BAR COUNCIL OF INDIA versus BONNIE FOI LAW COLLEGE & ORS.

[2023] 2 S.C.R. 343

BAR COUNCIL OF INDIA

BONNIE FOI LAW COLLEGE & ORS.

(Civil Appeal No. 969 of 2023)FEBRUARY 10, 2023

[SANJAY KISHAN KAUL, SANJIV KHANNA,ABHAY S. OKA, VIKRAM NATH ANDJ.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 1995Rules; Pre-enrolment/Post-enrolment examination, if can be validlyprescribed by the Bar Council of India – Held: Bar Council of Indiais not devoid of its jurisdiction in undertaking pre-enrolmenttraining course or examination prescribed by it – Wide powers givento the Bar Council of India u/s.49 r/w s.24(3)(d) are adequate powerswith it under the 1961 Act to provide such norms and Rules – Thus,the interdict placed by the judgment of Supreme Court in V. Sudeerv. Bar Council of India on the powers of the Bar Council of Indiacannot be sustained and the said case does not lay down the correctposition of law – Questions referred, answered.

Legal Profession:

Role of the Bar Council of India – Discussed.

Standards of legal profession – Various aspects of holdingthe 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 AdvocatesAct, 1961 was to consolidate the law relating to legal practitioners.The prominent role of the Bar Council of India, the apex body, isapparent from the functions prescribed for the Bar Council ofIndia under Section 7 of the said Act. Clause (h) of Sub-Section(1), provides for promotion of legal education and for laying downstandards of such education in consultation with Universities in

AIndia and State Bar Councils. Sub-Clause (m) is in the nature of aresiduary clause, having the widest amplitude to do all other thingsnecessary for discharging the aforesaid functions. Theseprovisions do not entrust the Bar Council of India with directcontrol of legal education, as primarily legal education is withinthe province of the universities. Yet, the Bar Council of India,Bbeing the apex professional body of the advocates, is concernedwith the standards of legal profession and the equipment of thosewho seek entry into that profession. Neither these provisions,nor the role of the universities to impart legal education, in anyway, prohibit the Bar Council of India from conducting pre-Cenrolment examination, as the Council is directly concerned withthe standard of persons who want to obtain license to practicelaw as profession. Section 24 of the said Act prescribes as towho are the persons who may be prescribed as Advocates onState roll. Sub-Section (1) of Section 24 provides conditionsfulfilling which person shall be qualified to be admitted as anDadvocate on State roll. Sub-Section (3) of Section 24 of the saidAct begins with the non-obstante clause qua Sub-Section (1) bystating “notwithstanding anything contained in Sub-Section (1)”.Clause (d) of Sub- Section (3) of Section 24 of the said Act refersto the entitlement to be enrolled as an Advocate under any RuleEmade 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 BarCouncil of India sought to introduce the All India Bar Examination,which would be uniformly applicable irrespective of the recognisededucational institutions from which person would complete lawbefore he was enrolled at the Bar. It is this endeavour of the BarFCouncil of India, which came to be assailed in the judgment ofthis Court in V. Sudeer and that challenge succeeded. Judgmentin V. Sudeer have to be looked carefully as in the reference orderto the Constitution Bench, the first two questions referred tothis Court really emanate from this judgment i.e. the authority ofGthe Bar Council of India to provide for pre-enrolment training interms of the 1995 Rules and whether pre-enrolment examinationcan be prescribed by the Bar Council of India under the said Act.In terms of the 1995 Rules, trainee advocates are entitled toappear in court for seeking adjournments and to make mentioningon instruction of their guides, after their provisional enrolment.H

The third question framed for reference refers to Section 49(1)(ah)of the said Act for providing post-enrolment examination if theanswers 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 BarCouncil of India have to be read in the context of their respectivestatutory provisions. The powers are not pari materia. BarCouncil of India has much larger powers and authority. This Courtis unable to agree with the reasoning in V. Sudeer that becausethe State Bar Councils’ power for providing training or for holdingexamination was taken away by the 1973 Amendment, it ipso factoamounts to taking away such powers if they so vested with theBar Council of India. The legislative object was clear i.e. not toconfer such powers on the State Bar Councils. However, thatcould not affect the position of the power of the Bar Council ofIndia, and naturally such power existed. If the Bar Council ofIndia never had such power, then the same could not be readby implication. But, if the Bar Council of India had sufficientpowers, then the 1973 Amendment would not take away thosepowers of the Bar Council of India as the said amendment didnot deal with the aspect of the powers of the Bar Council of India.The functions of the Bar Council of India, as specified underSection 7, inter alia prescribe an exercise of general supervisionand control over the State Bar Councils under Clause (g) of Sub-Section (1) of Section 7. Further, under Sub-Clause (l), the BarCouncil of India has the power to perform all other functionsconferred on it by or under the said Act and under Clause (m) todo all other things necessary for discharging the aforesaidfunctions. The powers are, thus, wide and extensive as conferredby the legislature. Thus, when under Section 24(1), the BarCouncil of India has the statutory power of prescribing Rulessubject to which person may be treated as qualified to beadmitted as an Advocate in the State roll, then the Bar Council ofIndia is not devoid of its jurisdiction in undertaking pre-enrolment training course or examination prescribed by the BarCouncil of India. Section 49(1)(ag) of the said Act, which whiledealing with the general powers of the Bar Council of India tomake rules, specifically stipulates that the class or category ofperson entitled to be enrolled as advocates, is an aspect for which

