# BAR COUNCIL OF INDIA v. BONNIE FOI LAW COLLEGE & ORS

- **Citation:** [2023] 2 S.C.R. 343
- **Court:** Supreme Court of India
- **Decided:** 2023-02-10
- **Case number:** Civil Appeal No. 969 of 2023
- **Bench:** Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, J.K. Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bar-council-of-india-v-bonnie-foi-law-college-ors-36822
- **Pages:** 26

## Headnote

Advocates Act, 1961 - ss.49, 24(3)(d) - Bar Council of India
(Training) Rules, 1995 - Pre-enrolment training in terms of the 1995
Rules; Pre-enrolment/Post-enrolment examination, if can be validly
prescribed by the Bar Council of India - Held: Bar Council of India
is not devoid of its jurisdiction in undertaking a pre-enrolment
training course or examination prescribed by it - Wide powers given
to the Bar Council of India u/s.49 r/w s.24(3)(d) are adequate powers
with it under the 1961 Act to provide such norms and Rules - Thus,
the interdict placed by the judgment of Supreme Court in V. Sudeer
v. Bar Council of India on the powers of the Bar Council of India
cannot be sustained and the said case does not lay down the correct
position of law - Questions referred, answered.
Legal Profession:
Role of the Bar Council of India - Discussed.
Standards of legal profession - Various aspects of holding
the All India Bar Examination, suggestions made by the Amicus -
Discussed.
Disposing of the appeal and the petitions, the Court
HELD: 1.1 The object of Parliament enacting the Advocates
Act, 1961 was to consolidate the law relating to legal practitioners.
The prominent role of the Bar Council of India, the apex body, is
apparent from the functions prescribed for the Bar Council of
India under Section 7 of the said Act. Clause (h) of Sub-Section
(1), provides for promotion of legal education and for laying down
standards of such education in consultation with Universities in
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India and State Bar Councils. Sub-Clause (m) is in the nature of a
residuary clause, having the widest amplitude to do all other things
necessary for discharging the aforesaid functions. These
provisions do not entrust the Bar Council of India with direct
control of legal education, as primarily legal education is within
the province of the universities. Yet, the Bar Council of India,
being the apex professional body of the advocates, is concerned
with the standards of legal profession and the equipment of those
who seek entry into that profession. Neither these provisions,
nor the role of the universities to impart legal education, in any
way, prohibit the Bar Council of India from conducting preenrolment examination, as the Council is directly concerned with
the standard of persons who want to obtain a license to practice
law as a profession. Section 24 of the said Act prescribes as to
who are the persons who may be prescribed as Advocates on
State roll. Sub-Section (1) of Section 24 provides conditions
fulfilling which a person shall be qualified to be admitted as an
advocate on a State roll. Sub-Section (3) of Section 24 of the said
Act begins with the non-obstante clause qua Sub-Section (1) by
stating "notwithstanding anything contained in Sub-Section (1)".
Clause (d) of Sub- Section (3) of Section 24 of the said Act refers
to the entitlement to be enrolled as an Advocate under any Rule
made by the Bar Council of India in this behalf.It is under Clause
(d) of Sub-Section (3) of Section 24 of the said Act that the Bar
Council of India sought to introduce the All India Bar Examination,
which would be uniformly applicable irrespective of the recognised
educational institutions from which a person would complete law
before he was enrolled at the Bar. It is this endeavour of the Bar
Council of India, which came to be assailed in the judgment of
this Court in V. Sudeer and that challenge succeeded. Judgment
in V. Sudeer have to be looked carefully as in the reference order
to the Constitution Bench, the first two questions referred to
this Court really emanate from this judgment i.e. the authority of
the Bar Council of India to provide for pre-enrolment training in
terms of the 1995 Rules and whether pre-enrolment examination
can be prescribed by the Bar Council of India under the said Act.
In terms of the 1995 Rules, trainee advocates are entitled to
appear in court for seeking adjournments and to make mentio

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 [2023] 2 S.C.R. 343
343
BAR COUNCIL OF INDIA
v.
BONNIE FOI LAW COLLEGE & ORS.
(Civil Appeal No. 969 of 2023)
FEBRUARY 10, 2023
[SANJAY KISHAN KAUL, SANJIV KHANNA,
ABHAY S. OKA, VIKRAM NATH AND
J.K. MAHESHWARI, JJ.]
Advocates Act, 1961 - ss.49, 24(3)(d) - Bar Council of India
(Training) Rules, 1995 - Pre-enrolment training in terms of the 1995
Rules; Pre-enrolment/Post-enrolment examination, if can be validly
prescribed by the Bar Council of India - Held: Bar Council of India
is not devoid of its jurisdiction in undertaking a pre-enrolment
training course or examination prescribed by it - Wide powers given
to the Bar Council of India u/s.49 r/w s.24(3)(d) are adequate powers
with it under the 1961 Act to provide such norms and Rules - Thus,
the interdict placed by the judgment of Supreme Court in V. Sudeer
v. Bar Council of India on the powers of the Bar Council of India
cannot be sustained and the said case does not lay down the correct
position of law - Questions referred, answered.
