Abstract
Every field of higher education, including the arts, social sciences, physical sciences, technology, and law, as well as every form of education, whether general, professional, or technical, has something to ‘take’ from the National Education Policy (NEP) 2020. This is the first time in the history of the National Education Policy that legal education is referenced within the context of higher education. All stand-alone universities, such as National Law Universities, must be turned into multidisciplinary universities under Policy 2020. By 2030, all institutions that provide professional or general education will strive to organically evolve into institutions that provide both fluidly and integrated manner. The Policy called for the complete abolition of the affiliation system and the conversion of affiliated institutions into either constituent colleges of the university under the direct management and control of the university or autonomous multidisciplinary degree conferring colleges, or for a few affiliated colleges to be bundled together through mergers and acquisitions and then converted into either autonomous institutions or universities, and affiliated colleges in phase manner will be converted into autonomous colleges. Under the NEP 2020, there will be a single regulatory structure for all forms of education, with the exception of medical and legal education. However, the Policy did not establish or mention a distinct regulator for law and medicine. Whereas the National Medical Commission (NMC), the successor to the Medical Council of India, was established to regulate medical education, the Bar Council of India (BCI) was established by the Advocates Act solely to establish a professional body for practising advocates (Bar Council of India and States). If the BCI is to function as a regulatory body for legal education, it must walk a mile in order to implement the NEP 2020 for all stages of legal education, undergraduate, postgraduate, and research studies, as well as for all types of education, academic, professional, and clinical skill learning. Assuming that the deadline specified in the NEP 2020 is final and that a new shape of education is required under the NEP, BCI will need to emphasize what needs to be done and then how such changes in all levels can be accomplished within the timeframe!
Introduction
The National Education Policy 2020 (hereinafter referred to as NEP2020, or the Policy) 1 establishes a comprehensive programme of radical change for the entire educational system in the country, from general education to technology education, from professional education to vocational education, and at all levels from pre-primary to post-doctoral research. The admirable goal is to elevate India’s education system from the last bench in a global classroom to the first bench during the next 10 to 20 years. The Policy echoed many sets of ‘often spoken’ vocabulary used in past Education and Technology Committees to advocate for a significant revamp of the country’s education system. The article examines what authorities in the legal profession should do if such a comprehensive revamp of legal education, including professional legal education, is required to be completed within the scope of NEP 2020 and on time! For nearly 150 years, the institutional framework of higher education in India has remained mostly intact since the introduction of the British model. Postgraduate and research studies were conducted at universities, while undergraduate studies were conducted at university-affiliated colleges. The NEP 2020 mandated that all universities be multidisciplinary and that the affiliation system be eliminated. By 2030, the suggested re-structuring schedule must be completed. 2 Because professional legal education is delivered through higher educational institutions and is also considered a component of general education, higher educational institution restructuring will have a significant impact on professional legal education as well. This article will examine four reform schedules in order to illustrate how such reforms will be implemented in a planned manner. The National Policy proposed a 360-degree reform that included the following: (a) a new regulatory framework under a single umbrella organization; (b) structural reforms to the higher education delivery system; (c) content reforms to make academic courses more multi- disciplinary; multi-skill learning; and (d) rethinking the purpose of higher education and reforming the teaching–learning methodology and procedure. The mission is impossible, as there is no work schedule or timeline in place except for the final report completion of the assignment to be shown by 2030 and the ultimate outcome to be attained by 2035 and reported in the review report by 2040.
Common Framework for Regulation
A Single Regulatory System
The Policy correctly stated that ‘for decades, higher education regulation has been excessively heavy-handed; much too much has been attempted to be regulated with far too little benefit’. The regulatory system’s mechanical and disempowering nature has created a slew of fundamental difficulties, including a high concentration of power in a few entities, conflict of interest among these agencies, and a concomitant lack of accountability. The regulatory framework requires a fundamental revamp in order to ‘re-energize and sustain the higher education industry’. It has been proposed that the entire system of higher education be consolidated under a single umbrella entity called the Higher Education Commission of India (HECI) 3 , with four-dimensional responsibilities for regulation, accreditation, grant distribution, and academic standard setting. There will be four verticals, one for each of these four duties, each working as an autonomous body under the Commission’s roof. These include the National Higher Education Regulatory Council (NHERC) for regulatory purposes, the National Accreditation Council (NAC) for institution accreditation, the Higher Education Grants Council (HEGC) for grant distribution, and the General Education Council (GEC) for academic standards development.
