BCI AND ITS ROLE IN DEVELOPMENT OF LEGAL

EDUCATION IN INDIA
Written By:
Abhay Chandravanshi
B.A.LL.B (4th Year)
School of Law, Guru Ghasidas Vishwavidyalaya, Bilaspur, CG
Email id- abhaychandravanshi69@gmail.com

A.-BAR COUNCIL OF INDIA

Introduction

The Bar Council of India is a statutory body that regulates and represents the Indian bar. It was
created by Parliament under the Advocates Act, 1961. It prescribes standards of professional
conduct, etiquettes and exercises disciplinary jurisdiction over the bar. It also sets standards for
legal education and grants recognition to Universities whose degree in law will serve as a
qualification for students to enroll themselves as advocates upon graduation.
Section 4 of the Bar Council of India provides:
(1) There shall be a Bar Council for the territories to which this Act extends to be known as the
Bar Council of India which shall consist of the following members, namely:–
(a) the Attorney- General of India, ex officio;
(b) the Solicitor- General of India, ex officio;
(c) one member elected by each State Bar Council from amongst its members.

Section 4(1-A) of the Act makes it clear that no person shall be eligible for being elected as a
member of the Bar Council of India unless he possesses the qualifications specified in the
proviso to sub- section (2) of section 3.
Provided that such person shall continue to carry on the duties of his office until the
Chairman or the Vice- Chairman, as the case may be, of the Council, elected after the
commencement of the Advocates (Amendment) Act, 1977 (38 of 1977 ), assumes charge of the
office.
Section 4(3) of the Act provides that the term of office of a member of the Bar Council of India
elected by the State Bar Council shall-

(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from
the date of his election 2 [or till he ceases to be a member of the State Bar Council, whichever is
earlier]; and (ii) in any other case, be for the period for which he holds office as a member of the
State Bar Council:
(ii)Provided that every such member shall continue to hold office as a member of the Bar
Council of India until his successor is elected.

Section 10-A of the Act provides that The Bar council of India shall meet at New Delhi or at
such other place as it may, for reasons to be recorded in writing, determine. A State Bar Council
shall meet at its headquarters or at such other place as it may, for reasons to be recorded in
writing, determine .The committees other than disciplinary committees constituted by the Bar
Councils shall meet at the headquarters of the respective Bar councils. Every Bar Council and
every committee thereof except the disciplinary committees shall observe such rules of
procedure in regard to the transaction of business at their meetings as may be prescribed. The
disciplinary committees constituted under section 9 shall meet at such times and places and shall
observe such rules of procedure in regard to the transaction of business at their meetings as may
be prescribed.

Section 10-B of the Act provides that an elected member of a Bar Council shall be
deemed to have vacated his office if he is declared by the Bar Council of which he is a member
to have been absent without sufficient excuse from three consecutive meetings of such Council,
or if his name is, for any cause removed from the roll of advocates or if he is otherwise
disqualified under any rule made by the Bar Council of India.

Section 14 of the Act provides that no election of a member to a Bar Council shall be
called in question on the ground merely that due notice thereof has not been given to any person
entitled to vote thereat , if notice of the date has, not less than thirty days before that date, been
published in the Official Gazette.

Historical Background

After the Constitution of India was established on January 26, 1950, the Inter-University Board
passed a resolution emphasizing the need for an all-India Bar and the importance of uniformly
high standards for law examinations in different Universities. In May 1950, the Madras
Provincial Lawyers Conference, held under the presidency of Shri S. Varadachariar, resolved
that a committee appointed by the Government of India should evolve a scheme for an all-India
Bar and amend the Indian Bar Councils Act such that it conforms to the new Constitution. On
April 12, 1951, Shri Syed Mohammed Ahmad Kazmi, a Member of Parliament, proposed a bill
to amend the India Bar Councils Act.
The Government of India concluded that it was necessary for the Government to sponsor
the Bill. In August 1951, a Committee of Inquiry was set up to consider the feasibility of a
 unified Bar in India, the continuance or abolition of the dual system of counsel for each state,
possibility of a separate Bar Council for the Supreme Court and the revision of enactments
related to the legal profession.

Structure of the Bar Council of India

The Bar Council of India consists of 18 Members. The Attorney General of India and the
Solicitor General of India are Ex-officio Members of the council and the other 16 Members
represent the 16 State Bar Councils in the country. The Members are elected for a period of five
years and the Chairman and vice -Chairman are elected for a period of two years from among the
Members of the Bar Council of India. The Bar Council further consists of various committees
viz., Legal Education Committee, Disciplinary Committee, Executive Committee, Legal Aid
Committee, Advocates Welfare Fund Committee, Rules Committee and various other
Committees formed to look into specific issues arising from time to time.

