Sakina Tashrifwala
Published on: September 29, 2022 at 20:47 IST
The Supreme Court‘s Constitution Bench reserved decision on a bundle of petitions challenging the legitimacy of the All-India Bar Examination on Wednesday.
Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari made up the five-judge Bench.
The lead petition is a special leave petition filed by the Bar Council of India against a 2008 Madhya Pradesh High Court ruling in a matter involving the award of affiliation and accreditation to a law institution. When the case was appealed to the Supreme Court.
A three-judge Bench led by Chief Justice T.S. Thakur sent it to a Constitution Bench of five judges for ultimate consideration of the “issues of substantial importance affecting the legal profession in general” submitted before the Supreme Court.
During the pendency of this case, the Bar Council of India, led by Senior Advocate Gopal Subramanium, decided to hold an all-India bar test for the first time in 2010.
The Constitution Bench is likely to finally put the matter to bed after more than six years since the referral and more than 14 years after the High Court judgement.
Yesterday, the Court heard arguments from the Attorney-General of India, Senior Advocate K.K. Venugopal, and Senior Advocate K.V. Vishwanathan, an amicus curiae.
They questioned the legality of the decision in [V. Sudeer vs. Bar Council of India & Anr. [(1999) 3 SCC 176] and advocated for a pre-enrolment test. The BCI Chairman, Manan Kumar Mishra, and Vice-Chairman, S. Prabakaran, who appeared on behalf of the statutory body, seemed to agree with this position.
Continuing where he had left off, Vishwanathan criticised the Supreme Court decision in V. Sudeer [(1999) 3 SCC 176].
He also questioned the judgement in [Indian Council of Legal Aid & Advice vs. Bar Council of India [(1995) 1 SCC 732], on which the Sudeer Bench relied. Vishwanathan said that the Bar Council of India has been reduced to a subordinate position in relation to the state bar councils as a result of these rulings.
He argued that the Bar Council’s supremacy should be kept in light of the Act’s aims and purposes, as well as the organisational architecture established by it.
The ramifications of the deletion of Clause (d) in Section 24(1), which resulted in the need put on a law graduate to undertake a course of “training in law and pass an examination following such training,” were a problem that both Justices Kaul and Khanna raised.
Vishwanathan vehemently denied that this would limit the powers of the Bar Council of India, stating that such power could be found in Section 49(1)(ag), which had been preserved.
As a result, the BCI, Vishwanathan repeated, was qualified to develop regulations governing the requirements for those authorised to practise law.
Justice Kaul pondered –
“We are a constitutional court. We could interpret the constitutional question and be done with it. But we have to try and make the system workable… There is no perfect world, in an imperfect world, we have to decide how to reduce the imperfections.”
The Bench emphasised a number of issues that arose as a result of the proposal to conduct a pre-enrolment examination, including the impact of “hundreds of people enrolling on the same day” following the results of the pre-enrolment examination on seniority, the prerequisites for applying for the examination, the competence of a law graduate to work and receive emoluments during the “interregnum period,” the differences in the academic calendars of different colleges, and the lack of uniformity of fee structure.
Justice Kaul Observed –
“Say, pre-enrolment exams take place. We don’t want another litigation on how it will work out. Can there be some thought process, some uniformity in it?”
Vishwanathan made many proposals, including allowing students to take the test in their final year to avoid time loss and holding the exam biannually to accommodate changes in academic schedules.
Mishra reminded the Court that their goal was to evaluate the Bar Council’s ability to conduct qualifying tests. Justice Kaul said it succinctly:
“Your main point is that you are allowed to arrange pre- or post-enrolment tests as you see suitable. And you should be permitted to do so.”
Vishwanathan also relied on [Satish Kumar Sharma vs. Bar Council of Himachal Pradesh [(2001) 2 SCC 365] and [Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh [(2011) 9 SCC 573] in his submissions, which he said recognised the Bar Council’s sweeping powers.
Following the conclusion of the amicus curiae, the Court heard comments on behalf of the Bar Council of India. Mishra argued that Section 49 granted the ability to establish rules to specify conditions after identifying the realms in which state bar councils and the Bar Council of India functioned.
Section 24’s criteria specified the eligibility simpliciter, which might be modified further by the Bar Council in the exercise of its powers of, among other things, superintendence and supervision.
The Court also heard arguments from lawyers for the petitioners who supported the elimination of the post-enrolment bar examination. The All India Bar Examination was deemed unlawful and arbitrary.
Advocate Kartik Seth chastised the Bar Council on a variety of grounds, including the imposition of an expensive enrolment fee. Seth also reaffirmed Viswanathan’s suggestion that final-year law students be allowed to take the bar exam.
Justice Kaul retorted –
“You have prepared well; you have done your homework. But we cannot take into consideration everything… This is a constitutional court.”
“We cannot say charge Rs 3000 instead of Rs 3500. What you are giving, are suggestions. Let the Bar Council of India decide whether they would want to implement them.”