Legal Profession:
Role of the Bar Council of India - Discussed.
Standards of legal profession - Various aspects of holding
the All India Bar Examination, suggestions made by the Amicus -
Discussed.
Disposing of the appeal and the petitions, the Court
HELD: 1.1 The object of Parliament enacting the Advocates
Act, 1961 was to consolidate the law relating to legal practitioners.
The prominent role of the Bar Council of India, the apex body, is
apparent from the functions prescribed for the Bar Council of
India under Section 7 of the said Act. Clause (h) of Sub-Section
(1), provides for promotion of legal education and for laying down
standards of such education in consultation with Universities in
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[2023] 2 S.C.R.
India and State Bar Councils. Sub-Clause (m) is in the nature of a
residuary clause, having the widest amplitude to do all other things
necessary for discharging the aforesaid functions. These
provisions do not entrust the Bar Council of India with direct
control of legal education, as primarily legal education is within
the province of the universities. Yet, the Bar Council of India,
being the apex professional body of the advocates, is concerned
with the standards of legal profession and the equipment of those
who seek entry into that profession. Neither these provisions,
nor the role of the universities to impart legal education, in any
way, prohibit the Bar Council of India from conducting preenrolment examination, as the Council is directly concerned with
the standard of persons who want to obtain a license to practice
law as a profession. Section 24 of the said Act prescribes as to
who are the persons who may be prescribed as Advocates on
State roll. Sub-Section (1) of Section 24 provides conditions
fulfilling which a person shall be qualified to be admitted as an
advocate on a State roll. Sub-Section (3) of Section 24 of the said
Act begins with the non-obstante clause qua Sub-Section (1) by
stating "notwithstanding anything contained in Sub-Section (1)".
Clause (d) of Sub- Section (3) of Section 24 of the said Act refers
to the entitlement to be enrolled as an Advocate under any Rule
made by the Bar Council of India in this behalf.It is under Clause
(d) of Sub-Section (3) of Section 24 of the said Act that the Bar
Council of India sought to introduce the All India Bar Examination,
which would be uniformly applicable irrespective of the recognised
educational institutions from which a person would complete law
before he was enrolled at the Bar. It is this endeavour of the Bar
Council of India, which came to be assailed in the judgment of
this Court in V. Sudeer and that challenge succeeded. Judgment
in V. Sudeer have to be looked carefully as in the reference order
to the Constitution Bench, the first two questions referred to
this Court really emanate from this judgment i.e. the authority of
the Bar Council of India to provide for pre-enrolment training in
terms of the 1995 Rules and whether pre-enrolment examination
can be prescribed by the Bar Council of India under the said Act.
In terms of the 1995 Rules, trainee advocates are entitled to
appear in court for seeking adjournments and to make mentioning
on instruction of their guides, after their provisional enrolment.
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The third question framed for reference refers to Section 49(1)(ah)
of the said Act for providing a post-enrolment examination if the
answers to the first two questions are in negative.[Paras 20-22,
26][360-D-H; 361-A-B; 362-B-C]
1.2 The powers of the State Bar Councils and the Bar
Council of India have to be read in the context of their respective
statutory provisions. The powers are not pari materia. Bar
Council of India has much larger powers and authority. This Court
is unable to agree with the reasoning in V. Sudeer that because
the State Bar Councils' power for providing training or for holding
examination was taken away by the 1973 Amendment, it ipso facto
amounts to taking away such powers if they so vested with the
Bar Council of India. The legislative object was clear i.e. not to
confer such powers on the State Bar Councils. However, that
could not affect the position of the power of the Bar Council of
India, and naturally such a power existed. If the Bar Council of
India never had such a power, then the same could not be read
by implication. But, if the Bar Council of India had sufficient
powers, then the 1973 Amendment would not take away those
powers of the Bar Council of India as the said amendment did
not deal with the aspect of the powers of the Bar Council of India.
