V. SUDEER ETC. v. BAR COUNCIL OF INDIA AND ANOTHER

A form and it should include problem method, moot courts, mock trials and other aspects and make them compulsory.

13. (i) Participation in moot courts, mock trials, and debates must be made compulsory and marks awarded, (ii) Practical train- ing in drafting pleadings, contracts can be developed in the B last year of the study, and (iii) Students' visits at various levels to the Courts must be made compulsory so as to provide a greater exposure.

Xxx xxx xxx c 15. Entrance into the Bar after 12 months or 18 months of Apprenticeship with Entry Examination. For obtaining the Licence/Sanad from State Bar Councils it must be prescribed that one should secure at least 50 per cent or 60 per cent marks at the Bar Council Examination. D

16. So far as the training under a Senior Lawyer during the period of one year or 18 months of apprenticeship, the Act or the Rules must stipulate that the senior must have at least 10 or 15 years' standing at the District Court/High Court and the student's diary must reflect his attendance for three months in the grass root level in a civil court and for three months in a Magistrate's court and at least six months in a district court. The Advocate in whose office he works must also certify that the student is fit to enter the .Bar. Unless these formalities are completed, the student should not be permitted to sit for the Bar Council Examination.

Xxx zxx xxx"

It is true that these suggestions of the High Power Committee clearly highlighted the crying need for improving the standards of legal education and the requirements for new entrants to the legal profession of being equipped with adequate professional skill and expertise. There also cannot be any dispute on this aspect. However, as the saying goes "a right thing must be done in the rig~t manner". We appreciate the laudable object with ><- which the Bar Council of India has framed the impugned rules for provid- H ing training to the young entrants to the-profession by laying down details

V. SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.) 1089

as to how they should get appropriate training during their formative years A '' . -y. . at the Bar. Unfortunately, for the Bar Council of India that right thing has not been done in the right manner. We equally share the anxiety of the Bar Council of India for evolving suitable methods for improving the standards of legal education and legal profession. The aforesaid recommendations made by the High Power Committee could have been put into practice by following appropriate methods and adopting appropriate modalities by the B _.,. Bar Council of India. Unfortunately, the attempt made by t)i.e Bar Council of. India by enacting the impugned rules has resulted into firing at the wrong end though backed up by a very laudable purpose. We may in this connection usefully refer to what the High. Power Committee itself ob- served at page 30 of the Report in connection with "Entrance into the Bar c after 12 months or 18 months of Apprenticeship with Entry Examination :

"Section 28(2) (b) of the Advocates Act, 1961 as it stood in 1961, empowered the State Bar Councils to make Rules for practical training in Law Courts and for a Bar Council Examination. In .. exercise thereof Rules were framed by Bar Councils in the States D prescribing the training and Bar Council Examination. Unfor- ,. lunately the same was omitted later on in the Act by amendment )(

and this has been the second major factor responsible for the deterio.ration of standards in the legal profession. E Now that the Bar Council of India is wanting the reintroduction of Section 28(2)(b) by Parliament for training the Law Graduates for a period and for conducting the Bar Council Examination, the Central Government must soon re-enact the provision. But the new

.. section must say that the method of training and the Examination must be such as may be prescribed by the Chief Justice of India F y after. considering the views of the Bar Council of India. As this matter pertains to entry into the legal profession for practice in Courts, the final authority in this behalf must be with the Chief Justice of India but after obtaining the views of the Bar Council of India. G

- So far as the percentage of marks to be obtained for purposes of receiving a licence/sanad from the State Bar Councils, it must be prescribed that one should secure at least 50 per cent or 60 per cent marks at the Bar Council examination. H

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A So far the training under a senior Lawyer during the period of one year or 18 months of apprenticeship, the Act or Rules must -'<, stipulate that the senior must have at least 10 or 15 years' standing at a District Court/High Court and that the student's diary must reflect his attendance for three months in the grassroot level in a ·.- Civil Court and for three months in a Magistrate's Court and at B least six months in a District Court/High Court. The Advocate in whose office he works must also certify that the student is fit to ..._J -1 enter the Bar. Unless these formalities are completed, the student should not be permitted to sit for the Bar Council Examination above-mentioned. c These observations of the High Power Committee clearly indicate that it was the stand of the representative of the Bar Council of India before them that Section 28(2)(b) which was earlier on the statute book and was deleted by the Parliament, was required to be reintroduced. In other words, it was felt by the Bar Council of India itself before the High Power Committee that for providing pre-enrolment training to prospective advocates relevant • amendments to the Act were required to be effected. It is easy to visualise ;. )( that appropriate amendments in Sections 7 and 24(1) would have clothed the Bar Council of India with appropriate power of prescribing such pre-enrolment training for prospective entrants at the Bar. That would have provided appropriate statutory peg on which the appropriate rule could have been framed and hanged. It is also necessary to note in this connection that merely leaving the question of providing pre- enrolment training and examination to only the State Bar councils may create difficul- ties in the working of the All India Statute. It goes without saying that as an enrolled advocate is entitled to practise in any court in Irtdia, common ~

