Validity of All India Bar Examination
Legal Article: BAR COUNCIL OF INDIA VS BONNIE FOI LAW COLLEGE & ORS
Abstract:
One of such important features in human evolution specially in legal field is the right to have access to information and knowledge in development of legal field in new law as well as in latest land mark judgement passed by judiciary. And it is well known that AIBE (All India Bar Examination) is one an examination for registration for passed law student as an Advocate for whole territory. Recently a Landmark Judgement passed by SUPREME COURT IN REGARD Validity of All India Bar Examination. This article aims to give brief about case which include facts, issue, judgement, conclusion, arguments of the both parties. This article contains the arguments of both parties.
INTRODUCTION:
The term “Bar Council” is commonly used to refer to individuals associated with the Legal Fraternity. However, despite its widespread usage, it is often misunderstood and primarily known for its historical significance. In simple terms, the “Bar” refers to a group of advocates or attorneys who are authorized to practice in specific or all courts of a state. Looking back at history, we discover that the term “bar” originated from the Courts of England, where a physical partition was used to separate Court officers, barristers, and attorneys from litigants and the general public.
Authoritative sources, such as Black’s Law Dictionary, define the “Bar” as the railing that separates the front area of the court, where the judge, court personnel, lawyers, and witnesses conduct court proceedings, from the back area where observers sit. The same dictionary also defines the “Bar” as the entire body of lawyers who are qualified to practice in a specific court or jurisdiction, or as a subset of the legal profession. In the modern context, the term “bar” has gained significant importance due to changes in the dynamics of the legal profession. It now collectively refers to advocates who are licensed by the appropriate authority to practice in specific or all courts within the state’s jurisdiction.
Frequently, in a global context, the terms “bar councils” and “bar associations” are used interchangeably to refer to a professional and often statutory body that regulates the legal profession in a specific country. These bodies ensure that minimum standards of conduct and ethics are followed in courts of law and may also oversee legal education and the legal profession. However, in the Indian context, “Bar Council” and “Bar Association” are two distinct organizations with different functions, powers, and legal statuses. While both bodies work towards strengthening and uplifting the legal profession and fraternity in India, they operate within their own clearly defined boundaries. This article will focus exclusively on the “Bar Council” due to the limitations of the research proposition.
Section 5 of the Advocates Act, 1961 establishes that every Bar Council is a “Body Corporate” with a common seal and perpetual succession. Granting the bar council of India, the status of a “body corporate” carries various legal implications. The primary objective of this article is to analyse these consequences from a legal perspective. However, before delving into the specificities of the Bar Council’s status as a Body Corporate, it is important to briefly examine the history and structure of Bar councils in India.
Fact with arguments:
In April 2010, the Bar Council of India implemented the All-India Bar Exam (AIBE) in order to enhance the standards of the legal profession in India. The AIBE evaluates a candidate’s fundamental understanding of the law and their analytical abilities, which are the minimum requirements to qualify as an advocate. Successful candidates are granted a ‘Certificate of Practice’ by the Bar Council of India, signifying their qualification as an advocate.
On April 30th, 2010, the Bar Council of India released the ‘All India Bar Exam Rules, 2010’. These Rules made it mandatory for advocates to pass the AIBE in order to practice law in India. Previously, lawyers only needed a law degree and enrolment in their respective State Bar Council to practice as advocates.
On October 30th, 2014, the Bar Council of India formulated the Certificate of Practice and Renewal Rules, 2014. These Rules stated that advocates who enrolled in State Bar Councils in June 2010 must obtain a Certificate of Practice within six months. Those who enrolled after June 2010 were required to appear for the AIBE to obtain their Certificate of Practice.
On January 13th, 2015, the BCI issued the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015. These Rules establish two categories of advocates—practicing advocates and non-practicing advocates. Non-practicing advocates are not eligible for the benefits of welfare schemes for advocates and are not permitted to vote in Bar Council elections. The Rules also mandate advocates to renew their Certificate of Practice every five years, failure to do so will result in being listed as defaulting advocates.
Bonnie FOI Law College approached the Supreme Court on July 7th, 2008, regarding the inspection, recognition, and accreditation of law colleges in India. The matter also included the issue of pre-enrolment qualifications and the All India Bar Exam, following the passing of the 2010 Bar Council Rules. Subsequently, advocates who were previously enrolled and newly enrolled advocates challenged the 2014 and 2015 Rules issued by the Bar Council of India.
The petitions argue that these Rules contradict the decisions made in V. Sudheer v Bar council of India (1999) and Indian Council of Legal Aid and Advice v BCI (1995). In these cases, the Supreme Court ruled that the BCI cannot impose subordinate rules that go against The Advocates Act, 1961 (the Act), on advocates. Section 30 of the Act grants all advocates, enrolled in a State roll of advocates, the right to practice before all Courts, including the Supreme Court, tribunals, and other judicial authorities. V. Sudheer also established that the Bar Council of India cannot impose pre-enrolment training on candidates. The Bar Council can only issue rules governing advocates after their enrolment.
On March 1st, 2016, a 3-Judge Bench consisting of former CJI J.S. Thakur and Justices R. Banumathi and U.U. Lalit observed that the right to practice law is not only a statutory right under the Act but also a fundamental right for LL.B. degree holders. The Bench noted that an examination that grants licenses to advocates undermines this right. They clarified that they were not against the exam itself but wanted to determine if the AIBE was in accordance with the ‘parameters of law’.