The functions of the Bar Council of India, as specified under
Section 7, inter alia prescribe an exercise of general supervision
and control over the State Bar Councils under Clause (g) of SubSection (1) of Section 7. Further, under Sub-Clause (l), the Bar
Council of India has the power to perform all other functions
conferred on it by or under the said Act and under Clause (m) to
do all other things necessary for discharging the aforesaid
functions. The powers are, thus, wide and extensive as conferred
by the legislature. Thus, when under Section 24(1), the Bar
Council of India has the statutory power of prescribing Rules
subject to which a person may be treated as qualified to be
admitted as an Advocate in the State roll, then the Bar Council of
India is not devoid of its jurisdiction in undertaking a preenrolment training course or examination prescribed by the Bar
Council of India. Section 49(1)(ag) of the said Act, which while
dealing with the general powers of the Bar Council of India to
make rules, specifically stipulates that the class or category of
person entitled to be enrolled as advocates, is an aspect for which
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all powers have been conferred on the Bar Council of India. Thus,
the provision for an examination for enrolment of advocates by
the Bar Council of India can hardly be doubted. [Paras 29-32][363C-H; 364-A-E]
1.3 The objective of the legislature while giving wide
powers to the Bar Council of India under Section 49, which gives
it the powers to make Rules, read with Section 24(3)(d), which
gives it the powers to prescribe the norms for entitlement to be
enrolled as an Advocate under the Rules of the Bar Council of
India, leads to the conclusion that these are adequate powers
with the Bar Council of India under the said Act to provide such
norms and Rules. The interdict placed by the judgment of this
Court in V. Sudeer on the powers of the Bar Council of India cannot
be sustained and it cannot be held that V. Sudeer lays down the
correct position of law. It has to be left to the Bar Council of
India as to at what stage the All India Bar Examination has to be
held - pre or post. [Paras 33-36][364-E-H; 365-A]
V. Sudeer v. Bar Council of India (1999) 3 SCC 176 :
[1999] 1 SCR 1048 - held not correct law.
2. Students who have cleared all examinations to be eligible
to pursue the final semester of the final year course of law, on
production of proof of the same, could be allowed to take the All
India Bar Examination. The result of the All India Bar Examination
would be subject to the person passing all the components
required under the course of study of the University/College.
This would be subject to the All India Bar Examination results
being valid for a specified period of time. [Para 38][365-E-F]
3. Appropriate rules can be framed laying down that an
enrolled advocate who takes up an employment in a non-legal
context for a substantial length of time (say for five years) would
be deemed to be a new enrolee and in order to regain the
qualification, that person would be required to take the All India
Bar Examination once more. The requirements of an active legal
practice and that of an unconnected job are different. Even if a
person has a law degree or enrolment, it does not mean that his
ability to assist the court would continue with him if there are
long hiatus period of time in some unconnected job. He would
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have to hone and test his skills afresh. Thus, if there is a
substantial break, norms should be specified by the Bar Council
of India that to regain that qualification, the person would be
subject to re-examination and would be required to take the All
India Bar Examination once more. [Para 42][366-G-H; 367-A-B]
4. The other two suggestions made by the learned Amicus
that the validity of the result obtained by any candidate in any
pre-enrolment or a post-enrolment bar examination must be
limited by time which would be a policy matter for the Bar Council
of India to consider, and the Bar Council of India can exercise its
power to issue directions under Section 48B of the said Act to
ensure uniformity and fairness of the procedure followed by each
of the State Bar Councils, are agreed with. [Para 43][367-C]
Indian Council of Legal Aid and Advice & Ors. v. Bar
Council of India & Anr. (1995) 1 SCC 732 : [1995] 1
SCR 304; Dr. Haniraj L. Chulani v. Bar Council of
Maharashtra & Goa (1996) 3 SCC 342 : [1996] 1
Suppl. SCR 51; Satish Kumar Sharma v. Bar Council
of H.P (2001) 2 SCC 365 : [2001] 1 SCR 34; Jamshed
Ansari v. High Court of Allahabad & Ors. (2016) 10
SCC 554 : [2016] 4 SCR 111; N.K. Bajpai v. Union of
India & Anr. (2012) 4 SCC 653 : [2012] 2 SCR 433;
O.N. Mohindroo v. Bar council of Delhi and Ors. (1968)
2 SCR 709; Bar Council of India v. Board of
Management, Dayanand College of Law and Ors.
(2007) 2 SCC 202 : [2006] 9 Suppl. SCR 756 - referred
to.
Case Law Reference
[1999] 1 SCR 1048
held not correct law
Para 7
[1995] 1 SCR 304
referred to
Para 12
[1996] 1 Suppl. SCR 51
referred to
Para 13
[2001] 1 SCR 34
referred to
Para 13
[2016] 4 SCR 111
referred to
Para 13
[2012] 2 SCR 433
referred to
Para 13
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(1968) 2 SCR 709
referred to
Para 20
[2006] 9 Suppl. SCR 756
referred to
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.969 Of
2023.
From the Judgment and Order dated 17.03.2008 of the High Court
of M.P. Principat Seat at Jabalpur in WP No.13698 of 2007.
With
W.P. (C) No.25 of 2021, T.C. (C) Nos.16, 12, 13, 36, 14, 15 of
2011, T.C. (C) Nos.75, 88 of 2012, W.P. (C) No.987 of 2013, T.P. (C)
No.692 of 2015, T.C. (C) No.8 Of 2012 And T.C. (C) Nos.17, 18 of
2011
K.K. Venugopal, Attorney General (Amicus Curiae), K.V.
Vishwanathan, Sr. Adv. (Amicus Curiae), Amartya A Sharan, Rahul
Sangwan, M.G. Aravind Raj, Sivagnanam Karti Keyan, Ms. Akhila
Nambiar, Siddharth Sridhar, Advs.
