Denial of Right to Practise as provided in the Advocates Act, 1961, by the All India Bar Examination Rules, 2010

Denial of Right to Practise as provided in the Advocates Act, 1961, by the All India Bar Examination Rules, 2010

The Seed: 14 December 2009, the Hon'ble Supreme Court in the Union of India v. Bonnie FOI Law College and Ors., SLP No 22337/2008 was informed by the State that a three member panel had been formed to see the viability of the conducting of a Bar examination and the manner in which it is ought to be conducted.

The Thorny Roots: The BCI adopted resolution no. 73/2010, on 30th April 2010 to conduct an ‘All India Bar Examination’. The exam was to be conducted so that the passing of the same would entitle an advocate to practise law in India. No official news of the resolution was heard of, until the draft rules were put up on the website of the BCI. BCI on the 1.06.2010 launched a revamped Website which declared that an All India Bar exam would be conducted and that a ‘private legal consulting firm named Rainmaker’ would be in charge of conducting the examination. On the 12.06.2010 All India Bar Examination Rules, 2010 were notified in the gazette of India, June 12, 2010.

The Venomous Fruit: The AIBE rules prohibits any law graduate graduating in and after academic year 2009-2010, to practise the profession of law even after becoming an advocate, until they pass the AIBE.

Right to Work: Such a prohibition by BCI raises a moral and social cry on the ground of restriction of the Right to practise, which is adversely oppressing his Right to work. AIBE leaves an 'Advocate' (as per the Advocates act, 1961), without the right to practise. What follows will show as to how AIBE rules of the BCI is Ultra Vires the Constitution and the Advocates Act, 1961.

BCI Diffident/ ashamed of its own Regulations: The Advocates facing the AIBE are the ones who have completed his course in law as prescribed by the BCI in the institute recognized by the BCI, which has followed all norms prescribed by the BCI and has always sheltered under auspices of BCI. The BCI has always been well within its powers to derecognize any Institute as per its regulations when the institute does not fall in line with its norms.  Otherwise no logical or legal prudence could justify such a regulation for continuous 5 (or 3) years, when a graduate has to pass another examination conducted by BCI for the same syllabus. Hence, the AIBE rules create a highly unreasonable & additional restriction, which cannot fit in the bounds of Article 19 (2), and falls foul of Article 19 (1)(g).

Article 21: The Advocates are mainly trained to practise law and while not doing so, will be left unemployed and devoid of his livelihood for no sane reason. Therefore, by necessary implication, an Advocate’s right to livelihood is also affected under Article 21.

The Advocates (Amendment) Act, 1973 & its implication:  The BCI is not empowered under its parent statute to conduct a Bar Examination as the power to conduct examination was with State Bar councils before the Advocates (Amendment) Act, 1973 to the Advocates Act, 1961. After the Advocates (Amendment) Act, 1973, even the State Bar councils were devoid of that power by specifically repealing that provision. The BCI never possessed any power to conduct any kind of examination whatsoever and the power always remained with the State Bar Councils before this amendment. There is nothing to indicate that withdrawal of such a power co conduct examination from State Bar Councils confers some special power on the BCI to conduct any examination, in absence of any new statutory provision under the parent Act. Also, since ‘examination’ under the Advocates Act, 1961 (hereinafter referred to as the Act) had been given special and differential treatment under the now repealed Section 49, it cannot be said to be contemplated under Section 49 (1) ah of the Act.

BCI either empowered to regulate institutes or Advocates (Practising Law), nothing more: Moreover the BCI can only deal with the class of persons already entitled to practise the profession of law, apart from regulating the institutes imparting legal education. Once out of these institutes and not practising law, the BCI has no jurisdiction to create a category of advocates without right to practise and make them face an additional exam.

Section 49 (1)ah only applicable to expressly provided functions of BCI: The AIBE rules cannot sustain on mere existence of Section 49 (1)ah of the Act, as the power to exercise under it has to be in relation to some function conferred on the BCI. Since there is no such function remotely similar to conducting examination, the AIBE rules are Ultra Vires the rule making power of the BCI under the Act. {Also see V. Sudhir Vs. BCI [AIR 1999 SC 1167] }

Article 14 and absence of Intelligible Differentia w.r.t. differentiating between Advocates: The AIBE rules and AIBE examination by the BCI violate Article 14 of the Constitution of India as it applies only to persons graduating from academic year 2009-2010. Even assuming, Section 49 (1) ah empowers the BCI to make rules restricting the practising of legal profession with regard to advocates, it should be done alike for all the advocates but treating the advocates graduating from year 2009-2010 differently to their distinct disadvantage can never be contemplated by a reasonable law. Therefore treating some advocates differently from the rest without any intelligible differentia while imposing these conditions falls ultra vires the Constitution as well as the Act.

Third Category of Advocates not contemplated by the Act: The BCI in the status of rule making body cannot exceed its power even under the permitted rules, to change the basic structure of that Parent statute itself. The Act contemplates only two kinds of advocate i.e. advocates and senior advocates.  Whereas the AIBE rules create a third class of advocates never contemplated by the legislature, i.e. the advocates who cannot practise the profession of law (unless they clear the AIBE examination or in case they don’t clear such an examination).

Right of Pre Audience: Section 23 of the Act lays down the hierarchy of Right of pre audience of advocates, which cannot be altered by any rule. The hierarchy confers a right on each kind of advocates mentioned therein. Section 23 and in particular 23 (5)(ii) is not subject to any other provision of the Act or rules made under it (as is mentioned in other sections of the Act). The AIBE rules by BCI impose a restriction on Advocate’s Right to Pre Audience, which the Advocates have acquired under the Act, by successfully enrolling in the State Bar Councils. Therefore BCI can never take away the right to pre audience of any advocate.

Supreme Court Rules assailed: The AIBE rules are in Violation of Supreme Court Rules, 1963, which allows anyone enrolled with any State Bar Council to practise before it. The constitutional power of Supreme Court to make rules of practise must prevail over rule making power of a statutory body created under a statute enacted by parliament.

AIBE as a Termite to Advocates Act: A rule can never engulf the provisions of the Parent Act and that is what these AIBE Rules seek to do. Section 29 of the Act confers a Statutory right on Advocates which the AIBE rules seek to demolish. Therefore AIBE rules cannot sustain.

Ulti Ganga: First comes the rights, then the restrictions, not the other way around, like in this case where there has been created an additional hurdle to enter your arena of rights.

Conclusion: While many may argue that AIBE may in turn gave us refined class of Advocates and the ones who cannot clear a moderately easy additional exam do not deserve to practise law and must be left out. While this may sound practical and logical to some, it’s definitely not legal, as shown above. If BCI has difficulty with crowding in profession then they can limit the intake in Law Schools or raise the standards rather than producing some unfit Advocates (according to them) and keep them on their Rolls. But BCI actually forced Advocates into giving examination and Advocates somehow relented. BCI has used AIBE as a cane to bully the most resilient professionals of all and it’s a disgrace if we start accepting bogus laws for sake of practicality. BCI's AIBE Rules, 2010 is Unconstitutional, Ultra Vires the Parent Act, per incuriam and therefore has no force of law.