An Extra-Legal League of Extraordinary Gentlemen

From the Collegium to the Bar Council and now the CLAT exam, the Indian legal universe is run by cliques who are not accountable to anyone other than themselves

Our legal ecosystem is beset with cosy cliques and cabals. Cliques priding themselves in an arrogant insularity; cabals boasting members engaged in a deep self-serving relationship that makes incest look benign.

Take the collegium system, where a coterie of senior judges select their very own with little or no interference from the outside. India, allegedly the world’s largest democracy, stands alone in this judicial self-selection prerogative. And yet, this is hardly what the Constitution mandates. Rather, this creative distortion of the Constitution (which offers a prime role to the executive as well in the appointments process) is the outcome of a series of rulings designed to stem the attack on judicial independence unleashed by Indira Gandhi. Unfortunately, lofty beginnings notwithstanding, the consequent opacity and high handedness of the collegium has meant a modern day fiefdom of sorts, with judges of highly suspect caliber cosying up to their seniors and being appointed to the apex court.

Not that the National Judicial Appointments Commission (NJAC) is a vastly superior design, but at least it gets the dialogue going on how to reform a system that Justice Ruma Pal once described as the “best kept secret in the country”. Sadly, the proposed NJAC hardly speaks about the key ill that plagued the earlier system, namely that of opacity. While the NJAC opens up membership of the club to members of the executive and two “eminent” citizens, it does nothing by way of an express mandate to have this committee spell out reasons for the selection or rejection of a candidate, arguably the main policy tweak that might have made this process more transparent and amenable to public scrutiny.

Dodgy tender

We also have the Bar Council of India, a statutory body vested with the sole right to regulate the legal profession. This body enjoys unbridled power on several fronts, including the power to prompt lawyers to strike at the drop of a hat and delay an already delayed judicial behemoth of a system. And woe betide any lawyer who dares appear in court that day and incur the wrath of this cabal, most active during the days preceding election time. From time to time, they can also operate as mouthpieces for leading law firms to prevent entry of foreign law firms, an entry that only the most obtuse will see as posing a threat to litigating lawyers (the main constituents of the BCI). All this and more they do, without really consulting their stakeholder base in any meaningful sense. Most recently, the BCI also demonstrated its propensity to award tenders to those with next to no experience. This incredible story of a dodgy tender (to conduct the All India Bar Exam) issued to ITeS Horizon was captured meticulously by Legally India, a leading legal website. Rather than responding on the merits, the BCI chose to issue a legal notice alleging defamation and threatening to shut down Legally India. That a regulator representing lawyers and meant to safeguard constitutional values seeks to stifle free speech is bad enough. That it even got the law wrong is far worse; for websites/blogs such as Legally India require no legal license to operate.

The CLAT clique

And lastly, my favourite clique, the Common Law Admission Test (CLAT) committee. This cabal of a committee comprises Vice Chancellors of the various National Law Universities (NLUs), widely considered the premier institutions of legal learning in this country. One might argue that the reputation of these institutions owes itself to CLAT, the tough competitive entrance examination that serves as a filter to these alleged “islands of excellence” (a term used by former Prime Minster Manmohan Singh). In other words, put a bunch of smart kids together, offer them some freedom to operate and strut their stuff through moot courts, debates and the like. And voila: the institution will in no time, garner a stellar name, the lack of quality faculty and resources notwithstanding. Much the same way that the IITs and the IIMs earned their reputation in the initial years.

And yet this filter that lies at the very core of the reputational value amassed by the NLUs has been severely compromised over the years.

In 2009, the paper formulated by NALSAR university in Hyderabad leaked whilst in transit to Uttar Pradesh, prompting a new paper. Most of the questions in this allegedly new paper were copied verbatim from two CLAT guidebooks, published by Lexis Nexus and Universal. To add to the misery, none of the questions tested for legal aptitude, but prior legal knowledge. One wonders why those entering the hallowed halls of legal learning should come infused with a priori legal knowledge and then have to pay a whopping Rs 3 lakhs or so a year for a legal education?

