AIBE tender issues: Will SC take notice?AIBE tender issues: Will SC take notice?

One of the petitioners in the All India Bar Exam (AIBE) constitutional mega-challenge currently in the Supreme Court, due to be heard on Friday (18 March), will raise the question of irregularities in the Bar Council of India’s (BCI) appointment of private contractor ITES Horizon Pvt Ltd to conduct the fourth and subsequent AIBEs in 2012.

On 4 March a bench of Chief Justice of India (CJI) TS Thakur, justices R Banumathi and UU Lalit appointed senior advocate KK Venugopal as amicus curiae to assist the court in the issue, requesting all petitioners’ counsel to submit whether the issue of whether the AIBE is legal should go to a constitutional bench.

Advocate Kartik Seth, acting for petitioner Anuj Agarwal in Bar Council of India versus Bonnie FOI Law College, today (17 March) submitted the following in CJI Thakur’s court at the end of his proposal on which questions a possible constitutional bench may have to consider:

Note: Apart from questions of law, the competence of BCI to hold a Bar Exam in a fair and transparent manner has been questioned in an article published by a leading legal website “Legally India” raising certain questions of propriety/honesty with regard to the current BCI regime headed by Mr Manan Kumar Mishra. I have attached the same to this list of questions for your kind perusal/attention.

A copy of the article published by Legally India yesterday (16 March) was attached to the petition.

Seth’s also wrote that four questions of law should be considered by the court:

1. Whether Rule 9 to Rule 11 framed under Chapter VI of the Bar Council of India Rules which introduces the Bar Exam are ultra vires the Section 16, 24 and Section 30 of the Advocates Act, 1961?

2. Whether Rule 9 to Rule 11 framed under Chapter VI of the Bar Council of India Rules are ultra vires the Article 14 and Article 19 (1) (g) of the Constitution of India?

3. Whether Rules 9 to Rule 11 framed under Chapter VI of the Bar Council of India Rules are contrary to the judgment in V Sudeer vs. Bar Council of India & Anr, 1999 (3) SCC 176 and whether the abovementioned judgment requires reconsideration by a larger bench?

4. Whether Bar Council Of India is the competent authority under the Advocates Act, 1961 to hold any post enrollment Bar Exam?

Seth will also submit an 11-page annexure with this proposal, laying out his petitioner’s arguments and position on these questions.

The matter BCI vs Bonnie FOI Law College is listed as item 19 in court number 1; it may come up around noon.

The main argument of the petitioner Agarwal against the AIBE is that the rules enabling the exam – Rule 9, 10 and 11 of the BCI Rules – are contrary to the provisions of the Advocates Act 1961.

Therefore, he argued, only if the Advocates Act were amended could the exam be validly held.

The Supreme Court bench has now begun final hearings in the 2008 appeal of the BCI against a judgment of the Madhya Pradesh high court, which had allowed Bonnie FOI Law College’ challenge to the idea of a bar exam.

13 other petitions pending in various high courts and the Supreme Court, which had also challenged the AIBE later, were clubbed with the BCI’s appeal on 2 March.

Legally India on Tuesday published a summary of some prima facie evidence of how the BCI had awarded the AIBE contract to its current contracting agency in 2010, in violation of its own announced tender rules and common sense, and to the detriment of four bidding companies considerably more qualified than and in the same price range of the winning bidder.

The entire tendering process and the lack of transparency at the BCI in this respect, should raise serious questions about its overall capacity to hold the bar exam, at the very least.

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.

Further reading:

[documentcloud Read Seth’s AIBE SC challenge: The main points, as well as BCI transparency issues mentioned]

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Like +1 Object -1 Bud Vik 18 Mar 16, 02:41
The question of irregularities in the Bar Council of India’s (BCI) appointment of private contractor ITES Horizon Pvt Ltd to conduct the fourth and subsequent AIBEs in 2012 is different from the question of whether the AIBE itself is legal.
The petitioner is mixing up issues. The Supreme Court has limited itself to whether the AIBE is constitutionally and statutorily valid.
If the petitioners want to raise the issue of irregularities in issue of contract, it is a civil matter, so they need to first raise it in a lower court of original jurisdiction, not in the Supreme Court.
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Like +1 Object -0 kianganz 18 Mar 16, 09:13
They are kind of ancillary, going as to whether the BCI is competent to hold an AIBE.

Presumably, the reason that the Advocates Act is prima facie forbids an AIBE, is in part because it would give the BCI too much power and too many responsibilities, which it is not able to discharge satisfactorily as the above incidents suggest.

Agree, it's not squarely about constitutionality, but it's in the definite territory of a writ petition against the BCI and the AIBE rather than a simple civil matter.
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Like +0 Object -0 Vik Bud 18 Mar 16, 16:49
Just because the contract for the exam was improperly given to ITES Horizon Pvt Ltd does not make the AIBE illegal in general. At best, it MAY make the results of this particular March 2016 exam invalid, but not the concept of AIBE itself. The two are different issues.
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Like +0 Object -0 kianganz 18 Mar 16, 17:01
The AIBE has been conducted by ITES since 2012, not since 2016...

That said, I don't think ITES' suspect appointment would invalidate the results of those exams, but it could go towards establishing that the BCI is not fit to hold a bar exam, considering the leaks of candidate details, repeated delays, increases in costs, etc, which are almost certainly in-part attributable to the choice of contractor.
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Like +0 Object -0 Vik Bud 18 Mar 16, 17:29
If BCI does not have resources or competence to hold the AIBE exam, then the responsibility to conduct the AIBE exam can always be given to agencies such as NCERT, CBSE, UGC, or Ministry of Human Resources Development (Smriti Irani). Alleged incompetence of BCI in conducting the AIBE exam is not a short-cut to declaring the AIBE itself illegal.
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Like +0 Object -0 Vik Bud 18 Mar 16, 16:40
The Supreme Court has missed adjudicating a vital point: "conditions for enrolment" and "conditions for practice after enrolment" are two different issues. DO NOT MIX THEM UP. Enrolment does not imply automatic right to practice. With all due respect to Hon' Justice UU Lalit, contrary to what Justice Lalit said in Court and claimed by Petitioners, enrolment as advocate does NOT give an 'absolute fundamental right' to practise--the right to practise is subject to both statutory and constitutional restrictions under Sec 49(1)(ah) of Advocates Act, and Article 19(6) of the Constitution.

Therefore, ISSUE #3, as framed by the Supreme Court today, needs to be re-framed as:
3. If the above questions are answered in the negative, then whether a post-enrolment exam can be validly prescribed AS A CONDITION PRECEDENT TO ISSUANCE OF "CERTIFICATE OF PRACTICE.”
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