Recently the Bar Council of India passed a notification on 2.01.2020 inter alia abolishing the one year LL.M course and introducing the two year LL.M course shocking the conscience of many in the legal solidarity and law student's fraternity. Taking into that consideration, this article is written, thus, not to make any comment on the fact that whether two year LL.M course is better than one year LL.M course or vice versa, or to say that whether new notification passed by the Bar Council of India (BCI) will ensure the better higher legal education in India than earlier. The centripetal object of this article is to analyse the validity of the notification and to scan the anatomy of the existing vires of the BCI to pass such notification. In order to do that, it is required to have glimpse on the events leading to the instant notification dated 2.01.2020 passed by the BCI.
- Events In Brief Leading To The Recent Notification Passed By The BCI:
It was the University Grants Commission (UGC) which considered and approved the introduction of one year LL.M degree programme on 18.01.2013 with intent to restructure and revamp Legal Education system in the country.
The National Education Policy, 2020 (NEP 2020), which was approved by the Union Cabinet of India on 29 July 2020 transformed the UGC to the Higher Education Grants Council (HEGC) and limited its role merely to carry out funding and financing of higher education. It further introduced the Higher Education Commission of India (HECI) and National Higher Education Regulatory Authority (NHERA). It states that NHERA will be the only regulator for all higher education, including professional education excluding medical and legal education. However, NEP 2020 is absolutely silent about the regulatory agency governing the higher legal education.
It is to be noted that the Bar Council of India, on 2.01.2020 passed a notification titled as "BCI Legal Education (Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education) Rules, 2020". This notification was passed by the BCI making the NEP 2020 as its epicentre. The essential effect of the aforementioned notification inter alia is extracted hereinbelow:
- to abolish the one Year LL.M Course (Rule 6);
- making the LL.M course for two years [Rule 5 (2)];
- annually conducting a Post Graduate Common Entrance Test in Law (PGCETL) for admission in Master Degree course in Law (Rule 8);
- regulating Ph.D./SJD registration & procedure for course-work (Rule 15);
- Faculty Improvement & teachers training (Rule 19);
- state that one year LL.M. obtained from any foreign University is not equivalent to Indian LL.M. degree etc.
- Analysing The Validity Of The Notification:
It is to be noted that the said notification abolishing one year LL.M has been passed by the BCI in light of the recent NEP 2020 and in view of the Sections 7(1)(h), (i); (ia); (ib); (ic); (2)(b); (c); 15(1); 49(1)(af); (d); (e) of the Advocates Act, 1961. The said provisions of Advocates Act, 1961 were in existence even prior to NEP 2020 came into existence. However, the BCI never passed any such notification governing the higher legal education while using the aforesaid provisions of the Advocates Act. It is only after NEP 2020 coming into existence that such notification was passed by the BCI. Thus, it is important to have a look into the relevant provisions of NEP 2020 in relation to governing the Higher Education.
18.3. The first vertical of HECI will be the National Higher Education Regulatory Council (NHERC). It will function as the common, single point regulator for the higher education sector including teacher education and excluding medical and legal education, thus eliminating the duplication and disjunction of regulatory efforts by the multiple regulatory agencies that exist at the current time. It will require a relook and repealing of existing Acts and restructuring of various existing regulatory bodies to enable this single point regulation.
It is very relevant to note that NEP 2020 has on one side excluded the higher legal education from being governed by NHERC or HECI and on other side is silent about the regulatory agency governing the higher legal education. It has nowhere directly conferred any power on the BCI to govern the higher legal education. It has merely provided that NHERC or HECI will not govern the higher legal education in order eliminate the duplication and disjunction of regulatory efforts by the existing regulatory agency. However, in strong words it has provided that "it will require a relook and repealing of existing Acts and restructuring of various existing regulatory bodies to enable this single point regulation". Its gives the following inferences:
- That Advocates Act, 1961 is required to be relooked and if needed amended to confer power on the regulatory agency governing higher legal education; or
- That Advocates Act, 1961 is required to be repealed and new Act is required to govern the complete legal education including the higher education; or
- The BCI or any other regulatory agency has to be restructured in order to govern the Higher Legal Education.
The NEP 2020 has actually provided that in order to govern the higher legal or medical education current governing agency is either required to be restructured or their parent Act is mandated to be relooked. It means the current governing agency i.e. BCI does not have any power to govern the higher legal education. NEP 2020 has not made any changes in the power of BCI to govern the legal education. If it had been the intention of the framers of NEP 2020 to confer the power of governing the higher legal education on the BCI, then they would have specifically conferred the same or would not have stated about the requirement of restructuring the body or Parent Act. It is relevant to note that mere "exclusion of the higher legal education from the ambit of NHERC or HECI," by NEP 2020 cannot be considered as "inclusion of the higher legal education within the ambit of BCI automatically".
