On Monday, the Supreme Court of India has issued Notice to the Bar Council of India seeking response on plea presenting challenge to the All India Bar Examination Rules 2010 framed by it which makes it mandatory for an Advocate to qualify AIBE in order to practice before Indian Courts.
The plea seeks stay on the AIBE scheduled to be held on 24th January, 2021.
The petition has been filed by a newly enrolled Advocate questioning the powers of BCI to prescribe such a post-enrollment requirement for practice. The petitioner also put out challenges the notification issued by the BCI on Dec 21st, 2020 regarding the holding of AIBE 2021 on Jan 24th, 2021 and March 13th, 2021.
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The Top Court during the hearing at first noted that challenge to the AIBE is already pending before the Court on which the petitioner's Counsel argued that the issue was whether AIBE can be held in the absence of power on the part of BCI to prescribe such an exam. The Bench agreed to it and thus sought BCI's response to the interim plea to stay AIBE 2020.
The petitioner, Parthsarthi Mahesh Saraf, who enrolled in 2019, also highlighted in the petition that as per 1973 amendment to the Advocates Act, clause (d) of sub-section (1) of Section 24 of the Advocates Act - which provided for passing of an examination held by the State Bar Council after training as a condition for enrollment - was omitted and thus BCI can't make any rules prescribing any examination as it cannot be done through a subordinate legislation without having an appropriate amendment in Advocates Act.
The petitioner mentioned two cases of Supreme Court in support of his arguments.
1. Sudheer's' Case
In Sudheer vs BCI and another 1999(3) SCC 176, the Supreme Court had quashed the Bar Council Training Rues 1995 holding that BCI cannot impose additional conditions for advocates by way of subordinate rules contravening the provisions of the Advocates Act, 1961.
2. Indian Council of Legal Aid's Case
In the case of Indian Council of Legal Aid and Advice vs BCI reported in 1995 SCC (1) 732, the Top Court held that BCI cannot make any rules under Section 49(1)(ag) of the Advocates Act, 1961, debarring the advocates on the basis of age and such rule is beyond the rule making power and therefore the same is ultra vires the Advocates Act and also against the public policy.
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