Legal and Medical Education have been Excluded
Only legal and medical education are exempt from the ‘single point regulator for higher education, including teacher education’. 4 There is some debate about whether these two fields of education—law and medical—should be included in the HECI. The reason for this is that the exception for law and medicine education is indicated in paragraph 18.3 of the NEP, 5 which established the NHERC. As a result, it is evident that NHERC has no jurisdiction over legal or medical education. However, all other types of education, including general, technical, vocational, professional, and teacher training, would be regulated by this one body, the NHERC. There is no mention of law or medicine being excluded from the establishment of a ‘single umbrella institution’ in the name of the HECI in para 18.2. Similarly, there is no mention of these two learned and noble professional educations being excluded in the accreditation and distribution of funding by the NAC and HEGC, respectively. However, in the case of the GEC, it has been stated that all professional councils such as the Agricultural Council (ICAR), the Veterinary Council (VCI), the National Council for Teacher Education, the Council of Architecture, and the National Council for Vocational Education (NCVET) will play a critical role and will be invited to join the GEC. The BCI and the Indian Medical Commission have been meticulously omitted from the list. Likewise, the Dental Council, the Nursing Council, the Pharmacy Council, and other health-related professional organizations. NEP 2020 spared no words for these councils either. It is intended that the Medical Commission will oversee these professional bodies while allowing for autonomy in the running of the councils for the professions they represent. This, however, is not the subject of this essay. Legal education encompasses a considerably broader range of concepts than professional legal education. According to NEP, the single regulatory council, NHERC, must exclude legal education, implying that all education in legal areas, regardless of whether undergraduate, postgraduate, or research programmes involved, shall stay outside the regulatory scope of both NHERC and GEC. This form of exclusionary clause will confront numerous difficulties, which is described further in detail .
Structural Reforms
Structural Change in Educational Institutions
As of 2021, the higher education system was served by 54 central universities, 444 state universities, 126 deemed universities, and 403 private universities (however, we believe that a university is a public institution established by statute that may be sponsored by the state/public body or a private enterprise; thus, there is no such thing as a private university). By and large, the 444 state institutions (some of which were later designated as central universities) are affiliating universities. 6 In 2019, the country had over 42,000 connected colleges, forming one of the largest chains of higher education in the country. According to the Yashpal Committee, the cause for the decline in educational standards is that universities have neglected undergraduate programmes while maintaining the same with affiliated institutions without serious regard for quality control and standard maintenance. All of the UGC’s requirements remained unnoticed by university officials. Undergraduate studies, which form the bedrock of higher education, have been utterly neglected, with little effort made to update and revise the curriculum and little oversight of undergraduate affiliated colleges and quality control. In 2017, 306 central, state, private, and deemed to be universities, as well as 1,376 connected government and privately run colleges of state universities, provided professional legal education. By the time this article is published, the total number of institutions may exceed 2,000. Among the universities are 23 National Law Universities. Certain states, such as Karnataka and Tamil Nadu, have established an exclusive university to consolidate all affiliated colleges into a single law school. NEP 2020 recommended that the affiliation system be abolished entirely, and universities be restructured as well. On the basis of the affiliating universities’ complete neglect of the undergraduate programme, the entire chain of higher education, which was formerly one of the largest chains, must now be abandoned. Naturally, all linked law colleges must likewise be reformed or closed, as universities are not permitted to affiliate with institutions that provide broad legal education. The NEP’s objective was to bring undergraduate programmes under the direct control and management of the respective university.
Restructuring of Legal Educational Institutions
The present typological category of Legal Educational Institutions known as Centres for Legal Education (CLE) under the Legal Education Rules, 2008 is as follows.
23 stand-alone National Law Universities; and a few other private universities, such as Global Law University;
University Faculty Law Schools such as Delhi Law School;
State Law Universities with exclusive power in the state to affiliate Law Colleges in the State, such as Karnataka Law University;
Affiliated Law Colleges
From 1 to 3 there were 306 CLE and rest 1,376 institutions were only affiliated colleges sponsored by state governments or by private management.
