The legal community in India is in uproar over the recent notification issued by the Bar Council of India ( BCI ) on September 24, 2024, which has sparked concerns over its constitutionality and practicality.
Lawyers, law teachers, law students, and concerned citizens have appealed to BCI Chairman Manan Kumar Mishra to immediately withdraw the directions, describing it as arbitrary and unconstitutional.
Complete Supreme Court Judgment on GST from 2017 to 2024 with Free E-Book Access, Click here
âWe the undersigned, lawyers, law teachers, law students and other concerned citizens of India write to you to express our concern and disagreement with the contents of the Notification (BCI:D:5186/2024 (LE Circular No.13/2024) issued by the Bar Council of India ( BCI ) on 24.09.2024. We urge you to roll these back with immediate effect.
The above-mentioned notification is titled, âImplementation of Criminal Background Check System, Declaration Regarding Simultaneous Degree and/or regular Academic Programs, Employment status, Attendance Compliance, and Biometric Attendance, & Installation of CCTV cameras, in all Centers of Legal Educationâ. The BCI in its notification states that it is issuing this notification in response to judicial observations regarding the need to monitor antecedents and background of law students. BCI, however, fails to provide either the name or context of the matter in which these observations were made nor does it elaborate on the specific observations. BCI ends the notification by saying that the legal profession demands highest standards of ethics, integrity and accountability. If that is the case, then BCI should first and foremost hold itself to these standards, be transparent in its conduct, place before the public all information and at the very least hold open and public consultations before issuing notifications with such wide and serious ramifications.
Complete Supreme Court Judgment on GST from 2017 to 2024 with Free E-Book Access, Click here
At the outset, it is not clear what objective is set to be achieved through this notification. Neither is there clarity on the objectives nor is the connection between objectives and the drastic measures proposed established. BCI has not made any effort to justify proposing the measures that it has and in one sweeping notification, without considering its consequences, made its compliance mandatory with immediate effect. As such the notification is nothing but arbitrary and therefore violative of Article 14 of the Constitution.
The rule requiring law students to declare any ongoing FIR, criminal case, conviction or even acquittal before issuance of final marksheet and degree is absolutely bizarre. Why are specifically law students required to declare their criminal antecedents including an ongoing FIR? Is this requirement applicable to students of other disciplines as well? If not, then why are law students being singled out? Is there a law of the land which prohibits someone named in an FIR, an accused or even a convict from pursuing education? Many undertrials and convicts in prisons also pursue education. Under what law of the land can BCI withhold issuing degree or marksheet for not declaring criminal antecedents? Such a serious impediment in pursuit of education cannot be imposed through a mere notification by a statutory body, without the backing of a law made by Parliament. Where does BCI derive its powers to do so?
Complete Supreme Court Judgment on GST from 2017 to 2024 with Free E-Book Access, Click here
And what impact does the criminal antecedent of a person have on their legal education? Not just this, BCI expects all law colleges to leave everything aside and conduct a âthorough criminal background checkâ on each student. Again, what is the objective sought to be achieved here? This is also completely arbitrary and ultra vires the jurisdiction and powers of BCI and a wastage of time and resources of law colleges. It serves no credible purpose and therefore cannot be justified. At best, BCI can make it voluntary for students to declare their criminal antecedents, however, the failure to do so cannot result in marksheets or degrees being withheld.
The requirement for biometric attendance and CCTV surveillance are at complete odds with the post Puttaswamy jurisprudence related to right to privacy. First, it is not clear what objective is served by biometric attendance and CCTV surveillance of classrooms. Is the problem of low attendance or proxy attendance so rampant, widespread and entrenched that it requires such a grave infringement of privacy of students as well as teachers? This doesnât meet the test of proportionality as not only does BCI provide any justification, it also doesnât place on record any evidence of the extent of the problem sought to be solved and no discussion is undertaken on what lesser intrusive alternatives can be tried. In light of the law laid down in Puttaswamy and subsequent judgements, this instruction by BCI is unconstitutional and void ab initio. The BCI is also reminded that just a few days ago, the entire world observed the birth anniversary of Mahatma Gandhi. Gandhi, a barrister himself, protested a law requiring forceful collection of fingerprints of Indians and other Asians living in Transvaal, South Africa in 1906, arguing that it was humiliating and disrespectful!
