All India Bar Examination

THE INDIAN LAW INSTIUTE

LL.M. (Two Year Course)

Wednesday Seminar VIII

(29.09.10)

(10.00 am-12.15 pm)

All India Bar Examination[1]

Moderator : Devendra Singh

Presenter : Khushboo Anand

Disscussants :Garima Budhiraja and P.Gnana J. Flower

Rapporteur : Atiur Rahman Khan

I. Background

THE FIRST ALL INDIA BAR EXAMINATION is scheduled to be conducted on December 5, 2010.[2] In 2009, during the hearing of a matter[3] before the Supreme Court of India, the Bar Council of India[4] had come up with the idea of instituting AIBE. At present, for being enrolled as an advocate, the person has to fulfill the qualifications mentioned in section 24 of the Advocates Act, 1961, like, being a citizen of India; has completed the age of 21 years; has obtained a law degree; fulfills such other conditions as may be specified in the rules of State Bar Councils; pays the requisite stamp duty, if any and requisite fees for enrollment; and makes an application for such enrollment to the State Bar Council.[5] Twice attempt have been made by BCI to lay down additional conditions for enrollment i.e., (i) maximum age limit 45 years and (ii) compulsory training for enrollment as advocates, but both these initiatives were set aside as being ultra-vires the powers of BCI.[6] From 1961 to 1964, all law graduates in India were required to compulsorily undergo training for a period of one year and then pass an examination prescribed by BCI to get themselves enrolled as an advocate.[7]

II. Present Scenario

The AIBE is intending to test an advocate’s ability to practice the profession of law in India. This shall be mandatory for all law graduates passed out from the academic year 2009-2010 and onwards.[8] The law graduates passed out, prior to academic year 2009-2010, need not to appear in this examination. Enrollment with State Bar Council is a pre-condition for the appearance in the AIBE. The AIBE will be conducted in nine different languages.[9] The test will be a multiple choice open book test in OMR format, with 100 questions, divided into two parts, each part requiring a minimum passing mark separately as well as an aggregate passing mark and no negative marking will be there. BCI will not release any scorecard. The candidates will only be informed whether they have cleared the examination or not. A candidate may attempt the test any number of times.

Many have raised a hue and cry against the AIBE. Questioning the AIBE, nine writ petitions have been filed in different high courts in India. The State Bar Councils are of the view that the BCI had not taken the consent of the State Bar Councils and such examination is not going to improve the quality of lawyers and the exam would disadvantage this year’s law graduates from rural areas.[10] Then a petition came before the Supreme Court praying that all nine writ petitions should be clubbed and heard in the Supreme Court itself. The Supreme Court passed an order that all nine writ petitions will be clubbed and heard at Delhi High Court.[11]

III. Issues

1. Whether the decision of BCI to conduct AIBE and to regulate the rights to practice, in the absence of any statutory provision, is ultra vires of its powers?

2. Whether the classification between students passed out in the year 2009-10 and onwards and students passed out prior to academic year 2009-2010 can stand the test of reasonable classification under article 14 of the Constitution of India?

3. Whether the BCI is justified in regulating entry into the legal profession by conducting AIBE for law graduates notwithstanding the fact that it exercise control over legal education? Is it desirable to have such dual control?

Suggested Readings :-

1. Shankar, S.P, “Advocates Act 1961- Sections 34 and 35: Power of High Court”, AIR 2005 (Jour.) 142-144.
2. Lahoti, R.C, “Legal Education and Legal Profession: An Introspection”, AIR 2002 (Jour) 83-87.
3. Rafiq, Fareed Ahmed, “Professional Legal Training In India at Crossroads: A Study of Post Sudeer Scenario”, 7 Kashmir University Law Review 128-42 (2000).

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[1] Hereinafter referred as AIBE.

[2] BCI notification dated 12^th June , 2010 available at www.barcouncilofindia.org/all-india-bar-examination-rules-2010-notified.

[3] BCI v. Bonnie FOI Law College & Others, Special Leave to Appeal (Civil ) No(s) 22337/2008.

[4] Hereinafter referred as BCI.

[5] Section 24 (3) (d) (i).

[6] Indian Council of Legal Aid & Advice & Ors. v. BCI & Others, 1995 (1) SCC 732; V.Sudeer v. BCI AIR 1999 SC 1167.

[7] Section 24 (d) – “ he has undergone a course of training in law and passed an examinationn after such training both of which shall be prescribed by the State Bar Council”. The term “…passed an examination…” was deleted by Advocate Amendment Act, 1964. The section 24 (d) was omitted by Advocate Amendment Act, 1974, w.e.f. 31.1.1974.

[8] BCI amended rules of BCI Rules in respect of Rules 9, 10,11.

[9] Hindi, Telugu, Tamil, Kannada, Marathi, Bengali, Gujarati, Oriya and English.

