AIBE Challenge Day # 1: AG Venugopal Argues In Favour Of Uniform Standards In Legal ProfessionChallenge to the All India Bar Exams
On September 27th, 2022, a Constitution Bench headed by Justice Sanjay Kishan Kaul started hearing petitions challenging the All India Bar Examination (AIBE) conducted by the Bar Council of India.
Attorney General K.K. Venugopal and Senior Advocate K.V. Vishwanathan appeared as amicus curiae to assist the Court in the case, and argued that AIBE is necessary to maintain uniform standards in the legal profession across the country. Read more about the role of the amicus here.
What is AIBE? Why Was It Challenged?
The Bar Council of India (BCI) introduced the All India Bar Exam (AIBE) in April 2010 to improve the standards of the legal profession in India. The exam assesses a candidate’s basic understanding of the law to determine whether they are fit to practice as an advocate. Candidates passing the examination are granted a ‘Certificate of Practice’ by the Bar Council of India to signify their qualification as an advocate.
In April 2010 the BCI introduced the All India Bar Council Rules, 2010 which made passing the AIBE and receiving a Certificate of Practice mandatory to practice law. These rules were reinforced by the BCI’s 2014 and 2015 rules which made certain benefits for advocates contingent on writing the AIBE and renewing their Certificate every five years.. Subsequently, a number of previously enrolled advocates and freshly enrolled advocates challenged the 2014 and 2015 Rules issued by the Bar Council of India.
On March 1st, 2016, a 3-Judge Bench comprising former CJI J.S. Thakur and Justices R. Banumathi and U.U. Lalit observed that the right to practice law was not only a statutory right under the Act, but is also a fundamental right for LL.B. degree holders. The Bench noted that an examination which grants licenses to advocates negated this right. The Bench declared that they were not against the exam itself, but wanted to verify if the AIBE was within the ‘parameters of law’. On March 18th, 2016 the Bench referred the challenge to a 5-Judge Constitution Bench.
AG K.K. Venugopal: Need For Examination Emphasised From 1926
Attorney General KK Venugopal, appearing as the amicus curiae, argued that the need for an examination and training for lawyer has been a point of emphasis for a long time. He referred to the Indian Bar Councils Act, 1926, which empowered Bar Councils to conduct examinations, and stated that the intention to conduct examinations prior to admitting lawyers has been consistent.
Quoting Supreme Court’s Judgment in Dr. Haniraj Chulani v Bar Council of Maharashtra & Goa (1996), Mr. Venugopal argued that it is the duty of the BCI and State Bar Councils to monitor the entire career of a legal professional, especially at the entry stage.. Mr. Venugopal added that the Judgment considered Section 49 (1) (ag) of the Advocates Act, 1961, which empowers BCI to make rules for enrolment of Advocates, to ask the BCI to hold examinations.
Taking note of BCI’s statement that it was going to derecognise 500 law colleges for being sub-standard, Mr. Venugopal argued that an examination is essential to maintain uniform standards.
Bench: How Many Lawyers Do We Need In the System?
During the course of the hearing, the Bench also comprising Justices Sanjeev Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari deliberated on a range of topics in relation to legal education in the country. The Bench, concerned about the number of pending cases in the country/Supreme Court/High Court, said the BCI should determine how many lawyers are required to held reduce the load on the system.
The Bench raised concerns on how 75,000 law graduates can be accommodated as interns every year in the chambers of senior lawyers for the purposes of training. Senior Advocate K.V. Vishwanathan, who also appeared as an amicus, suggested that the senior lawyers should be incentivised by making senior designations and elevation to the Bench dependent on the internships they offer to fresh law graduates.
The Bench questioned Sr. Adv. and BCI’s Chairman Manan Kumar Mishra on the status of lawyers who are enrolled in the State Bar Council’s but are yet to write the AIBE. Mr. Mishra said the candidates give an undertaking that they will clear the AIBE within two years of enrollment. Mr. Vishwanathan, argued that the exams could be conducted before a candidate enrols to become an advocate. He however submitted that, because of SC’s Judgment in V. Sudheer v BCI (1999), which held that pre-enrollment examination is beyond the competence of BCI, they are compelled to conduct examinations after enrolment.
The Bench stated they would have to strike down the Judgment in V. Sudheer if they have to permit a pre-enrollment bar examination.
Mr. Vishwanathan: BCI Within Its Power To Make Rules To Bestow Right To Practice
Mr. Vishwanathan began his arguments by stating that the Advocates Act permits the BCI to frame rules for pre-enrolment examinations. However the Act needs to be amended to permit a post-enrollment examination. He explained that BCI has a wide range of powers and the Court’s Judgment in V. Sudheer wrongly assumes that its powers are limited as it does not maintain records of practising advocates.
He argued that BCI is within its powers Sections 24 and 49 of the Advocates Act, bestow BCI with the power to make rules and add conditions that will have to be fulfilled before a law graduate is given the right to practise. Mr. Vishwanathan argued that before the Advocates Act was tabled before the Parliament, the 14th Law Commission report considered the All-India Bar Committee recommendations of 1953, which discussed the need for practical skills for an advocate.
The Bench will continue hearing Mr. Vishwanathan tomorrow. He is likely to elaborate on why the V. Sudheer Judgment must be overruled to make way for pre-enrollment examination.