Online LL.M. in India? View From a Regulatory Lens

Prafull Bhardwaj

The unfortunate strike of the pandemic has forced academia to resort to online education as an alternative to the usual classroom teaching. The COVID-19 pandemic hit India in March, 2020 which witnessed the conclusion of ongoing sessions in most educational institutions. During this period, various regulatory authorities have relaxed the norms pertaining to classroom teaching as well as evaluation processes to synchronize with the online mechanism.

In the light of the present scenario, various institutions have come up with programmes conferring online courses, online diplomas, and degrees. In this article, we explore the regulatory aspects surrounding the validity of an Online LLM in terms of regulatory compliance, substantive validity, and the interplay of BCI and its rules. With the kind of flexibility in admission and course structure that is enjoyed by an Institute of Eminence (“IoE”), we also seek to understand the extent of this flexibility and incentives in the light of an offer of Online LLM. While we explore the above stated, an RTI response is also awaited from UGC, covering all the questions emphasised in this article. 

Who regulates LLM Degree in India

It is pertinent to note that Bar Council of India does not regulate the awarding of LLM Degrees in India. In the absence of such regulations, the UGC (Minimum Standards of Instruction for the Grant of the Master’s Degree through Formal Education) Regulations, 2003 (“UGC Master’s Regulation”) applies to all institutions offering LLM programs in the country. The Master’s Regulations puts forth various aspects of admission, faculty, working days, syllabus and evaluation, which are to be complied by a University offering LLM Programme. 

The University Grants Commission (“UGC”) in the year 2013 introduced Guidelines for the introduction of One Year LL.M. Degree Programme (“UGC One Year LLM Guidelines”) upon the advice of an Expert Committee constituted for the purpose of restructuring and revamping legal education system in the country. The UGC approved the introduction of one year LL.M degree programme only in such universities/institutions which have a Centre for Post-Graduate Legal Studies. Before this, the LLMs were to be completed in two years. 

UGC has also notified a separate set of regulations governing the conduct of distance learning programs and providing minimum standards of instruction for the grant of a UG/PG degree through Open and Distance Learning mode. Regulation 1(2) of the University Grants Commission (Open and Distance Learning) Regulations, 2017 (“ODL Regulations”) clarifies that these Regulations lay down the minimum standards of instruction for the grant of degree at the undergraduate and post-graduate levels, through Open and Distance Learning (“ODL”) mode, and shall be in addition to and not in derogation of any other Regulations, Notifications, Guidelines or Instructions issued by UGC from time to time. These Regulations are noteworthy as they apply as a supplement to any regulation governing/permitting a degree through an online mode. 

Thus, even any IoE enjoying exemptions must comply with the ODL Regulations and cannot claim exemption from such regulations while offering an LLM Programme. Now we discuss what is an IoE and later what all regulations govern an IoE.

What is an Institute of Eminence?

Institutes of Eminence is a recognition scheme for higher education institutes in India, set by the University Grants Commission in 2017. The idea behind designating education institutions as Institutes of Eminence was a result of the need to create a distinct category of deemed to be Universities, called lnstitutions of Eminence Deemed to be Universities, which shall be regulated differently from other deemed to be universities to evolve into institutions of world-class in a reasonable period. As per the Budget announcement in 2016, the government had said:

“It is our commitment to empower Higher Educational Institutions to help them become world-class teaching and research institutions. An enabling regulatory architecture will be provided to ten public and ten private institutions to emerge as world-class Teaching and Research Institutions. This will enhance affordable access lo high quality education for ordinary Indians. A detailed scheme will be formulated.”

UGC (Institutions of Eminence Deemed to be Universities) Regulations, 2017 (“IoE Regulations”) were then notified on 29th August, 2017 by virtue of powers conferred under Section 26(1)(g) and Section 26(1)(f) of the University Grants Commission Act, 1956. These Regulations apply to every institution, whether owned or controlled by Government or not, declared as an IoE under these Regulations.

The plan encompasses twenty institutions, 16 of which have been declared Institutes of Eminence. Recognized institutes are granted more autonomy, both administratively and academically, and will enjoy better collaboration opportunities with global universities.  

Regulatory Presence for an Online LLM in India

In this backdrop of regulatory relaxations and administrative freedom given to IoE under the overall ambit of UGC Regulations, we wish to now explore the question as to whether Online LLMs can be offered under the current UGC Regulations in the country. We will thereafter, discuss the applicability of all regulations combined that help define the scope of the grant of an online LLM. The issue becomes all the more interesting to be explored in light of an Online LLM being offered by an Institute of Eminence starting this academic season.