Aall powers have been conferred on the Bar Council of India. Thus,the provision for an examination for enrolment of advocates bythe Bar Council of India can hardly be doubted. [Paras 29-32][363-C-H; 364-A-E]

1.3 The objective of the legislature while giving wideBpowers to the Bar Council of India under Section 49, which givesit the powers to make Rules, read with Section 24(3)(d), whichgives it the powers to prescribe the norms for entitlement to beenrolled as an Advocate under the Rules of the Bar Council ofIndia, leads to the conclusion that these are adequate powerswith the Bar Council of India under the said Act to provide suchCnorms and Rules. The interdict placed by the judgment of thisCourt in V. Sudeer on the powers of the Bar Council of India cannotbe sustained and it cannot be held that V. Sudeer lays down thecorrect position of law. It has to be left to the Bar Council ofIndia as to at what stage the All India Bar Examination has to beDheld – 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 eligibleto pursue the final semester of the final year course of law, onEproduction of proof of the same, could be allowed to take the AllIndia Bar Examination. The result of the All India Bar Examinationwould be subject to the person passing all the componentsrequired under the course of study of the University/College.This would be subject to the All India Bar Examination resultsFbeing valid for specified period of time. [Para 38][365-E-F]

3. Appropriate rules can be framed laying down that anenrolled advocate who takes up an employment in non-legalcontext for substantial length of time (say for five years) wouldbe deemed to be new enrolee and in order to regain theGqualification, that person would be required to take the All IndiaBar Examination once more. The requirements of an active legalpractice and that of an unconnected job are different. Even if aperson has law degree or enrolment, it does not mean that hisability to assist the court would continue with him if there arelong hiatus period of time in some unconnected job. He wouldH

have to hone and test his skills afresh. Thus, if there is asubstantial break, norms should be specified by the Bar Councilof India that to regain that qualification, the person would besubject to re-examination and would be required to take the AllIndia Bar Examination once more. [Para 42][366-G-H; 367-A-B]

4. The other two suggestions made by the learned Amicusthat the validity of the result obtained by any candidate in anypre-enrolment or post-enrolment bar examination must belimited by time which would be policy matter for the Bar Councilof India to consider, and the Bar Council of India can exercise itspower to issue directions under Section 48B of the said Act toensure uniformity and fairness of the procedure followed by eachof the State Bar Councils, are agreed with. [Para 43][367-C]

Indian Council of Legal Aid and Advice & Ors. v. BarCouncil of India & Anr. (1995) 1 SCC 732 : [1995] 1SCR 304; Dr. Haniraj L. Chulani v. Bar Council ofMaharashtra & Goa (1996) 3 SCC 342 : [1996] 1Suppl. SCR 51; Satish Kumar Sharma v. Bar Councilof H.P (2001) 2 SCC 365 : [2001] 1 SCR 34; JamshedAnsari v. High Court of Allahabad & Ors. (2016) 10SCC 554 : [2016] 4 SCR 111; N.K. Bajpai v. Union ofIndia & 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 ofManagement, Dayanand College of Law and Ors.(2007) 2 SCC 202 : [2006] 9 Suppl. SCR 756 – referredto.

A(1968) 2 SCR 709referred toPara 20[2006] 9 Suppl. SCR 756referred toPara 20

CIVIL APPELLATE JURISDICTION : Civil Appeal No.969 Of2023.

