Challenging the judgment of the Gujarat High Court, the Bar Council of India (BCI) said persons with other employment (full-time or part-time) are allowed to enroll as advocates without resigning from their jobs and the Supreme Court on Tuesday observed that it is high time the BCI can introspect on the mechanism of conducting bar exams as well as the quality of examinations.
Regarding the existing regulation for entry into the legal profession, Justice Sanjay Kishan Kaul and Justice M.M. Sundaresh expressed concern that it is prima facie inclined to make recommendations for improving the system at the entre-level. To keep this in view, the Bench appointed Amicus Curiae, Senior Advocate, Shri K.V. Suggested this to Viswanathan.
“Prima facie, I want to say something. I also want to say something on the responsibility of the Bar Council to conduct proper examination this time and also look into how to improve the system at the entry-level, make recommendations on it, some Make a suggestion.”
Shri Viswanathan indicated that the Bench vide date 03.12.2021 had framed the issue, which was said examined. He said that he also has some views on the issue.
“I also have some views on this matter. My view is that by precedent, the BCI should consider the power to regulate admissions. This last passage 33 says that it should be acted upon even without selection. Because it (Sanad) is a very valuable document.”
Para 33 of the impugned order of the High Court reads as follows –
“Rule 1 and 2 of the Bar Council of Gujarat Rules, read respectively, intending to ascertain whether a person may be in either full or part-time service or employment. A person who is engaged in any trade, business, or profession who is qualified to be admitted as an advocate, shall be admitted as an advocate or not however, the certificate of enrollment of such person shall be withheld with the Bar Council. and shall remain with the Council until the person concerned declares that the circumstances referred to in rule 2 have now ceased to exist and he has resumed his practice.”
Referring to the High Court order, Mr. Viswanathan suggested that a mechanism should be devised where people coming from employment are not enrolled and given certificates initially, but they are required qualify to write the examination, should be noted down on register and also the result of the enrollment test should be followed. This will also ensure that they don’t get seniority and other enrollment benefits until they clear the Bar Examination.
“You can think of a mechanism where they are not enrolled and given a certificate but placed on a register that qualifies them to write the exam and then enroll them. The advantage of seniority which is not assured to a nominee is because the Sanad is given to serious practitioner, who is the incumbent.”
Mr. Viswanathan cited the Harish Uppal decision, in which the Supreme Court magnified the power of the BCI and the nature of the legal profession, asserting that the profession should be more comprehensive, it would every time affect the power of the council.
“Every single person in our society is going through employment so as a liberal profession we need to welcome people from many walks of life but, to say that he will be enrolled and then he will suspend the exam, will affect his power.”
For this, he suggested that a person coming from employment should be allowed to enroll in the bar only after passing the written test once and after a rigorous oral examination.”
“When he has qualified for enrollment, he should not be placed on the Enrollment Register. When he qualifies for the examination he should be placed in the Enrollment Register. Those who come by employment must undergo a rigorous viva It should also be taken into account whether there is a separate register where they are not enrolled and then they will be subjected to strict viva.”
Noting that he has no right to doubt the competence of a person coming from employment, Mr. Viswanathan cited the example of Justice Robert H. Jackson, who, despite not being a law graduate, served in the U.S. Became a judge of the Supreme Court.
“You know, Justice Jackson was not only a lawyer and a law graduate, but he also became a US Supreme Court judge, prosecutor at the Nuremberg trial.”
Mr. Viswanathan insisted on his suggestion to conduct an oral examination.
“They should also suggest viva. Those coming through employment should be put through some screening, one that comes through a college with compulsory internships, after attending a moot or There is the benefit of appearing in the direct examination. A lawyer’s office where they imbibe the traditions which are the ethos of the profession. There should be a committee of BCI which will look into this and suggest a better mechanism.”
Advocate, S.N. Bhat, appearing for the BCI, opposed the suggestion and said such suggestions were beyond the scope of the present investigation.
The Bench was of the view that when BCI claims its rights, it is necessary to take stock of its shortcomings as well. The problem of fast-growing law schools and the quality of education imparted should be examined.
The headmaster of Andhra Pradesh will come and stay in Chennai; He will receive the money and collect the application. The degree will be awarded after 3 years. It is a process of completely diluting the quality. A person gets a law degree without attending classes. There is a need for more rigorous scrutiny of law schools and more serious admission criteria.
About bar examination, the Court observed that, unlike similar examinations, it does not provide for negative marking, which has a bearing on the quality of people entering the profession.
“You have an objective test. Did you know that 99% of such exams have negative markings? You don’t have it. Don’t reduce the quality. Look at Chartered Accountancy, they control admissions. Must control determine quality. Quality cannot be ‘many to take’.”
It also suggested Mr. Bhat read some question papers to check the quality of the bar exam.
“Please go through some question papers and understand, you will understand. How the exam is conducted.”
The next hearing of the case is to be held on February 22, 2022.