Thursday, 3 March 2016

Is “All India Bar Examination” within the confines of Law


What is AIBE?
AIBE stands for All India Bar Examination.

What is the objective of the AIBE?
All India Bar Examination was passed by the Legal Education Committee and the members of the Bar Council of India at duly constituted meetings on April 10, 2010 and April 30, 2010.

The objective of The All India Bar Examination (AIBE) is to examine an advocate's capability to practice the profession of law in India by assessing the skills at a basic level. It intends to set a minimum benchmark for admission to the practice of law and addresses a candidate’s analytical abilities & understanding basic knowledge of law. After passing the All India Bar Examination candidate is awarded "Certificate of Practice" by the Bar Council of India. AIBE is conducted in 40 cities all across India. Examination pattern is of multiple choice questions and is an open book exam.

Why it is in the news these days?
All India Bar Examination (AIBE) is in the news these days because a petition was filed in 2013 by R. Nagabushana in which he challenged the Bar Council of India’s power to conduct the All India Bar Examination. The petition demands quashing of BCI’s notification, contending that it takes away the statutory right bestowed upon an eligible person to practice law.

Current status of the Petition?
The Supreme Court on Tuesday i.e. 1st March, 2016 observed that the right to practice law is a Fundamental Right for LL.B. degree holders. The Supreme Court also observed that the introduction of All India Bar Examination to acquire a license has the effect of negating this right.

“The right to practice law is there in the Act (the Advocates Act). When (Bar Council of India) says that a person will not be able to practice law without clearing the exam, and then you are taking away the same right,” the bench comprising Chief Justice T.S. Thakur and Justice U.U. Lalit was quoted as saying.

“To say that one has to pass an examination for practicing as an advocate will negate his or her right to profession. He has a fundamental right to practice. Conditions can’t be put after enrollment. If, at all, it is required, the condition should be put at the enrollment stage,” the bench further stated.

The Bench was of the view that such inclusion of an exam needed an amendment to the existing law. It did not agree with the Bar Council’s logic, asking whether the regulatory body has “become a law unto yourself.”

Soon after issuing of the notification, Mr. Shamnad Basheer, founder of SpicyIP reminded the decision in the case of V. Sudeer v. Bar Council of India, which he stated does not permit a bar exam by the BCI without an amendment to the Advocates Act. In the case, the Court had categorically held that any additional eligibility criteria for the practice of law over and above what was mentioned in Section 24 of the Advocates Act was unconstitutional.

Petitions challenging the inspection have been filed earlier also in the Madras High Court & Gujarat High Court as well. At the Madras High Court PIL claiming that under Chapter IV of the Advocates Act, BCI could not describe additional prerequisites to enrolment and practice was filed by Chennai Advocate M. Radhakrishnan. He had contended that BCI was violating Article 14 of the Constitution, which promises equality once law.

In a significant development, the Supreme Court on 2nd March, 2016 issued a notice to the Bar Council of India in a petition challenging the Constitutional validity of the All India Bar Examination and posted the matter before a 3-judge Bench.

A Division bench of Chief Justice of India TS Thakur and Justice UU Lalit, however, made it clear that it is not averse to having an exam. However, the Court will examine if the existing system is within the confines of law, and if not, seek to strengthen it.

Author
Mohit chauhan

Sources: BusinessStandard

2 comments:

  1. Has the 3 judge bench decided on the matter?

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    Replies
    1. The 3-judge bench expressed its intentions of referring the matter to a Constitution Bench, and requested Senior Advocate KK Venugopal to assist the court in the matter.

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