Thread by @barandbench

A Constitution Bench of the Supreme Court will soon continue hearing petitions challenging the validity of the All India Bar Examination.

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Bench assembles.

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AG KK Venugopal: From the earliest year, the committee recommended that there should be an examination and i find that consistently acts after acts have been passed, committees, the law commission report have said that exam is necessary.

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AG takes court through his list of dates: In 1924, the committee gave its report. In 1926, the Indian Bar Council Act was passed.

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AG reads history to show the exam and pratical training was always required: There is absolute uniformity and like mindedness.

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Justice Kaul: One of the issues raised is, can there be a prescription of an advocate to work with a lawyer..

Second, of course is.. no one is disputing whether the exam can be held.. the issue of enrolment vis-a-vis the bar. How would clause D be construed?

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Justi Kaul: Is it something which the parliament should do or does it require construction by us?

AG: it's one of the items in the list.. the parliament is entitled to pass a law.

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Counsel for bar council intervenes: For this, we have already introduced the system of internship. Right from the very beginning, they are required to intern.

Justice Kaul: That's also called into question. I want to know the effect of deletion.

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Sr Adv KV Viswanathan: It's going to be my submission that deletion will not have an effect.

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AG: After your graduation, which is the category of persons you're entitled to enroll is the question - that's where the rule making power would set in. This is what three judges has held.

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AG: The whole of it has been subsumed into the rule making power of the central government.

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AG: The fact that D has been omitted will not have an effect of the powers of the central government.

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AG: What has to be remembered is this- why is it that 500 colleges were removed and their recognition withdrawn overnight? Because it was substandard. They were more in the nature of teaching shops.

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AG: Under those circumstances, uniformity was essential to find out the minimum standards have been maintained by law schools.

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AG: when I went to law college, it was a last resort because I couldn't get into engeneering.

Justice Kaul: That's good for us.

AG: During those years there was no exam.. unless you had a godfather you would be wandering around.

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AG: Now, of course with NLUs the entire scenarios has changed.

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AG: Now, all that is gone. Today law colleges stand at the same level as engeneering and medicine.

Justice Kaul: That is the case for NLUs, but there is no consistency- the number of colleges are small. The issue is that- where is the teaching staff coming from?

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Justice Kaul: My impression in rural areas is that it is still part time. A section of lawyers is making the best of money. But there are large sections in this country where lawyers are struggling..

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AG: You practice, then you fail- then you discontinue.

Justice Khanna: There are some excellent educational institutions at a high level,but then there's a large chunk which has very poor communication skills. The thrid problem is the number of cases.

Justice Khanna: There are various difficulties.

Justice Kaul: Was there ever a study done as to how many lawyers we need? Some study needs to be done. Because the exam.. you pass them, it's so simplistic. How to fine-tune?

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Justice Kaul: It has to be structured to our need in India..

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Justice Khanna: Do we have a bifurcation of number of advocates, those practicing before various court, years put into profession etc.

BCI: Yes.

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Justice Kaul: How many lawyers do you need in the system? So.. ideally if work reasonably done- how many lawyers needed? Is it required to have such a lenient exam?

Think about working out this thing.

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Justice Kaul: Today, the technology is such, you should not take long.

It's an idea. Just think about it.

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AG: I have letters from young lawyers from J&K who are complaining that senior lawyers extract work from them and don't pay..

Justice Kaul: Senior lawyers sometimes think it's a privilege to let someone work with them. It used to happen earlier.. things have changed.

Justice Kaul: You're right.. if people come from backgrounds which are not financially sustainable then after an education of 3+3, to sustain themselves for another 4 5 years is difficult.

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Justice Kaul: That's why a lot of people, bright people were lost to the profession earlier because they didn't have the financial.. now things have changed.

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Sr Adv Viswanathan: A reasonable stipend.. we were lucky Mr Venugopal.. the first of every month.. a cheque used to be ready.. something that could sustain us.

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AG: is it possible to incentivise seniors to give juniors some means of sustenance?

Justice Kaul: I think BCI is taking it up and we've issued some directions in the other matter.

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Justice Kaul: The exam provides a minimum standard before you can be permitted to enrol. It should not.. I'm aware that the exam not being very tough, the passing rate is still not very high. That's not the objective.

