Thread by @lawbarandbench

#SupremeCourt hearing challenge to legality of current pre-enrollment bar exam.

Justice Kaul: We understand the constitutionality of it. But you should not dismantle a system that is working. Fine-tune. There are so many law colleges, probably the whole of Europe does not have as many law schools as in India.

Vishwanathan: We can have exams in 5th yr.

Justice Kaul: For practical purposes, we have to make Sudheer workable.

Justice Maheshwari: Qualified to be an advocate is one thing, the right to practice is another, which follows the first.

Vishwanathan: Yes.

Justice Maheshwari: Being qualified to be an advocate is one thing, the right to practice is another, which follows the first.

Amicus agrees.

Justice Kaul: What we are concerned with is there should be exam, sufficient quality should be maintained, all consequences emanating from pre-enrolment exams are looked at.

Vishwanathan: Advocate in 49(1)(ah), 2(a) and 30 may also be someone who's been provisionally inducted

Justice Kaul: You must be able to do justice to your clients as well as assist the Court. Hence the benchmark. This is not the UPSC exam ... Ultimately that is the objective. Not to disqualify lawyers.

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Mishra: Section 49 specifically gives the power to the BCI. Section is also there which is clear. It is a simple qualification.

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Justice Khanna asks counsel for State Bar Council: After the rules are made, can the BCI force State Bar Councils to change the rules? When a specific power to make a rule has been given to the SBCs, will the principle of exclusion not apply?

Adv replies saying powers provided

Advocate Kartik Seth: If someone who has graduated before introduction of bar exam is applying for enrolment, they will not have to take the exam.

Justice Kaul: The exam needed to be introduced at some point.

Mishra clarifies: The rule is prospective.

Justice Kaul: So it discriminatory to those who passed after 2009-10?

Seth: 2015 Rules also do not say. We're going beyond letter and spirit.

Justice Kaul: That you're right we are. Idea is no enrollment without..

Justice Oka: First part of rule 9 is clear, Art 14 won't apply

Justice Kaul: You want exam or no?

Seth: Yes. Pre-enrollment. [Suggests students can be allowed to write it in 5 year]

SC: That has to be the BCI's policy.

Seth: Then they won't have to waste time. Earlier there were powers to conduct a pre-enrollment Bar Exam. They collect 42 cr each eyes for exam fees.

Justice Kaul: Should a constitutional court say it is 3000rs not 3500.

Bench: Concern we have is to feasibility and Constitutionality of pre-enrollment exam.

Bench rises.

Hearing resumes.

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Justice Kaul: Work out a situation which will facilitate our ultimate objective to see that the bar exam caters to facilitating better lawyers.

Seth: We have nothing against bar council.

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Seth: It will become so unreasonable.. I'll give an example. If there's a post enrolment exam.. there's no bar on any number of exam.. if I clear in 2010, my seniority starts, another one who enrols with me..

Justice Kaul: It's not unlimited.

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Justice Kaul: You have two years. In an imperfect world, we have to find a way to reduce the imperfection. Let the bar council apply it's mind to these issues, otherwise we'll just decide on constitutionality.

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Seth: If the job of the bar council which is legal education is carried out properly, there will be no need for a bar exam. If colleges are run properly..

Justice Kaul: You have to provide a minimum benchmark of proficiency.

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Seth reads a recommendation by the Memeber Committee on Reform of Legal Education.

Advocate Kartik Seth concludes.

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Justice Kaul: This exam is too simple. If someone can't make it.. they need to improve their exam taking skills, or fine tune his skills.

Advocate VK Biju: Nowhere.. no judgment has said post enrolment exam.

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Biju: We want a mechanism to be implemented which is according to Section 24 (1) (d) of the Act.

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Justice Kaul: Problem exists in both pre and post scenario. Post enrolment we are endeavouring to fine tune it. Question is whether pre enrolment can be done.

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Justice Kaul: We've understood you..

Biju: Exactly that my grievance, we have challenged AIBE exam rules. Suppose post enrolment is allowed.. we are not objecting. But after enrolment.. section 2, 30 are completed all the procedure.

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Biju: .. you have taken money then you are saying I don't have any rights.

Justice Kaul: So, you are saying I have not cleared the exam, but i will practice. If you can't clear pre enrolment, how will you clear post enrolment?

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Biju: There are 4-5 committees which are saying it's a pre requisite, judgments are saying.

Justice Kaul: Okay, thank you.

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Another counsel appears, highlights a report which has suggested pre enrolment exam. Says it could not be done due to the embargo by Sudeer judgment.

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Justice Kaul: No point in repeating arguments.

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Hearing concludes.

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