Ensure Quality Entry Into Legal Profession; Improve Bar Exam Standards: Supreme Court To BCI

Concerned about the existing regulation pertaining to the entry to the legal profession, a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh stated that it is prima facie inclined to make recommendations for improving the system at entry level. In view of the same, the Bench asked the Amicus Curiae, Senior Advocate, Mr. K.V. Viswanathan to make suggestions.

"…prima facie, I am inclined to say something. I want to also mention something on the responsibility of the Bar Council to hold proper exams and make recommendations on how to improve the system at entry level. Make some suggestions…", Justice Kaul said.

At the outset, Mr. Viswanathan stated that the Bench by its order dated 03.12.2021 had set out the contours of the issue to be examined by it. He submitted that he has some preliminary thoughts on the issue at hand.

"I have prima facie thoughts in the matter. My own view is that by going by precedent, your lordship, would consider BCI the power to regulate entry. This last para 33 says that it can be worked out without giving enrollment. Because a sanad is a very valuable document."

Para 33 of the impugned High Court order reads as under -

"We read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part-time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice"

Referring to the aforesaid portion of the High Court order, Mr. Viswanathan suggested that a mechanism can be worked out where people coming from employment are not enrolled and given the certificate at the outset, but put up on a register qualifying them to write the examination and the enrollment would follow the outcome of the examination. This would also ensure that seniority and other enrollment benefits do not accrue to them until and unless they clear the bar examination.

"…Your lordship might think of a mechanism where they are not enrolled and given a certificate, but put on a register that qualifies them to write the exam and thereafter give them enrollment. Benefits of seniority etc. which enure to an enrollee does not enure to them because a sanad is given to a serious practitioner who is otherwise unincumbent."

Harish Uppal's judgment was cited by Mr. Viswanathan, wherein the Supreme Court had elaborately dealt with the scope of BCI's power and nature of the legal profession, to argue that though the profession should be more inclusive it cannot impinge on the power of the Bar Council.

"In our social milieu a person might be undergoing employment and being the liberal profession we need to welcome people from different walks of life, but to say that he would be enrolled and then he would suspend and write the exam impinges on the power of the BCI."

He suggested that the person coming from employment might be permitted to enroll with the Bar once they qualify the written examination and after a rigorous viva.

"While he qualifies for enrolment, he should not be put on the enrolment register with a number. He should be enrolled when he qualifies for the exam. I recommend that those who come from employment be subjected to rigorous viva…It can be taken care of if there is a separate register where they are not enrolled, registered for the purpose of the exam and then be subjected to a rigorous viva."

Reckoning that he does not mean to doubt the ability of the person coming from employment, Mr. Viswanathan mentioned about Justice Robert H. Jackson, who though not a law graduate went on to become a judge of the U.S. Supreme Court.

"Your lordship would know, Justice Jackson was not even a lawyer, not even a law graduate, he went on to become US Supreme Court judge, prosecutor in the Nuremberg trial."

The Bench thought that it might not be proper to permit enrollment while a person still holds onto their existing employment.

"What is troubling us is that while expanding the scope of people entering the profession, I find it prima facie difficult to accept that somebody can ride both the boats together…"

The Bench also took note of the fact that when the professional enrolled with the bar leaves the legal profession, they do not tend to surrender their enrollment certificate, which is something that the Bar Council should also regulate. It cited the example of Tamil Nadu where almost one-third of the professionals registered with the bar were no longer in the legal profession.

"Let us say somebody is enrolled and at some stage wants to go out of the profession, he suspends license. That is as you are aware that it is observed often in default. In Tamil Nadu, I know, almost one-third of bar people were not in the profession…This is a dichotomy that we have to reconcile. "

Mr. Viswanathan emphasised on his suggestion for conducting viva voce examination.

"They should also pull up and suggest viva. People who come from employment need to be put through some screening, other than a person who comes through a college which has compulsory internships, has benefits of participating in moots, or directly writing exams after attending a lawyer's office where they imbibe the traditions which are the ethos of the profession. BCI should have a committee that examines this and suggests a mechanism."

Advocate, S.N. Bhat appearing on behalf of BCI protested that such suggestions go beyond the scope of the present scrutiny.

The Bench was of the opinion that when the BCI asserts its rights, it should also take stock of their shortcomings. The mushrooming of law schools and the quality of education imparted was identified as the root of the problem.

"I think your problem starts at the law schools…In one of two states the number runs into 100. Where are so many law teachers available…If I may say so, all these are fictitious. The rigour of your bar exam must test knowledge."

The Bench pointed out there are ample instances where people get law degrees without attending classes and therefore, it is imperative to set out more serious criteria for entry into the legal profession.

"We have a situation where anti-social elements go and get law degrees. In Andhra Pradesh and Karnataka law courses are taking place in cowsheds. You have to make introspections. The Principals from Andhra Pradesh will come and stay in Chennai; he will receive money and collect applications. After 3 years, a degree will be given. This is completely diluting the quality…Person without attending classes gets a law degree…More stringent checks on law schools and more serious criteria of entry are important."

With respect to the bar examination, the Court noted that unlike similar examinations, it does not provide for negative marking, which has a bearing on the quality of people entering the profession.

"You have an objective exam. Do you know 99% of such exams have negative marking? You don't have it. Don't keep lowering the quality. Look at Chartered Accountancy, they control the entry. You have to control entry to determine quality. The quality cannot be 'to take as many'."

It also suggested Mr. Bhat to go through some of the questions papers to determine the quality of the bar examination -

"Please go through some of the question papers and you will understand. And how the exams are conducted. Time has come for introspection."

The matter is to be next listed on 22nd February, 2022.

[Case Title: BCI v Twinkle Rahul Mangaonkar, SLP (C) 16000 of 2020]

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