The Supreme Court is finally looking at the All India Bar Exam (AIBE), which was as well-intentioned as it was problematic right from when it began in 2010, when it was immediately hit with numerous writ petitions challenging its legality. Six were eventually clubbed in 2010 to be heard by the Supreme Court together with the 2008 case of Bar Council of India (BCI) v Bonnie FOI Law College.
Those cases have sat in limbo since then.
But this Friday, 18 March 2016, an apex court bench headed by Chief Justice of India (CJI) TS Thakur, with justices R Banumathi and UU Lalit will take another look, having asked advocates to present their case of whether a constitutional bench should decide on its legality. Senior advocate KK Venugopal has been appointed as amicus curiae.
Beyond Bonnie FOI
In 2010, then-BCI chairman Gopal Subramanium's hurry to get something going that would improve the standards of the profession – a noble and important goal, with a bar exam having had the potential to help on that front – ruffled a lot of feathers.
It was also of dubious legality, considering the commonly accepted legal position since V Sudeer vs BCI of 1999, where the apex court held that under the Advocates Act 1961 the BCI was not allowed to impose pre-conditions to advocates’ enrolments (such as a bar exam almost certainly could be).
But forget V Sudeer for a second – Subramanium’s philosophy back then was almost certainly that once the AIBE could be shown to be improving the standards of the profession, all would be forgiven.
Precisely that saving grace is almost certainly absent in substance and in form.
The conduct of the AIBE has been fraught with what can only be described as incompetence at best and raises a strong prima facie case of worse, particularly under its current chairman Manan Kumar Mishra, who has been in charge of the BCI nearly uninterrupted for nearly four years now.
Each AIBE generates crores of Rupees in examination fees from candidates, who are nearly all young lawyers at the start of their careers at the bar.
For the fourth bar exam alone, up to Rs 2.1 crore of those candidates fees would have flowed to external contractor ITES Horizon Pvt Ltd, which was selected under circumstances that are beyond suspicious.
If the Supreme Court is serious about examining the legality of the bar exam, it should also examine whether the award of the contract to ITES Horizon by the BCI was illegal.
Below are some good questions for the Supreme Court to ask BCI chairman Manan Kumar Mishra for starters.
Full disclosure: Mishra had sent a legal notice to Legally India on 25 May 2015 about our reporting of discrepancies in the tender, alleging defamation of the BCI;
Legally India replied to Mishra on 8 June with a 40-page rebuttal letter (download) running to 200 pages including annexures (download);
We have received no response from Mishra to any of the questions it raised
1. If ITES missed the tender deadline, how did it win the bar exam contract?
Were the BCI meeting minutes of 30 July 2012 later doctored to include ITES name? Why?
When did ITES actually bid for the contract?
Do you have any of ITES’ bid documents or presentation?
If ITES missed the deadline, how did it win the bar exam contract?
By 30 June 2012, the publicly announced date of the tender deadline for the fourth AIBE under chairman Manan Kumar Mishra, the BCI had received the tenders and Rs 2,000 demand drafts of four prima facie competent agencies, several of which had conducted major competitive exams before.
Instead, to the surprise of everyone, the BCI gave the contract to ITES Horizon Private Limited, which according to all available evidence, had not submitted its tender by the 30 June deadline.
On top of that, ITES’ prima facie delayed tender was not accompanied by a bank draft for Rs 2,000, as required under the BCI's tender notice, but it had submitted a cheque instead, which, unlike a demand draft, can be postdated.
Since there are, prima facie, such serious defects in ITES’ tender, why was ITES even allowed to participate?
In the BCI’s minutes dated 30 July 2012, obtained under Right to Information (RTI), the name of ITES Horizon seemed to have been inserted into the meeting minutes that listed the other four tenderers, after the minutes were already printed with the original four tenderers (see picture below).
In summary, as reported earlier:
Around 25 June 2012 the BCI had publicly called for tenders from agencies to conduct the AIBE - IV. Applications were to be received by the BCI on 30 June 2012 with a demand draft of Rs 2,000.
According to minutes of a BCI meeting dated 28 July and 30 July 2012, four contractors had appeared and bid for the job: Aspiring Minds, Rainmaker, Pearson Vue and Manupatra Information Solutions.
However, one printed line at the bottom of the 30 July minutes, slightly out of alignment with the rest of the text, stated that “subsequently ITeS Horizon Pvt Ltd was represented by Ms Rubab Khan”. ITeS chief executive officer (CEO) Khan’s signature and the 30 July 2012 date appears on the minutes.
However, on 7 September 2012, BCI chairman Manan Kumar Mishra had announced that those four companies had been rejected and the contract was awarded to ITeS instead as the BCI had decided to carry out a larger share of work internally.
2. The winning bid by ITES was not the cheapest or most competitive, so why did it win the tender?
The AIBE could have cost the BCI and bar exam candidates far less than what it did (see below).
Rainmaker, Pearson Vue, Aspiring Minds and Manupatra had bid smaller or similar amounts compared to ITES’ bid, and all the four agencies had more practical experience than ITES.
The BCI reasoned in its meeting minutes that the other four bidders lost the multi-crore bar exam contract to ITES because they “flatly refused” to provide some office space for a BCI staff member to liaise with them, and to set up a “small liaisoning office” for the purposes of the AIBE within the BCI's premises.
