The Supreme Court today framed three issues for consideration by its Constitution Bench in deciding the challenge to the All India Bar Exam (AIBE), which has been made mandatory for granting advocacy licence.
"Let it go to five-judge Constitution Bench for authoritative pronouncement," a three-judge bench comprising Chief Justice T S Thakur and Justices R Banumathi and U U Lalit said.
The three questions to be considered by the constitution bench are firstly, whether Bar Council of India (BCI) can prescribe a pre-enrolment training in terms of the BCI (Training) Rules, 1995 as framed under Section 24 (3)(d) of the Advocates Act, 1961.
Secondly, whether a pre-enrolment exam can be prescribed by BCI as a condition precedent for enrolment and, thirdly, if these two questions are answered in the negative, then whether a post-enrolment exam can be validly prescribed.
The Bench said the questions are of considerable importance and all cases relating to the challenge to the AIBE stand transferred to the Constitution Bench.
"We are of the view that the questions call for determination by the Constitution Bench and need to be answered by the Constitution Bench. We, therefore transfer it to the larger bench," it said.
The questions were framed after taking suggestions of the parties and senior advocate K K Venugopal, who is assisting the court as amicus curiae in the matter.
During the previous hearings, the bench had said "We want to settle this controversy regarding pre-enrolment training and post-enrolment exam. If an amendment to the Act is needed, we will recommend that."
The bench was hearing a batch of petitions seeking quashing of a 2010 notification by which lawyers must clear the AIBE to get an advocacy licence.
The court, during the earlier hearings, had observed that legal profession is "crying for reforms" and lawyers cannot be allowed to a have a "free ride as the administration of justice is a key area".
The apex court had not stayed the upcoming AIBE, saying
it was not "averse" to it and would examine whether it was permissible under the Advocates Act.
"The system is crying for reforms...There are over two million lawyers in the courts. Which means, we have enough lawyers and the future inclusion must be on merits," it had said, adding, "the profession is not something where you can have a free ride".
The plea, seeking quashing of BCI's notification on AIBE, alleged that it takes away the statutory right given to an eligible person to practice law.
The Advocates Act provides that a law graduate can practice law and introduction of AIBE is not mandated under the law, the plea said.
The BCI conducts AIBE, which has been made mandatory, to examine an advocate's capability to practice the legal profession.
The apex court had also observed that right to practice law is a fundamental right for an LL.B degree holder and introduction of the examination by BCI for granting advocacy license "negates" the very right.
The BCI had claimed that the AIBE assesses skills at a basic level and is intended to set a minimum benchmark for admission to the practice of law.
"It (AIBE) addresses a candidate's analytical abilities and understanding basic knowledge of law," the bar body had said.
The notification bringing the AIBE into force was passed by the Legal Education Committee and the members of the Bar Council of India in meetings held on April 10 and 30, 2010.
