All India Bar Examination, Advocates Act and some thoughts:

Bar Council of India(BCI) has recently announced the dates of All India Bar Examination. The stated aim of the Bar Examination to improve the quality of the fresh entrants to legal profession. While the objectives are laudable, and such a uniform examination would only bolster a movement towards unified standards for legal education, some questions still remain un answered. Some of the un answered questions are as follows:

1. Enrollment and Practice of Advocates: The BCI FAQ on All India Bar Examination(BCI FAQ on Bar Examination, BCI Website: (http://www.barcouncilofindia.org/about/first-all-india-bar-examination/all-india-bar-examination-frequently-asked-questions/#whoshould) states that one can apply to take the All India Bar Examination only after he/she has enrolled as an advocate with a State Bar Council. The extract of relevant portion of BCI FAQ reads as follows:

“Do I have to wait till I undertake the All India Bar Council Examination to enroll?

No. In fact, you are required to enroll as an advocate with the respective State Bar Council in order to be eligible to apply for the All India Bar Examination.”

Later the BCI FAQ goes on to explain the impact of not appearing for the Bar Examination as follows:

“The advocate… will not be allowed to actually practice law themselves (file a vakalatnama, issue opinions etc.) till they clear the All India Bar Examination.”

As per the amended Rule 9 of Bar Council of India Rules, notified in the BCI website(http://www.barcouncilofindia.org/wp-content/uploads/2010/06/BarExamnotification.pdf), No advocate enrolled under S 24 of Advocates Act, 1961 shall be entiteld to practice under Chapter IV of Advocates Act, 1961 unless he successfully passes the All India Bar Examination conducted by BCI.

Now this stand of BCI is problematic both from the legal perspective as well as from the practical perspective.

On the legal ground, this stand of BCI goes against the decision of the Hon’ble Supreme Court of India in V Sudeer v. Bar Council of India, AIR 1999 SC 1167, where in the Apex Court has categorically held as follows:

“…conjoint reading of Sections 23, 29 and 33 leaves no room for doubt that once a person is found qualified to be admitted as an advocate on the State roll having satisfied the statutory conditions of eligibility laid down in sub-section (1) of Section 24, he will automatically become entitled as of right to practise full-fledged in any Court including the Supreme Court.”

Hence until a suitable amendment to these provisions of Advocates Act, 1961 is brought in place, the distinction between enrollment and right to practice remains contrary to law. Every person enrolled as an advocate, has, under the existing law, an automatic right to practice, full fledged in any court without any restriction. If the BCI brings in any rule which is contrary to the above statutory provisions, they will be viewed as ultra vires and may be struck down by the Supreme Court.

From a practical angle, it is not clear how BCI is proposing to check whether any person enrolling as an advocate but deciding against appearing in Bar Examination is actually practicing or not. In fact, the very concept of practice of the profession of law is amply wide and would encompass all activites undertaken by a lawyer. However the problem is that there is no mandate in the Advocates Act or any other law, that certain acts like issuing legal opinions should be done by a practicing advocate since any person can do such acts as giving opinions of legal matters etc, which only requires the confidence of the receipent  on the giver. It should also be taken note of the fact that the courts and regulators,  could till now give only an inclusive definition of the word, practice of legal profession, and given the multi disciplinary atmosphere, it is difficult to give a comprehensive definition of “practice of legal profession”. In such a scenario it is doubtful as to how would  Bar Council or any agency could check whether any person  who have  not passed the all India Bar Council is actually practicing or not. It is reliably learned that may fresh entrants to the legal profession of the 2009-10 batch, who are already enrolled, have started filing vakalatnamas, which has been accepted by the courts in the absence of any guidelines. Since Bar Examination has been made mandatory to these persons for “practicing law”, it would be interesting to see how the Bar Council is going to treat those law graduates of 2009-10 batch who have already started actual practice before the announcement of bar examination. Any exemption to such students would violate the constitutional right to equality of their batch mates, and this would lead to a fresh legal emborglio.

2. Language of the Test: Currently BCI has announced the test only in 9 languages. It has not clearly specified the rational behind prefering these languages over the other languages, but it can be presumed that this would be the languages where legal education is imparted otherwise than in english. In any case, the language preference usually rests on place of birth of the candidate, and any preference given to any particular language over other could be viewed as discrimination on the basis of place of birth prohibited under Art 15 & 16 of Constitution of India and may be challenged in Courts.

3. Management of Certificate of Practice: Since the students who have passed LLB examination prior to 2009-10 does not require a seperate Certificate of Practice, they would be automatically entitled to practice as of right after their enrollment. Since it is possible that some of the students may get themselves enrolled after 2010 also, it would be a nightmare to check whether any particular advocate is required to obtain certificate of practice before they file vakalatnama. Obviously the overburdened courts are not going to take this onus, and hence it would be for the BCI to come up with some fool proof mechanism to ensure that the certificate of practice issued by BCI is respected.

