Role of the Bar Council of India as a regulator: Untenable with the real vision of legal education?

The Bar Council of India (BCI) has recently notified the Legal Education Rules which bring in some significant changes to the existing framework of postgraduate law courses. The most prominent step is the abolition of one year LL.M which was introduced in 2013.

The Rules contains some problematic provisions like the BCI’s plan to conduct an all-India common entrance test for admissions to LL.M programmes across the country and the bar on assistant professors to supervise LL.M dissertations. While the substantive provisions of the rules are likely to trigger a debate in the legal fraternity, we also need to question the logic of the BCI exercising regulatory powers over legal education.

The BCI’s regulatory authority is rooted in Sections 7(1)(h) and 7(1)(i) of the Advocates Act, 1961. The former requires the BCI "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".

The latter empowers the BCI "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 or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf".

The real vision of legal education

The BCI’s regulatory authority would make sense if the sole objective of legal education were to produce advocates and if the courtroom were the only place of relevance for legal knowledge. Thankfully, legal education does not pursue such a narrow goal. In fact, courtroom practice is only one of the many other derivatives of legal education. For example, students passing out of law colleges pursue diverse career paths like becoming judges, journalists, teachers, researchers, policy consultants, etc.

So, the legal curriculum in educational institutions needs to be designed in a manner that enables the development of skills required for pursuing diverse legal professions and not just courtroom practice. Thus, there is no sense in the BCI having regulatory powers over the entire spectrum of legal education.

As far as LL.M is concerned, there is no reason to support the BCI’s role in regulating it. LL.M is a completely irrelevant qualification to be enrolled as an advocate and the BCI has no tangible stake in the LL.M programme. On the other hand, postgraduate education in law is either mandatory or desirable for other professions such as academics and research, where the BCI has no role to play.

Being a legal practitioner is very different from being a legal educationist and expertise in the former in no way can substitute the latter. For example, due to the nature of their function, practitioners of law have scant exposure to techniques of qualitative and quantitative research which are a vital part of legal education and training. The body of data created through legal research is relevant for a variety of purposes like ascertaining the efficacy of existing laws, legal institutions etc. Such research is also used by legal practitioners and judges in adjudication of disputes. Vesting the regulatory authority with the BCI frustrates the broad and liberal objectives of legal education.

Bar entrance as a quality control mechanism

Moreover, with the introduction of All India Bar Entrance to assess the eligibility of law graduates to practice in courts, the BCI does not even have slightest claim to regulate legal education. It can use the All India Bar Entrance as a quality control mechanism to ensure that only suitable candidates are allowed to practice in courts. At this point, there is no sense in BCI dictating the legal curriculum of law colleges. As long as a person is able to clear the quality control mechanism instituted by the BCI itself, the details of the legal curriculum ought not concern the BCI. This is the standard practice in advanced jurisdictions such as the USA where members of the Bar have no influence over legal education but employ their own mechanism to filter candidates.

Questionable regulatory practices

As part of its regulatory mandate, the BCI has the power to inspect law colleges and grant them recognition. If a law college is not recognized by the BCI, law graduates from such a law college cannot enrol themselves as advocates and cannot practice in any of the courts in India. As part of this inspection model, teams of BCI members physically visit law colleges periodically to grant and renew recognition.

There have been serious concerns about the manner in which BCI has used this power to facilitate a reckless proliferation of law colleges in the country. Between 2012 and 2014, the number of law colleges recognized by the BCI ballooned from 800 to 1200. In an eight-month span from April to December in 2014, as many as 92 colleges were conferred recognition by the BCI.

These inspections are supposed to assess the capacity of law colleges in terms of infrastructure, faculty strength, research output etc. However, more often than not, these inspections are neither robust nor extensive. The members visit the law colleges for a day and barely spend a couple of hours in actual inspection.

Apart from the inefficiencies ingrained in the regulatory mechanism, there are also valid concerns about the integrity of the inspection process. Members of the Bar Council have been found guilty of corruption wherein they accepted bribes in order to grant recognition to law colleges.

The courtroom-centric worldview of the BCI has resulted in many outdated prescriptions that defy common sense. For example, in the list of compulsory papers that every law college must offer as part of the under-graduate course in law, there is no space for Intellectual Property Rights. Similarly, the BCI is also responsible for creating, backing and perpetuating many erroneous rules like denying law teachers the right to practice in courts, a common phenomenon in other countries. In a country saddled with mounting caseload and with clients struggling to find quality advocates, it is difficult to understand why the BCI would exclude qualified individuals from courtroom practice.

Thus, it is high time to reconsider the BCI’s role in the regulation of legal education. While BCI can be a useful body to provide suggestions for formulation of standards, there is no justifiable reason for the BCI to have an overbearing control over the fate and direction of legal education.

The authors are faculty members at National Law University, Odisha.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.