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:
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.