BADRISH JOSHI PRN: 16010126412

CONSTITUTIONAL LAW, INTERNAL II, 2017-2018

LAW OF CRIMES, INTERNAL II, 2017-2018

SYMBIOSIS LAW SCHOOL, PUNE

BEFORE THE HON’BLE HIGH COURT OF BOMBAY

WRIT JURISDICTION W.P. NO.__/2021

IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA

ALL INDIA LAW UNIVERSITIES

ASSOCIATION........................................................................................................................................…......APPELLANTS

VERSUS

BAR COUNCIL OF INDIA…………………………………………………………………………………RESPONDENTS

CLUBBED WITH

ASSOCIATION OF MANAGEMENT OF LAW

COLLEGES...............................................................................................................................................…......APPELLANTS

V.

BAR COUNCIL OF INDIA…………………………..………………………………………………………RESPONDENTS

THE UNION OF SINDHUSTAN……………………………………………………………………RESPONDENT NO.2

SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES
OF
THE HON’BLE HIGH COURT OF BOMBAY
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Table of Contents

INDEX OF AUTHORITIES...........................................................................................................3

STATEMENT OF JURISDICTION...............................................................................................4

STATEMENT OF FACTS..............................................................................................................5

ISSUES RAISED.............................................................................................................................6

SUMMARY OF ARGUMENTS.....................................................................................................7

ISSUE I: WHETHER THE RULES OF EDUCATION 2008 IS ULTRA VIRES THE POWER CONFERRED

TO THE BAR COUNCIL OF INDIA....................................................................................................7

ISSUE II: WHETHER THE BAR COUNCIL OF INDIA LEGAL EDUCATION RULES

2021 IS ULTRA VIRES THE SECTION (7(1) H) OF THE ADVOCATE ACT, 1961..........10

PRAYER........................................................................................................................................14

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INDEX OF AUTHORITIES

Cases

Ankit Bhardwaj v. Bar Council of India 2015 SCC OnLine Mad 7004 : (2015) 6 Mad LJ 385....9

Indian Council of Legal Aid and advice v. Bar Council of India (1995) 1 SCC 732......................9

M. Santhosh Antony Vareed v. The Registrar T.N. A.L.U. 2009 (8) MLJ 1677............................9

Osmania University Teachers' Assn. v. State of A.P (1987) 4 SCC 671 : AIR 1987 SC 2034.....12

V Sudeer v. Bar Council of India (1999) 3 SCC 176 : AIR 1999 SC 1167..................................10

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STATEMENT OF JURISDICTION

The Hon’ble High Court of Bombay has jurisdiction under Article 226 of the Constitution of
India.

Article 226 of the Constitution reads as:

“Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories

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STATEMENT OF FACTS

1. In 2021, the Bar council of India a statutory body under section 4 of the Advocates Act
1961, enacted and notified the bar council of India Legal Education (Post-Graduate,
Doctoral, Executive, Vocational, Clinical and Other Continuing Education), Rules, 2021
Bar Council of India enacted these rules to regulate the Post Graduate and doctoral
Degrees on the premises of Section 7 (1)(h) of the Advocates Act 1961.
2. Association of Management of Law Colleges a legal person under the eyes of the law has
the power to sue or get sued. They are of the opinion that the Rules made by the Bar
Council are ultra vires in accordance with the power given to the Bar Council of India.
The Rule of Legal Education 2008 were challenged on the grounds of their validity by
the Association of Management of Law Colleges.
3. All India Law Universities Association also emphasized that the Bar Council of India
Legal Education (Post-Graduate, Doctoral, Executive, Vocational, Clinical and Other
Continuing Education), Rules, 2021 is a blatant example of usurpation in the power
provided to UGC, MHRD and Universities. It was further asserted that the BCI through
instant notification is trying to be a regulating authority of higher education which is
controlled by the UGC and the States.
4. BCI, clearing the stand, stated that due to the body being entrusted with a multitude of
responsibilities for upliftment of education standards and due to direct nexus between
graduation, post-graduation and research education with the quality of legal profession,
the Legal Education Rules, were fortified and enacted.
5. The Chairman of the Bar Council of India in an interview given to a National News
Channel has opined that Section 7 (1) (m) and other Sections of the Advocate Act, 1961
has provided wide power to the Bar Council of India and both the rules are intra-vires to
the power provided.
6. The Petition filed by the All India Law Universities Association had been clubbed by the
Honorable High Court of Bombay with the petition filed by the Association by the

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Management of Law Colleges in which the Association challenged the validity of Legal
Education Rules, 2008.

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ISSUES RAISED

ISSUE I: WHETHER THE RULES OF LEGAL EDUCATION 2008 IS ULTRA VIRES

THE POWER CONFERRED TO THE BAR COUNCIL OF INDIA UNDER SECTION 7(1)
(H) AND (I), 24(1) (C) (III), AND (IIIA), 49(1) (AF), (AG), AND ( D) OF THE

ADVOCATES ACT, 1961.