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Justice Kaul: The exam can be an input to the BCI to look to the performance of colleges.

AG: instead of withdrawing recognition, you may ask them to improve their standards.

Justice Kaul: The biggest challenge is faculty.

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BCI: We have recently amended our rules.. now even sitting judges can teach part-time.

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Justice Kaul: We never looked after our teachers for many years.. so people left.

AG: The conditions of service in India are so poor, we are unable to attract them back.

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AG: The Bangalore NLS had a highly sophisticated screen and the students could ask question from Oklahoma University and teaching from there was being telecast.

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AG takes court through case law.

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AG: The three judges have expressly referred to 49, then come to the conclusion that BCI has to conduct exam and training.

Justice Kaul: One part talks about prior to enrollment...

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Justice Kaul: The last sentence speaks of regulation of professional conduct.

Justice Khanna: In this case, the issue was whether you can practice both as a doctor and lawyer. That was the controversy. In that context 49 ag is being interpreted.

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Justice Khanna: The issue of pre-enrollment exam was not the direct subject matter.

No. 2) There are two aspects- one is training and pre-enrollment exam.

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Justice Khanna: Yes, you're right the stipulations have been omitted but when we look at the issue before us.. we have now a post enrollment exam. But training is not internship which is not really..

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AG: That is a separate issue.. please go to para 16..

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Justice Kaul: There's only one aspect which troubles us- if we have a restriction that you must have a training with somebody.. how will it work out? People who come from villages where will they get seniors?

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AG: I may finally say.. your Lordships are sitting in Constitution Bench. Neither of these two judgements..

Justice Kaul: What is your perspective of that power and whether we should use that power.

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Justice Khanna: They will have to answer - if they want training, will they also prescribe payment?

Justice Kaul: As my brother put it, they will have to make financial provision.

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Justice Kaul: Who will pay the stipend? if the BCI has to face the burden.. 75 K lawyers join in a year..

Just thinking aloud. If we water down it some extent, make sure there are no impediments.

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Justice Kaul: The Bar council may not be able to take the financial responsibility of paying stipend. People who will get a placement through bar council.. it should not become another strain on that young advocate.

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AG: Question is, can the Bar council send out letters..

Justice Kaul: Yes, that can be workable.

AG: We are paying our interns.

Justice Kaul: The idea is to encourage them to bear the financial burden.

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Justice Kaul: For training, you will have to address us.. we still have some parts which need to be satisfied.

If we stretch ourselves.. in construing it as a power exists, implementation will become a problem.

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Justice Khanna: Do we have enough infrastructure for lawyers practicing in court to take over?

Sr Adv Viswanathan: Incentivisation will work- designation will depend, elevation will depend.. then lawyers will take!

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Justice Kaul: On the lighter side.. the designation issue has become more complex than elevation!

(Everyone laughs)

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Court rises for lunch.

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Hearing resumes.

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AG: The power exists both in the BCI and central government.

Justice Kaul: On the issue of the exam- is anyone taking a contra view?

AG: I have a writ petition - Anuj Agarwal.

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A counsel intervenes: I'll show during the course of arguments how the exam is completely arbitrary and unconstitutional without an amendment to the Advocates Act. Under the Act there are certain section given specifically for disqualification..

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AG: So far as the Act is concerned, there is an elevated provision for internship.

Justice Kaul: This is internship during the course. How much it is followed for three years course would be..

BCI: there is marking. They are coming.

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Justice Kaul: Is it happening across law schools, not just prominent?

Yes: BCI.

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BCI: Now, the entire scenario has changed.

Problems are with government institutions. There's an acute dearth of teachers.

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Justice Kaul: Where will you get teachers?

BCI: We have issues show cause notices. Whenever we received complaints, we go and check.

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Justice Kaul: It's important that basic level of quality of lawyers has to be maintained.

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AG: An elaborate procedure is laid down.. if this internship which I think with exposure to courts, where unfortunately, the interns are not allowed.. but if Your Lordships permits 10-20 per day..

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AG: .. i think it'll be very good. Therefore, i don't think that apprenticeship in a lawyers office will be superior to the requirment of internship.

