Supreme Court upholds validity of All India Bar Examination

The Constitution bench confers the BCI with the powers to conduct the AIBE and decide whether it should be conducted at the pre- or post-enrolment stage; overruling the V. Sudeer judgment

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IN Bar Council of India versus Bonnie FOI Law College & Ors., a five-judge Constitution bench comprising Justices S.K. Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari upheld the validity of the All India Bar Examination (AIBE) on Friday. The bench confirmed the power of the Bar Council of India (BCI) to hold the AIBE, an eligibility test for law graduates in order to practice in Indian courts as advocates, and observed that the BCI has the right to make rules in that regard.

The bench overruled its earlier judgment in V. Sudeer versus Bar Council of India & Anr. (1999), which held that no condition other than those mentioned in Section 24 of the Advocates Act, 1961 can be imposed upon a person who wishes to practice law in India.

It was observed that in accordance with Section 49 read with Section 24(3)(d) of the Advocates Act, there are adequate powers vested in the BCI to make norms and rules on such eligibility criteria. The bench left it to the discretion of the BCI to decide whether such an eligibility test should be conducted for candidates at the pre-enrollment or post-enrollment stage.

In terms of larger ramifications, the bench made some further observations in line with the suggestions made by the amicus curiae, senior advocate K.V. Vishwanathan. It noted that students who have been through all previous examinations would be eligible to pursue the final semester of the final year in a law course. On production of proof, the graduates could be allowed to take the AIBE. The result of AIBE will be subject to the person passing all the components of the college examination, the bench added.

On the possibility of a hiatus between the date of passing the law university examination and the date of enrolment, the court noted that a law graduate would be allowed to take up tasks allied to the legal profession other than the function of acting or pleading before courts.

According to the bench, an appropriate rule should be laid down to deal with situations in which an enrolled advocate takes up employment in a non-legal context for a substantial period; for instance, five years. The bench held that such a person would be considered a new enrollee and would be necessitated to take the AIBE once more. The validity of the results of candidates taking a pre-enrolment or post-enrolment examination must be limited by time, which would be a policy matter for BCI to consider, the bench remarked.

The bench addressed "an arising caveat" that different state bar councils are charging different enrollment fees. The bench emphasised that the issue needs the attention of the BCI in order to ensure that "a uniform pattern is observed and the fee does not become oppressive of the young students to enter the bar".

It expressed hope that the greater role that is conferred on the BCI through the judgment would make the BCI more conscious of its role so that it ensures that only those who are well-equipped with the tools of law pass the AIBE.

The bench held that the judgment would be prospectively applicable and directed the BCI to take the necessary steps for its implementation within a period of three months.

Background

On September 28, 2022, the five-judge bench had reserved its judgment after the hearing of the petitions challenging the validity of the AIBE. 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 had examined whether:

Firstly, pre-enrolment training in terms of the Bar Council of India Training Rules, 1995 framed under  Section 24(3)(d) of the Advocates Act could be validly prescribed by the BCI, and if so, whether the decision of the court in V. Sudeer 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?

According to amicus curiae Vishwanathan, in the scheme of things, the BCI should be given a primordial role. Vishwanathan had 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". 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".

Vishwanathan had pointed out that Section 49(1)(ag) of the Act 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 had remarked that V. Sudeer, which struck it down, holding pre-enrolment training on account of it being beyond the competency of the Bar Council, erred by linking Section 49 to Section 24, since the latter deals with the role of the state bar council to enrol.

BCI Chairman, senior advocate Manan Kumar Mishra, had highlighted the powers of state bar councils to make rules under the Advocates Act, as well as the powers of the BCI and the Union government to make rules for the implementation of the Act.

Advocate Kartik Seth, appearing from the petitioner's side for the abolition of the post-enrolment examination, had challenged Rule 9 of the 1995 Rules to be unconstitutional and violative of Article 14 of the Constitution.

The then Attorney-General for India K.K. Venugopal had defended the right of the BCI to conduct both the pre and post-enrolment examinations. He had submitted that these were necessary to ensure minimum standards are maintained by law colleges.

Click here to read the judgment.