The Bar Council of India Legal Education (Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education) Rules, 2020 (BCI Rules) were published in Gazette of India on January 4, 2021. The rules aim to drastically alter the framework for regulating the LL.M. degree.
In this post, I first introduce the reader to the major changes proposed by the new BCI Rules, followed by my criticism of the same. My primary argument is that a two year LL.M. programme, although seemingly neutral, would have a disparate impact on the weaker sections of society.
I shall take the aid of a survey that I conducted among the LL.M. graduates at Azim Premji University to substantiate my points. Lastly, I discuss how a two-year LL.M. combined with the 2018 proposal of Ministry of Education to make Ph.D. the minimum qualification for direct recruitment to post of Assistant Professor from July 1, 2020, would negatively impact the quality of research produced in India and disincentivise academia as a career choice for young law graduates.
Some of the major changes with respect to LL.M. that shall come into effect with the rules are:
1) The one year LL.M. degree course shall be abolished.
2) One year LL.M. obtained from any foreign university would no longer be equivalent to an Indian LL.M. degree. However, a one-year LL.M. degree obtained after an equivalent LL.B. degree from any ‘highly accredited foreign University’ (not defined in the rules) may entitle the person concerned to be appointed as a visiting faculty in an Indian university. Such one year LL.M. degree with one year of teaching experience would make the foreign degree equivalent to an Indian LL.M.
3) A common entrance test shall be conducted for admissions and all universities are bound to take admissions on the basis of the merit list.
No empirical Data to back the decision
The one year LL.M. Programme was introduced in India in 2013. The National Knowledge Commission had recommended several measures to ‘to revamp the system towards achieving academic and professional excellence’. This was followed by a round table on Legal Education set up by the Ministry of Human Resources Development, which asked the University Grants Commission (UGC) for reform of the LL.M. degree programme, to make it a one year course like in all developed countries. Finally, a UGC-appointed expert committee submitted a report, and India got a one year LL.M. programme.
However, within a span of just seven years, it appears that Bar Council of India, which was not the regulator for award of LL.M. degrees until now, has sprung into action, and is of the opinion that the one year LL.M. experiment has failed. The BCI has not provided any empirical data to convince the stakeholders the investment of one extra year would improve the quality of graduates being produced or would open up better career opportunities. In the absence of such data, the decision seems to have been taken in haste without enough research.
Lack of effective consultation with stakeholders
My second objection stems from the fact that the stakeholders including students and universities were not given an opportunity to effectively express their concerns.
The new Rules mention that since the New Education Policy, 2020 has excluded legal education from the control of the Higher Education Commission of India (HECI), it has left the ‘entire realm of legal education for the Bar Council of India to regulate’. However, the BCI gets its power in relation to legal education from the Advocates Act of 1961, which under Section 7(1), is clear in its mandate that BCI can only ‘lay down standards of such education in consultation with the Universities in India imparting such education’.
The late Prof Shamnad Basheer stressed on the importance of effective consultation while arguing that BCI is neither constitutionally allowed nor institutionally competent to regulate the full spectrum of legal education, independent of universities.
Incentivising Brain Drain
For young law graduates aspiring to a career in academics, BCI has further incentivised a foreign LL.M.. The reason behind this is that graduates returning from abroad can apply for a visiting faculty position at universities and seek employment. With this move, Indian universities would struggle in attracting quality candidates who have been accepted by foreign universities, as an Indian LL.M. involves the investment of an extra one year.
If BCI was so eager on a two-year LL.M, it should have taken steps to incentivise the proposed programme. Currently, students would have to pay fees for both the years without any substantial avenues for earning during the course. It would have helped if the BCI had decided to shoulder the financial costs of the second year of the course and ensured that each student gets a paid teaching assistantship under a professor, the second year onwards.
Disparate impact on weaker sections
The seemingly neutral rules would have a disparate impact on disadvantaged groups. A longer LL.M. means more investment before an individual can seek employment.
I conducted a survey regarding the issue among graduates of the one year LL.M. programme from the Azim Premji University (APU). The survey included respondents from the 2016 batch (when the course started) to the latest 2020 batch. About eight-five students were awarded the LL.M. degree at APU in the last four years, out of which forty-four responded. While 70.5% percent of the respondents believed that one year is the ideal duration for the course, a staggering total of 56.8% respondents said that they would not have pursued the course if it were a two-year course.
