# Gaurav Kumar v. Union of India and Ors

- **Citation:** 2024 INSC 558
- **Court:** Supreme Court of India
- **Decided:** 2024-07-30
- **Bench:** Dr Dhananjaya Y Chandrachud, J.B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gaurav-kumar-v-union-of-india-and-ors-38039
- **Pages:** 60

## Headnote

Whether the enrolment fees charged by the State Bar Councils
(SBC) are in contravention of Section 24(1)(f) of the Advocates
Act, 1961; whether payment of other miscellaneous fees can be
made a pre-condition for enrolment.
Headnotes†
Advocates Act, 1961 - s.24(1)(f) - Enrolment of advocates -
Challege to the validity of Enrolment fees charged by SBCs -
The grievance is that the fees charged by the SBCs at the
time of admission of persons on State rolls are more than
the enrolment fee prescribed under Section 24(1)(f) of the
Advocates Act 1961:
Held: While acting as a delegate of Parliament, the SBCs and the
Bar Council of India (BCI) can frame rules under the Advocates
Act - However, any rule enacted by the SBCs is only ancillary
and cannot be so exercised to bring into existence substantive
rights, obligations or disabilities not contemplated by the provisions
of the parent enactment - Further, the rules must align with the
object and purpose of the Advocates Act, namely, the creation
of a common bar and regulation of legal practitioners and their
qualifications, enrolment, right to practice, and discipline - A
delegate cannot act contrary to the express provisions and object
of the parent legislation - A delegate cannot widen or constrict the
scope of the parent legislation or the legislative policy prescribed
under it - A fiscal provision has to be construed strictly and a
delegate cannot consider any circumstance, factors or condition not
contemplated by the parent legislation - Section 24(1) lays down
the qualifications subject to which an advocate may be admitted
on a State roll - Section 24(1)(f) provides that the enrolment fee
payable by general candidates is Rupees seven hundred fifty and
* Author
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by SC and ST candidates, Rupees one hundred and twenty-five -
Section 24(1)(f) reflects the legislative policy of the Advocates Act
that subject to the fulfilment of other conditions of Section 24(1),
the payment of the stipulated monetary amount will make a person
eligible to be admitted as an advocate - Presently, the SBCs
charge enrolment fees in the following manner: (i) they charge
an enrolment fee according to the legal stipulation under Section
24(1)(f), but charge miscellaneous fees, and (ii) they charge an
enrolment fee beyond the legal stipulation in addition to charging
miscellaneous fees - The SBCs cannot charge "enrolment fees"
beyond the express legal stipulation under Section 24(1)(f) as it
currently stands - Therefore, prescribing enrolment fees beyond
Rupees seven hundred for general candidates and Rupees one
hundred twenty-five for SC and ST candidates is contrary to
Section 24(1)(f) - The subject matter of enrolment fee is covered
by the Advocates Act - Therefore, the SBCs, being delegated
authorities, do not have any legislative powers to prescribe
enrolment fees contrary to the statutory stipulation - Section 24(1)
(f) specifically lays down the fiscal pre-conditions subject to which
an advocate can be enrolled on State rolls - The SBCs and the
BCI cannot demand payment of fees other than the stipulated
enrolment fee and stamp duty, if any, as a pre-condition to
enrolment - The decision of the SBCs to charge fees and charges
at the time of enrolment in excess of the legal stipulation under
Section 24(1)(f) violates Article 14 and Article 19(1)(g) of the
Constitution. [Paras 58, 66, 67, 68, 109(b), 109(c)]
Advocates Act, 1961 - All India Bar Committee - Legal
Background - discussed.
Advocates Act, 1961 - A Complete Code - Admission and
enrolment of advocates:
Held: The provisions of the Advocates Act indicate that it provides
a complete machinery to deal with the admission and enrolment of
advocates - The SBCs are vested with sufficient powers to ensure
effectual and complete implementation of the enactment. [Para 26]
Delegated Legislation - When can a delegated legislation be
challenged:
Held: It is well established in Indian Express Newspapers
(Bombay)

## Text

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[2024] 7 S.C.R. 1489 : 2024 INSC 558
Gaurav Kumar
v.
Union of India and Ors.
(Writ Petition (Civil) No. 352 of 2023)
30 July 2024
[Dr Dhananjaya Y Chandrachud,* CJI and
J.B. Pardiwala, JJ.]
Issue for Consideration
Whether the enrolment fees charged by the State Bar Councils
(SBC) are in contravention of Section 24(1)(f) of the Advocates
Act, 1961; whether payment of other miscellaneous fees can be
made a pre-condition for enrolment.
