The Bar Council of India has notified the Legal Education Rules with significant changes to the existing framework, especially in postgraduate courses in law. While the rules roll back a major misstep by the University Grants Commission regarding the duration of Master of Laws, or LLM, programmes, some other provisions in the rules do not bode well for the future of legal education in the country.
Abolishing one year LLM
The one-year LLM programme was introduced by a University Grants Commission (UGC) notification in 2013. While the two-year LLM programme was to continue, a one-year LLM degree could be offered subject to some conditions regarding academic infrastructure and faculty strength. While its implementation was optional, the context of its introduction created a two-tier system. While national law schools and private universities substituted their two-year programmes with one-year programmes, most of the state universities continued with the two-year system. While this bifurcation could definitely be linked to better administrative dexterity that is beyond most state universities, it also corresponds to a desire on the part of these institutions to maximise commercial possibilities. A one-year programme was more marketable and made it easier to attract students who otherwise would not have pursued an LLM.
Introducing the one-year LLM programme was a top-down change, which did not account for the specific challenges of legal education in India. The fact remains that barring few, most law schools in India lack the strong academic culture to implement a rigorous one-year programme. However, it did not stop such institutions from offering the programme. Also, with the extremely uneven standard of legal education at the under-graduate level, many law teachers will attest that they often have to focus on basics even in postgraduate courses. Quite often, there is insufficient scope to truly engage in advanced pedagogy or specialised courses in a meaningful way, which defeats the very point of a postgraduate programme.
Combination of these factors meant that the one-year LLM programme lacked adequate academic rigour and did not provide sufficient time for the students to significantly enhance their skills. A two-year programme provides more time for both teachers and students to counter these systemic issues.
Proponents of the one-year model had argued that it will divert candidates going abroad for their LLM back to Indian institutions. This argument was based on the erroneous assumption that students prefer foreign universities primarily because of the shorter duration of the programme. The real effect was that students who would have pursued LLM abroad continued to do so. Instead, the one-year LLM programme ended up attracting a lot of casual students who wanted to pursue a postgraduate course simply because it became easier. There have always been non-serious students enrolled in LLM programmes, but a two-year requirement also functioned as a dissuasion for many who were not genuinely interested in postgraduate studies. The one-year programme facilitated a proliferation of students who quite often had no need for an LLM.
It is quite possible that with the abolition of the one-year LLM, we might witness a downturn in the number of postgraduate students. However, it also means that it will be possible to provide a more meaningful learning opportunity for serious candidates.
BCI stepping beyond its mandate
The most problematic part of the rules is the Bar Council of India (BCI) seeking to conduct a Post Graduate Common Entrance Test for admissions to the LLM programme for all universities in India. A student will not be able to take admission in any institution without clearing this test. Apart from being a terrible idea with significant downsides, its legality is also suspect.
The BCI derives its authority to regulate legal education from Section 7(1)(h) and 7(1)(i) of the Advocates Act 1961. Section 7(1)(h) empowers the BCI to promote and lay down standards for legal education in India. Section 7(1)(i) to recognize Universities whose degree in law shall be a qualification for enrolling as an advocate.
This mandate has been used by the BCI to regulate the curriculum of law schools. The mandate to lay down standards for legal education cannot be used to assume the actual administration of legal education. A regulatory body is supposed to regulate institutions operating in a domain, and not take over their functions. A similar example would be if the Telecom Regulatory Authority of India (TRAI) decided to manufacture SIM cards, or if the Reserve Bank of India (RBI) decided that banks can offer credit cards only to such customers who are directly vetted by the RBI.
Decentralisation is better
Regardless of its shaky legal foundation, the idea of a common test for LLM will stifle diversity of courses and institutional autonomy. Postgraduate courses can be designed in different ways to serve different functions. For example, Yale Law School has a clear philosophy of encouraging its LLM students to pursue a career in teaching. For this purpose, they also provide funding to LLM students who take up teaching for at least two years after passing out. On the other hand, the LLM programme at Harvard does not have a similar focus and admits a much larger cohort. This difference in design also means that the selection process in these law schools have different priorities. Postgraduate courses should not be governed by uniform selection mechanism and ought to have a decentralised structure.
Reassessing role of BCI in legal education
Such a misstep brings the question of BCI’s suitability to regulate legal education. Joining the bar is not the only objective of legal education, and students pursue a variety of career paths after getting a law degree. So, there is no merit in the BCI continuing to regulate the entire spectrum of legal education. The BCI’s position becomes more tenuous as it has started conducting All India Bar Entrance to assess the eligibility of law degree holders to practice in courts.
Its function should be confined to regulating the entry of law degree holders into advocacy in courts, and it has no locus standi to determine the standards of legal education. While the BCI’s logical claim to regulate even undergraduate legal courses is weak, its claim to regulate LLM is non-existent. The BCI has no stake in the offering of postgraduate courses, as LLM is not a relevant qualification for being enrolled as an advocate.
The BCI’s unsuitability becomes more prominent in the new rule that LLM dissertations cannot be supervised by assistant professors unless a professor/associate professor is unavailable in an area of super specialty. It is ironic that many such Assistant Professors who happen to have PhDs are eligible to supervise doctoral students, but not LLM students. Also, there is absolutely no justifiable ground for such a rule even if the faculty does not have a PhD.
While the BCI has done the right thing in discontinuing the one-year LLM, its willingness to expand its influence and control is perturbing, especially when legal education has become more diverse than before and has many more possibilities beyond a career inside courtrooms.
The author is faculty at the National Law University Odisha, and has recently completed his Fulbright Post-Doctoral Fellowship from Harvard Law School.