Further the power of BCI to govern the legal education is still same as it were prior to NEP 2020 coming into existence. The instant notification passed by the BCI in its introduction part provides the relevant provisions on which the notification is passed. It provides the relevant provisions of the Advocates Act, 1961 in following words:
"Be that as it may, these Rules are notified in view of Sections 7(1)(h), (i); (ia); (ib); (ic); (2)(b); (c); 15(1); 49(1)(af); (d); (e)…"
Thus, it is required to have sight into the relevant provisions of Advocates Act, 1961 under which the instant notification has been passed to see whether Advocates Act, 1961 confers any power on the BCI to govern the higher legal education. The provisions are extracted hereinbelow:
Section 7: Functions of Bar Council of India:
- (a)-(g): XXX
(h): 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;
(i) to recognise Universities whose degree in law shall be a qualification for enrolment as an
and for that purpose to visit and inspect Universities [or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf];
(ia) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest;
(ib) to organise legal aid to the poor in the prescribed manner;
(2) The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of—
(b) giving legal aid or advice in accordance with the rules made in this behalf;]
(c) establishing law libraries;
Section 15. Power to make rules.—
- A Bar Council may make rules to carry out the purposes of this Chapter.
Section 49. General power of the Bar Council of India to make rules:
- The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe:
(af) the minimum qualification required for admission to a course of degree in law in any recognised university;
(d) the standards of legal education to be observed by universities in India and the inspection of universities for that purpose;
(e) the foreign qualifications in law obtained by persons other than citizens of India which shall be recognised for the purpose of admission as an advocate under this Act.
It is essential to note that Section 7 (1) (h) of the Advocates Act, 1961 provides power to BCI to promote legal education and to lay down standards of such education only in consultation with the Universities in India. This section does not give any power to BCI to govern the higher legal education. However, if it gives, then the same must be exercised only in consultation with the Universities in India. The instant notification dated 2.01.2020 does not evince that any such consultation with the universities in India has taken place. In absence of such consultation with the Universities, the instant notification is ultra vires the provisions of Advocates Act, 1961. At this juncture, it is important to note the judgement passed by the Hon'ble High Court of Punjab and Haryana in the case titled as "Gopal Krishan Chatrath vs Bar Council Of India, AIR 2001 PH 41" where the Hon'ble High Court dealt with the amendment to Rule 2(1) of Section B in- Part-IV of the Bar Council of India Rules on legal education requiring the law colleges/departments to run only day session from the year 2000-2001. The Hon'ble High Court struck down the said amendment and held that:
"…The perusal of Section 7(1)(h) and Section 49(1)(d) definitely leads us to a conclusion that for promoting legal education and for laying down the standards of legal education the Universities in India and the State Bar Councils were required to be consulted and that the said consultation had to be effective consultation because the Universities are engaged in imparting the legal education. There has been no consultation of the Universities in India and in this regard we are fortified by the affidavit filed by the Registrar of Panjab University, the specific para of which has been noted above to the effect that the Panjab University had not been consulted at the time of promulgation of the amendment carried out under rule 2(1) of the Rules."
The Hon'ble Supreme Court in the case of "V Sudeer vs BCI, AIR 1999 SC 1167" emphasised the role of the Universities and State Bar Councils before making any change in set-up providing legal education.
Further, the BCI also can-not take recourse to Section 7 (1) (i) of Advocates Act since the function of the BCI under that provision is merely to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate. The degree of LL.M course is not a qualification for enrolment as advocate. Further, Section 15 (1) has no relevance since under this Section the BCI can only make rule for the purpose of Chapter-II (Section 3-Section 15) of the Advocates Act, 1961. The entire Chapter-II is silent about the power of BCI to govern the Higher Legal Education without consultation of the universities and State Bar Councils.
Section 49 (1) (af) provides the general power of the BCI to make rules for the minimum qualifications required for admission to a course of degree in law. Here, the BCI again cannot provide the maximum qualification as it is left on the universities to provide the same. Further, providing the additional or complete qualification should be with the consent of the universities as laid down under Section 7 of the Advocates Act, 1961. Section 49 (1)(d) provides power to BCI to make rules for making standards of legal education to be observed by the universities in India. It does not give an autonomy to BCI to govern and set each and every standard for the purpose of higher legal education.
Thus, it may safely be concluded, that NEP 2020 demanded the restructuring of the existing regulatory body or amending the existing law governing the regulatory body in order to govern the higher legal education such as LL.M or PhD. It did not give direct power to BCI to govern the higher legal education. The existing provisions of the Advocates Act, 1961 are not adequate for the BCI to pass notification governing the higher legal education. Mere exclusion of the higher legal education from the ambit of NHERC or HECI under NEP 2020 will not automatically entitle the BCI to govern the same. Apt amendment is required under the Advocates Act, 1961 to arm the BCI to pass such notifications.
Views are personal.
(Author is a practicing Lawyer at the Supreme Court of India)