BFrom the Judgment and Order dated 17.03.2008 of the High Courtof 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 of2011, T.C. (C) Nos.75, 88 of 2012, W.P. (C) No.987 of 2013, T.P. (C)CNo.692 of 2015, T.C. (C) No.8 Of 2012 And T.C. (C) Nos.17, 18 of2011

K.K. Venugopal, Attorney General (Amicus Curiae), K.V.Vishwanathan, Sr. Adv. (Amicus Curiae), Amartya Sharan, RahulSangwan, M.G. Aravind Raj, Sivagnanam Karti Keyan, Ms. AkhilaDNambiar, Siddharth Sridhar, Advs.

Ms. Aishwarya Bhati, ASG, Manan Kumar Mishra, S. Prabakaran,Apurva Sharma, Sr. Advs., Anand Sanjay M. Nuli, Agam Sharma, DharmSingh, Suraj Kaushik, N. Pandey, Nanda Kumr K.B. for M/s. Nuli &Nuli, V.K. Biju, Ms. Ria Sachthey, Chetanya Singh, Amlendu KumarEAkhilesh Kumar Jha, Dr. Ranjeet Bharti, Ms. Rubina Jawed, SubashChandran, N.P. Rakesh Panikar, Ms. Kavitha K.T., Kartik Seth, SiddharthSeth, Ms. Shriya Gilhotra, Mohit Soni for M/s. Chambers of Kartik Seth,A. Venayagam Balan, Ardhendumauli Kumar Prasad, Ms. TarunaArdhendumauli Prasad, Nirmal Kumar Ambastha, Shashi Shekhar KumarPrasad, Vishwajeet Kumar Mishra, Amritesh Raj, Ms. Anjul Dwivedi,FMs. Shreya Srivastava, Ashish Madaan, Ms. Ananya Sahu, AmanSingh Bhadoria, Ms. Radhika Gautam, Sai Girdhan, Durga Dutt, GauravGautam, 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,GShailja Kant Dubey, Bhoopesh Kumar Pandey, G. Prakash, H. ChandraSekhar, M. K. Mishra, Hitesh Kumar Sharma, Akhileshwar Jha, Ms.Vidhya Pandey, Ms. Madhumita Mishra, Sanjay Singh for Mohan Pandey,Ms. Radhika Gautam, Satyajit Desai, Satya Kam Sharma, Ms. AnaghaS. Desai, Gajanan N. Tirthkar. Siddharth Gautam, Ms. Deb DeepaMazumdar, Abhinav Mutyalwar, Ms. Chandan Ramamurthi, HarshadH

V. Hameed, Dileep Poolakkot, Mrs. Ashly Harshad, Ajay Bansal, GauravYadava, 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 “saidAct”) was the consequence of deeply felt need for change in theJudicial Administration in accordance with the needs of the time in thepost- independence era. The Law Commission was assigned the job ofpreparing report on the reform of Judicial Administration. In themeanwhile, the All India Bar Committee also made recommendations in1953. 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 onAdvocates, who are the only recognised class of persons to do so andhave their names entered in the rolls of the State Bar Councils.

4. Section 7 of the said Act provides for functions of the BarCouncil of India, which inter alia includes the disciplinary power,protection powers to safeguard the interest of the advocates as also thegeneral supervision and control over State Bar Councils. Further, Section49 of the said Act refers to the general powers of the Bar Council ofIndia to make rules.

Procedural History:

5. The original dispute between the Bar Council of India andBonnie Foi Law College, the respondent college herein, arose on accountof the application of the said college for affiliation to carry on legalstudy course. This Court appointed an inspection team on 29.06.2009,which visited the respondent college and gave comprehensive reportpointing out shortcomings in the infrastructure and functioning of thecollege. On 24.08.2009, the Court laid down certain conditions to befollowed by the respondent college which the college claimed to havefulfilled later.

A6. During the course of this matter, larger question of diminishingstandards of legal education provided at various law colleges in Indiacame to be noticed vide the order dated 29.06.2009, which resulted in aCommittee being appointed comprising Mr. Gopal Subramanium, thenSolicitor General of India as its Chairman; Mr. M.N. Krishnamani, thenPresident of the Supreme Court Bar Association; and Mr. S.N.P. Sinha,Bthen Chairman of the Bar Council of India. The said Committee wasrequested to examine issues relating to affiliation and recognition of lawcolleges, to identify areas requiring redressal and to address factorsimpeding the implementation of existing norms. report was submittedto this Court on 06.10.2009 (“hereinafter referred to as the Report”).C

7. The Report recognised two significant aspects as imperativefor improving standards of legal profession, i.e., firstly, introduction of abar examination and, secondly, compulsory requirement of apprenticeshipunder senior lawyer prior to admission to the Bar. It made the followingobservations:Da.Bar Examination in India: bar-examination is pre-condition for admission to the Bar in most Commonwealthcountries.

b.Pre-enrolment training:The requirement of training with asenior member of the Bar was present even before the enactmentEof the said Act, wherein prospective lawyer was required to‘train’ in the chambers for period of one year, and then appearin an examination comprising the subjects of civil and criminalprocedure. Thereafter, Section 24(1)(d) of the said Act continuedthe requirement of apprenticeship for graduate law students.However, this provision was omitted by the amending Act 60 ofF1973 (hereinafter referred to as “1973 Amendment”), therebydiscontinuing the practice.

