Most legal analyses carried out so far on the Bar Council of India’s (BCI) authority to conduct the All India Bar Examination (AIBE) seem to have missed one crucial point contained in press releases announcing the AIBE and now in the FAQs section on the AIBE - the stage of conducting the AIBE comes only after a law graduate is enrolled as an Advocate under Section 24 of the Advocates' Act, 1961 (the Act) on the respective State roll maintained by the appropriate State Bar Council (SBC). It is therefore, submitted that reliance on V Sudeer vs. Bar Council of India [AIR 1999 SC 1167] (V. Sudeer) for arriving to the conclusion that the BCI does not have the authority to conduct such an exam is erroneous, since the crux of that judgment dealt with rules that purported to be pre-enrollment measures. V. Sudeer dealt with proposed rules that provided for mandatory practical training before enrollment of a law graduate as an advocate under the State roll and these proposed rules overstepped the boundaries of authority clearly demarcated between the SBCs and the BCI. However, after a law graduate is enrolled as an advocate on a State roll, how his right to practise is to be conditioned in the Courts of India is a subject matter of rule making power of the BCI as per Section 49(1) (ah). Indeed, this rule making power entrusted to the BCI is an ancillary power for effectively discharging of its statutory functions laid down by the Act and, consequently, rules to be framed under Section 49(1) must have a statutory peg to hang on. The Act provides the justificatory peg on which the BCI can conduct such an exam.

Before stepping into the legal analysis, it may be admitted that an argument that justifying the AIBE as a post-enrollment measure shall emasculate the concept of enrollment does merit reckoning. Practically speaking, the concept of enrollment might be considered to be tantamount to the right to practise advocacy in the courts of India. In V. Sudeer, the Supreme Court has stated that, “once a person is found qualified to be admitted as an advocate on the State roll having satisfied the statutory conditions of eligibility laid down in sub-section (1) of Section 24, he will automatically become entitled as of a right to practice full-fledged in any Court including the Supreme Court.” However, it is submitted that the right to practice is not absolute or unconditional. There has to be some purpose behind the power given to the BCI under Section 49(1)(ah) of the Advocates’ Act, 1961.

It is worthwhile revisiting the wordings of Section 49(1) (ah) at this juncture:

The purpose behind the power given to the BCI is supported by a clear intent contained in the language of Section 49(1) (ah) which demarcates two distinct entitlements - enrollment and the right to practise. This affords the BCI the right to condition the latter, i.e., the right to practice, after the former entitlement i.e., enrollment granted by the respective SBC. The schematics of the Act bear out clearly the fact that the legislature, since the early years of the Act, has envisaged two distinct though very proximate stages, both in the black letter of the law and in practice. Therefore, just as the SBCs have the right to prescribe conditions subject to which a person may be enrolled as an advocate on any such roll under Section 28(2) (d) of the Act, the BCI has the right to prescribe conditions subject to which an enrolled advocate shall have the right to practice under Section 49(1) (ah). This analysis gets support from obiter dicta found in V Sudeer where the judgment implies that the legal analysis on the validity of such measures would be different if the BCI promulgated such training and examination rules as a post-enrollment condition under the authority provided to it in Section 49(1) (ah). Therefore, reliance on the ratio decidendi of V. Sudeer for invalidating the authority of the BCI to conduct the AIBE is erroneous.

Indeed, any exercise of this rule making power by either the SBCs or the BCI can only be justified, if either Bar Council is discharging its respective functions under the Act.

Section 49(1) (c) of the Act, the Rules promulgated thereunder and Supreme Court jurisprudence on the same provide the answer. The wording of Section 49(1)(c) is as under:

