Bar Council of India overstepping its role

Sajid Sheikh, Adithya A Variath

India for the past few years is witnessing an unprecedented transformation in the education sector. This growth in the knowledge economy depends crucially on our ability to strengthen institutional frameworks that foster education. In 2019, the Human Resource Development (HRD) Ministry introduced the draft National Education Policy (NEP) to improve education in the country. The policy was subsequently approved by the Union Cabinet of India on 29 July 2020. However, the changes envisaged in NEP for the legal education in India were unwary. The Bar Council of India recently claimed that it holds the power to regulate higher legal education because NEP2020 does not make any explicit provision pertaining to it. The National Education Policy 2020 also highlights that the present system of education is overregulated and under-governed. The policy recommended consolidating all existing regulators under an independent regulator by setting up the Higher Education Commission of India. Subsequently, the Government introduced the Draft Higher Education Commission of India (Repeal of University Grants Commission Act, 1956) Bill, 2018. The Draft Higher Education Commission Bill in Section 31 provided that “nothing contained in this section shall be construed as restricting the power of the Bar Council of India to specify standards of higher education concerning practice in courts.” However, the Bill was construed to be restricting the power of the Bar Council of India (BCI) to specify standards of higher education in law. The BCI opposed the bill stating that it takes away the power of the Bar Council to regulate legal education and hands it over to “outsiders”. The BCI is a statutory body with regulatory powers laid down in the Advocates Act, 1961. Section 7 of the Advocates Act, 1961, lays down the functions of the Bar Council of India. According to Section 7(h), the functions of the Bar Council of India shall be “to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils”. This section also empowers the BCI to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate; to recognise on a reciprocal basis foreign qualification in law obtained outside India for the purpose of admission as an advocate, and promote and support law reform. Drawing its regulatory power from the framework of Section 7, the Bar Council exercises substantial power and control over legal education, and has used this power to stipulate the content, draft syllabi and regulate the duration of the law degree as a pre-requisite to the get recognition from the Bar Council. However, the BCI recently notified the BCI Legal Education (Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education) Rules, 2020 (Rules) in the official gazette on January 4, 2021. The controversial aspect of the recent rules were the provisions scrapping the One-Year Master’s course. Rule 6 of Chapter II 6 states that “[A] Master Degree Program in Law of one-year duration introduced in India in 2013 by the University Grants Commission shall remain operative and valid until the Academic Session in which these Regulations are notified and implemented but not thereafter at any University throughout the country.” The 2020 Rules mandate that the post-graduate course in law leading to LL.M. has to be of two years spread over four semesters. Dealing with the Master’s Degree obtained from foreign Universities, the Rules states that “one-year LL.M. obtained from any foreign university is not equivalent to Indian LL.M. degree…” thereby de facto de-recognised the validity of foreign LL.M. degrees. This string of new rules has received criticism from various quarters of the Indian legal community. While some claim that the move without any legal or statutory backing is arbitrary, some object to the constitutional mandate of the BCI to regulate the structure of higher education degree, which falls within the ambit of UGC. Petitions have been filed to the Supreme Court challenging the authority of the BCI’s new move. Petitioners claimed that there is no rational clarification for abolishing the one-year LL.M. program in the country since one-year LL.M. is an internationally accepted standard. The debate intensified with the Consortium of National Law Universities moving to Supreme Court challenging the BCI decision to scrap one-year LL.M. It was argued that Advocates Act, 1961, only empowers the BCI to regulate legal education in so far as it relates to the qualifications for enrolment for the practice of law, i.e., the Graduate degree (LL.B.), not the Master’s Degree (LL.M.). One-year LL.M. was formulated in India based on recommendations of the National Knowledge Commission in 2012, which was a result of deliberation and debate involving major institutions imparting legal knowledge. Section 7(h) of the Advocates Act, 1961 empowering the Bar Council of India to promote legal education and to lay down standards of such education, explicitly says that this should be “in consultation with the Universities in India imparting such education.” However, strangely the recent BCI rules pertaining to higher education were not framed in consultation with any of the National Law Universities. This statutory leap without the due process questions the rationality and validity of the rules. Academics have in the past criticised the structure of the one-year LL.M. programme, as it lacks the necessary academic and research rigour due to the length of the course. However, these are structural issues that have to be resolved by the Universities in consultation with the stakeholders. The concern in the present case is the overarching power of BCI to regulate any degree or academic programme falling outside their regulatory mandate. As the Advocates Act, 1961 is the legislation to consolidate the law relating to advocates, and the delegated powers of the Act should not be misused to regulate the aspects of legal education which directly does not deal with the practice of law. The issue has found a temporary solution with BCI responding that no interim order would be required in the matter, as the decision to scrap oneyear LL.M. will apply only from the academic year 2022-2023. The current crisis has been tranquilised, however, what remains contentious here is the nature of BCI to overstep its mandate to introduce impractical reforms. Misadventures like these raise questions on credibility and legitimacy of a regulatory body. The wider role and diverging interference of BCI into regulating legal education have not been well received even in the past. During his speech on the “Second-Generation Reforms in Legal Education: A Vision for the Future” at the National Consultation for Second Generation Reforms in Legal Education, Late Prof. (Dr.) N. R. Madhava Menon, the father of modern legal education, bashed the Bar Council of India’s handling of legal education. He, then suggested the Government to take away the powers of the BCI in legal education and transfer them to another body. Scholars have also raised concerns about the arbitrary accreditation process followed by the BCI and the flawed constitutional structure of the BCI’s Legal Education Committee. Introducing reforms in the higher education sector should be left to specialised higher education institutions. BCI essentially should limit its interference to taking care of the profession and harmonizing bench-bar relations. Challenges like these provide us with an opportunity to re-think and re-formulate the framework of the legal profession and legal education in India. Meeting these challenges and accommodating the shifting landscape of BCI’s role in the legal section can re-conceptualise both the legal professional market in particular and higher education in general.

(The authors are Assistant Professor at MNLU Mumbai and a Scholar at DNLU Jabalpur.)