OVERVIEW
Parthsarthi Mahesh Saraf, an advocate has filed a writ petition before the Supreme Court which challenges the All India Bar Examination Rules 2010. These rules framed by the Bar Council of India direct that an advocate has to qualify the All India Bar Examination (AIBE) for practicing law after enrollment.
The notice regarding holding of AIBE 2021 on 24th January and 13th March has also been challenged.
Justice AM Khanwilkar will head the Bench to consider admission of petition on 18th January.
WHAT ARE THE ISSUES?
The grounds of challenge are based on issue whether the BCI has authority to lay down qualification of a pre-enrollment or post-enrollment as a requirement to practice has been referred to the Constitution Bench by a bench of three judges in 2016. This is still pending.
In the case of V Sudheer vs. BCI and another, Supreme Court held that BCI caanot put conditions for advocates in form of subordinate rules which disagree with provisions of Advocates Act, 1961.
In the case of Indian Council of Legal Aid and advice vs BCI, Supreme Court held that BCI cannot make any rules under Section 49(1) (ag) of the Advocates Act, 1961.
The All India Bar Examination Rules 2010 are in contravention to these judgments.
Reports of the High Powered Committee have been brought to discussion by petitioner. The recommendations of this committee which was constituted by the Supreme Court have been violated by BCI.
WHAT’S HAPPENING NOW?
Since the Bar Council of India proposed to go ahead with the condition, despite opposition from law students, this may lead to more challenges as right to practice law has been identified as a fundamental right for students holding a degree in law.
The petitioner has also challenged the 1973 amendment to Advocates Act. The amendment removed Section 24(1) (d) from the Act. This action was called unreasonable, as it omitted requirement of mandatory training before enrollment.
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