Kerala HC Invokes Doctrine of Necessity, University to Adopt Alternate Measures to Assess Students
18.08.2021 | Education News | EduLegaL | www.edulegal.org | mail@edulegal.in
Kerala High Court in Jomol John & Ors Vs. Bar Council of India & Ors. — WP(C) NO. 8706 OF 2021, directed Mahatma Gandhi University, Kottayam, Kerala, in light of the doctrine of necessity, to compulsorily formulate alternative methods for assessing students instead of mandatory internship as prescribed by Bar Council of India (BCI) Rules on Legal Education. The petition was filed by students of Government Law College, affiliated to MG University.
In the present case, the petitioner-students enrolled in the 5-Year Law Course in the 2016-17 Batch concluding in the academic year 2020-21, due to the ongoing Covid-19 pandemic, could not undergo internship during the last two years for reasons not attributable to them. Besides, completing the mandatory internship before the culmination of the course is impossible. A fact not contended by the respondents. BCI had filed a statement before the court that the University can opt for alternative methods in the place of the period of internship not undergone by the petitioners, whereas University contended that so long as the Rules of Legal Education framed by the Bar Council of India remain intact, they may not be justified in doing so. The issue for determination was whether the university can take such a stand.
Single Judge Bench of Justice P.B. Suresh Kumar while discussing the nature of rules by BCI for legal education relied on V.Sudeer v. Bar Council of India — (1999) 3 SCC 176,
“The said Rules is only suggestive of the ways and means to promote legal education and it is for the universities to make appropriate regulations prescribing the curriculum for the course, having regard to the standards prescribed by the Bar Council of India”
The court examined the rules framed by the BCI under Section 7(1)(h) of the Advocates Act, 1961. Rule 24 of Schedule II provides for the manner in which internship is to be performed and Rules 25 of Schedule III provides for the Minimum Period of Internship. Each student shall have completed a minimum of 20 weeks of internship for the Five Year Course stream during the entire period of legal studies and no internship can be for a continuous period of more than Four Weeks. This criterion was unable to be fulfilled by the students due to the ongoing pandemic and therefore BCI left it to universities to determine methods of alternative assessment.
The court observed that when relaxations are provided by the competent authority regarding abovesaid rules, the same cannot stand in the way of the university making appropriate changes to them. Court observed that
“Further, since the law does not contemplate a vacuum, doctrine of necessity is applied to tide over situations of the instant nature. The doctrine permits certain things to be done as a matter of necessity which would not otherwise countenance on the touchstone of judicial propriety. The logic behind the principle is that if the doctrine is not pressed into service in situations of difficulty, there would be obstruction to the course of justice.”
Accordingly, the court held that the doctrine of necessity is to be applied by the University to formulate appropriate other measures which it may feel adequate to satisfy the requirements of the course of petitioners and other students enrolled in a 5-Year integrated Law Degree course during the academic year 2016 – 2017. Such measures are directed to be adopted as expeditiously as possible within six weeks.
Vaibhav Karadale | Research Intern | EduLegaL
Swapna Iyer | Legal Editor | EduLegaL
