June 18, 2021

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The politics of 2-yr-LLMs under BCI reaches SC: Council promises to postpone ban until 2022

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The BCI plans to take control of LLMs, to the chagrin of VCs and postgrads everywhere

The Supreme Court began hearing challenges to the Bar Council of India’s (BCI) unceremonious decision to pull masters in laws (LLMs) into its regulatory orbit and ordering the ban of one-year LLM degrees (the most popular kind in India), reported LiveLaw and others.

Today, the BCI had told the Supreme Court that it would keep the implementation of the one-year LLM ban in abeyance until 2022-23, which Nalsar Hyderabad vice-chancellor (VC) Prof Faizan Mustafa hailed as “another victory for the NLU Consortium” on Twitter today.

The BCI was apparently represented by Vivek Tankha, a Rajya Sabha parliamentarian from the Congress party:

Decks clear for 1 yr LLM course conducted by National law Universities for the year 21-22. The BCI scheme is applicable fr 22-33 , subject to Sup Court decision. Appeared for BCI with Chairman BCI Manan Mishra to resolve the impasse. @barcouncilindia @barandbench @LiveLawIndia

— Vivek Tankha (@VTankha) Thu, 11 Feb 2021, 12:53

Senior counsel Abhishek Manu Singhvi acted for the NLU consortium, and argued, according to LiveLaw:

The Advocates Act, 1961, gives power to the Bar Council of India only to regulate legal education in so far as it relates to qualifications for enrollment for practice of law. LLM is not a qualification for enrollment.

Only UGC has power to regulate LLM courses.

One year LLM is the standard across the globe in all reputed international universities.

One year LLM was started in India on the basis of recommendations of the National Knowledge Commission in 2012.

The BCI did not consult a single Law University before issuing the new Rules.

So far, so BCI.

Background

On 4 January 2021, hot on the heels of having announced that it would fight against law graduates trying to join the judiciary straight out of college, the BCI had dropped another bombshell.

The BCI had announced a radical overhaul and gameplan for the future of postgraduate legal education, which it had to date not wasted much time or thought on.

In addition:

  • the BCI finally decided that continuing legal education (CLE) was a good idea, which it seems to have promptly begun making a reality by tying up with KIIT to start an Indian Institute of Law.
  • The rules also included a proviso for the BCI to carry out its own entrance test for LLMs, which is currently handled by each university as it sees fit (or via a special post-graduate CLAT for NLUs).
  • No more than 50 total students would be allowed into an LLM programme at a university (with no more than 20 students per specialised LLM).

(You can read an annotated version of the 2020 Legal Education Rules here).

The news about the LLMs in particular hit law school vice-chancellors (VC) and faculty like a bombshell, with even the consortium of national law universities (NLU) blindsided.

“It was really a shock for us all. Suddenly we get to know that this has happened – there was no consultation with any VC or professors or anyone,” one VC of an NLU told us at the time, having agreed to speak on condition of anonymity.

The only indication that anything had been afoot, had been a meeting of the BCI’s legal education committee (LEC) one year ago, in January 2020, at which a few professors were present.

According to a source in academia, one professor LEC member in particular, had for a longer time been pitching for a two-year-minimum LLM in order to improve the quality of postgraduate legal education.

How much in-depth research and advanced study of law can you do in a year, went the rationale.

And there is some sympathy for that argument even amongst VCs and academics, with the quality of domestic LLMs often under fire, even though many foreign LLMs are only one-year long.

However, even if a two-year LLM would impart a deeper indication, the practical reality is that the numbers of LLM students would plummet.

“Nobody will take this [two-year] programme, except for those committed for academia,” said the NLU VC.

While LLMs technically do not have much to do with legal practice, a large chunk of LLM takers are also practising lawyers, who take such postgraduate courses to shore up their CVs and marketability.

That would no doubt hurt the coffers of NLUs, as well as reduce the pool of academics available to join law schools.

Why BCI?

Even if there might potentially have been supporters for a longer LLM, this is the first time the BCI has taken much of an interest in LLMs, having traditionally been pre-occupied with accrediting law schools and their LLB courses, which are a mandatory requirement for legal practice (besides the All India Bar Exam (AIBE)).

The wording under the Advocates Act 1961, seems to both limit the BCI’s function, as well as leave the door slightly open for a land grab:

(h) 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;

(i) to recognise 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];

(m) to do all other things necessary for discharging the aforesaid functions;

Prima facie, that does not include LLMs, which serve no role in terms of eligibility for the profession.

However, there are indications that the University Grants Commission (UGC) might actually not be averse to the BCI taking over LLMs, similar to the situation with the medical council and postgraduate degrees, an NLU VC told us.

Financial rewards for BCI and the risks

Besides the BCI having traditionally enjoyed flaunting its power, when possible, there is also an obvious financial element.

Law schools seeking accreditation of their LLB courses range from inspection fees of between Rs 3 to 5 lakh per course. Inspections are required every five years for institutions older than 15 years, and more regularly for younger institutions.

NLUs and other universities with multiple and varying LLB degree programmes can and do therefore easily spend tens of lakhs on such inspections.

Indeed, this power that the BCI yields has historically also bred corruption: three BCI officials had been jailed in 2016 for having taken bribes to accredit law colleges.

The power of the BCI also makes it risky for the NLUs and even private colleges to fight back: with the BCI’s monopoly over accrediting their bread-and-butter LLMs, this is a regulator few VCs want to mess with.

From that perspective, at least, the NLU Consortium, despite all its other faults, at least provides VCs the cover to defend their interests with a united front.

BCI Legal Education Rules 2020 banning short LLMs (annotated)

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