International MBA programs with diverse student profiles: from doctors and lawyers to engineers and scientists where each one brings along with them a different perspective to the course education. "It is an individual's choice whether law is his first or fifth option. The profession ought not to demean itself by perceiving threats on this account", says Gopal Sankaranarayanan, a counsel at the Supreme court.

The BCI’s explanations failed to satisfy members of the legal profession, and Public Interest Litigations (PIL’s) have been filed against these amendments in Mumbai, Jabalpur and Bangalore . The PIL at the Madhya Pradesh High Court argued that the new rules were discriminatory, unconstitutional and arbitrary and termed the new rules “an example of the excessive use/abuse of power by the Bar Council of India.” 17 law colleges in Bangalore also challenged the ruling, and Justice Nagamohandas of the Karnataka High Court asked the BCI to respond to the colleges’ claim that the new rule is a violation of fundamental rights.

A more plausible explanation

Abhishek Tripathi, a counsel in the Allahabad High Court, suggests that one of the reasons behind the BCI’s ruling is that “conventional” lawyers do not welcome the entry of senior bureaucrats, or government officials into the profession after their retirement. “A number of these retired government officials, with their so-called connections in the government hierarchy take away the work that would have gone to conventional advocates.”

Abhishek is not alone in his suggestion that the BCI is trying to use the current ruling to keep experts with different specialties from entering the profession. The demand for legal services has diversified rapidly in the last decade. Today, lawyers equipped to meet this demand with specialized, technical and expert knowledge have a tangible competitive edge over general practitioners. Says Gopal : "This practice is quite evident in areas like Income Tax, Customs, Development authorities, etc., where former subordinates are more than happy to accommodate these retirees as their counsel. Some of the more unethical ones will also strike deals with those within the Department to split the fees payable. Apprehending the fact that these individuals not only do not add to the legal profession but also reduce the pie available to graduate advocates, the Bar Council has proposed to implement the age restriction."

“If people from other professions or different backgrounds pursue a career in law, it would only add to the expertise and knowledge available,” says Statira.

One only needs to recall a failed attempt at regulation to realize that this suggestion is not entirely improbable. The BCI had attempted to cap the maximum age for enrolment of advocates at 45 years. This was struck down by the courts. The Madras High Court had said: “Parliament fixed no upper age limit for pursuing law course after taking note of various relevant features. Hence, the State Bar Council cannot widen/expand its rule-making power so extensively as to discriminate or classify between two similarly placed persons (fresh graduates and belated entrants) based on utter arbitrariness.” In the Indian Council of Legal Aid & Advice case, (1995) 1 SCC 732, a 3-Judge Bench found a similar age restriction harmful to the Constitutional fabric, and at Para 13, specifically rejected the apprehensions of the Council, concluding that the measure was arbitrary and discriminatory. "I think the Bar Council needs to recruit some lawyers to advice them", says Gopal.

All for the good of the profession

Abhishek Tripathi said that the new rules contradict Article 19 of the Constitution, and should be repealed. Gopal is confident that the rule will be struck down by the courts. However, the litigation and debates spawned by the new rules have highlighted some larger issues and given the profession much to think about.

Firstly, there is recognition of increasing competitiveness in the market for legal services in India . While everything from increased specialization to a drop in demand for adversarial dispute resolution have been offered up as explanations, not everyone is convinced that the Bar Council taking a tighter hold of the market is the right way forward. In fact, by limiting the competition thus the rules will simply ensure that the market remains closed to diverse new entrants – increasing the chances of achieving an inefficient equilibrium in the market. While that may work well for professionals in the market, the litigants who are the consumers of their services will get a raw deal.

Secondly, the quality of lawyers and legal education in the country are being questioned by the Bar Council of India itself. The BCI is trying to tackle this problem in part by hoping that if only younger students are permitted to study law, they will be committed and serious lawyers by the time they graduate, as opposed to the older ones who are only looking for what Mr. Joshi termed a ‘sound business proposition’ once they’ve decided they can’t or don’t want to do anything else. Ensuring that lawyers who graduate are committed and serious may be an excellent thought, but perhaps more attention should be paid to the quality of education itself.