Legal Education in the Constitution and in the Advocates Act
Chapter Five
Syllabus topic 1, "Objective of Legal Education"
Pages 17 to 20 of 543
In one line
The power to regulate legal education in India is split: incorporating a university is a State subject, coordinating and determining standards in higher education belongs exclusively to Parliament, and the profession itself is divided between Parliament and the States, with the Bar Council of India given the specific job of promoting legal education and laying down its standards.
In the wording a student can write in an exam: legal education sits at the intersection of Entry 32 of List II, Entry 26 of List III, Entries 77 and 78 of List I and Entry 66 of List I; the Advocates Act 1961 constitutes the State Bar Councils under section 3 and the Bar Council of India under section 4, and by section 7(1)(h) makes it the function of the Bar Council of India to promote legal education and to lay down standards of such education in consultation with the universities imparting it, in consultation with the State Bar Councils.
Why a student needs the constitutional map
Because every dispute in this module is a dispute about who decides. Whether a State may create universities freely, whether the Bar Council may impose a training requirement, whether the University Grants Commission or the Bar Council prescribes the syllabus: all of them are answered by locating the power.
And because the answer is genuinely divided. This is not a case where one authority obviously governs. The division is the reason chapter 110 exists.
Legal education in the constitutional scheme: the entries in the Seventh Schedule
Entry 32 of List II, the State List, covers the incorporation, regulation and winding up of corporations other than those specified in List I, and universities fall under it. So a State creates universities.
Entry 25 of List III, the Concurrent List, covers education, including technical education, medical education and universities, subject to the provisions of Entries 63 to 66 of List I. The words subject to are what matter.
Entry 66 of List I, the Union List, is coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. It belongs exclusively to Parliament.
Entry 26 of List III covers legal, medical and other professions. But Entries 77 and 78 of List I carve out of it the persons entitled to practise before the Supreme Court and before the High Courts, and those belong exclusively to Parliament.
Put together, the map is this. A State may set up a university. It may not set standards for higher education in a way that defeats Parliament's. And it may not prescribe who is entitled to practise law.
The case that settles the standards point
In Prof. Yash Pal v. State of Chhattisgarh, (2005) 5 SCC 420, decided on 11 February 2005, a Chhattisgarh Act allowed private universities to be established by notification, and a very large number were, many with no campus, no faculty and no facilities of any kind.
Legal Education in the Constitution and in the Advocates Act
The Supreme Court quashed the notifications. It held that although incorporation of a university is a State subject under Entry 32 of List II, a university is basically an institution for higher education and research, and coordination and determination of standards in such institutions is Entry 66 of List I, belonging exclusively to Parliament. Where the two overlap, Entry 66 prevails, and a State's power must be treated as restricted to that extent.
Why it matters for legal education. It is the constitutional authority behind the whole regulatory apparatus of this module. A State may create the college; it cannot decide what the degree is worth.
The other side of the divide
In Bar Council of Uttar Pradesh v. State of Uttar Pradesh, (1973) 1 SCC 261, decided on 1 December 1972, a State stamp amendment imposed stamp duty on an advocate's certificate of enrolment over and above the fee the Advocates Act fixes, and the Bar Council challenged the State's competence.
A Constitution Bench upheld the levy as a tax. It held that Parliament has exclusive power under Entries 77 and 78 of List I to prescribe the qualifications and conditions for practising before the Supreme Court and the High Courts, carved out of the general power over legal and other professions in Entry 26 of List III; but a pure taxation measure falls under Entry 44 of List III, with rates prescribable by the State under Entry 63 of List II.
Read it for the division, not for the money. The tax holding matters much less now, because what may lawfully be demanded at enrolment under the Act was settled in Gaurav Kumar v. Union of India, taken up at chapter 420. What survives is the proposition that the legal profession is a divided subject in the Seventh Schedule.
The Advocates Act 1961: the bodies
Section 3 constitutes a Bar Council for each State, with the Advocate General as an ex officio member and elected advocates from the State roll.
Section 4 constitutes the Bar Council of India. Its members are the Attorney General of India and the Solicitor General of India as ex officio members, and one member elected by each State Bar Council from among its own members.
