IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 600 OF 2015

IN THE MATTER OF:

SHAMNAD BASHEER

...Petitioner
versus

UNION OF INDIA & ORS

...Respondents

REJOINDER ON BEHALF OF THE PETITIONER TO THE COUNTER
AFFIDAVIT FILED BY RESPONDENT NO.2 BAR COUNCIL OF INDIA
A.

I, Shamnad Basheer, aged 41 years, residing at Balaji Layout,
Wheeler Road Extension, Bangalore do hereby solemnly affirm
and state as under:

B.

That the original Petition filed in Public Interest seeks to bring
about a permanent body for the implementation of the Common
Law Admission Test (CLAT) in order to ensure that the CLAT
exams

are

conducted

in

a

consistently

competent,

fair,

transparent and efficient manner.
C.

That I am the Petitioner in the present case and that I am
conversant with the facts of the case and as such I am competent
to swear this affidavit.

 D.

That all the averments made by Respondent No. 2 in its Counter
Affidavit are hereby denied save as those that are expressly
admitted. Furthermore, nothing contained in the counter-affidavit
should be deemed to be admitted merely on grounds of lack of
specific denial.

Para-wise Reply on Merits:
1.

That the contents of Para 1 do not merit any reply.

2.

That the contents of Para 2 do not merit any reply.

3.

That the contents of Para 3 do not merit any reply.

4.

That the contents of Paras 4-6 comprise incorrect and erroneous
assertions of the law. Section 7 of the Advocates Act, 1961
(hereinafter the “Act”) only entitles Respondent No. 2 to “promote
legal education and to lay down standards of such education in
consultation with the Universities in India imparting such
education…”. Nowhere in the Act is Respondent No. 2 conferred
with the sole authority to regulate legal education in the country.
To the extent that there is some limited power to regulate certain
aspects of legal education that interface with the potential practice
of law, this has to necessarily be done in consultation with
Universities. In any case, this power does not specifically extend
to conceptualizing and conducting entrance examinations for the
law Universities and colleges.
Further, it is submitted that the Act was passed under Entries 77
and 78 of the Union List of the Constitution of India. These entries
deal with “77. Constitution, organization, jurisdiction and powers
of the Supreme Court (including contempt of such Court), and the

 fees taken therein; persons entitled to practice before the
Supreme Court; and 78. Constitution and Organization (including
vacations) of the High Courts except provisions as to officers and
servants of High Courts; persons entitled to practice before the
High Courts.”. These entries make no mention of legal education,
or education for that matter and are limited in their scope to that
extent. Thus, the legislative intent behind the Act is clear - it does
not seek to make BCI the regulatory authority for the purpose of
determining standards of legal education, but merely entitles it to
regulate certain aspects of such legal education in consultation
with Universities that have an impact on a candidate’s entry into
the Bar and his/her entitlement to practice before the Courts.
This should be compared and contrasted with the University
Grants Commission Act, 1956 that was passed under Entries 65
(Union agencies and institutions for— (a) professional, vocational
or technical training, including the training of police officers; or (b)
the promotion of special studies or research; or (c) scientific or
technical assistance in the investigation or detection of crime) and
66 (Co-ordination and determination of standards in institutions
for higher education or research and scientific and technical
institutions) of the Union List and Entry 25 of the Concurrent List
(Education), thereby clearly empowering and mandating the UGC
to exercise control over Universities and affiliated colleges to
prescribe standards of education. The BCI has been vested with
no such powers. It is therefore submitted that Section 7 of the
Advocates Act should be interpreted in its strict sense to merely

 enable the Bar Council to lay down some norms for legal
education in consultation with law universities, to the extent that
such norms have a significant co-relation with the potential
practice of law.
5.

That the contents of Para 7 are vague and not relevant for the
purposes of determining the matter at hand. The power of
Respondent no. 2 to visit and inspect Universities for the
purposes of granting recognition has no bearing on, and does not,
in way confer upon it the power to solely regulate admissions to
the said Universities.

6.

That the contents of Para 8 are vague and entirely irrelevant for
the purposes of determining the matter at hand.

7.

