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All India Bar Exam (AIBE): SC consti bench to probe 13-petition mega challenge vs BCI test next week with KKV assist [UPDATE–I]

Senior advocate KK Venugopal was appointed a friend of the court in the 13-petition challenge to the Bar Council of India’s All India Bar Examination (AIBE) listed today, before a three-judge bench of the Supreme Court.

The Supreme Court may begin final arguments, next week, possibly before a constitution bench, to dispose of the year 2008 Special Leave Petition (SLP) entitled Bar Council of India V Bonnie FOI Law College.

The chief’s (CJI) court, along with justices R Banumathi and UU Lalit asked petitioners in the case to submit, within three days, their suggestions on whether a constitution bench should hear this challenge, to Venugopal and to the court.

The petitions of Anuj Aggarwal, Amit Sahni, Murali Prasad, Ashima Bindlish, Divya Sharma, Kayval Shah, M Radhakrishnan, Babubhai Waghela, Sunil, Bharat Agarwal, R Nagabushana, Abhilash Thampan Panicker and Sujith Menon that were pending in various high courts and in the Supreme Court, came up for hearing today.

Bar Council of India chairman Manan Kumar Mishra, who was appearing along with BCI counsel Ardhendumauli Prasad, submitted to the bench that since it is a larger bench than the two-judge bench that decided against the validity of “post enrolment qualifications” for advocates, in the year 1999 case of V Sudeer Vs Bar Council of India, the current bench may “reconsider” V Sudeer.

However the bench was of the view that since it has to address a critical question of law in the case, it will examine it independently and lay down an authority, advocate Kartik Seth told Legally India.

Seth was appearing for a year 2010 AIBE-petitioner Anuj Aggarwal. Karnataka resident R Nagabushana, through his advocate, was the only other party in the case to have appeared today, said Seth.

Nagabushana’s writ challenging the AIBE was first listed before a bench of the CJI and justice Lalit on Tuesday. The court clubbed it with SLP (C ) 22338/2008 – Bonnie FOI – and listed it next on Wednesday.

On Wednesday, after Prasad informed the bench that several petitions challenging the AIBE were pending in various high courts, the bench ordered the clubbing of all petitions and listing the case today:

“List these matters on Friday, 4th March, 2016 along with T.C. No.36/2011, 15/2011, 18/2011, 12/2011, 88/2012, 16/2011 and 13/2011.”

Justice UU Lalit had observed, in court, on Wednesday: “The right to practice law is there in the Act (the Advocates Act). When (Bar Council of India) says that a person will not be able to practice law without clearing the exam, then you are taking away the same right”, reported the PTI and Live Law.

“To say that one has to pass an examination for practicing as an advocate will negate his or her right to profession. He has a fundamental right to practice. Conditions can’t be put after enrolment. If, at all, it is required, the condition should be put at the enrolment stage”, added justice Lalit.

Bonnie FOI Law College was the first petitioner to challenge the legality of the AIBE, when the exam was first introduced in 2008. Then-BCI-chairman senior advocate Gopal Subramanium had argued for the BCI before the Supreme Court and obtained a stay on Bonnie FOI’s Madhya Pradesh high court win against the AIBE.

The AIBE has continued without a break since then, except for the breaks in schedule afforded by the BCI’s regular track-record of delays in holding the exam.

UPDATE: What went down today

CJI: “Questions have been raised whether post-enrolment examination is justified.  If the amendment of the Act is required, we will recommend.  It will be better if the matter is referred to a larger bench. The problem has to be settled once and for all.”

KKV: “We have been emphasising continuing legal education even after enrolment.”

CJI: “If you could prepare a list of points to be formulated.   What should be the points to be referred?  (Looking towards BCI's Mishra)  It is a matter of {defining} moment for the entire profession. It is time to introspect.  Some are stabbing, some are fighting, and some are arguing.” 

Petitioner:   “We are not per se against exam.”

CJI: “Give us different dimensions of the issues. We will pass an order.  There is a right to practice.”

Petitioner:  “If someone becomes the BCI chairman today, and if he can't clear the bar exam, we will have a situation, when the BCI chairman can't practice law, although he will have the right to practice, as per law.”

CJI: “So, next three or four days, please discuss among yourselves and give us the suggestions.”

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