Restructuring Independent National Law Schools/Other Private Law Schools
Individual National Law Universities (NLUs) must ‘aspire to become interdisciplinary institutions that provide holistic and multidisciplinary education’. NLUs will need to organically evolve into multidisciplinary institutions that offer both professional and general education ‘in order to integrate seamlessly by 2030’. As a policy direction, NEP 2020 calls for the gradual phase-out of single-stream higher educational institutions in favour of flourishing interdisciplinary schools. The NLUs may accomplish this in one of the following ways: (a) to establish multidisciplinary academic facilities by establishing additional disciplines of study and self-developing and expanding into other general and technical disciplines awarding degrees in multiple disciplines with an emphasis on legal education; and/or (b) to acquire and take over some established affiliated colleges of other Universities offering courses in other disciplines. Naturally, such a university may have multiple locations and provide courses through out-reach centres in some situations.
NLUs must evolve into thriving interdisciplinary institutions in order to facilitate and promote high-quality multidisciplinary and cross-disciplinary teaching and research across disciplines. The Policy elaborated on the multidisciplinary dimension of education by stating that it aims to
develop well-rounded individuals with critical twenty-first century capacities in fields spanning the arts, humanities, languages, sciences, social sciences, and professional, technical, and vocational fields; an ethic of social engagement; soft skills such as communication, discussion, and debate; and rigorous specialization in a chosen field or fields.
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As a result, NLUs must build multidisciplinary academic structure requirements in order to expand their potential to offer diverse academic programmes in the liberal arts, social sciences, evidentiary sciences, and technologies. Evidence-based legal education must place a premium on ‘matters of fact’ education in order to develop the necessary knowledge and skills for the collection, collation, collaboration, and systemic presentation of evidence in a particular case. On the other hand, understanding of law enables clinical precision in the application of law in the aforementioned fact situation. Law is also a value-based science that ‘illuminates numerous Constitutional and societal principles in order to define ethical norms and ensure social, economic, and political fairness’. Thus, NLUs must have robust academic and research programmes across a range of disciplines and faculties. Each of these departments’ faculties must be sufficiently strong to introduce the variety of courses necessary by a rising society. It may establish any general or specialized programme and any degree, while the flagship course in Law will remain the primary focus.
Although NLUs are professional institutions, they must today integrate general and technological education and conduct highly specialized research on multidisciplinary professional education. Each of these NLUs, as a dominant research-based university, is required to build a variety of research centres based on local social, economic, and environmental conditions, as well as indigenous knowledge. These NLUs are required to play a leadership role in faculty development and training in general, multidisciplinary specialized legal programmes for the faculties of the state’s legal academic institutions.
This is one aspect of the game-changing initiative. The other type of institutional reform required in NLUs is to gradually transform these institutions into research-intensive universities through the development of multidisciplinary research in a variety of subjects, with a particular emphasis on social, economic, and political justice. It is worth noting that research is a relatively new subject in multidisciplinary legal study in a variety of institutional disciplines of economic law, most notably banking, insurance, and application-oriented taxes and fiscal law. Research institutes in criminal administration of justice, human rights law, and forensic evidentiary law, for example, may currently be numbered by hand. No law school makes any attempt to establish forensic science studies, as they demand specialized knowledge and investment in laboratory infrastructure. Critical analysis of decision-making legislation is a rather uncommon occurrence. NLUs must generate a large body of legal research in order to project its scope and development. However, such enlarged forms of study undertaken through research centres would illuminate new directions for the country’s public policy. These research-intensive universities must also provide high-quality instruction in emerging fields of knowledge, emphasizing the role of law in the application of artificial intelligence, robotics, or experimental innovations in professional legal education integrated with other fields of knowledge. The objective is to ‘implement best practises and embrace new technology in order to increase access to and timely delivery of justice’.
University Faculty Law Schools
Numerous central and state universities have a Law Faculty and a Law School or Department of Law. Universities shall be free to modify their policies regarding school restructuring as a multidisciplinary research or teaching-based institution. In a research-based school, the emphasis will be on research and development; however teaching programmes will be available as well. These programmes will be based on a high quality of professional legal education. In a teaching-based school, the primary focus should be on the teaching programme. However, faculty members are encouraged to conduct research and to collaborate with students on research projects. If a university is an affiliating university, some affiliated colleges may be taken over as constituent colleges or outreach centres by the affiliating university (or any other university), depending on the capabilities of the affiliating university. The university may take over as constituent college and/or outreach education centre/centres some of its well-organized and standardized affiliated colleges.
