BCI has powers to prescribe qualification of AIBE as an eligibility to practice: Constitution Bench of SC

BCI has powers to prescribe qualification of AIBE as an eligibility to practice: Constitution Bench of SC

The Bar Council of India has the authority to prescribe the need of passing the All-India Bar Examination as a requirement to practise, according to a Constitution Bench of the Supreme Court on Friday. The BCI can determine whether the AIBE should take place before enrollment or after enrollment. 

The V Sudeer v. Bar Council of India, (1999) 3 SCC 176 ruling, which found that no requirements other than those listed in Section 24 of the Advocates Act could be placed on a person desiring to practise law, was also overturned by the Constitution Bench. 

The Court determined that the Advocates Act gives the BCI sufficient authority to establish such standards.

"The effect of this would be that it is left to the BCI as to at what stage the AIBE is to be held- pre or post enrolment", The presiding judge, Justice SK Kaul, read the order's main clause. 

After two days of hearings, a five-judge panel made up of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari reserved judgement on a group of petitions contesting the legitimacy of the Indian Bar Council's qualifying examination that was held in September 2022. 

Additionally, the Court has agreed to some recommendations made by the Amicus Curiae on the actions of AIBE. One recommendation was to permit students who were qualified to take the final semester test to also take the AIBE. 

The three-judge Bench referred the following three questions:

(1) Whether the Bar Council of India could legitimately prescribe pre-enrolment training in accordance with the Bar Council of India Training Rules, 1995, drafted under Section 24(3)(d) of the Advocates Act, 1961, and, if so, whether the decision of this Court in Sudeer v. Bar Council of India, (1999) 3 SCC 176) requires reconsideration. 

(2) Whether the Advocates Act of 1961 permits the Bar Council of India to establish a pre-enrolment exam. 

(3) If the answers to questions 1 and 2 are no, then the next question is whether the Bar Council of India can legitimately prescribe a post-enrolment examination under the provisions of Section 49(1)(ah) of the Advocates Act, 1961.

The Senior Advocates K.K. Venugopal and K.V. Vishwanathan, who both argued in favour of launching a new regime with an all-India pre-enrolment examination at its centre, as well as the then-Attorney General for India, provided support for the Court in this matter. The defence attorney argued that a qualifying exam was not only necessary to uphold the standards of the legal profession but also violated the Advocates Act of 1961. Clause (ag) of Subsection (1) of Section 49 of the Act gave the bar council the authority to establish regulations for carrying out such an examination. Their main argument was that the difficulties would go away if they switched to a pre-enrollment assessment system. The senior attorney also questioned the legality of the ruling in V. Sudeer v. Bar Council of India, (1999) 3 SCC 176, which held that a person seeking to practise law could not be subjected to any requirements beyond those listed in Section 24 of the Advocates Act, as well as the Supreme Court's ruling in Indian Council of Legal Aid and Advice v. Bar Council of India, (1995) 1 SCC 732, upon which the Sudeer Bench had relied.

Case Title: Bar Council of India v. Bonnie Foi Law College & Ors. 
Citation: Special Leave Petition (Civil) No. 22337 of 2008

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