Nation-wide Strike by Lawyers – Why?

It is quite natural for a lawyer (more particularly, a trial court lawyer) to go on for a boycott/strike without even knowing the reason for it. Most of us have been there and done that before.

Bar Council of India has called for nation-wide strike on July 11 and 12 to oppose the government’s proposed Higher Education and Research Bill (HER) Bill, 2011 and quite naturally, many lawyers have no idea what this Bill is all about.

Though BCI is also opposing National Accreditation Regulatory Authority for Higher Educational Institutions Bill 2010, the Foreign Educational Institutions (Regulation of Entry and Operations) Bill and the National Law Schools Bill, it’s main concern is that of HER Bill, 2011.

Besides the argument on validity of this strike, which is altogether a different topic, here is a quick overview of what is this HER Bill, what problem BCI has with this bill and why BCI is wrong:

(1) What is HER Bill?

Like most of the new-age Acts, this bill too has quite an attractive objective, which is,

“to promote autonomy of higher educational institutions and universities for free pursuit of knowledge and innovation and to provide for comprehensive and integrated growth of higher education and research keeping in view the global standards of educational and research practices and for that purpose to establish the National Commission for Higher Education and Research to facilitate determination, coordination, maintenance and continued enhancement of standards of higher education and research including university education, vocational, technical, professional and medical education other than agricultural education and for
matters connected therewith or incidental thereto.”

To summarize this bill which is yet to be enacted:

  • It shall apply to all the higher educational institutions and universities other than those institutions engaged mainly in agricultural education and research
  • It will set up a National Commission for Higher Education and Research
  • It will further establish (a) General Council, (b) Collegium of Scholars, (c) Board for Research Promotion and Innovation (BRPI), (d) Higher Education Financial Services Corporation (HEFSC)
  • The Commission members (7 including Chairman) will be appointed by President on the recommendation of Selection Committee. Prime Minister is the Chairman of Selection Committee and other members mostly from the part of Government.
  • General Council will have more members, apart from the Commission members, like, head of the professional bodies, university vice chancellors and etc.
  • Collegium of Scholars will consist of thirty Fellows, being persons of integrity and eminence in higher education and research
  • BRPI will have a Chairperson and 12 other members (prominent academia) to be appointed by the Commission
  • HEFSC will be act as a body corporate, with power to acquire, hold and dispose of property, both movable and immovable. The board of directors would be from the Commission, General Council and few nominated persons from finance and other departments.

What will this Commission do?

The Commission, in consultation with the General Council and other bodies concerned, take all such steps as it may think fit for the promotion and coordination of higher education and research. It covers a vast area with respect to higher education and research, wherein virtually nothing is left out of its ambit. Most importantly, grant of approval to educational institutions.

What will this General Council do?

The General Council shall make recommendations and advise the Commission in the exercise of its functions.

What will this Collegium of Scholars do?

The Collegium will basically recommend to the Commission on various issues including vision on the emerging trends in different
fields of knowledge

What will BRPI do?

The Board will recommend measures to the Commission to promote and facilitate research in the fields of knowledge in higher educational institution

(2) What problem BCI has with this bill?

The plain reading of the bill would have given a clear indication of what possible problem Bar Council of India can have with this bill. Simple and precise. Their territory is being conquered. They surely don’t want ‘legal education’ to be within the ambit of this particular bill.

BCI’s issues are:

(a)  This bill is aimed at usurping the BCI’s control over legal education.

(b) It affects the independence of Legal Education and Judiciary (!)

(c) This proposed bill is unconstitutional

(3) Why BCI is wrong?

(a) It is wrong to say HER Bill will take away all BCI’s powers [See S.83(2) of the bill]

“Provided that nothing contained in this section shall be construed as restricting the power of the Bar Council of India to specify standards of higher education concerning practice in courts’

(b) BCI head will anyways preside over the Expert Advisory Group concerning legal education, which would be appointed by General Council [See S.27(4) of the bill]

(c) BCI has been defined as ‘Professional Body’ and listed foremost in the First Schedule to the bill and most of the places, their role concerning the legal education is specified.

(d) One cannot simply rule out benefits HER Bill might provide to legal education. For the first time in the history of Indian higher education and research field, there is some level of consortium is being attempted.

(e) BCI opposing the bill is more of an ego clash than anything else. It must have hurt the most when bill takes away the right to sanction educational institutions (negotiations on sharing of these powers are still possible).

(f) BCI is talking about ‘independence of legal education’, which is just a misnomer and never prevailed.

(g) About this bill being unconstitutional, sorry, I fail to see their point.

(h) Legal education needs a revival big time. BCI is not doing it. At least, not quite enough.

One of the bar members reportedly said in an interview that, “the state and national bar council set up as a result have played a pivotal role in ensuring and upholding quality of legal education”. Am not quite surprised. He said ‘upholding quality‘.

But, not for a moment I am suggesting that, the new set up would do wonders. Yet, the bill is promising and it is certainly worth trying. It would be a stupid decision to remove legal education from the ambit of this bill just to regret it later.