It may also be noted that Section 36 of the Act provides BCI disciplinary powers in the event an advocate has been found to be guilty of professional misconduct. Pursuant to this power under Section 49(1)(c), the BCI has promulgated a series of detailed rules under Part VI, Chapter II [Standards of Professional Conduct and Etiquette] of the Bar Council of India Rules. The term “professional misconduct” has been elucidated a few times in the jurisprudence of the Supreme Court of India. For example, in Pandurang Dattatreya Khandekar vs. The Bar Council of Maharashtra [1984 SCR (1) 414], the Supreme Court stated in words, “Counsel's paramount duty is to the client. When a person consults a lawyer for his advice, he relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client for the protection of his interests. An advocate stands in a loco parentis towards the litigants and therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succor in times of need.” In the Matter of P. An Advocate vs. Unknown [1964  SCR (1) 697], the Supreme Court stated that “It may be that before condemning an Advocate for misconduct, courts are inclined to examine the question as to whether such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression "moral turpitude or delinquency" is not to receive a narrow construction. Wherever conduct proved against an Advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude. A wilfull and callous disregard for the interests of the client may, in a proper case, be characterised as conduct unbefitting an Advocate.” The Supreme Court went on to say that professional misconduct involves situations of gross negligence by the advocate.

As established above, the BCI is given the function of laying down standards of professional conduct which, by implication, includes prevention of professional misconduct. It is submitted that if an enrolled advocate makes the most basic error of law while imparting advice to his clients or is not reasonably mindful of basic ethical rules governing advocates in India, it would result in a gross negligence in client representation. It would be a travesty of the legitimate expectations of a client seeking advice from an advocate if the advocate, in an act of gross negligence, imparts largely incorrect advice as to the basic elements of the law. If the BCI, therefore, wishes to set entry-level standards expected of entrants to the legal profession to avoid instances of gross negligence, it is authorized to do so, even through an examination. The FAQs section on AIBE states that the exam “is an entry-level, qualifying exam that will assess whether you possess minimum competence and skill to provide legal services and practice law in India. The difficulty level will only be to that extent.” An argument could be made that the BCI must, in that case, ensure that the curriculum imparted in law schools across India must ensure that instances of gross negligence are avoided. It is worthwhile to recollect that, though one of the functions of the BCI under Section 7 of the Act is to promote legal education and to lay down standards of such education, the power held by the BCI is only co-extensive with Universities across India and the SBCs. The practical effect of this is made clear in the words of Supreme Court in V. Sudeer that state “[…] leave no room for doubt that the question of imparting legal education is entrusted to the Universities in India and not to the BCI. All that the BCI can do is to suggest ways and means to promote such legal education to be imparted by the Universities and for that purpose it may lay down the standards of education, syllabi in consultation with the Universities in India.”

Another argument could also be made that if, in 1973, the requirement of undergoing practical training and an examination for enrollment on the State roll was deleted from the Act on the recommendation of the BCI, the BCIs decision to now conduct the AIBE as a condition to the right to practise is counterintuitive. This query has two answers – a) as explained, the legal basis on which the BCI relies to conduct this exam is different and does not impinge upon the right of a law graduate to be enrolled as an advocate under the respective State roll; and b) a strong argument can be made that 37 years since the recommendation provides sufficient time to the BCI to gauge existing standards in the legal profession and stipulate measures to avoid glaring instances of professional misconduct due to ineptitude in client representation.

The BCI has also promulgated Rules under Part VI, Chapter III on the conditions to the right to practise under Section 49(1)(ah). These rules do not stipulate passing the AIBE as an additional condition as of today. But the BCI has the authority to amend its Rules. Therefore, in order to validate its authority to conduct the AIBE, the BCI may introduce the following changes to the two Chapters in its Rules without necessarily a legislative amendment:

 a)  In Chapter II (standards of professional conduct and etiquette), a rule may be added which states to the effect that an advocate must ensure that his representation of his client must exhibit reasonable amount of skill and/or expertise in the basic elements of the law pertaining to the area of such client representation.

b)  In Chapter III (conditions to the right to practise), a rule may be added that advocates must pass an entry-level basic examination stipulated by the BCI to assess whether any advocate intending to practise possesses a reasonable amount of skill and/or expertise in the area of representation of the client.

Postscript - This analysis does not take a view on any other legal bases that may exist for challenging the conducting of the AIBE (for example, the unreasonableness or arbitrariness of this decision). It also does not take a view on logistical difficulties and hardship caused to advocates enrolled this year.

Kartikeya is a corporate transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.