AIBE Challenge: Pre-Enrolment Exam Is The Most Appropriate: AG KK Venugopal And Amicus Curiae KV Vishwanathan Tell Supreme Court

A Constitution Bench of the Supreme Court on Tuesday began hearing a batch of petitions challenging the validity of the All-India Bar Examination. The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. The lead petition is an appeal by special leave preferred by the Bar Council of India against a 2008 decision of the Madhya Pradesh High Court in a case dealing with the grant of affiliation and recognition to a law college. When the matter travelled to the apex court in appeal, a three-judge Bench headed by Chief Justice T.S. Thakur referred it to a Constitution Bench composed of five Judges for final determination of the "questions of considerable importance affecting the legal profession in general" that were raised before the apex court. It was during the pendency of this petition that the Bar Council of India, under the chairmanship of Senior Advocate Gopal Subramanium, had decided to conduct an all-India bar exam for the first time in 2010. After more than six years since the referral, and more than 14 years since the High Court ruling, the Constitution Bench is set to finally lay the controversy to rest. The Court is being assisted by the Attorney-General of India and Senior Advocate K.K. Venugopal as well as Senior Advocate K.V. Vishwanathan. The counsel submitted that a qualifying examination as a form of quality control is not just essential to maintain the standards of the legal profession, but is also intra vires the Advocates Act, 1961. The power to make rules to conduct such an examination is conferred on the Bar Council of India under Section 49(1)(ag) of the Act. The crux of the submissions made by the Attorney-General and the amicus curiae was that by shifting to a scheme of pre-enrolment examination, the existing problems would evanesce. BCI Chairman and Senior Advocate Manan Kumar Mishra, and Vice-Chairman, S. Prabakaran, appearing on behalf of the Bar Council of India, agreed with the recommendation to conduct the bar examination before enrolment. The matter is listed to be heard again on Wednesday, September 28.Background The establishment of the Bar Council of India can be traced back to the recommendations made by the All India Bar Committee which in March 1953, submitted a report proposing the creation of a bar council for each state and an all-India bar council as an apex, regulatory body. This was followed by the 14th Law Commission of India Report on Reform of Judicial Administration (1958). Pursuant to the recommendations made in the two reports, in 1961, the Parliament enacted the Advocates Act, 1961. The purpose of the Act, as elucidated in the Preamble, is to "amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar." In 1995, the Bar Council Training Rules were framed in the purported exercise of Section 7 read with Section 24(3)(d) and Sections 49(1) and 49(2) of the Advocates Act. However, they were struck down by the Supreme Court in V. Sudeer v. Bar Council of India & Anr. [(1999) 3 SCC 176]. It was held that framing rules for pre-enrolment training was beyond the competence of the Bar Council of India. The Court had observed – "We appreciate the laudable object with which the Bar Council of India has framed the impugned rules for providing training to the young entrants to the profession by laying down details as to how they should get appropriate training during their formative years at the Bar. Unfortunately, for the Bar Council of India that right thing has not been done in the right manner." In 2010, the Bar Council of India introduced the scheme of conducting a national qualifying examination for lawyers who had already been provisionally enrolled, to be fully admitted to the bar. Justice Thakur's Bench, in Bar Council of India v. Bonnie Foi Law College [(2017) 11 SCC 192(2)] had noted – "One of the questions that has been raised for determination by this Court is whether the Bar Council of India is competent to prescribe an examination post enrolment of an advocate as a condition of eligibility for his continuing to practice at the Bar." The three questions that have been referred by the three-judge Bench are: (1) 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 Sudeer vs. Bar Council of India & Anr. [(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. (3) In case questions 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...

AIBE Challenge: Pre-Enrolment Exam Is The Most Appropriate: AG KK Venugopal And Amicus Curiae KV Vishwanathan Tell Supreme Court

Awstika Das

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