On the day, March 18th, 2016, the 3-Judge Bench referred the challenge to the All-India Bar Exam to a 5-Judge Constitution Bench (SUPREME COURT).
On the 20th of August, 2022, a panel of five judges, including Justices S.K. Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari, ordered that the case be scheduled for final hearings starting from the 27th of September, 2022. The case was deliberated upon for a duration of two days, specifically on the 27th and 28th of September. Subsequently, on the 10th of February, 2023, the panel affirmed the authority of the Bar Council of India to administer the All India Bar Examination.
On August 24th, 2022, the Supreme Court announced its plan to hear 25 Constitution Bench matters starting from August 29th, 2022, and the AIBE challenge was included in this list.
ISSUES:
Is the Bar Council of India capable of mandating an examination after an advocate has been enrolled as a requirement for them to continue practicing at the Bar?
Can the BCI legally prescribe a pre-enrollment examination under the Advocates Act, 1961?
If the answers to Questions 1 and 2 are no, can the Bar Council of India still validly prescribe a post-enrollment examination according to Section 49(1) (ah) of the Advocates Act,.
Judgement:
(1) Pursuant to the direction of the Court, a committee appointed by the Court, consisting of the Chairman and Vice Chairman of the Bar Council of India, the Director of the National Judicial Academy, and Prof. N.M. Mitra, former Director of the Law School in Bangalore, visited Barakatullah University, Bhopal, and Bonnie Foi Law College on July 16, 2009. The Committee presented a comprehensive report highlighting several deficiencies in the infrastructure and functioning of the College. Additionally, the Committee proposed the following requirements to ensure a minimum standard of legal education and obtain approval for affiliation from the Bar Council of India:
1. The University must grant affiliation in accordance with its rules.
2. A competent principal must be appointed with sufficient authority and autonomy.
3. The faculty must be confirmed as full-time and possess adequate competence, motivation, and commitment. The University and Bar Council of India should conduct an independent and detailed evaluation of the faculty’s capacity and competence. Furthermore, a staff training and development program is necessary.
4. The library and computer centre must be strengthened and effectively utilized as integral components of the teaching process.
5. The University must establish a continuous quality evaluation mechanism to monitor the Institution.
6. The physical infrastructure must be properly maintained to provide a hygienic and conducive learning environment.
(2.) Mr. Anoop G. Chaudhary, a knowledgeable senior counsel representing Bonnie Foi College, has brought to our attention the affidavit of Dr. G.K. Iyer filed on 6.10.2009. Due to lack of time, the Bar Council of India was unable to file a response to the affidavit. Mr. Chaudhary has stated that the deficiencies mentioned in the Committee’s report have been rectified and he requests that the Committee be asked to inspect the Institution again and submit a fresh report to the Court. Additionally, Mr. Chaudhary submits that the College should be given another opportunity to demonstrate that all the shortcomings pointed out by the Committee have been addressed.
In the interest of justice, we believe it is appropriate to request the same Committee to promptly visit Barkatullah University and Bonnie Law College. The Committee is asked to thoroughly examine whether the concerned College has diligently followed all the directions provided in the Committee’s report dated July 16, 2009.
(3.) The Bar Council will specify the amount of expenses required for conducting the fresh inspection. Upon receiving the letter from the Bar Council, the College will deposit the mentioned amount with the Bar Council of India within one week.
What actually said:
The SC, in this Civil Appeal, deliberated on the extent of the Bar Council of India’s authority. Specifically, the court examined the legality of the All-India Bar Examination. Recognizing that the quality of lawyers is crucial to the administration of justice and access to justice, the court emphasized the importance of ensuring competent legal professionals. In this regard, the court acknowledged the continuous efforts made to maintain quality control over time.
The court concluded that the legislative objective was clear: the State Bar Councils were not intended to possess such powers. However, this did not diminish the authority of the Bar Council of India, which naturally possessed such powers. If the Bar Council of India did not have these powers initially, they could not be inferred by implication. Conversely, if the Bar Council of India already had sufficient powers, the 1973 Amendment would not have revoked them, as it did not address the issue of the council’s authority.
Consequently, resolved the Civil Appeal.
Conclusion:
In 2010, the BCI introduced the All-India Bar Examination (AIBE) along with the initial set of rules. Subsequently, the Bar Council formulated the ‘Certificate of Practice and Renewal Rules, 2014’, which made it compulsory for advocates who were enrolled after June 2010 to appear for the AIBE in order to obtain the Certificate of Practice.
In 2015, the Bar Council introduced the Bar Council Certificate of Practice (Verification) Rules, which categorized advocates into two groups: practicing and non-practicing.
These rules faced opposition on the grounds that they contradicted the decisions of V. Sudheer and the Indian Council of Legal Aid and Advice.
The Supreme Court, in these decisions, ruled that the imposition of rules by the Bar Council was in violation of the Advocates Act, 1961, and that advocates have the right to practice before all courts.
In March 2016, a three-judge bench acknowledged that the right to practice law is a fundamental right for LLB graduates but referred the challenge to the AIBE to a Constitution Bench.
On February 10, 2023, the Constitution Bench determined that the Bar Council of India must determine whether the AIBE should be conducted before or after enrichment.
While upholding its validity, the Apex Court also noted that the judgment of V. Sudheer, which addressed the powers of the Bar Council of India, does not accurately reflect the legal position and cannot be sustained.
Reference:
1. casemine.com
2. Indian kanoon
Author: – SHYAM Kumar , a Student of ASIAN LAW COLLEGE AFFILIATED FROM CHAUDHARY CHARAN SINGH UNIVERSITY
