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Thin ice: BCI forces bar exam takers to waive RTI rights & pay BCI's costs if losing legal challenge

Screenshot 2015-01-07 12.50.39
Screenshot 2015-01-07 12.50.39

The Bar Council of India (BCI) requires lawyers who take the All India Bar Examination (AIBE) to waive their statutory and fundamental rights.

According to the undertaking to be signed by AIBE applicants registering for the AIBE-VIII, they have to agree to bear the entire cost of any litigation related to the AIBE against the BCI if they lose.

The undertaking also prohibits the candidates from filing Right to Information (RTI) requests for their AIBE answer sheets or the answer key, and overrides the provisions of the RTI Act by imposing a time limit of 20 days from “cause of action” for filing an RTI.

It states:

I also unconditionally agree that any or all disputes/litigations arising out of this examination would be submitted to the territorial jurisdiction of the Delhi courts and if I lose the case lodged/filed by me, I shall pay the entire cost of litigation, because I am aware of the fact that BCI is not a profit-making institution rather it serves the legal professionals, without any assistance or any outside agency or government.

[…]for any reevaluation of Answer Sheet, I shall not take shelter of provisions of RTI act, rather I shall pay the proper charges/fee fixed by the BCI for this purpose. For redressal of any grievance with regard to examination, issuance of admit card, publication of result, I shall not make any application/claim or RTI application after 20 days of cause of action and/or as the case may be, I shall not be entitled to make any grievance after the period fixed by BCI on its website i.e. www.barcouncilofindia.org.

A Delhi high court lawyer commented: “On first principles, this agreement would be void and barred by Sections 23 and 28 of the Contract Act since it aims to defeat the RTI Act. It may also potentially be void since the provision that costs be borne by the student would also be a restraint on legal proceedings. Lastly, a student could also have this provision severed and set aside on the ground of undue influence and inequality of bargaining power.”

“The same way the government can also start including such a clause in all its agreements. That will definitely end litigation,” remarked another lawyer.

“In fact, with appropriate creativity, by forcing an individual to concede authority on an issue to the BCI which is, in fact, that of the Hon’ble Court, it could even be argued that this act on BCI’s part is tantamount to criminal contempt of court, by trying to belittle the authority of the Court. In addition, the rationale given by BCI to demand that a candidate bears the costs is ridiculous i.e. that the individual is aware that BCI is a non-profit,” said one advocate.

Another advocate said: “Unless there is a specific prohibition in the RTI Act itself, such a clause should not be maintainable.”

Another advocate commented: "I think BCI being State under Article 12, this conduct is likely to be seen as arbitrary and violative of Article 14 of the Constitution. Also, since signing this agreement is the only way to practice law in India, the agreement may be vitiated by undue influence, and hence invalid."

BCI chairman Manan Kumar Mishra did not respond to an email seeking comment about the reasons for the undertaking's language, and vice chairman SL Gowda was not reachable for comment by telephone.

Late last year, Mishra denied Legally India's RTI request to inspect and copy minutes of BCI meetings relating to the AIBE, legal education and other departments. Several lawyers have since filed identical RTI requests with the BCI.

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