A common external exam would ensure that those who take up the cause of justice and fight for the rights of others are equipped to do so, by weeding out those whose knowledge of law is narrow, limited or non-existent.
The Supreme Court will hear arguments on March 18 on whether a larger bench ought to be constituted to decide on the legality of the All India Bar Examination (AIBE), conducted by the Bar Council of India (BCI). The AIBE has been a contentious issue, with multiple parties filing petitions against it before various courts. The petitioners insist the AIBE is an infringement on the right to practice law and even those in favour of the AIBE are unsure if the Advocates Act, 1961 allows for such an exam.
The law, as it was laid down by the Court in V Sudeer v. Bar Council of India, is that no conditions, other than those enumerated in Section 24 of the Advocates Act, can be put on a person wishing to practice law. As Section 24 does not allow for a separate examination, it seems the AIBE would not be permissible. However, the Court did recognise that some “conditions on practice” could be put in place. As to whether an examination would qualify as a condition on practice is certainly debatable.
A two-judge bench decided the matter in the Sudeer case. Since any decision on the matter now will have to reconsider that case, the apex court should constitute a larger bench to hear the matter so that the law can be laid down once and for all.
Structure of AIBE
The AIBE is a post-enrolment exam, which means a law graduate can register with the BCI and their respective state bar councils, and start practicing law without giving the exam. However, they must then pass the AIBE within two years. Even though the BCI tries to conduct the exam twice a year, postponements are the norm and the average candidate can expect to have two to three cracks at the exam.
The exam itself is in an open-book format comprising multiple-choice questions with no negative marking. The exam is a ‘qualification’ exam as opposed to a ‘selection’ exam, which means the candidates only need to obtain the minimum marks to pass. Thus, for the purposes of the exam, there is no difference between passing by one mark and scoring full marks.
Quality of law school education
The ninth edition of the AIBE was conducted on March 6, 2016 after being postponed from the original date (December 13, 2015). Many “lawyers” turned up to give the exam.
I use quotes around the word as for many candidates, being called lawyers would be a massive overstatement. Not just because there was rampant cheating at most centres. Not even because a surprising number had not bothered to carry any material for the exam. No, this is because the knowledge of law was so astonishingly low among some of the candidates. While most were somewhat knowledgeable in Civil Procedure Code (CPC) and criminal laws, there was a shocking unfamiliarity with subjects that are not explicitly and repeatedly used in everyday practise in courts, such as environmental law, arbitration and international law.
This unawareness starts to make sense when one considers that the law graduates in the country can be divided into two groups – one, who graduated from five-year law courses and two, those who did three-year law courses.
All National Law Universities offer five year courses, as do the Mumbai’s Government Law College, the Pune twins (ILS Law College and Symbiosis Law School) and Jindal Global Law School in Sonipat. Students are required to stay on campus and undergo diligent training. Attendance regulations are rarely relaxed and compulsory education of certain subjects ensures that most students graduate with a basic knowledge of most laws.
The three-year courses are rarely rigorous and the attendance regulations are more often than not ‘relaxed’. Many students work or intern alongside their studies, and often their only interaction with the college is to give exams and collect their degrees. They do of course gain work experience in the area of law they work in but the knowledge gained is usually restricted to those subject areas. Thus a person working in a civil litigation firm would have a good knowledge of the CPC and property laws but may be absolutely ignorant in subjects like international law.
Such an education can hardly compare with the five-year courses.
The need for AIBE
Every rule has an exception of course, and it would be extremely unfair to paint all three-year courses with the same brush. Many lawyers from these courses go on to become excellent litigators and are a credit to the profession. Similarly, the legal knowledge of many students from five-year law courses is barely worth the value of the paper on which their degree is printed. The quality of legal education fluctuates tremendously between institutions and the absorption of that knowledge varies among students of the same institution as well. Thus a common external exam would ensure that those who take up the cause of justice and fight for the rights of others are actually equipped to do so.
Although an open-book exam, the AIBE is not merely a test of who can look up things fastest. It requires a background knowledge of legislations and how they interlink with each other. Even for straightforward questions whose answers can be easily picked up from a legislation, it is immensely helpful to know the structure of the legislation.
The exam tests the basic knowledge of law among the candidates. It is not a difficult paper and does not require undue preparation. What it does do is weed out candidates whose knowledge of law is narrow, limited or non-existent.
Some might argue that lawyers should specialise in certain areas of law. This is indeed true but a specialisation should only come after the general areas have been studied. Practising lawyers should have a broad knowledge of all areas of law on which they can rely. The law is vast but deeply inter-connected and a good lawyer should be able to remember useful principles from any branch of law to support their case.
Utkarsh Srivastava is a lawyer based out of Bombay. He graduated in 2015 from the West Bengal National University of Juridical Sciences, Kolkata.