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Can the Higher Edu Comm’n deliver NLUs (and other law schools) the freedom they crave from the BCI?

Could freedom for law schools come in the guise of a new master?
Could freedom for law schools come in the guise of a new master?

The Bar Council of India (BCI), which regulates legal education in India, is faced with a possible conflict of power with the proposed Higher Education Commission (HEC), which is the union HRD ministry’s new tentative creation to remodel India’s higher education system.

If the legislature manages to pass the Higher Education Commission of India Act 2018 before the May 2019 general elections, not only would the HEC replace the University Grants Commission (UGC) - the funding body for all central universities - but the HEC, in one interpretation, could also curtail the BCI’s power of regulating the LLB degree in recognised law universities.

Under the Advocates Act 1961, the BCI’s functions under Section 7 include:

(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 recognize Universities whose degree in law shall be a qualification for enrolments as an advocate 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;

But under the HEC bill, regulation of education and research in universities would go to the HEC, despite the Advocates Act. Section 31 of the bill states:

Notwithstanding anything contained in the Architects Act 1972 and he Advocates Act 1961, the provisions of this Act shall apply to any matter concerning the determination, coordination, maintenance of standards in and promotion of, higher education and research:

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

In one interpretation of these two provisions from the Advocates Act and the HEC Bill, the BCI’s power to regulate “education” and “research” in law schools would be ceded to the HEC, and the BCI would only concern itself with higher education standards related to “practice in courts”.

However it could be argued that since for practice in courts the first requirement is an LLB degree from a BCI-recognised law university, and since the BCI provides recognition to law universities based on whether they comply with its Legal Education Rules 2009 - which basically cover all aspects of education and research in law schools - the BCI regulates standards for “practice in courts” by regulating “education” and “research” in law schools.

The Supreme Court added to this argument when it ruled in 2007 (Bar Council of India v Board of Management, Dayanand College of Law) that:

since BCI was concerned with the standards of the legal profession and the equipment of those who seek entry into that profession, BCI is, thus, also concerned with the legal education in the country

So under this interpretation, in the unlikely event of the Bill getting past before the fast-approaching general elections, it is also unlikely that national law universities and other law schools would gain further freedom and distance from the BCI.

That is despite autonomy being the general preference among most vice chancellors and others, such as the “father of modern legal education”, Prof Madhav Menon.

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