# V. SUDEER ETC v. BAR COUNCIL OF INDIA AND ANOTHER

- **Citation:** [1999] 1 S.C.R. 1048
- **Court:** Supreme Court of India
- **Decided:** 1998-07-19
- **Bench:** S.B. Majmudar, S.N. Phukan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-sudeer-etc-v-bar-council-of-india-and-another-16612
- **Pages:** 49

## Headnote

Bar Council of India Training Rules, 1995 as amended by Bar Council
of India Resolution of July, 1998--Advocates Act 1961, Ss. 7(1)(h), 24(3)(d)
and 49( 1 )( ah)-Rules mandating pre-enrolment training for advoC
cate~Validity of-Whether Rules ultra vires Advocates Act, 1961-Held, yes;
the Rules were still-born and beyond the rnle making power of the Bar Council
of India.
Administrative Law-Rule making power-Bar Council of India Training Rules, 199~Whether mies could be validly made with reference to power
D under s. 49(1)(ag) or (ah) of Advocates Act, 1961-+Ield, no; rnle making
power has to take colour from statutory function entrnsted to Bar Council of
India; further held, rnle creating of a m;w class of trainee advocates could not
be sustained under s. 49(1)(ah).
E
Constitution of India, Articles 32, 136 and 142-f'rospective effect of
rnling-Consequential direction~Judgment to have no retrospective effect-Practice and Procedure.
In exercise of the rule making powers conferred on it under S.
24(3)(d) of the Advocates Act, 1961 ('Act'), the Bar Council oflndia ('BCI')
F promulgated the Bar Council of India Training Rules, 1995 ('Rules') which
mandated pre-enrolment training for a minimum of one year for any
,
applicant seeking enrolment as an advocate. By a resolution of the BCI
dated July 19, 1998 these Rules were amended. The trainees were to be
provisionally enrolled as 'Trainee Advocates' and issued identity cards.
G They were to maintain two types of diaries - one for work done in the
chambers and the other for work in the courts. They would be entitled to
appear before the courts for seeking adjournments and make mentioning
on instruction of their guide.
Writ petitions were tiled in this court challenging the validity of the
H Rules on the grounds that they were ultra vires the Act; that they were
1048
. ..
V. SUDEER v. BAR COUNCIL OF INDIA
1049
arbitrary, unreasonable and violative of Articles 14 and 19(1) (g) of the A
Constitution. The BCI sought to defend the Rules with reference to the
powers under Ss. 7(1)(h), 24(3)(d) and 49(1)(ag) and (ah) of the Act. The
Bar Council of Maharashtra and Goa ('BCMG') filed an appeal in this
Court against the decision of the Bombay High Court upholding the
validity of the Rules. Against the view taken by the punjab and Haryana
High Court that the Rules would apply prospectively, the BCI filed an
appeal
Allowing the writ petitions and BCMG's appeal and dismissing
BCl's appeal, this Court
Held : 1.1. The impugned Rules failed and were still-born being
beyond the rule making power of the Bar Council of India.
1.2. S. 24(3)(d) of the Advocates Act could not be legitimately invoked
B
c
for sustaining the Rules. The rule making power thereunder could be
utilised for making ineligible persons eligible for enrolment but could not D
be utilised for disqualifying those from enrolment who were otherwise
qualified to be enrolled. [1073-B]
1.3. The BCI could not, for promoting legal education under s.
7(l)(h), itself take up the role of laying down pre- enrolment training for E
applicants seeking to enter the legal profession. Granting of admission to
a person for being enrolled as an advocate under the Act was a statutory
function of the State Bar Council only. The Bar Council of India had no
role to play on this aspect. [1076-B]
2.1. Any Rule framed under s 49(1)(at), (ag) or (ah) having not been
F
made for discharging any of the statutory functions of the Bar Council of
India, had to necessarily fail as it would be ultra vires the statutory
functions of the Bar Council of India. [1076-G-H]
2.2. The rule making power under s. 49(1)(ag) pertained to only
those classes of persons who were thought fit to be enrolled as advocates G
~ough they might not be eligible to be enrolled under s. 24(1) of the Act.
It had to take colour from and not travel outside the statutory function
entrusted to the Bar Council of India by s. 24(3)(d) which did not enable
the Bar Council of India to impose additional re

## Text

_Characters 0–39,853 of 115,251. This is a partial read: ask again with offset=39853 for what follows._

A
V. SUDEER ETC.
v.
BAR COUNCIL OF INDIA AND ANOTHER
MARCH 12 AND 15, 1999
B
(S.B. MAJMUDAR AND S.N. PHUKAN, JJ.]
