On 26.08.2019, a notification was issued by the Bar Council of Delhi with regard to the non-passing of the All India Bar Examination (AIBE). As per the notification, since 2010, a total number of 4,778 advocates had failed to qualify the exam and thus, were "not entitled to practice or enjoy any benefits, including voting right in the Bar elections". A candidate is allowed to practice with their State Bar Council enrolment for a period of two years and within this period, they are supposed to clear the AIBE if they wish to continue an uninterrupted practice; the exam can be taken multiple times. Before any petition could be filed challenging the notification, the BCD rescinded the same with the issuance of letter dated 11.09.2019, citing discrepancies in the list. Such incompetence and irregularities have been rampant in the administration of AIBE. With the AIBE XIV on 15.09.2019, the legality of the exam, as well as its implementation, has become a talking point in the legal fraternity.
Proposed in the year 2010 by Senior Advocate, Gopal Subramanium, the introduction of the AIBE was encountered with multiple petitions demanding its revocation by invoking Section 24 of the Advocates Act, 1961 which did not account for post-enrollment qualification for eligibility to practice law. In the 1999 case of V. Sudeer v. Bar Council of India, it was held by the Apex Court that post-enrollment qualifications were unconstitutional and would require an amendment to the Advocates Act. The necessary amendment was carried out, with the AIBE Rules, 2010 being subsequently notified. However, in 2016, 13 petitions were filed, challenging the amendment and the AIBE, which were clubbed with the 2008 case of Bar Council of India v. Bonnie FOI Law College and the case was referred to the Constitution Bench. However, till date, there has been no news regarding the same.
The exam was meant to raise the standards of legal education in India and act as a sieve to distinguish between candidates who were truly invested in the practice of law and candidates who would not be valuable additions to the legal fraternity. Unfortunately, Mr. Subramanium's vision for the exam to be of "international quality and repute" has yet to see the light of day.
The AIBE was executed in order to propel newly minted law graduates into an arena wherein they could dispel quality work and prove their mettle post the rigour of 3 or 5 years of law school. Countries such as the United States of America, England, Germany, Singapore etc. have varied examinations and apprenticeships in order to mold future lawyers and give them a taste of what their future work-life would entail. Law, being a noble profession and for the dispensation of justice, requires the best of the best to be able to practice the same. With the cropping up of multiple law schools all over the country, there has been a significant degradation in the quality of work and has led to a rise in half-baked lawyers.
The Bar examination in US spans over a period of 2-3 days and consists of essay questions and standardized tests. England, per contra, requires law graduates to undertake the Bar Professional Training Course (BPTC) or the Legal Practice Course (LPC). Comparatively, the AIBE is a farce of an examination which, in no way whatsoever, achieves its end-goal of increasing the standards of lawyers.
Though implemented with good intentions, the AIBE has been fraught with delays, poor execution, and constant criticism. As per the message dictated by Mr. Subramanium during his days as the Chairman of the BCI, the purpose of the exam being held in December was to allay discriminatory fears regarding favouritism toward few law schools which declared their results earlier, which would provide their students an undue advantage. Additionally, the exam was to take place twice in a year. However, this year, the first exam has already been delayed and is being held on 15.09.2019. It can be assumed at this point that AIBE XV may not be held in December 2019. Therefore, the erratic scheduling of the exams by the Bar Council of India has contributed to the ever-increasing hoops that law graduates have to jump through, without a justified reason. There has been a clear departure from the vision with which it was implemented.
Since its inception, the complaints regarding AIBE have been mounting. The centers where the exams take place are located in areas that are inaccessible; invigilators rarely show up, and when they do, they tend to remain aloof or even end up helping the students cheat. In spite of being an open-book exam, the level of difficulty of the exam is incredibly low, if not an absolute insult to a law graduate's intelligence, thereby rendering the very purpose of the exam to raise the standards of new entrants into the profession infructuous.
The Bar Council of India has displayed extremely lax behavior when it comes to adherence of timelines. More often than not, the exam gets postponed. This ends up causing immense problems for lawyers who are required to travel to other cities in order to sit for the exam. In addition to the above, Rule 11 of the AIBE Rules, 2010 categorically states that "The Certificate of Practice shall be issued by the Bar Council of India to the address of the successful advocate within 30 days of the date of declaration of results." It is safe to say that the candidates whose positive results had been declared in March 2019, are yet to receive their Certificate of Practice.
It is also pertinent to note that the burden of cost on a candidate is excessively high. Enrolment at a State Bar Council easily sets back a budding lawyer by almost Rs. 10,000. Adding to that, the cost of registering for the exam is Rs. 3,500. In 2010, the letter issued by Mr. Subramanium stated that an advocate would have to pay Rs. 1,300 as a fee to appear for the exam, and the fee would include preparatory materials. No preparatory materials have been dispatched to the candidates over the last 5 years or so, and the rising exorbitant fee has only deterred multiple eligible advocates from sitting for the exam. The purpose of the exam to provide a standardized base to test the quality of knowledge of students from all backgrounds is yet to be achieved.
Infrastructure and administrative deficiencies are rampant when it comes to the proper facilitation of exams at a national level. The authorities bite off more than they can chew, which consequently leads to horrific repercussions for the advocates. In 2012, the exam was cancelled in Jaipur and Bhopal due to lack of question papers available. There have been multiple allusions to the fact that the decision of BCI to provide the contract to ITES Horizon Pvt. Ltd. was done under surreptitious circumstances, which could very well be the cause of rising costs and the poor execution.
One can, for the sake of the benefit of doubt, sympathise with the BCI for being unable to implement the exam properly as the number of students who enroll to give the exam is very high. Additionally, being a pan-India exam, the burden on the BCI to ensure a smooth road to success is huge. However, that does not absolve BCI from reducing the standards of their implementation. BCI cannot renege on its promise to ensure fair and proper execution of the exam and must pull up its socks as its failure directly infringes upon a law graduate's fundamental freedom to practice their profession.
Mr. Gopal Subramanium had quite rightly noted that the AIBE was a crucial step required to strengthen the legal system in India. With almost a thousand law colleges spread over the country and the BCI's low threshold for providing them accreditation, there is an urgent need for a filter that can separate the wheat from the chaff. However, in order to make sure that this crucial step sees the light of day, the BCI must be put to task and should completely overhaul its management of the exam and redesign the structure of the question paper. In order to ensure and maintain the calibre of the legal profession and bring it on par with international standards, there is an urgent need for the BCI to put aside its lackadaisical nature and breathe life to Mr. Subramanium's vision.
Radhika Roy is a Delhi based lawyer.
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