The Report also recorded that the 1973 Amendment omitted Section28(2)(b) of the said Act, which enabled State Bar Councils to framerules regarding training and bar examination. In 1994, High-PoweredGCommittee on Legal Education recommended the reintroduction of therequirement for apprenticeship and bar examination and thus, Bar Councilof India (Training) Rules, 1995 (hereinafter referred to as “1995 Rules”)were framed by the Bar Council of India in furtherance of the mandateof the High-Powered Committee. However, the 1995 Rules were struckdown by this Court in the judgment of V. Sudeer v. Bar Council ofH

India[1], opining that once express provisions on Sections 24(1)(d) and28(2)(b) had been omitted by the statutory amendment, the requirementcould not be reintroduced. The Report also suggested that Bar Councilof India’s role as the primary body for regulating standards of professionallegal education should be reaffirmed.

8. On 14.12.2009, Mr. Gopal Subramanium submitted that thefirst All India Bar Examination will be conducted in July-August, 2010,by specially constituted independent body consisting of experts of variousdisciplines of national stature. The Court directed the Central Governmentto ensure that the entire programme framed by the Committee headedby Mr. Gopal Subramanium was operationalized and further directedconcerned institutions to fully cooperate with the Bar Council of India.

9. On the proceedings taking the aforesaid course, vide orderdated 18.03.2016 (hereinafter referred to as “reference order”), three-Judges Bench of the Court opined that the questions which fall fordetermination in the present matter are of considerable importanceaffecting the legal profession in general and need to be authoritativelyanswered by Constitution Bench. The reference order provided forthree questions to be answered by this Court, as under:

“1. Whether pre-enrolment training in terms of Bar Council ofIndia Training Rules, 1995 framed under Section 24(3)(d) of theAdvocates Act, 1961 could be validly prescribed by the Bar Councilof India and if so whether the decision of this Court in Sudeer vs.Bar Council of India & Anr.[(1999) 3 SCC 176] requiresreconsideration.

2. Whether pre-enrolment examination can be prescribed bythe Bar Council of India under the Advocates Act, 1961.

3. In case question Nos. 1 and 2 are answered in the negative,whether post-enrolment examination can be validly prescribedby the Bar Council of India in terms of Section 49(1) (ah) of theAdvocates Act, 1961.”

10. There was resistance on part of some stake holders to holdthe 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/

A2011, 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 wasdebated before us. The first is the judgment of this Court in V. Sudeer[2]Bwhich discussed whether the 1995 Rules relating to entrants into thelegal profession are within the competence of the Bar Council of India.The Bench recognised the exclusive and unfettered right to practice to aperson enrolled as an advocate on the State roll. conjoint reading ofSections 23, 29 and 33 clarifies that person who is found qualified to beCadmitted as an advocate on the State Roll by satisfying the statutoryconditions under Section 24(1), will automatically become entitled topractice full-fledged in any court including the Supreme Court. Hence,the statutory conditions under Section 24(1) are satisfied unless adisqualification takes place under Section 24A of the said Act. The conceptof pre-enrolment training was held to be not necessary. On variousDgrounds 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 Councilof 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 putEan age cap on the entry into the profession. The Bar Council of Indiahad prescribed that any person who had completed the age of 45 yearson the date on which he submitted his application would not be entitledto be enrolled as an advocate.

13. Lastly, in Dr. Haniraj L. Chulani v. Bar Council ofMaharashtra & Goa[4], the appellant was medical practitioner sinceF1970 who insisted that even though he was medical practitioner, hewas entitled to simultaneously carry on the profession as an advocate.The Supreme Court opined that Section 49(1)(ag) when read withSection 24 of the said Act confers wide powers on the Bar Council ofIndia to indicate the class or category of persons who may be enrolledGas advocates, which would include the power to refuse enrolment incertain cases. The Bar Council of India was held to be empowered totake all such steps as it considered necessary to filter students at theentry stage to the law course at the entry point of the profession, e.g. by

2 (supra)3 (1995) 1 SCC 732H4 (1996) 3 SCC 342

providing an examination or training course before enrolment as anadvocate.

