H A R VA R D L A W S C H O O L P ROGRAM ON THE L EGAL P ROFESSION

law.harvard.edu/programs/plp

T HE I NDIAN L EGAL P ROFESSION

2011bythePresidentandFellowsofHarvardCollege.Allrightsreserved.

Disclaimer
These reports reflect research done by students at HLS in the Fall of 2011, and are based on sec ondary sources, as noted in each report. While we believe the information reflected in the re ports to be true, the information has not been independently verified, and the reports are not meant to be complete with respect to any particular topic, and particularly as regards the legal system in its entirety, or in political or constitutional context. Readers should also recognize that terminology may vary from country to country, which may make nave comparisons misleading. For example, the concept of a lawyer varies from country to country, and data on lawyers may include practicing and nonpracticing attorneys. No one should rely on the information con tainedinthereportsforanypurpose.

Structure of legal education

India Legal Education While India had a few schools that taught law at the time of its independence in 1947, the number of law schools has increased since then in line with growing importance of rule of law and the newly formed democratic government.i Legal education in India is regulated by the Bar Council of India, which is a statutory body constituted under the Advocates Act of 1961. There are two ways to obtain the degree to practice law and enroll with the Bar Council of India: (1) a 3-year LL.B. program which requires a prior undergraduate degree and (2) a 5-year integrated B.A., LL.B. program which can commence immediately after secondary school. Some universities offer both the five-year and the three-year degree programs.ii Traditionally, students enrolled in a 3-year program after obtaining a bachelors degree from a recognized institution. However, around 1985, the first law university offering a 5-year integrated B.A. LL.B. program called National Law School of India University (NLSIU) was set up. Universities similar to NLSIU have been set up in several states in India. Until recently, each university had its own entrance exam for selection of students. However, in 2008, a common entrance exam for such universities was introduced (the Common Law Admission Test (CLAT)), which covers knowledge in law, analytical reasoning, current events, Indian policy and economy among others. For the 3-year program, different universities follow their own criteria a combination of grades and testing.iii The Advocates Act stipulates that one must be at least 21 years old to become an enrolled advocate.iv The 5-year program has the upper age limit of 20 years old, but for the disadvantaged classes known as the Scheduled Castes (SC) and Scheduled Tribes (ST) the age limit is 22 years old. v Therefore, people usually begin the 5-year program at 18 years old, and graduate and are admitted to the bar by 23. As of April 2010, there were 900 law colleges in India that offered legal education and were recognized by the Bar Council of India. Some of these law schools are university schools, while others are private or

Typical age of starting lawyer

Status hierarchy of law schools

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Government-owned law colleges affiliated to a university.vi The premier law institutes are National Law School of India University (NLSIU, Bangalore), NALSAR University of Law (Hyderabad) and the WB National University of Juridical Sciences (NUJS, Kolkata).vii One indication of the hierarchy of law schools in India is the choice made by prospective law students following the declaration of the CLAT results. In 2011, NLSIU, Bangalore topped preferences among successful candidates.viii Older law schools such as Government Law College (Mumbai), Indian Law Society (Pune) and Law Faculty (Delhi) are also reputed but are not part of the CLAT. The India Today, a popular Indian periodical, carries out an annual survey of law schools in India. In 2008, NALSAR (Hyderabad) was at the top of the list, replacing the usual number one NLSIU (Bangalore).ix Other periodicals, such as Outlook, also carry out their own surveys of law schools in India. However, these rankings have been the subject of some criticism.x The following are the class size of the LLB programs at major law institutes: NLSIU (80)xi and NALSAR Hyderabad (70)xii. On an average most universities accept about 200 students a year for the 5-year program.xiii Teachers in most national law schools are full time law professors with little or no practical experience. Conversely, teachers in some law schools like the Government Law College (Mumbai) are almost exclusively part-time professors drawn from the bar. Most elite law schools follow a theoretical approach, sometimes with clinical training opportunities. The Law Commission of India has suggested the introduction of the problem method on a more universal basis with a greater practical emphasis.xiv The Bar Council of India prescribes certain mandatory clinical courses, such as drafting of pleadings, legal aid clinics, moot courts etc. In 2001, NLSIU designed a new curriculum based on the MacCrate Report (a report on American legal education prepared by the American Bar Association; suggests mandatory externships with government agencies, judges, and clinics) and the Harvard curriculum.xv

Rough size of top law schools

How professional (vs. academic) is the law degree?