Headnotes†
Advocates Act, 1961 - s.24(1)(f) - Enrolment of advocates -
Challege to the validity of Enrolment fees charged by SBCs -
The grievance is that the fees charged by the SBCs at the
time of admission of persons on State rolls are more than
the enrolment fee prescribed under Section 24(1)(f) of the
Advocates Act 1961:
Held: While acting as a delegate of Parliament, the SBCs and the
Bar Council of India (BCI) can frame rules under the Advocates
Act - However, any rule enacted by the SBCs is only ancillary
and cannot be so exercised to bring into existence substantive
rights, obligations or disabilities not contemplated by the provisions
of the parent enactment - Further, the rules must align with the
object and purpose of the Advocates Act, namely, the creation
of a common bar and regulation of legal practitioners and their
qualifications, enrolment, right to practice, and discipline - A
delegate cannot act contrary to the express provisions and object
of the parent legislation - A delegate cannot widen or constrict the
scope of the parent legislation or the legislative policy prescribed
under it - A fiscal provision has to be construed strictly and a
delegate cannot consider any circumstance, factors or condition not
contemplated by the parent legislation - Section 24(1) lays down
the qualifications subject to which an advocate may be admitted
on a State roll - Section 24(1)(f) provides that the enrolment fee
payable by general candidates is Rupees seven hundred fifty and
* Author
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by SC and ST candidates, Rupees one hundred and twenty-five -
Section 24(1)(f) reflects the legislative policy of the Advocates Act
that subject to the fulfilment of other conditions of Section 24(1),
the payment of the stipulated monetary amount will make a person
eligible to be admitted as an advocate - Presently, the SBCs
charge enrolment fees in the following manner: (i) they charge
an enrolment fee according to the legal stipulation under Section
24(1)(f), but charge miscellaneous fees, and (ii) they charge an
enrolment fee beyond the legal stipulation in addition to charging
miscellaneous fees - The SBCs cannot charge "enrolment fees"
beyond the express legal stipulation under Section 24(1)(f) as it
currently stands - Therefore, prescribing enrolment fees beyond
Rupees seven hundred for general candidates and Rupees one
hundred twenty-five for SC and ST candidates is contrary to
Section 24(1)(f) - The subject matter of enrolment fee is covered
by the Advocates Act - Therefore, the SBCs, being delegated
authorities, do not have any legislative powers to prescribe
enrolment fees contrary to the statutory stipulation - Section 24(1)
(f) specifically lays down the fiscal pre-conditions subject to which
an advocate can be enrolled on State rolls - The SBCs and the
BCI cannot demand payment of fees other than the stipulated
enrolment fee and stamp duty, if any, as a pre-condition to
enrolment - The decision of the SBCs to charge fees and charges
at the time of enrolment in excess of the legal stipulation under
Section 24(1)(f) violates Article 14 and Article 19(1)(g) of the
Constitution. [Paras 58, 66, 67, 68, 109(b), 109(c)]
Advocates Act, 1961 - All India Bar Committee - Legal
Background - discussed.
Advocates Act, 1961 - A Complete Code - Admission and
enrolment of advocates:
Held: The provisions of the Advocates Act indicate that it provides
a complete machinery to deal with the admission and enrolment of
advocates - The SBCs are vested with sufficient powers to ensure
effectual and complete implementation of the enactment. [Para 26]
Delegated Legislation - When can a delegated legislation be
challenged:
Held: It is well established in Indian Express Newspapers
(Bombay) (P) Ltd v. Union of India [1985] 2 SCR 287 and State of
Tamil Nadu v. P Krishnamurthy [2006] 3 SCR 396 that delegated
legislation can be challenged on the following grounds: (i) lack of
[2024] 7 S.C.R.
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Gaurav Kumar v. Union of India and Ors.
legislative competence to make delegated legislation; (ii) violation
of fundamental rights guaranteed under the Constitution; (iii)
violation of any provision of the Constitution; (iv) failure to conform
to the statute under which it is made or exceeding the limits of
authority conferred by the enabling Act; (v) repugnance to any
other enactment; and (vi) manifest arbitrariness. [Para 28]
Constitution of India - Arts.265 and 366 - Power to levy fees:
Held: (i) a fee is an impost in terms of Article 366(28); (ii) the
expression "tax" occurring in Article 265 means all imposts, including
fees and therefore any fee must be levied by the authority of a valid
law; (iii) fees being a compulsory exaction of money, the power to
levy fees cannot be implied; (iv) delegation of the power to levy
fees to a delegate of the legislature should be specifically provided
for under the parent legislation; and (v) the delegate must strictly
act within the parameters of the legislative policy laid down by the
parent legislation when levying fees and taxes.[Para 34]
Constitution of India - Advocates Act, 1961 - s.24(1)(f) -
Enrolment fee meets the characteristic of a Regulatory Fees:
Held: The State grants a licence to regulate a particular trade,
business, or profession - These regulatory activities entail a duty
on behalf of the State or its instrumentalities to supervise, regulate,
and monitor that particular trade, business, or profession - Because
such activities require the State to expend public resources, the
State can charge licence fees to defray the administrative costs -
The enrolment fee stipulated by Section 24(1)(f) of Advocates Act
meets the characteristic of a regulatory fee. [Paras 35, 38]
Advocates Act, 1961 - s.24(1)(f) - Bar Councils cannot levy
fees beyond the express stipulation of law:
Held: Section 24(1)(f) is a fiscal regulatory provision and has to
be construed strictly - Parliament has prescribed the enrolment
fees in the exercise of its sovereign legislative powers - The
SBCs and the BCI, being delegates of Parliament, cannot alter or
modify the fiscal policy laid down by Parliament - The delegate
can create substantive rights and obligations only to the extent
to which the parent enactment empowers the delegate - By
prescribing additional fees at the time of enrolment, the SBCs
