Overview of AIBE challenge hearing by Constitution bench of Supreme Court

After two days of hearing, the five judge bench, presided by Justice S.K. Kaul, reserved its judgment.

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IN Bar Council of India versus Bonnie FOI Law College & Ors., a five-judge Constitution bench comprising Justice S.K. Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari commenced the hearing of the petitions challenging the validity of the All India Bar Examination ('AIBE') on Tuesday. The petition challenged the judgment of the Gujarat High Court that allowed persons with other employment to enrol as Advocates without resigning from their jobs. 

The Supreme Court examined whether firstly, pre-enrollment training in terms of the 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 ('BCI') and if so whether the decision of this Court in V. Sudeer vs. Bar Council of India & Anr. (1999) requires reconsideration?; secondly, whether a pre-enrolment examination can be prescribed by the BCI under the Advocates Act?; thirdly, in case the earlier two questions are answered in the negative, whether a post-enrolment examination can be validly prescribed by the BCI in terms of Section 49(1)(ah) of the Advocates Act?

On Wednesday, the second day of the hearing, the amicus curiae appointed to assist the bench, K.V. Vishwanathan, submitted that in the scheme of things, the BCI should be given a primordial role. "In view of the hierarchy, the BCI lies at the apex and all other state bar councils fall below it. The directives come from the BCI and the state bar councils carry them out", Vishwanathan further submitted.

Pointing to the ancillary and incidental functions of the BCI, Vishwanathan stated that Section 7 (1)(g) of the Advocates Act prescribes the function of the BCI "to exercise general supervision and control over state bar councils". Vishwanathan emphasised that the BCI cannot be denied the power to hold the examinations on account of the need for uniformity. He further highlighted that Section 7(1)(l) of the Advocates Act empowers the BCI "to perform all other functions conferred on it by or under this Act", whereas Section 7(1)(m) empowers the BCI "to do all other things necessary for discharging the aforesaid functions".

Justice Kaul raised certain practical concerns: firstly, he questioned, "What will be the date of seniority under the structure of pre-enrollment exams? Hundreds of people will enroll on the same day, how will it work out?" Secondly, he questioned the prerequisites and documents needed for pre-enrolment. Thirdly, he interrogated whether students will be unemployed between the period of the exam and enrolment. Fourthly, he noted that there are different fee structures and different norms that state Bar Councils set, and expressed a need for uniformity since young graduates, particularly from rural areas, might have to pay higher fees depending on the state Bar Council. 

The court further observed that "Firstly, there has to be an exam. Secondly, the exam must be at an appropriate level and sufficient quality should be maintained. All consequences from pre-enrolment exams are looked at." 

Vishwanathan's final submission to the bench was "…to declare V. Sudeer's judgment as not having laid the correct law", and for the court to recognise the BCI's overarching power. 

Further, BCI Chairman and Senior Advocate, Manan Kumar Mishra, highlighted the powers of state Bar Councils to make rules under the Advocates Act, and pointed out that the law does not make provisions for enrolment. He also highlighted the powers of the BCI and the Union Government to make rules for tje implementation of the Act.

It was the contention of Advocate Ardhendumauli Kumar Prasad, appearing for the BCI, that the Advocates Act gives the BCI control over state Bar Councils in every chapter. Prasad submitted that the functions of the BCI under Section 7(1)(g) wherein it can exercise supervision and control over state Bar Councils, provides for absolute control. 

Advocate Kartik Seth, appearing from the petitioner's side for the abolition of the post-enrolment examination, challenged Rule 9 of the BCI Rules to be unconstitutional and violative of Article 14 of the Constitution. Seth challenged the rule on the ground that a person who has graduated before the introduction of the bar exam and is applying for enrollment is not required to take the bar exam, whereas those from the years 2009-2010 are mandated to take the bar exam, making the rule discriminatory in nature. Mishra confirmed the prospective nature of the rule. 

Justice Kaul, replying to Seth's contention, said that "in the manner of construction, everybody has to take an examination today irrespective of when he graduated, as long his enrolment is after 2009-2010. Today, the position is it is made mandatory." The first part of the rule is clear, and any discrepancy is taken care of in the explanation, Justice Kaul added.

Seth further raised the contention that law graduates be allowed to write the exam in their final year of law school so as to save time. Justice Kaul noted that suggestions can be made to the BCI to take these issues into consideration. Further, when Seth argued that Rs. 42 crores is collected each year as AIBE exam fees, Justice Kaul responded, "Should a constitutional court say it should be Rs. 3,000 and not Rs. 3,500?"