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Professional regulation: basic licensing

Under the Advocates Act 1961, only advocates enrolled in India are entitled to practice the profession of law -which includes not only appearing before courts and giving legal advice as an attorney, but also drafting legal documents, advising clients on international standards and carrying out customary practices and transactions.xvi The Advocates Act distinguishes between two types of advocates--senior advocates and advocates. A senior advocate is designated by the Supreme Court or any High Court based on his ability or special knowledge.xvii However, in order to file an appearance before the Supreme Court of India, one must be an advocate-onrecord or be instructed by an advocate-on-record.xviii To be eligible to qualify as an advocate-on-record, a oneyear training contract with an advocate-on-record needs to be completed, besides passing prescribed tests.xix At the federal level, the Bar Council of India performs oversight functions and lays down standards of professional conduct, recognizes universities whose degrees qualify for enrollment etc. Typically, each state has its own Bar Council which regulates the admission and removal of names from its rolls. Enrollment with a State Bar Council as an advocate renders a lawyer eligible to practice before all courts and tribunals in India.xx The procurement of the LL.B. degree followed by passing of the bar exam will qualify a person for enrollment, upon the payment of an enrollment fee. The dual-system of classification between solicitors and attorneys was abolished in the 1970, but the Bombay Incorporated Law Society (an association) still conducts examinations for persons who wish to qualify as solicitors, upon the completion of a three year training period in a solicitors office as an article clerk and the passing of a solicitors exam.xxi In 2010, the Bar Council of India introduced a requirement pursuant to which law graduates are required to pass the All India Bar Examination in order to be entitled to practice law in India.xxii India has the second largest number of lawyers in the world next only to USA.xxiii The number of lawyers in India is estimated to be approximately one million, with the law schools of India graduating another 80,000 each year.xxiv However, its per capita figure is a fifth compared

Length of study for license

Lawyers per population and lawyers per working population

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Law practice basics: Size of law firms?

Share of lawyers employed in top law firms

Profitability of law firms

Leverage of law firms

Law firm retirement age Law firm governance

Foreign law firms

to the US.xxv Law Firms Since the Indian Partnership Act,1932 limits the number of partners to 20, large law firms were not very common in India.xxvi It is understood that large law firms with more than 20 partners exist by virtue of multi-tiered partnership structures. The size of law firms ranges from 20 to ~450 lawyers.xxvii However, the recently passed Limited Liability Partnership Bill (LLP Bill) in 2008 has introduced the system of limited liability partnerships to India with no upper limit on number of partners.xxviii Lawyers do not seem to be heavily concentrated in India given the large number of small-size firms. In 2010, according to a directory of law firms published by India Business Law Journal, there were ~30 law firms with fewer than 100 lawyers and only 8 law firms with more than 100 lawyers. The largest firm was Amarchand & Mangaldas & Suresh A Shroff & Co with 470 lawyers.xxix In 2007, law firms were expected to have recorded a revenue growth of 30% to 40% as against revenues in 2006.xxx While official revenue figures are hard to come by, an article in the Economic Times in April 2007 revealed that the managing partners of two prominent Indian law firms were amongst the highest individual tax payers in the state.xxxi Leverage varies depending on the size of the firm; smaller firms tend to be less leveraged. The 3 largest firms (Amarchand, AZB and FoxMandal Little) each had a ratio of associates to partners of 9, 12 and 7. Largely due to the one family runs all setup of law firms in India, there is no typical retirement age. Large firms usually have equity and non-equity partners, with managing partners at the helm. Many law firms are family run, with fewer prospects of making partner.xxxii While foreign lawyers are not permitted to practice law in India, they may appear in court for specific cases if they have obtained special permission from the court. However, with the passing of the Limited Liability Partnership (LLP) Bill in 2008, Indian law firms would be able to form an LLP and have no limit on the number of partners in a practice. There may be further secondary regulations that allow foreign law firms to form an LLP with an Indian law firm with the requirement that only one partner is resident in India.xxxiii