ISSUE II: WHETHER THE BAR COUNCIL OF INDIA LEGAL EDUCATION (POST-
GRADUATE, DOCTORAL, EXECUTIVE, VOCATIONAL, CLINICAL AND OTHER
CONTINUING EDUCATION), RULES, 2021 TO REGULATE THE POST –GRADUATE
AND DOCTORAL DEGREES IS ULTRA VIRES THE SECTION (7(1) H) OF THE

ADVOCATE ACT, 1961.

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE RULES OF LEGAL EDUCATION, 2008 ARE ULTRA

VIRES WITH REGARDS TO THE POWER CONFERRED UPON THE BAR

COUNCIL OF INDIA.

The Rules of Legal Education 2008 enacted by the Bar Council of India are ultra vires to the
powers provided to the Bar Council of India under Section 7(1)(h), and (i), 24(1)(c)(iii) and
(iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961.

[1.1] WHETHER THE BAR COUNCIL OF INDIA HAS THE POWER TO FORMULATE
RULES OF EDUCATION, 2008

The Bar Council of India is a statutory body constituted under Section 4 of the Advocates Act,

1961 (for brevity, ‘the Advocates Act’).

The Rules of Legal Education 2008 is a set of rules that aims on governing multiple aspects of
legal education and the law universities.

All law colleges in India are directed to implement these Rules and revised curriculum of law
degree courses from the academic year 2009-2010. Law Colleges will be known as ‘Centres of
Legal Education’ under these new Rules. The Bar Council of India, while framing these Rules, is
guided by the motive of improving the standard of legal education.

The act provides that:

Temporary and Regular Approval: BCI will now grant Centers of Legal Education either
"Temporary Approval" or "Regular Approval." Since it is only valid for a period of five years,
‘Regular Approval' is also a type of temporary approval. There is no such thing as 'Permanent
Approval.' By virtue of the concept of ‘Regular Approval,' all law colleges that were previously
given permanent approval will now fall into the category of ‘Regular Approval,' and will have to
apply to BCI every five years to keep their approval. Already, law schools must apply for NAAC
accreditation and re-accreditation every five years. Law colleges that have secured a temporary

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affiliation with a university (which is the case with the vast majority of law colleges) are
expected to apply to their universities on a regular basis to maintain their affiliation.
Occasionally, the college administration must deal with three distinct forms of Inspection
Committees. This is very burdensome for law schools, and it can also impact the administration's
commitment to academic matters.

Number of Subjects: The total number of subjects prescribed by BCI for the three-year LL.B.
programme was 18 until 1998. With impact from the academic year 1998–199, BCI raised the
number of subjects from 18 to 28. From 2009 to 2010, BCI increased this number from 28 to 30,
i.e. two more subjects.

Integrated Degree Course: Universities must also make some adjustments to the curriculum of
the Integrated Five-Year Degree Program. This programme must include one major subject with
six papers and two minor subjects with three papers each. Furthermore, English will be a
required subject. This course requires students to study at least one international or Indian
language.

Internships: According to the new rules, every law student must complete a minimum of 12
weeks of internship for a three-year LL.B. programme and 20 weeks for a five-year Integrated
Degree programme during their legal studies. Placement of students in NGOs, Law Firms,
Companies, Local Self Government, Trial and Appellate Advocates, and other organisations will
be needed.

Age Criteria: For general category students, the maximum age for admission to a Five Year
Integrated Degree Course is 20 years, and for SC, ST, and other backward community students,
it is 22 years. For three-year LL.B. degree courses, the age limit is 30 years for general category
students; however, the university has the authority to raise this limit to 35 years for students from
SC, ST, or a minority group.

Faculty: The rules stipulate that colleges offering only a three-year LL.B. course must employ
eight full-time lecturers, whereas colleges offering both courses must employ ten full-time
lecturers. To be eligible as a law lecturer, one must have a minimum of 55 percent in their LL.M.
degree and have passed the NET or SET test. The new Rules also provide that if there is no

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required number of full time faculty in any college, admission in the next academic year would
be suspended.

There have been various challenges to multiple sections of the Rules.

In Ankit Bhardwaj v. Bar Council of India1, Punjab and Haryana High Court has set aside
Clause-28 Schedule-III rule 11 of the Rules as follows:-

“We find that the provisions of Clause-28 of Schedule-III appended to the Rules are beyond the
legislative competence of the Bar Council of India. Clause-28 ultra vires the provisions of
Section 7(1)9h) and (l), 24(1)(c)(iii) and (iiia) or Section 49(1)(af), (ag) and (d) of the Advocates
Act. Even otherwise, the Rule is arbitrary as it introduces and invidious classification by
dividing one Class of student into two artificial and irrational classes by prescribing the
maximum age for admission to law courses”.