Bar Council of India Training Rules, 1995 as amended by Bar Council
of India Resolution of July, 1998--Advocates Act 1961, Ss. 7(1)(h), 24(3)(d)
and 49( 1 )( ah)-Rules mandating pre-enrolment training for advoC
cate~Validity of-Whether Rules ultra vires Advocates Act, 1961-Held, yes;
the Rules were still-born and beyond the rnle making power of the Bar Council
of India.
Administrative Law-Rule making power-Bar Council of India Training Rules, 199~Whether mies could be validly made with reference to power
D under s. 49(1)(ag) or (ah) of Advocates Act, 1961-+Ield, no; rnle making
power has to take colour from statutory function entrnsted to Bar Council of
India; further held, rnle creating of a m;w class of trainee advocates could not
be sustained under s. 49(1)(ah).
E
Constitution of India, Articles 32, 136 and 142-f'rospective effect of
rnling-Consequential direction~Judgment to have no retrospective effect-Practice and Procedure.
In exercise of the rule making powers conferred on it under S.
24(3)(d) of the Advocates Act, 1961 ('Act'), the Bar Council oflndia ('BCI')
F promulgated the Bar Council of India Training Rules, 1995 ('Rules') which
mandated pre-enrolment training for a minimum of one year for any
,
applicant seeking enrolment as an advocate. By a resolution of the BCI
dated July 19, 1998 these Rules were amended. The trainees were to be
provisionally enrolled as 'Trainee Advocates' and issued identity cards.
G They were to maintain two types of diaries - one for work done in the
chambers and the other for work in the courts. They would be entitled to
appear before the courts for seeking adjournments and make mentioning
on instruction of their guide.
Writ petitions were tiled in this court challenging the validity of the
H Rules on the grounds that they were ultra vires the Act; that they were
1048
. ..
V. SUDEER v. BAR COUNCIL OF INDIA
1049
arbitrary, unreasonable and violative of Articles 14 and 19(1) (g) of the A
Constitution. The BCI sought to defend the Rules with reference to the
powers under Ss. 7(1)(h), 24(3)(d) and 49(1)(ag) and (ah) of the Act. The
Bar Council of Maharashtra and Goa ('BCMG') filed an appeal in this
Court against the decision of the Bombay High Court upholding the
validity of the Rules. Against the view taken by the punjab and Haryana
High Court that the Rules would apply prospectively, the BCI filed an
appeal
Allowing the writ petitions and BCMG's appeal and dismissing
BCl's appeal, this Court
Held : 1.1. The impugned Rules failed and were still-born being
beyond the rule making power of the Bar Council of India.
1.2. S. 24(3)(d) of the Advocates Act could not be legitimately invoked
B
c
for sustaining the Rules. The rule making power thereunder could be
utilised for making ineligible persons eligible for enrolment but could not D
be utilised for disqualifying those from enrolment who were otherwise
qualified to be enrolled. [1073-B]
1.3. The BCI could not, for promoting legal education under s.
7(l)(h), itself take up the role of laying down pre- enrolment training for E
applicants seeking to enter the legal profession. Granting of admission to
a person for being enrolled as an advocate under the Act was a statutory
function of the State Bar Council only. The Bar Council of India had no
role to play on this aspect. [1076-B]
2.1. Any Rule framed under s 49(1)(at), (ag) or (ah) having not been
F
made for discharging any of the statutory functions of the Bar Council of
India, had to necessarily fail as it would be ultra vires the statutory
functions of the Bar Council of India. [1076-G-H]
2.2. The rule making power under s. 49(1)(ag) pertained to only
those classes of persons who were thought fit to be enrolled as advocates G
~ough they might not be eligible to be enrolled under s. 24(1) of the Act.
It had to take colour from and not travel outside the statutory function
entrusted to the Bar Council of India by s. 24(3)(d) which did not enable
the Bar Council of India to impose additional restriction on the eligibility
of an applicant seeking enrolment. [1077-H; 1078-D]
H
1050
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A
2.3. Any truncating of the very right to practice itself in exercise of
B
rule making power under s. 49(1)(ah) by creating a new .class of trainee
advocates could not be sustained. [1083-D]
Indian Council of Legal Aid & Advice v. Bar Council of India, [1995]
1 SCC 732; Re : Lily Isabel Thomas, [1964] 6 SCR 229, referred to.
3. The judgment would have· no retrospective effect. It would not
apply to those applicants fo)\ enrolment who had earlier applied for
enrolment and had successfully completed their pre- enrolment training
as per the impugned Rules. Those who applied for enrolment after the
C judgment would not have to undergo pre- enrolment training. This would
be irrespective of the fact whether they had earlier applied for but not
completed their pre· enrolment training till the (late of the judgment or
whether they had not earlier applied despite getting their law degrees prior
to the date of the judgment. [1095-G-H; 1096-A]
D
CIVIL ORIGINAL JURISDICITON : Writ Petition (C) No. 398 of
1996 Etc. Etc.
(Under Article 32 of the Co'.lStitution of India.)