Existing UGC Regulations

As discussed, three UGC Regulations/Guidelines are relevant here, 

1. UGC (Minimum Standards of Instruction for the Grant of the Master’s Degree through Formal Education) Regulations, 2003 
2. Guidelines for introduction of One Year LL.M. Degree Programme, 2012
3. University Grants Commission (Open and Distance Learning) Regulations, 2017 

UGC Master’s Regulations – Regulation 4.3

We reproduce specific regulations formulated by the UGC in regards to the grant of LLMs which clarify on the offering of Online LLMs in the country. As mentioned above, UGC Master’s Regulation applies to all institutions offering LLM programs. Regulation 4.3 of the UGC Master’s Regulation strictly mentions that the total periods provided for contact teaching shall not be less than 30 hours a week. Moreover, the UGC Master’s Regulation also advises for the lecture classes to have not more than 60 students.[1]

The Master’s Regulation also stipulates that the in-take capacity of a master’s program shall be determined at least six months in advance by the university/institution in accordance with UGC guidelines/norms so that the same could be suitably incorporated in the admission brochure for the information of all concerned.[2] It remains to be seen how this regulation is complied with because the IoE offering the online LLM has not yet announced the maximum in-take for this program.

Categorization Regulations 

According to the University Grants Commission (Categorisation of Universities (Only) for Grant of Graded Autonomy) Regulations, 2018 (“Categorization Regulations”) and the Rules formulated thereunder, only Category I Higher Educational Institutions (“HEI”) may offer programs in the Open and Distance Learning mode, without the approval of the UGC. Category II HEIs are however, required to take approval from the UGC to offer courses and programs in an online and distance learning mode. However, both category of HIEs are required to comply with all the conditions laid down under UGC (Open and Distance Learning) Regulations, 2017 and amendments thereunder.

University Grants Commission (Open and Distance Learning) Regulations, 2017

The ODL Regulations apply in the nature of an addition to and not in derogation of any other Regulation. Thus, irrespective of any existing UGC Regulations, the HEIs are required to make an application to the UGC which shall pass an order granting recognition to such HEI for a period of five years in respect of such programs under Regulation 4 of the ODL Regulations. Thus, in essence, any Category II HEI offering an Online LLM must seek approval from the UGC to commence or continue such an online or distance learning program. 

We see that UGC regulations seem to be in the grey regarding the offer of distance learning programs for an IoE. Some regulations seem to offer a wide amplitude of exemptions for an IoE, while others stipulate compliance with specific UGC Regulations. For example, the ODL Regulations are to be applied in addition to the exemptions under the IoE Regulations. Similarly, the Masters’ Regulation and UGC’s 1 year LLM Guidelines posits some minimum compliances for offering any LLM degree. Moreover, even the IoE Regulations call for compliance with prevailing minimum standards regarding grant of any degree by the IoE.

Now we discuss specific regulations that will help us better understand the scope for an online LLM.

Scope for an Online LLM: 

An Institute of Eminence shall have the freedom to offer courses within a program as well as to offer degrees in newer areas subject to broadly conforming to prevailing minimum standards. We initially saw how UGC Regulations govern the grant of an LLM Degree in the country. In the following paragraphs, we briefly explain specific regulations which by virtue of their interpretations exist in the nature of prevailing minimum standards which an IoE must comply with. 

Para 5.4, UGC One Year LLM Guidelines – Faculty Ratio

UGC in the year 2013 introduced Guidelines for introduction of One Year LL.M. Degree Programme (“UGC One Year LLM Guidelines”) upon the advice of an Expert Committee constituted for the purpose of restructure and revamp Legal Education system. The UGC approved introduction of one year LL.M degree programme only in such universities/institutions which have a Centre for Post-Graduate Legal Studies. Prior to this, the LLMs were to be completed in a span of two years. 

We reproduce Para 5.4 of the Guidelines for One Year LLM which is quite self-explanatory. It reads as, 

“Given the advanced nature of post-graduate studies and research in law and the need for proper supervision of PG students by senior faculty, the ratio of students admitted to LL.M. to the availability of Professors/Associate Professor should be not more than 5 students to one Professor/Associate Professor.”

(Emphasis Supplied)

IoE Regulation 4.2.7 – Faculty Student Ratio

Regulation 4.2.7 of the IoE Regulations fix the faculty student ratio at 1:20 at the time of declaration of the University as an IoE. Thereafter, the IoE must attain the ratio of 1:10 five years from the date of such declaration, for which part time faculty shall not be counted. Where programs such as Online LLM are being offered, where the University will try to get a large number of students under its domain, the compliance of such regulations is an area having potential of scrutiny from the UGC. 

It must be noted that this ratio is to be considered for the whole University and not for a specific programme. It must also be noted that this compliance is outside the purview of any exemption and incentives under Regulation 11 of the IoE Regulations.

IoE Regulation 11 – Additional Incentives

Moving forward towards the essence of exemptions under IoE Regulations we see that the autonomy, both administratively and academically granted to IoEs are owed to Regulation 11 of the IoE Regulations which grants Additional Incentives to IoE. Regulation 11 grants immunity from application of all UGC Regulations, Guidelines, Notifications, Orders on matters relating to Admission and Fees Structure, Flexibility in Course Structure, Recruitment of Faculty, Academic Collaboration, Financial Autonomy and Inspection. Admission and Flexibility in Course Structure occupy centre place in a critical observation of the application of IoE Regulations on Online LLMs.