That the contents of Para 9 are an attempt to mislead the Hon’ble
Court by drawing inferences where none exist. As stated above,
Section 49 of the Act only grants to Respondent no. 2 the right to
frame Rules on the subjects mentioned therein. The said provision
does not include conduct of examinations to regulate admissions
into universities granting degrees in law within India. It is
submitted that a fundamental principle of statutory interpretation is
this: An express mention of one or more things of a class explicitly
exclude other members of said class (Expressio Unius est
Exlusion Alterius). Thus, where all others powers, i.e. reciprocal
recognition of foreign degrees, recognition of Universities granting
law degrees in India, laying down requirements for enrolment as
advocates etc. have expressly been conferred upon Respondent

 no. 2 by the legislature, the power to regulate admission and entry
through an entrance examination has deliberately been omitted
from the said list as the same was never intended to be conferred
upon Respondent no. 2. A classic case of Casus Omissus.
8.

That the contents of Para 10, 11 and 12 are vague and not
relevant for the purposes of determining the matter in question.
Section 7 clearly states that the BCI has the power only to
“promote legal education and to lay down standards of such
education in consultation with the Universities in India imparting
such education…”. The requirement to consult with Universities
cannot be bypassed through a legal education committee, no
matter how eminent the respective members of the committee
are. Further, the legal education committee comprises only of
some academics representing 3-4 Universities at best, who can
hardly substitute for a pan India consultation with “Universities” as
required by the statute. It bears noting that a significant number of
members of the legal education committee are not academicians
or representatives of any University.
In any case, the Legal Education Committee established under
the Act has not been entrusted with the power to regulate entry
and admission into law universities in India. In such a case, the
composition of the committee is not germane to deciding the
matter at hand, i.e. finding a constitutionally and legally compliant
way to institutionalize CLAT in order to make for an efficient,
competent and transparent process for regulating entry and
admission into the various NLUs.

 9.

That the contents of Para 13 are wholly disputed and denied. The
All India Bar Exam (AIBE) has been conducted in a grossly substandard and unprofessional manner, replete with repeated
delays, opacity, maladministration, questionable award of tenders
and various other skirmishes, as detailed below:
(A) Consistent History of Delays in AIBE
(i)

In the most recent edition of AIBE X, almost every stage of
the exam was subject to unprofessional and unexplained
delays, as elaborated below:
(a) The date of the examination was originally fixed by

official notification dated 3.1.2017, to be 26 th February
2017. A screenshot from the All India Bar Examination
website showing the examination date as 26.02.2017 is
annexed herewith and marked as Annexure P-1.
[Pages

to

]. However, subsequently, the date was

shifted by one full month to 26th March 2017. This
postponement was notified without any explanation or
justification. To add to the uncertainty, even this
notification stated that the date was “tentative”. A
screenshot from the All India Bar Examination website
showing the tentative examination date as 26.03.2017 is
annexed herewith and marked as Annexure P-2.
[Pages

to

]

(b) The date of registration was originally notified to be 6th

January, 2017. However, registrations did not open till

 16th January, 2017. A screenshot from the All India Bar
Examination website showing the online registration date
commencing from 16.01.2017 is annexed herewith and
marked as Annexure P-3. [Pages_____to____]. No
explanations were provided for this delay.
(c) The issuance of Admit Cards was postponed from 16th

March 2017, to 18th March 2017. No reasons were
provided for this delay.
(d) The declaration of Results was postponed from 8th
June 2017 to 15th June 2017, and was eventually
published on 12th June, 2017. A newspaper article
highlighting the delay in publication of results of AIBE is
annexed herewith and marked as Annexure P-4 [Pages
_____ to____].
(ii)

This trend can be traced back to the previous AIBE
examinations as well:
(a) AIBE IX- Examination was postponed by almost 3

months from 13th December, 2015 to 6th March 2016. An
article from Legally India website reporting the delay in
conducting the examination is annexed herewith and
marked as Annexure P-5[Pages _____ to____].
(a) . The declaration of results was postponed from 15th
April to 16th May, 2016. An article from Legally India
website reporting the delay in publication of results of
AIBE is annexed herewith and marked as Annexure
P-6[Pages _____ to____]. However, the Result was
officially declared only on 3rd June 2016, marking a

