BCI Has Power To Prescribe All India Bar Examination: Constitution Bench Of SC Overrules V. Sudeer Judgment
The Constitution Bench of the Supreme Court in an appeal yesterday held that the Bar Council of India (BCI) has the power to prescribe the All India Bar Examination (AIBE) for law graduates.
The Court has overruled the case of V. Sudeer v. Bar Council of India, (1999) 3 SCC 176 in which the Bar Council of India (Training) Rules, 1995 were struck down by the Apex Court.
The Bench comprising Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari observed, “The objective of the legislature while giving wide powers to the Bar Council of India under Section 49, which gives it the powers to make Rules, read with Section 24(3)(d), which gives it the powers to prescribe the norms for entitlement to be enrolled as an Advocate under the Rules of the Bar Council of India, leads us to the conclusion that these are adequate powers with the Bar Council of India under the said Act to provide such norms and Rules. We are, thus, of the view that while considering the questions referred to us, the only conclusion which can be laid is that the interdict placed by the judgment of this Court in V. Sudeer26 on the powers of the Bar Council of India cannot be sustained and we cannot hold that V. Sudeer27 lays down the correct position of law.”
The Bench said that it must be left to the BCI as to at what stage the AIBE has to be held – pre or post and that the result of the AIBE would be subject to the person passing all the components required under the course of study of the University/College which would be subject to the AIBE results being valid for a specified period of time.
Former Attorney General of India K.K. Venugopal was present, Senior Advocate K.V. Vishwanathan assisted the Court as an Amicus while BCI Chairman Senior Advocate Manan Kumar Mishra appeared in the Court.
The original dispute between the BCI and Bonnie Foi Law College, i.e., the respondent college, arose on account of the application of the said college for affiliation to carry on a legal study course. During the course of this matter, a larger question of diminishing standards of legal education provided at various law colleges in India came to be noticed which resulted in a Committee being appointed.
The said Committee was requested to examine issues relating to affiliation and recognition of law colleges, to identify areas requiring redressal, and to address factors impeding the implementation of existing norms. A report was submitted that recognised two significant aspects as imperative for improving the standards of the legal profession i.e., the introduction of a bar examination, and the compulsory requirement of apprenticeship under a senior lawyer prior to admission to the Bar.
The following were the case laws that were debated in this matter –
1. The first was the judgment of the apex court in V. Sudeer which discussed whether the 1995 Rules relating to entrants into the legal profession are within the competence of the Bar Council of India.
2. Second was the case of Indian Council of Legal Aid and Advice & Ors. v. Bar Council of India & Anr. (1995) 1 SCC 732 in which the Court struck down the endeavor of BCI to put an age cap on entry into the profession.
3. Last was the case of Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa (1996) 3 SCC 342 in which the Supreme Court held that Section 49(1)(ag), when read with Section 24 of the Advocates Act, confers wide powers on the BCI India to indicate the class or category of persons who may be enrolled as advocates, which would include the power to refuse enrolment in certain cases.
The questions before the Supreme Court were, whether the BCI could prescribe a post-enrolment examination under Section 49(1)(ah) of the Act and whether only on passing the examination from a law University/College or obtaining such a degree should a person be eligible to take the AIBE.
The Court while considering the aforesaid case laws and questions asserted, “V. Sudeer failed to consider that Section 24(1) is subject to the other provisions of the said Act and Rules made thereunder. … V. Sudeer11 erred in concluding that it is not one of the statutory functions of the Bar Council of India to frame rules which impose pre enrolment conditions. The 1995 Rules could have been ‘traced’ to the Bar Council of India’s function of ‘general supervision’ over the State Bar Councils, which was not considered by V. Sudeer.”
The Chairman of the BCI highlighted the powers of the Bar Council of India to make rules for the implementation of the Advocates Act.
“Half baked lawyers serve no purpose. It is this quality control, which has been the endeavour of all the efforts made over a period of time. … The prominent role of the Bar Council of India, the apex body, is apparent from the functions prescribed for the Bar Council of India under Section 7 of the said Act”, the Court noted.
The Court further observed that the reasoning, which permeates the judgments in V. Sudeer is that if statutorily the power of the State Bar Councils has been taken away in respect of a particular aspect i.e., either for providing training or for holding examination, the endeavour of the BCI to introduce a pre-enrolment examination could not be sustained as it would go contrary to the intent of the 1973 Amendment.
“We are unable to agree with the reasoning in V. Sudeer24 that because the State Bar Councils’ power for providing training or for holding examination was taken away by the 1973 Amendment, it ipso facto amounts to taking away such powers if they so vested with the Bar Council of India. … when under Section 24(1), the Bar Council of India has the statutory power of prescribing Rules subject to which a person may be treated as qualified to be admitted as an Advocate in the State roll, then we believe that the Bar Council of India is not devoid of its jurisdiction in undertaking a pre-enrolment training course or examination prescribed by the Bar Council of India”, said the Court.
The Court also noted that the BCI has the power to make rules determining the seniority among advocates under Section 49(1)(ae) of the Act.
The Court further said, “We would, of our own, hesitate to prescribe the number of opportunities available to a law graduate to take the All India Bar Examination, especially when it is only on passing the All India Bar Examination that he would be entitled to be enrolled in a pre-enrolment examination. In case of a post-enrolment examination, the period of two years between enrolment and passing the All India Bar Examination is already specified. … Even if a person has a law degree or enrolment, it does not mean that his ability to assist the court would continue with him if there are long hiatus period of time in some unconnected job.”
The Court concluded that the BCI can exercise its power to issue directions under Section 48B of the Act to ensure uniformity and fairness of the procedure followed by each of the State Bar Councils.
The Court also said that it expects the BCI to take necessary steps within three months.
Accordingly, the Apex Court disposed of the appeal.
Cause Title- Bar Council of India v. Bonnie Foi Law College & Ors.