IoE Regulation 11.2.4 – Max 20% Online Courses 

The IoE have been given flexibility in course structure in terms of offering new courses, their credit hours, curriculum structure and number of years to undertake such degree.[3] Additionally, the IoEs shall have the freedom to offer online courses as part of its programme subject to the condition that the online course shall constitute only twenty percent of its courses of any programme. 

To be able to comprehend the import of this Regulation we must understand the distinct meaning of course and programme. The word ‘programme’ has been defined under the ODL Regulations as ‘a course or a programme of study leading to an award of a Degree’ at graduate and post graduate level in an HIE. 

Now with regards to a masters in law, a number of courses having different credits spread across a number of months constitute a LLM Programme. The Regulation thus permits an IoE to offer 20% of its courses within a programme via an online mode. For example, if an LLM Programme has 10 courses to be offered within a year, the Regulation thus permits for 2 courses out of the 10 courses, to be offered via an online mode. The exemption under this Regulation cannot be stretched to an extent to offer a LLM Programme entirely through online mode.

Moreover, the said Regulation goes on to clarify what all can be offered entirely through online mode. This helps us understand what is usually termed as ‘legislative intent’. The regulation clearly stipulates that only certificate course can be offered through online mode. If there were a legislative intent to permit the IoEs to offer entire programmes, it would have been clearly included in this Regulation. However, only a specific kind of course, viz. certificate courses, are mentioned as having the eligibility to be offered via on online mode in its entirety. We reproduce the Regulation 11.2.4 for a better clarity,

“The Institute of Eminence Deemed to be University shall have the freedom to offer online courses as part of its programme (subject to a limit of twenty percent of any programme). However, this twenty percent restriction would not preclude the Institution of Eminence Deemed to be University from offering certificate courses entirely through online mode.”

Relevance of a 1-year Online LLM

When dealing with such regulatory issues surrounding the offer of a degree, an ancillary questions pops as to the validity of a degree obtained via such route. Apart from recognition of educational qualifications as suitable for pursuing higher studies, validity in the professional realm governed by BCI must also be looked into.

Rule 14.2 – BCI Rules

The UGC approved introduction of one year LL.M degree programme in 2013. Prior to this, the LLMs were to be completed in a span of two years. However, in November 2019, BCI released its Draft Rules,[4] where Rule 14 stipulating ‘Minimum Qualification for applying for teaching assignment in a Recognized University or an approved Centre of Legal Education for a professional law degree Program’ reads as,

“14.2: A Post Graduate Law degree or LL.M. of one-year duration obtained from any recognized University in India shall be recognized by BCI until this Amendment Rules are notified and on the notification of these Rules ‘one year Master Degree in Law’ shall not be a recognised degree for teaching professional law degree under this rules.”

(Emphasis Supplied)

Thus with the notification of these Rules, one year LLM would not be recognized for teaching a professional law degree. An Online LLM is therefore, the least likely to be recognized as a degree for the purpose of granting eligibility to become a teacher in a law school.

It will be worthy to mention of a similar distance learning LLM offered by NLU Delhi. The LLM (Pro) offered by NLU-Delhi is equivalent to a P.G. Diploma Course and shall not qualify a candidate to academic and other professional benefits obtainable from a regular LL.M Course. Noteworthy is also the fact that the website of the University clearly describes the scope and validity of such an LLM unlike the one offered by the IoE. 

Thus we see that the flexibility granted to IoE in terms of Admission and Fees Structure, Flexibility in Course Structure, Recruitment of Faculty, Academic Collaboration, Financial Autonomy and Inspection is also subject to compliance with minimum prevailing standards as laid by the UGC. Exemption from UGC Guidelines under these heads cannot be construed to circumvent minimum standards of imparting education. Where the regulations explicitly put a cap of 20% on the courses that can be taken through online mode in a programme, an entire programme of LLM cannot be offered online under the IoE regulation. Such online programmes can be offered by Category I HEI with due compliance of the ODL Regulations. However, again, no such online programme can be offered by a Category II HEI without the approval of the UGC. It also remains to be seen how the faculty-student ratio is maintained under the UGC’s One Year LLM Guidelines in an online course with hundreds of students. The awaited response to the RTI filed would also provide greater clarity upon the questions raised and analysed.

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Author is a BA LLB graduate and can be contacted at law.prafull@gmail.com.

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Photo Credits: Sean Gallup/AFP

Notes:   

[1] Regulation 7.2 (Physical Facilities)

[2] Regulation 2.4, UGC (Minimum Standards of Instruction for the Grant of the Master’s Degree through Formal Education) Regulations, 2003

[3] Regulation 11.2.2 and Regulation 11.2.3

[4] BCI Draft Rules, 2019. Available at http://www.barcouncilofindia.org/wp-content/uploads/2019/11/Draft-Rules-of-Legal-Education-2019-1.pdf