Punjab & Haryana High Court lifts BCI's 3-year moratorium on opening new Law Colleges; moots practical training for law students

"BCI should seriously dilate on the issue of maintaining standard of legal education. Many new entrants in legal profession are not upto the mark", the Court remarked on parting note.
Punjab & Haryana High Court lifts BCI's 3-year moratorium on opening new Law Colleges; moots practical training for law students
Bar Council of India

The Punjab and Haryana High Court recently lifted the Bar Council of India's (BCI) 3-year moratorium on the opening of new law colleges in the country, finding that the same does not stand the test of judicial scrutiny and is violative of Article 19 (1)(g) of the Constitution of India.

Justice Rekha Mittal passed the order earlier this month on a petition moved by the Chandigarh Educational Society which had sought the BCI's approval in 2019 for opening the Chandigarh Law College, Jhanjheri from academic session 2020-21.

With the BCI refusing to process their application for approval citing the 3-year moratorium for grant of approval to new law institutes (by its August 2019 resolution), the Society turned to the High Court for relief.

The High Court was informed that the BCI had demanded the deposit of money when the application for approval was made, even though it declined to process the application.

The High Court, in turn, mused on the question of whether the BCI can legally impose moratorium qua opening of new law educational institutes, eventually ruling that such a moratorium was unconstitutional and contrary to the Supreme Court's ruling in the case of TMA Pai Foundation vs. State of Karnataka.

The Court found:

"No doubt, the BCI can issue guidelines/circulars etc. and press for compliance thereof as well as 2008 Rules either at the grant of approval to a New College or adherence thereof by the Colleges/Institutes for Legal Education already existing throughout the country but under that pretext it can not impose a complete ban on opening of New Institutes for imparting Legal Education ... Counsel for respondents No. 1 (BCI) and 2 has failed to advance any arguments much less meaningful to give legal justification in regard to resolution/decision of the BCI to impose moratorium for a period of three years for grant of approval to New Law Colleges/ Centers/ Institutes."

The BCI had told the Court that the decision to impose the moratorium was taken in view of the mushrooming of legal education institutions that were not maintaining the applicable standards for legal education.

Bar Council of India
Mushrooming of law colleges: BCI imposes 3-year moratorium on granting affiliation to new institutes

The Court, however, examined provisions concerning the BCI's functions to promote and lay down standards of legal education under Section 7 of the Advocates' Act, 1961 to find that the BCI did not have any power to impose a complete ban on the setting up of new legal education institutes.

Justice Mittal further noted that there was no instance pointed out where any legal education institute has been shut down till date for non-adherence to the prescribed standards.

The Court added that, in any case,

"... the BCI can not justify its failure to ensure maintenance of standards of Legal Education by imposing complete ban on setting up of new law colleges, in violation of fundamental right under Article 19 (1) (g) of the Constitution of India that deals with right of citizens to practice any profession, or to carry any occupation, trade or business. In TMA Pai Foundation's case (supra), it has been held that right to establish an educational institution is a fundamental right."

As such, the moratorium was set aside and the BCI was directed to consider the Chandigarh Educational Society's application for approval within three months from the order's receipt.

On a parting note, the Court also called on the BCI to check the standards of law graduates, opining that many new entrants to the legal profession were not up to the mark. Justice Mittal asked BCI to consider imparting practical training to law students. She also added that a portal or nodal agency may also be created to ensure compliance with the BCI's instructions, guidelines and rules by legal education centres.

"BCI should seriously dilate on the issue of maintaining standard of legal education. Many new entrants in legal profession are not upto the mark in drafting of petitions or assisting the Court. Some of them are not confident enough to speak court language. The BCI may take steps to ensure practical training to Law students in its real meaning and sense. It may also examine of creating a portal or/and nodal agency to ensure compliance of BCI instructions, guidelines, 2008 Rules etc. by the centers of legal education", the order said.

[Read order]

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