[10] http://www.lawetalnews.com/NewsDetail.asp?newsid=1880 (visited on September 22, 2010)

[11]http://www.thehindu.com/news/national/article548343.ece (visited on September 22, 2010) , Anoop Prakash Awasthi & Ors. v. BCI (WP) (C ) No. 253/2010 heard by the Bench of S.H. Kapadia, CJI, K.S. Radhakrishnan and Swatantar Kumar,JJ

The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

THE INDIAN LAW INSTITUTE

LL.M (Two Year Course)

Wednesday Seminar VII

(22.09.10)

(10.00 am – 12.15 pm)

The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010[1]

Moderator : Mehbubul Hassan Laskar

Presenter : S. Mercy Deborah

Discussants : Abhishek Kumar Pandey & Navtika

Rapporteur : Senthiyanger

I.Background

THE BILL TO PROTECT whistleblowers has been introduced in the Lok Sabha[2] to shield those people who stand up for truth and public interest, often at great personal risk. This Bill is the result of a circuitous and protracted outcome of the Supreme Court’s strong pitch for a mechanism to protect whistleblowers. This it did while hearing a PIL on the murder of Satyendra Dubey, the Bihar-based engineer with National Highways Authority of India (NHAI) who was killed for exposing irregularities in road contracts. The pressure applied by the court led the central government to the issue of an order[3] in early 2004 authorizing the Central Vigilance Commission (CVC) to receive and act on complaints of whistleblowers and to protect their identities, pending the enactment of a law. This interim arrangement is finally set to become a law.

II.Overview of the Bill

The legislation seeks to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimisation of the person making such complaint and for matters connected therewith and incidental thereto. Under the Bill “Disclosure”[4] would mean a complaint relating to an attempt to commit or commission of an offence of corruption or wilful misuse of power or wilful misuse of discretion or criminal offence by a public servant and such disclosures shall be treated as public interest disclosure under the Bill. It lays down that such disclosure be made before the “Competent Authority”. [5] Every disclosure shall be made writing.[6] At the first instance, the competent authority makes a discreet inquiry.[7] If the disclosure requires to be investigated, it shall seek comments or explanation from the head of the department of the concerned organization, but the identity of the complainant shall not be revealed.[8] If, however, it becomes necessary to reveal the identity, the authority may reveal to the head of the organization, who shall not directly or indirectly reveal the identity.[9] If after conducting an inquiry, the facts or allegations are found to be frivolous or vexatious, competent authority shall close the matter[10] and such frivolous or vexatious complaints will attract penalties.[11] If, however, the reports confirm the allegations, then it shall recommend initiation of proceedings against the concerned public servant.[12] The authority shall not investigate a complaint made after expiry of five years from the date on which the action complained against is alleged to have taken place.[13] For the purpose of making discreet inquiry or obtaining information from the organisation concerned, the competent authority shall be authorised to take assistance of police authorities.[14]

III.Issues

1. Whether the definition of ‘disclosure’ under clause 2(d) and making of such disclosure to a single authority under clause 3(1) of the Bill defeats the very purpose of legislation?

2. Does the Bill provide for effective operational system for protecting whistleblowers and whether the provisions of the Bill will fuel activism or deter potential whistleblowers?

3. Given the fact that most of the public functions have now been taken over by the private sector, is it prudent to exclude the private sector from the purview of the Bill?

Suggested Readings-

1. Law Commision of India, 179^th Report on The Public Interest Disclosure and Protection of Informers (December 2001), available at www.lawcommissionof india.nic.in/reports/179rptp1.pdf

2. Chêne Marie, “Good Practice in Whistleblowing Protection Legislation (WPL)”, available at http://www.u4.no/helpdesk/helpdesk/query.cfm?id=207

3. Gupta Ruchi, “Comments on the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill”, available at http://bourgeoisinspirations.wordpress.com/2010/08/11/draft-comments-on-the-public-interest-disclosure-and-protection-to-persons-making-the-disclosure-bill/

4. Nayak Vankatesh, “Whistleblower Bill in India – A case of the right hand not knowing what the left hand has done”, available at http://www.c-nes.org/nycu/755.html

5. Venkatesan V., “Secrecy around Bill”, Frontline, p. 29, September 10, 2010.

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[1] Bill No. 97 of 2010. Hereinafter referred to as “Bill”.

[2] Introduced in Lok Sabha on August 26, 2010.

[3] Vide Resolution No. 89, dated April 21,2004, The Ministry of Personnel, Public Grievances and Pensions notified a resolution, called the Public Interest Disclosure and Protection of Informers’ (PIDPI) resolution.

[4] Cl. 2(d).

[5] Cl. 3(1).

[6] Cl. 3(4).

[7] Cl. 4(2).

[8] Cl. 4(3).

[9] Cl. 4(4) and 4(5).

[10] Cl. 4(6).

[11] Cl. 16.

[12] Cl. 4(7) (i).

[13] Cl. 5(3).

[14] Cl. 9.