C.S. Vaidyanathan, Additional Solicitor General, Joseph Vellapally,
E (A.C., P.P. Rao, V.B. Joshi, Umesh Bhagwat, Janardan, Ranjit Kumar, S.
F
G
Ganesh, S.R. Setia, N.N. Keshwani, P. Parmeswaran, Ajay Talesara, Sanjeev Sachdeva, E.C. Agrawala, A. Mariarputham, Ms. Arona Mathur, S.
Srinivasan, S.S. Khanduja, Y.P. Dhingra, B.K Satija, G. Praksh, Ms. Beena
Prakash, G. Prabhakar, P. Gaur, Mrs. Deepa Rathore, Rajan Narain, H.A.
Raichura and R.K. Maheswari for the appearing parties.
In-person for Petitioner in W.P. (C) No. 434, 887/96 and 495/97.
In-person for Respondent No. 31 in T.C. (C) No. 342-350/96.
Rajesh Sharma-in-person for intervenor in W.P. No. 398/96.
The Judgments of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted in the Special Leave Petitions.
These Writ Petitions under Article 32 of the Constitution of India as
H well as the two special leave petitions being S.L.P.(C) Nos.13755 of 1996
 I
..
·-·
' '
V. SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.]
1051
~·
and 12989 of 1998 moved by the Bar Council of Maharashtra & Goa and A
the Bar Council of India respectively raise a common question for our
consideration, namely, whether the Bar Council of India Training Rules,
1995 (for short 'the Rules') as amended by the Resolution of the Bar
Council of India in its meeting dated 19th July, 1998 relating to training to
entrants of legal profession are within the competence of the Bar Council B
...
of India or are ultra vires its rule making powers under the Advocates Act,
...
1961 (for short 'the Act') and in the alternative whether these Rules are
unreasonable and arbitrary and hence violative of Article 14 of the Constitution of India.
The writ petitioners, who have successfully completed their legal c
education by getting requisite Law degrees from the Universities concerned have contended before us in these writ petitions that their right to
practise Law as made available under the relevant provisions of the Act is
being arbitrarily denied by the impugned rules framed by the Bar Council
of India and, therefore, their fundamental right under Article 19{1)(g) of D
the Constitution of India is being violated. That the said Rules do not
impose any reasonable restrictions on the exercise of their fundamental
right. It is also contended that in any case, the Rules are so framed as to
be totally unworkable and are highly umeasonable and discriminatory in
character and hence they offend Article 14 of the Constitution of India
also. The civil appeal arising out of the SLP by the Bar Council of E
Maharashtra & Goa brings in challenge the decision of the Bombay High
Court which upheld the impugned rules and dismissed the writ petition
filed by it and that is how the State Bar Council is before us. Its contention
is on the same lines as canvassed by learned counsel appearing for the writ
petitioners. While civil appeal arising out of SLP (C )No.12989of1998 filed
F
· by the Bar Council of India, on the other hand, brings in challenge the
,,
Judgment and Order rendered by the learned Single Judge of Punjab &
Haryana High Court, who took the view in favour of the original writ
petitioner - Respondent herein, that the impugned rules would not apply
to the writ petitioner who had obtained his Law degree in 1981 as the Rules
were purely prospective in character. It is, therefore, obvious that all these G
matters raise a common question regarding legality and validity of, the
impugned rules. If the Rules are upheld, then only further question
~-
whether they are prospective in nature or not would survive. This Court
has treated the Writ Petition (Civil) No.398 of 1996 as the leading petition
and, therefore, we shall also refer to the pleadings of the parties and the
relevant documents filed therein in the latter part of this judgment. By H
..
1052
SUPREME COURT REPORTS
[1999] 1 S.CR.
A order dated 16th September, 1997, a three Judge Bench of this Court,
presided over by S.C.Agrawa~ J., appointed Shri Joseph Vellapally;
learned senior advocate as amicus curiae to assist the Court on behalf of
the petitioner. All other petitioners in person were permitted to submit
their written submissions and the oral arguments were permitted to be
submitted on behalf of all of them by learned amicus curiae senior advoB cate. We have to place on record our high sense of appreciation for the
pains taken by amicus curiae Senior Advocate, Shri Joseph Vellapally, who
has been good enough to look into all the relevant aspects of the matter
and has placed his oral and written submissions in this connection. By
order dated 21st February, 1997, another two Judge Bench of this Court,
C while treating writ petition (Civil) No .398 of 1996 as a leading petition,
directed that other petitions that are pending in the High Court or which
may be filed thereafter shall remain stayed till further orders of this Court.
The parties have exchanged relevant pleadings which are all brought on
record supported by documents on which they rely.
