Bar Council Of India Has Powers To Prescribe All India Bar Examination : Supreme Court; Overrules 'V Sudeer' Judgment
A Constitution Bench of the Supreme Court on Friday upheld the power of the Bar Council of India to require law graduates to qualify for the All-India Bar Examination as an eligibility criterion to practise law in India. Whether the qualifying examination should be held before or after enrolment was a matter best left to the discretion of the bar council, the bench said. Notably, the decision...
A Constitution Bench of the Supreme Court on Friday upheld the power of the Bar Council of India to require law graduates to qualify for the All-India Bar Examination as an eligibility criterion to practise law in India. Whether the qualifying examination should be held before or after enrolment was a matter best left to the discretion of the bar council, the bench said. Notably, 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'.
The five-judge Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari held:
"The objective of the legislature while giving wide powers to the Bar Council of India under Section 49 of the Advocates Act which gives it the power to prescribe rules, read with Clause (d) of Sub-section (3) of Section 24, which gives it the power to prescribe norms for entitlement to be enrolled as an advocate under the rules of the Bar Council of India, leads us to the conclusion that these are adequate powers with the Bar Council of India under the said act to provide for such norms and rules. We are, therefore, of the view that while considering the question referred to us, the only conclusion is that the interdict placed by the judgement of this court in V. Sudeer on the powers of the Bar Council of India cannot be sustained and we cannot hold that this decision laid down the correct position of law. The effect of the view expressed by us would be that it is left to the Bar Council of India as to at what stage, the All-India Bar Examination will be held, that is, pre-enrolment, or post-enrolment."
"There are consequences, especially with respect to the interregnum period, which would arise in either scenario. It is not for this court to delve into them, but for the Bar Council of India to consider both the situations," said Justice Kaul, while pronouncing the judgement. However, he explained further that "in view of the larger ramifications", the bench has delved into some, though not all the aspects, particularly in light of the suggestions by amicus curiae K.V. Viswanathan. The two most important recommendations that found favour with the bench were that of allowing final-year students to appear for the All-India Bar Examination in their final semester, and the recommendation to mandate persons who had been employed in a 'non-legal context' for five years or more to take the qualifying examination again, in order to be eligible to practise law.
The report will be updated after the judgment is uploaded.
Background
This development comes days after the seventeenth AIBE was conducted across India. In September of last year, the top court had, after two days of hearing, reserved its verdict on a batch of petitions challenging the validity of the qualifying examination conducted by the Indian bar council.
The lead petition is an appeal by special leave preferred by the Bar Council of India against a 2008 decision of the Madhya Pradesh High Court in a case dealing with the grant of affiliation and recognition to a law college. When the matter travelled to the apex court in appeal, a three-judge Bench headed by Chief Justice T.S. Thakur referred it to a Constitution Bench composed of five Judges for final determination of the “questions of considerable importance affecting the legal profession in general” that were raised before the apex court. It was during the pendency of this petition that the Bar Council of India, under the chairmanship of Senior Advocate Gopal Subramanium, had decided to conduct an all-India bar exam for the first time in 2010. After more than six years since the referral, and more than 14 years since the High Court ruling, the Constitution Bench has finally laid the controversy to rest.
The three questions that were referred by the three-judge Bench are:
(1) Whether pre-enrolment training in terms of Bar Council of India Training Rules, 1995 framed under Section 24(3)(d) of the Advocates Act, 1961 could be validly prescribed by the Bar Council of India and if so whether the decision of this Court in Sudeer v. Bar Council of India, (1999) 3 SCC 176) requires reconsideration.
(2) Whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961.
(3) In case questions Nos. 1 and 2 are answered in the negative, whether a post-enrolment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1)(ah) of the Advocates Act, 1961.
The Court was assisted by the then-Attorney-General for India and Senior Advocate K.K. Venugopal and Senior Advocate K.V. Viswanathan, both of whom argued in favour of inaugurating a new regime with an all-India pre-enrolment examination at its centre. A qualifying examination as a form of quality control, the counsel submitted, was not just essential to maintain the standards of the legal profession, but was also intra vires the Advocates Act, 1961. The power of the bar council to make rules to conduct such an examination emanated from Clause (ag) of Sub-section (1) of Section 49 of the Act. The crux of their submissions was that by shifting to a scheme of pre-enrolment examination, the existing problems would disappear. The senior counsel also called into question the correctness of the law laid down in V. Sudeer v. Bar Council of India, (1999) 3 SCC 176 which held that no condition, other than those enumerated in Section 24 of the Advocates Act, could be imposed on a person wishing to practice law, as well as the decision of the Supreme Court in Indian Council of Legal Aid and Advice v. Bar Council of India, (1995) 1 SCC 732, on which the Sudeer Bench had placed reliance.
