The petition has been filed by Parthsarthi Mahesh Saraf, who enrolled in 2019 as a lawyer. The petition filed by Mr. Saraf questions the authority of the BCI to prescribe such a post-enrollment requirement for practice. The petitioner also challenged the notification issued by the Bar Council of India on December 21’ 2021 regarding the holding of AIBE 2021 on January 24’ 2021 and March 13’ 2021.
The issue which has been highlighted in the petition is whether the Bar Council of India has the power to prescribe qualification of a pre-enrollment or post-enrollment exam as a condition to practice has been referred to the Constitution Bench by a three-judge bench on March 18, 2016 (SLP) 22337/2008). The reference is still pending.
The petition in the present case was filed through Advocate V K Biju, which states that in the case of V Sudheer v. BCI and another, 1999 (3) SCC 176, the Supreme Court quashed the Bar Council Training Rues, 1995 holding that BCI can not impose additional conditions for advocates by way of subordinate rules contravening the provisions of the Advocates Act, 1961.
It was argued by the petitioner that the AIBE Rules, 2010 are against the dictum in the above-cited precedents.
It was 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 provides for the passing of an examination held by the State Bar Council after training as a condition for enrollment was omitted.
After such Amendment, the Bar Council of India lacks statutory power to lay down additional conditions for enrollment and practice, over and above those stated in the Advocates Act.
The main arguments which were put up by the petitioner in the court were:
- After the amendment of 1973 by which clause (d) of subsection (1) of Section 24 was omitted as this was the only provision providing compulsory training and examination.
- After omitting the above section, BCI cannot make any rules prescribing any examination as it cannot be done through subordinate legislation without having an appropriate amendment in Advocates Act, as held in Sudheers’ case.
- The BCI is bound to follow, at least consider the recommendations of both the High Power Committees headed by the Judges of the Supreme Court and the direction of the Supreme Court.
- It is also not possible in view of the decision of the Supreme Court in the case of the Indian Council of Legal Aid.
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