Senior advocate KK Venugopal was appointed a friend of the court in the 13-petition challenge to the Bar Council of India’s All India Bar Examination (AIBE) listed today, before a three-judge bench of the Supreme Court.
The Supreme Court may begin final arguments, next week, possibly before a constitution bench, to dispose of the year 2008 Special Leave Petition (SLP) entitled Bar Council of India V Bonnie FOI Law College.
The chief’s (CJI) court, along with justices R Banumathi and UU Lalit asked petitioners in the case to submit, within three days, their suggestions on whether a constitution bench should hear this challenge, to Venugopal and to the court.
The petitions of Anuj Aggarwal, Amit Sahni, Murali Prasad, Ashima Bindlish, Divya Sharma, Kayval Shah, M Radhakrishnan, Babubhai Waghela, Sunil, Bharat Agarwal, R Nagabushana, Abhilash Thampan Panicker and Sujith Menon that were pending in various high courts and in the Supreme Court, came up for hearing today.
Bar Council of India chairman Manan Kumar Mishra, who was appearing along with BCI counsel Ardhendumauli Prasad, submitted to the bench that since it is a larger bench than the two-judge bench that decided against the validity of “post enrolment qualifications” for advocates, in the year 1999 case of V Sudeer Vs Bar Council of India, the current bench may “reconsider” V Sudeer.
However the bench was of the view that since it has to address a critical question of law in the case, it will examine it independently and lay down an authority, advocate Kartik Seth told Legally India.
Seth was appearing for a year 2010 AIBE-petitioner Anuj Aggarwal. Karnataka resident R Nagabushana, through his advocate, was the only other party in the case to have appeared today, said Seth.
Nagabushana’s writ challenging the AIBE was first listed before a bench of the CJI and justice Lalit on Tuesday. The court clubbed it with SLP (C ) 22338/2008 – Bonnie FOI – and listed it next on Wednesday.
On Wednesday, after Prasad informed the bench that several petitions challenging the AIBE were pending in various high courts, the bench ordered the clubbing of all petitions and listing the case today:
“List these matters on Friday, 4th March, 2016 along with T.C. No.36/2011, 15/2011, 18/2011, 12/2011, 88/2012, 16/2011 and 13/2011.”
Justice UU Lalit had observed, in court, on Wednesday: “The right to practice law is there in the Act (the Advocates Act). When (Bar Council of India) says that a person will not be able to practice law without clearing the exam, then you are taking away the same right”, reported the PTI and Live Law.
“To say that one has to pass an examination for practicing as an advocate will negate his or her right to profession. He has a fundamental right to practice. Conditions can’t be put after enrolment. If, at all, it is required, the condition should be put at the enrolment stage”, added justice Lalit.
Bonnie FOI Law College was the first petitioner to challenge the legality of the AIBE, when the exam was first introduced in 2008. Then-BCI-chairman senior advocate Gopal Subramanium had argued for the BCI before the Supreme Court and obtained a stay on Bonnie FOI’s Madhya Pradesh high court win against the AIBE.
The AIBE has continued without a break since then, except for the breaks in schedule afforded by the BCI’s regular track-record of delays in holding the exam.
UPDATE: What went down today
CJI: “Questions have been raised whether post-enrolment examination is justified. If the amendment of the Act is required, we will recommend. It will be better if the matter is referred to a larger bench. The problem has to be settled once and for all.”
KKV: “We have been emphasising continuing legal education even after enrolment.”
CJI: “If you could prepare a list of points to be formulated. What should be the points to be referred? (Looking towards BCI’s Mishra) It is a matter of {defining} moment for the entire profession. It is time to introspect. Some are stabbing, some are fighting, and some are arguing.”
Petitioner: “We are not per se against exam.”
CJI: “Give us different dimensions of the issues. We will pass an order. There is a right to practice.”
Petitioner: “If someone becomes the BCI chairman today, and if he can’t clear the bar exam, we will have a situation, when the BCI chairman can’t practice law, although he will have the right to practice, as per law.”