Functions of Bar Council of India

The Bar Council of India was established by Parliament under the Advocates Act, 1961. The
following statutory functions under Section 7 cover the Bar Council’s regulatory and
representative mandate for the legal profession and legal education in India:

 To lay down standards of professional conduct and etiquette for advocates.

 To lay down procedure to be followed by its disciplinary committee and the disciplinary
committees of each State Bar Council.
 To safeguard the rights, privileges and interests of advocates.
 To promote and support law reform.
 To deal with and dispose of any matter which may be referred to it by a State Bar Council.
 To promote legal education and to lay down standards of legal education. This is done in
consultation with the Universities in India imparting legal education and the State Bar Councils.
 To recognize Universities whose degree in law shall be a qualification for enrolment as an
advocate? The Bar Council of India visits and inspects Universities, or directs the State Bar
Councils to visit and inspect Universities for this purpose.
 To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers
of legal interest.
 To organize legal aid to the poor.
 To recognize on a reciprocal basis, the foreign qualifications in law obtained outside India for the
purpose of admission as an advocate in India.
 To manage and invest the funds of the Bar Council.
 To provide for the election of its members who shall run the Bar Councils.

The Bar Council of India can also receive grants, donations, and gifts for any of these purposes.
With respect to the point 6, (stated above) the Supreme Court has made it clear that the question
of importing legal education is entrusted to the Universities in India and not to the Bar Council
of India. All that the Bar Council can do is to suggest ways and means to promote suck legal
education to be imparted by the Universities and for that purpose it may lay down the standards
of education. Sections 7 do not entitle the Bar Council itself to frame rules laying down pre-
enrolment as Advocate.
In RaveendranathNaik v. Bar Council of India, the resolution passed by the Bar Council
of India directing advocates not to participate in any programme organized by the Legal Services
Authorities in any LokAdalat or any legal aid programme has been held illegal and void. In Ex-
Captain Harish Uppal v. Union of India, the court held that section 7 provides in respect of the
functions of the Bar Council of India, but none of its functions mentioned in section 7 authorizes
it to paralyze the working of the Courts. On the contrary it is enjoined with a duty to lay down
standards of professional conduct and etiquette for advocates. No Bar Council can ever consider
giving a call of strike or a call of boycott. In case any association calls for a strike or boycott the
concerned State Bar Council of India must immediately take disciplinary action against the
advocates who gives a call for a strike. It is the duty of every advocate to ignore a call of strike or
boycott.

Committees of Bar Council of India

The Bar Council of India has various committees that make recommendations to the Council.
The members of these committees are elected from amongst the members of the Council. The
Advocates Act mandates the creation of a Disciplinary Committee (under section 9), a Legal
Education Committee, and an Executive Committee (under section 10). Chapter III of the Bar
Council of India Rules permit the Council to appoint from amongst its members, one or more
committees in addition to those specified in the Act. The Council can delegate powers, duties,
and functions to these committees. The term of the members of the committees of the Council
has been specified in Chapter III of the Bar Council of India Rules. A different term can be
specified at the time of election.
 Legal Education Committee

The Legal Education Committee consists of five members of the Bar Council of India and five
coopted members to represent the judiciary, the Law Ministry, the University Grants
Commission, and academia. This committee makes recommendations to the Bar Council of India
on all matters pertaining to legal education in the country. The committee elects its own
Chairman.

The Legal Education Committee has the power:

 To make recommendations to the Council for laying down the standards of legal education for
Universities.

 To visit and inspect Universities and report the results to the Council.

 To recommend to the Council the conditions subject to which foreign qualification in law
obtained by persons other than citizens of India may be recognized.

 To recommend to the Council for recognition of any degree in law of any University in the
territory of India.

 To recommend the discontinuance of recognition of any University already made by the Council.

B.-ROLE OF THE BAR IN THE DEVELOPMENT OF LEGAL

EDUCATION IN INDIA

Introduction
Bar Council of India (hereafter called 'BCI') have indeed played a very important role in the
development of Legal Education in India. BCI is pioneer for structuring the Legal Education
System in India as it exists today. The BCI was the first to lay down the standards in terms of
system, classroom teaching, practical training and skill, court visits, moot courts, legal aid work,
and other practical training programs for law students.

It was BCI's bold and creative decision to replace the three year course with the five years
integrated course and sponsor the first National Law School in Bangalore. The outstanding
success of the National Law School led to the setting up more such schools similar to the
Bangalore Model. Today there are 11 National Law Schools in the country. This had indeed
given a special impact to Indian legal education.

