Ensure Quality Entry Into Legal Profession; Improve Bar Exam Standards: Supreme Court To BCI

While hearing the Bar Council of India's ("BCI") challenge to the judgment of the Gujarat High Court, which allowed persons with other employment, whether full time or part-time, to enrol as Advocates without resigning from their jobs, the Supreme Court, on Tuesday, observed that it is high time the BCI introspects on the mechanism it has set out to conduct the bar examination as well as the quality of the examination. Concerned about the existing regulation pertaining to the entry to the legal profession, a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh stated that it is prima facie inclined to make recommendations for improving the system at entry level. In view of the same, the Bench asked the Amicus Curiae, Senior Advocate, Mr. K.V. Viswanathan to make suggestions. "…prima facie, I am inclined to say something. I want to also mention something on the responsibility of the Bar Council to hold proper exams and make recommendations on how to improve the system at entry level. Make some suggestions…", Justice Kaul said. At the outset, Mr. Viswanathan stated that the Bench by its order dated 03.12.2021 had set out the contours of the issue to be examined by it. He submitted that he has some preliminary thoughts on the issue at hand. "I have prima facie thoughts in the matter. My own view is that by going by precedent, your lordship, would consider BCI the power to regulate entry. This last para 33 says that it can be worked out without giving enrollment. Because a sanad is a very valuable document." Para 33 of the impugned High Court order reads as under - "We read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part-time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice" Referring to the aforesaid portion of the High Court order, Mr. Viswanathan suggested that a mechanism can be worked out where people coming from employment are not enrolled and given the certificate at the outset, but put up on a register qualifying them to write the examination and the enrollment would follow the outcome of the examination. This would also ensure that seniority and other enrollment benefits do not accrue to them until and unless they clear the bar examination. "…Your lordship might think of a mechanism where they are not enrolled and given a certificate, but put on a register that qualifies them to write the exam and thereafter give them enrollment. Benefits of seniority etc. which enure to an enrollee does not enure to them because a sanad is given to a serious practitioner who is otherwise unincumbent." Harish Uppal's judgment was cited by Mr. Viswanathan, wherein the Supreme Court had elaborately dealt with the scope of BCI's power and nature of the legal profession, to argue that though the profession should be more inclusive it cannot impinge on the power of the Bar Council. "In our social milieu a person might be undergoing employment and being the liberal profession we need to welcome people from different walks of life, but to say that he would be enrolled and then he would suspend and write the exam impinges on the power of the BCI." He suggested that the person coming from employment might be permitted to enroll with the Bar once they qualify the written examination and after a rigorous viva. "While he qualifies for enrolment, he should not be put on the enrolment register with a number. He should be enrolled when he qualifies for the exam. I recommend that those who come from employment be subjected to rigorous viva…It can be taken care of if there is a separate register where they are not enrolled, registered for the purpose of the exam and then be subjected to a rigorous viva." Reckoning that he does not mean to doubt the ability of the person coming from employment, Mr. Viswanathan mentioned about Justice Robert H. Jackson, who though not a law graduate went on to become a judge of the U.S. Supreme Court. "Your lordship would know, Justice Jackson was not even a lawyer, not even a law graduate, he went on to become US Supreme Court judge, prosecutor in the Nuremberg trial." The Bench thought that it might not be proper to permit enrollment while a person still holds onto their existing employment. "What is troubling us is that while expanding the scope of people entering the profession, I find it prima facie difficult to accept that somebody can ride both the boats together…" The Bench also took note ...

Ensure Quality Entry Into Legal Profession; Improve Bar Exam Standards: Supreme Court To BCI

Sohini Chowdhury

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