Karnataka High Court
Sri Gautham R vs Bar Council Of India on 2 September, 2020
Author: Abhay S. Oka
Bench: Abhay S. Oka
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.8155 OF 2020 (GM-RES-PIL)
BETWEEN:
1. SRI GAUTHAM R
S/O SRI RAMANANDA S
AGED ABOUT 23 YEARS
RESIDING AT NO 984, 6TH CROSS
ITI LAYOUT, NAGARBHAVI, 2ND STAGE
BENGALURU - 560 072.
2. SRI CHANDAN GOWDA T K
S/O SRI. KRISHNAMURTHY T.K
AGED ABOUT 23 YEARS
RESIDING AT NO 31/A, 2ND STAGE,
3RD BLOCK, 'D' CROSS, NAGARBHAVI
BENGALURU - 560 072.
...PETITIONERS
(BY SRI. SUHAS C.S., ADVOCATE FOR
SRI. SUNIL SASTRY M, ADVOCATE)
AND:
1. BAR COUNCIL OF INDIA
HAVING ITS REGISTERED OFFICE AT
ROUSE AVENUE, INSTITUTION AREA
NEAR BAL BHAVAN,
NEW DELHI - 110 002.
REP. BY ITS CHAIRMAN
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2. THE STATE OF KARNATAKA
DEPARTMENT OF HIGHER EDUCATION
GOVT. OF KARNATAKA
HAVING ITS REGISTERED OFFICE AT
NO 30, PRASANNA KUMAR BLOCK,
BANGALORE CENTRAL UNIVERSITY CAMPUS
Y. RAMACHANDRA ROAD
GANDHI NAGAR,
BENGALURU - 560 009.
REP. BY ITS SECRETARY
3. BANGALORE UNIVERSITY
HAVING ITS REGISTERED OFFICE
AT JNANABHARATHI CAMPUS
MAIN ROAD, JNANA BHARATHI
BENGALURU - 560 056.
REP. BY ITS VICE CHANCELLOR
4. THE REGISTRAR (EVALUATION)
BANGALORE UNIVERSITY
HAVING OFFICE AT PAREEKSHA BHAVANA
JNANABHARATHI CAMPUS,
MAIN ROAD, JNANA BHARATHI
BENGALURU - 560 056.
5. THE PRINCIPAL
UNIVERSITY LAW COLLEGE
BANGALORE UNIVERSITY, HAVING OFFICE AT
JNANABHARATHI CAMPUS,
MAIN ROAD, JNANA BHARATHI
BENGALURU - 560 056.
6. KARNATAKA STATE LAW UNIVRESITY
HAVING IRS REGISTERED OFFICE AT
SUTGATTI ROAD, NAVANAGAR
HUBBALLI - 580 225.
REPRESENTED BY ITS VICE CHANCELLOR
....RESPONDENTS
(BY SRI. SRIDHAR PRASAD, ADVOCATE FOR R-1
SRI. VIJAYKUMAR A. PATIL, AGA FOR R-2
SRI. B. RAMESH, ADVOCATE FOR R-3 TO R-5
SRI. V. GANAPATHI BHAT, ADVOCATE FOR R-6
SRI. K.B. VIJAYAKUMAR (PARTY-IN-PERSON)
FOR IMPLEADING ON I.A. 1 OF 2000.)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-1
TO DISPENSE WITH CLAUSE (b) AND (c) OF PAPER 24 UNDER
SCHELUDE II OF PART IV OF BAR COUNCIL OF INDIA RULES
(RULES OF LEGAL EDUCATION) FOR THE ACADEMIC YEAR
2019-2020 AT ANNEXURE-A. ECT.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY THROUGH VIDEO CONFERENCE, CHIEF JUSTICE MADE
THE FOLLOWING:
ORDER
We have heard the learned counsel appearing for the petitioners, the learned counsel appearing for the first respondent, the learned Additional Government Advocate appearing for the second respondent, the learned counsel appearing for the third to fifth respondents and the learned counsel appearing for the sixth respondent.
