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Why Bar Councils bar the Practice of advocates?

The right to livelihood is paramount in every profession/business. In Fertilizer Corporation Kamgar Union case, Hon’ble Justice Reddy, while referring to,  No Fear Shakespeare- The Merchant of Venice, Act 4, Scene-1, had quoted, “you take my life when you do take the means whereby I live.”

This is what recently happened with as many as 4778 advocates in Delhi and 1547 advocates in Tamil Nadu, for not passing the All India Bar Examination (AIBE), facing threat to their career, in the result of “faulty policies” of the Bar Council of India (BCI), which is a Statutory body representing the entire legal fraternity in India, constituted under the Advocates Act, 1961.

On August 26, 2019, the Bar Council of Delhi (BCD) in a “commando-like-raid,” debarred 4778 advocates provisionally enrolled with it since 2010, who had not passed the AIBE. The BCD then sent letters to the Registrar General, Supreme Court of India; the Registrar General, High Court of Delhi; all Tribunals, Delhi/New Delhi; all-district & sessions judges, Delhi/New Delhi, to ensure that these 4778 barred advocates are not allowed to practice before the courts or vote in any bar election. The BCD letter claimed that the 4778 advocates were debarred on the basis of records received from the BCI, which is authorised to conduct the AIBE.

According to the procedure in place, law graduates can provisionally enrol themselves with their respective state bar councils before appearing for the AIBE. This provisional enrolment is valid for a period of two years, within which, they are required to clear the examination. The AIBEs are held twice a year in March and December. The nature of examination is ‘open book’ type, according to which they are allowed to consult or quote any passage of the reference books at their end.

Those who pass the examination are required to present their certificates of practice to the state bar council, after which they need to return their provisional certificates and issued licenses to practice.

This wrongful action of the BCD created mass unrest among the advocates whose names had been cited in the list despite of having cleared the AIBE. Several advocates were left aghast at the way the entire exercise was undertaken and implemented by BCD. In the result, BCD rolled back its action dated 26.08.2019.

Advocate Himal Akhtar, member BCD, talking to Lawyers Update, clarified that in the result of some names had erroneously been included in the list of failed advocates, the BCD, sent another letter no. 2237/SF/2019, dated September 11, 2019, addressed to authorities at courts and tribunals in the Delhi/New Delhi, requesting them to refrain from taking action on its letter dated August 26, 2019, regarding a list of 4778 advocates who were asked to be barred from practice. The letter read as “Kindly refer to our letter no.2/27/SF/2019 dated 26.08.2019, regarding a list of 4778 Advocates, who were said to have not cleared All India Bar Examination, conducted by Bar Council of India. In this behalf, this is to inform you that in view of some discrepancies having come to our notice in the said list, the said letter dated 26.08.2019, may not be acted upon until further communication.”

Himal Akhtar further said, “The list was prepared by BCD on the basis of available BCI records and certificates of practice. We are revisiting the list and have put the action on hold until the final verification is completed. Necessary corrections will be issued once the list is re-verified.”

Akhtar also gave a list of 39 advocates practising since 2011, whose law degrees were recently found fake. They all have been expelled from BCD and FIRs have been lodged against them.

Aman Akhtar, an outstanding student of law at Delhi University sharing his views with Lawyers Update said, “The practice of AIBE is very necessary as a fresh advocate besides having gained academic education must ensure his capability of the ‘application of the law’ which can be tested through AIBE, where the candidate is at liberty to consult the relevant books and other material in support of his answers. An advocate undertaking the responsibility of safeguarding an innocent person from going to jail and even facing the noose of a hangman is expected to adhere to the highest standards of professionalism and morality and if he is not capable enough to put the right law at the place, he may be playing with the lives of those who entrusted their safety from probable punishment in his hands. The client should not be left on the mercy of the incompetent advocate.”

Aman Akhtar, however, did not agree with the system of the Bar Council of India. According to him, the AIBE should not be taken from retrospective effect. It should be conducted before the enrolment. Imagine, an advocate who after the practice of two years or so is found incapable of passing the AIBE must have played with the fortunes of many litigants during his provisional practice. Akhtar also calls the practice of verification of degrees as wrong after the enrolment. It is ironical to first allow a person to law practice, then after several years of his practice, you verify his degree and then debar him for possessing the fake degree. Who is responsible for the illegal representation of clients during all these years?”, questions Aman Akhtar.

An affected young advocate whose name was erroneously mentioned in the list, lamenting the casual attitude and faulty policies of the BCI and BCD pointed out that the reason behind the rollback of the notice no. 2127/SF/2019, dated August 26, 2019, clearly indicates the violation of the principles of natural justice by BCD, as the impugned notice was addressed to Registrars General of Supreme Court of India; High Court of Delhi; all Tribunals, Delhi/New Delhi; all the district & sessions judges, Delhi/New Delhi, intimating them the phenomenon of non-passing of All India Bar Examination (AIBE), thereby requesting the aforementioned courts to ban the practice of 4778 advocates, without personally intimating and communicating to the provisional advocates. The adjudicatory authority should have provided reasonable opportunity to the parties to present their response for effective defence.

