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.