INTRODUCTION
The Bar Council of India conducts the All India Bar Exam twice every year for law graduates who have successfully enrolled their names in the State Bar Council, however, due to Covid-19, the exam is held once a year after 2020. Post qualification of the exam the candidate is given the certificate of practice and hence qualifies to practice at any court in India. “It is conducted in 11 languages from which only one language can be selected which is multiple choice-based exams consisting of a total of 100 marks from 19 law subjects. The duration for the exam is 3 hours 30 minutes with an exception for the people with disability of extra 30 minutes.”[1]
THE BEGINNING OF AIBE
The AIBE Exam was conducted for the first time on March 6, 2011.[2] All the students who graduated in the academic year 2009-2010 had to appear in it in order to practice law in India.
During the hearing of a matter in 2009 at the Apex court, the BCI came up with the idea of conducting AIBE. As per BCI, it would be mandatory for all the students who were graduating in the year 2009-2010 to appear in the exam in order to practice law.[3] The person not appearing would not be allowed to practice law, file vakalatnama, appear before the courts, issue opinions, etc, in their name.
The main objective behind the conduction of the exams was to test the ability of Advocates to practice the profession of law.
THE PRESENT SCENARIO
The Bar Council of India on October 30th, 2014 introduced the Certificate of Practice and Renewal Rules, 2014 in which it was declared that the advocates who were enrolled in the State Bar Councils from June 2010 had to mandatorily obtain the Certificate of Practice within six months for which they had to appear for the AIBE to obtain it.[4]
Challenging the matter concerning the inspection, recognition, and accreditation of the law colleges in India, on July 7th, 2008, Bonnie FOI Law College approached the Supreme Court. Subsequently, after passing the 2010 Bar Council of India Rules, the issue of pre-enrollment qualifications and the All India Bar Exam was also included in the same petition. Following this, a number of petitions challenging the 2014 and 2015 Rules issued by the Bar Council of India were made by various previously enrolled and freshly enrolled advocates.[5]
The main argument in the petitions was that the Rules go against the decision in V. Sudheer v BCI where the Supreme Court held that the BCI had no right to impose subordinate rules on the advocates, which go against the Advocates Act 1961. In this, the Hon’ble Court held that on the construction of the Advocate’s Act the BCI was not legally competent to frame Rules and thus were invalid.[6]
Recently on 28th September 2022, the Supreme Court of India’s constitutional bench reserved its judgment, considering the petitions which challenged the validity of the All India Bar Exam. It was heard by the five-judge constitutional bench comprising Justices Sanjiv Khanna, AS Oka, Vikram Nath, Sanjay Kishan Kaul, and JK Maheshwari.[7]
Attorney General of India and also Senior Advocate K.K. Venugopal and the Amicus Curiae, Senior Advocate K.V. Vishwanathan presented the matter. The question they called upon was the correctness of the law as had been held in V. Sudheer v. Bar Council of India & Anr. and the conduct of pre-enrolment exams.[8]
THE KEY ISSUES RAISED:
- Whether a pre-enrollment exam can be specified by the BCI under the Advocates Act, 1961?
- Whether the BCI can specify pre-enrollment training in terms of the Bar Council of India Training Rules which were issued in 1995 as framed under Section 24(3)(d) of the Advocates Act 1961[9], and if yes then whether the decision in Sudheer vs. BCI & Anr. requires re-examination?
- And if both conditions are not permissible whether a post-enrollment exam can be prescribed by the BCI in terms of Section 49(1)(ah) of the Advocates Act 1961[10]?
ANSWERS TO THE ISSUES BY SR. ADVOCATE (AMICUS CURIAE), K.V. VISWANATHAN
- The BCI is empowered to specify for pre-enrollment training as under the Advocate’s Act 1961 and therefore the decision made in the case of V. Sudheer is per incuriam and so should be set aside.
- The BCI is empowered to frame rules on pre-enrollment exams in the exercise of powers under the Advocate’s Act 1961.
- If issues 1 and 2 are not responded to positively, because of the words occurring in Section 30 of the Advocate’s Act 1961[11], then the post-enrollment exam will require a statutory amendment in the Advocate’s Act 1961 to subsequently bring it into place and be intra vires the Act.
CASES ON CAPACITY OF THE BAR COUNCIL OF INDIA
In the case of Ashwini Kumar Upadhyay[12]the Supreme Court held that the BCI is being bestowed with functions and duties to regulate the enrollment of the advocates and the terms and conditions of professional conduct.
In Bar Council of India vs. Board of Management, Dayanand College of Law][13] the Supreme Court held that the Bar Council of India is an apex body that is concerned with the standards of the legal profession and also the equipment of those who seek entry into this profession and so the role under the Advocates Act cannot be considered to be taken away by the Universities Act.
