Graduating students can work as “trainee advocates” with advocates or law firms but will not be able to “practice” law until they pass the all-India bar exam, the Bar Council of India (BCI) said in a set of frequently asked questions (FAQs) published today, noting also that seniority of practice would be unaffected.
The BCI published more than 50 answers and frequently asked questions (FAQs) on the bar exam on its website today.
The FAQ states: “In order to practice law in India, any student graduating in law from Academic Year 2009 – 2010 onwards will be required to pass the All India Bar Examination.
“An advocate who has not passed the All India Bar Examination can assist an advocate or advocates practicing in a law firm while preparing for the All India Bar Examination.”
“Practically speaking, any law graduate who does not have practical experience at the bar will spend their formative years working under a senior or within a structured system at a law firm. The advocate can continue with such assistance and learning, but will not be allowed to actually practice law themselves (file a vakalatnama, issue opinions etc.) till they clear the All India Bar Examination.”
“Can I practice law in India post enrollment and prior to passing the All India Bar Examination?” asks another of the FAQs, with the response being: “No. You can work as a trainee advocate with an advocate or firm, but in order to practice law in India, you need to have passed the All India Bar Examination.
“This requirement is not unlike that in the United Kingdom, the United States of America and the Commonwealth, where the passing of the Legal Practice Course (LPC), the Bar Vocational Course (BVC, to be the Bar Professional Training Course from 2011) or the Bar Examination is a necessary step for moving from being a Trainee Solicitor, a Bar Pupil or an Articled Clerk to an advocate, attorney, solicitor or barrister.”
The FAQs do not define further what is meant by practice of law but the December 2009 Bombay High Court decision in Lawyers Collective v Ashurst & ors decided that “practice” of law included all non-litigious matters for clients. While the precise ambit of “practice” was not set out in the judgment, paragraph 55 suggests that non-litigious matters could include “drafting documents/ giving opinion or rendering any other legal assistance”.
The FAQ also set out that seniority of practice will not be affected by the date of passing the exam but only by the enrolment date with the local bar councils,
“I am graduating in 2010 and going abroad to commence my LLM from October 2010. I will not be able to take the All India Bar Examination in December, and when I return in 2011 to work in India, my seniority at the Bar will suffer as I am taking the examination a year later,” asks one of the FAQs, which is answered by: “According to Section 17 of the Advocates Act, seniority is determined by the date of enrolment. Hence, if you enroll prior to going abroad, your seniority will take effect from that date, and not from the date of passing the All India Bar Examination. However, you will only be able to practice law in India once you pass the All India Bar Examination.”
The FAQs also specify that each exam will have a maximum permitted time of 3 hours and 30 minutes, with 40 per cent being the pass mark out of 100 questions. There would be no negative marking, according to the FAQ, and unlimited chances at a re-take in case of failing the exam, which will be held twice per year.
In a separate answer the BCI clarified that there would not be any benefits available for advocates in the scheduled castes (SC) or scheduled tribes (ST) categories.
The BCI announced last week that the exam would be held on 5 December 2010.
To read the full set of FAQs on the BCI website click here.
Picture by Eflon
Comments
"The notification bringing the All India Bar Examination into force was passed by the Legal Education Committee and the members of the Bar Council of India at duly constituted meetings on April 10, 2010 and April 30, 2010."
Do you have a copy of this notification?
Sameer
Is this the one? (courtesy of helpful commenter in last story)
http://www.barcouncilofindia.org/notification-amending-conditions-for-right-to-practice-and-bringing-the-all-india-bar-examination-into-force/
"A resolution was adopted by the Bar Council of India on 10 April 2010 to conduct an All India Bar Examination, the passing of which will entitle an advocate to practice law in India. Consequent to the resolution, the following rules were inserted into Part VI, Chapter III of the Bar Council of India Rules. It is yet to be published in the Gazette of India.
[To be inserted as Rules 9 to 11 in Part VI, Chapter III of the Bar Council of India Rules – Conditions for Right To Practice – under Section 49(1)(ah) of the Advocates Act, 1961]
RESOLVED that as the Bar Council of India is vested with the power of laying down conditions subject to which an advocate shall have the right to practice, these Rules, therefore, lay down such condition of an All India Bar Examination, the passing of which would entitle the advocate to a Certificate of Practice which would permit him/her to practice under Chapter IV of the Advocates Act, 1961.
9. No advocate enrolled under section 24 of the Advocates Act, 1961 shall be entitled to practice under Chapter IV of the Advocates Act, 1961, unless such advocate successfully passes the All India Bar Examination conducted by the Bar Council of India. It is clarified that the Bar Examination shall be mandatory for all law students graduating from academic year 2009-2010 onwards and enrolled as advocates under Section 24 of the Advocates Act, 1961." [... etc ...]
Ques I am currently working with a company as a legal officer and had enrolled as an advocate in 1998. My ability to practice law is currently suspended under Part VI of the Bar Council of India Rules, as I am a full-time salaried employee engaged by a corporation. If I wish to return to the practice of law, will I be required to appear for the All India Bar Examination?
Answer No. The examination notification only applies to students graduating from academic year 2009-10 onwards, and not prior to that. For information on your suspension and returning to practice, please contact the State Bar Council with which you enrolled.
it means that the person who has cleared Law in 1998 is considered more capable for litigation though he is not practicing law then the person of 2009-10 batch, see the height of rash decisions
You definitely need to write the bar exam. An enrolled lawyer who's suspended his sanad stands way different from a young law student with zero practice. Guess, you've forgotten the equality rule under Article 14 of the constitution. How else could you have said that BCI is rash and arbitrary?
