Attorney General (AG) of India KK Venugopal argued before a Constitution Bench of the Supreme Court on Tuesday that holding the All India Bar Examination (AIBE) before enrollment would be the most appropriate course of action [Anuj Agarwal v Union of India].
The submission was supported by senior advocate KV Viswanathan before a five-judge bench comprising Justices SK Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari.
"The Act allows, as it stands now, to frame rules for the pre-enrollment examination. ", the senior counsel informed the court.
On the Court's question about the impact of this approach on the judgment in V Sudeer v Bar Council of India, Viswanathan explained that the judgment in the matter was wrong.
The pre-enrolment training for those entering the legal profession initiated by the Bar Council of India (BCI) was subject to challenge in this case. The Court had struck down the requirement of such training while observing,
"These rules show that an enrolled advocate may practice as a full-fledged advocate, subject to the conditions laid down in these rules. His authority once granted cannot be restricted to his acting in court when he The State remains enrolled as an advocate on the roll. Therefore, it must be held that section 49(1)(ah) cannot uphold the impugned rules."
During the hearing, Justice Kaul also recommended that the difficulty level of AIBE should be determined based on the number of advocates enrolled in the country.
The judge underlined that the minimum standard required was set before being allowed to enroll and practice in the examination. Therefore, it must be of sufficient quality to determine the ability to practice.
"How many lawyers do you need in the system? Ideally, if the job is done fairly, how many lawyers would be needed? Is there a need for such a liberal test?" He asked.
He suggested that BCI conduct an analysis in this regard.
When the issue of necessary training of young lawyers came to the fore, Viswanathan urged the court to consider training young lawyers. He suggested that this may be prescribed as one of the determining factors for lawyers for designation as seniors or for promotion to the Bench.
The hearing will continue tomorrow.
The Constitution Bench is hearing petitions challenging the validity of Rule 9 to 11 of the BCI Rules for violation of Sections 16, 24 and 30 of the Advocates Act and Articles 14 and 19 (1) (g) of the Constitution.
Rule 9 makes clearing AIBE a mandatory pre-condition for every practicing advocate. Rule 10 enables the BCI to conduct examinations and Rule 11 deals with the process of issuing certificates to practice.
The questions referred for consideration of the Bench are:
(1) Whether pre-enrollment training can be lawfully prescribed by the Bar Council of India in terms of the Bar Council of India Training Rules, 1995 made under section 24(3)(d) of the Advocates Act, 1961 and if so If so, what is the decision of this Court in V. Sudhir v. Bar Council of India et al. [(1999) 3 SCC 176)] Need to be reconsidered?
(2) Can a pre-enrolment examination be prescribed by the Bar Council of India under the Advocates Act, 1961?
(3) If questions numbers 1 and 2 are answered in the negative, whether the post-enrolment examination has been validly prescribed by the Bar Council of India in accordance with section 49(1)(ah) of the Advocates Act, 1961?