The Bar Exam - V. Sudeer vs Bar Council of India
Updated: May 31, 2020
PROCEDURAL HISTORY/ FACTS
This matter came for consideration to the court through a writ petition filed under Article 32 of the Constitution of India as well as two special leave petitions moved by the Bar Council of Maharashtra and Goa and the Bar Council of India. These petitions were raising a common question of law namely, whether the Bar Council of India Training Rules, 1995 as amended by the resolution of the Bar Council of India in its meeting dated 19.7.1998 relating to the training of entrants of the 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 and whether the aforementioned are unreasonable and arbitrary and hence, violative of Article 14 of the Constitution of India.
The writ petitioners have successfully completed their law degrees from the University concerned and are arguing that their right to practice law as provided under the act is being denied by arbitrarily imposing the rules framed by the Bar Council of India and hence, their fundamental rights namely Article 19(1)(g) and Article 14 are being violated. Whereas, the Bar Council of Maharashtra and Goa are challenging the decision of upholding the validity of the rules formed by the Bar Council of India passed by the High Court of Maharashtra. While the civil appeal filed by the Bar Council of India is challenging the decision passed by the High Court of Punjab on the other hand Haryana HC is dealing with whether the impugned rules are prospective or retrospective in nature.
RELEVANT LEGISLATION / STATUTES
Parent Act: Advocates Act, 1961
Relevant sections under the act are section - Sections 7, 23, 24 and 49, however, the most important section is Section 49 which essentially states the following
1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe:
(af) the minimum qualifications required for admission to a course of a degree in Law in any recognized university;]
(ag) the class or category of persons entitled to be enrolled as advocates;
(ah) the conditions subjects to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court;
Delegated legislation: Bar Council of India Training Rules, 1995
Whether Bar Council of India Training Rules, 1995 as amended by resolution dated 19th July 1998, relating to the training of entrants to the legal profession is, within the competence of Bar Council of India or ultra vires its rule-making powers under Advocates Act.
The court ruled that the impugned rules which provide for the concept of trainee advocate violate the scheme of the Act and in view of the Apex court ruling in Indian Council of Legal Aid and Advice v. Bar Council of India is unsustainable and therefore, the petition was allowed by overturning the decision of the lower courts by holding that the rules formulated by the Bar Council of India were substantially ultra vires to the Parent Act. Hence, the concerned delegated legislation was quashed.
The court refers to section 49 of the act which essentially deals with the general power of the Bar to make rules. The subsection (1) concerning in general, talks about that the Bar Council can or may make rules for discharging its functions under the Advocates Act 1961 and in particular that would formulate such rules as prescribed on various topics enumerated therein. Further, it ruled that a mere look at the aforesaid provision makes it clear that the rulemaking power entrusted to the Bar Council of India by the legislature is an ancillary power for fructifying and effectively discharging the statutory functions laid down in the act. Hence, rules to be framed under section 49(1) must have a statutory peg on which it could hang. Consequently, if there is no statutory peg, the rule which is sought to be enacted dehors such a peg, will have no foothold and will become stillborn.
Upon conjoint reading of section 7(1) (h) and section 24(3)(d) of the Advocates Act 1961, the court concluded that neither of these statutory provisions entitles the Bar Council of India to provide for the disqualification or disability or an additional condition for enrolment of a person who is otherwise eligible to be enrolled as an advocate and hence, the Pre-enrolment Training rules failed the aforementioned test of Statutory peg.
Further, even though the court quashed the rules framed thereon, it had appreciated the laudable object with which the Bar Council of India has framed the impugned rules for providing training to the young aspirants to the profession by laying down details as to how they should get appropriate training during their formative year at the Bar.
V. Sudeer vs Bar Council of India and Ors, (1999) 3 SCC 176
Indian Council of Legal Aid and Advice v. Bar Council of India, (1995)1 SCC 732
ABOUT THE AUTHOR:
Anirudh Grover is currently a 4th year Law student, from Jindal Global Law School, Delhi.
You can contact him at: https://www.linkedin.com/in/anirudh-grover-1a44271a0
Edited by Rudra Prasad
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