In CIVIL APPEAL No.969 of 2023-SC-Students eligible to pursue final semester of final year course of law could be allowed to take AIBE; BCI has to decide if exam has to be held at pre or post enrolment stage: SC
Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath & J.K. Maheshwari [10-02-2023]

Read Judgment: BAR COUNCIL OF INDIA v. BONNIE FOI LAW COLLEGE & ORS 

Mansimran Kaur

New Delhi, February 13, 2023: Students who have cleared all examinations to be eligible to pursue the final semester of the final year course of law, on production of proof of the same, could be allowed to take the All India Bar Examination, the Supreme Court has opined while noting that neither the provisions nor the role of the universities to impart legal education, prohibit the Bar Council of India from conducting pre-enrolment examination.

The Constitution Bench of Justice Sanjay Kishan Kaushal , Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath and Justice J.K. Maheshwari disposed of the civil appeal and petitions by observing that it has to be left to the Bar Council of India as to at what stage the All India Bar Examination has to be held – pre or post. 

The original dispute between the Bar Council of India and Bonnie Foi Law College- respondent arose on account of the application of the said college for affiliation to carry on a legal study course. This Court appointed an inspection team, which visited the respondent college and gave a comprehensive report pointing out the shortcomings in the infrastructure and functioning of the college.The Court laid down certain conditions to be followed by the respondent college which the college claimed to have fulfilled later.

Through an  order, a three-Judge Bench of the Court opined that the questions which fell  for determination in the present matter were  of considerable importance affecting the legal profession in general and need to be authoritatively answered by a Constitution Bench. The reference order provided for three questions to be answered by this Court.

These were 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 Sudeer vs. Bar Council of India & Anr requires reconsideration. The second issue was whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961.

Another question which arose was 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.

In view of the same, reference was made by the Bench to the judgments in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa and Indian Council of Legal Aid and Advice & Ors. v. Bar Council of India & Anr. 

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. Clause (h) of Sub-Section (1), provides for promotion of legal education and for laying down standards of such education in consultation with Universities in India and State Bar Councils. Sub-Clause (m) is in the nature of a residuary clause, having the widest amplitude to do all other things necessary for discharging the aforesaid functions, the Court noted. 

The Bench was unable to agree with the reasoning in the judgment in V. Sudeer v. Bar Council of India that because the State Bar Council's power for providing training or for holding examinations 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.

As per the Bench,  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, led to the conclusion that these are adequate powers with the Bar Council of India under the said Act to provide such norms and Rules.

“The effect of the view expressed by this Court  would be that it has to be left to the Bar Council of India as to at what stage the All India Bar Examination has to be held – pre or post. There are consequences especially in respect of the interregnum period which would arise in holding the All India Bar Examination in either scenario, and it is not for this Court to delve into them”, the Bench remarked.

One of the questions which arose was whether only on passing the examination from a law University/College or obtaining such a degree should a person be eligible to take the All India Bar Examination as in India, the various recognised institutions providing law degrees often declare results at different times. The concern was that a person on account of non- declaration of result may lose out on the opportunity to appear in the All India Bar Examination leading to a fairly long hiatus period of time without having the opportunity to work in court proceedings.

In view of the same, the Court was  inclined to accept the suggestion from the Amicus that students who have cleared all examinations would be eligible to pursue the final semester of the final year course of law, on production of proof of the same, could be allowed to take the All India Bar Examination.

Another issue which arose was that of seniority at the Bar. 

“The determination of seniority in case of a post-enrolment examination based on the date of birth of an advocate is stated to have statutory recognition under Section 21 of the said Act currently and, thus, it was  suggested that a similar criteria would suit in any pre or post enrolment examination. We must also note here that the Bar Council of India has the powers to make rules determining the seniority among advocates under Section 49(1)(ae) of the said Act”, the Court further remarked. 

Thus,hoping that such observations while conferring a greater role on the Bar Council of India, would make the Bar Council of India more conscious of the importance of the role it has to perform, including ensuring that the only persons who are well equipped with the tools of law pass the All India Bar Examination, the Bench disposed of the civil appeal and the petitions.