ANALYSIS
Various contentions have been forwarded by Advocates some of which are analyzed:
According to K.V. Vishwanathan, “the BCI should be given a primordial role as it is the apex body that lies above all the state bar councils, the directives come out from the BCI and the state bar council needs to carry them out. He also stated that under Section 7 (1) (g) of the Advocate’s Act[14] the function of BCI is to exercise general supervision and control over the state bar councils. He highlighted that Section 7(1)(a)[15] of the said act empowers the BCI to perform all other functions conferred on it under the Act, where also Section empowers the BCI to do all other things which are necessary for discharging the aforesaid functions.”[16]
Manan Kumar Mishra, the BCI Chairman, and Senior Advocate highlighted the authority of the State Bar Council to formulate rules under the Advocate’s Act. He stated that the law does not make provision for enrollment also highlighting the powers of the BCI and the Union Government to make rules for the implementation of the Act.[17] Advocate Kartik Seth, appearing for the petitioner said that law graduates should be permitted to write the AIBE in their final year’s so that they can save some time.[18]
K.K. Venugopal, the Attorney General of India, upheld BCI’s right to conduct the pre-enrollment and post-enrollment exams. He further contended that under Section 49A of the Advocate’s Act[19], the Union Government and the BCI are entitled to make the rules. He also referred to Section 24(1)(g) of the said Act[20] and submitted that law graduates are required to go through internships during their college days, therefore training is gained through the mandate of internships which is far more superior.[21]
CONCLUSION
The AIBE exam provides an extra edge to prove their competencies and come out passing the exam which is a booster for their performance in the field in the future as the exam is a National Level exam. Where also the delay in exams proves to be unnecessary as it does not allows them to have their licenses without passing the exam which is conducted nearly 1 year later after being graduated in law. Time is money and the extra time that this exam takes is a crucial part of the student’s life. The objectives with which the exam is conducted are laudable as it bolsters a movement towards a unified standard for legal education. The main aim behind the petition hearing was to allow the conduct of pre-enrollment exams which would prove to be beneficial for law graduates, as it would help them save their time and appear for the AIBE in their final year of Law College. Presently, the Supreme Court has reserved its decision on the matter and no date for the further hearing has been stated so far. It is believed that the Hon’ble Court will decide which will best suit the interests of the law students as well as the apex body.
Author(s) Name: Bhawana Agarwal (D.H.S.K. Law College, Dibrugarh University, Dibrugarh)
References:
[1] ‘AIBE (XVII) 2022 Exam Pattern- AIBE 17 Exam Mode, Marking Scheme’ (Sarvgyan) <https://www.sarvgyan.com/articles/aibe-exam-pattern> accessed 07 November 2022.
[2] Neeati Narayan, ‘The Maddening Story of All India Bar Exam (AIBE); Learnings from the US Bar Exam and Useful AIBE Links’ (Lawctopus, 09 April 2013) <http://www.google.com/amp/s/www.lawctopus.com/all-india-bar-exam-aibe-story-us-comparison-useful-links/amp/> accessed 07 November 2022.
[3] Kian Ganz, ‘The India bar exam: a regulator’s rocky road’ (Livemint, 27 December 2012) <https://www.google.com/amp/s/www.livemint.com/Politics/Z9HH7jg4q8Any5PILN9FfP/The-India-bar-exam-a-regulators-rocky-road.html%3ffacet=amp> accessed 07 November 2022.
[4] ‘Challenge to the All India Bar Exams’ (Supreme Court Observer, 07 October 2022) <https://www.scobserver.in/cases/challenge-to-the-all-india-bar-exams/> accessed 09 October 2022.
[5]Ibid.
[6] V.Sudheer v Bar Council of India (1999) (3) SCC 176.
[7] Danita Yadav, ‘AIBE 2022: Supreme Court Constitution Bench reserves Judgement’ (Times Now, 29 September 2022) <https://www.timesnownews.com/education/aibe-2022-supreme-court-constitution-bench-reserves-judgement-on-validity-of-the-all-india-bar-exam-article-94526886> accessed 9 October 2022
[8] Ibid.
[9] Advocates Act 1961, s 24(3)(d).
[10] Advocates Act 1961, s 49(1)(ah).
[11] Advocates Act 1961, s 30
[12]Ashwini Kumar Upadhyay v Union of India (2019) 11 SCC 683.
[13]Bar Council of India v Board of Management, Dayanand College of Law (2007) 2 SCC 202.
[14] Advocates Act 1961, s 7(1)(g).
[15] Advocates Act 1961, s 7(1)(a)
[16]Sarah Thanawala, ‘Overview of AIBE Challenge Hearing by Constitution Bench of Supreme Court’ (Newsclick, 30th September 2022) <https://www.google.com/amp/s/www.newsclick.in/overview-AIBE-challenge-hearing-constitution-bench-supreme-court%3famp> accessed 09 October 2022.
[17] Ibid.
[18] Ibid.
[19] Advocates Act 1961, s 49A.
[20] Advocates Act 1961, s 2(1)(g).
[21]Ibid.