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Currently, many foreign law firms have established alliances with local firms: Clyde & Cos alliance with ALMT Legal, Allen & Overys non-exclusive relationship with Trilegal, Talwar Thakore & Associatess alliance with Linklaters LLP.xxxiv Clifford Chances alliance with AZB & Partners was reported to have ended in January 2011.xxxv In 2009, the Bombay High Court ruled that the Reserve Bank of India should not have issued licenses to foreign law firms to establish liaison offices in India, and that foreign law firms could practice non-litigious matters in India without complying with the Advocates Act.xxxvi In 2010, an advocate in the Indian state of Tamil Nadu filed a writ petition in the Madras High Court against several foreign law firms for illegally practicing law in India in violation of the Advocates Act. The matter is currently pending before the court. Law / legal procedure Punitive damages in civil cases Punitive or exemplary damages are granted by courts where the wrong done to [the Plaintiff] was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong, or else to punish the defendant for his evil behavior or to make an example of him.xxxvii The jury system has been abolished in India. Advocates in India are prohibited by rules issued by the Bar Council of India from charging fees contingent on the results of litigation or to otherwise share the proceeds of litigation. xxxviii In certain rare situations, lawyers enter into informal, verbal agreements to receive contingent fees. Especially if the client is too poor to even pay the court fees, lawyers try to claim their fee from the amount recovered. However, generally, receipt of contingent fees would subject the lawyer to severe disciplinary proceedings by the Bar. Rules issued by the Bar Council of India specify that an advocate is bound to accept a brief at a fee consistent with his standing at the bar and the nature of the case.xxxix Costs may be awarded for the following expenditures

Juries in civil cases Law: rules on contingent fee litigation

Law: rules on attorneys fees and other costs in litigation

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incurred forxl: (a) giving notice required to be given by law before the institution of the suit; (b) giving notice which, though not mandatory, has been given to any other party before the institution of the suit; (c) typing, writing or printing of pleadings; (d) inspection of the records of the Court; (e) producing witnesses, even though not summoned through Court; and (f) in the case of appeals, for obtaining any copies of judgments and decrees which are required to be files along with the memorandum of appeal. Following the insertion of Order XX-A in the Code of Civil Procedure, 1908, each High Court may make rules for the award of costs.xli One significant cost incurred in litigation is court fees, which varies from one Indian state to another and is often a percentage of the claim amount. As a practical matter, costs awarded by a court may not cover the costs actually incurred. The only forms of discovery available in India are written interrogatories, inspection of documents, and requests for admissions. Parties alone are subject to discovery. Third-party witnesses need not submit to discovery. Discovery may be directed to admissible evidence only, not material likely to lead to relevant or admissible material, as in the courts of the United States. Under Indian consumer protection law, class actions may be brought by registered voluntary associations of consumers or by one or more consumers, where there are numerous consumers having the same interest, with the permission of the consumer court, on behalf of, or for the benefit of, all consumers interested.xlii In cases involving public interest, a writ petition may be filed by a person in a representative capacity, even in cases where he/she does not have any personal interest in the matter: - To redress grievances of socially or economically disadvantaged personsxliii -Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (e.g. independence of the judiciary)xliv; -to protect environmental rightsxlv An amendment proposed to Indian company law seeks to codify rules for class actions.xlvi

