The new bar exam for law graduates is understood to be held in late August with the Bar Council of India (BCI) set to announce the syllabus in a matter of days. Meanwhile, NUJS Kolkata final year students and Professor Shamnad Basheer have petitioned BCI chairman and solicitor general Gopal Subramaniam to postpone the exam until 2011 because they argue it prejudices students and is unconstitutional without amending the Advocates Act 1961.

Basheer wrote in an email to NUJS faculty on 8 May: "Many of us were skeptical and wondered whether the Bar Council could pull [a bar exam] off this year, but it appears that they are fairly confident that they can logistically handle this.

"I just spoke to the SG, Mr Subramanium (who is also the current Bar Council chairman), who mentioned that the bar exams will certainly be held this year. It is most likely to be held in the latter half of August—but certainly before September.  They will try as best to ensure that students leaving for their LLMs etc are not prejudiced.

"The syllabus and structure of this exam would be put up on the Bar Council website in 4-5 days time. He also categorically mentioned that the bar exam would apply to all students passing out this year, irrespective of whether or not they get themselves enrolled before the onset of these exams."

Currently the syllabus or further information on the bar exam have not been uploaded to the BCI website.

An all-India bar exam was announced by the BCI and endorsed by law minister Veerappa Moily in early May. The exam is planned to become a prerequisite to the practice of law for all 2010 graduates, although students expressed reservations at the time.

Basheer and NUJS final year students have today sent a letter to Subramaniam, arguing that holding a bar exam this year would prejudice current final year students and was unconstitutional after the case V. Sudeer v. Bar Council of India, AIR 1999 SC 1167 without amendment of the Advocates Act.

Basheer wrote in the letter that he and students were supportive of the "wonderful initiative of a bar exam" although rushing through it would "prove counterproductive to your vision for regulating the profession in a more optimal manner".

"We are concerned about the prospect of holding such exam at such shot notice i.e. a mere two months from now. May we please request you to defer the proposed bar exam to next year, such that it only applies prospectively to candidates that graduate (with LLB degrees) next year? […]

As you will appreciate, a bar exam has never been held in this country since the 1970’s and students had a legitimate expectation that there would be no exam this year. With only a few weeks left for most students to graduate, it will inconvenience them to a very high degree. Many of them have signed contracts with law firms and lawyers and are scheduled to begin working in the months of June-July. Lawyers and law firms may have hired them on the expectation that they are ready to go on day one and not handicapped from appearing in court or practicing law, owing to a bar exam, that has been suddenly instituted after 35 years. Many other students are going abroad for jobs and higher degrees (LLM’s) and will be placed at a great disadvantage owing to this sudden announcement."

"Thirdly, and perhaps most importantly, the V Sudeer case (V. Sudeer v. Bar Council of India, AIR 1999 SC 1167) does not appear to permit a bar exam by the BCI (Bar Council of India) without an amendment to the Advocates Act. In Sudeer, the court categorically held that any additional eligibility criteria for the practice of law over and above what was mentioned in Section 24 of the Advocates Act was unconstitutional. Particularly if such additional criteria amounted to either a bar exam or a training of some sort, since the power to mandate such exams/training was expressly taken away via an amendment in 1974 to the Advocates Act.

As you are no doubt aware, in the light of the 1974 amendment, once a student legitimately cleared his or her exams at a recognized University, he/she was entitled to enroll in a state bar council and practice before any court of law, without having to undergo training or take an exam of any sort. Therefore, if such an exam needs to be conducted by the BCI, it can be done only through a legislative amendment.

The court in Sudeer stressed that an enrolment comes with an automatic right to practice—subject to conditions of practice framed by BCI, High courts and the Supreme Court. Therefore, the BCI cannot, in my personal view, attempt to pass off a bar exam as a “condition of practice”, since such an exam would effectively emasculate the concept of enrolment i.e. enrolment is meaningless without the right to practice. In short, the court is likely to see this cleverly crafted condition of practice as nothing more than a camouflaged “pre-enrolment” condition, a condition that the BCI has no authority to impose under the present statutory scheme. As you are aware, the court in Lawyers Collective vs Ashurst defined the term “practice” to widely include not just the right to appear before courts, but to also include all kinds of non-litigious practice as well (transactional work and legal advise etc). Therefore divesting enrolled lawyers of the right to practice upon enrolment will have serious consequences for all law graduates this year. […]."