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Misha Talwar & Sachin Sukumar
Amidst the recent controversy surrounding the All India Bar Examination (AIBE) and with the Bar Council of India (BCI) constantly locking horns with the Supreme Court of India, there is a pressing need to redefine the entire existing system.
The AIBE Rules lay down a prohibition on law graduates who have graduated post 2010 to practice law, even after enrolment with the respective State Bar Councils, until they successfully pass the AIBE.
The AIBE was started with an intent to set a minimum standard for the profession in the country. With law colleges spewing out thousands of students every year, it was necessary that a high standard of legal education be maintained.
The exam is not competitive in nature; it is neither rank based nor percentile based. It is merely an assessment of all that has been studied during the LL.B course. Since there exists wide disparities between the quality of legal education imparted, say between the 3-year and the 5-year courses, or even between different universities, the AIBE also helps to level the playing field. All those who wish to practice law will require to possess the same basic level of knowledge.
Hence, what is suggested is not a complete removal of the AIBE but a modification on the manner in which it is conducted.
Another point of concern is that of compliance. A number of State Bar Councils have discovered many young lawyers who are practicing law without having cleared the AIBE. Upon graduation, lawyers are merely asked to provide an undertaking that they would take the AIBE.
In 2015, the Bar Council of Tamil Nadu and Puducherry suspended the licences of nearly 2,500 law graduates who failed to appear for the AIBE within the designated time period.
The fact of the matter is that there is no proper mechanism to ensure that the law graduates remain true to their word and pass the AIBE within 2 years.
The BCI is already burdened with numerous responsibilities in addition to conducting the AIBE, for which it uses an external agency. This is, however, not required. The BCI recognises over 1,200 law schools. Why not just delegate the task to them to conduct the AIBE?
A simple amendment will ensure that law schools, in order to confer the law degrees upon its students, has to ensure that each student passes the AIBE conducted. The BCI can lay down the rules for conducting the AIBE and issue the same to each of those law schools.
It is necessary that each and every student, who gets the degree from his/her university, must clear the Bar Exam. Following this, the student then has the option to enrol with the State Bar Council, as per his/her will. The Bar Exam can be conducted by the universities at the end of the final semester. Thus, before enrolment with the State Bar Councils, the law graduate shall be required to produce the certificate of having passed the Bar Exam, issued by the Bar Council of India, and the law degree, issued by the particular university, and any other documents it may deem relevant.
Moreover, it is necessary that the format of the Bar Exam be changed. While the exam has been envisaged with a view to test proficiency, not just in theoretical aspects but practical aspects as well, it is suggested that the exam be conducted in two parts.
The first part shall be in an MCQ (Multiple Choice Questions) format, dealing with basic theory in laws such as contracts, torts, civil and criminal procedure, etc., and other subjects which are a part of the syllabus laid down for the present AIBE. The second part shall test the analytical and drafting skills of the law graduate, through essay questions, and a drafting question (be it legal opinion, plaint, SLP, etc.)
Also, it should be necessary for the students to have cleared all subjects by the penultimate semester in order to be eligible to write the Bar Exam. In case a law graduate fails to clear the Bar Exam, he/she should be able to give a second attempt in 3 months, which shall also be organised by the respective university.
Even though a law student may not wish to pursue a full-fledged career in law or even litigation after graduation, such a system ensures that he/she is still capable of doing so. This also ensures that the minimum knowledge and skill required as well as the ability to practice this noble profession goes hand-in-hand with the law degree. Thus, once a graduate has enrolled with the State Bar Council, he can immediately start practicing law. Hence, no lawyer gets left behind.
At present, the validity of the AIBE itself is in jeopardy. Amending the situation now itself can secure the position of current as well as future law graduates.
In the words of CJI Thakur:
“Just because you have a law degree does not mean you can start your practice. We don’t want half-baked lawyers.
We have to make sure that even the most junior of the Advocates is good enough to ensure that justice is done.
The system has to be reformed and [the] time has come.”
The time has come.
Misha Talwar and Sachin Sukumar are graduates of the School of Law at Christ University, Bangalore.