However, the pace of change towards improving the quality of Legal Education was
watered down by the very same BCI. Among the many complaints they have failed to improve
the quality of Legal Education in the remaining 749 law colleges in India. Further they have not
been able to maintain the same standards in all the 11 National Law Schools. Most of these
National Law Schools are due for second generation reforms. These National Law Schools are
already on a downward spiral and it’s imperative that these institutions of excellence be
preserved.
In the present age the aim of legal education has changed. BCI has failed to implement the new
changes required in the Legal Education field. BCI is still fixated with the view that the sole
purpose of Legal Education is to generate practicing lawyers. The aim of Legal Education should
be to create lawyers who are comfortable and skilled in dealing with the differing legal systems
and at the same time remaining strong in one's own national legal system.
An immediate challenge is to improve the quality of legal education in a vast majority of
law schools in the country. A significant focus should be on developing the curriculum so that it
meets the contemporary demands for legal services, recruitment of competent and committed
faculty, establishing research and training centers, necessary financial support from the state, and
creating necessary infrastructure, especially a well-endowed library.
 Role Allocated to BCI under the Advocates Act 1961

Under the Advocates Act, 1961 the role allocated to BCI was limited to promote legal education
and to lay down minimum standards necessary for those students who would ultimately enter the
legal profession to practice in the courts.
According to the Supreme Court in India, in O.N Mohindroo v. BCI[1] and Bar Council
of UP[2] the subject covered by the Advocates Act, 1961 is preferable to Entries 77 and 78 in
List I of Schedule VII of the Constitution of India. These two entries deal, among others, with
the subject: persons entitled to practice before the Supreme Court (Entry 77) and persons entitled
to practice before the High Court (Entry 78).
Under section 7(1) (h) of the Advocates Act, the BCI has been entrusted, as stated above, with a
limited role of “promoting legal education and laying down practice”. Section 7(1) (h) requires
the BCI to “consult the universities for the purpose of laying down these standards in legal
education”. Section 7(1) (i) of the Act enables the BCI to grant recognition to universities whose
law degrees shall be sufficient qualification for enrolment as an advocate. The BCI, may for this
purpose, visit and inspect the universities concerned whose degrees in law may be recognized for
the purpose of enrolment of law graduates as lawyers. Similar power is conferred by Section 6(1)
(gg) of the Act on the State Bar Councils in regard to inspection. Section A of Part IV of the
Rules made by the BCI deals with the five years course. Section B deals with the three years
course and Section C deals with inspection.

Indian Legal Education in the Global Perspective

About fifty years ago the concept was that the law schools are meant to produce graduates who
would mostly come to the bar, while a few may go into law teaching. The Advocates Act, 1961
was enacted to achieve the said objective, namely to prescribe minimum standards for entry into
professional practice 'in the courts' as stated above. But during this period and more particularly
after liberalization in the year 1991, the entire concept of legal education has changed.
Today, legal education has to meet not only the requirements of the bar and the new
needs of trade, commerce and industry but also the requirements of globalization. New subjects
with international dimensions have come into legal education. There is also an enormous need
for non-practicing law graduates in trade and commerce. It is also necessary to allow engineers,
chartered accountants, scientists and doctors to qualify in law for non-practicing purposes.
There is a need for a new regulatory mechanism which will cater to the above mentioned present
and future needs of the country. The BCI may of course still deal with the minimum standards of
Legal Education for the purpose of entry into bar.
Therefore, among the various type of Legal Education, we can identify the type which is
necessary for those who practice law, the type which prepares them to become researchers and
teachers, the type which deals exclusively with academic subjects of substantive law, the type
which deals with public legal education or Para legal education, the type which prepares law
graduates to deal with legal, regulatory and ethical issues in active sectors of domestic and
international business and industry, and finally, the type which professionals in engineering,
medicine, management and social work may require.

Can BCI Be Dethroned?

BCI was only conferred with limited powers but apparently it has been exercising more powers
under subordinate legislation. It appears that BCI can be dethroned. In light of the concept
behind the Advocates Act, 1961, as stated above, very limited powers were conferred on the
BCI. But, during the last few decades, in as much as there was no other regulator to take care of
emerging needs and trends, the BCI has been dealing with all aspects of legal education under
Resolutions, Rules and Regulations instead of limiting itself to the maintenance of minimum
standards of legal education for the purpose of entry into the bar.
 In the last three decades, the BCI, by virtue of its Resolutions, Rules and Regulations, has
taken over the entire body of powers in relation to legal education which is not he intention of
the Advocates Act, 1961.

The BCI, infer its power to grant recognition to universities for the purpose of enrolment of law
graduates has been also dealing with inspections, affiliation or disaffiliation of various law
colleges, granting annual affiliation or permanent affiliation etc. It has also been laying down
conditions for establishments of law schools, buildings, appointments of faculty, and a variety of
other matters in which the faculty and other players have not been allowed to have any effective
role. These powers were extended by the BCI under Resolutions, Rules and Regulations, as
stated above, though such extensions is not permitted by the Advocates' Act 1961.