have created new substantive obligations not contemplated by the
provisions of the Advocates Act - The basis for the fees imposed
by the SBCs has to be traceable to the provisions of the statute -
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There is no express provision in the Advocates Act empowering
the SBCs to levy fees, except for the enrolment fee and stamp
duty, if any, under Section 24(1)(f), at the time of admission of
advocates on the State roll - The decision of the SBCs to charge
miscellaneous fees is contrary to the legislative prescription of the
Advocates Act. [Para 70]
Advocates Act, 1961 - s.24 - Charges other than the enrolment
fee cannot be a valid pre-condition:
Held: Admission on the roll of advocates is a pre-requisite for any
person intending to practice law in India - At the time of enrolment,
candidates have little agency but to pay the miscellaneous fees
imposed by the SBCs to get enrolled - Non-payment of the fees
means that a candidate cannot get enrolled on the State roll -
Thus, all the miscellaneous fees collected from a candidate at
the time of enrolment essentially serve as a pre-condition to the
process of enrolment - Section 24(1) specifically lays down the
pre-conditions subject to which an advocate can be enrolled on
State rolls - Since Section 24(1)(f) specifies the amount that can
be charged by the SBCs as an enrolment fee, the SBCs and the
BCI cannot demand payment of fees other than the stipulated
enrolment fee as a pre-condition to enrolment. [Para 79]
Bar Council of India Rules - Rule 40 under Section IVA of
Chapter II of Part VI:
Held: Rule 40 under Section IVA of Chapter II of Part VI under
the BCI Rules mandates every advocate borne on the rolls to pay
the SBC a sum of Rupees three hundred every third year - The
sum under Rule 40 can only be collected from advocates already
admitted on the State rolls - Therefore, this sum cannot be collected
from persons at the time of enrolment - It must be collected from
advocates after they are admitted on the State roll. [Para 80]
Constitution of India - Art.14 - Enrolment of advocates -
Exorbitant Enrolment fees charged by SBCs - Substantive
equality and manifest arbitrariness:
Held: The burden of payment of enrolment fees and other
miscellaneous fees imposed by the SBCs falls equally on all
persons seeking enrolment - While the burden is facially neutral,
it perpetuates structural discrimination against persons from
marginalized and economically weaker sections of the society - In
more than one way, the process of enrolment perpetuates a culture
[2024] 7 S.C.R.
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Gaurav Kumar v. Union of India and Ors.
of systemic exclusion and discrimination that impacts the entry of law
graduates into the legal profession and even beyond - The right to
pursue a profession of one's choice and earn livelihood is integral
to the dignity of an individual - Charging exorbitant enrolment fees
and miscellaneous fees as a pre-condition for enrolment creates
a barrier to entry into the legal profession - The levy of exorbitant
fees as a pre-condition to enrolment serves to denigrate the dignity
of those who face social and economic barriers in the advancement
of their legal careers - This effectively perpetuates systemic
discrimination against persons from marginalized and economically
weaker sections by undermining their equal participation in the
legal profession - Therefore, the current enrolment fee structure
charged by the SBCs (Eg: the Bar Council of Maharashtra and
Goa charges a cumulative fee of Rupees fifteen thousand from
the general candidates and Rupees fourteen thousand five
hundred from SC and ST candidates) is contrary to the principle
of substantive equality. [Paras 84, 90]
Constitution of India - Art. 19(1)(g) - The right to practice law -
Fees or licences levied by the authorities - Unreasonableness:
Held: According to the current enrolment fee structure of the SBCs,
an advocate has to pay anywhere between Rupees fifteen thousand
to Rupees forty-two thousand as a pre-condition to enrolment -
The SBCs charge enrolment fees in excess of the stipulated fee
prescribed under Section 24(1)(f) - The excess enrolment fee
imposed by the SBCs is without authority of law - Compounded
with this there are no reasonable criteria behind the decision of
the SBCs to charge such exorbitant amounts as enrolment fees -
The SBCs cannot have unbridled powers to charge any fees
given the express legislative policy under Section 24(1)(f) -
Imposing excessive financial burdens on young law graduates
at the time of enrolment causes economic hardships, especially
for those belonging to the marginalized and economically weaker
sections of the society - Therefore, the current enrolment fee
structure charged by the SBCs is unreasonable and infringes Article
19(1)(g). [Para 102]
Advocates Act, 1961 - Exorbitant Enrolment fees charged by
the SBCs - Financial implications for the SBCs and the BCI:
Held: According to the legislative scheme of the Advocates Act, the
Bar Councils must only charge the amount stipulated under Section
24(1)(f) as an enrolment fee - Once the advocates are enrolled on
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the State rolls, the Bar Councils can charge fees for the services
provided to the advocates in accordance with the provisions of
the Advocates Act - It is for the SBCs and the BCI to devise an
appropriate method of charging fees that is fair and just not only
for the law graduates intending to enroll, but also for the advocates
already enrolled on the State rolls - There are several reasonable
ways by which the SBCs and BCI can and already do collect funds
at later stages of an advocate's career. [Paras 103, 104]
Case Law Cited
O N Mohindroo v. Bar Council of Delhi [1968] 2 SCR 709 : (1968)
SCC OnLine SC 3; Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
[1954] 1 SCR 1005 : (1954) 1 SCC 412; Corporation of Calcutta
v. Liberty Cinema [1965] 2 SCR 477 : (1964) SCC OnLine SC 65;
Navtej Singh Johar v. Union of India [2018] 7 SCR 379 : (2018)
10 SCC 1; Chintamanrao v. State of Madhya Pradesh [1950] 1
SCR 759 : (1950) SCC 695; Rashid Ahmed v. Municipal Board,
Kairana [1950] 1 SCR 566 : (1950) SCC 221; Mohammad Yasin
v. Town Area Committee, Jalalabad [1952] 1 SCR 572 : (1952) 1
SCC 205; Cooverjee B Bharucha v. Excise Commissioner [1954]