Section 5 makes every Bar Council a body corporate, with perpetual succession and a common seal, able to sue and be sued.
Section 6 lists the functions of a State Bar Council, which include admitting persons as advocates on its roll, entertaining and determining cases of misconduct, safeguarding the rights and interests of advocates, promoting and supporting law reform, and organising legal aid to the poor.
Legal Education in the Constitution and in the Advocates Act
Section 7A allows the Bar Council of India to become a member of international legal bodies, and to send delegates.
Section 7: the provision this whole module runs on
Section 7(1) lists the functions of the Bar Council of India. Three clauses concern legal education directly and a student should be able to state them.
Clause (h): to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils. This is the source of the Rules of Legal Education 2008.
Clause (i): to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate, and for that purpose to visit and inspect Universities, or to direct the State Bar Councils to do so.
Clause (ib): to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest.
Notice what clause (h) does and does not say. It empowers the Council to lay down standards. It does not define standards, and it requires consultation with the universities rather than agreement. Both gaps are the subject of the 184th Report, taken up at chapter 80.
Section 6(1) also matters for Module II. Among the functions of a State Bar Council is organising legal aid to the poor, and section 9A empowers a Bar Council to constitute legal aid committees. Legal aid began inside the profession's own statute before the Legal Services Authorities Act 1987 existed.
A worked example
A State legislature passes an Act allowing private universities to be set up by notification, and one of them opens a law department in a rented flat with two visiting teachers. Trace the powers.
Was the State competent to create the university? Yes, under Entry 32 of List II.
Can it decide that the degree qualifies a person for enrolment? No. That is section 7(1)(i) of the Advocates Act, and the Bar Council of India decides which universities are recognised for the purpose.
Can it decide what the law course must contain? No. Section 7(1)(h) gives that to the Bar Council of India, exercised through the Rules of Legal Education 2008, and Entry 66 of List I keeps standards with Parliament.
And if the State's own Act made such a university possible at all? Yash Pal answers it: the notifications were quashed, because a State's power under Entry 32 cannot be used to defeat the standards Entry 66 reserves to Parliament.
Legal Education in the Constitution and in the Advocates Act
Quick revision
Entry 32 List II: incorporation of universities, a State subject. Entry 25 List III: education, subject to Entries 63 to 66 of List I. Entry 66 List I: coordination and determination of standards in higher education, exclusively Parliament's. Entry 26 List III: legal and other professions, but Entries 77 and 78 List I carve out persons entitled to practise before the Supreme Court and High Courts.
Yash Pal v. State of Chhattisgarh, (2005) 5 SCC 420: Entry 66 prevails where it overlaps Entry 32, and university notifications made under a State Act with no standards were quashed.
Bar Council of Uttar Pradesh v. State of Uttar Pradesh, (1973) 1 SCC 261: the profession is a divided subject; Parliament has the qualifications, the State may tax.
Advocates Act: s.3 State Bar Councils, s.4 Bar Council of India, s.5 body corporate, s.6 functions of a State Bar Council including legal aid, s.7 functions of the Bar Council of India, s.7A international bodies.
Section 7(1)(h) is the source of the Rules of Legal Education 2008; 7(1)(i) is recognition of universities and inspection; 7(1)(ib) is seminars and publication.
Test yourself
1. Which entry gives Parliament exclusive power over standards in higher education, and what did Yash Pal do with it? Entry 66 of List I. Yash Pal held that where Entry 66 overlaps the State's power to incorporate universities under Entry 32 of List II, Entry 66 prevails, and quashed notifications creating private universities with no facilities.
2. Quote the substance of section 7(1)(h) of the Advocates Act 1961. It is a function of the Bar Council of India to promote legal education and to lay down standards of such education in consultation with the universities in India imparting it and the State Bar Councils.
3. What are the two weaknesses in section 7(1)(h) that later reports seized on? It does not define what standards of legal education means, and it requires only consultation with the universities rather than their agreement.
4. Which provision of the Advocates Act connects the profession to legal aid, and how? Section 6(1) makes organising legal aid to the poor a function of a State Bar Council, and section 9A empowers a Bar Council to constitute legal aid committees.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.