The primary reasons for the unpopularity of a two-year LL.M. amongst the respondents were financial unviability and the long duration of the course. One graduate mentioned that a five-year LL.B. is itself a long period and if the undergraduate programme is reduced to four years, a two year LL.M. would still look attractive. A female respondent asserted,
"It is not easy for women in their 20s in India to convince parents for a post graduate course, especially after five years of legal education. For my independence, employment is important but a two year LL.M. would act as a hurdle."
Another graduate stated that law schools heavily rely on theoretical means to teach and therefore seven years is a long time period to invest.
Autonomy of universities compromised
BCI has proposed an all-India level LL.M. entrance test in the form of Post Graduate Entrance Test in Law (PGCETL). If the brightest minds should join the academia and LL.M. ought to be a be gateway, then the entrance exams must test a candidate on reading, writing and reasoning aptitude which could be extremely challenging at an al- India level when an exam is conducted by a singular body. This would require substantial investment of resources, failing which we would be stuck with another exam which simply tests students on their rote learning skills.
There are some universities in India that conduct LL.M. entrance tests involving essay writing, submission of writing samples and even an interview before they find a student fit to be enrolled into their LL.M. programme. However, forcing admissions through a common test would mean that such universities are deprived of their autonomy in choosing their students.
Making maximum qualifications minimum
A press release by the Union Ministry of Human Resources Development in 2018 said that a Ph.D. shall be the minimum qualification for direct recruitment to the post of Assistant Professor in universities starting July 1, 2021 onwards. If this comes into effect, it would mean that an individual who wants to pursue a career in academia would have to first pursue a five-year course in law, followed by a two-year LL.M. followed by a minimum three year Ph.D. (provided they pursue it full-time). Assuming that a person joins law school at 18, the law student would be 23 by the time the graduate law school, and another five years would be invested in getting an LL.M. and a Ph.D. Therefore, it could be argued that a student would be 28 before they could even apply for the post of Assistant Professor at a university. A further one year can be added for an individual pursuing a three-year undergraduate law course.
People may argue that such measures have been put in place to maintain academic standards that only allow serious candidates to pursue legal academia as a career. However, little efforts have been made to find out how many students can depend on their parents for funding until the age of 29. LL.M. is a full time course during which students are barred from practicing. An executive LL.M. or a professional LL.M. is not recognised if an individual wants to be a full-time academic.
Further, as far as Ph.D. is concerned, unlike foreign universities, the number of scholarships on offer are meagre, and therefore majority of students are left to themselves to fund it. A two-year LL.M. and a mandatory Ph.D. would eliminate a substantial number of people belonging to the socially and economically disadvantaged groups aspiring to be a part of academia. It is true that graduates could work as visiting or guest faculty while pursuing a part time Ph.D.. However, neither there is no security of tenure associated with the position of guest faculty, nor are the emoluments on par with the post of Assistant Professor.
Secondly, making Ph.D. mandatory for direct recruitment would adversely affect the quality of research in India, which even as I write this, is not something that we could boast of. Students would hasten to get a formal Ph.D. tag to comply with the eligibility criteria and therefore the quality of majority of proposals submitted, at best, would be substandard. A Ph.D. proposal requires substantial consideration and time. While it may be a reasonable ask for a post of Associate Professor, however, making highest qualification necessary for an entry level position is neither reasonable nor in the interest of academia.
It is no secret that LL.M. courses in our country are meted out step-motherly treatment in most law schools. This is true of the National Law Universities as well, which although take admissions to post graduate courses, are more known for their five-year integrated undergraduate courses. Therefore, before the duration of the LL.M. course is increased by another year, it must be given the due importance it deserves so that students stand to make substantial gains from the extra year that they would investing.
Further, he BCI should have introduced the Rules after effective consultation with the stakeholders. There is no empirical data to prove that after a three or five-year undergraduate course in law, a two year LL.M. guarantees more learned graduates or better career opportunities. The new Rules put Indian graduates at a disadvantage when compared to foreign returned graduates in terms of job opportunities. Therefore, it would not be unreasonable to ask the BCI to reconsider these Rules and introduce them only after widespread consultation with universities and students.
Lastly, I wish to write about why I feel strongly on the issue of abolition of the one year LL.M. Until 2018, I was working as in-house counsel with a multi-national company. Understanding that academics was my calling, I applied to foreign varsities and got through universities including University College London and School of Oriental and African Sciences. However, it was the promise of a quality one year LL.M. at Azim Premji University which made me choose an Indian LL.M. over a foreign degree. I am not sure whether I would have been able to take the plunge had it been a two-year course without any substantial avenues to make a living for myself.
The author teaches law at the BML Munjal University, Gurugram. His Twitter handle is @anubhavraj92.