The Supreme Court of India considered whether the Bar Council of India is qualified to frame
the Rules prohibiting a person over the age of 45 years from enrolment as an advocate in the case
of Indian Council of Legal Aid and advice v. Bar Council of India 2. Their Lordships of Hon'ble
the Supreme Court held in Para 9 of the Judgment that a rule that exists at the pre-enrolment
stage does not fall under Clause (ah) of Section 49(1) of the Advocates Act. Therefore regulating
the age of legal education has no direct nexus with the quality of advocates enrolling in the legal
profession.

Another challenge to the Rules included the Bar Council of India's specific position before the
Hon'ble Supreme Court in the case of M. Santhosh Antony Vareed v. The Registrar Tamil Nadu
Dr. Ambedkar Law University3, was that the Rules of Legal Education, 2008, have been framed,
by following a procedure, now, without following the above said procedure, the Bar Council of
India, seemed to have accepted the report of the One Man Committee, on the grounds inter alia
that there is a violation of principles of natural justice. The procedure has been mentioned in S. 7
(h) which states that education standards have to be laid down for universities in consultation
with the universities.

1
Ankit Bhardwaj v. Bar Council of India 2015 SCC OnLine Mad 7004 : (2015) 6 Mad LJ
385
2
Indian Council of Legal Aid and advice v. Bar Council of India (1995) 1 SCC 732.
3
M. Santhosh Antony Vareed v. The Registrar Tamil Nadu Dr. Ambedkar Law
University 2009 (8) MLJ 1677
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The Petitioner humbly contends that the Rules of Legal Education 2008 enacted by the Bar
Council of India is ultra vires to the powers mentioned in Section 7 of the Advocates Act. It is
arbitrary in nature and gives the Bar absolute power over the management of colleges. There is
no denying that there should be a watchdog to keep the universities in check but that should also
be in accordance with the law.

ISSUE II: WHETHER THE BAR COUNCIL OF INDIA LEGAL EDUCATION RULES 2021
IS ULTRA VIRES THE SECTION (7(1) H) OF THE ADVOCATE ACT, 1961.

The Bar Council of India has enacted and notified the Bar Council of India Legal Education
(Post-Graduate, Doctoral, Executive, Vocational, Clinical and Other Continuing Education),
Rules, 2021 to regulate the Post -Graduate and Doctoral Degrees on the premises of Section
(7(1) h) of the Advocate Act, 1961.
Section 7(1)(h) of the Advocates Act, 1961 provides that,

“(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”

It's worth noting that clause (h) of sub-section 1 of Section 7 of the Act specifies that if the Bar
Council of India passes any new enactments relating to the promotion of legal education in the
country, a proper procedure must be followed. Before any new requirements are established,
universities and state bar councils must be consulted, which in this case was not taken care of,
making the entire process void ab initio.
It is humbly placed on record that in V Sudeer v. Bar Council of India,4 a two judge bench of
Supreme Court quashed the rules of the BCI providing for pre-enrolment training and
apprenticeship as a condition precedent for admission as advocate on roll of state bar council.
Although the promotion of legal education is one of the BCI's statutory duties, the court
acknowledged that it should be done in consultation with universities, and that the Act does not
allow the BCI to set rules requiring mandatory pre-enrolment training for new law graduates
seeking enrolment as advocates.

4
V Sudeer v. Bar Council of India (1999) 3 SCC 176 : AIR 1999 SC 1167
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In the same case, it was held that the BCI was necessary to obtain the consent of the country's
universities as well as state bar councils before promulgating any law for the promotion of legal
education and establishing its standards.

It is also argued that section 49 of the Act grants the authority to make laws. The nature and
ambit of the BCI's rule-making authority has been spelled out in detail in this section. Section
49(1)(d) should be highlighted since it reads as follows:

Section 49: General power of the Bar Council of India to make rules:

(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in
particular, such rules may prescribe-

(a) to (ae)xxx

(af) the minimum qualifications required for admission to a course of degree in law in any
recognized university;

(ag) the class or category of persons entitled to be enrolled as advocates;

(ah) (a) to (c)xxx

(d) the standards of legal education to be observed by universities in India and the inspection of
universities for that purpose.

It was adamantly argued that section 7(1) (h), which categorically specifies the functions of the
Bar Council of India, should be read with the rule-making authority, which pertains to
establishing standards of legal education. It was required that the universities in India and the
state bar councils be consulted when a new rule or an amendment to an existing rule pertaining
to legal education requirements was to be created or amended. It is founded before the Hon'ble
Court that the BCI took no such action, direct or indirect, prior to amending the impugned laws,
and that this flaw vitiates the rules.