1 SCR 873 : (1954) 1 SCC 18 - followed.
CIT v. McDowell and Co. Ltd. [2009] 8 SCR 983 : (2009) 10 SCC
755; Ahmedabad Urban Development Authority v. Sharadkumar
Jayantikumar Pasawalla [1992] 3 SCR 328 : (1992) 3 SCC 285;
Pratap Chandra Mehta v. State Bar Council of MP [2011] 11 SCR
965 : (2011) 9 SCC 573; S Seshachalam v. Bar Council of Tamil
Nadu [2014] 12 SCR 465 : (2014) 16 SCC 72; Neil Aurelio Nunes
v. Union of India [2022] 11 SCR 585 : (2022) 4 SCC 1 - relied on.
Bar Council of U P v. State of U P [1973] 2 SCR 1073 : (1973)
1 SCC 261; Dr Haniraj L Chulani v. Bar Council of Maharashtra
and Goa [1996] Supp. 1 SCR 51 : (1996) 3 SCC 342; Girnar
Traders v. State of Maharashtra [2011] 3 SCR 1 : (2011) 3 SCC
1; Mahachandra Prasad Singh (Dr.) v. Bihar Legislative Council
[2004] Supp. 5 SCR 692 : (2004) 8 SCC 747; In re Delhi Laws
Act 1912 (1951) SCC 568; Vasantlal Maganbhai Sanjanwala v.
State of Bombay [1961] 1 SCR 341 : (1960) SCC OnLine SC 27;
Harishankar Bagla v. State of Madhya Pradesh [1955] 1 SCR 380 :
(1954) 1 SCC 978; Municipal Corporation of Delhi v. Birla Cotton,
Spinning and Weaving Mills, Delhi [1968] 3 SCR 251 : (1968) SCC
OnLine SC 13; Indian Express Newspapers (Bombay) (P) Ltd. v.
[2024] 7 S.C.R.
1495
Gaurav Kumar v. Union of India and Ors.
Union of India [1985] 2 SCR 287 : (1985) 1 SCC 641; State of
Tamil Nadu v. P Krishnamurthy [2006] 3 SCR 396 : (2006) 4 SCC
517; Azfal Ullah v. State of U P [1964] 4 SCR 991 : (1963) SCC
OnLine SC 76; Rohtak and Hissar Districts Electric Supply Co.
Ltd. v. State of Uttar Pradesh [1966] 2 SCR 863 : (1965) SCC
OnLine SC 75; D K Trivedi and Sons v. State of Gujarat [1986] 1
SCR 479 : (1986) Supp SCC 20; M P V Sundararamier & Co. v.
State of Andhra Pradesh [1958] 1 SCR 1422 : (1958) SCC OnLine
SC 22; Kandivali Coop. Industrial Estate v. Municipal Corporation
of Greater Mumbai [2015] 1 SCR 989 : (2015) 11 SCC 161; H H
Sudhindra Thirtha Swamiar v. Commissioner for Hindu Religious
and Charitable Endowments [1963] Supp. 2 SCR 302; Indian
Mica Micanite Industries v. State of Bihar [1971] Supp. 1 SCR
319 : (1971) 2 SCC 236; Kewal Krishan Puri v. State of Punjab
[1979] 3 SCR 1217 : (1980) 1 SCC 416; Sreenivasa General
Traders v. State of A P [1983] 3 SCR 843 : (1983) 4 SCC 353;
Secunderabad Hyderabad Hotel Owners' Association v. Hyderabad
Municipal Corporation [1999] 1 SCR 143 : (1999) 2 SCC 274;
Vam Organic Chemicals Ltd. v. State of U P [1997] 1 SCR 403 :
(1997) 2 SCC 715; A P Paper Mills Ltd. v. Government of A P
[2000] Supp. 3 SCR 513 : (2000) 8 SCC 167; In Re Sanjiv Dutta,
Deputy Secretary, Ministry of Information and Broadcasting [1995]
3 SCR 450 : (1995) 3 SCC 619; Ajitsinh Arjunsinh Gohil v. Bar
Council of Gujarat [2017] 5 SCR 984 : (2017) 5 SCC 465; Gupta
Modern DalitBreweries v. State of Jammu and Kashmir [2007] 5
SCR 343 : (2007) 6 SCC 317; Bar Council of Delhi v. Surjeet Singh
[1980] 3 SCR 946 : (1980) 4 SCC 211; Reiterated in Bar Council
of Maharashtra and Goa v. Manubhai Paragji Vashi (2012) 1 SCC
314; Indian Council of Legal Aid and Advice v. Bar Council of India
[1995] 1 SCR 304 : (1995) 1 SCC 732; Union of India v. Rajdhani
Grains & Jaggery Exchange Ltd. [1975] Supp. 1 SCR 1 : (1975)
1 SCC 676; Kunj Behari Lal Butail v. State of H P [2000] 1 SCR
1054 : (2000) 3 SCC 40; Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd.
v. CST [1974] 2 SCR 879 : (1974) 4 SCC 98; Agricultural Market
Committee v. Shalimar Chemical Works Ltd. [1997] Supp. 1 SCR
164 : (1997) 5 SCC 516; General Officer Commanding-in-Chief v.
