Bar Council Of India Has Powers To Prescribe All India Bar Examination : Supreme Court; Overrules 'V Sudeer' Judgment

A Constitution Bench of the Supreme Court on Friday upheld the power of the Bar Council of India to require law graduates to qualify for the All-India Bar Examination as an eligibility criterion to practise law in India. Whether the qualifying examination should be held before or after enrolment was a matter best left to the discretion of the bar council, the bench said. Notably, the decision in V. Sudeer v. Bar Council of India, (1999) 3 SCC 176, in which the top court had held that no condition, other than those enumerated in Section 24 of the Advocates Act, could be imposed on a person wishing to practise law, was overruled. Such norms or rules, it was held, could be prescribed by the bar council since the Advocates Act, 1961 conferred on it 'adequate powers'.The five-judge Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari held:"The objective of the legislature while giving wide powers to the Bar Council of India under Section 49 of the Advocates Act which gives it the power to prescribe rules, read with Clause (d) of Sub-section (3) of Section 24, which gives it the power to prescribe norms for entitlement to be enrolled as an advocate under the rules of the Bar Council of India, leads us to the conclusion that these are adequate powers with the Bar Council of India under the said act to provide for such norms and rules. We are, therefore, of the view that while considering the question referred to us, the only conclusion is that the interdict placed by the judgement of this court in V. Sudeer on the powers of the Bar Council of India cannot be sustained and we cannot hold that this decision laid down the correct position of law. The effect of the view expressed by us would be that it is left to the Bar Council of India as to at what stage, the All-India Bar Examination will be held, that is, pre-enrolment, or post-enrolment.""There are consequences, especially with respect to the interregnum period, which would arise in either scenario. It is not for this court to delve into them, but for the Bar Council of India to consider both the situations," said Justice Kaul, while pronouncing the judgement. However, he explained further that "in view of the larger ramifications", the bench has delved into some, though not all the aspects, particularly in light of the suggestions by amicus curiae K.V. Viswanathan. The two most important recommendations that found favour with the bench were that of allowing final-year students to appear for the All-India Bar Examination in their final semester, and the recommendation to mandate persons who had been employed in a 'non-legal context' for five years or more to take the qualifying examination again, in order to be eligible to practise law.The report will be updated after the judgment is uploaded. Background This development comes days after the seventeenth AIBE was conducted across India. In September of last year, the top court had, after two days of hearing, reserved its verdict on a batch of petitions challenging the validity of the qualifying examination conducted by the Indian bar council.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 has finally laid the controversy to rest. The three questions that were 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 v. Bar Council of India, (1999) 3 SCC 176) requires reconsideration.(2) 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 Section 49(1)(ah) of the Advocates Act, 1961. The Court was assisted by the then-Attorney-General for India and Senior Advocate K.K. Venugopal and Senior Advocate K.V. Viswanathan, both of whom argued in favour of...

Bar Council Of India Has Powers To Prescribe All India Bar Examination : Supreme Court; Overrules 'V Sudeer' Judgment

Awstika Das

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