SC Verdict on AIBE: To be a Post-Enrollment exam, Questions raised on Employment until clearing AIBE, Seniority; Read

The SC Bench hearing petitions challenging validity of the All India Bar Examination conducted by the Bar Council of India, raised some crucial questions and reserves that AIBE be held as a post-enrollment exam. Read here in detail. 

In continuation to hearing held on September 27, the Consitution Bench of Supreme Court raised some crucial questions during the arguments put forth by Senior Advocate KV Viswanathan and, the Bar Council of India Chairperson Manan Kumar Misra.

The bench, while hearing compiled pleas challenging the validity of the All India Bar Examination (AIBE), said, "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."

Note that, multiple pleas have been filed in court 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 number 9 to 11 of BCI Rules for professional standards states the following: 

Rule 9 - AIBE a mandatory professional exam for every advocate to practice in a court of law. As stated in rule book, "No advocate enrolled under section 24 of the Advocates Act, 1961 shall be entitled to practice under Chapter IV of the Advocates Act, 1961, unless such advocate successfully passes the All India Bar Examination conducted by the Bar Council of India. It is clarified that the Bar Examination shall be mandatory for all law students graduating from academic year 2009-2010 onwards and enrolled as advocates under Section 24 of the Advocates Act, 1961. The All India Bar Examination. 

Rule 10 - The Bar Council of India to conduct AIBE. As stated in rule book, "1. The All India Bar Examination shall be conducted by the Bar Council of India.

1. The Bar Examination shall be held at least twice each year in such month and such places that the Bar Council of India may determine from time to time.
2. The Bar Examination shall test advocates in such substantive and procedural lawareas as the Bar Council of India may determine from time to time.
3. Such substantive/procedural law areas and syllabi shall be published by the Bar Council of India at least three months prior to the scheduled date of examination.
4. The percentage of marks required to pass the Bar Examination shall be determined by the Bar Council of India. 
5. An unsuccessful advocate may appear again for the Bar Examination, without any limit on the number of appearances.
6. The Bar Council of India, through a committee of experts, shall determine the syllabi, recommended readings, appointment of paper setters, moderators, evaluators, model
   answers, examination hall rules and other related matters.
7. The Bar Council of India shall determine the manner and format of application for the examination.
8. Upon successfully passing the Bar Examination, the advocate shall be entitled to a Certificate of Practice. 

Rule 11 - Issuance of COP to qualified candidates. As stated, "Application for Certificate of Practice -

1. The Certificate of Practice shall be issued by the Bar Council of India to the address of the successful advocate within 30 days of the date of declaration of results.
2. The Certificate of Practice shall be issued by the Bar Council of India under the signature of the Chairman, Bar Council of India."

The pleas challenge validity of AIBE for being voilative of following sections of Advocates Act, 1961: 

Section 16 - Senior and other advocates, "1) There shall be two classes of advocates, namely, senior advocates and other advocates.

(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, 1[standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.

(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe.

(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:

2 [Provided that where any such senior advocate makes an application before the 31st December, 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly.]

Section 24 - Persons who may be admitted as advocates on a State roll (On fullfilling all the conditions). 

Section 30 -  Right of advocates to practise - Subject to the provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,--

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.

And, also contradicting the following Articles of Consitution of India: 

Article 14 - Equality before law stating "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth."

Article 19 (1)g -  All citizens shall have the right - "To practise any profession, or to carry on any occupation, trade or business."

As Attorney General KK Venugopal suggested on September 27, 2022, the conduct of pre-enrollment AIBE will be better than conducting it after the law graduates have enrolled into the state bar councils. In the hearing held on September 28, Justice Kaul raised concerns for the suggestion by stating, "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."

To which, BCI Chairperson stated that, "If enrollment date of two candidates is same, then date of birth will be the deciding factor for Seniority." On which, Justice Khanna remarked, "Someone's seniority might go down because his enrolment application was decided late." 

Justice Kaul further asked the BCI chairperson, "Otherwise you will have unemployed law graduates." to clarify if the law graduates can be employed in between graduation and clearing of AIBE. 

Moreover, Justice Kaul also mentioned that the registration fees for the Delhi Bar Council is quite high, and law graduates from EWS may not be able to pay INR 20,000 for it. 

Advocate Kartik Seth suggested that law graduates should be allowed to take AIBE in the final year of their graduation to save time. He added that with each session of AIBE exam, State (here BCI) collects INR 42 Crore as application/ exam fee. To which, Justice Kaul questioned, "Should a constitutional court say it should be INR 3,000 and not INR 3,500?

Advocate VK Biju also put forth that if a post-enrollment exam comes into effect then the BCI will be taking enrollment fee without the candidate having a right to practice. Justice Kaul disagreed with this argument by asking, "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?

The final judgement reserved by the SC bench is to 'fine-tune the current scheme of the Bar Exam which, currently has to be compulsorily taken post enrolment." Therefore, as of now the All India Bar Examination will continue to be held as a post-enrollment exam. 

AIBE XVII (17) 2022, was expected to be held in October or November as BCI Chairperson had stated in hearing held on August 2. However, the application forms of AIBE XVII (17) 2022 are not yet released. Candidates can expect a delay of one month, and the exam will tentatively be held in December this year. 

Read More:

• AIBE to be a pre-enrollment exam? Amendments for Post-enrollment exams and raising difficulty level hinted by SC; Read
• AIBE XVII Syllabus 2022 released, No update on exam schedule and applications; Check here
• AIBE XVII (17) 2022 to be held within 3 months: BCI Counsel Manan Kumar Mishra informs SC, Read
• Law Graduates not practising law for over 5 yrs need to re-appear for AIBE: BCI
• BCI to allow other professionals to enroll as provisional advocates on qualifying AIBE? Read here