Seth presented his arguments against the post-enrolment examination and pointed out that Section 16 of the Advocates Act provides for two categories of advocates. "With regard to the post-enrolment examination, there is a third category has been made which 'enrolled but non-practicing advocate'", Seth said. He submitted that the BCI should not be given unfettered powers to hold pre and post-enrolment examinations. 

On Seth's arguments, Justice Kaul observed, "The court is concerned not with the constitutionality of the pre-enrollment examination but the consequences of it". Justice Kaul clarified that the idea is to flag issues so that the BCI could consider issues; for instance, the quantum being recommended by the state bar councils.

"Our endeavor is to facilitate the ultimate objective, which is to see where the bar examination caters toward producing better lawyers, in terms that if your abilities are not up to the mark, you must improve your skills before you come to the bar council", Justice Kaul added. 

On Tuesday, Attorney-General for India ('AG'), K.K. Venugopal, defended the right of the BCI to conduct both the pre and post-enrollment examinations. He submitted that minimum standards need to be brought about to ensure minimum standards are maintained by law colleges. Today, law colleges stand on equal footing as engineering or medical colleges, he added. "Previously there was no moot court, no seminars, no specialisation. Today the picture has changed. Statutory internships have been provided for under the BCI Rules", the AG further submitted. 

Justice Kaul noted the need for research and data, and stated, "Some study needs to be done by BCI or other authority to know how many cases the court can take up across the country. What is the strength of lawyers needed, optimally? Because the bar exam is so simplistic, it is important to find out how to structure it according to needs in India." He further added, "The study will help to understand the level of examination you need to keep. Is it better to have a tailored examination where the difficulty level is slightly higher?" Justice Kaul directed an inquiry on how a study could be initiated, primarily on the number of cases listed in a year and the number of lawyers that would be required to deal with that number of cases. 

By quoting Section 49 of the Act, the AG submitted that the section should be attracted for the purposes of the matter and further clarified that state Bar Councils will not have any powers. He contended that under Section 49A of the Act, the Union Government or the BCI is entitled to make rules. 

He further stated that the rule-making power of the BCI would not be affected even though the clause was omitted in 1973, since the clause was enacted with respect to state bar councils and not the central government or the BCI. To this, Justice Khanna replied, "As far 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 been omitted for a reason. We do have post-enrolment examinations now, which have their own problems and faults that are being addressed."

Referring to Section 24(1)(g), the AG submitted that the law requires a graduate in law to undergo a course on 'training in law'. The AG submitted that training under  lawyers may not be necessary since what is gained through the mandate of the internship is far superior.

Justice Kaul raised a concern regarding the perspective of exercise of power in respect of training as prescribed by the BCI, particularly in view of the availability of training in rural areas. Justice Khanna added that if the BCI needs training, it will make provision for payment of some stipend. Justice Kaul further observed, "The BCI might not be able to meet the financial liability of paying a stipend…our greatest fear is it should not become a strain on a young advocate who may come from a difficult economic scenario". "Do we have enough infrastructure in the sense that lawyers who are practising in courts…take 75,000 juniors every year?" Justice Khanna asked. 

Amicus curiae Vishwanathan pointed out that section 49(1)(ag) encompasses the power of the BCI to make rules in respect of 'the class or category of persons entitled to be enrolled as advocates'. He remarked that V. Sudeer, which struck it down, holding pre-enrollment training on account of it being beyond the competency of the Bar Council, missed by linking section 49 to section 24, since the latter deals with the role of the state Bar Council to enrol. The difference between enrolling and entitling to practise was missed in V. Sudeer, according to Vishwanathan. 

Vishwanathan submitted that in terms of the scheme of the Act, an examination should be permitted prior to enrolment. In his arguments, the AG submitted and agreed that the pre-enrollment AIBE would be the most appropriate. 

It was the contention of the AG that, "Section 49(1)(ab) to 49(1)(ag) clearly confess the power on the BCI to classify the class and category of lawyers – the one who has got his qualification of having passed the law examination, and thereafter having passed the bar examination, and those having completed the training, if such training is provided for". 

The AG pointed out that 500 law institutions were declared substandard and were closed down. He argued that since there are sub-standard colleges, how do we then find out from the result of the students that pass out whether they meet the requirements? "The only manner is an examination where the All India Bar Examination is uniform and the syllabus is published…it is essential for maintaining standards throughout the country in all law colleges" the AG added. 

In his submission, apart from questioning the validity of V. Sudeer and asserting the need for a pre-enrolment examination, Vishwanathan submitted that there was no need for a post-enrolment examination. On the question of mandating training, Vishwanathan opined that trainees cannot be left to fend for themselves.

At the end of Wednesday's hearing, the bench concluded arguments and reserved its judgment.