Allow Law Teachers To Be Litigation Lawyers : NLU Consortium
In an effort to enable law teachers contribute meaningfully to the legal system and attract bright students of National Law Universities to take up litigation, the Consortium of National Law Universities has resolved that full-time law teachers should be allowed to practice in courts of law.
The decision taken by the executive committee of the Consortium necessitates amendment to Rule 49 Bar Council of India Rules which prohibits full-time salaried employees from practising as advocates.
The idea was first mooted by Prof. Shamnad Basheer. He drafted a petition requesting BCI to reconsider the rule prohibiting academics from appearing in court and "practising" law. His petition got the support from renowned academicians including Prof Madhav Menon, Prof Faizan Mustafa, Prof Venkat Rao etc. [Copy of Petition is attached at the end of this report]
The executive committee of Consortium of National Law Universities met at NALSAR University of Law, Hyderabad under the chairmanship of Prof Faizan Mustafa, NALSAR VC and president of NLU consortium on February 19.
The meeting was attended by Prof V Vijayakumar, VC NLIU Bhopal, Prof R Venkata Rao, VC of NLSIU Bangalore, Prof Paramjit S Jaiswal, VC RGNUL, Patiala and ProfSrikrishna Deva Rao, VC NLUO Cuttak and convenor of CLAT-2019.
In what it termed a "historic decision", the executive committee unanimously resolved that full-time law teachers should be allowed to practice and sought amendment to the Rule 49 of the BCI Rules which prohibit full-time salaried employees from practicing.
The committee was of the opinion that "not allowing law teachers to practice in courts of law is harming the legal system as law teachers are as important a stakeholder in the legal system as lawyers and judges and can contribute meaningfully to the legal system".
"Law teachers are a separate class in themselves and should not be treated like other salaried employees…the country badly needs litigation lawyers and there is need to bridge the gap between law in books and law in action. Accordingly, to improve clinical legal education and attract bright students of NLUs to take up litigation as a career, it is necessary that the teachers should themselves go to the courts along with students," said the consortium.
In order to maintain balance between teaching and litigation, Prof Faizan said, "The executive committee also resolved that once law teachers are permitted to take up cases, no teacher of the member institution of the consortium shall be permitted to appear in court for more than three times in a month and spend more than 15 hours per week on litigation lawyering".
"Moreover, it will be mandatory for such teachers to teach a course on clinical legal education. The executive committee also expressed hope that most of the cases taken up by the law teachers would ideally involve violation of human rights/ seek overruling of wrong decisions by the courts/ interpretation of Constitution. It is expected that these teachers would appear pro-bono. However, if fee is charged, it would be shared between the concerned university and the law teachers in the ratio of 60:40".
Besides, in case law teachers are not permitted to practice, a non-practising allowance of 25 % at par with the medical doctors would be paid and this issue would be taken up with the UGC and other relevant authorities.
In yet another important decision, the executive committee resolved to put in place a grievance redressal committee for CLAT-2019 to be headed by a former Supreme Court judge and two former Vice-Chancellors and two present vice-Chancellors of NLUs who are not members of the executive committee.
It also resolved to follow the 2018 guidelines for written examination of CLAT-2019 for persons with benchmark disabilities notified by the UGC.
Professor Shamnad's petition
"Dear Mr Mishra:
This petition is on behalf of a number of academics who are signatories (names at end of petition). For many years, we've been deeply concerned about the exclusion of legal academics from the "practice" of law. As you will appreciate, this stems from Rule 49 that stipulates that
"An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment."
Given the synergies between the legal profession and legal academia, we find that a narrow reading of this rule does more harm than good. It creates an unnecessary barrier between teaching and legal practice, leaving our students the poorer for it. Particularly since a number of reforms to improve legal education are afoot, one of which is a commitment to clinical legal education. As you will appreciate, this is not possible when the very people tasked with clinically educating students are kept out of court rooms, owing to the fact that they happen to be "employed" by a University.
We therefore hope you will examine this matter afresh and issue a clarification reading down the rule and/or amending as appropriate. For your convenience, we've drafted out an elaborate note in this regard highlighting how, in the light of various court decisions, this rule can be legitimately read down to permit academics to practice law in its myriad forms; and in this way, enrich the very process of legal education itself."
Note of Arguments by Prof. Basheer