Affiliating State Universities
States such as Karnataka or Tamil Nadu that have an affiliating university under which all affiliated Law Colleges in the state are housed are required to restructure in the following manner: (a) establish a University School at the University (if not already there) and/ or associate one or two Law Colleges as constituent and/ or out-reach centres based on the strength of academic standard; (b) declaring a few strong Law Colleges as autonomous degree-conferring colleges which would develop into universities later on; (c) leading to form bunching of district-wise Law Colleges through the process of merger or amalgamation and convert these bunch institutions to develop first into degree conferral autonomous colleges and then into multidisciplinary teaching-based universities. Each of these clusters must have a minimum enrolment of 3,000 students. The work at hand would be extremely difficult, requiring the resolution of several conflicts of academic, financial, and extra-academic interests.
Affiliated Colleges
Other affiliated law colleges of various state universities may, based on their enrolment strength, size, and growth of assets, either be declared as self-governing and degree-granting autonomous law colleges or be converted into separate multidisciplinary universities through merger and acquisition and the formation of merged Boards of Management. By grouping together general, technical, and professional institutions, conversion to a multidisciplinary autonomous college or university may be facilitated. Each of these multidisciplinary universities must have a minimum of 3,000 students enrolled. These clusters of institutions will be converted into multidisciplinary universities based on academic merit and performance assessment, or they will be built first as independent degree-granting colleges and then converted into multidisciplinary universities. While grouping affiliated colleges, professional law colleges may also be grouped with general and technical colleges, allowing for organic growth of each group of colleges into a multidisciplinary university or into autonomous colleges first, and then into multidisciplinary teaching-based universities.
Additionally, it must be emphasized that such a shift cannot be accomplished in a single day. The following paragraphs summarize the procedure as stated in the Policy. ‘A staged procedure for awarding institutions graded autonomy will be devised, utilizing a transparent system of graded accrediting. Colleges will be encouraged, mentored, supported, and rewarded for gradually meeting the minimal certification standards for each level of accreditation’. The policy statement emphasized the task’s significance. For legal education and law colleges, it is BCI’s responsibility (of course, if it is the regulatory body for legal education) to work out these stages for granting autonomy to the respective affiliating university and guiding, monitoring, and providing support services via the respective affiliating university (which left to in itself would enjoy getting rid of the affiliated colleges in one stroke). BCI must prepare how it will collaborate with affiliated universities to place colleges (or clusters of colleges) on the path to achieving autonomy. The affiliation system will be phased away gradually in accordance with the graded system of accreditation. BCI may be required to establish its own autonomous accreditation organization. The accreditation board shall prioritize accrediting all associated colleges in grades, allowing linked colleges to fade out gradually. It may, however, seek assistance from NAC in this regard. Thus, by 2030, the country will have no more than public or private interdisciplinary universities and autonomous multidisciplinary degree-granting colleges. This is the model for higher education in the United States. In this system, universities must dedicate a significant amount of time to quality standardization and control.
Curriculum Restructuring
Significant Issues Confronting Contemporary Legal Education
NEP 2020 recognized the following significant issues in legal education:
Early specialization of legal education leading to fragmentation of legal education; Less development of cognitive skills of application of learning outcomes on societal problem resolution; Avoidance of domain knowledge and technologies weaken evidence based legal education; Limited access to holistic legal education based on local needs particularly in socio-economically disadvantaged areas; Limited teacher and institutional autonomy; Large affiliating universities resulting in low standards of education; Disconnected professional legal education with local language; Poor infrastructural conditions of affiliated law schools at the district and local level; Very low, if not ineffective regulatory system.
Curriculum Reform
According to NEP2020, the undergraduate programme must be sufficiently broad. It has been stated that ‘evaluation of educational approaches in undergraduate education that integrate the humanities and arts with Science, Technology, Engineering, and Mathematics (STEM) has consistently demonstrated beneficial learning outcomes, including enhanced creativity and innovation’. According to legal studies, students who study a broad range of subjects such as history, political science, economics, philosophy, psychology, logic, sociology, computer application, and mathematics in addition to languages develop higher-order thinking capacities, problem-solving abilities, team building, and communication skills. A working knowledge of the fundamentals of science is a plus. NEP2020 correctly noted that the introduction of specialized courses at the undergraduate level compartmentalizes knowledge and idea formation and makes knowledge application myopic. The NEP 2020 stated clearly that ‘curricula for legal studies must reflect sociocultural circumstances appropriately and adequately, as well as the history of legal thought, the principle of justice, the practise of jurisprudence, and other related subjects’. A law school curriculum must be multidisciplinary and holistic in nature. As previously stated, the Policy directs that ‘all schools offering professional or general education will strive to organically evolve into institutions…offering both seamlessly and integrated’. Legal education must ‘use technology that provide greater access to and timely delivery of justice’.