Complete Supreme Court Judgment on GST from 2017 to 2024 with Free E-Book Access, Click here
It must be mentioned that as per extant attendance rules, students are well aware of the consequences of not maintaining minimum attendance, but they cannot be forced to be in the class through such measures. Most often students do not turn up due to poor infrastructure, bad teaching techniques and outdated syllabus. There are also many âfakeâ law colleges functioning right under the nose of BCI which promise a degree without the need of attending classes. This is what the BCI should be concentrating its energies on improving and addressing instead of arm twisting students into being in class. Finally, the BCI completely fails to mention any requirement by the law colleges to adopt privacy measures to keep this data secure. Who is the BCI making responsible for safety and security of the sensitive personal data so collected? Would BCI take responsibility for biometric frauds? Do all law colleges have the means and resources to even implement such a direction? This is completely misconceived and unconstitutional.
As for an undertaking by students that they are not pursuing any other degree or employment along with their course, this may be justified to ensure that law students stay committed to their education. But there could be many reasons, including some law students coming from poor backgrounds, with parents unable to afford their education, who might be undertaking part time jobs to sustain themselves and their education. No student must be penalized for being poor and for trying to acquire education and improve their lives through sheer grit and struggle. In such cases, as long as students are able to meet the minimum attendance criterion and pass all their exams, their degrees must not and cannot be withheld only because they need to work along with their education to make ends meet and did not want to disclose the same to their law college.
Complete Supreme Court Judgment on GST from 2017 to 2024 with Free E-Book Access, Click here
In conclusion, the entire notification is seriously flawed, illegal, impractical, unconstitutional and cannot be sustained. BCI must immediately withdraw the notification. And then BCI is earnestly advised to hold open and public consultations to come up with feasible, practical and legal rules to address real and credible problems. Issuing such problematic notifications to deal with make believe problems cannot be permitted in a democratic polity governed by rule of law.
We sincerely hope that good sense will prevail and BCI will take back the notification with immediate effect.â
The letter to BCI stated.
The notification titled âImplementation of Criminal Background Check System, Declaration Regarding Simultaneous Degree and/or Regular Academic Programs, Employment Status, Attendance Compliance, and Biometric Attendance & Installation of CCTV Cameras in Law Collegesâ has raised eyebrows within the legal fraternity. The notification mandates law colleges to conduct criminal background checks on students, implement biometric attendance, and install CCTV cameras on campuses, measures that critics argue are unjustified and overreaching.
Complete Supreme Court Judgment on GST from 2017 to 2024 with Free E-Book Access, Click here
The BCI claimed that the measures were prompted by judicial observations concerning the need for monitoring law students’ backgrounds. However, the notification failed to provide specific details of the observations or the judicial matter in question. The legal community has criticized the lack of transparency and the BCI’s failure to provide any logical justification for imposing such drastic measures.
Critics have called the rule requiring law students to declare any ongoing FIR, criminal case, conviction, or acquittal before receiving their final marksheets and degrees as âbizarreâ and âarbitraryâ. They pointed out that no similar requirement exists for students in other disciplines, questioning why law students are being singled out. Such a serious impediment in pursuing education cannot be imposed by a mere notification from a statutory body, especially without the backing of a law enacted by Parliament.
Complete Supreme Court Judgment on GST from 2017 to 2024 with Free E-Book Access, Click here
The notification has also attracted criticism for its requirement for biometric attendance and CCTV surveillance, which many have argued violates privacy rights under the Supreme Courtâs ruling in the Puttaswamy judgment. Critics argued that there is no evidence or justification to support the need for such surveillance, adding that the measures fail the test of proportionality and serve no credible purpose.
The legal community has urged the BCI to reconsider and withdraw the notification, stating that it is impractical, unconstitutional, and detrimental to legal education. They also demanded that any future measures must be discussed in open and public consultations to ensure transparency and protect the rights of law students across the country.
Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