Law: rules on discovery

Law: rules on class actions

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Prevalence and prominence of plaintiffs bar and class actions brought on behalf of shareholders or consumers against large companies

Indias Companies Bill 2009 provides for class action suits.xlvii However, there is an absence of financial incentives to initiate class actions because India does not allow the lawyers to charge contingent fees. Consequently, plaintiffs bar is not prevalent in India.xlviii

Dr. Justice A.S. Anand, H.L. Sarin Memorial Lecture: Legal Education in India: Past, Present and Future, (January 31, 1998) http://www.ebc-india.com/lawyer/articles/9803a1.htm. ii Id. See also N.L. Mitra, Legal Education in India. http://www.aals.org/2000international/english/India.htm. iii Dayanand Navoneel. "Overview of Legal Systems in the Asia-Pacific Region: India" (2004). Overview of Legal Systems in the Asia- Pacific Region (2004). Paper 1. http://scholarship.law.cornell.edu/lps_lsapr/1. iv Section 24, Advocates Act, 1961. v Dayanand Navoneel. "Overview of Legal Systems in the Asia-Pacific Region: India" (2004). Overview of Legal Systems in the Asia- Pacific Region (2004). Paper 1. http://scholarship.law.cornell.edu/lps_lsapr/1. vi List of Law Colleges maintained by Bar Council of India with Addresses in all the States as on 10.04.2010, http://www.barcouncilofindia.org/wp-content/uploads/2010/06/approvedlawcolleges.pdf.. vii Navoneel, supra note 3. viii Old-school CLAT prefs wobble as NUJS gains on Nalsar; NLIU, NLU-J locked dead-heat, http://www.legallyindia.com/201106162164/Pre-law-student/old-school-clat-preferences-wobble-as-nujs-gains-onnalsar-nliu-nlu-j-locked-dead-heat ix India Today Rankings. http://specials.indiatoday.com/specials/popup/12yearToppers/law1/law1_itgd.html. x NUJS-ers threaten Outlook & India Today law school rankings with Press Council complaint, http://www.legallyindia.com/201008201213/Law-schools/nujs-ers-threaten-outlook-a-india-today-law-schoolrankings-with-press-council-complaint; NUJS v law school rankings: Outlook India stonewalls, reveals some inner workings, http://www.legallyindia.com/201101271730/Law-schools/nujs-v-law-school-rankings-outlook-indiastonewalls-reveals-some-inner-workings xi NLSIU website. http://www.nls.ac.in. xii http://www.nalsar.ac.in/academic_programes.html. xiii Navoneel, supra note 3. xiv Law Commission of India, 184th Report The Legal Education and Professional Training and Proposals for Amendment to the Advocates Act, 1961 and the University Grants Commission Act, 1956, http://lawcommissionofindia.nic.in/reports/184threport-PartI.pdf. xv Id. xvi Debbie Legall. Opening Up the Indian Legal Market: A New Era Dawns for the World's Largest Democracy as the Legal Services Market Begins Its Journey to Liberalisation. 63 NO. 3 Int'l B. News 29. xvii Section 16, Advocates Act, 1961. xviii Supreme Court of India: Practice and Procedure, http://www.supremecourtofindia.nic.in/handbook.html#E.%20%20%20%20ADVOCATES. xix Rule 5, Supreme Court Rules, 1966. http://www.supremecourtofindia.nic.in/rulespdf.pdf. xx Section 30, Advocates Act, 1961. xxi Bombay Bar Association, http://www.bombaybar.com/bar_association/court_associations.php xxii Notification dated June 12, 2010 issued by the Bar Council of India, http://www.barcouncilofindia.org/wpcontent/uploads/2010/06/BarExamnotification.pdf xxiii Dr. Justice A.S. Anand, H.L. Sarin Memorial Lecture: Legal Education in India: Past, Present and Future, (January 31, 1998) http://www.ebc-india.com/lawyer/articles/9803a1.htm. xxiv Luigi Benetton, Few Law Firms in India are Outsourcing Work to Canada http://www.lawyersweekly.ca/index.php?section=article&articleid=580. xxv http://wiki.answers.com/Q/What_country_in_the_world_has_most_lawyers_per_capita. xxvi http://www.mansfieldtanick.com/CM/Articles/Comparing-LaFirms.asp. xxvii Legal Market Report & Director of Indian Law Firms. India Business Law Journal, July/August 2010. http://www.indilaw.com/pdfs/Directory%20of%20Indian%20Law%20Firms.pdf.