However there are doubts about whether the four agencies did in fact refuse this request, which doesn’t seems onerous for professional agencies bidding for a contract of such high revenue stakes, particularly when there is no record of the following:
Were Aspiring Minds, Pearson Vue and Manupatra ever informed that this would be a critical condition to their winning the contract? Rainmaker would presumably have known, since it conducted the first three AIBEs.
What were their exact responses, if any?
What was ITES told?
Why was this condition not specifically detailed in the BCI’s invitation to tender, if it was so vital?
3. ITES was barely a paper company and was by far the least qualified and most inexperienced bidder. So why was it chosen?
A simple due diligence of ITES carried out by Legally India using publicly available documents and sources, revealed that it was lying about the 13-years of experience the company claimed to have (see details in point 4 below).
ITES existed only on paper and had no credible experience of carrying out any projects of similar complexity or size.
Of the other four bidders, at least three of which had previous experience conducting large scale professional exams, including the AIBE, and all were large going concerns with legitimate existing and ongoing trade.
4. Did you know that ITES misrepresented nearly all of its experience and qualifications in its tender?
- ITES very clearly and demonstrably lied in its tender about its experience. Was a basic due diligence of the bidders carried out by the BCI?
- Were you aware that ITES qualifications did not match what it represented?
Here are a few of the most obvious of ITES’ misrepresentations:
ITES claimed in its tender, as recorded in the BCI minutes, that it had 13 years of experience. But Robab Khan, the holder of 99.9 per cent equity in the company had only taken it over from its original directors in 2010, and its original directors resigned one day after the company was awarded the AIBE contract.
ITES claimed that it had Rs 5.4 crore in revenues whereas it really had to its name amounts in the range of Rs 0 to a few thousand Rupees between 2005 and 2012. After it had conducted its first AIBE, the accounts changed drastically to reflect a lot more revenue, which appears entirely generated by the AIBE.
ITES did not even have a website until September 2012 (after it won the contract). When ITES did build a website it was dubious and barebone, including placeholder content and unsubstantiated claims about its experience.
When Legally India had visited ITES’ registered office headquarters in December 2012, it found no staff, no equipment, and a broken signboard on site.
5. Why was the ITES contract extended in 2015, despite its clear and repeated incompetence?
As set out below, notwithstanding the defects in the award of the AIBE tender to ITES, the BCI with ITES also consistently underperformed in the contract.
However, in 2015 the BCI renewed this dubiously-awarded bar exam contract to ITES, without a public tender of the contract and apparently without holding a council meeting for members’ consensus on the renewal.
- Was a council meeting held to renew the contract?
- If you claim you were unaware that ITES had misrepresented its experience, those facts had been brought to your attention. Was this taken into consideration in its renewal? If not, why not?
Consistent and continuing track-record of delays
ITES has conducted five bar exams since AIBE-IV, having recently held AIBE-IX, which was postponed by nearly three months on 16 November to 6 March 2016 after the ITES-operated official AIBE website had failed.
In every single AIBE conducted by this contractor, the date of the exam was postponed or experienced a variety of problems.
The AIBE website has experienced frequent outages right up to the last edition of the exam.
Major hike in exam registration fee, placing hardship on young lawyers at the start of their careers at the bar
The registration costs for the exam have risen by nearly 100 per cent from Rs 1,300 then, to Rs 2,560 per candidate now.
The costs increased despite ITES not having delivered on its contractual obligations to provide printed study materials and create model test papers for candidates.
Security breaches of thousands of entries of candidate data held ITES / the BCI
There has been at least one breach of security of the AIBE’s candidate database.
Mishra had told Legally India on 30 October 2014 that around 6,000 AIBE candidates contact details had been stolen by a contractor from the AIBE database, with that contractor then having been caught red-handed trying to sell that data. No action was taken against the contractor, other than removing the contractor, said Mishra.
Legally India editor Kian Ganz was also approached in July 2014 via email by an anonymous person purporting to be able to sell 18,638 AIBE candidates’ names, email addresses, date of birth, phone numbers and addresses.
Unfulfilled contractual clauses
Under the binding MOU Mishra entered into with ITES in 2012, ITES had promised to build the BCI a new website, deliver study materials from AIBE 5 on, and create practice questions for candidates.
ITES has done none of these things to date.
- Was the BCI aware of ITES’ underperformance?
- Do you believe that the BCI owes advocates it represents a duty of care to conduct the AIBE professionally?
- Notwithstanding the constitutional validity of the AIBE, in light of its conduct in hiring a contractor, is the BCI competent to administer and carry out AIBEs?
This is not new (reading list)
All of the above facts have been previously reported by Legally India and others.
And we have only scratched the surface in the way of evidence that raises serious question marks, with more being publicly available and more certainly being buried elsewhere.
If you’re interested and you’d like to read more, do start with:
- November 2010: On the current batch of petitions in the Supreme Court: Bar exam cases still in limbo as 4 of 6 respondents inactive in apex court
- January 2013: The All India Bar Exam (AIBE): a regulator’s rocky road
- May 2015: RTI’d minutes of BCI reveal how multi-crore bar exam contract was awarded to mystery 5th bidder ITeS Horizon #longread
- June 2015: LI responds to notice of BCI’s Mishra: You gave bar exam to company with Rs 0 revenues, did no due diligence & worse