It need also be taken into consideration the observations of the court in Sudheer v Bar Council of India as below:

“These observations of the High Power Committee clearly indicate  that it was the stand of the representative of the Bar Council of India before them that Section 28(2)(b) which was  earlier  on  the statute book and was  deleted  by the Parliament,  was required  to be  reintroduced.   In  other words, it was felt by the Bar Council of India itself before the  High  Power Committee that for providing  pre-enrolment training to prospective advocates relevant amendments to the Act  were required to be effected.  It is easy to  visualise that  appropriate  amendments in Sections 7 and 24(1)  would have clothed the Bar Council of India with appropriate power of  prescribing such pre-enrolment training for prospective entrants  at the Bar.  That would have provided appropriate statutory  peg on which the appropriate rule could have been framed and  hanged.  It is also necessary to note  in this connection  that  merely leaving the question  of  providing pre-enrolment training and examination to only the State Bar councils  may create difficulties in the working of the All India  Statute. It goes without saying that as an  enrolled

advocate  is  entitled to practise in any court  in  India, common standard  of  professional expertise  and  efficient uniform legal training would be a must for  all  advocates enrolled under the Act. In these circumstances, appropriate statutory  power  has to be entrusted to the Bar Council  of India  so  that it  can   monitor  the enrolment  exercise undertaken  by the State Bar Council concerned in a  uniform manner.  It  is  possible  to visualise that  if  power  to prescribe   pre-enrolment   training   and  examination  is conferred only on the State Bar Councils, then it may happen that  one  State Bar Council may impose such  pre-enrolment training while another Bar Council may not and then it would be  easy  for  the  prospective professional  who  has got

requisite  law degree to get enrolment as the advocate from the   State  Bar  Council  which   has not   imposed such pre-enrolment  training and having got the enrolment he may start  practice in any other Court in India  being  legally entitled  to  practise as per the Act. To  avoid  such  an incongruous  situation which may result in legal evasion  of the  laudable  concept of  pre-enrolment  training,  it  is absolutely  necessary  to entrust the Bar Council  of  India with  appropriate statutory power to enable it to  prescribe and  provide  for all India basis pre-enrolment training  of advocates  as well as requisite apprenticeship to make them efficient  and well informed officers of the Court so as  to achieve better administration of justice.  We,  therefore,

strongly  recommend appropriate amendments to be made in the Act in this connection.

We  may also mention that till the Parliament steps in to  make  suitable  statutory  amendments  in  the  Act for providing  pre- enrolment training to prospective  advocates seeking enrolment under the Act, the Bar Council of India by way  of an interim measure can also consider the feasibility of  making suitable rules providing for in-practice training to  be made  available to  enrolled  advocates.   Such  an exercise may then not fall foul on the touchstone of Section 49(1)(ah).  The impugned rules can be suitably re-enacted by deleting   the condition  of pre-enrolment  training  to advocates  and instead of treating them to be a hybrid class of  trainee  advocates with limited right  of audience  in courts, may provide in-practice training to already enrolled

advocates  atleast  for the first year of their practice  as professionals. Such rules can also provide for appropriate stipend to be paid to them by their guides, if during that period such enrolled junior advocates are shown to have  no independent  source of income. Then in the light of Section 17(2)  of  the Act such newly enrolled advocates  who are required to undergo in- practice training for first one year of  their  entry in the profession can legitimately fall  in the   category of  other   advocates  apart  from  senior advocates as contemplated by that provision.”

To be read along with this are the observations of the Hon’ble Apex Court in Bar Council of India v. Bonnie FOI Law College & others  (http://lawandotherthings.blogspot.com/2010/04/bar-council-of-india-vs-bonnie-foi-law.html), which is being shown as the tipping point from where the Bar Examination has come up. However from the judgement it appears that the case relates to affiliation and recognition of law colleges by Bar Council of India, rather than about introducing an All India Bar Examination. In so far as the matter in issue is not directly related to All India Bar Examination, the observations of the court would only remain an obiter and since the final decision has not yet come, it is doubtful whether the said case can be taken as a touch stone to decide judicial mind on the matter. In fact, it was the Bar Council who suggested the All India Bar Examination rather than the Court when it was reminded of its rather more serious duty in ensuring that the law colleges affiliated to it is maintaining quality. In this context it is pertinent to note that the expert committee appointed by the Court in this case was concerned only with the maintenance of quality of law colleges, and it was in fact a direct indictment of the Bar Council of India’s failure to check the quality of legal education in the country. It is strongly felt that the suggestion of BCI to introduce the All India Bar Examination is a half hearted attempt to divert the attention of the Apex Court as well as the general public from its multitude of failures, errors and omissions.

While the efforts of BCI to bring standardisation of legal profession by introducing Bar Examination is laudable and needs to be supported by every one, it would have been wiser if:

(i) the BCI had taken up with the government to modify the Advocates Act, 1961 suitably so as to give BCI the power to introduce Bar Examination as a compulsory requirement for enrollment, rather than as a half baked concept as it is in the present format.

(ii) Test should have been conducted in all languages instead of a choice of a number of languages.

(ii) instead of cumbersome requirement of certificate of practice, if the enrollment itself was made conditional to passing the Bar Examination, it would have made more sense.