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AG: Is it necessary then to have training under senior lawyers..? My interns do a lot of research, and they're brilliant. Therefore, according to me the insistence on training under lawyer for one year is necessary.

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AG: ..but the exam is essential.

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Justice Kaul: Some short note will have to come from you..

AG: There is already the exercise of power for holding an exam post enrollment..

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Justice Khanna: If you look at Rule 9 carefully..

Justice Kaul: So, you give an undertaking that you'll clear the exam in two years.

Sr Adv Viswanathan: Pre enrollment if there is an exam, all these issues will be taken care of.

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Justice Kaul: Can they file Vakalat before AIBE?

BCI: they cannot till AIBE.

AG: My junior has been filing.

Sr Adv Viswanathan: They have to enrol to take the exam, then after the exam.. there is enrolment for practice.

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Justice Khanna: If you go to Chapter 4, it's a complete code in itself. 29-34 is very clear on that.

It says advocates to be the only recognised class of persons entitled to practice law.

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Justice Khanna: What is happening today.. the two stage process is not working.

Sr Adv Viswanathan: Pre enrollment has sanction, post enrollment needs an amendment.

Justice Khanna: Is our two stage system really working?

Sr Adv Viswanathan: Section 30 says you can only do after amendment of Act.

Because of Sudhir, you could not hold a pre enrollment exam.

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Justice Kaul: In a nutshell - you are saying have a pre enrollment bar exam.

Sr Adv Viswanathan: For training they'll have to come with a concrete framework.

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AG: For your lordships to now do what will not be just l, that is to say that exam should not be pre enrollment.

Adds that it would be the most appropriate to have bar exam before enrollment as Clauses ah and ag of Section 49(1) confer the power to categorise...

AG: between persons who have passed the exam and those who have not.

BCI Chairman says former HC CJ appointed to conduct suprise checks on institutes to check quality of education.

AG: But whether challenge to bar exam and its quality can check quality of legal education.

Justice Kaul: These other Petitions, Mr AG, assail the exam or more?

AG: Yes on the basis that it should be post enrollment.

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Correction in AG statement: *that it is

Justice Kaul: If pre-enrollment we are to go to then Sudheer will have to be held wrong.

Sr Adv KV Vishwanathan argues as to why that decision was wrongly decided.

Vishwanathan: The Act as it now stands permits rules to be framed for pre-enrollment exam. For post-enrollment exams and assertion that amendment needs to be made, that vanishes with pre-enrollment exam. Great charitron is need for training, trainees can't be left in own.

Vishwanathan reads from Sudheer to argue that it ignored that qualifications are subject to other provisions in the Act.

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Vishwanathan: State Bar Councils have limited functions related to admission of persons as advocates, and the maintenance of State rolls. However, the Bar Council of India (BCI) has the power to make rules relating to entitlement of persons to be admitted into the Bar

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Vishwanathan: Deleting 124 1d made sense.

Justice Kaul: To ensure uniformity? Possibly even underpinning would be how it would work out.

Vishwanathan: The provision for exam is intra vires the Act, as the BCI has the power to do anything ancillary and incidental. The power of BCI is not taken away because of S 49. While construing that, it will include prerequisites, as is settled law on ancillary & incidental ...

Vishwanathan: matters. This is not alien to the act. Not everything can be mentioned. You confer a power, and then that will take care.

Justice Kaul: Earlier it used to be 2 years course and 1 year of proficiency and training.

Vishwanathan: Now scenario has changed.

Vishwanathan: Not that many juniors need to be accommodated as law school graduates get picked by corporate law firms also.

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Vishwanathan: Lordships have always held that opening words in rule-making clause have its own power and potency. The opening words are encompassing, so far as the object of the Act is kept in mind.

Justice Khanna asks counsel to continue after reading from Act to say power of..

enrollment is with State Bar Councils.

Justice Kaul adds: Rssentially giving extended meaning to Section 49 ag that is taken to include any pre-enrolment exam. This you argue will obviate all problems and subserve the objective.

Vishwanathan: Section 7 confers on BCI power to perform all other functions conferred on it by or under this Act; includes rule-making powers.

Bench discusses.

Justice Kaul: We have a special Bench now. Continue tomorrow?

Vishwanathan: Yes.

Justice Kaul to court staff: Kal part heard k under daal dena.

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