The initiative established the following general guidelines for curriculum reform:
Political Science/History—Constitutional Law, International Law Economics—Fiscal laws, Taxation laws, Anti-trust laws, Labour laws, Banking & Investment Law, Competition Law Commerce—Company Law, Contract law, Labour Law, Trade Law, Taxation Law, Industrial Law, Competition Law Sociology—Family Law, Labour Law, Criminal Law Engineering & Technology—Company Law, Investment Law and Industrial Law Management—Company Law, Trade Law, Human Resource Law (Labour & Industrial Law) However, BCI does not control the study of these law papers or require that these law courses be taught by academics with a background in legal education. Frequently, these papers are taught by individuals who lack an academic expertise in law. It should be mentioned that until the BCI outlawed obtaining a second degree while studying law, it was highly customary for the majority of the university’s top students in general education to take a law course as a second degree while pursuing a master’s degree in any general discipline. With such mobility through courses throughout the 1950s, 1960s, and 1970s, the development of a multidisciplinary knowledge base was extremely vibrant. However, as the years passed, the legal degree programme became geared toward people who were unable to obtain employment, as well as absentee government employees and students who were not serious about their studies and were interested in other activities. A significant percentage used to obtain admission to a law degree programme, which was readily available as a status symbol or to remain active in students’ politics. The introduction of a five-year multidisciplinary law degree programme at the undergraduate level in 1987 through the foundation of National Law University in Bangalore was perhaps the first interdisciplinary degree course. Finally now, the NEP2020 mandates that all general and professional courses be interdisciplinary, requiring general and professional education to collaborate strategically to provide synergy in general and professional education. Credit courses in legal areas and minor credit courses in allied social science and technology can be punched together under the credit system. If a five-year legal course has 240 credit courses (4 credit for a full course), 60% of those credits could be assigned to law papers and 40% to papers from other topics. This would mean that 96 credits (four credits for a full paper/course) would be allocated to papers from other subjects, resulting in 24 papers/subjects, and 144 credits would be allocated to law papers/subjects, resulting in 36 law subjects/papers. The importance of the subject in daily life, the volume of content, the amount of practical and laboratory skill learning required, and the amount of time required to transmit knowledge and skill on a specific subject within a discipline of knowledge all contribute to determining how many papers the subject requires. Whereas multidiscipline requires many disciplines to collaborate on developing a degree programme, integration or synergy refers to the proportions and knowledge contents of numerous subjects from multiple disciplines in a degree programme! This synergy or integration must have a purpose and objective. Students must be able to travel freely inside and between interdisciplinary universities via the process of earning credit courses in whatever subject/s they choose from any of the sister institutions or from outside. This would imply that universities must be autonomous in terms of course design and time allocation. It is completely dictatorial and pure arrogance of power on the part of a regulator/distributor of government fund to dictate that a Vice Chancellor who established a new design of undergraduate science degree programme over a four-year period was forced to bow out of his job! Policy 2020 intends for universities to be autonomous and to experiment with educational breakthroughs in all fields of knowledge. Allow students to select their bundle from a variety of possibilities. A few other directives in NEP 2020 for designing law courses:
Research Foundation
Two critical components of legal education are the resolution of social problems and the conduct of policy research in order to pioneer new frontiers of progress. The Policy correctly stated that ‘a robust research ecosystem is perhaps more critical than ever given the rapid changes taking place in the world today, such as climate change, population dynamics and management, biotechnology, an expanding marketplace, and the rise of machine learning and artificial intelligence’. The development of research skills in legal education is a key need of the hour, as it is only through research that mechanisms for access to timely delivery of justice will improve over time. It is consequently vital for the BCI to connect legal education and collaborate with CLEs in order to present successful project plans and reports to the National Research Foundation, which will coordinate various funding agencies for research. Case studies and project work are sure means to successful methods of teaching–learning in legal education.
Case analysis and case studies introduce students to the concept of ‘evidence-based education’, and then through research, law students learn how a myriad of laws can be used to get a conclusion, while value appreciation helps them comprehend what justice is and how it is determined. The three modes of teaching–learning law for administration of justice and policy advancement—evidence-based analytical study of ‘matters of fact’, application-based comprehension of ‘matters of law’, and appreciation-based constitutional ideals of justice—social, economic, and political research in governance as a primary product of a successful law school, in addition to producing discussion, debate, and consultations in law class.