Furthermore, while the statement of objects and reasons and the preamble of the
University Grants Commission Act, 1956 and of the Indian Medical Council Act, 1956 refer to
the constitution of bodies for maintain 'standards of education', there are no such words in the
Statement of Objects and Reasons and the Preamble of the Advocates Act 1961. The Act deals
with minimum standards of legal education only in the context of 'practice in courts'[3].

To conclude, no general power to lay down standards of Legal Education for all purpose
has ever been conferred on BCI by the Advocates Act 1961. Therefore the rules/ resolutions/
circulars of BCI dated 2-7-96, 21-10-97, 23-9-98, 22-12-98 etc made by way of delegated
legislation, taking over maintenance of standards, curriculum qualifications for admission and
for faculty and inspections for all purposes, is clearly outside the scope and jurisdiction of the
BCI.

The Road Ahead

- Propositions and Possible Outcomes
Domestic Needs and needs of Globalization cry for a new 'Regulator' with a global vision. The
Law Commission in its 184th Report (2002) ( Para 5.16) has pointed out that there are
revolutionary changes which have come into legal education by reason of developments in
information, communication, transport technologies, intellectual property, corporate law, cyber
law, human rights, ADR, international business, comparative taxation laws, space laws,
environmental laws etc. And that: the very nature of law, legal institutions and law practice are in
the midst of a paradigm shift.
The aim of transnational legal education is not to create individuals who can “practice”
law in a number of jurisdictions. Although graduates of such a program may well wish to do so,
such ability should not be seen as an objective in itself, but merely as an incidental result. Our
Legal Education must help students specialize in international trade practices, comparative law,
conflict of laws, international human rights law, environmental law, gender justice, space law,
bio medical law, bio- ethics, international advocacy etc.; they must also acquire a general
knowledge of American, French, German, Chinese and Japanese Law. Globalization does not
merely mean addition or inclusion of new subjects in the curriculum as stated above. While that
is, no doubt, an important matter, the broader issue is to prepare the legal profession to handle
the challenges of Globalization.
Apart from expanding the curriculum, law schools have to improve their libraries; the
students and faculty must be able to draw regularly from the internet. Use of computers and
internet must be made compulsory in all law schools. So far as faculty is concerned, experience
in other countries show that video conferencing of lectures by foreign faculty can help in
overcoming the shortage of teachers having knowledge of new subjects.
The next thing that is being done elsewhere is the exchange of faculty for short periods,
wherever finance permits. Legal Education must be socially engaged. This means that legal
education programs must compulsorily expose students to the problems of poverty, social
exclusion, social change and environmental degradation through clinical legal education. Legal
aid programs and through seminars and debates that sensitize and expose students to issues of
social justice. Working with the poor through one or the other program must become a
mandatory part of the curriculum. Faculty must include individuals with interdisciplinary
training and direct experience on social issues.
 Law schools should tie up or partner with foreign law schools. For this purpose an
alliance of law school has to be brought into being so that the domestic as well as the foreign law
schools may mutually benefit and, in such alliances, the cost is to be shared. The syllabi can be
changed to have a common core of transnational curriculum. Collaboration with foreign
universities results in an award of two degrees simultaneously. While Indian industry and
business have expanded beyond national boundaries into other continents and while international
business investments into India have come to stay, the bulk of our law schools operate in
isolation and focus only on local needs and not even upon the needs of the nation, let alone
regional or international needs.
This situation that has been created can be broken only by establishing an independent
regulatory mechanism with an international vision, which can see beyond the requirements of
“entry into the bar. “In the light of the changed scenario in the last fifty years, the needs of
globalization after 1991, and the gaps and deficiencies in the existing system as referred to above
which have to be filed up, it is clear that the BCI has neither the power under the Advocates Act,
1961 nor the expertise to meet the new challenges both domestically and internationally. It is
therefore, necessary to constitute a new regulatory mechanism with a vision both of social and
international goals, to deal with all aspects of legal education.
C.-CONCLUSION

The Bar Council of India has a lot of functions vested within it, whereby exercising those
functions it can restructure and reframe the entire legal arena in the country. In fact, it can be
more predominantly envisaged that in modern times it has hardly contributed constructively in
the improvement of law in India. There are certain loopholes in the legal arena in India today
which the Bar Council must look into, in order to protect the law standard from degradation and
to maintain the same standards.

The Report of the National Knowledge Commission 2006 proposed to have an

Independent Regulatory Authority for Higher Education (IRAHE) with several Standing
Committees including one for legal education. The Advocates Act 1961 would have to be
amended accordingly.
 The new Standing Committee on Legal Education would represent all the stakeholders.
There recommendations would be taken into account by the new regulator. This way the Legal
Education would be revamped to meet the challenges of all sections of the society in the next
five decades.