Ms. Aishwarya Bhati, ASG, Manan Kumar Mishra, S. Prabakaran,
Apurva Sharma, Sr. Advs., Anand Sanjay M. Nuli, Agam Sharma, Dharm
Singh, Suraj Kaushik, N. Pandey, Nanda Kumr K.B. for M/s. Nuli &
Nuli, V.K. Biju, Ms. Ria Sachthey, Chetanya Singh, Amlendu Kumar
Akhilesh Kumar Jha, Dr. Ranjeet Bharti, Ms. Rubina Jawed, Subash
Chandran, N.P. Rakesh Panikar, Ms. Kavitha K.T., Kartik Seth, Siddharth
Seth, Ms. Shriya Gilhotra, Mohit Soni for M/s. Chambers of Kartik Seth,
A. Venayagam Balan, Ardhendumauli Kumar Prasad, Ms. Taruna
Ardhendumauli Prasad, Nirmal Kumar Ambastha, Shashi Shekhar Kumar
Prasad, Vishwajeet Kumar Mishra, Amritesh Raj, Ms. Anjul Dwivedi,
Ms. Shreya Srivastava, Ashish Madaan, Ms. Ananya Sahu, Aman
Singh Bhadoria, Ms. Radhika Gautam, Sai Girdhan, Durga Dutt, Gaurav
Gautam, Ms. Ameya Vikrama Thavi, Padmesh Mishra, Raghvendra S.
Srivastava, A.K. Sharma, Mukesh Kumar Maroria, B. K. Satija, Dr.
Vinod Kumar Tewari, Pramod Tiwari, Vivek Tiwari, Ms. Priyanka Dubey,
Shailja Kant Dubey, Bhoopesh Kumar Pandey, G. Prakash, H. Chandra
Sekhar, M. K. Mishra, Hitesh Kumar Sharma, Akhileshwar Jha, Ms.
Vidhya Pandey, Ms. Madhumita Mishra, Sanjay Singh for Mohan Pandey,
Ms. Radhika Gautam, Satyajit A Desai, Satya Kam Sharma, Ms. Anagha
S. Desai, Gajanan N. Tirthkar. Siddharth Gautam, Ms. Deb Deepa
Mazumdar, Abhinav Mutyalwar, Ms. Chandan Ramamurthi, Harshad
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V. Hameed, Dileep Poolakkot, Mrs. Ashly Harshad, Ajay Bansal, Gaurav
Yadava, Ms. Veena Bansal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
Leave granted.
The Advocates Act:
1. The Advocates Act, 1961, (hereinafter referred to as the "said
Act") was the consequence of a deeply felt need for change in the
Judicial Administration in accordance with the needs of the time in the
post- independence era. The Law Commission was assigned the job of
preparing a report on the reform of Judicial Administration. In the
meanwhile, the All India Bar Committee also made recommendations in
1953. This resulted in the said Act.
2. Chapter II of the said Act deals with the State Bar Councils,
Bar Council of India and their functions.
3. Chapter IV of the said Act confers the right to practice on
Advocates, who are the only recognised class of persons to do so and
have their names entered in the rolls of the State Bar Councils.
4. Section 7 of the said Act provides for functions of the Bar
Council of India, which inter alia includes the disciplinary power,
protection powers to safeguard the interest of the advocates as also the
general supervision and control over State Bar Councils. Further, Section
49 of the said Act refers to the general powers of the Bar Council of
India to make rules.
Procedural History:
5. The original dispute between the Bar Council of India and
Bonnie Foi Law College, the respondent college herein, arose on account
of the application of the said college for affiliation to carry on a legal
study course. This Court appointed an inspection team on 29.06.2009,
which visited the respondent college and gave a comprehensive report
pointing out shortcomings in the infrastructure and functioning of the
college. On 24.08.2009, the Court laid down certain conditions to be
followed by the respondent college which the college claimed to have
fulfilled later.
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6. During the course of this matter, a larger question of diminishing
standards of legal education provided at various law colleges in India
came to be noticed vide the order dated 29.06.2009, which resulted in a
Committee being appointed comprising Mr. Gopal Subramanium, then
Solicitor General of India as its Chairman; Mr. M.N. Krishnamani, then
President of the Supreme Court Bar Association; and Mr. S.N.P. Sinha,
then Chairman of the Bar Council of India. The said Committee was
requested to examine issues relating to affiliation and recognition of law
colleges, to identify areas requiring redressal and to address factors
impeding the implementation of existing norms. A report was submitted
to this Court on 06.10.2009 ("hereinafter referred to as the Report").
