The Bar Council of India (“BCI”) is a statutory body established under the Advocates Act (1961) for promoting legal education and setting standards for institutions that are imparting legal education (Section 7 of the Advocates Act (1961)). In a recent decision, the BCI made the subject on “Mediation (with Conciliation)” a compulsory subject to be taught from the academic session 2020-21 onwards. In this post, I explore if the decision to make the study of mediation compulsory is timed to perfection or a decision too late. Moreover, I highlight some policy implications of this decision followed by some recommendations.
The Law Commission of India (“LCI”) is a non-statutory body that is created by the Government of India for recommending legislative reforms. In the Report No. 184 (2002), the LCI under the Chairmanship of M. Jagannadha Rao (Former Judge, Supreme Court of India) had taken suo motu decision to take up the subject of legal education for review as the Commission was of the opinion that legal education plays a crucial role in laying down the foundation of the judicial system. In the Report, the LCI had dedicated one chapter on highlighting the need for training law students and lawyers in alternative dispute resolution techniques (Chapter VI titled “Alternative Dispute Resolution training for students as well as lawyers”). The LCI suggested that law students and lawyers should be trained in the alternative dispute resolution techniques due to two important developments in 2002. First, the Code of Civil Procedure (1908) was amended to insert Section 89 through the Code of Civil Procedure (Amendment) Act (1999) which came to force in 2002. Section 89 provides for settlement of civil disputes through processes such as mediation, conciliation, arbitration and judicial settlement via Lok Adalat. Second, the Supreme Court of India in Salem Advocate Bar Association v. Union of India (2002) highlighted the need to resort to alternative dispute resolution techniques in order to end litigation between the parties at an earlier date. The LCI endorsed the ‘multi-door courthouse’ concept that was conceived by Professor Frank Sander in the Report to highlight that practice in courts is no longer confined to developing skills in advocacy but also skills in alternative dispute resolution techniques. The LCI recommended that there is an ‘urgent need’ to train law students and lawyers in alternative dispute resolution techniques. The LCI reasoned that if the lawyers are trained in law schools about the efficacy of the alternative dispute resolution mechanisms, they will not be averse to using these mechanisms to settle disputes when they start practicing. Moreover, the LCI wanted the use of alternate dispute resolution techniques to be used for dealing with the increasing backlog of cases. The recommendations of the LCI mentioned in Report No. 184 were indeed ahead of its time as World Economic Forum in 2016 rated ‘negotiation’, ‘complex problem solving’ and ‘people management’ as top skills required to succeed during the Fourth Industrial Revolution.
Despite all the efforts of the LCI, the BCI could not implement the recommendations of the LCI. The LCI again in Report No. 222 (2009) highlighted the need for dispensation of justice through the use of alternative dispute resolution techniques. It was noted by the LCI in Report No. 266 (2017) that none of the recommendations made in Report No. 184 (2002) were taken forward. If the recommendations of the LCI would have been incorporated, it is possible that the burden on the courts in India would have reduced to a great extent. Currently, there are 60,444 cases pending in the Supreme Court of India, 4,644,267 cases pending in the High Courts of India and 33,898,879 cases pending in the District & Taluka Courts of India. Even though the decision of BCI to mandate study of mediation is a positive step forward, the decision is little too late as the burden on the judiciary has ballooned in the past two decades and damage has been done. Former Chief Justice of India highlighted how some accused have been heard after serving their sentence and that the pendency of cases brings disrepute to the judicial system. As per a report, the pendency of cases in India could cost around 1.5% of Gross Domestic Product (GDP). The Government of India needs to work with the legal industry to create an efficient and robust legal regime where alternative dispute resolution techniques play a major role in solving disputes.
There are few concerns that will be required to be addressed by the BCI to ensure that all the institutions imparting legal education could benefit out of the decision to mandate the study of mediation, irrespective of the kind of resources that are at their disposal. In 2014, there were around 1200 law schools in India and this number increased to 1500 in 2019. When a policy change is recommended by the BCI, it has to keep in mind the ability of all these institutions to implement these changes.
The first concern that arises is how will law colleges arrange for faculty that are to teach these courses from academic session 2020-21 onwards, as some law colleges have already started their academic sessions. Most of the universities will be undertaking stop-gap measures to comply with this requirement of the BCI as currently there is a dearth of professionals that meet the eligibility criteria set by the BCI to teach the course on mediation.
The second concern is about the amendments that need to take place in the Rules of Legal Education (2008) that currently contain the standards applicable to Universities imparting legal education. As mediation (with conciliation) has become a compulsory subject, the course outline for the compulsory subject ‘Alternate Dispute Resolution’ will have to be amended. Moreover, the BCI has to decide if they want to continue with this course or would they prefer having individual compulsory courses on negotiation, arbitration and mediation.
The third concern is about the ability of BCI to regulate legal education in India. There have been instances in the past where BCI officials have been convicted for taking bribe to accredit legal institutions. Moreover, BCI took more than fifteen years to act on the recommendations of the LCI. In the past three decades, the role of the lawyers has diversified to a great extent. They are not just expected to meet the demands of the Bar, but also of other sectors such as business, telecommunication, technology and sports. With this in mind, the question needs to be asked if the BCI is the appropriate body that should regulate legal education in India or do we need an independent regulatory body? These are important questions that need to be addressed to ensure that quality of legal education in India does not suffer. As the number of institutions imparting legal education increases, the resources of the BCI to regulate these institutions will be stretched.
First, a task force should be constituted to ensure implementation of the recent notification of the BCI and for creating the course structure for initiating LL.M. degrees in mediation and conciliation. This task force would include members of the academia, trained mediators and the Bar. This task force should also work towards creating a training manual that will be used to train lawyers throughout the country. The Mediation Training Manual created by the Mediation and Conciliation Project Committee (MCPC) of the Supreme Court of India could be the starting point for the task force.
Second, it is recommended that separate courses for negotiation, arbitration and mediation should be mandated to reflect the changes that are taking place in the legal industry. Some of the major amendments in The Arbitration & Conciliation Act (1996) have taken place in the last few years and these amendments have been a topic of debate all over the world.
Third, the BCI should organize training courses, diploma courses in mediation and other alternate dispute resolution techniques so as to implement the recommendations of the LCI as per Report No. 184.
Fourth, the BCI should also proactively encourage institutions imparting legal education in India to start conducting LL.M. courses with specialization in mediation and conciliation. This is recommended, so that professionals interested in teaching the subject of mediation and conciliation meet the eligibility criteria that have been set by the BCI.
The Economic Survey of India (2018-19) stated that dealing with the backlog of cases could be the best investment that the Indian economy will make. Even though we are far from tackling the issue of backlog of cases, the decision to mandate the study of mediation has initiated the process. Even though it is a step too late, it is the step that is in the right direction.
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