AIBE Challenge: Pre-Enrolment Exam Is The Most Appropriate: AG KK Venugopal And Amicus Curiae KV Vishwanathan Tell Supreme 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 is set to finally lay the controversy to rest.

The Court is being assisted by the Attorney-General of India and Senior Advocate K.K. Venugopal as well as Senior Advocate K.V. Vishwanathan. The counsel submitted that a qualifying examination as a form of quality control is not just essential to maintain the standards of the legal profession, but is also intra vires the Advocates Act, 1961. The power to make rules to conduct such an examination is conferred on the Bar Council of India under Section 49(1)(ag) of the Act. The crux of the submissions made by the Attorney-General and the amicus curiae was that by shifting to a scheme of pre-enrolment examination, the existing problems would evanesce. BCI Chairman and Senior Advocate Manan Kumar Mishra, and Vice-Chairman, S. Prabakaran, appearing on behalf of the Bar Council of India, agreed with the recommendation to conduct the bar examination before enrolment.

The matter is listed to be heard again on Wednesday, September 28.

Background

The establishment of the Bar Council of India can be traced back to the recommendations made by the All India Bar Committee which in March 1953, submitted a report proposing the creation of a bar council for each state and an all-India bar council as an apex, regulatory body. This was followed by the 14^th Law Commission of India Report on Reform of Judicial Administration (1958). Pursuant to the recommendations made in the two reports, in 1961, the Parliament enacted the Advocates Act, 1961. The purpose of the Act, as elucidated in the Preamble, is to "amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar."

In 1995, the Bar Council Training Rules were framed in the purported exercise of Section 7 read with Section 24(3)(d) and Sections 49(1) and 49(2) of the Advocates Act. However, they were struck down by the Supreme Court in V. Sudeer v. Bar Council of India & Anr. [(1999) 3 SCC 176]. It was held that framing rules for pre-enrolment training was beyond the competence of the Bar Council of India. The Court had observed –

"We appreciate the laudable object with which the Bar Council of India has framed the impugned rules for providing training to the young entrants to the profession by laying down details as to how they should get appropriate training during their formative years at the Bar. Unfortunately, for the Bar Council of India that right thing has not been done in the right manner."

In 2010, the Bar Council of India introduced the scheme of conducting a national qualifying examination for lawyers who had already been provisionally enrolled, to be fully admitted to the bar. Justice Thakur's Bench, in Bar Council of India v. Bonnie Foi Law College [(2017) 11 SCC 192(2)] had noted –

"One of the questions that has been raised for determination by this Court is whether the Bar Council of India is competent to prescribe an examination post enrolment of an advocate as a condition of eligibility for his continuing to practice at the Bar."

The three questions that have been 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 vs. Bar Council of India & Anr. [(1999) 3 SCC 176)] requires reconsideration.

• 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.

These questions will be conclusively determined by the Constitution Bench. Notably, Justice Kaul urged that the relevant orders passed by a Division Bench led by him in Bar Council of India v. Twinkle Rahul Mangaonkar & Ors. [2022 SCC OnLine SC 1055] be included within the compilation. In Twinkle Mangaonkar, the Supreme Court had issued directions encouraging the Bar Council of India to critically analyse the present mechanism to conduct the bar examination, the quality of the said examination, the quality of legal education in the country, and ways in which the system could be improved at the entry-level. Senior Advocate K.V. Vishwanathan, who was appointed as the amicus curiae in Twinkle Mangaonkar, was requested to assist the Constitution Bench as well.

Summary of Arguments 

Attorney-General K.K. Venugopal 

The Attorney-General and Senior Advocate, K.K. Venugopal began his submissions by providing a historical conspectus on the evolution of the Bar Council of India and the all-India bar examination.

"As early as 1923, the Chamier Committee recommended that there should be an examination. I find that consistently, acts after acts which have been passed, all committees which have been constituted that have gone into this matter, the Law Commission report…everywhere, without fail, it is said that an examination is necessary. Additionally, training also is necessary."

Referring to the failure of a large number of law colleges in the country to adhere to the standards prescribed by the Bar Council of India, Venugopal urged –

"There are several sub-standard law colleges in the country. Exams are essential for maintaining standards and ensuring that the standards are uniform."

The Attorney-General referred to Clause (d) of Subsection (1) of Section 24, which required a graduate in law to undergo a course of "training in law and pass an examination after such training". He maintained that even though this clause was omitted in 1973 by way of an amendment, the rule-making power of the Bar Council of India would not be affected. He explained –

"That is because this clause was enacted with respect to the state bar councils, and not the central government or the Bar Council of India."

In that connection, Venugopal compared the Division Bench decision in V. Sudeer [(1999) 3 SCC 176)] with an earlier decision rendered by a three-judge Bench in (Dr.) Haniraj L. Chulani v. Bar Council of Maharashtra and Goa [(1996) 3 SCC 342]. He quoted from the later judgment –

"Thus, the Bar Council of India is cast with the duty to take all such steps as it considers necessary to filter students at the entry stage to the law course e.g., by providing an entrance test, as well as at the entry point to the profession, e.g., by providing an examination or a training course before enrolment as an advocate"

He contrasted this with the prohibition on framing rules related to conducting pre-enrolment bar examination, as was read into the provisions of the Act by the V. Sudeer Bench. On the strength of the earlier ruling, he asserted –

"They specifically say that it is open to the BCI to have an examination and pre-enrolment training, after referring to Section 49(1)(ag). Clause (ag) is considered to be the source of power, hence."

