Bar Council of India
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Powers, jurisdiction of BCI
SC: Can BCI hold bar exam?
The Times of India, Mar 02 2016
Dhananjay Mahapatra
The Supreme Court questioned the Bar Council of India’s authority to conduct the All India Bar Examination (AIBE), which a law graduate has to clear to be eligible to practise in a court.
A bench of Chief Justice T S Thakur and Justice U U Lalit asked BCI whether it had statutory backing to con duct the examination. “A committee appointed by the SC had recommended amendments to the Advocates Act before conducting such an examination. But you (BCI) went ahead with the AIBE merely on the basis of a resolution,” it said.
“You can make rules and regulations to stop malpractices by advocates. But to make clearing of an examination mandatory for a law graduate to be able to practise is like negating a lawyer’s right to appear in court?” the bench asked. The bench asked BCI’s counsel Ardhendumauli Prasad to come prepared to answer these fundamental questions.
“You are a body which is regulating advocates and yet you have no answers. Are you a law unto yourself ?” it asked.
The bench clarified that it was not against holding the examination per se. “But without an amendment to the Act, can you hold the ex amination?” it asked.
The Law Commission of India, in its 184th report to the government in 2002, had recommended amendment of the UGC Act for setting up a ‘Legal Education Committee’ and amendment of the Advocates Act to set up a similar committee by the BCI.
The commission had recommended that “a law graduate shall get training from advocates having 10 years experience in courts and should also qualify bar exam before being allowed to practice”. However, the BCI, under the chairmanship of then solicitor general Gopal Subramaniam, passed a resolution to conduct AIBE and went ahead with it from 2010.
SC, 2023\ Yes, it has the power to conduct the bar exam
February 11, 2023: The Times of India
New Delhi : The Supreme Court affirmed the powers of the Bar Council of India to hold the All India Bar Examination (AIBE), a test that a lawyer has to qualify to practice law in courts of the country.
“These are adequate powers to Bar Council of India (BCI) under the said act (Advocates Act) to provide for such norms and rules. The effect would be that it is left to the BCI as to what stage the AIBE is to be held — pre or post enrolment,” said a five-judge Constitution bench comprising Justice SK Kaul, Justice Sanjiv Khanna, Justice AS Oka, Justice Vikram Nath and Justice JK Maheshwari.
The order came on a petition which examined several issues concerning the AIBE, including at what stage can the examination be prescribed by the Bar Council of India under the Advocates Act, 1961. The bench had reserved its verdict in September 2022 after hearing arguments in the matter.
AGENCIES
Resolutions of BCI
‘Lawyers shouldn’t appear before judges they seek to impeach’
BCI: Lawyer-MPs mustn’t appear before judge facing impeachment, April 1, 2018: The Times of India
Move At A Time When Oppn Plans To Bring Motion In RS Against CJI
The Bar Council of India (BCI) has sought debarment of lawyer-MPs from appearing before judges of the Supreme Court and high courts, whose impeachment they seek.
In a resolution passed by the general council meeting of BCI, the apex body regulating legal profession, said MPs and MLAs could not be banned from practising law but they should be restrained from appearing before a judge whose removal they seek.
“The BCI has come to a final conclusion that we cannot stop or ban MPs from practising in the courts, but there is an exception to it. The lawyer-MPs or MLAs, if they start any motion of impeachment or removal proceedings against any high court or Supreme Court judge, will not be allowed to practise in that particular court. This is the majority view of the council,” BCI chairman Manan Kumar Mishra said.
The decision comes at a time when the opposition is planning to bring a motion in the Rajya Sabha for removal of Chief Justice of India Dipak Misra amid the likelihood of senior lawyers P Chidambaram, Kapil Sibal, Abhishek Manu Singhvi, Vivek Tankha (all Congress), KTS Tulsi (nominated by and aligned with Congress) and Majeed Memon (NCP) backing the move.
The decision was taken on the basis of the recommendation of a sub-committee of BCI set up to look into the petition of BJP member Ashwini Upadhyay that sitting MPs and MLAs should be barred from practising in courts..
The committee submitted a report saying they should not be restrained from practising as lawyers but recommended that they should not be allowed to appear before a judge who is facing removal under Judges (Inquiry) Act, 1968.
BCI is also likely to take the same stand before the Supreme Court which asked for its opinion on barring MPs and MLAs from practising law.
Citing Rule 49 of Bar Council of India, the regulatory body for lawyers, Upadhyay told the court that no salaried person could practise law even if he had professional qualification and was registered as an advocate with the Bar Council concerned. “There is absolutely no doubt that an MP receives a salary from the government as per Article 106 of the Constitution,” he had said in his plea in the SC.
Citing a 1966 judgement, he said the SC had rejected a doctor's petition seeking permission to practise as an advocate. The petitioner said it would be a clear violation of rules and professional ethics for an advocate to take salary and perquisites, including official residence, from the government as an MP and at the same time take fee from private litigants and appear against the government. "It would amount to professional misconduct," he said.
The Bar Council’s decision was taken on the basis of the recommendation of a sub-committee of the council set up to look into the petition of BJP member Ashwini Upadhyay that sitting MPs and MLAs should be barred from practising in courts
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