standard of professional expertise and efficient uniform legal training " would be a must for all advocates enrolled under the Act. In these circumstances, appropriate statutory power has to be entrusted to the Bar Council of India so that it can monitor the enrolment exercise undertaken by the State Bar Council concerned in a uniform manner. It is possible to visualise that if power to prescribe pre-enrolment training and examination

H is conferred only on the State Bar Councils, then it may happen that one State Bar Council may impose such pre-enrolment training while another Bar Council may not and then it would be easy for the prospective p_rofessional who has got requisite law degree to get enrolment as the -

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advocate from the State Bar Council which has not imposed such pre-en- A rolment training and having got the enrolment he may start practice in any other Court in India being legally entitled to practise as per the Act. To avoid such an incongruous situation which may result in legal evasion of the laudable concept of pre-enrolment training, it is absolutely necessary to entrust the Bar Council of India with appropriate B statutory power to enable it to prescribe and provide for all India basis pre- enrolment training· of advocates as well as requisite appren- ticeship to make them efficient and <;ell informed officers of the Court so as to achieve better administration of justice. We, therefore, strong- ly recommeno appropriate amendments to. be made in the Act in this connection. c We may also mention that till the Parliament steps in to make suitable statutory amendments in the Act for providing pre- enrolment training to prospective advocates seeking enrolment under the Act, the Bar Council of India by way of an interim measure can also consider the feasibility of making suitable rules providing for in-practice training to be made available to enrolled advocates. Such an exercise may then not fall foul on the touchstone of Section 49(1)(ah). The impugned rules can be suitably re-enacted by deleting the condition of pre-enrolment training to advocates and instead of treating them to be a hybrid class of trainee advocates with limited right of audience in courts, may provide in-prac- tice training to already enrolled advocates atleast for the first year of their practice as professionals. Such rules can also provide for ap- propriate stipend to be paid to them by their guides, if during that period such enrolled junior advocates are shown to have no independent source of income. Then in the light of Section 17(2) of the Act such newly enrolled advocates who are required to undergo in- practice training for first one year of their entry in the profession can legitimately fall in the category of 'other advocates' apart from senior advocates as contemplated by that provision. G We may also mention that all learned counsel for the petitioners and the appellant, Bar Council of Maharashtra readily agreed to framing of such a rule by the Bar Council of India. This would remove the infirmity in the impugned rules in so far as they tried to create an entirely new and truncated class of trainee advocates who can only ask for adjournment and H

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A may mention the matters in the courts. It would make them full-fledged advocates entitled to practise law with full vigour in the very first year of X ~- their entry in the profession if they are entrusted with the task of arguing matters either by their seniors or by their guides or by their clients who may impose confidence in them. This would also avoid unnecessary com- B plications of deemed seniority and subsequent retrospective grant of seniority on successful completion of training. This will also guarantee them proper training in the chamber of senior advocates as their guides. Suc- cessful completion of training by advocates who are new entrants to the profession of law and the corresponding obligation of their guides would make them liable to disciplinary action by the State Bar Councils on the ground of misconduct if they do not discharge their obligations either as stipendiary or non-stipendiary junior advocates on the one hand and their guides on the other. As they would be full-fledged advocates the discipli- nary jurisdiction of the State Bar Council can also get effectively attracted in connection with their alleged misconduct if any. This type of in-practice training would remove all the unnecessary hardship and can be well sustained under the statutory scheme of the Act and the rule making power of the Bar Council of India. We recommend the Bar Council of India to look into this aspect for the benefit of legal profession as a whole so that the void that will be created by our striking down of the impugned rules and till future statutory amendment, if any, is carried out by the Parliament as recommended by us in this judgment, can be effectively filled in by exercise of rule making power by the Bar Council of India, as aforesaid.

