The Punjab and Haryana High Court lifted the Bar Council of India BCI’s 3 year moratorium on the opening of new law colleges in the country.
The court found that it does not stand the test of judicial scrutiny and is violative of Article 19 (1)(g) of the Constitution of India.
The Bar Council of India had imposed a three-year moratorium on the opening of new institutions barring national law universities if proposed by a state to ensure the improvement of the standard of existing institutions. The ones without any proper infrastructure or faculty would be closed down in the next three years.
A petition moved by the Chandigarh Educational Society had sought the BCI’s approval in 2019 for opening the Chandigarh Law College, Jhanjheri from academic session 2020-21.
BCI refused to process their application for approval citing the BCI’s 3 year moratorium for grant of approval to new law institutes, the Society turned to the High Court for relief.The BCI had demanded the deposit of money at the time of application approval but the same was declined.
Whether the BCI can legally impose moratorium qua opening of new law educational institutes, the High court asked.
In this regard the court held BCI’s 3 year moratorium was unconstitutional and contrary to the Supreme Court’s ruling in the case of TMA Pai Foundation vs. State of Karnataka.
The Court found:
“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 … Counsel for respondents No. 1 (BCI) and 2 has failed to advance any arguments much less meaningful to give legal justification in regard to resolution/decision of the BCI to impose moratorium for a period of three years for grant of approval to New Law Colleges/ Centers/ Institutes.”
The Court examined provisions under Section 7 of the Advocates’ Act, 1961 and found that the BCI did not have any power to impose a complete ban on the setting up of new legal education institutes.
“… the BCI can not 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. In TMA Pai Foundation’s case (supra), it has been held that right to establish an educational institution is a fundamental right.”
As such, the moratorium was set aside and the BCI was directed to consider the Chandigarh Educational Society’s application for approval within three months from the order’s receipt.
The Court also called on the BCI to check the standards of law graduates, opining that many new entrants to the legal profession were not up to the mark and asked BCI to consider imparting practical training to law students.
