Let Final Year Students Take AIBE, Ensure Enrolment Fee Doesn't Become Oppressive : Supreme Court To Bar Council Of India

The five-judge Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari not only upheld the validity of the All-India Bar Examination but also conceded to the bar council the power to determine whether the qualifying examination would be held before or after enrolment. In doing so, it overruled the decision in V. Sudeer v. Bar Council of India, (1999) 3 SCC 176, in which the top court had held that no condition, other than those enumerated in Section 24 of the Advocates Act, could be imposed on a person wishing to practise law, was overruled. Such norms or rules, it was held, could be prescribed by the bar council since the Advocates Act, 1961 conferred on it ‘adequate powers’.

However, the court noted that both pre-enrolment and post-enrolment examinations would have different implications on different aspects of enrolment and legal practice, such as the eligibility of law graduates to be employed in a legal role in the interregnum period. “It is not for this court to delve into them, but for the Bar Council of India to consider both the situations,” Justice Kaul said, “However, in view of the larger ramifications, we have delved into some, though not all the aspects, especially in view of the suggestions by amicus curiae K.V. Viswanathan.”

What are the recommendations that found favour with the bench?

1. The bench accepted the recommendation that students who have cleared all previous examinations and are eligible to be in the final semester, on the production of proof of such eligibility, should be allowed to take the All-India Bar Examination. The result would be subject to the student passing all the components of the college examination.
2. In the hiatus period between the date of passing the university examination and the date of enrolment, a law graduate should be eligible to perform all tasks connected with the legal profession, other than acting or pleading before the court.
3. With respect to persons who are employed in a non-legal job for five years or more, the bench accepted the contention of the amicus that an appropriate rule should be laid down by the bar council requiring such a person to take the All-India Bar Examination once again in order to regain qualification.

What are the issues left to the discretion of the Bar Council of India?

1. With respect to the issue of seniority at the bar, it was noted by the bench that the bar council had the power to make rules determining seniority amongst advocates under Section 49.
2. The bench was reluctant to accept Viswanathan’s suggestion that the court should prescribe a maximum number of attempts for every candidate.
3. Whether the validity of the result of either a pre-enrolment or a post-enrolment examination should be limited by time was held to be a ‘policy matter’ for the bar council to consider.
4. Different state bar councils charging different fees for enrolment needed the attention of the Bar Council of India, which, the court categorically stated, was not devoid of the power to ensure that a uniform pattern is observed across the country and that the fee does not become oppressive at the threshold of a young student’s profession.

Justice Kaul concluded by saying,

“Our hope is that the aforesaid observations while conferring a great role to the Bar Council of India, would make it more conscious of the importance of the role it has to perform, including ensuring that only persons who are well-equipped with the rules of law pass the All-India Bar Examination. Further, in view of the periodic changes in the legal position and the consequent nature of All-India Bar Examination being held, we would like to make this judgement prospectively applicable so that it does not disturb the prevailing scenario.

We clarify that the setting aside of the V. Sudeer judgement is no manner an imprimatur to mandating the requirement of pre-enrolment training. We expect the Bar Council of India to take necessary steps within a period of three months. In the end, we hope that our views would [facilitate] the enrolment of young, bright minds at the bar, who would be able to assist the court in a more efficient manner, so that the administration of justice is benefitted.”

Case Title

Bar Council of India v. Bonnie Foi Law College & Ors. | Special Leave Petition (Civil) No. 22337 of 2008

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