BCI chairman, Senior Advocate Manan Kumar Mishra, and vice-chairman, S. Prabakaran, appearing on behalf of the bar council, argued that owing to Section 49, the conditions laid down in Section 24 indicating the eligibility simpliciter, could be further qualified by the bar council in the exercise of its powers of, inter alia, superintendence and control.
Case Title
Bar Council of India v. Bonnie Foi Law College & Ors. | Special Leave Petition (Civil) No. 22337 of 2008
Citation : 2023 LiveLaw (SC) 96
Mr. K.K. Venugopal, AC Mr. Ankur Talwar, Adv. Mr. Chinmayee Chandra, Adv. Mr. Siddhant Kohli, Adv. Ms. Suhasini Sen, Adv. Mr. K.V. Viswanathan, Sr. Adv./AC Mr. Venkataraman, Adv. Mr. Amartya Ashish Sharan, Adv. Mr. Rahul Sangwan, Adv,. Mr. M.G. Aravind D., Adv. Mr. Chankya Dwivedi, Adv. Mr. Sivagnanam Karthikeyan, Adv. Ms. Akhila Nambiar, Adv. Mr. Siddharth Sridhar, Adv. Mr. Navjot Singh, Adv. For parties:- Mr. Ardhendumauli Kumar Prasad, AOR Mr. V. K. Biju, AOR Ms. Ria Sachthey, Adv. Mr. Chetanya Singh, Adv. Mr. Amlendu Kumar Akhilesh Kumar Jha, Adv. Dr. Ranjeet Bharti, Adv. Mr. Anand Sanjay M. Nuli, Adv. Mr. Dharm Singh, Adv. Mr. Suraj Kaushik, Adv. Mr. Agam Sharma, Adv. Ms. Akhila Wali, Adv. Ms. Nandiny Pandey, Adv. Mr. Shiva Swaroop, Adv. Mr. Nanda Kumar K.B., Adv. M/S. Nuli & Nuli, AOR M/S. Chambers Of Kartik Seth, AOR Mr. Kartik Seth, Adv. Mrs. Shriya Gilhotra, Adv. Mr. Tarun Mehra, Adv. Ms. Aakriti Vikas, Adv. Mr. A. Venayagam Balan, AOR Mr. Manan Kumar Mishra, Sr. Adv. Mr. Prabhakaran, Sr. Adv. Mr. Apurba Sharmam, Sr. Adv. Mr. Ardhendumauli Kumar Prasad, AOR Ms. Anjul Dwivedi, Adv. Mr. Shashi Shekhar Kumar Prasad, Adv. Mr. Ramasankar, Adv. Ms. Radhika Gautam, Adv. Mr. Vishwajeet Mishra, Adv. Mr. Sai Girdhar, Adv. Ms. Shreya Srivastava, Adv. Mr. Ashish Madaan, Adv. Ms. Ananya Sahu, Adv. Mr. Amritesh Raj, Adv. Mr. Ardhendumauli Kumar Prasad, AOR Ms. Taruna Ardhendumauli Prasad, Adv. Mr. Nirmal Kumar Ambastha, Adv. Mr. Shashi Shekhar Kumar Prasad, Adv. Mr. Vishajeet Kumar Mishra, Adv. Ms. Anjul Dwivedi, Adv. Mr. Sai Girdhar, Adv. Mr. Durga Dutt, Adv. Mr. Vaibhav Shukla, Adv. Mr. Ratan Singh, Adv. Mr. Aditya Tripathi, Adv. Mr. Amritesh Raj, Adv. Mr. Gaurav Gautam, Adv. Ms. Radhika Gautam, Adv. Mr. B. K. Satija, AOR Ms. Aishwarya Bhati, ASG Ms. A. Thanvi, Adv. Ms. Shreya Jain, Adv. Mr. Padmesh Mishra, Adv. Mr. Raghvendra Srivatsa, Adv. Mr. A.K. Sharma, AOR Mr. G. Prakash, AOR Mr. H. Chandra Sekhar, AOR Mr. M.K. Mishra, Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. Akhileshwar Jha, Adv. Ms. Niharika Dwivedi, Adv. Ms. Yamini Sharma, Adv. Mr. Ravish Kumar Goyal, Adv. Ms. Vidhiya Pandey, Adv. Ms. Madhumita Mishra, Adv. Mr. Sanjay Singh, Adv. Mr. Mohan Pandey, AOR Dr. Vinod Kumar Tewari, AOR Ms. Radhika Gautam, AOR Mr. Manan Kumar Mishra, Sr. Adv. Mr. Prabhakaran, Sr. Adv. Mr. Apurba Sharma, Sr. Adv. Ms. Radhika Gautam, Adv. Ms. Anjul Dwivedi, Adv. Mr. Ramsankar, Adv. Mr. Vishwajeet Mishra, Adv. Mr. Sai Girdhar, Adv. Ms. Anagha S. Desai, AOR Mr. Satyajit A Desai, Adv. Mr. Siddharth Gautam, Adv. Mr. Abhinav K. Mutyalwar, Adv. Mr. Vijay Raj Singh Chauhan, Adv. Ms. Chandan Ramamurthi, AOR Mr. Mukesh Kumar Maroria, AOR Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Mrs. Ashly Harshad, Adv
