State bar councils are planning to hold regional bar exams for each state, as the holding of the all India bar exam has turned into a political circus between the Bar Council of India (BCI), its chairman and the state bar councils. Meanwhile, the BCI will meet in Chennai this weekend (20 November), probably without BCI chairman Gopal Subramanium.
The current proposal by BCI members, which is understood to be backed by state bar councils, will see elected chairmen from five state bar councils and five BCI members form a new committee to coordinate and conduct the bar exam.
After the first March 2011 exam, BCI members have decided that in future each state bar council would hold its own regional bar exam for advocates enrolled in its state, according to authoritative sources.
Next week’s Chennai meeting will be crunch-time to figure out the practicalities of the eleventh-hour and left-field decision to delay the bar exam to 6 March 2011. However, most of thes have clearly not yet been considered by the BCI or the state councils.
And according to sources close to the BCI, Subramanium may not attend that Chennai meeting at all – for one, the solicitor general is currently elbow-deep in dealing with Raja's 2G scandal and secondly, perhaps wisely, he may have realised how politicised and how much of a power struggle the bar exam has now become.
Absence makes the heart grow braver
Last Sunday (14 November), the BCI held that already infamous council meeting at which it deferred the exam to 2011. The primary reason given for postponement was the fact that the BCI and legal industry services provider Rainmaker had failed to deliver exam study materials to a large number of students.
However, unusually Subramanium was only attended the first half of the BCI meeting on Saturday and missed Sunday’s resolution, after falling ill.
Until that date and even since before his appointment as BCI chairman in early 2010, the solicitor general had been a steady feature at BCI meets, as well as a commanding presence.
In fact, his presence along was one of the main drivers in getting the exam this far in the face of state bar council protests, lawyer strikes and more.
Subramanium of course, was well aware of the assault reforms would face from all sides, as he told Legally India in an interview in July, adding that postponing the exam would be "disastrous" as "vested interests" would derail it.
Besieged
Similarly, the BCI itself was long under pressure from all sides: Kapil Sibal's Human Resources Ministry has been seeking to absorb legal education; the Union president described legal education in India as a "sea of mediocrity" and the public and general advocate population has long clamoured about the inefficacy of the body.
Appointing Subramanium as an ex officio member was then perceived as a lifeline to the BCI, which faced getting its livelihood restricted from all sides (the majority of the BCI's relatively modest-sized coffers being filled by legal education and accrediting law colleges, receiving no money from the state).
Unexpectedly, however, the solicitor general may have been far more zealous and ambitious than most BCI members suspected. One word on the street and bar suggests that there may even have been an informal agreement between Subramanium and the new Chief Justice of India SH Kapadia, who has himself embarked on a crusade to fix the judiciary, leaving Subramanium to clean up the bar.
However, best laid plans now seem to remain on the floor and all it took was one BCI meeting without the chairman present for the members to stage a minor coup d'état, and as one bar council member even whispered, a vote of no confidence in the chairman was raised at last weekend’s meeting, although ultimately abandoned.
It is understood that Subramanium will remain BCI chairman for his term, although the damage done by the power struggles over legal reforms could be too much to repair.
Playing at politics
The decision by the BCI to postpone the exam to March 6, as first reported by Legally India, may have been welcome to law students but it was taken without much foresight or planning. And perhaps state bar councils may have had a greater eye on garnering student votes at the next bar council election and to avoid being pushed into irrelevance by the central regulator.
Undoubtedly a centralised bar exam would very much have taken away the monopoly on admission the state bar councils have enjoyed to date, which the state bar councils are now clearly attempting wresting back.
The role of Rainmaker in future exams was also strongly questioned by the BCI at the meeting, with some even leaning towards having no private sector involvement at all in future exams, no doubt part-prompted by the complete lack of transparency so far in the appointment of the company and the lack of results, for which the company can fairly be blamed as much as the BCI itself.
Seeking guidance
As such and as it is, law students have been thrown into a state of utter confusion following the lack of direction.
Some have called for united action to defy the BCI and practice irrespective of what will be decided. After waiting more than six months post graduation, the frustration is understandable.
Then again, this is nothing new. "At the district level no one has given a damn about exams," one graduate tells Legally India. "They are having a jolly good time", practising, filing vakalatnamas and representing as though the bar exam never even reared its head.
"It is a very difficult situation," he acknowledges.
Right now, there is no consensus even within the council. BCI member and Delhi Bar Council member Rajinder Singh Rana told Legally India yesterday that 2010 graduates would not be permitted to practice until they passed the exam, while another state bar council BCI member told a reliable source that they would be.
Practical avenues for practice
Several decisions about the immediate will be available to the BCI members this weekend in Chennai, although none are perfect.
- Hold the exam on 6 March, with graduates not being able to practice until they pass;
- Hold the exam on 6 March, allowing graduates to practice until then subject to clearing the test;
- Allow graduates to practice until the exam, adding a grace period of re-takes so existing legal work-flows do not get disrupted;
- Cancel the exam for the 2010 batch;
- Kill the exam forever.
The last two options of cancelling for this batch or even forever would be popular with many students (and therefore also with certain state bar councils hungry for the young vote) although this could be a blow that Indian legal reform may never recover from.
In addition, unravelling and repaying the Rs 1,300 exam fees to more than 20,000 graduates will be no picnic for an organisation that has struggled to mail out a far smaller number of books in months.
Not allowing students to practice until March will prejudice students further and may set off large-scale civil disobedience (with the question lingering unanswered whether those flaunting the practice ban could be jailed for up to six months under Section 45 the Advocates Act for practising without being an advocate).
This in turn throws up the whole can of worms that is in the cases of V Sudeer and Bonnie FOI , and whether the BCI has the power to impose restrictions on the practise of enrolled advocates.