 delay of over one and half months from the original
stipulated date. An article reporting the declaration of
AIBE Results is annexed herewith and marked as
Annexure P-7[Pages _____ to____].
(b) AIBE VIII- The examination was postponed by 69
days from 15th March 2015 to 24th May 2015 . An
article from Legally India reporting the postponement
of AIBE VIII is annexed herewith and marked as
Annexure P-8[Pages _____ to____].
(c) AIBE VII- The examination was postponed from 29th
June to 27th July 2014. An article from Legally India
reporting the postponement of AIBE VII is annexed
herewith and marked as Annexure P-9[Pages _____
to____].The exam was further rescheduled and
finally conducted only on September 9, 2014. A
document showing the revised examination schedule
of AIBE VII is annexed herewith and marked as
Annexure P-10[Pages _____ to____].
(d) AIBE VI- The examination was rescheduled to 19th

January 2014 from 22nd December 2013, marking a
one-month delay. A BCI notification indicating the
change of examination dates of AIBE VI is annexed
herewith and is annexed herewith and marked as
Annexure P-11[Pages _____ to____].
(iii)

Given that candidates have to make arrangements for travel
to the select examination centres, this ambiguity and
sudden postponement leads to gross injustice to candidates
who have to travel a lot (particularly from remote areas) and

 bear

the

cost

of

repeated

rescheduling

of

travel

arrangements and professional commitments. Respondent
No. 2 has shown complete disregard for these candidates
and their futures. More egregiously, the conduct of the
exam today reeks of unpredictability and uncertainty,
causing significant hardship to many.
(iv)

Given the past conduct of the Bar Exam, it would be sheer
injustice to entrust it with the conduct of CLAT, a far more
challenging exam that requires the highest degree of
competence and professionalism in terms of setting
rigorous analytical questions on logical reasoning, maths,
legal aptitude and the like.
It is submitted that the CLAT colleges (mainly the National
Law Universities and others who rely on CLAT scores)
admit their fresh batch of students by the first week of July.
The entire CLAT process including results (and all the
various merit lists) and counselling have to be completed
well in time before July. The pattern thus far has been that
the exam is conducted on the 2nd Sunday of the month of
May. Results are declared towards the end of May and the
counselling and admissions process usually take place in
the month of June, shortly after the declaration of results.
The conduct of CLAT is extremely time sensitive, and any
delay in the examination or associated processes can lead
to the breakdown of academic cycles at these 18
participating universities.

 Given that Respondent No. 2 regularly announces delays of
several months for the AIBE, a similar culture of delay for
CLAT would be catastrophic for students and law schools.
Respondent

No.

2’s

gross

incompetence

and

unprofessionalism in the conduct of AIBE over the years are
a clear indication of what might happen to CLAT, should its
conduct be vested under the regulatory supervision of the
BCI. The Petitioner submits that the PIL was filed to redress
a highly inequitable and unjust state of affairs, where
students were subjected to a rotational CLAT conduct
system by participating NLU’s, replete with arbitrariness and
incompetence: a state of affairs that impacted their scores,
admissions and very futures. To now transfer the conduct of
CLAT to an even more egregiously negligent, callous,
unprofessional, opaque and corrupt body would be akin to
forcing thousands of hapless students to jump from the
frying pan into the fire.
(B) Abysmally Low Frequency of AIBE
(i)

Respondent No. 2 framed the All India Bar Examination
Rules within the Bar Council of India (Condition for Right to
Practice) Rules under Section 49 (1) (ah) of the Advocates
Act, 1961. The AIBE Rules is annexed herewith and marked
as Annexure P-12[Pages _____ to____]. As per Rule 10
(1) (a) of the said Rules, “the Bar Examination shall be held
at least twice a year in such month and in such places as
the Bar Council may determine from time to time”.

 (ii)

Despite the stipulation in the BCI Rules that the AIBE is
to be conducted at least two times a year, this provision
has not been complied with. Prior to 2017, Respondent
No. 2 conducted only one exam each in 3 out of 6
calendar years.

