The face-off between the BCI and the HRD ministry boils down to the power to prescribe law school accreditation norms, which remained the major bone of contention that spurred the BCI to call for the strike.
A number of letters by and to the ministry were obtained by advocate Anoop Prakash Awasthi, who annexed the correspondence to his unsuccessful writ petition that last week challenged the legality of the BCI’s strike under a Supreme Court judgment. Awasthi is understood to be in the process of filing contempt proceedings against a number bar council members for allegedly flouting the earlier apex court judgment.
On 6 July 2012, around one week before the strike, HRD minister Kapil Sibal claimed that he only found out about the BCI’s plans to go on strike from newspaper reports, revealed a letter Sibal sent to over 20 BCI members. [Download Sibal’s letter]
Sibal claimed in his letter that the BCI’s present powers would not be affected by the HER Bill, including the BCI’s power to “prescribe minimum standards of education for grant of degrees leading to professional practice”.
Background: BCI & legal education
The accreditation and inspection of law schools is understood to have historically generated a large part of bar councils’ revenue, but this process has been marred by allegations of corruption and an excessive number of sub-par law schools.
In 2010 then-BCI-chairman Gopal Subramanium began the process to close law colleges that did not meet minimum standards, with one college unsuccessfully attempting to bribe Subramanium.
In late 2010 Delhi bar council member Rajinder Singh Rana and two other lawyers were accused by the Central Bureau of Investigations (CBI) to have taken a bribe to accredit the law college Swami Devi Dyal Law College of Barwala. The CBI cited a college inspection in 2010 and a recorded phone conversation that allegedly arranged the bribe. Rana, who is currently serving as a member of the Delhi bar council, was refused bail several times, newspapers reported at the time. The college vice-chairman’s bail was rejected in May 2011, reported the Indian Express.
In April 2012, the BCI said that more than 100 law schools would be closed because they failed to meet standards. It is understood that a number of these have appealed in court against the decisions. The BCI has declined to provide a list of colleges.
The minister invited representatives of the BCI, state bar councils and other bar associations in India to meet and “address any concern they might have with respect to the proposed legislation” because there were “some general apprehensions about the real intent of this law”.
“That letter is misleading,” commented BCI chairman Manan Kumar Mishra. “Section 16 and 17 of the bill is just contrary to the position of the Advocates Act. The norms of the legal education is completely BCI’s responsibility and under Section 17, the same power is being given to the National Commission.”
Underlying acts
The Advocates Act 1961, in Section 7(h) and Section 7(i) provides that it is the BCI’s function:
- “to lay down standards of such [legal] education in consultation with the Universities in India imparting such education and the State Bar Councils”, and
- “to recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities…”
But Section 17 of the HER Bill [download bill here] empowers the “National Commission” appointed under the bill to:
Make regulations, to determine, coordinate and specify standards of higher education and research”, including the prescription of “norms and standards of academic quality for accreditation and benchmarking of higher educational institutions and universities.
Section 83 of the bill adds:
“Notwithstanding anything contained in the Advocates Act, 1961, the provisions of this Act shall apply to any matter concerning the determination, co-ordination, 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.”
“It is done to confuse the law and to dilute and frustrate the BCI’s powers,” commented Mishra on the bill.
The bill provides, in section 27, that the BCI’s chairman would preside over an “Expert Advisory” group for legal education, that would assist the National Commission in performance of its functions laid down under Section 17.
Talking at each other
A letter dated 27 March 2012 [download here], purporting to be from the HRD ministry joint secretary Sisodia to Ashok Parija, who was then the BCI’s chairman, claimed that a consensus was reached at a 23 January meeting between Sibal and a BCI delegation:
The present powers and functions of the [bar councils] with respect to legal education […] will not be impacted by the proposed [Bill].
BCI shall have the powers to lay down minimum standards for grant of degree leading to professional practice.
BCI shall be one of the designated accreditation agencies with respect to evaluation of minimum standards [specified above…]
BCI shall have the power to determine fees to be charged from institutions for the purpose of accreditation.
BCI shall follow norms and processes of accreditation specified by the government…
Mint reported on 28 March that the HRD considered the dispute with the BCI settled on the above terms, but the BCI later disputed the end of the disagreement. On 13 April Mint reported that Parija said that the BCI wanted legal education should be completely exempt from the HER bill.
Mishra said it was “a completely false letter”, when asked by Legally India about the 27 March letter from the HRD.
“The moment we came to know about that letter, we wrote to Mr Kapil Sibal. The letter doesn’t have real signatures,” he alleged.
On 5 May 2012, Mishra addressed a press conference reporting the BCI’s progress in lobbying against the bill in meetings with political parties including the UPA, NDA, Trinamool Congress, NCP, DMK, AIADMK, CPI, RJD and LJP, saying that all had “responded positively”.
Malice
At the end of last week’s strike, on 12 July, Mishra alleged “malice on the part of HRD ministry” in a press release, adding: “Foreign countries like USA and UK are trying to enter in to our country and these bills are aimed at making their entries easier. The Bar Council of India has always been opposing such easy entry.”
“It is experienced legal luminaries, honourable judges of apex court and high courts, noted academicians and elected members together who decide the standards, norms and everything with regard to the legal education in the legal education committee of the Bar Council of India.
“Therefore the Bar Council of India is not ready to handover all these functions to a few nominees of the HRD ministry, so far legal education is concerned,” the release further stated [download press release here].
Chronology and downloads:
- 23 January 2012: BCI delegation meets Sibal and HRD
- 1 February: Email from BCI to HRD ministry
- 27 March: Letter from HRD ministry to former BCI chairman Parija
- 6 July: Sibal’s letter sent to BCI members, including the ex-officio members GE Vahanvati, as attorney general, and Rohinton Narinman, as solicitor general
- Copy of Higher Education and Research Bill 2011
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