By Raghul Sudheesh

An Apex Court Bench consisting of Justice Dalveer Bhandari and Justice H. L. Dattu in Bar Council of India v. Bonnie Foi Law College, had directed in December 2009 that bar examinations be conducted between July-August 2010. The purpose of the examination was to filter candidates’ entry into the legal profession. This direction from the Apex Court was pursuant to the report of a three member committee. The committee was constituted to make recommendations concerning the manner of affiliation and recognition of law colleges by the Bar Council of India. 

Despite such a noble origin, the All India Bar Examination (AIBE) has been controversial from the very start itself. A vast majority of lawyers, students and State Bar Councils have been against this exam. The then Solicitor General and Bar Council of India (BCI) Chairman, Gopal Subramanium, in the Bonnie Foi Law College case referred above, had stated that the exam will be conducted by a specially constituted independent body consisting of experts of various disciplines of national stature but this was not done. 

The three member committee  constituted by the Apex Court in its report observed that there was a pressing need to introduce the bar exam and stated: “It must be noted that the introduction of such a requirement would (i) prevent law schools from escaping the high standards imposed by the governing legal education body; (ii) promote curriculum reform thus increasing the quality of lawyers; (iii) incline students to interrelate and connect the subjects studied in school with contextual problems and challenges; (iv) provide for a more objective scenario of testing knowledge; and (v) lastly, create a uniform and fair method in granting enrolment to the Bar, and eliminate possibility of subjectivity.”

Further in its conclusions, the committee observed that: “As discussed supra, the introduction of a bar examination would ensure maintenance of standards in the legal profession, as well as standardization and constant innovation in the standards of curriculum, teaching methodology etc. The Committee is, therefore, of the opinion that qualifying a bar examination should be made a requirement prior to admission to the Bar by all State Bar Councils across the country. In light of the decision of the Supreme Court in the V. Sudeer case, such a requirement may be introduced in the Advocates Act, 1961 by means of a statutory amendment. The said examination will be a professional examination conducted by BCI in accordance with the recommendations of the Parent Committee.”

Despite these categorical findings, the AIBE was introduced without any statutory amendment!

According to the BCI website, the intention of the AIBE is to set a minimum standard for admission to the practice of law and to test a law graduate's ability to practice the profession of law in India. They claim that the AIBE (which requires an application fee of Rs.1,300/-) will assess the candidates' capabilities at a basic level and addresses a candidate’s analytical abilities and basic knowledge of law. The obvious question that would arise in one's mind is that aren't these very abilities tested during a five year / three year course?

The AIBE became more controversial when the contract to conduct the exam was given to Rainmaker, a private company involved in providing education services and products. In response to an application filed under the Right to Information Act by a concerned law student, the BCI admitted that the contract to conduct the AIBE was awarded to Rainmaker without issuing any public notice. After the orders were passed in the Bonnie Foi Law College case, representatives from Rainmaker had approached BCI and offered to conduct the AIBE and had simultaneously drawn up elaborate plans to implement reforms in the legal education sector. The BCI also went on to say that Rainmaker did so with very little expense to the BCI and that they did not find any other company or institution that were involved in the legal knowledge services sector such as Rainmaker.

In response to an Appeal filed to this RTI application, BCI completely changed its stand stating that; Tata Consultancy Services, Sify, Imaging Solutions (Delhi) and Rainmaker had submitted proposals to partner with BCI in conducting the AIBE.

The BCI refused to supply a copy of the contract with Rainmaker citing fiduciary relationship but did admit that the BCI will benefit monetarily from the AIBE and they will use it diligently for legal education reforms.

In Nagar Nigam, Meerut vs. Al Faheem Meat Exports Private Limited it was held by the Supreme Court that, “All contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the bid, and there is total transparency. In our opinion this is an essential requirement in a democracy....” BCI beyond doubt is an instrumentality of the State and is bound by this decision of the Apex Court.

Pursuant to the Supreme Court decision, the Central Vigilance Commission (CVC) also came up with an order emphasising the need for tendering process or public auction as a basic requirements for the award of a contract by any Government agency as any other method. The relevant part of the decision of the Apex Court was mentioned in the CVC order.

The CVC as well as the Apex Court has consistently emphasised on the need for transparency in the tendering process. The CVC has further emphasized on Pre-Qualification Criteria (PQ), noting that, “The success of a project largely depends on the capability of the contractor/vendor. Pre-qualification is a process to select competent contractors having technical and financial capability commensurate with the requirements of the particular procurement (Project / supply of goods/ hiring of services). The pre-requisites of pre-qualification process are transparency, fairness and maintenance of competition. The purpose of any selection procedure is to attract the participation of reputed and capable firms with proven track record. It should be ensured that the PQ criteria are exhaustive, yet specific and there is fair and adequate competition. It should be ensured that the PQ criteria are clearly stipulated in unambiguous terms in the bid documents.”

The Tamil Nadu Transparency in Tenders Act, 1998 and the Karnataka Transparency in Public Procurements Act, 1999 have established models worth emulating as these legislations has been able to bring in transparency in the whole tendering system for public procurements.

It has to be noted that despite all these categorical directions for transparency in a tendering process, the BCI chose to partner with Rainmaker without any public notice whatsoever.

There is no indication as to any expert panel preparing the question papers or to a board of advisors as promised by the then Solicitor General and BCI Chairman, Gopal Subramanium before the Apex Court. Nor is there any indication of assistance from eminent academicians of the calibre of Dr. N. R. Madhava Menon, Prof. K.N.C. Pillai or Dr. Upendra Baxi.

What is even more shocking is the quality of the preparatory material provided by Rainmaker. If one goes through the materials supplied to the candidates of the third AIBE, one will notice that the printed version has been printed directly in “Track Changes” mode. Some words have been visibly struck out, indicating a shabby and completely unprofessional approach. A bare perusal of Book 1 of 2, supplied to the third AIBE candidates, makes it very clear that the materials had in fact been prepared for the first AIBE.

Speaking on the academic standards of the AIBE papers, Ramanuj Mukherjee, co-founder of BarHacker.in, said, “The whole point of making law graduates go through a time consuming process and  hassle of taking an exam is to ensure that only quality lawyers gets entry into the venerable profession of lawyers. In a way, the bar exam sets the minimum standard for new lawyers. The Bar Council of India stated that there are two components that are sought to be tested through the exam: knowledge of law and application skills. People who set the papers have to keep this standard in mind, while framing the questions. I have been teaching law school aspirants for a while and I see a better standard of questions in law school entrance exams!”

It is high time the BCI took a more serious approach in conducting the AIBE. As had been promised earlier before the Supreme Court, the BCI should have a specially constituted independent body consisting of experts of various disciplines of national stature to conduct the AIBE.

Raghul Sudheesh is Associate Editor at Bar & Bench. You can follow him on Twitter.

Views expressed are personal of the author and does not reflect the views of Bar & Bench.

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