7. The Report recognised two significant aspects as imperative
for improving standards of legal profession, i.e., firstly, introduction of a
bar examination and, secondly, compulsory requirement of apprenticeship
under a senior lawyer prior to admission to the Bar. It made the following
observations:
a. Bar Examination in India: A bar-examination is a precondition for admission to the Bar in most Commonwealth
countries.
b. Pre-enrolment training: The requirement of training with a
senior member of the Bar was present even before the enactment
of the said Act, wherein a prospective lawyer was required to
'train' in the chambers for a period of one year, and then appear
in an examination comprising the subjects of civil and criminal
procedure. Thereafter, Section 24(1)(d) of the said Act continued
the requirement of apprenticeship for graduate law students.
However, this provision was omitted by the amending Act 60 of
1973 (hereinafter referred to as "1973 Amendment"), thereby
discontinuing the practice.
The Report also recorded that the 1973 Amendment omitted Section
28(2)(b) of the said Act, which enabled State Bar Councils to frame
rules regarding training and bar examination. In 1994, a High-Powered
Committee on Legal Education recommended the reintroduction of the
requirement for apprenticeship and bar examination and thus, Bar Council
of India (Training) Rules, 1995 (hereinafter referred to as "1995 Rules")
were framed by the Bar Council of India in furtherance of the mandate
of the High-Powered Committee. However, the 1995 Rules were struck
down by this Court in the judgment of V. Sudeer v. Bar Council of
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India1, opining that once express provisions on Sections 24(1)(d) and
28(2)(b) had been omitted by the statutory amendment, the requirement
could not be reintroduced. The Report also suggested that Bar Council
of India's role as the primary body for regulating standards of professional
legal education should be reaffirmed.
8. On 14.12.2009, Mr. Gopal Subramanium submitted that the
first All India Bar Examination will be conducted in July-August, 2010,
by a specially constituted independent body consisting of experts of various
disciplines of national stature. The Court directed the Central Government
to ensure that the entire programme framed by the Committee headed
by Mr. Gopal Subramanium was operationalized and further directed
concerned institutions to fully cooperate with the Bar Council of India.
9. On the proceedings taking the aforesaid course, vide order
dated 18.03.2016 (hereinafter referred to as "reference order"), a threeJudges Bench of the Court opined that the questions which fall for
determination in the present matter are of considerable importance
affecting the legal profession in general and need to be authoritatively
answered by a Constitution Bench. The reference order provided for
three questions to be answered by this Court, as under:
"1. Whether pre-enrolment training in terms of Bar Council of
India Training Rules, 1995 framed under Section 24(3)(d) of the
Advocates Act, 1961 could be validly prescribed by the Bar Council
of India and if so whether the decision of this Court in Sudeer vs.
Bar Council of India & Anr.[(1999) 3 SCC 176] requires
reconsideration.
2. Whether a pre-enrolment examination can be prescribed by
the Bar Council of India under the Advocates Act, 1961.
3. In case question Nos. 1 and 2 are answered in the negative,
whether a post-enrolment examination can be validly prescribed
by the Bar Council of India in terms of Section 49(1) (ah) of the
Advocates Act, 1961."
10. There was resistance on part of some stake holders to hold
the All India Bar Examination in W.P. (C) No.25 of 2021, W.P.(C) No.
987/2013, T.C. (C) No. 16/2011, 12/2011, 13/2011, 36/2011, 14/2011, 15/
1 (1999) 3 SCC 176
BAR COUNCIL OF INDIA v. BONNIE FOI LAW COLLEGE
[SANJAY KISHAN KAUL, J.]
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2011, 75/2012, 88/2012, 08/2012, 17/2011, 18/2011 and T.P.(C.) No. 692/
2015, which have been tagged with the present matter.
The case law debated before us:
11. There are three significant judgments whose implication was
debated before us. The first is the judgment of this Court in V. Sudeer2
which discussed whether the 1995 Rules relating to entrants into the
legal profession are within the competence of the Bar Council of India.
The Bench recognised the exclusive and unfettered right to practice to a
person enrolled as an advocate on the State roll. A conjoint reading of
Sections 23, 29 and 33 clarifies that a person who is found qualified to be
admitted as an advocate on the State Roll by satisfying the statutory
conditions under Section 24(1), will automatically become entitled to
practice full-fledged in any court including the Supreme Court. Hence,
the statutory conditions under Section 24(1) are satisfied unless a
disqualification takes place under Section 24A of the said Act. The concept
of pre-enrolment training was held to be not necessary. On various
grounds the 1995 Rules were held ultra vires the said Act and was,
thus, invalid.
12. We then turn to the judgment of this Court in Indian Council
of Legal Aid and Advice & Ors. v. Bar Council of India & Anr.3.
The Court struck down the endeavour of the Bar Council of India to put
an age cap on the entry into the profession. The Bar Council of India
had prescribed that any person who had completed the age of 45 years
on the date on which he submitted his application would not be entitled
to be enrolled as an advocate.
13. Lastly, in Dr. Haniraj L. Chulani v. Bar Council of
Maharashtra & Goa4, the appellant was a medical practitioner since
1970 who insisted that even though he was a medical practitioner, he
was entitled to simultaneously carry on the profession as an advocate.