Justice Khanna, however, pointed out that the observation made in Haniraj L. Chulani [(1996) 3 SCC 342] would be obiter. He said –

"In Haniraj Chulani, the issue was whether you could practice as a doctor and an advocate at the same time. That is the context in which Section 49(1)(ag) was interpreted. Exam and pre-enrolment training were not directly the subject matter there."

Justice Khanna also added –

"As per as the pre-enrolment exam is concerned, you are right. Both stipulations relating to pre-enrolment training and examination were in Clause (d) and have since been omitted. They have been omitted for a reason."

Venugopal, however, refused to accept this line of reasoning and strenuously argued that the said statement would be binding on decisions rendered by smaller Benches. In essence, he submitted that the law had been incorrectly laid down in V. Sudeer [(1999) 3 SCC 176)]. Therefore, the Bar Council of India would not be precluded from conducting pre-enrolment examinations, which, he submitted, would be the panacea for the present problems.

On the issue of whether one year of traineeship should be mandated after graduation, the senior counsel maintained that the requisite practical skills were imparted in the course of the internships which students completed while in law school. He urged –

"An elaborate procedure is laid down with respect to internships. An apprenticeship in a lawyer's office is not necessarily superior."

Justice Kaul seemed to concur, noting that in the interregnum period between provisional enrolment and the declaration of the results of the bar exam, a lawyer could work in a limited capacity to gain exposure. This, he said, was in a sense, "equivalent to training". The Attorney-General also suggested that a batch of interns be permitted to observe the Supreme Court every day on a rotation basis –

"If Your Lordships may permit some students to come to the Supreme Court every day, a register could be maintained. They could learn a lot."

Senior Advocate K.V. Vishwanathan

Senior Advocate K.V. Vishwanathan explained that under the current scheme, there were two kinds of enrolment – one for the purposes of taking the All-India Bar Examination, which was provisional in nature, and the second enrolment, on successfully passing the examination. The second kind indicated that a lawyer has been fully inducted into the bar as a practising advocate. However, Vishwanathan claimed that the present problems would cease to exist if the examination were conducted before provisionally enrolling the members. This proposition found favour with the counsel representing the Bar Council of India.

Justice Kaul interjected –

"If we have to move from post-enrolment exams to pre-enrolment exams, we have to necessarily hold that the law laid down in V. Sudeer is incorrect."

The main thrust of Vishwanathan's argument was to prove the V. Sudeer ruling to be per incuriam, inasmuch as it failed to take into consideration that the conditions laid down in Sub-sections (1), (2), and (3) of Section 24 was subject to not only the exemptions engrafted in Section 24A, but also the other provisions in the Act. Therefore, the apex court had erred by holding that Section 49 would operate within the contours of Section 24, Vishwanathan submitted. He argued that while the state bar councils had limited functions relating to the admission of persons as advocates and the maintenance of state rolls, the Bar Council of India enjoyed the power to make rules relating to the entitlement of persons to be admitted into the bar. In other words, it could prescribe conditions that would have to be satisfied in order for an advocate to gain the right to practice. The prerequisite of passing the examination, he further urged, was intra vires the Act since the Bar Council also had the power to do any ancillary and incidental act in exercise of its powers under Clauses (g) (supervision and control over the state bar councils) and (l) (power to perform all other functions conferred on it by or under this Act) of Section 7(1).

Therefore, the power to frame rules relating to pre-enrolment exams was not taken away by the deletion of Clause (d) of Section 24(1), Vishwanathan claimed.

Justice Kaul summarised –

"You are essentially giving an extended meaning to S 49(ag), which is taken to include pre-enrolment exam. This, you argue, would obviate all the problems and subserve your objective."

Bar Counsel of India 

BCI Chairman and Senior Advocate Manan Kumar Mishra, and Vice-Chairman, S. Prabakaran appeared on behalf of the Bar Council of India. Although they have not begun their submissions yet, at relevant times, they assisted the Court by supplying crucial information. It was also brought to the Court's attention that the most intractable problem which the Bar Council had been facing was the dearth of good professors. The maintenance of uniform standards across educational institutions was also a serious problem, Mishra submitted.

The counsel also agreed that the way forward would be to conduct pre-enrolment examinations.

Observations of the Court 

Importantly, Justice Kaul noted that no study had been conducted by the Bar Council of India or otherwise examining the number of lawyers that the country needed. This exercise could then be made the basis for "fine-tuning the examination", Justice Kaul suggested. He observed –

"There has never been a study on how many lawyers the country needs. Many lawyers are out of work. Looking to the pendency, the optimal strength of the bar should be decided. The exam should be fine-tuned on the basis of our needs in India. All other exams have negative marking, for instance. So that no one gets marks on a fluke. If the work is done reasonably, how many lawyers do we need to assist the system? Is it needed to have such a lenient exam? We could consider that."

Justice Kaul also remarked that it was important to have lawyers who possessed adequate qualifications and that the purpose of the exam was to vet the entrants. The number of students from each college failing the bar exam would also indicate the standard of teaching in the said institution. He noted –

"The objective of the exam is not to have a very high standard. But to have adequate competency of students who pass the exam. There must be some minimum benchmark. If not even 10% of students appearing from a college, pass the exam, that is a problem. This would also be an input to the BCI that standards are not being maintained in the college."

On the difficulty of the examination, Justice Kaul queried –

"Why is the minimum marks not 60%? Further, the questions should test your critical skills. The benchmark should be the ability to solve the basic questions but also some of the more difficult questions. No grace marks and all that… Maybe the repercussion of unleashing unqualified or under-qualified lawyers is not as serious as in the case of doctors, but still, they represent the people. There is a need to maintain quality."