Challenges to Bar Council of India
The First Question First
The first unresolved question is whether legal education can be regarded totally as a professional education or whether a professional body is capable of dealing with all kinds and levels of legal education, general and professional, undergraduate, postgraduate, and research studies! This is a matter for the Government to address, not the BCI. However, if the BCI is asked to take on the task (as has been suggested in recent years for the BCI to determine the master’s degree standard in law), can it do so ethically? If BCI is forced to make a decision, what would constitute the lakshman rekha, this far and no further? Should BCI stress that it is just concerned with the degree in law (second undergraduate degree in India)? Can powers that have not been expressly assigned in the Act be assumed by rules?
Limited Mandate but Unlimited Demand
The Advocates Act 1961 provides a very limited scope for the Bar Council of India to care for only professional legal education in the form of a degree in law. Section 24 stipulates that a three year law degree is the uniform requirement for entry in to the profession and Section 7(1)provides three powers to BCI for that purpose (a) to lay down standards of legal education in consultation with universities (Sec 7(1)(h); (b) to recognize universities whose degree in law shall be qualification for enrolment (Sec. 7(1)(i) and (c) inspect universities for that purpose (Sec. 7(1)(i). The Act has no statement giving any power to BCI in case of (a) universities running law courses for degrees not intended to be the qualification for enrolment; (b) post graduate legal education and (d) research studies in law and the degree related thereto. In India degrees can be conferred by universities, and universities alone. Since Section 24 requires only a degree in law (The Act does not prescribe the nature of the degree, postgraduate or undergraduate) to enrol in the list of advocates to practice law, BCI cannot either itself run a law course in an institution run by it (not being a University) or by any other authority since section 24 prescribed that passing of a degree in law over a period of three years would be a primary uniform academic condition for enrolment. With such limited prescription it would be a challenge how will BCI function as the regulator for entire legal education, undergraduate, postgraduate, research studies and both for general and professional education!
BCI not Intended to be Regulator
Regulatory parameter has been expanded and explained in the NEP document thus (para 18.3) ‘to regulate in a ‘light but tight’ and facilitative manner, meaning that a few important matters particularly financial probity, good governance, and full online and off-line public disclosure of all finances, audits, procedures, infrastructure, faculty/staff, courses and educational outcomes will be very effectively regulated’. The present statutory framework under the Advocates Act has a very limited scope and object laid down by the Act. The Act only aimed for establishing the Bar Council as the autonomous professional body at the State and All India level. One may critically review the statement of objects and reasons placed before the Parliament while passing of the Advocates Act, 1961. These objects are as follows: (a) To have a common roll for advocates; (b) To integrate all classified legal professionals into a common legal professional class of advocates; (c) To prescribe a uniform qualification for admission to the professional Advocates; (d) To introduce the merit-based classification of senior advocates and advocates and (e) To create the autonomous bodies of Bar Council of India and State Bar Councils. So, to come up to be the type of a regulator NEP envisaged and prescribed, would be a stupendous task and very uncharacteristic to the BCI.
The Advocates Act provides the council a very limited regulatory power for the profession in the present diarchy system, UGC for inspecting for financial grants and BCI to inspect for approving the degree for enrolment in the profession. None of these bodies are made to regulate universities and colleges for legal education. The responsibility is if not fungible, not to provide grants and if unable to for the standard of education not to recognize the degree for enrolment, respectively. To be just and honest this the jurisdiction of these two institutions. BCI has no financial power to generate funds for regularly funding law academies. So, grants to be used to arm twist for enforcing standards cannot be exercised. Nothing has been suggested either in the NEP about the BCI to function as the regulator or for any separate bodies to be established. It only stipulated that medical and legal education is excluded from the jurisdiction of the common and single regulatory body, NHERC. Obviously then it would be really challenging to BCI to convert itself as a regulator of entire legal education, a nearly impossible task.
The Withering of Law Colleges
With the elimination of the affiliation system, there will be only multidisciplinary universities and autonomous degree granting colleges in the near future. As a result, the current ‘century-old legal education system’, with its construction of Law Colleges, may have to be phased out in the near future. Universities and autonomous institutions shall be governed by a single regulatory agency, the Higher Education Commission (HIC) NHERC. Legal education may be conducted in a variety of various institutions as part of an integrated educational system. How would BCI then regulate a portion of education that falls within the category of ‘legal education’ in a mild yet effective manner? It is well established that multi-regulatory systems fail as a result of confusion, uncertainty, gaps, and overlap. BCI may implement its restrictions in one of two ways.
