Punjab & Haryana HC Sets Aside Moratorium Imposed By Bar Council Of India On Opening Of New Law Colleges

A Single Bench of Justice Rekha Mittal, in a verdict rendered on 4^th December 2020, held that the BCI cannot impose a complete ban on opening of new law colleges, under the pretext of regulating Legal Education.

"No doubt, the BCI can issue guidelines/circulars etc. and press for compliance thereof as well as 2008 Rules either at the grant of approval to a New College or adherence thereof by the Colleges/Institutes for Legal Education already existing throughout the country but under that pretext it can not impose a complete ban on opening of New Institutes for imparting Legal Education," the order states.

Background

The Court was hearing a writ petition filed by the Chandigarh Education Society, asking the Court to allow them to establish a new law college namely, 'Chandigarh Law College'. They further sought directions from the Court to declare the moratorium imposed by the Bar Council of India as violative of their fundamental right to practice any profession, or to carry any occupation, trade or business, under Article 19(1)(g) of the Indian Constitution.

The petitioners submitted before the Court that they had purchased land for establishing the Law College on 15.1.2018. They further stated that they aimed at starting a new college with intake of 240 students from academic session 2020-21. They also obtained a Land Use Change report (CLU), started the construction of infrastructure, and obtained affiliation from Punjabi University and a No Objection Certificate from the State Government. But, the BCI has still not granted them the necessary permission under the Legal Education Rules, 2008 to establish the law college.

The petitioner argued with vigour that the BCI had no power under Section 7(1)(h) of the Advocates Act, 1961 to ban new law colleges from being established. The petitioner contended that this Section only empowers the Council to lay down the standard of education that the law colleges have to adhere to. The Counsel for the petitioner further stated, "on one hand, BCI is not processing application of society but at the same time, the BCI made demand for deposit of money even during pendency of petition"

The Counsel for the Respondents argued that the moratorium was only imposed in the interest of improving the standards of the existing legal education institutes. The Counsel further stated, "running of educational institutions can legally be regularized by way of rules/notifications/guidelines and circulars etc."

Findings

The Court observed that the Council had failed to mention any provision of the Advocates Act which empowers it to impose a complete ban on the establishment of any new legal education institute. The Court also noted that the Council had failed to point out any law institute that had been shut down till date for non-adherence to the prescribed standard of Legal Education or circulars issued by the BCI.

"If the existing Centers of Legal Education/Law Colleges/Law Institutes have failed to comply with the guidelines and circulars issued by the BCI or BCI has failed to ensure compliance thereof by getting timely inspection reports or scheduled information etc., the BCI cannot justify its failure to ensure maintenance of standards of Legal Education by imposing complete ban on setting up of New Law Colleges, in violation of fundamental right under Article 19 (1) (g) of the Constitution of India that deals with right of citizens to practice any profession, or to carry any occupation, trade or business," held the Court.

Reliance was placed on TMA Pai Foundation v. State of Karnataka where it was held that establishing an educational institution is a fundamental right.

The Court expressed that the BCI had the authority to issue any circulars or guidelines to ensure that the law institutes or centres of legal education are adhering to certain standards, but it does not have the right to impose a complete ban on opening of new institutes for imparting legal education.

Coming to the case at hand, the Court directed the BCI to take a decision on the application submitted by the Petitioner post-haste, preferably within a period of three months.

Before parting, Justice Mittal remarked, "I would like to express that the BCI should seriously dilate on the issue of maintaining standard of legal education. Many new entrants in legal profession are not up to the mark in drafting of petitions or assisting the Court. Some of them are not confident enough to speak court language. The BCI may take steps to ensure practical training to Law students in its real meaning and sense. It may also examine of creating a portal or/and nodal agency to ensure compliance of BCI instructions, guidelines, 2008 Rules etc. by the centres of legal education."

Case Title: Chandigarh Educational Society v. Bar Council of India & Ors.

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