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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Cover Story
BAR EXAM UNDER SC LENS

Advocates Act vis-a-vis BCI RULES
Hemant Kumar, Contributing Editor
hemantkumar.mallb@gmail.com
Close to six years after the Bar Council of India (BCI) introduced the concept of an All India Bar Examination (AIBE) by duly exercising its rule-making power as provided under the Advocates Act, the recent development wherein the Supreme Court framed up for adjudication the question whether the BCI has indeed got the power to lay down such mechanism(s), has put the legality of the ibid exam under judicial examination.

On March 18, 2016 a Three-Judge Bench of the Supreme Court comprising Chief Justice of India (CJI) TS Thakur and Justices R. Banumathi and UU Lalit while hearing a set of petitions questioning the validity of AIBE reportedly framed three issue viz. whether the BCI can prescribe any pre-enrolment training under section 24(3)(d) of the Advocates Act, 1961 which was firstly introduced via its Training Rules, 1995 and later struck down by the Apex Court in V. Sudeer v. BCI (March 1999). Next, whether any pre-enrolment exam can be prescribed by the BCI as a condition precedent for enrolment and further in the event of answers to such couple of questions in the negative, if any post-enrolment exam can be validly prescribed ?

It needs to be recalled here that after its unsuccessful attempt to introduce pre-enrolment training during mid-90s, the BCI adopting a rather cautious approach in April 2010 introduced the concept of AIBE which needs to be passed by a fresh advocate, of course, post-enrolment with the concerned State Bar Council but before he/she can practice law.

By doing so, the BCI, after acting on the directions/observations of the Supreme Court to improve the standard of legal profession, has nevertheless endeavoured to put in place some sort of system so as to fulfill the objective in this regard to some extent.

The AIBE has been prescribed to be mandatory for all law students graduating from academic year 2009-10 and onwards and enrolled as advocates under section 24 of the Advocates Act. After passing of the AIBE, they are to be issued a "Certificate of Practice" by the BCI.

In the month of January 2015, the BCI had notified the "Certificate and Place of Practice (Verification) Rules, 2015" by repealing its earlier version viz. Certificate of Practice and Renewal Rules, 2014 which were framed by it in October 2014. The new Rules
have been framed to be applicable to all the advocates whose names appear on the State Rolls being maintained by the State Bar Councils.

The 2015 Rules,  inter alia , define the terms, Certificate of Practice, Non-Practicing Advocate, Fake Person,  et al .  It has been laid down that an advocate shall not be entitled to practice law unless he holds a valid and verified certificate of practice issued either under the AIBE Rules, 2010 or under ibid 2015 Rules.  The disability to practice law, however, would come into force only when the name(s) of non-practicing advocate(s) are published as per relevant provision of Rule 20 therein.

Further, the new Rules also prescribe detailed procedure regarding submission of application for verification of "Certificate of  Practice and Place of Practice" in respect of those advocates who have obtained degree in law before the academic year 2009-10 or are enrolled prior to June 12, 2010 i.e . the date when the AIBE Rules were implemented. It has been provided in the 2015 Rules that the Certificate of Practice and Verification thereof shall be valid for a period of five years only and is liable to be verified thereafter every five years by filing an application for verfication in advance within a period of six months before the validity of the same expires. 

An Explanation has also been provided in the Rules that an advocate shall be deemed to be in practice if he is able to establish that he has appeared in any court of law or has filed Vakalatnama even in one case before any court of law/other forum in a year before these Rules came into force. There is also a provision that an advocate whose name has been included in the list of "non-practicing advocates" can apply to the State Bar Council so that his/her name may be taken out of such list.

“We make it clear only that the persons who are not members of the Bar Associations of any State or District or otherwise to carry on their profession, the certificate which has been asked for by the BCI to be attached with the application form that should be taken into account by the respective Bar Councils allowing them to apply and thereby on such application concerned, Bar Council will take necessary steps to find out the correct position in respect of those persons. We further make it clear that the persons who are practicing as a conveyancing lawyer or otherwise or in terms of the Rules of the Advocates Act in any manner whatsoever, they should not be interfered with carrying on their practice in such manner whatsoever by the BCI, if they are legally enrolled through the Bar Councils.”
Excerpt from the Supreme Court order dated 2nd November, 2015 by a Bench of Justices PC Ghose and RK Agrawal w.r.t. BCI Certificate and Verfication Rules, 2015

Though the purpose of the BCI in framing the ibid 2015 Rules seems to be aimed at weeding out both sham as well as  non-serious persons from the noble profession of law, one wondered if the same exercise would  smoothly sail through unlike its previous initiatives which got hit by different roadblocks.

Well, the BCI heaved a sigh of relief when the Supreme Court in November 2015 while refusing to pass any stay order against its ongoing process to find out the number of fake lawyers in the country and to update its members also came to the rescue of those who, although otherwise genuinely enrolled, could have been at discomfort and inconvenience on account of strict enforcement of these Rules ( see Box ). The matter nevertheless remains to be sub-judice as of date.