By the way I am not affected by this rule that you have put across.
The state of the legal sector will only improve of the general state of the country improves. For that, the stupid and corrupt Congress party must be kicked out. They have ruined India for 50 years. Since UPA I, the Great Dictator Sonia Gandhi and her sidekick Manmohan Singh have burdened this country with the most [...] ministers. Moily leads the pack. He [...] manages to avoid averse media publicity by making grand statements and projecting himself as a reformer, but his achievements are a BIG ZERO. This bar exam is a classic example of Moily's approach of big talk and little action. Everyone knows that the exam is a farce and will have a high pass rate, it's just a way for the BCI to make money. If Moily is really honest and wants to improve legal standards, why is he silent about foreign law firms??
The BJP has far more efficient people. Arun Jaitley was a great law minister and the BJP also has other good people like Mahesh Jethmalani. It's a pity that the BJP gets negative publicity from the commie Indian media.
DOWN WITH MANMOHAN! DOWN WITH MOILY! INDIA DESPERATELY NEEDS A BJP GOVERNMENT! ONLY THEY CAN FIX THIS COUNTRY!
and Off course pls dont compare a person of 10 years experiance who is a corporate clerk with a young lawyer. i feel a corporate clerk got no standing in this profeesion so he hide him self before a corporate.
-- This paragraph could only have been written by someone from Rainmaker. In any case, it's superbly presumptuous of whoever did write it to impose the career path of the majority on the minority who may want to strike out entirely on their own.
The problem with the exam would be no senior will be ready to pay its junior and if any young lawyer like me have made few clients then he has to say good by to them for next 7 months which means total loss of money,who is going to compensate it.
second question is if we can not argue it is fine can we do small works like filing WS etc, or framing of issues, can our presence be noted by a judge, BCI is not making any thing clear.
As an aside I must say that if this bar exam is conducted without any legal challenge then no advocate would have passed out this year.. including me of course because we have acquired knowledge but no guts!
Take for instance #1 - he questions "what made them think that they can get away without providing for reservation to SC/ST? Surely arrogance has blinded Bar Council of India!
It is an exam. Either one passes or fails. Based on the exam no one is being offered any job by the Bar Council of India. It is for individual Advocates to either set up practice or to join any law firm. So how does the reservation comes in the picture?
#17 poses the following questions: Pls make it clear then even if we can not practice then can we wear bands in the court or it is also barred."
He does not seem to have read the Bar Council Rules made under Sec. 49(1)(gg) of the Advocates Act. According to the Rule Advocates appearing in the Supreme Court, High Courts, Subordinate Courts, Tribunals or Authorities shall wear the prescribed dress along with white band. Thus, when the appearance is permitted only after clearance of the Bar Exam, where is the question of wearing the band without clearing the exam?
His second question is if we can not argue it is fine can we do small works like filing WS etc, or framing of issues, can our presence be noted by a judge, BCI is not making any thing clear.
Again this question is without understanding the legal position. If he is filing Written Submissions, he can do so in the registry of the court - akin to a court clerk. When one cannot appear before the Court, without clearing the Bar Exam, where is the question of taking part in framing of issues or noting of the presence by the judge?
#18 asks: Can a person join a company to practice law without clearing the bar exam ?
If a LLB Graduate without clearing the bar exam, joins a company he can only assist any of his seniors in the company, in the legal matters. It has been made clear by the BCI in answer to FAQ that one would not be able to give legal opinion, without clearing the bar exam. In other words, a LLB Graduate of 2009-10 batch would not be able to sign as an Advocate for giving legal opinion, even while working in a law firm.
#20 says "i just take passovers for my senior in chattisgarh lower court. am i still required to pass exams?"
The bar exam is applicable only from the LLB graduates of 2009-10 batch onwards.
If #20 is already taking passovers for his senior before a court, it has to be assumed that he is a pre 2009-10 LLB graduate who has already enrolled himself with the State Bar Council. There is no need for him to clear the bar exam.
We all know that Legal profession takes time to settle in career and we can looose even a single day now.
By this Bar Exams only coaching centres like LST will be the beneficiary.
Only Elite (rich) people can pass the exam after paying few thousands of rupees for coaching. Only the National Law School students will pass the exam. Pushing behind all the lawyers coming from poor, lower middle and middle class families who had studied law in a government law college.
This will only make the BCI, the Examination Conducting Agency, and coaching centres rich. It will make few more people involved in the examination rich due to corruption.
otherwise, this exam is not going to change significantly the quality of lawyers.
Tell me whether the top lawyers of the country like ram jethmalani or soli sorabjee or k.k.venugopal or gopal subramaniam, became top lawyers of the country only because they passed in the bar exams?
Rubbish. Let BCI do better things instead of wasting its time and energy on conducting examinations. This only shows that BCI has no trust or faith in the Universities which are conducting Exams and awarding Degree.
I do not know whether doctors are asked to write this kind of exam before practice? I do not know whether engineers are asked to write this kind of exam before practice?
Advocasy is a free occupation.our law minister should be passed bar exam first.
Most probably you are a Rainmaker Postman ~ atleast not a student.
Pls tell me Is any of us taking any effecive step to struck this exam or not?? atleast for this year
I think Article 14 must be amended and it must be made that right to equality should be there subject to the convieniance. HIght of ideocy