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IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
Nishant Khatri - Appellant
Versus
Bar Council of India - Respondent
W.P.(C) 16623 of 2022 and CM Appl. 52326 of 2022
Decided On : 06-01-2023
Non-conduct of the All India Bar Examination does not justify debarment of provisional advocates; time for AIBE is exempted during this period, ensuring continued practice rights.
Headnote:(A) Advocates Act, 1961 - All India Bar Examination Rules, 2010 - Mandatory requirement for advocates to clear AIBE for practicing law - The court addresses non-conduct of AIBE post-October 2021, reiterating that provisional enrolment should not be grounds for debarment during this period. (Paras 3, 4, 5, 12, 13)
(B) Directions issued - Petitioner shall not be debarred from practicing, and time period for AIBE examination is exempted - BCI directed to provide a schedule for future AIBE conducts. (Paras 13)
(C) The Court observed that the pandemic disrupted opportunities for advocates to take the AIBE, necessitating relief measures to ensure their right to practice law was not compromised. (Paras 5, 13)
Findings of Court:
The provisions mandating the AIBE are temporarily relaxed due to its non-conduct owing to exceptional circumstances, ensuring advocates retain their provisional enrolment.
Issues: The primary issues concern the implications of the AIBE's non-conduct on provisional advocates and the subsequent requirement of the BCI to conduct exams timely.
Ratio Decidendi: The court reasoned that not conducting the AIBE has potential ramifications on advocates' rights to practice, thus necessitating provision for their continued applicability of provisional enrolment.
Result: Petition allowed, directions issued.
| Table of Content |
|---|
| 1. impact of non-conduct of aibe on provisional enrollment. (Para 2 , 3 , 4) |
| 2. bar council resolution addressing aibe timing issues. (Para 5 , 6 , 7) |
| 3. future considerations for aibe scheduling. (Para 8) |
| 4. next steps and future hearing date. (Para 9) |
JUDGMENT
Prathiba M. Singh, J. (Oral)--This hearing has been done through hybrid mode.
2. The Petitioner - Nishant Khatri filed the present writ petition seeking directions against Respondent No.1 - Bar Council of India (hereinafter, `BCI') in view of the non-conduct of the All India Bar Examination (`AIBE'). The Petitioner's concern was that he ought not to be debarred from practising as an advocate due to the non-conduct of the AIBE.
3. It was submitted by the Petitioner that in terms of Rules 9 and 10 of the All India Bar Examination Rules, 2010 (hereinafter, `AIBE Rules, 2010') the AIBE was introduced by the BCI on 5th June, 2010. The said exam is mandatory as per Rule 9 of the AIBE Rules, 2010, which provides that no advocate can practice under Chapter VI of the Advocates Act, 1961 without clearing the AIBE. Further, the AIBE is to be cleared by an advocate who is provisionally enrolled within a period of two years from the date of provisional enrolment.
4. Reliance was placed by the Petitioner on the minutes of meeting of the General Council of BCI dated 9th August, 2020 where in the period between 24th March, 2020 till 31st March, 2021 was exempted from the applicability of Rule 9 of the AIBE Rules 2010 due to the outbreak of the pandemic. It was also submitted that the last exam was conducted only in October, 2021 and thereafter no exam has been conducted.
5. In this background, the Court vide order dated 5th December, 2022 had issued the following directions:
"10. A perusal of the above would show that it is mandatory for advocates who are provisionally enrolled to clear the AIBE. Further, as per Rules 10(1) and Rule 10(1)(a) of the AIBE Rules, 2010, such an exam is to be held at least twice in a year in such month as the BCI may prescribe.
11. The Court has also perused the statement of the BCI recorded in the aforementioned order of the Hon'ble Supreme Court dated 2nd August, 2022 which states that the syllabus would be published within 15 days from the said date and the examination would be held within a period of about three months thereafter.
12. In the present case, the admitted position is that since October 2021, AIBE has not been conducted. It is also not dispute that the AIBE is to be cleared within two years from the date of provisional enrolment. Thus, it is observed that there may be a large number of advocates whose two year provisional enrolment period may have come to an end this year. Such advocates would have not had the opportunity to avail of the four attempts to write the AIBE over two years. They also face the threat of debarment for not having cleared the AIBE in terms of Rule 9 of the AIBE Rules, 2010 - though the same was due to non conduct of the exam.
13. In view of the fact that the AIBE has not been conducted since October, 2021, the following directions are issued:
(i) The Petitioner shall not be debarred or disqualified from continuing to rely upon his provisional enrolment. The Petitioner would be entitled to appear in the Courts. This order shall continue until further orders of this Court.
(ii) In view of the non-conduct of the AIBE, Rule 9 of the AIBE, 2010 would not be operational qua such advocates who may have not taken the AIBE within the period of two years after their enrolment, due to the non conduct of AIBE.
(iii) A status report shall be filed by the BCI wherein the next date for the conduct of the AIBE shall be provided.
(iv) The BCI shall also consider having a pre-set schedule for conduct of the AIBE (For eg., First Saturday of January and July every year) so that the uncertainty can be resolved and provisionally enrolled advocates can prepare for appearing in the AIBE."
6. The status report was calle