(iii)

Year

Frequency of AIBE

Number of
Exams
Held

2017

26th March 2017 (AIBE X)

One

2016

6th March 2016 (AIBE IX)

One

2015

24th May 2015 (AIBE VIII)

One

2014

7th September 2014 (AIBE VII)
19th January 2014 (AIBE VI)

Two

2013

August 25 2013 (AIBE V)

One

2012

9th December 2012 (AIBE IV)
8 January 2012 (AIBE III)

Two

2011

24th July, 2011 (AIBE II)
6th March 2011 (AIBE I)

Two

It is submitted that Respondent No.2 has been unable to
abide by the very same rules that were framed by its own
hands. To expect it to therefore conduct a far more
challenging exam such as CLAT in a professional and
competent manner is a tall order; and will amount to the
insidious infliction of a catastrophic calamity on poor
unsuspecting students.

(C) Maladministration Relating to the AIBE Exam
(i)

It is submitted that the AIBE, conducted by Respondent No.
2, has, apart from the frequent delays outlined above, been

 plagued by serious lapses, maladministration and misgovernance. These include, but are not limited to,
cancellation of exams at the very last minute in certain test
centres, inordinate delays in receiving Certificates of
Practice, and alleged opacity in the issuance of tenders.
These instances are outlined below.
a) In

2011,

several

candidates

had

to

skip

the

examinations, as their names did not figure in the list of
candidates. A news article highlighting the confusion that
prevailed for AIBE held in the year 2011 is annexed
herewith and marked as Annexure P-13[Pages _____
to____].
b) In 2012, the exam was cancelled in two centres (Jaipur

and Bhopal), as not enough question papers had been
given to these test centres. A news article showing
various inadequacies in the AIBE held in 2012 is
annexed herewith and marked as Annexure P-14
[Pages _____ to____].
c) In several test centres, the exam started late (by nearly

an hour).
d) Candidates who had taken the exam in March 2011 did

not receive their practice certificates, even after two
months of the exam. In a far worse case of delay, at
least 700 candidates who took the 2012 AIBE had not
received their certificates till March 2014. Various News
articles reporting the inordinate delay in issuance of

 practice certificate by BCI is annexed herewith and
marked as Annexure P-15 (Colly)[Pages _____
to____].
(ii)

In October 2012, during the conduct of the 4th edition of
AIBE, Respondent No. 2 was to provide printed study
materials to candidates who could then take them into the
hall (as part of the open book exam format). However, just a
week prior to the exam date, Respondent No. 2 announced
that it would not be providing the study materials A
notification from AIBE regarding AIBE-IV is annexed
herewith and marked as Annexure P-16[Pages _____
to____]. Further, in June 2013, Respondent No. 2 notified
470 candidates that they had failed the AIBE IV, despite
declaring earlier that the said candidates had passed the
exam. An article from Legally India highlighting the same is
annexed herewith and marked as Annexure P-17 [Pages
_____ to____]. Such conduct causes serious prejudice to
candidates who rely on promises made by the examining
authority, and come with devastating consequences for their
professional lives and careers.

(iii)

It is submitted that there are serious doubts about the
ethical propriety of Respondent No. 2 in awarding contracts
to certain private examination agencies. Commentators
have alleged corruption and impropriety in the tender
process concluding on June 30, 2012, in that a contract was
awarded to ITES Horizons Pvt. Ltd., despite cheaper, and

 higher quality bids from more qualified agencies. An article
from Legally India highlighting various irregularities in AIBE
is annexed herewith and marked as Annexure P-18[Pages
_____ to____]. The award to ITES was in blatant violation
of the terms of the “Call for Tenders” uploaded on the AIBE
website, wherein it was clearly mentioned that the selection
of the successful bidder would be based on past
experience, reputation, performance and infrastructure of
the agencies. A screenshot of the BCI website showing the
notice inviting tender for holding AIBE is annexed herewith
and marked as Annexure P-19[Pages _____ to____].
(iv)

Cumulatively, the abovementioned lapses surrounding the
conduct of the AIBE exams, suggests that Respondent No.
2 is ill-equipped to conduct an exam of the scale and
intensity of CLAT. It is further reiterated that given the
nature of CLAT as the only key filter that regulates
admission to the leading National Law Universities, it should
not be compromised through an incompetent and callous
administration at the hands of the BCI. Further, with CLAT
being a time sensitive exam (admissions are to take place
within a short window of only 2 months each year (May and
June)), there exists very little scope for redressing
egregious mistakes and errors. In fact, it is submitted that in
most cases where past misconduct of CLAT has left
students worse off, courts have unfortunately not been able
to deliver effective relief owing to the fait accompli of the

 short time window (during which time admissions are
completed).
(D) Opacity of Respondent No. 2 in Matters Relating to AIBE
(i)

Even since the inception of the AIBE in 2010, the exam fees
demanded from candidates has increased manifold. While
in 2010, the fee charged was Rs. 1300 /-, it sky rocketed to
Rs. 3560/- in 2017. This imposes an unduly heavy financial
burden on candidates. A Legally India article highlighting the
hike in AIBE exam fees over the years is annexed herewith
and marked as Annexure P-20[Pages____ to____].