D
It appears that earlier when these group of matters reached fmal
hearing, in the light of what transpired in the Court then, a Bench of this
Court consisting of S.C.Agrawal and B.N.Kirpal, JJ. by order dated 30th
September, 1997 adjourned these pr JCeedings to enable the Bar Council
of India to take a fresh decision in the matter in the light of its decision
taken in the earlier meetings regarding suitable modification of the imE pugned rules. It appears that ultimately on 4th August, 1998, before a
Bench of three learned Judges, Shri P.P. Rao, learned senior couilsel,
placed a copy of the Resolution of Bar· Council of India whereby the Rules
were amended. We have also mentioned the earlier Resolution by which
the impugned rules were amended. It is thereafter that these group of
F matters reached for fmal hearing before us. We, therefore, have to examine
the legality and validity of the impugned rules as amended by the Resolution of the Bar Council of India dated 19th July, 1998.
G
Rival Contentions :
We may briefly mention the rival contentions submitted for our
consideration by learned counsel Shri N.N.Keshwani, who appeared in
support of Writ Petition No.425 of 1998, as well as learned amicus curiae
Shri Joseph Vellapally on behalf of other writ petitioners and Shri P.P.Rao,
learned senior counsel for the Bar Council of India, which is the author of
H the impugned rules in support of their respective cases.
'·•
..
I '
V.SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.]
1053
4.'
Learned counsel for the petitioners submitte.d, tracing the history of A
the relevant provisions of the Act and the Rules, that there is no power
with the Bar Council of India to frame the impugrted rules. That Section
7 of the Act lays down the statutory functions of the Bar Council of India.
The provisions thereof do not entitle the Bar Council of India to frame
such impugned rules prescribing a pre-condition before enrolment of an
B
applicant as an 'advocate' under the Act by requiring him to undergo pre-
••
enrolment training and apprenticeship as laid down under the impugned
..
rules. It was also submitted that Section 24 sub-section (3)( d) of the Act
also was not available to the Bar Council of India to frame such Rules. As
a sequel, it was submitted that rule making power of the Bar Council of
India as laid down by Section 49 could not be pressed in service by it in c
. support of the impugned rules.
On the other hand, learned counsel in writ petition No.425 of 1998,
submitted that even assuming that the impugned rules fall within the rule
making power•of the Bar Council of India, the Rules framed are so
D
~
obnoxious, arbitrary, unreasonable and unworkable that they violate the
fundamental right of the petitioners under Article 14 of the Constitution
~
of India in any case. The appeal arising from SLP No.12989 of 1998 filed
by the Bar Council of India, raising the question of retrospective effect of
the Rules in question projected an additional contention, which may not
survive if the Rules are held to be ultra vires the rule making power of the E
Bar Council of India. In support of the contentions raised on behalf of the
petitioners by the learned counsel, reliance was placed on a three Judge
Bench judgment of this Court in Indian Council of Legal Aid & Advice &
Ors. v. Bar Council of India & Anr., 1995 (1) SCC 732, while Shri Rao,
learned senior counsel for the Bar Council of India, submitted on the other
hand, that the said decision while interpreting the provisions of Section F
~·
49(1)(ah) of the Act was rendered per incuriam as it had not noticed the
decision of the Constitution Bench of this Court in re: Lily Isabel Thomas,
1964 (6) SCR 229, as well as the express provisions of Section 24(3)(d) of
the Act. Mr. Rao submitted that the impugned rules were legal and valid
and were properly framed under Section 7 read with ~ection 24(3)(d) and
G
Section 49(1) and (2) of the Act. In the light of the aforesaid rival
contentions, the following points arise for our consideration :
•·
1. Whether the impugned rules are ultra vires the rule making power
· of the Bar Council of India as available to it under the provisions of the
Act.
H
..
1054
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A
2. If the aforesaid question is answered in negative and in favour of
the Bar Council of India, whether the impugned rules are arbitrary and
unreasonable so as to violate the guarantee of Article 14 of the Constitution
of India;
3. If the impugned rules are legal and valid, whether the respondent
B in Bar Council of India's appeal, who has got his Law degree prior to the
coming into force of these Rules, can be required to comply with these
Rules if he applies for being enrolled as an 'advocate' under the Act after
the Rules came into force; and
c
4. What final order?
We shall deal with these points seriatim.
Point No. l: In order to appreciate the rival contentions centering
round this point, it will be necessary to have a peep intp the historical
D background of the Act which came into force years back in 1961 and also
have a bird's eye view of the subsequent amendments thereto spread over
number of years during its currency till date. It will also be necessary to
keep in view the salient features of the relevant provisions of the Act. The
Act seeks to amend and consolidate the law relating to legal practitioners
E and to provide for the constitution of Bar Councils and an All-India Bar.