Subhash Chandra Yadav [1988] 3 SCR 62 : (1988) 2 SCC 352;
Rajnarain Singh v. Patna Administration Committee [1955] 1 SCR
290 : (1954) 2 SCC 82; Avinder Singh v. State of Punjab [1979]
1 SCR 845 : (1979) 1 SCC 137; J K Industries Ltd. v. Union of
India [2007] 12 SCR 136 : (2007) 13 SCC 673; Assam Co. Ltd. v.
State of Assam [2001] 2 SCR 515 : (2001) 4 SCC 202; Consumer
1496
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Online Foundation and Others v. Union of India [2011] 5 SCR
911 : (2011) 5 SCC 360; Global Energy Ltd. v. Central Electricity
Regulatory Commission [2009] 9 SCR 22 : (2009) 15 SCC 570;
Bar Council of Kerala v. N S Gopakumar [SLP(C) No. 44268 of
2018]; Akshai M Sivan v. Bar Council of Kerala [WP(C) No. 3068
of 2023 (order dt. 12 June 2023)]; Joseph Shine v. Union of
India [2018] 11 SCR 765 : (2019) 3 SCC 39; Nitisha v. Union of
India [2021] 4 SCR 633 : (2021) 15 SCC 125; Hariram Bhambhi v.
Satyanarayan [2021] 8 SCR 855 : (2021) SCC OnLine SC 1010;
K S Puttaswamy v. Union of India [2018] 8 SCR 1 : (2017) 10
SCC 1; Ravinder Kumar Dhariwal v. Union of India (2023) 2 SCC
209; Khoday Distilleries Ltd. v. State of Karnataka [1995] Supp. 6
SCR 759 : (1996) 10 SCC 304; Clariant International Ltd. v. SEBI
[2004] Supp. 3 SCR 843 : (2004) 8 SCC 524; Shayara Bano v.
Union of India [2017] 9 SCR 797 : (2017) 9 SCC 1; Secretary,
Ministry of Chemicals & Fertilizers, Government of India v. Cipla
Ltd. [2003] Supp. 2 SCR 177 : (2003) 7 SCC 1; Franklin Templeton
Trustee Services (P) Ltd. v. Amruta Garg (2021) 9 SCC 606; N K
Bajpai v. Union of India [2012] 2 SCR 433 : (2012) 4 SCC 653;
Jamshed Ansari v. High Court of Judicature at Allahabad [2016] 4
SCR 111 : (2016) 10 SCC 554; R M Seshadri v. District Magistrate
[1955] 1 SCR 686 : (1954) 2 SCC 320; Minerva Talkies v. State of
Karnataka [1988] 2 SCR 511 : (1988) Supp SCC 176; Somaiya
Organics (India) Ltd. v. State of U P [2001] 3 SCR 33 : (2001) 5
SCC 519 - referred to.
Akshai M Sivan v. Bar Council of Kerala [Writ Petition (Civil)
No. 3068 of 2023 in the High Court of Kerala]; Manimaran v.
Bar Council of India [Writ Petition (MD) No. 8756 of 2023 in the
High Court of Madars at Madurai]; Amey Shejwal v. Bar Council
of Maharashtra and Goa [Writ Petition No. 3795 of 2021 in the
High Court of Bombay]; Bar Council of Maharashtra v. Union of
India (2002) SCC OnLine Bom 251; T Koshy v. Bar Council of
Kerala (2016) SCC OnLine Ker 41055; Bar Council of Kerala v.
T Koshy [W A No. 2170 of 2017] - referred to.
George Walkem Shannon v. Lower Mainland Dairy Products Board.,
1938 AC 708 - referred to.
Books and Periodicals Cited
Draft Uniform Rules (For Enrolment and Other Fees To Be Charged
By The State Bar Councils) 2023; Report of the All-India Bar
Committee (1953) 15; The Legal Practitioners Bill 1959, Report
[2024] 7 S.C.R.
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Gaurav Kumar v. Union of India and Ors.
of the Joint Committee (28 March 1960); Shri Shankaraiya,
Legal Practitioners Bill, Lok Sabha (27 April 1961) 14162; Legal
Practitioners Bill, Lok Sabha (27 April 1961) 14164; Rajya Sabha,
Advocates Bill 1961 (4 May 1961) 2125; Law Commission of
India, Fourteenth Report, Reform of Judicial Administration 1958
(Volume 1) 575; Resolution No. 32 of 2013, Gazette Notification
dated 28 June 2013; BCI. D 7114/2016(C1) dated 22 December
2016; Communication dated 28 January 2017 by the BCI to the
secretaries of the SBCs, BCI:D 529/2017(Council) dated 28 January
2017; Challenges for Dalits in South Asia's Legal Community,
Chapter III - Dalit Justice Defenders in India, American Bar
Association (2021) 16; Challenges for Dalits in South Asia's Legal
Community, Chapter III - Dalit Justice Defenders in India, American
Bar Association (2021) 17 - referred to.