(ii)

AIBE fees has been hiked thrice since its inception – the
first fee hike of 50% came before AIBE IV; the second hike
in fees (by 31.2%) came two years later in AIBE VI; and the
final and most recent hike (to the tune of 40%) was
implemented just before AIBE X. Further and more
worryingly, Respondent No. 2 has provided no reason
whatsoever for this significant hike. A Right to Information
request filed to query the reason for this sharp hike was
denied by Respondent No. 2 on the flimsy ground that such
a request did not amount to asking for “information”, but
only an “explanation” which is not covered under the Right
to Information Act, 2005. A Legally India article highlighting
BCI response to a RTI query seeking information regarding
the hike in bar examination fees annexed herewith and
marked as Annexure P-21[Pages____ to____].

 At best, this response showcases a worrying lack of
knowledge of the RTI; at worst, it points to a malaise of
wrong doing that is far deeper and insidious.
(iii)

It is estimated that Respondent No. 2 has earned between
INR 59 and 70 crores in fees from nearly 3,00,000 bar
exam candidates since March 2011. A Legally India article
showing RTI response in this regard is annexed herewith
and marked as Annexure P-22[Pages____ to____].

(iv)

(ii)

The sharp hike in fees has not been met with a

commensurate improvement in the quality of the exam. The
AIBE continues to be marred by delays, institutional lapses
and inefficiencies at various stages of the examination.
Worryingly, Respondent No. 2 has stopped providing study
material to the candidates reneging on its promise of
providing study material for an alleged “open book” exam.
And all of this at the last minute, after students have relied
on this promise of an open book exam and prepared
accordingly. Without such open book materials, it is unclear
as to how the Respondent could continue to charge these
exorbitant sums as exam fees. A true copy of the
Instructions to Register for AIBE which states that no study
material will be provided is annexed herewith and marked
as Annexure P-23[Pages____ to____].

 (v)

(iii)

In another troubling instance of opacity, Respondent

No. 2 has abused its power by forcing candidates to waive
their rights under the Right to Information Act, 2005. This is
an egregious abuse of power by a body that is meant to
protect the interests of the legal profession and potential
entrants to it. It demonstrates a clear propensity on the part
of Respondent No. 2 to shield itself from any form of
scrutiny. A Legally India article highlighting unreasonable
terms and conditions imposed upon examinees by BCI is
annexed

herewith

and

marked

as

Annexure

P-

24[Pages____ to____].

In light of the fact that this petition before the Hon’ble Court seeks
to

provide

competence,

professionalism,

stability,

and

predictability in the conduct of CLAT, it is submitted that
Respondent No. 2 is hardly qualified to do so.

10.

That the contents of Para 14 and Para 15 are wholly without
merit, have no basis in law and are denied. In Bar Council of India
vs Dayanand College of Law [2007 (2) SCC 202], it was noted by
this Hon’ble Court that while the BCI has authority to exercise its
powers under the Advocates Act, 1961, such as the power to
inspect universities and recognize degrees, it is not “entrusted
with direct control of legal education in the sense in which the
same is entrusted to a University”.

 Further, it should also be noted that while the Statement of
Objects and Reasons and the Preamble of other Acts that actively
regulate standards of education (viz. the University Grants
Commission Act, 1956 and the Indian Medical Council Act, 1956)
refer to the constitution of bodies for maintaining 'standards of
education', there is no such reference in the Statement of Objects
and Reasons and the Preamble of the Advocates Act.

11.

That the contents of Para 16 are disputed and denied. It has
already been established in Para 11 above that the conduct of the
AIBE by Respondent No. 2 is far from “fair and transparent”. With
such a dubious and grossly unprofessional and reckless history, it
should not be entrusted with the responsibility of conducting an
exam as prestigious and important as CLAT.

