A petition has been filed in the Supreme Court seeking a direction declaring part of the Bar Council of India’s gazette notification abolishing one-year Master Degree in Law to be ultra-vires, violative under Articles 14, 19 (1)(g) and 21 of the Constitution.
The petition has been filed through Advocate-on-Record Arvind Gupta. The petitioner is a student of B.A.LL.B final year and is preparing for LL.M entrance exams. The Bar Council Of India has sought to abolish the one-year post-graduate course i.e. LL.M (Master Of Law) course in India leading to Master degree, in short as per the notification, vide No.CGD-E-05012021-224194, dated 02.01.2021, of Bar Council of India, LL.M, has to be of two years’ duration over four semesters; which has come as a shock not only the petitioner but to numerous other law students also, who are preparing for the last six months or more for various LL.M entrance exams like CLAT, AILET, ILI etc., being scheduled to be held in the month of May-June 2021, for the academic year 2021-2022 and many of them have already deposited the entrance fee for the same, alleged the petitioner.
The petition stated that one of the main features of one-year LL.M programme is the establishment of a Centre for Post Graduate Legal Studies (CPGLS) by the university/college mandated by the UGC which will have a dedicated team of senior teachers competent to guide post-graduate scholars including Ph.D. students. A couple of other features of this programme that attracted most of the aspiring students especially working professionals and practising lawyers are the reducing of the duration to one year without compromising anything to make the course rigorous and maintain academic quality and standards.
The Union Cabinet has approved the new National Education Policy (NEP) in July 2020 with an aim to introduce several changes in the Indian education system from school to college level and whereby in view of ‘Chapter 18.3 of Part-II of NEP 2020’, the first vertical of HECI will be the National Higher Education Regulatory Council (NHERC). It will function as the common, single-point regulator for the higher education sector including teacher education and excluding medical and legal education, thus eliminating the duplication and disjunction of regulatory efforts by the multiple regulatory agencies that exist at the current time but it doesn’t say at all that higher legal education impliedly would be governed by the BCI, rather the said chapter is absolutely silent on the subject.
In the petition, it was further alleged that the Bar Council Of India erroneously and arbitrarily assumed itself that it has the power to make the rule governing the higher legal education, by strongly emphasising upon section 7(1)(h),(i), (ia), (ib), (ic), (2)(b), (c), 5(1), 49(1), (af), (d), (e) of the Advocate Act, 1961, whereas absolutely to the contrary none of the above provisions are applicable and gives power to the BCI to make rules governing the higher legal education and to abolish the one-year LL.M (Master Of Law) course in India and the post-graduate course in law leading to a Masters degree.
The petitioner cited the judgement of the High Court of Punjab and Haryana in the case Gopal Krishan Chatrath vs BCI, AIR 2001, PH, 41, in which the Court held, “The perusal of Section 7(1)(h) and Section 49(1)(d) definitely leads us to a conclusion that for promoting legal education and for laying down the standards of legal education, the Universities in India and the State Bar Councils were required to be consulted and that the said consultation had to be effective consultation because the Universities are engaged in imparting the legal education.”
It was claimed in the petition that mere exclusion of the higher legal education from the ambit of NHERC or HECI by NEP 2020, cannot be construed automatically that the higher legal action is impliedly and exclusively governed by BCI. Whereas the power of BCI to govern legal education is still the same as it was prior to coming in force the NEP 2020.
It was further claimed that bare perusal and gist of Section 7(1) (i) of Advocate Acts provides that to recognise the Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities 3[or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf]; 4[(ia) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest. Therefore, the provision also doesn’t empower BCI to issue impugned notification as the function of the BCI under the above provision is merely to recognize Universities whose degree in law shall be qualification for enrolment as an advocate. Thus the degree of LL.M course is not a qualification for enrolment as advocate.
“Article 21 of Indian Constitution grants right to personal liberty to study and pursue one-year LLM Programme to abridge or annul this guaranteed right BCI should have adopted the Procedure established by law and satisfied the tests put forth under Article 14, 19 and 21 of the Constitution. Though, the reason for adopting such a change is ambiguous yet it is certain that the said notification patently violates the test of article 21 of the Constitution. Since, no chance of hearing from students, consultations with UGC, Universities, etc., took place; thus, in light of such it is certain that the said notification is absolutely unreasonable, erroneous, arbitrary and unilateral,” the petition reads.
“In the alternative, pass a prohibitory order restraining the BCI from notifying the date of implementation of the regulation of two years LL.M course passed in the impugned notification, till the end of academic session of 2021-2022 of one-year LL.M course”, the petitioner prayed.
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