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The All India Bar Exam (AIBE): a regulator’s rocky road

Former ITES Noida Office, last month, as set out on its website
Former ITES Noida Office, last month, as set out on its website
In last week’s Mint: Most non-lawyers will not have heard of AIBE, but one week this month, more people in India searched Google for the term than for Sonia Gandhi, according to Google Trends. As a pure exercise in branding, the less than two-year-old AIBE—or to use its full name, the All India Bar Examination—should be considered a huge success for the Bar Council of India (BCI). That can’t be said of the exam itself.

The fourth AIBE, which law graduates now need to pass before they are allowed to practice in courts, took place on 9 December. The exam was cancelled in Jaipur and Bhopal because there weren’t sufficient test papers at the venues. In Jaipur, students reacted angrily. In Bhopal, the police had to intervene to quell violence. One examinee in Bhopal, who only wanted to be identified as Sheetal, said an angry mob stormed the venue, snatched the answer sheets of students and tore them up.

BCI, in a statement on its website after the event, described these as “some disturbance created by some unruly elements”.

The conduct of the exam was criticized by students even in places where it went relatively smoothly. At many places, the exam started late, sometimes by more than an hour. Pranay Mangharam, who completed his law degree in 2011 and has been practising provisionally in Mumbai, took the AIBE at the nearest centre in Airoli, more than 30 km out of Mumbai. The exam started 45 minutes late. Mangharam criticized the fact that in Maharashtra, for example, there were no exam centres in the major cities of Nasik, Nagpur or Pune, which is home to more than 10 major law colleges, requiring candidate to travel long distances to take the exam.

And if the objective of the AIBE was to filter graduates to increase the standards of new entrants to the profession, he added, the questions and scope of the latest exam were “nonsensical”.

Many candidates also said the sharing of answers during the exam between candidates was widespread, with one, who declined to be identified, quipping that he would “call it valid civil disobedience” in light of the BCI’s conduct of the exam.

But disturbance, criticism and controversy are nothing new in AIBE’s short history.

Birth pangs

The AIBE, proposed in 2010, was the brainchild of then-solicitor general and Bar Council of India (BCI) chairman Gopal Subramanium. It was initially loathed and welcomed in near-equal terms.

But the exam proved tenacious and survived more than a dozen legal challenges that went all the way to the Supreme Court (where they got stuck and are still pending). In Tamil Nadu some groups of advocates protested violently against the AIBE on exam days, preventing it from taking place in parts of the state, while in Madhya Pradesh and other states, thousands of advocates went on strike against it.

Meanwhile, bar council politics continued, as some state bar councils feared being usurped in their power by the central regulator and wanted a piece of the action from the BCI.

Slipping timetables

The first AIBE was held in March 2011, a year after it was first proposed by Subramanium. The second followed only four months later in July 2011, sticking with the envisaged timetable of holding three AIBEs per year.

Post Subramanium’s departure in July 2011, it took six months for the next exam to be held in January 2012, with the next scheduled for June or July.

But by the 9 December exam, there had been an 11-month gap between AIBEs.

In that time, the 35,000-odd law graduates who registered for the exam were in a legal limbo. The Advocates Act 1961 provided that a student who passed a proper law degree had the right to be enrolled with the state bar council to practice in the courts, and the BCI had no power under the statute to impose any additional hurdles to enrolment.

In defending the AIBE from its initial detractors and legal challenges that relied on a Supreme Court case that forbade the BCI from holding an AIBE, the BCI used a novel argument. It argued that the AIBE was not a “pre-enrollment qualification” but a “post-enrolment qualification” that would not prevent advocates joining the state bar but merely prohibit them from appearing before a court without passing the AIBE.

As the first and subsequent exams were delayed, the BCI and state bar councils realized that young lawyers’ practice was being affected as they waited for the AIBE, and allowed lawyers to practice without passing the AIBE if they signed a written promise that they would practice only “provisionally” until they passed AIBE later.

Nevertheless, students’ plans of working or studying overseas and other arrangements were affected.

Battle chest

More than 56,804 law graduates registered for the first three exams, of whom almost 19,000 did not pass.

And so, notwithstanding its deficiencies, the AIBE gradually became accepted by the profession as one of several tools that could potentially improve the quality of entrants to the Indian bar, which has suffered after years of the BCI’s accreditation of 900+ law schools (more than 100 of those have in recent years been derecognized, according to the BCI, although it has not disclosed exact figures and how many of those decisions have been challenged by schools).

The AIBE also generated revenues of Rs 6.9 crore from exam registration fees, of which the BCI would keep 31%. For the regulator, which receives no funding from the government, this was a welcome cash cow.

It was also a useful shield, acting as evidence that the BCI was an effective and progressive regulator, in the bitter turf war with the Ministry of Human Resource Development (HRD) over who would get to regulate legal education.

As such, despite the initial resistance to the AIBE from state bar councils, students and many educators, the AIBE became something of a flagship programme for the BCI.