A Bill was introduced in the Parliament seeking to implement the recommendations of the All- India Bar Committee made in 1953 after taking into
account the recommendations of the Law Commission on the subject of
Reform of Judicial Administration in so far as the recommendations
related to the Bar and to 'Legal Education'. The main features of the Bill
F were as under :-
G
"(1) the establishment of an All-India Bar Council and a common
roll of advocates, an advocate on the common roll having a
right to practise in any part of the country and in any Court,
including the Supreme Court;
(2) the integration of the bar into a single class of legal practitioners known as advocates;
(3) the prescription of a uniform qualification for the admission
H
of persons to be advocates;
,_
·•
1
4:.'
...
V. SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.]
1055
( 4) the division of advocates into senior advocates and other A
advocates based on merit;
(5) the creation of autonomous Bar Councils, one for the whole
of India and one (sic) for each State."
Section 2, sub-section (1) clause (a) of the Act defines, amongst others, an
"advocate" to mean "an advocate entered in any roll under the provisions of
this Act". Section 2, sub-section (1) clause (d) defines 'Bar Council' to mean
B
"a Bar Council constituted under this Act". While as per clause (e) "Bar
Council of India" means "the Bar Council constituted under Section 4 for the
territories to which this Act extends". "Law graduate" is defined by clause (h) C
to mean "a person who has obtained a bachelor's degree in Law from any
University established by Law in India;" and a "legal practitioner" in clause (i)
to mean "an advocate [or vakil) of any High Court, a pleader, mukhtar or
revenue agent;". The term "roll" is defined in clause (k) to mean " a roll of
advocates prepared and maintained under this Act;". The "State Bar Council"
is defined in clause (m) as "a Bar Council constituted under Section 3;" and D
.. ·
"State roll" is defined in clause (n) as "a roll of advocates prepared and
maintained by a State Bar Council under Section 17'. When we turn to Section
..1
17, we find that it is in Chapter Ill of th.e Act dealing with 'admission and
enrolment of advocates'. Section 16, which precedes Section 17, deals with
Senior and other Advocates and lays down in sub-section (1) thereof that : E
"There shall be two classes of advocates, namely, senior advocates and other
advocates" and then follows Section 17, sub-section (1) which provides that :
•··
"Every State Bar Council shall prepare and maintain a roll of advocates."
Sub-section (2) reads thereof as under :-
"Each such roll of advocates shall consist of two parts, the first
F
part containing the names of senior advocates and the second part,
the names of other advocates."
Section 22 provides for certificate of enrolment and sub-section (1) thereof
lays down that 'There shall be issued a certificate of enrolment· in the
prescribed form by the State Bar Council to every person whose name is G
entered in the roll of advocates maintained by it under this Act". Section 23
lays down 'Right of pre-audience and the priority given to the various advocates while addressing Courts'. It lays down the scheme of priority as follows
: The Attorney-General of India has pre-audience over all other advocates.
Next comes Solicitor-General of India in the order of priority for audience. H
\
1056
SUPREME COURT REPORTS
(1999] 1 S.C.R.
A Then, the Additional Solicitor- General of India; followed by the second
Additional Solicitor- General of India, further followed by Advocate
·~
General of any State. Next in the hierarchy of the priority come senior
;_
advocates and last are other advocates having right of audience. It becomes, therefore, clear that once an applicant is enrolled as an 'advocate'
B
in the 'State roll' maintained by the State Bar Council, he gets right of
audience subject to the scheme of priorities as mentioned in Section 23
and naturally "audience" implies the full right of addressing the Court on
·~
all legal and factual issues involved in the case in which he appears as an
~
advocate under the Act. Now follows Section 24, which lays down the
'qualifications for a person to be admitted as an advocate on a State roll'.
c The said section, with its relevant sub-sections (1),(2) and (3) deserves to
be extracted in extenso at this stage :
"Persons who may be admitted as advocates 011 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
D
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
E
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 -
L
F
(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
G
as defined by the Government of India Act, 1935; or
[(iii) after the 12th day of March, 1967, save as provided in
sub-clause (iiia), after undergoing a three-year course of study in
Law from any University in India which is recognised for the
...
purposes of this Act by the Bar Council of India; or (iii-a) after
H
undergoing a course of study in Law, the duration of which is not less
.
'
.,.
V. SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.]
1057
than two academic years commencing from the academic year A
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 B
the Bar Council of India; or J
[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];
(d) [xx
xx
xx]
( e) he fulfils such other conditions as may be specified in the
Rules made by the State Bar Council under this Chapter;
c
D
[ ( t) he has paid, in respect of the enrolment, stamp duty, if any,
chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an E
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
F
be deemed to have obtained a degree in Law from a University in G
India on the date on which the results of the examination for that
degree are published by the University on its notice-board or
otherwise declaring him to have passed that examination.]
