SC refers bar exam issue to Constitution Bench
“Let it go to a five-judge Constitution Bench for authoritative pronouncement,”" a three-judge Bench, comprising Chief Justice TS Thakur and Justices R Banumathi and UU Lalit said.
The three questions to be considered by the Constitution Bench are – firstly, whether the Bar Council of India (BCI) can prescribe a pre-enrolment training in terms of the BCI (Training) Rules, 1995 as framed under Section 24 (3)(d) of the Advocates Act, 1961.
Secondly, whether a pre-enrolment exam can be prescribed by the BCI as a condition precedent for enrolment and, thirdly, if these two questions are answered in the negative, then whether a post-enrolment exam can be validly prescribed.
The Bench said the questions are of considerable importance and all cases relating to the challenge to the AIBE stand transferred to the Constitution Bench. “We are of the view that the questions call for determination by the Constitution Bench and need to be answered by the Constitution Bench. We, therefore, transfer it to the larger Bench,” it said.
The questions were framed, after taking suggestions of the parties and senior advocate KK Venugopal, who is assisting the court as amicus curiae in the matter. During the previous hearings, the Bench had said, “We want to settle this controversy regarding pre-enrolment training and post-enrolment exam. If an amendment to the Act is needed, we will recommend that.”
The Bench was hearing a batch of petitions, seeking quashing of a 2010 notification, by which lawyers must clear the AIBE to get an advocacy licence.
The court, during the earlier hearings, had observed that legal profession is “crying for reforms” and lawyers cannot be allowed to a have a “free ride as the administration of justice is a key area”.
The Apex Court had not stayed the upcoming AIBE, saying it was not “averse” to it and would examine whether it was permissible under the Advocates Act. “The system is crying for reforms...There are over two million lawyers in courts. Which means, we have enough lawyers and future inclusion must be on merits,” it had said, adding, “the profession is not something where you can have a free ride.”
The plea, seeking quashing of BCI’s notification on AIBE, alleged that it takes away the statutory right given to an eligible person to practise law.
The Advocates Act provides that a law graduate can practise law and introduction of AIBE is not mandated under the law, the plea said. The BCI conducts AIBE, which has been made mandatory, to examine an advocate’s capability to practise the legal profession.
The Apex Court had also observed that right to practise law is a fundamental right for an LL.B degree holder and introduction of the examination by the BCI for granting advocacy licence “negates” the very right. The BCI had claimed that the AIBE assesses skills at a basic level and is intended to set a minimum benchmark for admission to the practice of law.
“It (AIBE) addresses a candidate’s analytical abilities and basic knowledge of law,” the bar body had said.