The Bar Council of Tamil Nadu and Puducherry at least circulated a Notice on October 09, 2019, intimating 1547 advocates which states, “ We hereby inform you that as per our records, around 1547 advocates enrolled after 1st July, 2010, have not cleared the All India Bar Examination (AIBE). Therefore, they are directed to proceed the proof or send email to tnbarcouncil@yahoo.com to avoid suspension of practice.”

The aggrieved advocate on condition of anonymity also pointed out that the BCD before sending the list to authorities should have verified the fact but there is no such mechanism available with BCI and BCD. There is also no proper coordination between the two agencies. The Advocate lamented the bad image he sustained in the eyes of peers as well as of clients for no fault on his part.

The Advocate further said, “The office-bearers of BCI and state bar councils are the practising lawyers, who devote no time for the well-being of the fraternity members. They simply enjoy the status of being the office bearers. The elections of the BCI and state bar councils are also irregular, in the result of which they face no accountability, whatsoever. In my view, the BCI and state bar councils should be abolished and the functioning of BCI should be handed over to the regular authorities such as the Higher Education Commission of India, etc.”

Talking to Lawyers Update, noted advocate Navin Kumar Jaggi and his intern Vikram Gupta said, “The official Notification of the Bar Council Of Delhi barring 4778 provisionally enrolled Advocates not to practice law until they qualify the All India Bar Examination is a correct decision which must necessarily find sustenance in law and upon the facts of the case.”

“The legal profession has its rudimentary foundation not only based upon the principles of natural justice, good co
nsciences and equity but also requires a vast repertoire of knowledge, common sense, high level of IQ, specialized legal drafting skills, special oratory prowess and above all good mannerism, proper sense of attire, excellent communicating skills, respect for the lesser, the have not’s, the downtrodden and the firm belief and determination to always uphold the majesty of the law. A candidate who cannot pass one of the easiest and the simplest of all examinations such as the one conducted by the Bar Council of India as the All India Bar Examination has no right to practice law because the level of incompetence would have serious ramifications and consequences, not only for the client, the community but even the society at large.”

“I firmly support the decision of the Bar Council of Delhi, barring 4778 Advocates to practice law until they qualify the All India Bar Examination (AIBE). The legal profession is a noble profession and there is absolutely no scope for incompetency, recalcitrance, delinquency and an attitude of being nonchalant. A simplistic test like the AIBE is even otherwise no test of competence because of its being so elementary. Thus, the Notification of the Bar Council of Delhi debarring 4778 Provisional advocates from practising law is a valid and justified decision, which must be sustained in law and upon the facts of the case.”

Major General Nilendra Kumar (Retd), former Judge Advocate General of Indian Army, feels that the  Bar Council of Delhi’s decision to expel advocates who have not qualified AIBE has come as a little surprise. Many reasons come to mind. These advocates may have passed out from different law colleges. While the syllabus for the law degree is the same all over India but the teaching standard in different colleges vastly differs. For such variation BCI is also responsible. This variation has an impact on the knowledge and communication skill (capacity to write the answer in the exam) of the candidates. Secondly, all these advocates possess valid law degrees. Hence their failure in AIBE is to be viewed against the professional law degree obtained after the requisite attendance and clearance of the exam whose paper is set by competent faculty and evaluated accordingly. Next, these candidates would have by now appeared before various courts and tribunals. Hence, in all probability, they could have handled the matters of their client to the latter’s full satisfaction. Their expulsion now would cause inconvenience and irretrievable loss to the clients. What if an expelled advocate, on the other hand, gets qualified in the entrance test for the LLM degree or even judiciary exam? Moreover, it is not known as to who all set the question paper for AIBE and who evaluate the answer sheets, are they equally qualified? Another point worth consideration is that perhaps some of these advocates may have had the medium of instruction for their LLB degree different than the language in which AIBE paper was set. Further, have all these advocates who stand expelled been served with the show-cause notice, and afforded adequate time to reply and thus meeting norms of natural justice?”

General Nilendra Kumar further said, “Moreover, the university teaching and more importantly examination is under the rules of statutory and experienced Authority like UGC and even open to queries under RTI. Such is not the case with BCD or even BCI. Lastly, before depriving a degree holder of the means of livelihood, have adequate provisions been enshrined about a meaningful right of appeal against the expulsion order. For the above reasons perhaps the BCD may wish to reconsider its decision.”

Lawyers Update repeatedly visited the office of BCI to get the comments of the chairman or the honorary secretary besides sending half dozen emails to chairman / secretary, but the authorities at BCI kept a deaf ear and could not answer the queries put to them.

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