Supreme Court: The 5-judge Constitution Bench of Sanjay Kishan Kaul*, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and JK Maheshwari, JJ has upheld the Bar Council of India’s (BCI) power to conduct pre-enrolment examination i.e. All India Bar Examination (AIBE). The Court observed that neither the provisions under the Advocates Act, 1961, nor the role of the universities to impart legal education, in any way, prohibit the Bar Council of India from conducting pre-enrolment examination, as the Council is directly concerned with the standard of persons who want to obtain a license to practice law as a profession.
The Court left to the Bar Council of India to decide as to at what stage the All India Bar Examination has to be held – pre or post, after observing that there are consequences especially in respect of the interregnum period which would arise in holding the All India Bar Examination in either scenario, and it is not for this Court to delve into them but it would be appropriate to leave it to the Bar Council of India to look to the niceties of both situations.
“Quality of lawyers is an important aspect and part of administration of justice and access to justice. Half-baked lawyers serve no purpose. It is this quality control, which has been the endeavour of all the efforts made over a period of time.”
How did the AIBE came into existence?
The initiation of this case traces back to 2009 when Bonnie Foi Law College applied for affiliation to carry on a legal study course. When an inspection team visited the said college on 29.06.2009 , the shortcomings in the infrastructure and functioning of the college posed a larger question of diminishing standards of legal education provided at various law colleges in India arose before the Court.
As a result, a Committee of Mr. Gopal Subramanium, then Solicitor General of India; Mr. M.N. Krishnamani, then President of the Supreme Court Bar Association; and Mr. S.N.P. Sinha, then Chairman of the Bar Council of India, was appointed. The report submitted by this committee led to the first All India Bar Examination being conducted in 2010, by a specially constituted independent body consisting of experts of various disciplines of national stature.
What led to the present order?
On 18.03.2016, a three-Judges Bench of the Court opined that the questions which fall for determination in the present matter are of considerable importance affecting the legal profession in general and need to be authoritatively answered by a Constitution Bench.
Hence, the following 3 questions were referred to the Constitution Bench:
- Whether pre-enrolment training in terms of Bar Council of India Training Rules, 1995 framed under Section 24(3)(d) of the Advocates Act, 1961 could be validly prescribed by the Bar Council of India and if so whether the decision of this Court in V. Sudeer v. Bar Council of India [(1999) 3 SCC 176] requires reconsideration.
- Whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961.
- In case question Nos. 1 and 2 are answered in the negative, whether a post-enrolment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1) (ah) of the Advocates Act, 1961.
Constitution Bench’s order
Scope of BCI’s powers at a pre-enrolment stage vis-à-vis 1973 Amendment
The Court explained that the object of Parliament enacting the Advocates Act was to consolidate the law relating to legal practitioners. The prominent role of the Bar Council of India, the apex body, is apparent from the functions prescribed for the Bar Council of India under Section 7 of the said Act. While the provisions do not entrust the Bar Council of India with direct control of legal education, as primarily legal education is within the province of the universities. Yet, the Bar Council of India, being the apex professional body of the advocates, is concerned with the standards of legal profession and the equipment of those who seek entry into that profession.
It was hence, held that neither these provisions, nor the role of the universities to impart legal education, in any way, prohibit the Bar Council of India from conducting pre-enrolment examination, as the Council is directly concerned with the standard of persons who want to obtain a license to practice law as a profession.
Explaining that Bar Council of India has much larger powers and authority, the Court disagreed with the reasoning in V. Sudeer case that because the State Bar Councils’ power for providing training or for holding examination was taken away by the 1973 Amendment, it ipso facto amounts to taking away such powers if they so vested with the Bar Council of India.
“The legislative object was clear i.e. not to confer such powers on the State Bar Councils. However, that could not affect the position of the power of the Bar Council of India, and naturally such a power existed. If the Bar Council of India never had such a power, then the same could not be read by implication. But, if the Bar Council of India had sufficient powers, then the 1973 Amendment would not take away those powers of the Bar Council of India as the said amendment did not deal with the aspect of the powers of the Bar Council of India.”