p Before parting with this aspect of the matter, we may also mention that in the present proceedings at an earlier stage a bench of this court which was then seized of this matter after listening to arguments of the parties for some time had observed that the Legal Education Committee and the Bar Council of India should once again consider the recommen- dations of the Hon'ble Three Judges Committee, the Law Ministers' Con- G ference and the recommendations made in the Fourteenth Law Commission Report at pages 548 to 550. The Court also gave appropriate suggestior.s. The said suggestions have been brought on the record of this .case by way of copy of a letter addressed by advocate Shri Sanjeev Sachdeva dated 24th September, 1977 to the Chairman, Bar Council of H India. The said suggestions read as under :-

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A case may be. It also fell from their lordships that the Training could be under the supervision of the respective High Courts of the State and the State Bar Councils.

It also fell from their Lordships that the training need not be restricted to merely attending to the Chamber but may also include attending to the court under the supervision of the concerned Court staff."

It is also to be considered whether post enrolment training for one year or less is at all required for those entrants to the profession who have already worked as solicitor's article trainees for a number of years before they apply for being enrolled as advocates. The nature of the training which they have already undertaken while working in the firms of solicitors may pose the question whether any duplication of training or any additional training is required for them for entering the legal profession as advo- cates. Another aspect which requires consideration by the Bar Council D of India is as to whether the corporate lawyers meaning those who have • already acquired sufficient legal training while working in the corporate offices as law officers should be subjected to such post enrolment 'J training either wholly or even partially. The Bar Council of India may do well to consider all these relevant aspects before taking any decision on this vexed question.

We hope and trust that at least now the Bar Council of Jndia may do well to look into these suggestions as wdl as the observations made by us in the present judgment for salvaging the situation for the entire legal profession in India and for putting young entrants at the bar on right track so that after appropriate in-practice training which they get from senior .. advocates and their guides they can turn out to be efficient advocates for serving the suffering humanity having legal problems to be redressed through them and for helping the cause of justice more effectively.

G [Before concluding these proceedings, we must mention that it would be necessary to direct that the present judgment will operate only prospec- tively to avoid unnecessary confusion and complications. It is, therefore, made clear that because of the quashing of the impugned rules, only applicants who apply for the first time for enrolment after the date of the H present judgment, will not have to undergo pre-enrolment training. How- - ·.

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_.,/'- ever, those applicants who have already applied for such enrolment during I. the time the impugned rules were in operation and have completed their i pre- enrolment training or are in the process of completion of their training and have still not been emailed will not get the benefit of the present judgment.] B A copy of this judgment is directed to be sent to the Chairman, Law • ). Commission of India, Secretary, Department of Law and Justice, Govern- ment of India for considering what appropriate steps can be taken in this connection.

Ia the result, these writ petitions are allowed. The impugned rules c are struck down. Appeal arising out of the S.L.P. filed by the Bar Council of Maharashtra & Goa is allowed. The impugned judgment of the High Court is set aside. The writ petition filed by the Bar Council of Maharashtra & Goa is accordingly, allowed. The appeal filed by the Bar Council of India arising out of SLP (C)No.12989 of 1998 is dismissed on D the ground that the question regarding retrospective effect of the impugned rules will not survive as the Rules .themselves are struck down. The final decision of the High Court allowing the writ petition of the respondent is sustained on the aforesaid ground. There will be no order as to costs in all these cases. E After this judgment was pronounced on 12th March, 1999 and before it could be signed by both of us, at the request of learned counsel for the parties, this matter was fixed today for further directions in connection with the retrospective operation of this· judgment as mentioned in the last .... paragraph of page 79. The said paragraph put in bracket after hearing the parties, will stand substituted as under : " "Before concluding these proceedings, we must mention that it would be necessary to direct that the present judgment will operate only prospec- tively to avoid unnecessary confusion and complications. It is clarified that this judgment will have no retrospective effect in the sense that it will not apply to those applicants for enrolment who have earlier applied for enrolment and have successfully completed their pre-enrolment training as ~ per the impugned rules. However, all those who apply for enrolment after this judgment will not have to undergo pre- enrolment training. This will be irrespective of the fact whether they had earlier applied for enrolment H

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A and have not completed their pre-enrolment training under the impugned x_' rules till the date of this judgment or whether they had not earlier applied for enrolment despite getting their law degrees prior to the date of this judgment."

S.M. Petitions and appeal allowed. C.A. No. 1467/99 dismissed.