India Supreme Court issues notice in petition challenging bar exam rules

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India Supreme Court issues notice in petition challenging bar exam rules

Ananaya Agrawal | National Law U. Delhi, IN

January 18, 2021 05:34:52 pm

The Indian Supreme Court on Monday issued notice in a petition challenging the All India Bar Examination Rules 2010 which require an advocate to qualify for the All India Bar Examination (AIBE) within two years after enrolment to a State Bar Council.

The writ petition has been filed by Parthsarthi Mahesh Saraf, a new advocate who enrolled in 2019. The petition challenges the Bar Council of India’s authority to prescribe a post-enrollment qualification for practising law. It also seeks a stay on the Bar Council’s December 21, 2020 notification which announces that the AIBE will be conducted twice, first on 24 January and then on 21 March 2021.

The exam was first introduced in 2010 after the Bar Council inserted Rules 9 to 11 in Part VI, Chapter III of the Bar Council of India Rules on Conditions for the Right to Practice. It is typically conducted by the Bar Council twice a year to test the candidates’ knowledge on various substantive and procedural law such as constitutional law, administrative law, the Indian Penal Code, criminal and civil procedure, evidence, public interest litigation, and professional ethics. Once an advocate has cleared the exam, the Chairman of the Bar Council issues a certificate of practice deeming them fit to practice law in India.

Saraf’s petition argues that the AIBE Rules violate established precedent by the Supreme Court in the cases of V Sudheer v. Bar Council of India and Indian Council of Legal Aid & Advice v. Bar Council of India. These cases held that the Bar Council cannot make subordinate rules imposing additional conditions for advocates contrary to the Advocates Act of 1961.

He also points out that most commonwealth countries such as Australia, Bangladesh, Canada, Hong Kong, Malaysia, Pakistan, Singapore, and the UK prescribe a bar examination as a precondition for enrolment. Even the High Powered Committee appointed by the Supreme Court of India in 2009 recommended training and examination prior to enrolment. The Bar Council has ignored the recommendations and established the precedent of the court, and has instead imposed post-enrollment qualifications.

A similar petition which was referred to a five-judge Constitution Bench in March 2016 is still pending before the Supreme Court. Now that the court has issued notice in Saraf’s petition, his case is admitted for hearing and the Bar Council is mandated to file a reply within three weeks.

While some believe that as an open-book exam the AIBE is a necessary formality to ensure that practising advocates have basic knowledge in all legal subjects, many argue that it privileges candidates who are able to afford the high entrance fees of Rs 3,500 (US$48) and can bring expensive study material and aids for reference.

Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.