The Supreme Court opined that Section 49(1)(ag) when read with
Section 24 of the said Act confers wide powers on the Bar Council of
India to indicate the class or category of persons who may be enrolled
as advocates, which would include the power to refuse enrolment in
certain cases. The Bar Council of India was held to be empowered to
take all such steps as it considered necessary to filter students at the
entry stage to the law course at the entry point of the profession, e.g. by
2 (supra)
3 (1995) 1 SCC 732
4 (1996) 3 SCC 342
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providing an examination or a training course before enrolment as an
advocate.
In view of the magnitude of the ramifications of the issues involved,
we had considered it appropriate to appoint Mr. K.V. Vishwanathan,
Senior Advocate as Amicus Curiae to assist the Court in this matter. Mr.
Vishwanathan gave a very comprehensive note pointing out the fallacies
in the earlier judgment of V. Sudeer5, which are of significance and are
crystalised as under:
a. The Bar Council of India's powers at a pre-enrolment stage
are not ousted through amendment to Section 7(a) of the said
Act.
In V. Sudeer6, this Court held that while the State Bar Councils
have the function of "maintenance of rolls" under the said Act, the Bar
Council of India is not concerned with the same. It was submitted by the
Amicus that it is important to read the specific terminologies used in
different sections of the said Act and to cull out the underlying meaning
for each of these terms. A plain reading of Sections 6(a), 6(b), Section
24(1)(e) and Section 28(2)(d) of the said Act indicates that the functions
of the State bar Council relates to preparing and maintenance of rolls
and the admission of persons as advocates on its roll. However, in stark
contrast, the Rule making power of the Bar Council of India under Section
49(1)(ag) of the said Act empowers the Bar Council of India to prescribe
rules that could specify a class or category of persons who are entitled
to be enrolled. The meaning of "entitle" would indicate that the Bar
Council of India could prescribe such conditions which would give the
right or claim to a person to be enrolled as an advocate. Thus, Bar
Council of India's role prior to enrolment cannot be ousted.
b. V. Sudeer7 failed to consider that Section 24(1) is subject
to the other provisions of the said Act and Rules made thereunder.
In V. Sudeer8, this Court held that Sections 24(1)(d) and 28(2)(b)
of the said Act had empowered the State Bar Councils to provide for a
pre-enrolment training and examination, which had been repealed through
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the 1973 Amendment. The Amicus submitted that the legislature was
not expected to make any superfluous provisions that specifically
empower the Bar Council of India with the specific action regarding
pre-enrolment training and examination. However, the purport of Section
49 of the said Act and in particular Section 49(1)(ag) already empowers
the Bar Council of India to do so.
It was also submitted that:
i.
Section 24(1) of the said Act opens with the words "subject
to the provisions of this Act, and the rules made thereunder"
thereby making the conditions under Section 24(1) and its
sub-clauses, directly subject to the rules framed under the
said Act.
ii.
In Satish Kumar Sharma v. Bar Council of H.P9, a three
Judges Bench of this Court held that the enrolment under
Section 24 of the said Act is subject to the Rules framed by
the Bar Council of India under Section 49 of the said Act,
even if no Rules were framed under Section 24(1)(e) or
Section 28(2) (b) of the said Act itself.
iii.
This Court's reliance on Section 24A of the said Act in V.
Sudeer10 is misplaced since the power to disqualify a person
from enrolment is materially different from prescribing
conditions subject to which the very right to be enrolled
arises.
c. V. Sudeer11 erred in concluding that it is not one of the
statutory functions of the Bar Council of India to frame rules which
impose pre-enrolment conditions.
The 1995 Rules could have been 'traced' to the Bar Council of
India's function of 'general supervision' over the State Bar Councils,
which was not considered by V. Sudeer12:
i.
In light of clauses (l) and (m) of Sub-Section (1), it was
submitted that Section 7 of the said Act is not an exhaustive
9 (2001) 2 SCC 365
10 (supra)
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list of the Bar Council of India's statutory function. Further,
the Bar Council of India's function under Section 7(1)(g)
of the said Act would include the authority to specifically
direct State Bar Councils not to enrol persons who had not
undertaken the training course prescribed under the 1995
Rules.
ii.
An additional statutory function can be culled out on a
conjoint reading of Section 7(1)(l) and Section 24(1) of the
said Act, which confers the Bar Council of India with a
statutory function of prescribing rules subject to which any
person may be treated as "qualified to be admitted as an
advocate on a State roll", such as a pre-enrolment training
course or exam prescribed by the Bar Council of India.
iii.
