Taking refuge in confidentiality

There is no basis for considering information about tours and inspection reports/recommendations by the member of Legal Education Committee of Bar Council as personal information of that member, because the members are public servants of this public authority and their TA and DA are paid from public authority, not by any private body, and thus information about expenditure from the public authority cannot be denied

An advocate sought information about foreign tours of the members of Bar Council of India (BCI) Committees, their purpose etc, how many law colleges were recognised based on inspection done by BCI Member Vijay Bhatt in the state of Uttarakhand, and the amount paid from January 2009 to December 2015 to Vijay Bhatt for the inspections, etc.

The BCI chose to deny the information stating that the visit of members to the universities was ‘confidential’ in nature. The CPIOs informed that the BCI members never visited any foreign country during 2009–2015 at the expense of BCI. It is not known what stopped the BCI from giving this information within 30 days.

Section 7(1)(h) of the Advocates Act, 1961, explains the functions of BCI: “...to promote legal education and to lay down standards”; …(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 cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf”

The inspection of the colleges before granting recognition is an important function of the Bar Council of India.

The Part –IV Rules of Legal Education under Section 2(xii) explained what inspection is: “Inspection of the University” means inspection by the Bar Council of India for recognising its degree in law for the purpose of enrolment in the rolls of advocates and includes (A) calling for all relevant records, documents, and correspondence to evaluate the competence of the University to run professional courses, (B) visiting places of the Centres of Legal Education including building housing classes, library of the Institution, halls of residence and all other places as may be required by the inspection team inspecting the University and its affiliated Centres of Legal Education where the courses of degrees in law are conducted or proposed to be conducted.

Provided that as and when the Bar Council India communicates to the University for the purpose of inspection, the University shall also direct the concerned officer in charge of Inspection of Centre of Legal Education to instruct all persons concerned for facilitating the Inspection by the inspection team of the Bar Council of India.”

The BCI Inspection Manual 2010 Guideline for Inspection of Bar Council of India of University/Institution, under Chapter I states that it is necessary for the Bar Council of India to properly and adequately inspect a University for the purpose of recognizing its degree in law as ‘the qualification for enrolment as an advocate.’ The profession is distinguished from service in its special education for making professionals.

The State governments were enthusiastic to allocate necessary funds to the National Law School, which is headed by the Chief Justice of High Court as the Chancellor.

The traditional Universities could have increased their performance if they also had same powers and funds as that of National Law Schools, with necessary facilities to fill all the posts of faculty, and build required infrastructure. The better practices of learning and infrastructure in the national law schools could not spread to traditional universities and thus the NLUs remained islands of excellence.

On the other hand several law colleges in private were allowed to run with thousands of students without required number of faculty in the same ratio. The contract lecturers filled the posts vacated by retirement of senior professors.

The existing standards in some of the colleges raise suspicions about integrity and demand transparency in the process of their recognition. It is in this context the RTI systems assume importance.

As the “sun is best disinfectant”, the transparency will be the best antidote to the invisible corruption that allowed dilution of standards of legal education, which ultimately affect the functioning of judiciary and deteriorate the rule of law as a whole. This is the larger public interest that demands disclosure of information sought by the applicant in this case.

It is imperative for the Legal Education Committee (LEC) to ensure the transparency in the process of assessment and approval of a Law College. It is also significant to note that if at all any member of staff of such college wants to keep his assessment/report about the applicant college as confidential the LEC has to make all efforts to secure that confidentiality.

This rule helps the faculty members of the college to express freely without fear of vindictive action by the management. Except this, there is no other provision for keeping any part of the process confidential.

Nowhere the BCI Rules or Regulations speak that the name of the inspecting member, number of colleges he visited, his recommendations for recognition or otherwise are to be kept secret.

The report given after inspection is the ‘information’ according to the definition under Section 2(f), and cannot be denied unless any exception under Sections 8 & 9 is attracted. The BCI in this case totally relied upon the excuse of ‘confidential’ nature of information, but it did not explain how section 8(1)(d) could be invoked.

They have not put forward any evidence or justification to claim that the competitive position will be adversely affected. This defence cannot be accepted. Even if the inspection report by the LEC is adverse to the institution, it cannot be considered confidential or secret. If the report is positive it will naturally get publicity by the fact of recognition.

There is no basis for considering information about tours and inspection reports/recommendations by the member of LEC as personal information of that member, because the members are public servants of this public authority and their TA and DA are paid from public authority, not by any private body, and thus information about expenditure from the public authority cannot be denied.

The Supreme Court in Bar Council of India v. Bonnie Foi Law College & Others has explicitly mentioned that the function of the Bar Council of India may make rules relating to the standards of Legal Education to be maintained by the Universities in India and strict inspection of institutions is essential to achieve that purpose.

Hence in a way BCI is responsible for maintenance of the legal education in the country. The Supreme Court referred to innumerable affiliated law colleges and university colleges with questionable standards.

In the 184th Report, the Law Commission of India undertook a comprehensive suo motu review of the structure and regulation of the professional legal education system in India wherein it recorded the dissatisfaction with the inspections carried out by BCI for the purpose of granting permission or recognition to law colleges.

It is noted that in many cases, the inspection undertaken was merely perfunctory. It was further recommended that the BCI Rules governing inspections be suitably amended to provide that at least one academician from a State different from the one where the law college in question is located also forms part of the inspection team.

National Knowledge Commission suggested thorough reform of the process of inspection and recognition of law colleges. The BCI is supposed to give details of expenditure borne by the foreign universities, and the remuneration paid or TA/DA paid to the member for the inspection and the colleges which were inspected by the named member and the details of approval or disapproval if any.

In fact, the BCI is under an obligation under section 4(1)(b) to voluntarily disclose every inspection report on their official website. The parents and students or any other person has a right to know the reasons for recommending according the recognition.

They should get an opportunity to verify the claims made by the legal educational institute which entitled them the recognition. The transparency in the process of recognizing law colleges, voluntary disclosure of inspection reports explaining inadequacies in faculty and infrastructure in law colleges will go a long way in removing the scope of corruption.

The information so disclosed will help students and their parents to exercise the choice of law colleges in very effective manner. The aims and objectives of Advocates Act 1961 could be achieved if the provisions of transparency in RTI Act are properly complied with by the Bar Council of India.

Issuing showcause notices to two CPIOs of BCI, the Commission directed BCI to comply with the provisions of Section 4(1)(b) of the RTI Act by updating these disclosures periodically, besides giving details of the foreign tours undertook by the members of LEC or others and the details of expenditure whether borne by BCI or sponsoring institutions. (Based on decision in CIC/SA/C/2016/000164 H N Pathak v. PIO, BCI, on 2.1.2017)