List of Acts
Legal Practitioners Act, 1879; Indian Bar Councils Act, 1926;
Advocates Act, 1961; Constitution of India; Bar Council of India
Rules; Advocates Welfare Fund Act, 2011.
List of Keywords
All India Bar Committee; Delegated Legislation; Power to levy
fees; Regulatory fees; State Bar Councils; Enrolment of advocates;
Enrolment fees of advocates; Valid pre-condition; Substantive
equality; Arbitrariness; Article 14 of Constitution of India; Article
19(1)(g) of the Constitution; Section 24(1)(f) of the Advocates
Act, 1961; Bar Council of India; Enrolment fee of advocates;
Enrolment of advocates; Miscellaneous fees; Article 265 of
the Constitution of India; Article 366(28) of the Constitution of
India; Article 110 of the Constitution of India; Legislative policy;
Marginalized communities in legal profession; Dignity of an
individual; Reasonable restrictions; Excessive Enrolment fees;
Financial implications for State Bar Councils.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 352 of 2023
(Under Article 32 of The Constitution of India)
With
T.C.(C) Nos. 28, 29, and 30 of 2023, T.P.(C) Nos. 2526, 1982,
2088-2089, 2171, 2123 and 2734 of 2023
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Appearances for Parties
By Courts Motion
Solicitor General of India, K.M. Natraj, ASG, Raghenth Basant, R.
Balasubramanian, Manan Kumar Mishra, S. Prabakaran, Apurba
Kumar Sharma, C. Nageswara Rao, V. Giri, Sr. Advs., Ms. Kaushitaki
Sharma, Ms. Hima Bhardwaj, Ms. Purnima Krishna, Sachin Patil, Rohit
Kumar, Shailendra Singh, Adarsh Mishra, Mrs. Usha Prabakaran, Ms.
Divya, Ms. Rv Shaarumathi, G Jai Singh, Muthu Ganesa Pandian, M/s.
Ram Sankar & Co, Dr. Arvind S. Avhad, Rajat Kapoor, Sushil Sonkar,
Sanjay Shirsat, Mrs. Resmi Shirsat, Shivakant Vats, Rohit Jaiswal,
Mangesh Naik, Dnyaneshwar N Telange, Kailas Bajirao Autade,
Ravindra Sadanand Chingale, Dr. Ravindra Chingale, Ms. Rashi
Sheth, Ms. Sumbul Ausaf, Ms. Deeplaxmi Matwankar, Dr. Rakesh
Kumar, Ms. Kalyani Lal, Prabhas Bajaj, Anmol Chandan, Sharath
Nambiar, Ms. Ruchi Gour Narula, Shivank Pratap Singh, Satvik
Mishra, Arvind Kumar Sharma, Shubham Saurav, Gaurav Sharma,
M/s. Axess Legal Corp, Nitin Lonkar, Siddharth Dharmadhikari,
Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya
Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Ms. Deepanwita
Priyanka, M. Naveen, Ms. Anjul Dwivedi, G Anandan, Dr. Ram
Sankar, B Sasi Kumar, Mrs. Harini Ramsankar, M/s. Ram Sankar &
Co., Sudarshan Singh Rawat, Ms. Anubha Dhulia, Ms. Saakshi Singh
Rawat, Byrapaneni Suyodhan, Kumar Shashank, Ms. Tatini Basu,
Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Alok Kumar,
Kush Goel, Dhruva Kumar, Ajay Kuamr Agarwal, Sachin Jain, Vishal,
Rajiv Ranjan Dwivedi, Ms. Radhika Gautam, Mohammed Sadique
T.A., Alim Anvar, Rahul Narang, Rao Vishwaja, Harshed Sundar,
Nihar Dharmathikari, Niranjan Sahu, Umakant Misra, Mrs. Prabhati
Nayak, Debabrata Dash, Ms. Apoorva Sharma, Abhishek Gautam,
Sanjay Sharma, Keshari Kumar Tiwari, Karan Kapur, Dr. Ravinder
Kumar Singh, Ms. Kamayani Tripathi, Ajit Pathak, Yusuf, Sanpreet
Singh Ajmani, Sandeep Malik, Amit Kumar, Vishal Gera, Pukhrambam
Ramesh Kumar, Karun Sharma, Ms. Anupama Ngangom, Ms.
Rajkumari Divyasana, Ms. Vrinda Bhandari, Ms. Pragya Barsaiyan,
Madhav Aggarwal, Ms. Anandita Rana, Durgesh Ramchandra Gupta,
Vikas Verma, Mrs. Sapna Verma, Mayank Choudhary, Shafik Ahmed,
Danish Saifi, Ms. Anju, Bibhav Kumar Singh, Satya Prakash Gautam,
Shahid Akhtar, Advs. for the appearing parties.
Gaurav Kumar, Petitioner-in-person
[2024] 7 S.C.R.
1499
Gaurav Kumar v. Union of India and Ors.
Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents*
A.
Background....................................................................... 4
B.
Issues................................................................................. 8
C.
Submissions...................................................................... 8
D.
Legal background............................................................ 13
i.
All India Bar Committee........................................... 13
ii.
Advocates Act: A Complete Code........................... 17
iii. Delegated legislation................................................ 20
iv.