Even if this Court concludes that no other provision of the
said Act confers the Bar Council of India with a function of
laying down pre-enrolment conditions, Section 49(1)(ag) of
the said Act would per se afford a basis to infer that the
Bar Council of India has such a function. Thereafter, the
ministerial act of enrolment, subject to the conditions that
may be specified, is carried out under Section 24(3)(d) of
the said Act.
d. Viability of an Examination to be conducted post-enrolment:
If this Court decides to extend no reconsideration to the decision
in V.Sudeer13, the question then arises as to whether the Bar Council of
India could prescribe a post-enrolment examination under Section
49(1)(ah) of the said Act. It is important to contrast the word used in
Section 30 of the said Act with Sections 24 and 29 of the said Act. While
the former makes the right to practice subject to the provisions of the
said Act, the latter provisions make their respective aspects subject to
the provisions of the said Act and the rules made thereunder. Therefore,
the right to practise under Section 30 of the said Act could only be
restricted by another provision in the said Act and not by the rules made
under any provision in the said Act. If this interpretation were to stand,
then the framing of the All India Bar Examination in its current format
would have to be held illegal. However, the previous interpretations of
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the provisions of the said Act in Jamshed Ansari v. High Court of
Allahabad & Ors.14, and N.K. Bajpai v. Union of India & Anr.15,
make the right to practise subject to the provisions that grant the rulemaking power, thereby validating the All India Bar Examination in its
current form at the expense of expanding the scope of the restriction on
Section 30 of the said Act.
14. The aforesaid was supplemented by the Amicus through an
additional note addressing concerns that were expressed in the Court
during the proceedings on the practicality of the various thought
processes. This inter alia included as to when the examination could be
held and how the candidates should be dealt with till the examination
results are declared. The supplementary suggestions are as under:
a.
If the examination is held pre-enrolment, two alternatives
are suggested: firstly, the candidates should be permitted to
take the pre- enrolment examination on production of a
transcript showing that they have received a passing mark
in all their law school examinations and the degree certificate
can be submitted at the time of enrolment. Alternatively, if
the eligibility could be extended to those persons who are in
the final semester of their law course, they could be allowed
to take the examination and any result in such examination
would then be subject to the said person passing all the
components required under the University/College's course
of study. This will be subject to the All India Bar Examination
results being valid for a limited period of time.
b.
During the period between date of passing the exam and
the date of enrolment, any graduate with a degree who is
yet to appear for the All India Bar Examination or get
enrolled under the Advocates Act would still be able to do
all the tasks allied to the legal profession other than the
function of acting or pleading before the Courts.
c.
The determination of seniority in case of post-enrolment
examination based on the date of birth of an advocate
currently has statutory recognition and a similar criterion
14 (2016) 10 SCC 554
15 (2012) 4 SCC 653
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would suit even a pre-enrolment examination. Thus, the
practice and procedure as it exists on date for post-enrolment
examination would be apt for application to a pre-enrolment
examination, in addition to any criterion which has been
framed by the respective State Bar Councils.
d.
Currently, any person who is provisionally enrolled is allowed
to practice for two years, but is allowed to take the All
India Bar Examination not just for those two years but for
any number of times till he passes the All India Bar
Examination. The date of reckoning seniority of the
candidate is from the date of the provisional enrolment.
However, it was submitted that unlimited number of attempts
would not be in line with the scheme proposed by this Court
and must be limited to any number that this Court deems
fit.
e.
Rule-making power under Section 49(1)(ah) of the said Act
could be invoked requiring an examination for advocates
who come back into the practice after a substantial break
from practice. Alternatively, if this Court holds that the Bar
Council of India can make rules under Section 24(1) read
with 49(1)(ag) of the said Act which governs the
circumstances in which any person may be deemed
"qualified to be admitted" as an advocate, a useful inference
would follow. Such rules could lay down that an enrolled
advocate, having taken an employment in a non-legal context
for a substantial length of time would be deemed to be a
new enrolee. In order to regain that qualification, that person
could be subjected to the re-examination rule and be required
to take the All India Bar Examination once more.
f.
The validity of the result obtained by any candidate in any
pre- enrolment or a post-enrolment bar examination must
also be limited by time which would be a policy matter for
the Bar Council of India to consider.
g.
The Bar Council of India can exercise its power to issue
directions under Section 48B of the said Act to ensure
uniformity and fairness of the procedure followed by each
of the State Bar Councils.
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15. Then Attorney General, Mr. K.K. Venugopal, who had also
been appointed as an Amicus and after taking us through the material
crystallised two aspects as under:
a.
The Bar Council of India is entitled to make rules under
Section 49 of the said Act and the rule-making power of
the Bar Council of India would not be affected after the
1973 Amendment.
b.
The pre-enrolment training may not be necessary since what
is gained through the mandate of the internship is far
superior.
16. The Chairman of the Bar Council of India, Mr. Manan Kumar
Mishra, learned Senior Advocate, highlighted the powers of the Bar
Council of India to make rules for the implementation of the said Act.
Mr. Mishra also relied upon Section 7(1)(g) of the said Act which gives
absolute control to the Bar Council of India to exercise supervision and
control over the State Bar Councils.