(2) Notwithstanding anything contained in sub-section (1), [a
vakil or a pleader who is a Law graduate] may be admitted H
1058
A
B
SUPREME COURTREPORTS
[1999] 1 S.C.R,
as an advocate on a State roll if he -
(a) makes an application for such enrolment in accordance with
the provisions of this Act, not later than two years from the
appointed day; and
(b) fulfils the conditions specified in clauses (a), (b), (e) and (t)
of sub-section (1).
[(3) Notwithstanding anything contained in sub-section (1), a person who -
C
(a)[xx xx] has, for at least three years, been a vakil or a pleader or
a mukhtar, or was entitled at any time to be enrolled under any
Law [xx xx xx] as an advocate of a High Court (including a High
Court of a former Part B State) or of a Court of Judicial Commissioner in any Union territory; or
D
[(aa) before the Ist day of December, 1961, w;s entitled otherwise
than as an advocate to practise the profession of Law (whether by
way of pleading or acting or both) by virtue of the provisions of
any Law, or who would have been so entitled had he not been in
public service on the said date; or]
E
(b) [xx xx xx]
F
G
(c) before the 1st day of April, 1937, has been an advocate of any
High Court in any area which was comprised within Burma
as defined in the Government of India Act, 1935; or
(d) . is entitled to be enrolled as an advocate under any rule made
by the Bar Council of India in this behalf, may be admitted
as an advocate on a State roll if he-
(i)
makes an application for such enrolment in accordance with
· the provisions of this Act; and
(ii) fulfils the conditions specified in clauses (a), (d), (e) and (t)
of sub-section (1).
Xxx
xxx
xxx''
H The aforesaid Section has undergone number of.amendments by passage
' \
'·
. ..
V. SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.J
1059
"".
of time since the enactment of the said Act. It is, therefore, necessary to A
refer to the relevant amendments to that Section. ·It may be noted that
Section 24 sub-section (1), as it stands on the statute book on date, does
not include clause ( d) which was omitted by Section 18 of amending Act
60 of 1973 with effect from 31st January, 1974. This clause ( d) of Section
24 as it stood originally from 1961 read as under :
B
,,. .
" ( d) he has undergone a course of training in Law and passed an
"
examination after such training both of which shall be prescribed by the
State Bar Council; Provided that this clause not apply to •
(i)
a barrister who !las received practical training in England or c
a person who has obtained a degi:ee in Law from any University in India before the appointed day;
(ii) any person who has for at least two years held a judicial office in
the territory of India or is a member of the central Legal Service;
(iii) any person who has for at least two years held a judicial office D
in any area which was comprised before the 15th day of
August, 1947, within India as defined in the Government of
India Act, 1935, or has been an advocate of any High Court
in any such area;
E
(iv) any person who has practised before any High Court and who
has discontinued practice by reason of his taking up employment under the Government, a local authority or any other
person; and
(v) any other class of persons who by reason of their legal training F
,.
or experience are declared by the Bar Council of India to be
exempt from the provisions of this clause;"
The aforesaid clause ( d) also. underwent a change from 1964. The said
clause ( d), in the form in which it is extracted above was operative only G
upto 1964. It was amended in 1964 and then read as under :
"in clause ( d) ·
......
(i) the words "after such training" shall be omitted;
(ii) in the proviso, for paragraph (i), the following paragraph shall
be substituted, namely :-
H
•
A
B
1060
SUPREME COURT REPORTS
[1999] 1 S.C.R.
"(i) a person who has obtained a degree in Law from any University
in India on the results of an examination held before the 31st day
of March, 1964 or such other later date as may be prescribed, or
a barrister who was called to the Bar before such date, or a
barrister who, having qualified after that date, has received such
practical training in Law as may be recognised in this behalf by
the Bar Council of India;"
It becomes, therefore, clear that between 1961 to 1964, the State Bar
Council, as a condition of enrolment, required an applicant to undergo a
course of training in Law and also required him to pass the examination
C after such a training. But after 1964 till 1973, it was permissible for the
State Bar Council to prescribe a course of training in Law as a precondition
for enrolment of a candidate and he was also required to pass the requisite
examination during the training or even after completion of the training
course and such examination could be prescribed by the State Bar Council
D concerned only. It is further required to be noted that in the aforesaid
Section 24, between 1961 to 1964, there was no sub-section (3). That
sub-section (3) came to be inserted in Section 24 in 1964 by Act 21 of 1964.