12.

That the contents of Para 17 are vague and wholly irrelevant for
the purposes of determining the matter in question. The process
of accreditation has no bearing whatsoever on the question of
institutionalizing admission to the various NLUs through a
permanent CLAT body.

13.

That the contents of Para 18 do not merit any reply.

14.

That the contents of Para 19 are disputed and denied. Contrary
to its claims in this Para and its governing regulations (detailed
above), Respondent no. 2 did not hold the exam in November-

 December 2016 and the next AIBE was held only in March 2017.
As submitted earlier, this more than amply demonstrates that
Respondent No. 2 is wholly incapable and administratively
incompetent to conduct a prestigious exam such as CLAT, where
time is of the essence.
Through its conduct of the Bar Exam, Respondent Number 2 has
demonstrated nothing more than a callous and utter disregard for
professionalism and punctuality; and a grossly cavalier attitude to
both the courts (to whom it made this commitment in its counteraffidavit) and the students who rely on these assertions and dates
indicated by the BCI, to their detriment. Further, as has already
been highlighted above, Respondent no. 2 has simply failed to
conduct the AIBE with the frequency mandated by law.
15.

That the contents of Para 20 are disputed and denied. As has
already been stated in Para 12 above, it is not the prerogative of
Respondent No. 2 (either by itself or through its Legal Education
Committee) to conduct CLAT for the purpose of regulating
admission into the participating NLUs. The NLUs are all
independent, autonomous universities and have been granted the
necessary power by their respective establishing Statutes to
regulate matters of admission. However, the rotation system of
conducting CLAT afresh each year by individual NLUs without any
permanent institutionalized set up has caused grievous errors and
lapses,

not

to

mention

sub-standard,

unprofessional

and

incompetent papers, compromising the selection procedure and
the futures of thousands of students. It is thus that the present PIL

 was filed to ensure a fair, efficient and transparent conduct of
CLAT through a permanent institutionalized body with full time
personnel with the ability and competence to set high quality
questions that test appropriately for legal aptitude and the like.
It is submitted that the observations of the Sixteenth Law
Commission of India are relevant in this regard. In its 184th
Report titled “Legal Education and Professional Training and
Proposals for amendments to the Advocates Act, 1961 and the
University Grants Commission Act, 1956”, the Law Commission
recommended as under:
“Bar Council of India can lay down minimum standards necessary
for courses for students who will come into the legal profession
but not in respect of other law courses which do not lead to a
professional career. UGC can prescribe higher standards”.
It also made a reference to an article authored by Prof. Gurdeep
Singh titled “Revamping professional legal education: Some
observations on the LL.B curriculum revised by the Bar Council of
India” which highlights the various issues that arose in the
aftermath of the Bar Council revising its LL.B. curriculum problems that could have been avoided, had there been full and
proper consultation with law faculty.
From all the above, it is more than amply clear that Respondent
No. 2’s claim to be the sole authority to regulate ALL matters
relating to legal education is entirely misplaced.
16.

That the contents of Para 21 are disputed and denied. The
reasons for the same have already been outlined in Para 9 above.

 17.

That the contents of Para 22 are disputed and denied. As already
stated earlier, Respondent no.2 does not have the authority or the
competence to conduct CLAT in a fair and transparent manner.
The Petitioner craves leave to refer to its submissions in the writ
petition (W.P. (C) no. 600 of 2015) and accordingly requests the
Hon’ble Court to direct the institutionalization of a permanent body
to oversee the professional and competent conduct of CLAT.

18.

That the contents of Para 23 are vague and denied. Respondent
no. 2 wrongly states the legal position concerning the regulation of
legal education. As already stated earlier, the various NLUs have
entered into an MoU for conducting CLAT. However, the rotation
system, where newer NLU’s conduct the CLAT exam from scratch
each year without the governing umbrella of a permanent
institution with full time personnel has severely marred the quality
of CLAT papers and rendered the process opaque, inefficient and
terribly error-ridden. As already documented in the main petition,
the way forward is to set up a permanent body will full time
personnel to conduct CLAT in a competent and professional
manner.

19.

That the contents of Para 24 do not merit any reply.

20.

That the contents of Para 25 do not merit any reply.