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The Economic Times, Cabinet Approves Introduction of LLP Bill in Parliament (2 May 2008) http://economictimes.indiatimes.com/News/Economy/Policy/Cabinet_approves_introduction_of_LLP_Bill_in_Parli ament/articleshow/3003063.cms. xxix Legal Market Report & Director of Indian Law Firms. India Business Law Journal, July/August 2010. http://www.indilaw.com/pdfs/Directory%20of%20Indian%20Law%20Firms.pdf. xxx http://economictimes.indiatimes.com/Boom_time_for_lawyers_as_i-banks__excel/articleshow/1835691.cms (quoting Som Mandal, Fox Mandal & Associates). xxxi http://economictimes.indiatimes.com/Actors_not_businessmen_top_taxpayers_/articleshow/1969495.cms. xxxii Darrell White. Best Law Firms to Work for in Asia Pacific. http://www.lehmanlaw.com/fileadmin/lehmanlaw_com/Best_Law_Firms_To_Work_For_in_AsiaPacific__Asialaw___Practice__September_06_.pdf. xxxiii Legall, Supra note 16. xxxiv http://www.legal500.com/c/india. xxxv AZB & Partners ends alliance with Clifford Chance, http://www.livemint.com/2011/01/22004121/AZB-ampPartners-ends-allian.html xxxvi Lawyers Collective v. Bar Council of India & Ors., Judgment dated December 16, 2009 in Writ Petition No. 1526 of 1995 xxxvii Oregano Chemical Industries v. Union (1979) 4 SCC 573. See also Microsoft Corporation v. Mayuri (2007) 35 PTC 415. xxxviii Bar Council of India Rules: Part VI, Chapter II, Section II, Rule 20: http://lawmin.nic.in/la/subord/bcipart6.htm#chapter2; http://legalsutra.org/251/contingent-fees-and-professionalethics/. xxxix Bar Council of India Rules, Part VI, Chapter II, Section II, Rule 11: http://www.barcouncilofindia.org/wpcontent/uploads/2010/05/BCIRulesPartVonwards.pdf. xl Order XX-A, Rule 1, Code of Civil Procedure, 1908. xli Order XX-A, Rule 2, Code of Civil Procedure, 1908. xlii Section 12, Consumer Protection Act, 1986. xliii S.P. Gupta v. Union of India AIR1982SC149. xliv As was the case in S.P. Gupta v. Union of India where the Bombay Bar Association filed a writ petition challenging the Unions transfer of judges policy, claiming that it undermined the independence of the judiciary. xlv Balco Employees v. Union of India AIR 2002 SC 350; See further Tapas Kumar v. State (2008)1CALLT499(HC). xlvi Rupesh Janve. Class action suits to be codified in company law. http://www.rediff.com/money/2007/oct/25law.htm. xlvii Clause 216, Indian Companies Act 2009 (Any one or more members or class of members or one or more creditors or any class of creditors may, if they are of the opinion that the management or control of the affairs of the company are being conducted in a manner prejudicial to the interests of the company or its members or creditors, file an application before the Tribunal on behalf of the members and creditors) xlviii Shareholder activism and class action suits (1 Jun 2009). http://indiacorplaw.blogspot.com/2009/06/shareholder-activism-and-class-action.html.

xxviii

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