The reading of sections 7(I)(h) and 49(1)(d) leads us to the conclusion that the universities in
India and the State Bar Councils were needed to be consulted for the purpose of promoting legal
education and establishing legal education standards, and that the consultation had to be
successful because the universities are involved in providing legal education. At the time of

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promulgation of the amendment made under Rule 2(1) of the Rules, there was no consultation
with Indian universities. As a result, we argue that the amendment made under Rule 2(1) of the
rules is unsustainable and in violation of section 7(I)(h) because it was not made with the input
of Indian universities and state bar councils. As a result, the amendment should be repealed.

[1.1] WHETHER BCI HAS THE POWER TO LAY DOWN RULES FOR A
PRACTICTIONERS’ DEGREE

The Bar Council of India is an apex body for the entire legal profession in India, constituted
under section 4 of the Advocates Act, 1961. Universities used to prescribe their own subjects for
the law review before the Advocates Act of 1961, but now they are bound by the policy of the
Bar Council of India, which can refuse to accept a law degree if it is not in accordance with the
Act. One of the duties of the Bar Council of India, according to section 7(h) of the Act, is to
promote legal education and to set standards for it in consultation with the universities in India
that provide it. The Bar Council of India, on the other hand, only has jurisdiction up to the LL.B.
level. In India, the Bar Council of India (BCI), the University Grants Commission (UGC), and
the universities are all responsible for legal education. While the Advocates Act of 1961 gives
the BCI broad authority to prescribe legal education requirements for the practise of law, the
UGC also has legislative authority to coordinate higher education standards. In addition,
each university has its own autonomy in matters which vitally affect the
improvement of legal education for example, size of enrolment, the nature of examination
system, policies concerning affiliation of the college, the nature of planning for the
development of law, provision of law libraries etc.5

Further, referring to the role of the UGC, the Supreme Court said in Osmania University
Teachers' Assn. v. State of A.P.6:

“The UGC has therefore greater role to play in shaping the academic life of the country. It shall
not falter or fail in its duty to maintain a high standard in the universities”.

5
Meenu Paul, “Legal Profession - One of the Objectives of Legal Education and the
Role of Bar Councils in Legal Education in India in 21st Century”
6
Osmania University Teachers' Assn. v. State of A.P (1987) 4 SCC 671 : AIR 1987 SC
2034.
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UGC has legislative authority when it comes to making rules for legal education.

Meanwhile, the University Grants Commission (UGC) has attached a model curriculum for
LL.B. (three-year programme after graduation), LL.B. (Hons.) (one-year course after LL.B.), and
LL.M. (two-year post-graduate programme after LL.B./LL.B. (Hons.)) to various Indian
universities that provide legal education. The BCI took the lead in putting this together. While
the Act empowers the BCI to facilitate legal education and set requirements for it in consultation
with universities and state bar councils, the UGC Act of 1956 gave the UGC a mandate. It is to
take all such steps as they find fit for the promotion and co-ordination of university education
and for the determination and maintenance of standards of teaching, evaluation and study in
universities.

BCI's influence flows from Advocates Act. Bar Council is concerned only with laying standard
for entry to enrollment. LLM is not an entry course for enrolment. LLM is not a legal
practitioner's degree. Advocates Act deals with only with degree for legal practise.

On January 4, the Rules were published in the official gazette, mandating that the post-graduate
course in law leading to a Master's degree (LL.M) be two years long and divided into four
semesters.

Foreign LL.Ms are only equivalent to LL.Ms obtained in India if they are taken after obtaining
an LL.B degree from any foreign or Indian university that is equivalent to the recognised LL.B
degree in India, according to the Rules.

It should be noted that the BCI does not have powers to regulate higher education in the field of
Law and that is the job of the University Grants Commission or of an expert body.

That the challenged rules are ex-facie unconstitutional, illegal, ultra vires, arbitrary, and based on
a completely false premise that BCI is the only body in the country to regulate the entire
spectrum of legal education.

It is respectfully submitted that the absence of the term "legal education" in New Education
Policy 2020 does not imply that BCI has authority to regulate higher legal education.
Furthermore, it is argued that BCI could not use the Advocates Act to regulate any degree,
academic or vocational programme that is not a requirement for becoming an advocate. The

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Advocates Act of 1961 gives the Bar Council of India sole authority to regulate legal education
in relation to qualifications for admission to practise law. LLM is not a requirement for
admission.

PRAYER

Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities cited,
that this Hon'ble Court may be pleased to declare/ adjudge/ hold that:

1. The Bar Council of India Legal Education (Post-Graduate, Doctoral, Executive, Vocational,
Clinical and Other Continuing Education), Rules, 2021 are ultra vires to the provisions of the
Advocates’ Act, 1961.

2. Grant an order of status quo as the Bar Council of India has not yet notified the notification

And/Or

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Equity and Good Conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

(Counsel for the Petitioner)

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