Supreme Court of India & V.Sudeer vs Bar Council Of India - Law Assignment Help

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Leave granted in the Special Leave Petitions. 

These Writ Petitions under Article 32 of the Constitution of India as well as the two special leave petitions being S.L.P.(C) Nos.13755 of 1996 and 12989 of 1998 moved by the Bar Council of Maharashtra & Goa and the Bar Council of India respectively raise a common question for our consideration, namely, whether the Bar Council of India Training Rules, 1995 (for short `the Rules) as amended by the Resolution of the Bar Council of India in its meeting dated 19th July, 1998 relating to training to entrants of legal profession are within the competence of the Bar Council of India or are ultra vires its rule making powers under the Advocates Act, 1961 (for short `the Act) and in the alternative whether these Rules are unreasonable and arbitrary and hence violative of Article 14 of the Constitution of India. 

The writ petitioners, who have successfully completed their legal education by getting requisite Law degrees from the Universities concerned have contended before us in these writ petitions that their right to practise Law as made available under the relevant provisions of the Act is being arbitrarily denied by the impugned rules framed by the Bar Council of India and, therefore, their fundamental right under Article 19(1)(g) of the Constitution of India is being violated.

That the said Rules do not impose any reasonable restrictions on the exercise of their fundamental right. It is also contended that in any case, the Rules are so framed as to be totally unworkable and are highly unreasonable and discriminatory in character and hence they offend Article 14 of the Constitution of India also. The civil appeal arising out of the SLP by the Bar Council of Maharashtra & Goa brings in challenge the decision of the Bombay High Court which upheld the impugned rules and dismissed the writ petition filed by it and that is how the State Bar Council is before us. Its contention is on the same .

lines as canvassed by learned counsel appearing for the writ petitioners. While civil appeal arising out of SLP (C )No.12989 of 1998 filed by the Bar Council of India, on the other hand, brings in challenge the Judgment and Order rendered by the learned Single Judge of Punjab & Haryana High Court, who took the view in favour of the original writ petitioner - Respondent herein, that the impugned rules would not apply to the writ petitioner who had obtained his Law degree in 1981 as the Rules were purely prospective in character.

It is, therefore, obvious that all these matters raise a common question regarding legality and validity of the impugned rules. If the Rules are upheld, then only further question whether they are prospective in nature or not would survive. This Court has treated the Writ Petition (Civil) No.398 of 1996 as the leading petition and, therefore, we shall also refer to the pleadings of the parties and the relevant documents filed therein in the latter part of this judgment. By order dated 16th September, 1997, a three Judge Bench of this Court, presided over by S.C.Agrawal, J., appointed Shri Joseph Vellapally, learned senior advocate as amicus curiae to assist the Court on behalf of the petitioner.

All other petitioners in person were permitted to submit their written submissions and the oral arguments were permitted to be submitted on behalf of all of them by learned amicus curiae senior advocate. We have to place on record our high sense of appreciation for the pains taken by amicus curiae Senior Advocate, Shri Joseph Vellapally, who has been good enough to look into all the relevant aspects of the matter and has placed his oral and written submissions in this connection.

By order dated 21st February, 1997, another two Judge Bench of this Court, while treating writ petition (Civil) No.398 of 1996 as a leading petition, directed that other petitions that are pending in the High Court or which may be filed thereafter shall remain stayed till further orders of this Court. The parties have exchanged relevant pleadings which are all brought on record supported by documents on which they rely.

Indian Kanoon - 

V.Sudeer vs Bar Council Of India & Anr on 15 March, 1999 

provisions thereof do not entitle the Bar Council of India to frame such impugned rules prescribing a pre-condition before enrolment of an applicant as an advocate under the Act by requiring him to undergo pre-enrolment training and apprenticeship as laid down under the impugned rules. It was also submitted that Section 24 sub-section (3)(d) of the Act also was not available to the Bar Council of India to frame such Rules. As a sequel, it was submitted that rule making power of the Bar Council of India as laid down by Section 49 could not be pressed in service by it in support of the impugned rules. 

On the other hand, learned counsel in writ petition No.425 of 1998, submitted that even assuming that the impugned rules fall within the rule making power of the Bar Council of India, the Rules framed are so obnoxious, arbitrary, unreasonable and unworkable that they violate the fundamental right of the petitioners under Article 14 of the Constitution of India in any case.

The appeal arising from SLP No.12989 of 1998 filed by the Bar Council of India, raising the question of retrospective effect of the Rules in question projected an additional contention, which may not survive if the Rules are held to be ultra vires the rule making power of the Bar Council of India. In support of the contentions raised on behalf of the petitioners by the learned counsel, reliance was placed on a three Judge Bench judgment of this Court in Indian Council of Legal Aid & Advice & Ors. vs. Bar Council of India & Anr., 1995 (1) SCC 732, while Shri Rao, learned senior counsel for the Bar Council of India, submitted on the other hand, that the said decision while interpreting the provisions of Section 49(1)(ah) of the Act was rendered per incuriam as it had not noticed the decision of the Constitution Bench of this Court in re: Lily Isabel Thomas, 1964 (6) SCR 229, as well as the express provisions of Section 24(3)(d) of the Act. Mr. Rao submitted that the impugned rules were legal and valid and were properly framed under Section 7 read with Section 24(3)(d) and Section 49(1) and (2) of the Act. 

m) as a Bar Council constituted under Section 3; and State roll is defined in clause (n) as a roll of advocates prepared and maintained by a State Bar Council under Section 17. When we turn to Section 17, we find that it is in Chapter III of the Act dealing with admission and enrolment of advocates.

Section 16, which precedes Section 17, deals with Senior and other Advocates and lays down in sub-section (1) thereof that : There shall be two classes of advocates, namely, senior advocates and other advocates and then follows Section 17, sub-section (1) which provides that : Every State Bar Council shall prepare and maintain a roll of advocates. Sub-section (2) reads thereof as under :- Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocate.

Persons who may be admitted as advocates on a State roll. - (1) Subject to the provisions of this Act, and the Rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely :- (a) he is a citizen of India: Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise Law in that other country; (b) he has completed the age of twenty-one years; (c) he has obtained a degree in Law - (i) before the [12th day of March, 1967], from any University in the territory of India; or (ii) before the 15th day of August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or [(iii) after the 12th day of March, 1967, save as provided in sub-clause (iiia), after undergoing a three-year course of study in Law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or (iii-a) after undergoing a course of study in Law, the duration of which is not less than two academic years commencing from the academic year 1967-68, or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or] [(iv) in any other case, from any University outside the territory of India, if the degree is recognised for the purposes of this Act by the Bar Council of India; or] [he is a barrister and is called to the Bar on or before the 31st day of December, 1976;

[or has passed the articled clerks examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court;] or has obtained such other foreign qualification in Law as is recognised by the Bar Council of India for the purpose of admission as an advocate under this Act]; (d)[ xx xx xx] (e) he fulfils such other conditions as may be specified in the Rules made by the State Bar Council under this Chapter; [(f) he has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council of [six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council]: Provided that where such person is a member of the Scheduled Castes or the Scheduled Tribes and produces a certificate to that effect from such authority as may be prescribed, the enrolment fee payable by him to the State Bar Council shall be [one hundred rupees and to the Bar Council of India, twenty-five rupees] .

[Explanation - For the purposes of this sub-section, a person shall be deemed to have obtained a degree in Law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice-board or otherwise declaring him to have passed that examination.] (2) Notwithstanding anything contained in sub-section (1), [a vakil or a pleader who is a Law graduate] may be admitted as an advocate on a State roll .

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