Pertinent that the BCI framed the hereinbefore referred rules by virtue of the powers conferred on it by section 49(1)(ag), 49(ah) and 49(i) of the Advocates Act, 1961. Undoubtedly, it has got the power under the Advocates Act, 1961 to frame appropriate rules including with regard to the class or category of persons entitled to be enrolled as advocates as well as the conditions subject to which an advocate shall have the right to practice but one wonders if the same power is supposed to supplant or supplement the basic spirit of the ibid Act ?

Here one must also recall that in November 2014 a Three Judge Bench of the Supreme Court upheld the verdicts of different High Courts quashing a Rule framed by certain State Bar Councils fixing the upper age limit of 45 years for enrolment as an advocate. The Apex Court pointed out that when Parliament had not fixed any upper age limit for enrolment as lawyers, the State Bar Councils could not create a distinction between two similarly placed persons without any authority to do so.

49A. “Power of Central Government to make rules.— (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act including rules with respect to any matter for which the BCI or a State Bar Council has power to make rules.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for—
(c) the class or category of persons entitled to be enrolled as advocates under this Act;
(d) the category of persons who may be exempted from undergoing a course of training and passing an examination prescribed under clause (d) of sub-section (1) of section 24;...”
Extract from Sec 49A of the Advocates Act, 1961. The Central Government has never ever invoked powers conferred on it in this regard thus making this provision just a dead-letter.

Even more than two decades back in January 1995 the Supreme Court in Indian Council of Legal Aid and Advice v. Bar Council of India had quashed a similar Rule then framed by the BCI vide a resolution of August 1993. The Rule was declared by the Court as ultra vires clause (ah) of section 49(1) of the Advocates Act.

Following thereafter, in March 1999 the Apex Court once again in V. Sudeer v. Bar Council of India struck down the BCI Training Rules, 1995 wherein the BCI introduced an apprenticeship whereby fresh law graduates had to work for a year with a Senior Advocate and fulfill certain requirements to show acquisition of skills before they could enrol as advocates. The Court held that the Advocates Act, 1961 did not give the authority to the Bar Council in this regard.

Here the author of the cover story would like to specifically mention that the original Advocates Act, 1961 as enacted, required the holders of law degrees who wished to enter the field of legal practice to complete a course in practical training for a year and also pass a Bar Council examination. But, in 1973, section 24(1)(d) which provided so, was deleted by way of an Amendment Act. Since then, any law graduate from a recognized college/university could straightaway enrol himself as an advocate and start practicing at all levels of courts across the country.

Also when in September 2008, the BCI framed its Rules of legal education which inter alia prescribed maximum age for admission to law course at 20 years in respect of five-year integrated degree and 30 years for three-year course, those aggrieved moved different High Courts challenging the BCI's power to do so particularly because there is no such stipulation in the Advocates Act. In August 2009 the Apex Court got seized of the issue after transferring all such cases pending before all High Courts to itself. Consequently, in September 2013 the BCI withdrew the controversial clause after admitting that the same is ultra vires, unconstitutional and against the principles of natural justice. In fact, since 2015, the age-limit rule has also been dispensed with in respect to admissions made to elite National Law Schools via Common Law Admission Test (CLAT).

Also the author of this cover story would like to refer section 49A of the Advocates Act, 1961 which perhaps has seldom, if not never, drawn the attention of lawmakers or lawmen alike. One wonders if this provision as incorporated via an Amendment Act of 1964 has ever been resorted to by the Central Government? The clause (4) thereof explicitly provides that in case of any discrepancy between any Rule as made by an appropriate Bar Council vis-à-vis the one, if any, made by the Central Government, the one made by the latter would prevail. Interestingly, clause (d) of sub-section (2) of section 49A mentions about the course of training and bar exam as prescribed under section 24(1)(d), but the fact is how it remains relevant now when the latter provision was already omitted in 1973? Is this an inadvertent omission or a well-intended one? ( See Box )

Finally, now since a Constitution Bench of the Supreme Court, as and when constituted, being seized of the vexed issue viz. if BCI can prescribe certain conditions for practicing advocates, either pre or post their enrolment, under the guise of its rule-making power sans any corresponding amendment(s) in Advocates Act, It is highly hoped that this grey area would certainly be settled once and for all.

However, such adjudication apart, it is also incumbent upon the ruling 'Modi Sarkar' to immediately kickstart an exercise aiming at in-depth reappraisal and review of our over five-dacades old Advocates Act so that it is able to cater to the contemporary needs and challenges. Even the current 21st Law Commission of India, which has recently got Dr. Justice B.S. Chauhan, former Supreme Court Judge as its Chairperson, can suo motu if it wisely desires so, take up the task of due examination of the ibid act and accordingly submit a report to the Government.

 
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