The second choice too - allowing practice now subject to clearing the exam later – possesses questionable legal legitimacy but has a certain pragmatism on its side. Although if graduates start representing clients and then do not clear the exam, where does this leave the clients? It would be akin to a practising doctor leaving a patient half-opened on an operating table after failing the medical exam, quipped one graduate.
And all this does not even raise the question of who in India has the authority, ability and bandwidth to police any of this.
Flawed but necessary?
It has now long been clear that the first exam would be far from perfect, perhaps even flawed in almost every possible way.
Nevertheless, the fact remains that India is now closer than it has been for a long time to a bar exam and necessary legal reform. Abandoning that path now completely for internal bar politics and power struggles would be a missed opportunity, no matter how big a mess things may be in right now.
UPDATE 19:30: The BCI is expected to issue a press release tonight with official confirmation of the postponement.
UPDATE 17 November, 12:01: No BCI press release was issued yesterday after all. However, after the Times of India, DNA is now the second mainstream paper to confirm that the bar exam is set to be postponed. DNA also adds the following confirmation of the state bar councils intending to take over the exam: "Speaking to DNA, BCI member Satish Deshmukh said, 'Many students who applied for the examination could not receive the study material. In the meeting the BCI also decided that the state bar councils would decide on the examination centres and would conduct the examination in their respective states.'"
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secondly from the practical aspect, if a student does not give the bar exam then what is the check that is there to see that he does not practice. None. No judge is going to cross check it. niether is a law firm going to hire or fire a lawyer in the absence of such a certificate. the bar exam is definitely not a cretirea to check the intellect of a lawyer. it is the minimum. so why give it?
Till date I strictly follwed the (nonsence) code of conduct set by the BCI.
Let's practice dude as full-fledged advocates.
Penalty is just six months of imprisonment: as given in section 45 of Advocate Act.
45. Penalty for persons illegally practicing in courts and before other authorities- Any person who practices in any court or before any authority or person, in or before whom he is not entitled to practice under the provisions of this Act, shall be punishable with imprisonment for a term which may extend to six months.
We are advocates and not the “ANY PERSON” as mentioned in the Act, no one can dare to us send us in jail. No jail can accommodate 30,000+ Young Advocates!!
I would like to be the first to be sent in jail if anyone could do,
Now I would like to know “who is with me”
Feel free to advise on strategy on 09891491829/09013748600.
Looks like you guys sure need an exam - esp. when law is all about the written word.
Killing the bar exam will be a sad day for the legal profession in India.
I have one question: AIBE is good, but then what was the value of our 5 years University Exam ?????
However, the remedy being proposed (State Bar Councils to hold their own exams) is worse than the disease. Given the vast disparity in standards in the 913 law Schools in India a common exam is necessary to ensure that a certain minimum standard is achieved. Never mind that I think that the level of the sample exam paper on the BCI website was way too low.
Having each bar council running its own bar exam is neither here nor there. Either scrap the exam altogether or have an All India Bar Exam. Please correct me if I am wrong, but at present an advocate enrolled in any Bar Council is free to practise in any state. If every Bar Council is going to run its own exam, then the law should be changed to make it mandatory for an advocate to enrol with the bar council and pass the relevant exam of every state in which he wishes to practise.
"Thank you for reaching out to us.
The date of the AIBE has currently been pushed. The BCI will issue a press release on November 25, 2010 intimating the full details of the new date etc. Dispatch and processing of applications is continuing through this period.
Regards,
AIBE Team"
In my view, the only way a bar exam would work would be to have it as a condition precedent to enrollment as an advocate. That of course would require an Act of Parliament. But the necessary political will might not be beyond GS's reach-- if he truly does care about legal reform. Instead, his pathetic attempts at wielding the BCI's puny powers only smack of laziness.
The Chairman BCI
Dear Sir,
With all due Regards,
If BCI is of the opinion that the all the students are not upto the standard desired, and the degrees they are getting are not upto the mark then following steps must be taken to maintain the standard in legal professional services as :
1. Keep regular watch on the syllabus of Universities and the standard must be maintained at college level also.
2. To arrange for studies for the Law Graduates to upgrade for the standards as BCI thinks Fit, for the older Batches of students also .
3. To arrange to amend the ACT accordingly first.
4. After taking the above steps the decision of the BCI for conducting the TEST is highly appreciable and acceptable to all. Without Taking the above steps first, it clearly reflects that that BCI have no concern to the carriers of the students and the decision of conducting the Test is merely for collecting the funds from the students and also a foul play with the decision of the Hon'able Supreme Court of India with the Intention to Improve the standards in the Legal Profession.
Such a irresponsible behavior is not expected from the side of so much higher authority like BCI.
Work accordingly irrespective of the commencement Batch. We all are with you irrespective of conditional practice Certificate. What the BCI want for Improvement Kindly arrange to amend the act accordingly. We all are always with you.
Thanks & Regards
I fully support S.No. 11, still we are in hanging position it is waste of time cancel the exam not only for 2010 batch, there should not be any exam for any batch after passing the 3, 5 years why this exam again, if they are really interested before enrollment let them conduct the exam whoever qualifies let them give the enrollment as advocate. If they conduct the exam in March by the time they declare the results holidays will start to the courts. Instead of wasting our time please the cancel the exam and allow us to practice.
If BCI is stubborn in conducting the exam pay us stiphand for this one year or else cancel the exam and allow us for practice everything will go smoothly.
Thanks,
He & Rainmaker wanted to play with the lives of students.
Guys, revive all the cases that are pending before the Courts.
What about Rainmaker loyalists ? They have stopped writing blogs :-)
Them seem to have lost their confidence.
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