CJI: “So, next three or four days, please discuss among yourselves and give us the suggestions.”
Comments
1) Before enrolling for Law studies, Student must be educated.
2) If the Advocates Act is not allowed to impose the condition to pass the AIBE, CJI should cancel all the previous exams.
3) If the exam need to be mandated, that should be in force for the students enrolling for Academeic Year 2016-17. The same should be educated among the Incumbent student.
4) Prior the exam, BCI menbership fee should not be collected.
rules.—(1) The Bar Council of India may make rules for
discharging its functions under this Act, and, in particular, such
rules may prescribe—
(ah) the conditions subject to which an "advocate" shall have
the right to "practise" and the circumstances under which a person
shall be deemed to "practise" as an "advocate" in a court;
If Section 7 and Section 49(1)(ah) of the Advocates Act are amended to replace the word “advocate” with the words “law graduate” at appropriate places, then the Bar Council has the authority to conduct the AIBE exam PRIOR to enrolment of the “law graduate” as an “advocate.”
Article 19(1)(g) of the Constitution of India does NOT give a “law graduate” or even an "advocate" absolute fundamental right to practice law. Under Article 19(6) this right is subject to reasonable restrictions in the form of professional or technical qualifications necessary for practising law. The Government (Legislature) has authority to make law or delegate power to Bar Council to prescribe the qualifications for the legal profession. AIBE exam is a bare minimum reasonable restriction for ensuring uniform quality of advocates across India without discrimination as to race, sex, cultural or economic background.
In fact, in order to ensure and assure quality in the legal profession, Supreme Court should mandate that all lawyers should take the AIBE every 5-odd years, whether it be advocate Harish Salve or a fresh law graduate advocate–-no discrimination whatsoever should be tolerated.
What we have in the legal system today is thousands of incompetent riff-raff getting law degrees through cheating, bribing, hook-or-crook, and then getting enrolled as “advocates.”
Not only that, there are also several thousands of advocates who, after getting a law degree, consider it fait-accompli and never bother to update their knowledge of the law, and fool clients daily.
When such “advocates” are told to take the AIBE, they are the ones who complain loudly that their “right to practise” is being violated, without understanding Article 19(6) of the Constitution which allows such restrictions on their right to practise.
It is high time the Supreme Court get rid of such con-artists by imposing AIBE every 5 years on *every* advocate without discrimination. AIBE is an easy exam to pass for a competent hard working advocate. 40% passing marks are low enough to pass.
If any law graduate cannot make 40% in the AIBE, they do not deserve to be advocates, regardless of how good their intention in becoming a lawyer. AIBE is offered in several languages, so English is not an excuse to not pass. If they cannot pass the AIBE, such people should introspect whether they chose the right profession for themselves and search for another profession in which they are good at–-failure is a fact of life, get over it and find your true calling in life.
(1) Art-14 COI, equality before law, as the AIBE is applicable to those who passed out after 2010. This is discriminatory and creates a class-in-class and cannot stand.
(2) Art-19(1)(g) freedom to practice any profession/occupation/business has been encroached upon.
(3) Syllabus for law courses are prescribed by the BCI and also admittedly periodic inspection is carried out by BCI in the universities/ Law Centres. The plea “To set a minimum standard for admission to practice of law” is hollow and cannot hold any water. If BCI has no confidence in themselves, then for what purpose the inspection is carried out, is it with some hidden agenda?
(4) Moreso, it is anomalous that the standard is not required for people passed out before 2010.
(5) It is a money-making device, because the fee of Rs.900/- has been hiked four times periodically.
BCI has encroached upon the Basic Structure of the Constitution with impunity which even the Parliament cannot do. The Apex Court had ruled that “[The parliament cannot take away or abridge and amend any of the fundamental rights, even cannot touch, because these are sacrosanct in nature” [Re. Keshavananda Bharati vs. Govt. of Kerala AIR 1973 SC1461].[/b] COI is supreme in all such matters.
Moreso, the AIBE is not required for those who passed out before 2010, it is discriminatory and creates a class-in-class as I have already posted, Art-14 Equalilty before law.