Summary
On a reference whether the Bar Council of India may prescribe pre-enrolment training or examination and whether V. Sudeer, which struck down the 1995 Training Rules, needs reconsideration, a Constitution Bench held that V. Sudeer is not good law: the 1973 amendment withdrew only the State Bar Councils' power to require training and examination and left untouched the Bar Council of India's wider powers under Sections 7, 24(1), 24(3)(d) and 49(1)(ag) of the Advocates Act, 1961, which suffice to prescribe an examination for entry to the Bar. Whether the All India Bar Examination is held before or after enrolment is for the Bar Council; the Court endorsed suggestions on final-semester candidates, allied legal work pending the examination, re-examination after a long break, validity periods, uniform fees and a strict twice-yearly schedule. The ruling operates prospectively.
Issues
- Whether the Bar Council of India can validly prescribe pre-enrolment training under the Bar Council of India Training Rules, 1995 and whether V. Sudeer v. Bar Council of India requires reconsideration.
- Whether the Bar Council of India can prescribe a pre-enrolment examination under the Advocates Act, 1961, and if not, whether a post-enrolment examination can be prescribed under Section 49(1)(ah).
Provisions considered
- Sections 7(1)(g), (h), (l) and (m), 24(1) and 24(3)(d), Advocates Act, 1961The Bar Council of India exercises general supervision over State Bar Councils, lays down standards of legal education and may do all things necessary for its functions; Section 24(1) is subject to the Act and rules, and Section 24(3)(d), opening with a non obstante clause, recognises entitlement to enrolment under rules made by the Bar Council of India, so it is not devoid of jurisdiction to prescribe a pre-enrolment examination. (¶¶ 20, 21, 22, 28, 31, 33)
- Sections 49(1)(ag), 49(1)(ah), 49(1)(ae), 48B and 21, Advocates Act, 1961The power to prescribe the class or category of persons entitled to be enrolled encompasses an examination for enrolment; Section 49(1)(ah) permits conditions on the right to practise, including re-examination after a substantial break; seniority may be regulated under Section 21 and Section 49(1)(ae); and directions under Section 48B can secure uniformity among State Bar Councils. (¶¶ 26, 27, 32, 40, 42, 43)
Held
- The powers of the State Bar Councils and the Bar Council of India are not pari materia; the 1973 amendment, which deleted Sections 24(1)(d) and 28(2)(b), evinced a legislative intent not to confer training and examination powers on the State Bar Councils but could not take away powers the Bar Council of India already held, and V. Sudeer erred in reasoning otherwise. Quality control of entry into the Bar is the need of the hour, and the interdict placed by V. Sudeer cannot be sustained. (¶¶ 19, 29, 30, 31, 32, 34)
- The stage at which the All India Bar Examination is held is left to the Bar Council of India, which must address the interregnum consequences; the examination must be held twice a year on schedule, students who have cleared all papers up to the final semester may sit it subject to passing their course, graduates awaiting the examination or enrolment may perform allied legal tasks other than acting or pleading, the Court declines to fix the number of attempts, an enrolled advocate who takes non-legal employment for a substantial period such as five years should be required to retake the examination, results may be given time-limited validity, and enrolment fees should be uniform and not oppressive. (¶¶ 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45)
- The contra arguments premised on V. Sudeer do not survive; the judgment applies prospectively so as not to disturb the position during the interregnum, setting aside V. Sudeer is no imprimatur for mandating pre-enrolment training, and the Bar Council of India is expected to take necessary steps within three months. (¶¶ 46, 47, 48)
Result
Reference answered; V. Sudeer v. Bar Council of India held not to lay down the correct law, the Bar Council of India having power to prescribe an examination for enrolment under the Advocates Act, 1961, with its timing left to the Bar Council; judgment to operate prospectively and the Bar Council to act on the Court's observations within three months; civil appeal and connected petitions disposed of with parties bearing their own costs.