In order to appreciate the scope and ambit of sub-section (3) of Section
24, as inserted by the aforesaid amending Act, it will be profitable to have
E a look at the objects and reasons underlying the introduction of the said
amendment. These objects and reasons stated that it was felt necessary to
give powers to the Bar Council of India with a view to enable it to add to
the categories of eligible candidates those persons who were otherwise not
eligible to be enrolled under Section 17 read with Section 24(1) of the Act,
F as it then stood on the statute book. In para 3 of the objects of the Bill at
Item No.5 was mentioned the fact that categories of persons who were not
by then entitled to be enrolled as advocates could be brought in by
conferring powers on the Bar Council of India as per the amending
provisions. Thus, sub-section (3) of Section 24 was brought on the statute
book by the said amending Act 21 of 1964.
G
Before we come to the present texture of Section 24, we may mention
one more amending Act 60 of 1973, which by Section 18 thereof, deleted
the then existing clause (d) from sub-section (1) of Section 24. Meaning
thereby, after 31st January, 1974, the State Bar Councils were deprived of
H their powers to prescribe a course of pre- enrolment training in Law and
. ·•
(
V. SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.]
1061
.if·
examination to be undergone by Law graduates who were seeking enrolment as 'advocates' on the State roll.
A
We may at this stage refer to the statement of objects and reasons
as mentioned in the Advocates (Amendment) Bill, 1970 for further amending the Act and which (Amendment) Bill ultimately resulted into the B
Amending Act 60 of 1973 by which Section 24(1)(d) stood deleted. The
•
said clause, as noted earlier, entitled the State Bar Councils to frame Rules
'!'
for prescribing pre-enrolment training and examination subject to which a
person would get qualified to be enrolled as an advocate on the State roll.
The reason why this pre- enrolment training and examination was sought c
to be done away with by the Parliament is clearly seen from the statement
of objects and reasons for introducing the aforesaid (Amendment) Bill of
1970. The said statement of objects and reasons was produced before us
by learned Additional Solicitor General, Shri.C.S.Vaidyanathan for our
scrutiny. Amongst others the need for deleting the statutory provision
regarding pre-enrolment training was highlighted by paragraph (iii) of the D
...
said statement of objects and reasons. It is profitable to reproduce the said
)
paragraph as under :-
"Pre- enrolment training - The Bar Council of India has decided
that in future a degree in Law can be obtained only after underE
going a three-ye,ar course of study in Law after graduation as a
result of which the age of entry into the legal profession becomes
much higher than the age of entry in other professions. It is,
therefore, felt that after a three- year course in Law in a University
it is not necessary to retain the statutory provision in the Act
F
requiring a further examination or practical training."
,
It becomes clear from a mere look at the said paragraph that it was
the Bar Council of India itself which had decided that a Degree of Law
obtained by a person after undergoing three years course of study after
graduation would be enough for qualifying him to be enrolled as an G
Advocate under the Act and, therefore, pre-enrolment training till then
required of him before getting enrolment was not necessary. This decision
~·
of the Bar Council of India was accepted by the Parliament and aforesaid
provision by way of additional eligibility condition for enrolment as an
advocate as then existing under Section 24(1)(d) was deleted.
H
1062
SUPREME COURT REPORTS
[1999] 1 S.C.R.
A
, ·So far as three years LLB degree course is concerned, the syllabus
prescribed by the Bar Council of India itself by its communication dated
21st October, 1997 addressed to the Registrars of all the Universities
imparting Legal Education in India, the Deans of faculties of Laws of
Universities and the Members of the Law colleges makes it clear that
B practical training to be given to a Law student prior to his getting degree
of Law from University after completing three years course was to be
included in the course of study. As practical training was suggested by the
Bar Council of India itself for being included in the "curriculum to be
prescribed by the Universities for Law students, it obviously became redunC dant for providing further practical training before enrolment of such
traine_d graduates in Law. That is precisely the reason why after January,
1974 need for pre-enrolment training was not insisted upon by the legislature and that too at the suggestion and on the recommendation of the Bar
Council of India itself. However, learned Senior Counsel Shri P.P. Rao for
the Bar Council of India is right when he contends that in those days it
D may have been so felt, but with passage of time and experience gained by
the Bar Council of India regarding the actual working of legal profession
at various levels in India and also in the light of the recommendation of
higher power committee chaired by Hon'ble Mr. Justice AM. Ahmadi to
be referred to hereinafter, the need for providing training to advocates
E before they become entitled to practise was visualised and that is the
reason why the impugned rules were enacted and that, therefore, what the
Bar Council of India decided in 1973 cannot create any estoppel against
the Bar Council of India in 1995. Even accepting this contention, the
question remains whether the Bar Council of India by resorting to the
F enactment of impugned rules had remained within the permissible limits
of its rule making power or not and it is this question which has to be
considered by us in the present proceedings.
We may, at this stage, also refer to Section 7, laying down the
statutory functions of the Bar Council of India. This Section, as it stood at
G the relevant time, read as under :
"7. Functions of Bar Council of India - [(1)] The functions of the
Bar Council of India shall be -
· ~
H
(a) [ xx
xx
xx]
V. SUDEER v. BAR COUNCIL OF.INDIA [S. B. MAJMUDAR, J.]
1063.