However, the AIBE was not a visible BCI priority in the first half of 2012. In April, the chairmanship changed hands from Ashok Parija to Manan Kumar Mishra and the fight with the HRD took centre stage, culminating in the BCI calling for national lawyers’ strikes.

The BCI also proposed a controversial plan to charge law students, teachers and law schools mandatory fees and in order to build an online database of lawyers, and a scheme under which advocates would have to renew their practicing certificates every five years – again for a fee.

Conducting the exam

The first three AIBEs were conducted with the help of a company called Rainmaker, which was founded by a number of former lawyers and provides a variety of services to the legal industry. Rainmaker was paid around 69%, or Rs.4.8 crore, out of the total AIBE fees collected from examinees. And while that contract was not formally tendered out, which raised some eyebrows at the time, Subramanium said that alternative companies were approached but did not offer the right expertise in the legal field. He also felt that delay would have been “disastrous” and would have meant that the exam would never have happened because of all the resistance.

After the initial Rainmaker contract expired in March 2012, the BCI in June announced that it would hold a formal tender process for an AIBE contractor this time and pegged the next exam date for August 2012.

By August, four companies had applied: Rainmaker, global electronic testing company Pearson VUE, legal database supplier Manupatra and Gurgaon-headquartered assessment company Aspiring Minds.

The BCI admitted at that time that it would not be able to hold the exam before October, but on 4 September the BCI chairman said that the AIBE would happen on 25 November—a date that would be “very much final, no postponement”. By October end, the BCI again postponed the AIBE to 9 December citing a clashing religious event and “several requests from candidates”.

On 7 September, BCI chairman Manan Kumar Mishra confirmed that the BCI had rejected all four of the tenders and had instead gone with a technology company called ITES Horizon Pvt. Ltd that would assist the BCI in a more limited capacity.

In a November interview with legal website Bar and Bench, Mishra explained that ITES was selected because it quoted the lowest price to the BCI at Rs.600 per examinee (at 35,000 applicants, this would come to more than Rs.2 crore— Rainmaker, by contrast, had charged Rs.900 per examinee, though, according to the BCI chairman, its role was also wider than ITES’; Companies contacted about the tender declined to comment.

Fee increase

Part of the BCI’s reasoning, explained Mishra, was also to pull the exam in-house so that the BCI would one day be able to conduct the exam entirely without an external agency’s assistance.

In early October, on a new website built by ITES at www.allindiabarexamination.com, the BCI announced that the fees payable by examinees would increase by around 50% to Rs.1,900 per candidate.

For the fee, the BCI promised that as in previous years it would supply printed study materials to candidates to take into the open-book exam. Any surplus from the exam would be used by the BCI for the welfare and for education programmes, said Mishra.

But on 2 December, exactly one week before the exam date, the BCI announced on its website that no study materials would be issued for the exam.

“The fees they have charged is also for giving the materials but suddenly (they) have changed their mindset but said, we are not going to provide study materials,” complained an LLM student from Assam. “They should give us the money back, to be very frank.”

With nine days to go for the exam, the BCI published a new model AIBE question paper, with a syllabus that differed from the previous AIBE and included general knowledge questions related to law and politics, rather than purely testing knowledge of the law.

No official explanation was offered for the changes. The BCI’s original contract with Rainmaker, granted both entities a joint copyright to the first three AIBEs’ preparatory materials, model paper and exam structure.

The contract may have encouraged the BCI to withdraw its promise of study materials because it could not produce replacements quickly enough. Rainmaker declined to comment. Chairman Mishra said the BCI was not influenced by the copyright issue but had internally decided not to issue study materials in August for the open book exam because this would test students’ knowledge of law better.

Meanwhile, on the technology front the AIBE continued suffering, with frequent outages of the official website, complaints from graduates about jammed, understaffed or unhelpful telephone helplines, while Facebook and Twitter were brimming with messages from flustered AIBE takers.

Communications from the BCI directly with examinees have been limited to occasional updates on its website, which are usually barely visible in a sidebar.

ITES, which claims 13 years of experience in “IT implementation and delivery” on its website, was not reachable for comment via email or the forms on its website, had moved out of one of the addresses listed on its website (see picture), while Legally India could not find its second office address in Delhi despite an extensive search. Its directors did not respond to phone calls or emails.

All well that ends

The exam is now mostly behind the BCI, subject to grading papers and delivering results and certificates to candidates (which in previous AIBEs has faced significant delays), and perhaps the fourth AIBE simply exhibited renewed teething problems after a change of contractor and the strategy to pull it in-house in a busy year.

But so far the fourth AIBE has not showcased the strongest side of India’s legal regulator, according to most candidates. “Receiving complaints is a hazard of the profession, it is what they (the BCI) are going to face,” admitted Mangharam. “But ok, increase your efficiency to where there is less opportunity to complain.”

Full disclosure: The author has an interest in a bar exam preparation service.

A shorter version of this article first appeared in Mint. Legally India has an exclusive content partnership with Mint, which features the latest legal news and analysis in its print and web editions.

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