The Court also referred to Section 49(1)(ag) of the Act, which while dealing with the general powers of the Bar Council of India to make rules, specifically stipulates that the class or category of person entitled to be enrolled as advocates, is an aspect for which all powers have been conferred on the Bar Council of India. Thus, the provision for an examination for enrolment of advocates by the Bar Council of India can hardly be doubted.
The Court, hence, held that V. Sudeer case lays down incorrect position of law.
Suggestions to the Bar Council of India regarding conduct of AIBE
- Timely Conduct: The schedule of conducting All India Bar Examination twice in a year should be strictly followed as otherwise the students with law degrees would be left idling their time.
- Whether only on passing the examination from a law University/College or obtaining such a degree should a person be eligible to take the All India Bar Examination?: In India, the various recognised institutions providing law degrees often declare results at different times and a person on account of non-declaration of result may lose out on the opportunity to appear in the All India Bar Examination leading to a fairly long hiatus period of time without having the opportunity to work in court proceedings. Hence, the students who have cleared all examinations to be eligible to pursue the final semester of the final year course of law, on production of proof of the same, could be allowed to take the All India Bar Examination. The result of the All India Bar Examination would be subject to the person passing all the components required under the course of study of the University/College. This would be subject to the All India Bar Examination results being valid for a specified period of time.
- Eligibility to perform specific tasks during hiatus period between the date of passing the examination from a law University/College and the date of enrolment: During the period between the date of passing the examination and the date of enrolment, any graduate with the degree who is yet to appear for the Bar examination or get enrolled under the said Act should be able to do all the tasks allied to the legal profession other than the function of acting or pleading before the courts.
- Determination of Seniority at the Bar: The determination of seniority in case of a post-enrolment examination based on the date of birth of an advocate is stated to have statutory recognition under Section 21 of the said Act currently and, thus, a similar criteria would suit in any pre or post enrolment examination.
- Attempts to pass AIBE: While the Court observed that the number of attempts to pass the All India Bar Examination should be limited, it did not prescribe the number of opportunities available to a law graduate to take the All India Bar Examination, especially when it is only on passing the All India Bar Examination that he would be entitled to be enrolled in a pre-enrolment examination. In case of a post-enrolment examination, the period of two years between enrolment and passing the All India Bar Examination is already specified.
- Sabbatical from Advocacy: There may be persons, who may take up other jobs and may want to enrol themselves as advocates later at some stage. There may also be persons who despite being enrolled at the Bar, decide to take another job and come back into the profession after a considerable period of time, at times even post retirement. For such cases, appropriate rules can be framed laying down that an enrolled advocate who takes up an employment in a non-legal context for a substantial length of time (say for five years) would be deemed to be a new enrolee and in order to regain the qualification, that person would be required to take the All India Bar Examination once more. The requirements of an active legal practice and that of an unconnected job are different. Even if a person has a law degree or enrolment, it does not mean that his ability to assist the court would continue with him if there are long hiatus period of time in some unconnected job. He would have to hone and test his skills afresh. Thus, if there is a substantial break, norms should be specified by the Bar Council of India that to regain that qualification, the person would be subject to re-examination and would be required to take the All India Bar Examination once more.
- Time limit for validity of result: The validity of the result obtained by any candidate in any pre-enrolment or a post-enrolment bar examination may be limited by time, but this would be a policy matter for the Bar Council of India to consider, and the Bar Council of India can exercise its power to issue directions under Section 48B of the said Act to ensure uniformity and fairness of the procedure followed by each of the State Bar Councils.
- Fee for enrolment: As different State Bar Councils are charging different fees for enrolment, Bar Council must make sure that a uniform pattern is observed and the fee does not become oppressive at the threshold of young students joining the Bar.
The Court urged the Bar Council of India to be more conscious of the importance of the role it has to perform, including ensuring that the only persons who are well equipped with the tools of law pass the All India Bar Examination.
The Court also made clear that this judgment will be prospectively applicable so that it does not disturb the scenarios which have prevailed during the interregnum period.
[Bar Council of India v. Bonnie Foi Law College, 2023 SCC OnLine SC 130, decided on 10.02.2023]
*Judgment authored by: Justice Sanjay Kishan Kaul
Amicus Curiae: Senior Advocate K.V. Vishwanathan