2. The petitioners are the students of the fifth respondent - University Law College affiliated to Bengaluru University, Bengaluru and they were pursuing five years integrated B.A. LLB. Course. The attention of the Court is invited to the decision of the respondent No.1 to dispense with clauses (b) and (c) of Paper 24 under Schedule II of Part IV of the Bar Council of India Rules of Legal Education, 2008 (for short 'the Rules of Legal Education') for the academic year 4 2019-20. The second prayer in the petition is for issuing a writ of mandamus directing the first respondent Bar Council of India to formulate detailed guidelines regarding compensating clauses (b) and (c) of Paper 24 under Schedule II of Part IV of the Rules of Legal Education for the academic year 2019-20 vide online, non physical mode of examination/assessment in an effective and time bound manner. Further direction is prayed for to dispense with the regulations governing the integrated five years BA., LLB., course incorporating the mandatory requirement of final year law students of five year law course engaging themselves in Pre-Trial Preparation and Participation in Trial proceedings for which they are assessed to the tune of 60 marks in their final semester for the academic year 2019-20. Further, a general direction to the respondents is sought to provide all such measures required to conduct the assessment/examination compensating clauses (b) and (c) of Paper 24 under Schedule II of Part IV of the Rules of Legal Education. Our attention is invited to the aforesaid clauses. The issue has arisen in view of the situation created by Pandemic of COVID-19.
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3. The third respondent has filed a statement of objections dealing with the issues raised in the petition. In fact, there is a common statement of objections filed by the third to fifth respondents.
4. As could be seen, the requirements of clauses (b) and (c) of Paper 24 under Schedule II of Part IV of Bar Council of India, ("Rules of Legal Education, 2008"), are observance of Trial in two cases, and interviewing techniques and Pre-trial preparations and recording of proceedings in Internship diary. The said respondents have stated in the statement of objections that the final year students of law course could not engage themselves in physical observance of civil and criminal trials and also could not observe interviewing techniques and pre-trial preparations in the lawyer's/legal aid offices physically due to pandemic COVID-19. It is stated that theory classes have been conducted through online mode for the benefit of students.
5. The attention of the Court is invited to UGC guidelines issued to all the Universities on examination and academic calendar for the Universities in view of COVID-19 pandemic and subsequent lock down. In the statement of objections, 6 reliance is placed on letters addressed by the first respondent Bar Council of India. In paragraph 10 of the statement of objections, it is stated that the third respondent University proposes to adopt the following alternative guidelines with regard to requirements of clauses (b) and (c) of Paper 24 only for the academic year 2019-20. The alternative academic guidelines proposed by the third respondent reads thus:
"ALTERNATIVE GUIDELINES:
a. With regard to requirement under paper 24(b):-
That in lieu of physical observance of Civil and Criminal Case proceedings, the assessment shall be done on the basis of review based/ secondary data based assignments i.e., one on the Civil and another on the Criminal cases which are written by hand by the students and submitted to the course for teacher for assessment in person or sent through post, courier or scanned and emailed for 30 marks (each carrying 15 marks).
b. With regard to requirements in paper 24(c):-
The students will have to submit two assignments explaining the experiences gained during internship in the previous years of their LLB course, which are written by hand by the students and submitted to the course teacher for assessment, either in person or sent through post, courier or scanned and emailed for 30 marks (each carrying 15 marks).
c. The Final year LLB students Viva Voce examination may be conducted online keeping record of the whole Viva Voce examination. The 7 tests also may be conducted online or in lieu of the same, assignments or projects, which are written by hand by the students and submitted to the course teacher for assessment, either in person or sent through post, courier or scanned and emailed."
6. Considering the fact that the issue is of the career of large number of law students, by the Order dated 16th July, 2020, this Court had called upon the first respondent - Bar Council of India to clarify the issue. Accordingly, the learned counsel for the first respondent has placed on record the extract of the minutes of the meeting recording the resolution of the General Council of the Bar Council of India in respect of agenda Item No.399/2020. In the said resolution, the first respondent Bar Council of India has referred to the order of this Court and thereafter, has issued certain clarifications. For the sake of clarity, it is necessary to quote the decision taken by the first respondent - Bar Council of India which reads thus:
"BAR COUNCIL OF INDIA RESOLUTION The query raised by the Hon'ble High Court of Karnataka vide Order dated 16.07.2020 In Writ Petition No.8155 of 2020 to the Bar Council of India with respect to clauses (b) and (c) of Paper 24 (Moot Court Exercise and Internship) under entry 6 of Schedule II of the Rules of Legal Education (Part IV of Bar Council of India Rules had been considered by the General Council on 22.07.2020 8 and the matter had been referred to a Sub- Committee to submit a report on this issue.