Contra View Point:
17. The significant contra view point was made by the petitioners
in T.C. (C) No.13/2011 seeking to contend that since the pre-enrolment
examination was done away in the light of the statutory provisions in
V. Sudeer16, the first two questions of the reference order need no
reconsideration. With respect to third question of the post-enrolment
examination for which Rules 9 to 11 have been inserted in Chapter III of
Part VI of the Bar Council of India Rules, the plea of striking down was
based on the following aspects:
a.
Section 16 of the said Act provides for only two categories
of advocates, i.e. Senior Advocates and other advocates,
and does not provide for any third category of "provisionally
enrolled advocates" who shall be finally enrolled after giving
the All India Bar Examination.
b.
Section 22 of the said Act provides for certificate of
enrolment to any person whose name is entered in the roll
of advocates maintained by the respective State Bar
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Council. Hence, once an advocate enters the State Roll, he
is an advocate and there is no bar on his practice.
c.
Section 24 of the said Act which exhaustively provides for
conditions and qualifications for the persons to be admitted
as advocates does not set any condition to the effect of
clearing any post-enrolment examination for continuing as
an advocate.
d.
Section 28 of the said Act was amended and the power of
State Bar Councils to provide for an examination and training
prior to enrolment was done away with.
e.
Section 30 of the said Act which provides for right to
practice does not provide for clearing an examination to
practice.
f.
Rule 9 of the Bar Council of India Rules is unconstitutional
and violative of Article 14 of the Constitution, as a person
graduating before the introduction of the All India Bar
Examination and applying for enrolment is not required to
take the Examination, whereas those from 2009-2010 are
mandated to take the Examination, making the rule
discriminatory in nature.
18. The aforesaid line of reasoning was supported by other pleas.
It was submitted that the power given to the Bar Council of India in V.
Sudeer17 was for enlarging the scope of eligibility of becoming an
advocate, and not to narrow it down. Further, there was no accountability
and transparency with respect to the fees collected by Bar Council of
India and its association with an entity named 'Pearl First' which found
no place on the official website of the Bar Council of India.
Our Thought Process:
19. We have given our thought to the matter and share the concerns
of all those who appeared before us to see that the best come into the
profession. Quality of lawyers is an important aspect and part of
administration of justice and access to justice. Half baked lawyers serve
no purpose. It is this quality control, which has been the endeavour of all
the efforts made over a period of time.
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20. The object of Parliament enacting the said Act was to
consolidate the law relating to legal practitioners. The prominent role of
the Bar Council of India, the apex body, is apparent from the functions
prescribed for the Bar Council of India under Section 7 of the said Act.
Clause (h) of Sub-Section (1), provides for promotion of legal education
and for laying down standards of such education in consultation with
Universities in India and State Bar Councils. Sub-Clause (m) is in the
nature of a residuary clause, having the widest amplitude to do all other
things necessary for discharging the aforesaid functions. These provisions
do not entrust the Bar Council of India with direct control of legal
education, as primarily legal education is within the province of the
universities. Yet, the Bar Council of India, being the apex professional
body of the advocates, is concerned with the standards of legal profession
and the equipment of those who seek entry into that profession.18 Neither
these provisions, nor the role of the universities to impart legal education,
in any way, prohibit the Bar Council of India from conducting preenrolment examination, as the Council is directly concerned with the
standard of persons who want to obtain a license to practice law as a
profession.
21. Along with the aforesaid provision, we would like to advert to
the post-legal education stage for admission of advocates on the State
roll. Section 24 of the said Act prescribes as to who are the persons who
may be prescribed as Advocates on State roll. Sub-Section (1) of Section
24 provides conditions fulfilling which a person shall be qualified to be
admitted as an advocate on a State roll. Sub-Section (3) of Section 24 of
the said Act begins with the non-obstante clause qua Sub-Section (1) by
stating "notwithstanding anything contained in Sub-Section (1)". Clause
(d) of Sub- Section (3) of Section 24 of the said Act refers to the
entitlement to be enrolled as an Advocate under any Rule made by the
Bar Council of India in this behalf.
22. It is under Clause (d) of Sub-Section (3) of Section 24 of the
said Act that the Bar Council of India sought to introduce the All India
Bar Examination, which would be uniformly applicable irrespective of
the recognised educational institutions from which a person would
complete law before he was enrolled at the Bar. It is this endeavour of
the Bar Council of India, which came to be assailed in the judgment of
18 See O.N. Mohindroo v. Bar council of Delhi and Ors. (1968) 2 SCR 709; Bar Council
of India v. Board of Management, Dayanand College of Law and Ors. (2007) 2 SCC 202
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this Court in V. Sudeer19 and that challenge succeeded. We would have
to look carefully at this judgment in V. Sudeer20 as in the reference
order to the Constitution Bench, the first two questions referred to us
really emanate from this judgment i.e. the authority of the Bar Council
of India to provide for pre-enrolment training in terms of the 1995 Rules
and whether pre-enrolment examination can be prescribed by the Bar
Council of India under the said Act.