BCI may stipulate that each university or autonomous degree-granting college that wishes to provide a law course must establish a distinct Law Department dedicated to offering law courses leading to a law degree. The BCI can then prescribe the minimum requirements for class rooms, libraries, moot court rooms, legal aid and advisory clinics, and the number of teaching staff required in the Law department, failing which the university will automatically lose recognition of the degree and will be unable to admit new batches prospectively. Automatic trigger off would be administered based on self-reporting and annual verification of compliance. However, it is worth noting that law schools are also expected to be multidisciplinary. Thus, law students would be needed to select additional general and technology courses with required credits from other departments and present those credits to the Law department for final transcription of the degree or certificate.
BCI has the authority to oversee only professional degree programmes offered by interdisciplinary universities and autonomous institutions that award their own degrees.
BCI’s role is to ensure that the university/autonomous college are capable of running such professional courses with the necessary facilities and teachers and other staff. What about mandatory law courses for non-legal-professional degree programmes? The situation of having an autonomous university/college focusing on legal education and numerous other departments of general and technological education with the ability to operate other courses may not work out in general. This may be possible for one or two schools in a state with a minimum of 3000 students, as specified by NEP.
Accreditation by the NAC is required of all universities and colleges. Thus, BCI may have a separate accreditation system for all universities’ legal education departments. Similarly, higher education shall have a single authority, namely, HEGC. Since legal education remains with the framework of a University, legal education shall also be funded by HEGC in the similar manner as other disciplines of the University education are to be funded. However, the Bar Council has been excluded from the GEC. Thus, a distinct National Higher Education Qualification Framework (NHEQF). BCI may also prescribe alongside the National Skill Qualification Framework (NSQF) for legal practitioners and enforce the same within the framework of professional skill and care of utmost good faith on the job of the client! However, can BCI build such a structure in the absence of a legislative mandate and authority?
A constraint of BCI is its limited scope. Reference of legal education has come incidentally in the scope of section 7 of the Act. Naturally, the current framework precludes BCI from acting as a competent academic regulating agency with the authority to establish standards for non-professional legal academic courses. With its current statutory structure, BCI will find it exceedingly difficult, if not impossible, to ensure that such criteria, even if mandated for all courses, such as postgraduate and research studies in law, are really followed by universities/colleges! Due to the weight of legal education in its entirety, including undergraduate, postgraduate, and research studies, BCI may fail and receive a bad reputation for things for which BCI is not accountable, while those who are truly defaulters may escape!
Conclusion
Corporate Strategy and Move
Many academics believe that NEP 2020 has facilitated private entities entering the education business directly through corporate moves such as mergers, take-overs, and acquisitions of small, affiliated colleges in order to consolidate them and operate an autonomous degree conferring college or university. The state may provide assistance to start-ups, particularly when education has been designated as a greenfield sector by the government for the purpose of attracting private investment! Except for those that are large and formed through various religious projects, the majority of affiliated colleges, especially the Law Colleges are administered by tiny private ventures. Thus, bringing in large private industrial houses to invest in education is unlikely to be opposed. Those who have been ardent proponents of state initiatives and have a seat on the left of the economic spectrum are now silent on the subject of changing education into a trade-related service! Indian education has advanced significantly in recent years, allowing organized large industrial and commercial firms to invest in higher education. NEP aimed to decouple such organization from the goal of profit, but not from the goal of generating cash to develop facilities for affiliated persons. That is a different story. This is not a topic for discussion here. If that is necessary, the BCI can scarcely intervene.
Our objective here is to suggest what BCI should do to address the issues posed by the NEP2020 in its policy pronouncements, some of which are explicitly stated and others that must be read between the lines.