The Sub-Committee has submitted it's report today on 30.8.2020 to the Council, which is accepted and it is resolved as follows:
A query had been raised by the Hon'ble High Court of Karnataka vide Order dated 16.7.2020 in Writ Petition No.8155 of 2020 to the Bar Council of India with respect to clauses (b) and (c) of Paper 24 (Moot Court Exercises and Internship) under Schedule-II, Part-II(B), Clause-24, Part-IV of The Rules of Legal Education.
The petitioners who are law students have contended that the said rules should be done away with in times of pandemic, in lieu of Government directives, court directives with courts being closed too and University Regulations too in tune with such Rule should be done away with as it will delay their degrees. They have prayed for directions to be issued to BCI and to University to do away with these Rules / University Guidelines and to frame guidelines to compensate these rules.
The University has objected to the writ petition and contended that Bar Council of India had stated clearly that alternative modes could be adopted by Universities and that it has adopted an Alternative Mode and writ petition should be dismissed as petitioner did not exhaust alternative remedy available with University.
The Hon'ble Court has vide it's order dated 16.07.2020 observed as follows:
"The question is whether without following the statutory rules, the Universities can be permitted to make a modification to the provisions regarding assigning marks to observation of trial in two cases (one in civil and one in criminal) and 9 observing two interning sessions at advocates office and legal aid office. The Bar Council of India needs to clarify the issue for the sake of future of the law students. The Bar Council of India will have to state that power of relaxation if any, has been exercised by the Bar Council of India."
The relevant Rules of Legal Education are mentioned below and the alternatives to such Rules provided by the University is also provided herein below:-
Schedult-II, Part-II (B) Clause-24, Part-IV of The Rules of Legal Education deals with Moot court exercise and Internship as one of the papers of Compulsory Clinical Courses.
24. Moot court exercise and Internship: This paper may have three components of 30 marks each and a viva for 10 marks.
(a) Moot Court (30 Marks). Every student may be required to do at least three moot courts in a year with 10 marks for each. The moot court work will be on assigned problem and it will be evaluated for 5 marks for written submission and 5 marks for oral advocacy.
(b) Observance of Trial in two cases, one Civil and one Criminal (30 marks): Students may be required to attend two trials in the course of the last two or three years of LLB studies. They will maintain a record and enter the various steps observed during their attendance on different days in the court assignment. This scheme will carry 30 marks.
ALTERNATIVE GUIDELINES WITH RESPECT TO RULE 24 B ADOPED BY BANGALORE UNIVERSITY:
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That in lieu of physical observances of Civil and Criminal Case proceedings, the assessment shall be done on the basis of review based / secondary data based assignments i.e., one on the Civil and another on the Criminal cases which are written by hand by the students and submitted to the course teacher for assessment in person or sent through post, courier or scanned and emailed for 30 marks ( each carrying 15 marks).
(a) Interviewing techniques and Pre-trial preparations and Internship diary (30 marks): Each student will observe two interviewing sessions of clients at the Lawyer's Office / Legal Aid Office and record the proceedings in a diary , which will carry 15 marks. Each student will further observe the preparation of documents and court papers by the Advocate and the procedure for the filing of the suit / petition. This will be recorded in the diary, which will carry 15 marks.
(b) The fourth component of this paper will be Viva Voice examination on all the above three aspects. This will carry 10 mark.
AS REGARDS RULE 24 C THE BANGALORE UNIVERSITY HAS COME UP WITH THE FOLLOWING ALTERNATIVE GUIDELINES:
The students will have to submit two assignments explaining the experiences gained during internship in the previous years of their LLB course, which are written by hand by the students and submitted to the course teacher for assessment, either in person or sent through post, courier or scanned and emailed for 30 marks (each carrying 15 marks).