Summary - Supreme Court Constitution Bench upholds the validity of All India Bar Examination - Recongizes the right of Bar Council of India to prescribe such a condition for practice - Overrules 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-Court however clarifies that the setting aside of the judgment in V. Sudeer is in no manner an imprimatur to mandating the requirement of pre-enrolment training
Advocates Act 1961 -The objective of the legislature while giving wide powers to the Bar Council of India under Section 49 of the Advocates Act which gives it the power to prescribe rules, read with Clause (d) of Sub-section (3) of Section 24, which gives it the power to prescribe norms for entitlement to be enrolled as an advocate under the rules of the Bar Council of India, leads us to the conclusion that these are adequate powers with the Bar Council of India under the said act to provide for such norms and rules. We are, therefore, of the view that while considering the question referred to us, the only conclusion is that the interdict placed by the judgement of this court in V. Sudeer on the powers of the Bar Council of India cannot be sustained and we cannot hold that this decision laid down the correct position of law. The effect of the view expressed by us would be that it is left to the Bar Council of India as to at what stage, the All-India Bar Examination will be held, that is, pre-enrolment, or post-enrolment- Para 33
Advocates Act 1961- Quality of lawyers is an important aspect and part of administration of justice and access to justice. Half baked lawyers serve no purpose. It is this quality control, which has been the endeavour of all the efforts made over a period of time - Para 19
Advocates Act 1961- No provisions prohibit BCI from prescribing pre-enrolment exam- Neither these provisions, nor the role of the universities to impart legal education, in any way, prohibit the Bar Council of India from conducting pre-enrolment examination, as the Council is directly concerned with the standard of persons who want to obtain a license to practice law as a profession- Para 20
All India Bar Examination - It has to be left to the Bar Council of India as to at what stage the All India Bar Examination has to be held – pre or post enrolment- Para 35
All India Bar Examination - Strictly follow the schedule of conducting AIBE twice a year as otherwise the students with law degrees would be left idling their time - Para 36
All India Bar Examination - Supreme Court accepts the suggestion of amicus curiae that students who have cleared all examinations to be eligible to pursue the final semester of the final year course of law, on production of proof of the same, could be allowed to take the All India Bar Examination - During the interrugnum between passing the university and enrolment, any graduate with the degree who is yet to appear for the Bar examination or get enrolled under the said Act should be able to do all the tasks allied to the legal profession other than the function of acting or pleading before the courts-Para 38
All India Bar Examination - BCI may lay down a rule that people who were in non-legal jobs for a certain number of years should qualify AIBE to rejoin legal profession- Para 42
Bar Council of India - Ensure enrolment fee does not become oppressive- different State Bar Councils are charging different fees for enrolment. This is something which needs the attention of the Bar Council of India, which is not devoid of the powers to see that a uniform pattern is observed and the fee does not become oppressive at the threshold of young students joining the Bar - Para 44