Challenge to AIBE Day # 2: Supreme Court Reserves The Case For Judgment

On September 28th, 2022, a Constitution Bench led by Justice S.K. Kaul reserved Judgment in the challenge to the All India Bar Examination (AIBE) conducted by the Bar Council of India.

The Bench heard Attorney General K.K. Venugopal and Senior Advocate K.V. Vishwanathan, who appeared as amicus curiae, at length. During the hearing, Justice Kaul made it clear that the intention of the examination is not to disqualify candidates from being advocates but to improve their proficiency. 

What is AIBE? Why Was It Challenged?

The Bar Council of India (BCI) introduced the All India Bar Exam (AIBE) in April 2010 to improve the standards of the legal profession in India. The exam assesses a candidate’s basic understanding of the law to determine whether they are fit to practice as an advocate. Candidates passing the examination are granted a ‘Certificate of Practice’ by the Bar Council of India to signify their qualification as an advocate.

In April 2010 the BCI introduced the All India Bar Council Rules, 2010 which made passing the AIBE and receiving a Certificate of Practice mandatory to practice law. These rules were reinforced by the BCI’s 2014 and 2015 rules which made certain benefits for advocates contingent on writing the AIBE and renewing their Certificate every five years. Subsequently, a number of previously enrolled advocates and freshly enrolled advocates challenged the 2014 and 2015 Rules issued by the Bar Council of India. 

On March 1st, 2016, a 3-Judge Bench comprising former CJI J.S. Thakur and Justices R. Banumathi and U.U. Lalit observed that the right to practice law was not only a statutory right under the Act, but is also a fundamental right for LL.B. degree holders. The Bench noted that an examination which grants licenses to advocates negated this right. The Bench declared that they were not against the exam itself, but wanted to verify if the AIBE was within the ‘parameters of law’. On March 18th, 2016 the Bench referred the challenge to a 5-Judge Constitution Bench.

Mr. Vishwanathan Argues That BCI Has Powers To Lay Down Policy For Admission Into The Bar:

Continuing his submissions, Mr. Vishwanathan argued that Supreme Court’s Judgment in V. Sudheer v Bar Council of India  (1999) placed the Bar Council of India (BCI) in a subservient position. He argued that while BCI may not be the authority to admit a candidate into the Bar, however, the Advocates Act, 1961 empowers it to lay down policies for admittance. Mr. Vishwanathan, argued that the primary objective of BCI is to improve the Bar and must be given rule making power to fulfill this objective. 

Emphasising the position of power held by the BCI, he referred to Section 7(1)(g) of the Advocates Act,1961, which grants the BCI power to supervise State Bar Councils. Mr. Vishawanathan then referred to Section 7(1)(M) of the Act, which empowers BCI to do what is necessary to discharge its functions, and argued that this allows the BCI to modify the exam’s syllabus or do away with the exams. 

The Bench,at this juncture, asked Mr. Vishwanathan to address them on the following in the light of his arguments on Pre-enrolkment examinations: 

1. How will seniority be determined for the purpose of designating someone as a senior advocate or elevating them as a Judge if 100s of candidates enrol on the same day?
2. What documents would be required to apply for a Pre-enrollment examination?
3. What is a candidate’s role between the time of examination and enrollment?
4. Since different State Bar Councils have different norms and fee structure for enrollment, how will uniformity be brought about?

To answer the Bench’s first question, Mr. Vishwanathan referred to Section 21 of the Advocates Act to state that if two candidates are enrolled on the same day, their date of birth would determine seniority. He told the Bench that he will contemplate on the other three questions and file a note. 

Mr. Vishwanathan suggested that the BCI may only allow candidates who are in the final year of their law course to write the AIBE, in order to ensure they can be employed immediately after graduation. When Mr. Vishwanathan concluded his arguments, Justice Kaul remarked that the ultimate objective of the examination is to not disqualify candidates but to ensure that they do justice to the profession. 

Mr. Karthik Seth Argues That AIBE Discriminates Against Those Who Graduated After It Was Introduced:

Advocate Karthik Seth, appeared for a petitioner and submitted that AIBE is discriminatory, as candidates who graduated before the examination was introduced and enrol after its introduction did not need to take the exam. While agreeing that AIBE is necessary, Mr. Seth argued that a pre-enrollment examination would be more appropriate, since it will save time for candidates who want to take up employment immediately after graduation . He also submitted that the BCI’s examination fee of Rs. 3,500 for AIBE is exorbitant. 

The Bench, however, told Mr. Seth that the points he is arguing pertains to BCI’s policy domain and a Constitution Bench cannot lay down such guidelines. Mr. Seth argued that if the BCI does its job of imparting legal education in a proper manner, the AIBE might not be necessary. 

The Bench, also comprising Justices  Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari reserved Judgment in the case.