Supreme Court: The 5-judge Constitution Bench of Sanjay Kishan Kaul*, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and JK Maheshwari, JJ has upheld the Bar Council of India’s (BCI) power to conduct pre-enrolment examination i.e. All India Bar Examination (AIBE). The Court observed that neither the provisions under the Advocates Act, 1961, 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.
The Court left to the Bar Council of India to decide as to at what stage the All India Bar Examination has to be held – pre or post, after observing that there are consequences especially in respect of the interregnum period which would arise in holding the All India Bar Examination in either scenario, and it is not for this Court to delve into them but it would be appropriate to leave it to the Bar Council of India to look to the niceties of both situations.
“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.”
How did the AIBE came into existence?
The initiation of this case traces back to 2009 when Bonnie Foi Law College applied for affiliation to carry on a legal study course. When an inspection team visited the said college on 29.06.2009 , the shortcomings in the infrastructure and functioning of the college posed a larger question of diminishing standards of legal education provided at various law colleges in India arose before the Court.
As a result, a Committee of Mr. Gopal Subramanium, then Solicitor General of India; Mr. M.N. Krishnamani, then President of the Supreme Court Bar Association; and Mr. S.N.P. Sinha, then Chairman of the Bar Council of India, was appointed. The report submitted by this committee led to the first All India Bar Examination being conducted in 2010, by a specially constituted independent body consisting of experts of various disciplines of national stature.
What led to the present order?
On 18.03.2016, a three-Judges Bench of the Court opined that the questions which fall for determination in the present matter are of considerable importance affecting the legal profession in general and need to be authoritatively answered by a Constitution Bench.
Hence, the following 3 questions were referred to the Constitution Bench:
- 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 V. Sudeer v. Bar Council of India [(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.
- In case question 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.