A Chennai advocate and a retired mechanical engineer from Ahmedabad have independently filed two further writ petitions claiming that the Bar Council of India (BCI) is violating the 1961 Advocates Act and India's constitution by holding an all-India bar exam.
Case 3: Madras (WP.12627/2010 PIL)Chennai advocate M Radhakrishnan filed a PIL in Madras High Court yesterday (17 June). He claimed that under Chapter IV of the Advocates Act the BCI could not prescribe additional prerequisites to enrolment and practice, according to the Press Trust of India, and that the BCI was violating Article 14 of India's constitution, which guarantees "equality before the law".
The PTI said that Radakrishnan submitted that since the BCI had "already prescribed the standards of legal education to be observed by universities in the country, it could not again hold any test in the very subjects it had already prescribed. As per law, a degree in law was sufficient for one to get enrolled as an advocate and commence practice."
This entitlement had been taken away by the impugned resolution imposing a condition which was superfluous, he said according to the PTI, adding that since BCI recognised degrees awarded by universities, the degrees could not be tested again for any reason whatsoever and that the BCI's resolution was arbitrary and violative of the constitution.
Case 2: Gujarat (SCA/6838/2010)
What brought on the wave of legal challenges?The BCI resolution that amended the Bar Council's Rules 9, 10 and 11 under section 49(1)(ah) of the Advocates Act was passed on 10 April 2010.
However, it is understood that the BCI's resolution was only notified and published in the Gazette of India on 12 June 2010, which is a prerequisite for BCI resolutions to become effective.
This had the effect of allowing legal challenges to the resolution, according to an authoritative source.
"To conduct an exam for conferring the right to practise on the one who passes it would mean giving him/her the right to practise," Vaghela said, according to Indian national daily DNA. "It is an essential feature and subject of legislative policy, which has to come from Parliament. BCI cannot legislate an essential feature."
It is understood that Vaghela's petition has similar grounds to Radhakrishnan's Madras PIL, praying that the BCI was a regulator and did not have the power to amend the Advocates Act, which in its current state did not permit the BCI to hold the exam.
Vaghela declined to comment when contacted by Legally India as the matter was currently sub judice. After retirement, he is understood to have become a right to information (RTI) activist who also filed his first PIL in 2009, which unsuccessfully challenged the November 2009 Common Admission Test (CAT) to elite IIM management colleges.
Vaghela's bar exam petition was filed separately from Wednesday's Gujarat High Court writ petition filed by six Gujarat University law graduates, who challenged far narrower grounds of the bar exam (SCA/6838/2010). They argued that the bar exam should not apply to them because they completed a two-year LLB degree in 2009 before the cut-off date for the bar exam, followed by an additional advocacy specialisation as part of their degree in 2010.
The Gujarat High Court bench, however, is understood to have adjourned both Gujarat hearing until 8 August 2010, to allow the Supreme Court case of Bar Council of India vs Bonnie FOI Law College to be heard on 30 July.
The Bonnie FOI caseThe case of Bar Council of India vs Bonnie FOI Law College and Ors was originally heard in Jabalpur High Court in 2007 and concerned BCI inspections of law colleges.
When the case reached the Supreme Court in 2008 the bench also addressed issues related to general legal education reform to improve standards.
In 2009 Gopal Subramanium appeared in the Supreme Court Bonnie FOI case for the petitioner in his capacity as solicitor general before he became the BCI chairman in April 2010. Subramanium proposed the holding of an all India bar exam as part of a three-member Committee report on improving legal education, which was submitted to the apex court.
However, the Supreme Court bench has so far not explicitly addressed the legality of a bar exam, which could be outside the original ambit of the original Bonnie FOI case, according to several sources familiar with the issues.
In NUJS Kolkata's May 2010 petition to postpone the bar exam to 2011, NUJS professor Shamnad Basheer argued that the case of V. Sudeer v. Bar Council of India, AIR 1999 SC 1167 [case link here] was currently a binding precedent on whether the BCI had the power to impose any pre-enrolment criteria to qualification.
"In Sudeer, the court 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. Particularly if such additional criteria amounted to either a bar exam or a training of some sort, since the power to mandate such exams/training was expressly taken away via an amendment in 1974 to the Advocates Act," wrote Basheer.
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