In 2011 when National University of Juridical Sciences, Kolkata conducted the exam, some of the correct answers were underlined in the question paper itself. In 2012, many of the questions were clearly outside the scope of the stated syllabus and at least ten of the answers (in the answer key) were wrong. To add to student woes, the first allotment list issued by NLU, Jodhpur (which conducted CLAT that year) had a number of errors, with high-ranking students obtaining low ranked colleges.

Exam messed up

And now, in 2015, in the latest conduct of CLAT by the Ram Manohar Lohia NLU, Lucknow more than 30 questions appear to be wrong (either wrong construction of the question or wrong answers) and more than 65% of the paper has been plagiarised from two or three sources. One would have thought at least when one copies, one does it with a certain level of competence. But apparently not! Even the copied questions were rife with typos, making some of them impossible to answer.

To be fair, while blame must be laid at the door of the law school conducting CLAT, the malaise is a structural one, in that no matter how good the law school in question, it simply does not have the wherewithal to conduct an exam of this magnitude from scratch. The best of law schools and teams have messed up year after year on this count. One might have thought that given this structural challenge, the law schools might have come together and formed a permanent body or institution to conduct CLAT year after year. Or perhaps outsourced the conduct of the exam to those with more experience in the field. In much the same way that a group of US law schools institutionalized LSAT (law school admissions test) by creating a separate body staffed with some of the country leading psychometrists (those with the avowed ability to frame and evaluate questions that test ones aptitude for a certain subject or discipline.) Unfortunately, no!

In fact, in a CLAT meeting conducted in 2010 that I had the (mis)fortune of attending, the arrogance of some of the Vice Chancellors was in resplendent display. Barring a few, all others reacted quite harshly to a proposal from an external vendor to help conduct CLAT. Short of literally exclaiming “the king(s) can do no wrong”, a well known legal maxim that courts used routinely to shield royalty from legal wrongdoing, they did all else to indicate that there was no way they would admit that the CLAT was anything but perfect.

One suspects that this obstinate defence of a thoroughly botched up exam by a select club of legal educationists may have something to do with the malaise of mammon. In that the conducting law school makes a near fortune from the CLAT exam. And the rest of the spoils (50%) are split between the other National Law Universities (NLUs). This year, RMLNLU stands to make at least Rs 8 crore (half of the Rs 16 crore netted from the sales of the CLAT forms, each of which costs around Rs 4000) and the rest of the Rs 8 crore is split between the 15 other NLUs. As per the CLAT MOU signed between the various law schools, next years’ CLAT is to be conducted by CNLU Patna. Unfortunately, the lower one goes down the pecking order of these alleged islands of excellence, the greater the propensity to commit blunders. One might even argue that at the bottom of the NLU rung, the law schools, far from being “leading”, are actually misleading on several counts.

And what of the law?

Strangely enough, the argument doing the rounds is that since the more well established and older law schools have had their pie of the CLAT cake, the newer ones with a not so grand reputation (the underdogs so to speak) ought to have their shot at the pie too. But what of the students? What of the law? What of the fact that these law schools are meant to produce lawyers and social engineers of the highest caliber; those that will fight long and hard to safeguard our constitutionally cherished values of transparency, good governance and openness.

Sadly, what unites these cabals from across the legal spectrum (comprising judges, legal academics and regulators) is their distaste for the above said values. Courts have resisted attempts to make themselves amenable to the RTI Act. And the BCI and law schools often make a mockery of the process by deliberately delaying the process and refusing to put up information on their website.

When the guardians of the law turn into perpetrators of injustice and unfairness, there is something to be said for the notion of the “rule of the law”, a lofty concept taught routinely in schools. A concept that speaks to the virtue of fair conduct and rails against arbitrariness and insular opacity. A concept that is sadly observed more in the breach these days, by those that consider themselves beyond the petty confines of the law.

Shamnad Basheer is a Visiting Professor of Law at NLS, Bangalore and the founder of IDIA, an initiative to foster diversity and access to premier legal education for underprivileged sections. Earlier this year, he was conferred the Infosys Foundation Prize for his contributions to law.