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A fine mess: Bar exam cases still in limbo as 4 of 6 respondents inactive in apex court

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examination-hall_by_comedy-nose
Exclusive: The Supreme Court may have set the stage for the next round of proceedings in the All India Bar Exam challenges after completing the summoning process but certainty has continued to elude thousands of law graduates, as only two out of six anti-exam petitioners are still in active pursuit of the case while the other four have become absentee litigants for most intents and purposes.

There has been little clarity since the Bar Council of India (BCI) approached the Supreme Court in July to club together nearly half of more than a dozen writ petitions against the bar exam in various high courts of the country. For one, it took almost more than two months to issue notices on the respondents to appear before the apex court.

Fingers have been pointed at various camps for the reasons of the delay, accusing both the BCI of delaying tactics as well as raising the question whether some petitioners perhaps missed the litigation boat.

One interested party commented: “They are all students, I don’t blame them. Probably they filed in a spurt of excitement and afterwards couldn’t make up their minds as to how to proceed. Being students they’re not aware of the day-to-day challenges [of litigation].”

The timing could not be worse as the application deadline was postponed for the second time to 15 November and the actual exam is set to take place only three weeks later on 5 December.

All this is compounded by the organisational headaches of the exam. "300 candidates from my college applied but only three or four people have received [study] materials so far - the rest have not received any,” complained one student who called Legally India today. He had asked for advice on whether the exam would go ahead or not and whether it would be prudent to pay the Rs 1,300 application fee.

A perception that is echoed by another student who preferred to remain anonymous was that the BCI would either postpone the exam or would set an easy paper to make sure that a maximum number of students pass.

The leads

The Supreme Court transfer petition of Bar Council of India vs Babubhai Vaghela & Ors (TP(C) No 697-702/2010) had grouped together six petitions that challenged the contentious bar exam soon after the proposal was first mooted.

Petitioners Babubhai Vaghela, M Radhakrishnan, Urshit Oza, Shyamlal Bhagure, Ashima Bindlish and Divya Sharma were included as the lead respondents in the transfer petition along with many co-respondents.

Only Nalsar Hyderabad graduate Fatehpal Singh, who was Divya Sharma’s co-petitioner, and the Aurangabad law student group led by Shyamlal Bhagure have consistently followed-up on the case by making timely representations in the apex court. Senior advocate Dushyant Dave and lawyer Anirudh Rajput are instructed as counsel for the Bhagure camp.

Fighting battle on his home turf of Punjab and Haryana (P&H), as well as in the Supreme Court, Fatehpal Singh told Legally India: “My matter is up for hearing before the P&H High Court. I will ask the High Court again to clarify on issue since the matter hasn’t been placed before the bench until now.” [Update 10 November: the Punjab & Haryana writ petition of Fatehpal Singh was deferred today until 1 December.]

After failing to get the interim stay application listed for hearing before the SC closed for Diwali vacation two weeks ago, Dave’s assistant Rajput now said that tomorrow morning (10 November) they would try to mention for listing before the Bench citing the Registrar's order.

Absent supporting cast

Co-respondent and one of the first challengers to the bar was Babubhai Vaghela, who is a seasoned Right to Information (RTI) activist from Gujarat. Vaghela told Legally India that he filed objections with the Supreme Court against it hearing the matter after the notice was hand-delivered to him over a month ago from the apex court.

He claimed that the BCI wanted to delay the case deliberately but added that he had not filed appearance with the Supreme Court and was instead waiting for the registrar to decide on the transfer petition. Until then, he said, the Gujarat High Court was still the place that the case should be heard.

“Whatever replies have come or not,” said Vaghela, “the registrar should put it up to the Chief Justice to decide and that he is not doing.”

Also co-respondents and one of the first to file a writ against the exam, a group of Gujarat students from LA Shah Law College in the case Urshit Oza & Ors have also not appeared in the Supreme Court. Oza explained that soon after the matter reached the Supreme Court they had withdrawn their petition by filing an application before the Gujarat High Court.

Oza told Legally India: “The day it was transferred to the SC, I had withdrawn my petition. But they still served me every 15 days. The status [of my petition] shows disposed of in the Gujarat High Court.”

The reason, he said, for exiting from the case was the clarity they had received from the BCI on the grounds on which they’d based their petition. “I’m from a three-year LLB course and even though I completed law in 2010, which was my third year for specialisation, my university granted me the graduation degree in 2009 itself. Specialisation for the Sanad has to be done in the last year,” he explained. “I have written to the Gujarat Bar Council and the BCI both. State bar council hasn't replied but the BCI informed me that I will need to give the bar exam. BCI says I’m falling under the same category.”

Oza added that he was no longer a party to the transfer petition by virtue of Gujarat High Court’s disposal of their writ.

Legally India was unable to contact the two other petitioners Ashima Bindlish and M Radhakrishnan.

However, all remain listed as co-respondents in the Supreme Court matter.

BCI’s take

The BCI’s standing counsel Sanjeev Sachdeva told Legally India that all the respondents have now been served. Staunchly denying any suggestion that the BCI was delaying the matter intentionally, he said that in fact the process was prolonged because some of the respondents deliberately declined to accept service. According to him this was done in the hope of receiving an interim stay.

He recounted that the BCI in some cases had to send their local bar council representatives to each person’s home in order to personally deliver the notices. Around 35 to 40 individuals in far-flung areas needed to be served, he added.

The BCI’s further plan of action would be decided only once the matter was listed before the bench, Sachdeva noted.

Role of the state bar councils

The state bar council have played along with the popular mood by showcasing their dissent towards the way the BCI has organised and planned the AIBE, and anecdotally some even telling local candidates they did not acknowledge the exam.

“Earlier around 11 state bar councils had decided to not cooperate with the BCI during their meeting in Hyderabad a month back”, a source close to a state bar council told Legally India.

And in October, the Madhya Pradesh Bar Council called for a token strike when approximately 80,000 lawyers boycotted courts for a single day. However, while expressing solidarity may have boosted student’s morale concrete defiance would have worked greater wonders said one student.

E-Day

Getting certainty from the courts now seems ever more unlikely and confusion is still rife amongst students. Only today Legally India received almost a dozen emails, messages and calls with bar exam queries.

Conversely, according to the BCI more than 20,000 applications have been received. This should be counted as a numerical success and the BCI continues to insist that the exam will certainly go ahead as planned, despite its backlog in dealing with applications and study materials. And the logistics of this exercise and exam day itself could yet buckle BCI infrastructure.

All that is clear is that right now, less than a month from exam day, this whole business is far from an open-and-shut case.

UPDATE 14 November 2011: The bar exam has been postponed to 6 March 2011.

Photo by comedynose

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