-1(-
(b) to lay down standards of professional conduct and etiquette A
for advocates;
(c) to. lay down the procedure to be followed by its disciplinary
committee and the disciplinary committee of each State Bar
Council;
B
.. '
(d) to safeguard the rights, privileges and interests of advocates;
,
(e) to promote and support Law reform;
(t)
to deal with and dispose of any matter arising under this Act,
which may be referred to it by a State Bar Council;
c
(g) to exercise general supervision and control over State Bar
Councils;
(h) to promote Legal Education and to lay down standards of
D
~ ..
such education in consultation with the Universities in India
imparting such education and the State Bar Councils;
l
(i)
to recognise Universities whose degree in Law shall be a
qualification for emolments as an advocate and . for that
purpose to visit and inspect Universities [or cause the State E
Bar Councils to visit and inspect Universities in accordance
with such directions as it may give in this behalf);
[ (ia) to conduct seminars and organise talks on legal topics by
eminent jurists and publish journals and papers of legal interest;
(ib) to organise legal aid to the poor in the prescribed manner;
F
..
(ic) to recognise on a reciprocal basis foreign qualifications in Law
obtained outside India for the purpose of admission as an advocate
under this Act;]
G
G)
to manage and invest the funds of the Bar Counc;il;
~-
(k) to provide for the .election of its members;
(l)
to perform all other functions conferred on it by or under this
Act;
H
A
B
c
D
1064
SUPREME COURT REPORTS
(1999] 1 S.C:R.
(m) to do all other things necessary for discharging the aforesaid
functions.
((2) The Bar Council of India may constitute one or more funds
in the prescribed manner for the purpose of -
(a) giving financial assistance to organise welfare schemes for
indigent, disabled or other advocates;
(b) giving legal aid or advice in accordance with the Rules made
in this behalf;
[(c) establishing Law libraries.)
(3) The Bar Council of India may receive any grants, donations,
gifts or benefactions for all or any of the purposes specified
in sub-section (2) which shall be credited to the appropriate
fund or funds constituted under that sub-section.)"
(Emphasis supplied)
It is to be noted that clause (a) of Section 7, which originally stood, got
omitted with effect from 31st January, 1974. That clause (a) pertained to
'maintenance of rolls of advocates'. Hence from 1974 the Bar Council of
E India was not concerned with maintenance of rolls of advocates which
function became the sole concern of State Bar Councils only. These rolls
obviously consisting of names of entrants to the legal profession were
clearly envisaged under Section 24 of the Act. The next relevant Section is
24-A dealing with 'disqualification for enrolment of a person desirous of
F being an advocate under the Act'. That section was inserted by Act 60 of
1973. It is relevant to note that the Legislature thereunder has enumerated
three categories of persons who are disqualified from being enrolled as
advocates even though they might otherwise fulfil the requirements of
Section 24 sub- section (1). The imposition by the impugned Rules of the
requirement of an applicant to undergo pre-enrolment training does not
G result into any disqualification of such an applicant if he has not undertaken such a training as it is not treated by the legislature as one of such
·disqualifications as envisaged by Section 24A. In other words, by the
statutory provisions of Sections 24(1) and Section 24-A, after 1973, no
legislative intention can be culled out requiring an applicant law graduate
H seeking enrolment as advocate under the Act to undergo any pre- enrol-
'
¥
<
V. SUDEER v. BAR COUNCIL OF INDIA [S. B. MAJMUDAR, J.]
1065
••
ment training as a condition for enrolment nor its absence to be treated as A
a disqualification for enrolment. Next relevant Section is Section 28, which
deals with 'powers of the State Bar Council to make Rules to carry out the
purposes of the Chapter dealing with admission and enrolment of
advocates'. The said Section, as standing on the statute book on date, does
not contain clause (b) in sub-section (2) thereof. Clause (b) was deleted B
by Section 21 of amending Act 60 of 1973 with effect from 31.1.1974. The
.
'
said sub-clause (b ), prior to its deletion read as under :
...
"(b) a course of practical training in Law and the examination to
be passed after such training for admission as an advocate on the
roll of the Bar Council;"
c
A conjoint reading of Section 28, sub-section 2(b) and Section 24(1)(d) as
it existed on the statute book prior to 31.1.1974 makes it clear that from
31st.January, 1974, the legislature did not think it fit to clothe the State Bar
Councils with the power to prescribe any pre-enrolment training and D
....
examination to be undergone by an applicant for enrolment as an
'Advocate' on the State roll. As clause (d) was deleted from Section 24(1),
:J.
simultaneously the rule making power earlier conferred on the State Bar
Councils for effective exercise of that statutory function also stood
withdrawn.