Power to levy fees....................................................
22
v.
Regulatory fees......................................................... 25
E.
Fees charged by the SBCs............................................
28
F.
SBCs cannot charge enrolment fees beyond the
mandate of Section 24(1)(f)............................................
31
i.
Legislative Scheme..................................................
31
ii.
Bar Councils cannot levy fees beyond the
express stipulation of law.......................................
39
G.
All fees charged at the time of enrolment are
'enrolment fees'...............................................................
46
i.
Charges other than the enrolment fee cannot be
a valid pre-condition................................................. 48
ii.
Article 14: substantive equality and manifest
arbitrariness..............................................................
51
iii. Article 19(1)(g): unreasonableness......................... 60
H.
Financial implications for the SBCs and the BCI ....... 65
I.
Conclusions...................................................................... 67
1.
The proceedings under Article 32 of the Constitution address a
challenge to the validity of the enrolment fees charged by State Bar
* Ed. Note: Pagination as per the original Judgment.
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Councils.1 The grievance is that the fees charged by the SBCs at
the time of admission of persons on State rolls are more than the
enrolment fee prescribed under Section 24(1)(f) of the Advocates
Act 1961.2
A.
Background
2.
The Advocates Act was enacted to amend and consolidate the law
relating to legal practitioners and constitute a common Bar for the
whole country. The enactment establishes the SBCs3 and the Bar
Council of India.4 Section 6 of the Advocates Act entrusts myriad
functions to the SBCs. These functions comprehend entry into and
conduct of legal professionals, including admission of advocates to
their rolls, preparation and maintenance of rolls, determination of
cases of misconduct against advocates on the rolls and safeguarding
the rights, privileges and interests of advocates. The statute empowers
the SBCs to organize legal aid for the poor, promote and support
law reform, conduct academic discourses, and publish journals and
papers on matters of legal interest.
3.
The functions of the BCI have been enumerated under Section 7.
These include laying down standards of professional conduct and
etiquette for advocates, enunciating the procedure to be followed
by its disciplinary committee and the disciplinary committee of the
SBCs, safeguarding the rights, privileges, and interests of advocates,
and promoting law reform. BCI is empowered to exercise general
supervision and control over the SBCs. BCI is also empowered to
impart legal education and lay down standards for legal education
in consultation with the universities whose degrees in law would be
a qualification for enrolment as an advocate and, for that purpose,
visit and inspect universities.
4.
Chapter III of the Advocates Act pertains to the admission and
enrolment of advocates. Section 17 mandates the SBCs to prepare
and maintain a roll of advocates. An application for admission as
an advocate on a State roll is made to the SBCs.5 The SBCs are
1
"SBCs"
2
"Advocates Act"
3
Section 3, Advocates Act
4
"BCI"; Section 4, Advocates Act
5
Section 25, Advocates Act
[2024] 7 S.C.R.
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Gaurav Kumar v. Union of India and Ors.
required to issue a certificate of enrolment to every person whose
name is enrolled in the roll of advocates.6 Section 24 prescribes
the qualifications and conditions for a person to be admitted as an
advocate.7
5.
To qualify to be admitted as an advocate on a State roll, a person
must:
(a) be a citizen of India;
(b) complete the age of twenty-one years;
6
Section 22, Advocates Act
7
Section 24, Advocates Act [It reads:
24. 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 (iii-a), 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 clerk's 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];
(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.]]
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(c)
obtain a degree in law;
(d) fulfil such other conditions as may be specified in the rules
made by the SBCs under Chapter III; and
(e) pay an enrolment fee of Rupees six hundred payable to the
SBC and Rupees one hundred to the BCI along with any
stamp duty, if chargeable. In the case of a person belonging
to the Scheduled Castes or Scheduled Tribes, the enrolment
fee of Rupees one hundred is payable to the SBC and Rupees
twenty-five to the BCI.
6.
The SBCs charge enrolment fees stipulated under Section 24(1)
(f) of the Advocates Act to admit law graduates on their State roll.
At the time of enrolment, the SBCs also charge various "fees" and
"charges" in addition to the enrolment fees in the form of library fund
contributions, administration fees, identity card fees, welfare funds,
training fees, processing fees, certificate fees, etc. The amount of
fees charged by the SBCs differ significantly. This results in a situation
where a law graduate has to pay somewhere between Rupees fifteen
thousand to Rupees forty-two thousand (depending upon the SBC)
as cumulative fees at the time of enrolment.
7.
The petitioner instituted proceedings under Article 32 of the
Constitution seeking a declaration that the fees charged by the SBCs
at the time of enrolment violate Section 24(1)(f) of the Advocates
Act. In its order dated 10 April 2023, this Court issued notice while
observing that the petitioner has raised a significant issue about the
enrolment fees charged by the SBCs. By an order dated 17 July
2023, this Court transferred to itself the petitions dealing with similar
issues from the High Court of Kerala,8 the High Court of Judicature at
Madras at Madurai,9 and the High Court of Judicature at Bombay.10
Given this background, we now deal with the challenge to the validity
of enrolment fees charged by the SBCs.
B.
Issues
8.
The petitions give rise to the following issues:
8
Akshai M Sivan v. Bar Council of Kerala, Writ Petition (Civil) No. 3068 of 2023
9
Manimaran v. Bar Council of India, Writ Petition (MD) No. 8756 of 2023
10
Amey Shejwal v. Bar Council of Maharashtra and Goa, Writ Petition No. 3795 of 2021
[2024] 7 S.C.R.
