This Case Commentary is written by Mushkan Pandey, a Law Graduate of Deen Dayal Upadhayay Gorakhpur University

1. Case Details:

• Court: Supreme Court of India

• Bench: 5 Judges Bench - J.K. Maheshwari, Vikram Nath, Abhay S. Oka, Sanjay Kishan Kaul, Sanjay Khanna

• Case Type: Civil Appellate Jurisdiction

• Decided: February 10, 2023

• Citation: Civil Appeal NO. 969OF 2023 Arising out of SLP (C) No.22337 of 2008

2. Abstract

The Supreme Court of India has upheld the Bar Council of India's (BCI) power to conduct the All-India Bar Examination (AIBE).

As per Sections 7 and 49 of the Advocates Act, 1961, the Bar Council of India has disciplinary powers, protection powers to safeguard advocates' interests, and general supervision and control over State Bar Councils. Additionally, it has the power to make rules. Therefore, the court held that There is no provision in the Advocates Act, 1961, that prohibits the Bar Council of India from conducting a pre-enrolment examination, it is for the Bar Council to decide at what stage the examination should be held, pre-enrolment or post-enrolment, as the main objective of the examination is to control professional standards for lawyers seeking to join the profession.

3. Facts of the Case:

The problem between the Bar Council of India (BCI) and Bonnie FOI Law College started when the college applied to offer law courses. The BCI found issues with the college’s infrastructure and how it was run. So, the Supreme Court sent a team to inspect the college on June 29, 2009. The team found many problems and gave a report. On August 24, 2009, the Court told the college to fix these issues by following certain conditions. The college claimed it had made the necessary improvements, but the BCI was still not satisfied.

During this case, a bigger issue about the falling standards of legal education in law colleges across India was noticed in an order dated 29.06.2009. As a result, a committee was set up with Mr. Gopal Subramanium (then Solicitor General of India) as the Chairman, along with Mr. M.N. Krishnamani (President of the Supreme Court Bar Association) and Mr. S.N.P. Sinha (Chairman of the Bar Council of India). The Committee's job was to look into problems related to the affiliation and recognition of law colleges, find areas that needed improvement, and address challenges in following the rules. They submitted their report to the Court on 06.10.2009.

The Report identified two important steps to improve the standards of the legal profession. First, the introduction of a bar examination, and second, a mandatory apprenticeship under a senior lawyer before being admitted to the Bar.

4. Issues:

The Court had to decide on three main legal issues:

· Can the Bar Council of India lawfully enforce pre-enrolment training as per the Bar Council of India Training Rules, 1995, under Section 24(3)(d) of the Advocates Act, 1961?

· Can the Bar Council of India require a pre-enrolment examination under the Advocates Act, 1961?

· If the answers to questions 1 and 2 are "no", can the Bar Council of India legally prescribe a post-enrolment examination under Section 49 (1) (ah) of the Advocates Act, 1961?

5. Case Law Debated Before Court:

Three important judgments were discussed in court. The first one is from the case of Sudeer vs. Bar Council of India & Anr. This judgment looked at whether the 1995 Rules for entering the legal profession were allowed by the Bar Council of India. In this case, the Court said that a person who is registered as an advocate on the State roll has the exclusive right to practice law. According to Sections 23, 29, and 33, anyone who meets the qualifications in Section 24(1) can practice in any court, including the Supreme Court. As long as someone satisfies the conditions in Section 24(1), they can practice law unless they are disqualified under Section 24A of the Act. The second judgment discussed in court is from the case of the Indian Council of Legal Aid and Advice & Ors. v. Bar Council of India & Anr. In this case, the Court rejected the Bar Council of India's attempt to set an age limit for entering the legal profession. The Bar Council had stated that anyone over the age of 45 on the date they submitted their application would not be allowed to enroll as an advocate. The Court found this restriction to be invalid. Finally, in the case of Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, the appellant was a medical practitioner since 1970 who argued that he should be allowed to practice as both a doctor and an advocate at the same time. The Supreme Court stated that Section 49 (1) (ag), when combined with Section 24 of the Advocates Act, gives the Bar Council of India broad powers to determine who can be enrolled as advocates. This includes the authority to refuse enrolment in certain situations.

The Court ruled that the Bar Council of India has the power to take necessary steps to ensure that only qualified students enter the legal profession, which could include requiring an examination or training course before they are allowed to enroll as advocates.

6. Judgements:

In this case, the Supreme Court looked into how much power the Bar Council of India (BCI) has, especially regarding the All-India Bar Examination (AIBE). The Court stressed that having skilled lawyers is very important for making sure justice is done and is accessible to everyone. It noted that maintaining the quality of legal professionals is an ongoing effort.

The Court clarified some key points:

· State Bar Councils were never meant to have the power to regulate exams or the entry of lawyers on a national level.

· The Bar Council of India already had the authority to maintain and control the quality of lawyers, including conducting the AIBE.

· If the BCI didn’t have this power originally, it couldn’t be assumed, but since it already had these powers, the 1973 Amendment didn’t take them away. The amendment didn’t deal with the BCI's authority to ensure quality through exams.

7. Conclusion:

On February 10, 2023, the Constitution Bench ruled that it is up to the Bar Council of India to decide whether the All-India Bar Examination (AIBE) should be conducted before or after lawyers receive training or enrichment.

While confirming the legality of the AIBE, the Supreme Court also stated that the earlier judgment in the V. Sudheer case, which discussed the powers of the Bar Council of India, did not correctly reflect the law and could no longer be upheld.

Reference:

https://indiankanoon.org/doc/67103873/

https://www.casemine.com/judgement/in/63e9ceb2ccff143fb29aab6d