The Final Year LLB students Viva Voice examination may be conducted online keeping record of the whole Viva Voice examination. The 11 tests also may be conducted online or in lieu of the same, assignments or projects, which are written by hand by the students and submitted to the course teacher for assessment, either in person or sent through post, courier or scanned and emailed.
It is observed and clarified as follows:
Rule 24 Moot court exercise and Internship (a),
(b),(c) and (d) forms part of Schedule-II, Part-II (B) Part-IV of the Rules of Legal Education under the heading "Compulsory clinical course" Pandamic Covid-19 has caused an unprecedented and exceptional situation in which adherence to normal practice of imparting education through class room lectures and holding moot courts and interning with legal professionals has been dispensed with in view of risk to the health of students, teachers and members of staff. The General Council of Bar Council of India, which is the highest decision making body of Bar Council of India having Rule making powers under section 49 of Advocates Act 1961, therefore, passed a resolution dated 09.06.2020, which was released by way of Press Release of the same date thereby relaxing the condition about implementation of the mandate of examination or any protocol where physical appearance of the students is required and permitted the universities to adopt any alternative and suitable means to judge the capabilities and performance of students in these areas of syllabus / curriculum.
In view of clarifications sought by the Hon'ble High Court of Karnataka in W.P. No.8155 of 2020 vide order dated 16.07.2020 it is clarified that the circular dated 09.06.2020 would apply to all papers in including the one covered by Rule 24 Moot Court Exercise and Internship (a), (b), (c) and (d) forms part of Schedule -II, Part-II (B) Part -IV of the Rules of Legal education.
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It was mentioned therein that for Final year LLB students the Universities may adopt any other appropriate method which they feel is adequate to satisfy the requirements of regular examinations.
Under this system the University may allow students to write a Project report / Research paper for each paper of final year or they may adopt a full proof method to double the internal marks of the semester exams already for such year.
Thus any method adopted by the University in the light of this Press released dated 09.06.2020 would be acceptable to the Bar Council of India. The Press Release dated 09.06.2020 is also attached with this resolution for clarity sake. Resolved Accordingly."
7. Thus, the first respondent-Bar Council of India has approved the alternative guidelines proposed by the third respondent University. Hence, there is no impediment in the way of third respondent implementing the alternative guidelines proposed by it.
8. The sixth respondent has 116 affiliated law colleges throughout the State. The sixth respondent has filed a statement of objections. The sixth respondent has stated that it had issued guidelines pertaining to modes of internal assessment vide Circular dated 8th June, 2020. A copy of the 13 circular along with the English translation thereof is annexed to the statement of objections.
9. Though prima facie, we find that the decision taken by the sixth respondent does not seem to be in any way conflict with the stand taken by the first respondent Bar Council of India in the aforesaid resolution dated 29th August, 2020, considering the fact that the sixth respondent has 116 affiliated law colleges in the State and the issue will affect large number of students, it would be appropriate if the aforesaid circular issued by the sixth respondent is immediately looked into by the Bar Council of India and necessary communication is issued to the sixth respondent. A seal of approval granted by the first respondent to the guidelines incorporated in the Circular dated 8th June, 2020 will be in the interest of large number of law students who are enrolled in the said 116 colleges. The learned counsel appearing for the sixth respondent states that a copy of the Circular dated 8th June, 2020 has already forwarded to the first respondent Bar Council of India.
10. Accordingly, we pass the following order:
(i) In the light of the alternative guidelines proposed by the third respondent set out in paragraph 10 of its statement of 14 objections and the resolution dated 29th August, 2020 passed by the first respondent Bar Council of India, the apprehensions/grievances as regards the guidelines adopted by the third to fifth respondents do not survive. As noted above, the Bar Council of India has accepted that the guidelines as proposed by the third respondent are within the existing frame work of law;
(ii) We direct the first respondent to immediately look into the guidelines incorporated by the sixth respondent in the Circular dated 8th June, 2020 and communicate its decision and approval with suggestions, if any, to the sixth respondent at the earliest;
(iii) With the above directions, we dispose of the petition.
(iv) The pending interlocutory application does not survive and accordingly, the same stands disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE PL* List I, Sl.No.1