The Bar Council of India has not been consulted by the Union Ministry of Education, any State, or any other national authority to prepare for such a drastic shift in the educational system affecting legal professional education, nor has it taken any suo moto efforts to prepare for the change. Unless a well-rehearsed step is taken and a prioritized action plan is established, any existing institution that is about to be replaced becomes hyperactive and abruptly announces (without making any infrastructure improvements) that anyone can take more than one course in the same or different institution during the same academic year, and that too, starting the following academic year! This demonstrates how institutions in India have harmed the education system by a lack of mind application. In a country where the cost of a single course is difficult to organize, how can a student take two/three courses concurrently? Is it prudent for undergraduate students to enrol in two/three courses during their first three years? The educational system’s flaw, particularly at the undergraduate level, is the university’s complete disregard for college education. Numerous education and technology commissions and committees have made this argument. NEP desired to ‘eradicate’ the system entirely. So, with the same affiliated system in place, can things improve if students take on increasing amounts of work and responsibility without achieving a higher level of competency in any?
Perhaps the first instance of double degree courses was in medical education, when a degree in medicine and a degree in surgery were combined. This necessitated significant investment in infrastructure and redefining the duration of education. However, integration was made easier by the fact that these degrees were in the same discipline.
Perhaps the first instance of a multidisciplinary double degree programme in law education occurred when a ‘five-year’ law study awarding a BA, LLB degree was created at the National Law School in Bangalore. However, the paradigm was adapted from the British system in this instance. The LLB programme at the undergraduate level in England combines a few general education courses, such as one or two courses in Political Science, Economics, History, Sociology, or Psychology, with seven or eight courses in the academic discipline of law. After completing this undergraduate degree, students may enrol in a one-year professional legal course at a professional college and then work as an apprentice or understudy for one year before becoming able to practise law as a solicitor or barrister. Initially, a five-year law course was proposed to integrate this style of British undergraduate legal education with their two-year professional education (one year institutional in a Profession College and another year in the profession). However, because the BCI had previously mandated through rule that the entry level qualification for the legal degree course would be a graduation in any discipline, the double degree course of BA, LLB was introduced inadvertently.
When a small number of academics advocated for a five-year or ten-semester double degree programme and argued for a first degree in any general (such as law with science or law with management) or technical discipline (such as computer application, biotechnology, or data science), legal academics were extremely uncomfortable with the introduction of the double degree course. The disagreement over the name of the double degree was so intense that when a National University began experimenting with double degrees with first degrees in Arts, Social Science, Science, and Technology, the successor Vice Chancellor directed immediately to wind down Biotechnology and Computer Science in the Technology vertical, and the Fourth Vice Chancellor shut down the entire facility of science education. The majority of legal academics, although not all, reconciled to the extent that the ‘Five-year Law Course’ was an integrated law course as launched at NLSIU, supplemented with papers from several social sciences. The outcome was obvious. The standard of the first-degree (BA) level inputs was compromised. With NEP 2020 requiring multidisciplinary courses and requiring general and professional education to collaborate to create synergy and organically evolve a holistic programme, this may mean that
programmes must be multidisciplinary, programmes must be
integrated from multiple disciplines, or a double degree course must be offered, with one major component in general and/or technology education and the other major component in legal education.
Both courses must maintain a high standard of content and there must be no compromises at any level of degree programme. A programme of education that is insufficient or poorly prepared may cause more harm than good.
The Initial Step Forward
Allow the BCI to take the initiative. The Legal Education Committee (LEC) of BCI would be wise to immediately create a Legal Education Reorganization Sub-Committee to develop a detailed plan for restructuring the CLE, debating with all stakeholders. This must be accomplished within a specified time frame and within a specified budget. Senior law professors shall now take on the duties of the LEC’s subcommittee.
Another subcommittee will be formed by LEC with some senior law faculty members to restructure the approach paper for integrating multidisciplinary double degree professional courses with a concentration on incorporating technology learning into legal education. Additionally, the subcommittee will be responsible for developing the curriculum for evidence-based legal education and determining how a new generation of faculty growth may be secured by faculty upgrading their knowledge and skills.
Finally, BCI to become the regulator for the higher education in law in its entire perspective and that too, when the separation of professional education and the general education would vanish, would require substantial amendments (if not replacement as a whole) to Advocates Act and also Educational Rules within the framework of the new statute. BCI may appoint a sub-committee for that purpose with those who understand not only what form and content of legal education the profession would require in future for its Bar and the Bench, but also what ought to be the legal educational requirement for people of the country as a whole, including academics, social workers, political leaders, parliamentarians and those who are in business or trading community. This is really a stupendous task for a professional body.
It is worthwhile to submit a comprehensive report with work-schedule and drafts on legal changes necessary on reform of the law education.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The authors received no financial support for the research, authorship and/or publication of this article.