SC to decide whether advocate has to take test before practicing
New Delhi: The Supreme Court on Friday said that it would examine whether a law graduate has to undergo an examination either before or after enrolment as an advocate under the existing lawe, as a condition to practice law.
Framing three questions for consideration by the constitution bench on Friday, a bench of Chief Justice T.S.Thakur, Justice R. Banumathi and Justice Uday Umesh Lalit said the five judges’ constitution bench would also consider whether an advocate have to undergo a training as a condition precedent for his enrolment under the Advocate Act, 1961.
Framing the question for reference to the constitution bench, the court said one was whether there be pre-enrolment training for a law graduate before being enrolled to practise, and then should there be a pre-enrolment test before enrolment under the act to practice law.
The court said that if the larger bench answers these in the negative, then it would address the question whether there should be a post enrolment test before an advocate could actually start practising.
The issue that has been raised is whether the Bar Council of India (BCI) in exercise of its rule making powers under section 49(1)(ah) of the Advocate Act could frame rules that conflict with the provisions of the act providing for their enrolment and practice.
The court decided to refer the matter to a constitution bench while addressing the question whether right to practice law in any court in India could be regulated, monitored or conditioned by the BCI by exercising its rule making powers under section 49(1)(ah) after enrolment of an advocate under section 24.
Section 49 spells out BCI’s powers to make rules for discharging its functions under the act and section 24 provides for the persons who may be admitted as advocates on a State roll.
Sub-section (ah) of the section 49 says that BCI will provide for “the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court”.