1503
Gaurav Kumar v. Union of India and Ors.
a.
Whether the enrolment fees charged by the SBCs are in
contravention of Section 24(1)(f) of the Advocates Act; and
b.
Whether payment of other miscellaneous fees can be made a
pre-condition for enrolment.
C.
Submissions
9.
Mr Gaurav Kumar, the petitioner-in-person, made the following
submissions:
a.
Section 24(1)(f) expressly prescribes the enrolment fee
chargeable by the SBCs and the BCI for persons to be admitted
as an advocate. SBCs are charging exorbitant enrolment fees,
often under different heads, in derogation of Section 24(1)(f);
b.
Once there is a specific provision prescribing enrolment fees,
the SBCs or the BCI through their delegated rule-making power
cannot charge fees beyond the substantive provision. Therefore,
the BCI and the SBCs cannot invoke their powers to frame rules
under Section 49(1) and Section 28(1) of the Advocates Act
respectively to prescribe enrolment fees that are at variance
with Section 24(1)(f);
c.
The term 'subject to the provisions of this Act' at the beginning of
Section 24 has been misconstrued to permit charging enrolment
fees beyond the statutory prescription. It only means that other
provisions of the Act must be considered while deciding the
'eligibility' of law graduates to be admitted as advocates on
the state rolls;
d.
Section 6(3) of the Advocates Act prescribes how the SBCs
may constitute 'funds' to fulfil their functions under Section 6(2).
It does not allow imposing additional charges under different
heads along with the enrolment fees or charging exorbitant fees
as a mandatory condition for persons to get enrolled;
e.
The exorbitant enrolment fees prevent law graduates belonging
to economically weaker sections of society from getting
admitted to the rolls of the SBCs. Such an indirect bar on
law graduates enrolling as advocates offends Article 19(1)(g)
of the Constitution. It also makes the process of enrolment
coercive, improper, unjust and unfair, violating Article 14 of
the Constitution; and
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f.
The Advocates' Welfare Fund Act 2001 enacted by Parliament
allows for the collection of funds through various sources for
the welfare of advocates. This amount does not need to be
collected by levying exorbitant enrolment fees.
10. Mr Manan Kumar Mishra, senior counsel made the following
submissions on behalf of the BCI:
a.
Bar Councils require adequate operational funds to effectively
discharge their functions. They require funds for day-to-day
functioning including administrative expenses, staff salaries,
infrastructure maintenance and technological advancements.
Inadequate funding will hinder the ability of SBCs to comply
with their statutory obligations under the Advocates Act;
b.
The enrollment fee prescribed under Section 24(1)(f) was fixed
by the legislature in 1993 and has not been modified since. It
fails to account for inflation and is not adequate to meet current
financial demands. Unlike other professional bodies that levy
an annual subscription fee on members, SBCs rely on the
one-time enrolment fee;
c.
The fees charged by SBCs at the time of enrollment include
additional expenses incurred in the enrolment process along
with the enrolment fee prescribed by the Act, such as online
data processing fee, identity card fee and verification process
fee. Therefore, the fees charged do not violate Section 24(1)
(f) and are linked to the services being rendered by the SBCs;
d.
Section 6(2) lays down the functions of the SBCs and places
enrolment of advocates exclusively within their domain. An
entity on whom statutory powers or duties have been conferred
impliedly possesses incidental powers necessary for its effective
exercise;
e.
Section 15 of the Act provides SBCs with the power to make
rules to carry out the purposes of Chapter II of the Act (including
Section 6). This general power to frame Rules includes the
power to levy charges for services rendered under the Act;
f.
Merely because a charge is levied at the time of 'enrollment' does
not make it an enrollment fee. The 'enrollment fee' charged by
most SBCs under Section 24(1)(f) continues to be six hundred
[2024] 7 S.C.R.
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Gaurav Kumar v. Union of India and Ors.
rupees and the remaining amount is usually attributable to
additional charges for other services. SBCs may be directed to
comply with Section 24(1)(f) while charging an 'enrollment fee'.
But this must be distinguished from other charges levied at the
time of enrolment. Such charges are permissible provided they
pass the test of quid pro quo in terms of services rendered in
return for the charges levied; and
g.
The BCI has the power to frame rules to charge reasonable
fees under Section 49(1) (ah) and Section 49(h). The term 'any
matter' used in Section 49(h) also includes matters relating to
the enrolment of an advocate. In exercise of this power and
to ensure uniformity, the BCI has placed on record before this
Court, the draft Uniform Rules (For Enrolment and Other Fees
To Be Charged By The State Bar Councils) 202311 laying down a
uniform fee to be charged by all SBCs at the time of enrollment.
11. In view of the above submissions, the BCI has submitted that this
Court exercise its extraordinary powers under Article 142 to implement
a uniform enrolment fee structure that adequately caters to the
financial requirements of the SBCs until legislative amendments are
made to the Advocates Act. Additionally, it has urged this Court to
direct the Union Government to revise the enrolment fee prescribed
in Section 24(1)(f).
12. The SBCs have filed counter affidavits justifying the imposition of
the fees charged by them at the time of enrollment.