Supreme Court reserves judgment in challenge to All India Bar Exam

A Constitution Bench of the Supreme Court on Wednesday reserved its judgment in the batch of pleas challenging the validity of the All India Bar Exam (AIBE) which has to be cleared by the law graduates before they can practice as a lawyer [Anuj Aggarwal v Union of India]..The bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari today heard Senior Advocates KV Viswanathan, the Amicus Curiae, the Bar Council of India (BCI) chairperson Manan Kumar Mishra, as well as advocates Kartik Seth and VK Biju before reserving its decision. Justice Kaul orally indicated that the bench would aim to fine-tune the current scheme of the Bar Exam which, currently has to be compulsorily taken post enrolment."Problem exists in both pre and post [enrolment] scenario. Post enrolment we are endeavouring to fine tune it. Question is whether pre-enrolment can be done.".Background.The Court was hearing petitions challenging the validity of Rules 9 to 11 of the BCI Rules for being violative of Section 16, 24 and 30 of the Advocates Act and Articles 14 and 19(1)(g) of the Constitution.Rule 9 makes passing the AIBE mandatory for every advocate to practice. Rule 10 enables the BCI to conduct the exam and Rule 11 deals with the procedure for the issuance of a certificate to practice.The questions referred for the Bench’s consideration were:(1) 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 vs. Bar Council of India & Anr. [(1999) 3 SCC 176)] requires reconsideration?(2) Whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961?(3) In case questions 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?.Attorney General (AG) for India KK Venugopal had argued yesterday that conducting the AlBE prior to enrolment would be more appropriate than having it after enrolment. On the Court’s query as to the effect this approach would have on the judgment in the case of V Sudeer v. Bar Council of India, Amicus Viswanathan explained that the decision in the case was erroneous.The pre-enrolment training to entrants in the legal profession introduced by the BCI was subject to challenge in that case. The Court had struck down the requirement for such training.During the course of yesterday's hearing, Justice Kaul had also recommended that the difficulty level of the AIBE should be determined based on the number of enrolled advocates required in the country..Arguments today.The Bench at the outset flagged its concerns regarding making the AIBE a pre-enrolment exam. "One is the date of seniority to be determined. It is an eligibility exam, you wait till result while not being enrolled ... If hundreds enrol on one day (result) how will chamber-allotment and seniority work out? ... Different universities will have their final exams at different times," Justice Kaul pointed out. .The judge also asked the BCI if lawyers could be employed from the time of their graduation till the time they clear the AIBE. "Otherwise you will have unemployed law graduates," he said..Justice Kaul also pointed out the high registration fees for the Delhi Bar Council, wondering how those from poorer sections could afford to pay ₹20,000..BCI Chairman Manan Mishra responded saying that if enrolment date for two individuals is the same, then the date of birth would decide the seniority. Justice Kaul noted that these dates could affect appointments to High Courts when lawyers are elevated as judges."Someone's seniority might go down because his enrolment application was decided late," Justice Khanna further remarked. .Advocate Kartik Seth suggested that law graduates be allowed to write the exam in their final year of law school so as to save time. Further, when Seth said that the State collects ₹42 crore each year as exam fees, Justice Kaul responded,"Should a constitutional court say it [AIBE fees] should be ₹3,000 and not ₹3,500?".Advocate VK Biju submitted that if post-enrolment exam is made the norm, then the Bar Council would effectively be taking fees without the candidate having the right to practice.However, Justice Kaul was not inclined to accept this argument and remarked, "So, you are saying I have not cleared the exam, but I will practice. If you can't clear pre enrolment, how will you clear post enrolment?".[Read Order].[Follow our coverage of today's hearing]