The Supreme Court on Thursday comprising of a division bench of Justices SK Kaul and MM Sundresh said that a person engaged in other professions can be allowed to provisionally enroll with a bar council but has to clear the All India Bar Examination (AIBE) and upon clearing the test, will get six months to decide whether he or she would like to be an advocate or continue with the other job. (Bar Council of India v. Twinkle Rahul Mangonkar And Ors)
The bench said that the Bar Council of India (BCI) will have to consider whether a fresh AIBE examination needs to be conducted for those who seek to return to advocacy after getting their license suspended to take up other jobs, as they would have lost touch with the legal profession.
Facts of the case
An appeal was filed by BCI challenging the Gujarat High Court verdict where it has allowed persons with other employment, to enroll as advocates without resigning from their jobs.
The BCI had previously filed a detailed affidavit in response to a Court order dated March 15 requesting a response from the BCI.
According to the affidavit, the AIBE was a post-enrolment exam, and an advocate was not permitted to engage in any profession or job under the Rules of the Bar Council of India or the Advocates’ Act.
According to the BCI, this Rule ensured that persons in jobs did not receive benefits from the Advocates’ Welfare Fund and were not on the voter list for Bar elections.
Despite these submissions, the BCI stated that it had formed a high-level committee comprised of many senior advocates and former judges to investigate the issues and submit a report.
Contention of the Parties
The Amicus Curiae, Mr. K.V. Vishwanathan in order to balance the same had suggested that upon clearing the AIBE, a transitional period of 6 months can be given to such candidates, within which period they can submit an undertaking that they would give up their current employment and join the legal profession. The seniority of such a candidate would be considered from the date of giving of the undertaking.
Advocates, Ms. Megha Jani and Ms. Anushree Prashit Kapadia appearing on behalf of Respondent no. 1 pointed out that there was another category of lawyers, who upon being enrolled at the Bar, get their licenses suspended to take up full-time employment. This category of people are permitted to come back and join the legal profession again without being subjected to a fresh Bar examination.
Courts Observation and Judgment
The bench taking note of the submissions of the Parties remarked, “We are inclined to accept the plea of the Amicus that the BCI may adopt the aforesaid process by giving provisional enrolment to enter in a B register with the appropriate undertaking that such enrolment would not be interpreted as a right to practice in the intervening period. This act of balancing would be in accord with the doctrine of proportionality as elucidated in the previous hearings by the Ld. Amicus and would not be in contradiction to the decision in V. Sudeer case…
If a person continues to be in employment then they would have the requirement of taking the Bar examination again at the appropriate stage when they seek to give up employment and enroll themselves at the Bar. The period of six months suggested by the amicus is good enough for a person to take a call whether they want to be in employment or continue with the profession in law”.
The bench clarified that it should not be a case where a person takes the examination and continues in employment for a period of time says 10 years and thereafter seeks seniority based on the exam taken years ago.
The bench remarked, "This is an issue rightly flagged for BCI to consider. They have to look at scenarios, where a person may have a deemed suspension of license upon being appointed as public prosecutor or in judicial service. Those are categories by themselves. However, if a person takes full-time employment in most other scenarios, whether they should be called upon to take the Bar Exam again in case they continue in service is something that the BCI may debate and come back to us."
In its affidavit, the BCI had stated that it's Legal Education Committee and Advisory Board is keen to consider introducing State Level Entrance Test for admission to law colleges. BCI had also submitted that it had already earmarked about 500 institutions, which were found to be sub-standard.
The court taking note of the same has said that almost 90 percent of the government-run colleges/institutions have an acute dearth of infrastructure and faculty, many unfilled vacancies last 15-20 years, and in spite of requests or warnings, the state governments or universities are not serious in this regard. It also directed the state governments to provide appropriate security to the inspection teams of BCI, which go into different law colleges to inspect the infrastructure and other facilities of the college or the university, after receiving allegations of non-cooperation.
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