Introduction
Over the past decade, the Indian legal market has demonstrated considerable growth and has in fact, adopted a liberalised approach. With the increase in the number of foreign investors being interested in the Indian market, it becomes all the more dramatic and exciting of an industry for lawyers. Especially young lawyers, that are practising in their formative years, would always be eager to work in a market where there is immense opportunity to learn and gain experience and to be in the midst of a dynamic marketplace. This is one of the primary reasons why Indian lawyers, that have attended law school in foreign countries, choose to come back and practise in India. One cannot ignore that the practical experience that this country has to offer to young lawyers is incomparable with other countries, especially in times such as these, when a number of countries are going through economic downturn, increasing immigration hassles and now the pandemic.
At this juncture, it would be worthwhile to briefly share how law students are trained in law schools in countries such as the UK and US. The system of education and the way law students are practically conditioned to become lawyers in foreign countries is significantly different from India. For example, the undergraduate course in law in the UK is a comprehensive three-year programme that is spread across a number of compulsory and optional modules. From the first year onwards, apart from the compulsory modules, law students are at discretion to choose modules of their interest all the way till the end of the degree. The degree programme has its foundational basis in research more than examinations per se. From lectures to tutorials, the coursework is spread across research papers and practical problems. In a nutshell, a law student that has graduated from a university in the UK has been extensively trained in research and practical problem-solving skills. That is one of the biggest perks that a young lawyer would graduate law school with in the UK.
Coming back to India to commence practice as a lawyer has its own formalities that one must go through in order to get “qualified” to practise in the country. While each country has its own set of procedures of converting qualifications for a legal professional, it becomes extremely important to have a clear set of guidelines and processes for achieving that target. Unfortunately, the process for a foreign educated Indian lawyer to get qualified in India is not just unclear, but is cumbersome, unstable and uneconomical.
Being a foreign educated lawyer practising in India
After graduating law school from a foreign jurisdiction, one must appear for the “qualifying examination for Indian nationals holding foreign degrees” conducted by the Bar Council of India, in order to enrol themselves as advocates on the State Bar Council. The examination is spread across six (6) theoretical papers of 100 marks each, three (3) being open-book examinations and three (3) being closed-book examinations.
However, one would assume that this being an examination conducted by the Bar Council of India itself at its office in New Delhi, would be well organised and systematic. On the contrary, however, the examination is coupled with unclear timelines, significant delays in the application processes and outcome of results and unclear guidelines for students appearing for the set of examinations. Just the whole process of applying for the examination and getting a confirmation on your hall ticket takes months altogether, without the authorities giving any clear instructions on the same. It is a waiting game at the end of day, where one must be at the discretion of authorities on when they might hear back on their application. Even on the day of the examination, because the guidelines shared previously were not clear enough, there is confusion in the examination hall as to what precisely are the rules to be followed in writing the examination. It takes approximately 1-1.5 years for completing this qualification process and to be enrolled in the State Bar Council, along with the student paying INR 1.5 lakhs for this set of examinations. Post-clearance of this entire process, one can appear for the All India Bar Examination (AIBE).
A lot of students who are well equipped with a legal educational background, some of them even having higher qualifications in law or other subjects, start their training with law firms in India until they hear back on their enrolment as advocates. As a general norm, one is not considered a “lawyer” unless you have your enrolment as an advocate in hand. This being rightly so, the legal professional appearing for these exams has to wait for 1-1.5 years to get qualified as a “lawyer” in the country, irrespective of the academic qualifications or prior work experience. This directly takes a toll on the kind of work that one is engaged with, the retainer fee and the moral empowerment to be treated at par with your peers, during that time.
It is important to compare this qualifying examination process to what is conducted in other countries, for advocates in India to be qualified elsewhere. For example, the UK conducts the “Qualified Lawyers Transfer Scheme (QLTS)”, that is a two-tiered examination providing an opportunity for advocates in India to qualify as solicitors in England and Wales. The system is highly organised — not only are dates for applications and examinations announced much in advance, but candidates appearing for the QLTS are also informed about precisely when their result would be announced. One cannot underestimate the importance of knowing what the way forward is, as it helps in planning your professional and academic commitments in an orderly manner. Moreover, there are very coherent guidelines provided for candidates appearing for the QLTS, with no scope for any sort of ambiguity.
How can the qualification system be improved for foreign educated Indian lawyers?
It is a common notion that lawyers educated from foreign countries have an advantage over their peers in India. Talking from personal experience, that is not true at all. Yes, a few years down the line, when one wants to switch law firms or companies or wants to practise in a niche sector, foreign qualifications do come in handy, complimenting your work experience. However, in the formative years, it takes a lot of time and hard work to be treated at par with your peers. Keeping the qualification system aside, there are other challenges that exist for a foreign educated lawyer to come back and practise in India. Firstly, there is a lot of unlearning and learning that one must be prepared for. At the end of the day, despite the fact one may have studied from a common law jurisdiction, there is a lot to learn about the law in India, procedures in court, general cultural norms at work, so on and so forth. It is easier said than done, and in fact is also time consuming. Secondly, even if one does complete this qualification process and has their enrolment at hand, it is normal for a lawyer to be treated more as a “trainee” compared to their peers. Law firms are also hesitant in recruiting these lawyers, being apprehensive about whether they really know how to carry out their assignments. In a nutshell, even though one may be perfectly qualified as a lawyer, they are not treated as one completely for a couple of months to a year.
Whilst it is a part and parcel of switching jurisdictions and it is a mandatory process of learning and practising as a lawyer, this task can be a lot less cumbersome if the authorities in India systemise the means and methods of getting qualified. In fact, a lot of law firms in India are not even aware of such a qualifying process existing for that matter and what it really entails. To come to think of it, a lot of difference would be made if recruiters themselves knew what this qualification process is all about and would be in a better position to understand where their candidates exactly stand and to what is the delay attributable to. At the end of the day, just like any other professional, young lawyers coming to India to practise seek learning, to be treated at par with their peers and equal empowerment, and in fact do not seek anything over and above these bare minimum expectations. It would be extremely helpful if more awareness is spread about this arbitrary, discretionary and unorganised system, and steps are taken to amend faults in what exists as normal procedure today.
Conclusion
A large majority of foreign educated lawyers coming to India, find themselves practising in sectors of the legal industry that have a strong connection with international law, such as arbitration, maritime, intellectual property, etc. These are extremely dynamic sectors to work in, where lawyers educated in universities abroad are able to utilise their skill set to the maximum capacity. For example, arbitration is one of most internationalised legal sectors to be a part of, where international norms and standards have to be met in terms of research, drafting, procedure and arguments. It is one of the most advanced fields of law in terms of innovation and flexibility, and is somewhat a comfortable and exciting industry for young lawyers to start their practice with.
At this point, considering the speed bumps that foreign educated lawyers in India face, it is critical to understand the importance of a good mentor that one needs to find for themselves in the country. It is extremely important to work with a mentor in your formative years, who understands your educational background, the culture that you have studied in and your specific skill set. While there is a lot to teach and learn, one must be willing to have patience and teach these young formative lawyers about law and procedures in India. I cannot emphasise enough on the importance of a good mentor, who not only appreciates the qualifications and skill set that one comes with, but also is willing to teach and make you grow into a successful lawyer.
† Senior Associate at Advani & Co. She can reached at kanika.arora@advaniandco.com
Expert Talks session with Kanika Arora on Transforming from Foreign Law Qualifications to practising as a Legal Professional in India