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 very comprehensive note pointing out the fallaciesin the earlier judgment of V. Sudeer[5], which are of significance and arecrystalised as under:

’-a. The Bar Council of Indias powers at preenrolment stageare not ousted through amendment to Section 7(a) of the saidAct.

In V. Sudeer[6], this Court held that while the State Bar Councilshave the function of “maintenance of rolls” under the said Act, the BarCouncil of India is not concerned with the same. It was submitted by theAmicus that it is important to read the specific terminologies used indifferent sections of the said Act and to cull out the underlying meaningfor each of these terms. plain reading of Sections 6(a), 6(b), Section24(1)(e) and Section 28(2)(d) of the said Act indicates that the functionsof the State bar Council relates to preparing and maintenance of rollsand the admission of persons as advocates on its roll. However, in starkcontrast, the Rule making power of the Bar Council of India under Section49(1)(ag) of the said Act empowers the Bar Council of India to prescriberules that could specify class or category of persons who are entitledto be enrolled. The meaning of “entitle” would indicate that the BarCouncil of India could prescribe such conditions which would give theright or claim to person to be enrolled as an advocate. Thus, BarCouncil of India’s role prior to enrolment cannot be ousted.

b. V. Sudeer7failed to consider that Section 24(1) is subjectto the other provisions of the said Act and Rules made thereunder.

In V. Sudeer[8], 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 apre-enrolment training and examination, which had been repealed through

5 (supra)

6 (supra)

7 (supra)

8 (supra)

Athe 1973 Amendment. The Amicus submitted that the legislature wasnot expected to make any superfluous provisions that specificallyempower the Bar Council of India with the specific action regardingpre-enrolment training and examination. However, the purport of Section49 of the said Act and in particular Section 49(1)(ag) already empowersthe Bar Council of India to do so.B

It was also submitted that:

i.Section 24(1) of the said Act opens with the words “subjectto the provisions of this Act, and the rules made thereunder”thereby making the conditions under Section 24(1) and itsCsub-clauses, directly subject to the rules framed under thesaid Act.

ii.In Satish Kumar Sharma v. Bar Council of H.P[9], threeJudges Bench of this Court held that the enrolment underSection 24 of the said Act is subject to the Rules framed byDthe Bar Council of India under Section 49 of the said Act,even if no Rules were framed under Section 24(1)(e) orSection 28(2) (b) of the said Act itself.

iii.This Court’s reliance on Section 24A of the said Act in V.Sudeer[10]is misplaced since the power to disqualify personEfrom enrolment is materially different from prescribingconditions subject to which the very right to be enrolledarises.

c. V. Sudeer[11]erred in concluding that it is not one of theFstatutory functions of the Bar Council of India to frame rules whichimpose pre-enrolment conditions.

The 1995 Rules could have been ‘traced’ to the Bar Council ofIndia’s function of ‘general supervision’ over the State Bar Councils,which was not considered by V. Sudeer[12]:

i.In light of clauses (l) and (m) of Sub-Section (1), it wassubmitted that Section 7 of the said Act is not an exhaustive

9 (2001) 2 SCC 36510 (supra)11 (supra)H12 (supra)

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 specificallydirect State Bar Councils not to enrol persons who had notundertaken the training course prescribed under the 1995Rules.

ii.An additional statutory function can be culled out on aconjoint reading of Section 7(1)(l) and Section 24(1) of thesaid Act, which confers the Bar Council of India with astatutory function of prescribing rules subject to which anyperson may be treated as “qualified to be admitted as anadvocate on State roll”, such as pre-enrolment trainingcourse or exam prescribed by the Bar Council of India.

iii.Even if this Court concludes that no other provision of thesaid Act confers the Bar Council of India with function oflaying down pre-enrolment conditions, Section 49(1)(ag) ofthe said Act would per se afford basis to infer that theBar Council of India has such function. Thereafter, theministerial act of enrolment, subject to the conditions thatmay be specified, is carried out under Section 24(3)(d) ofthe said Act.

d. Viability of an Examination to be conducted post-enrolment:

If this Court decides to extend no reconsideration to the decisionin V.Sudeer[13], the question then arises as to whether the Bar Council ofIndia could prescribe post-enrolment examination under Section49(1)(ah) of the said Act. It is important to contrast the word used inSection 30 of the said Act with Sections 24 and 29 of the said Act. Whilethe former makes the right to practice subject to the provisions of thesaid Act, the latter provisions make their respective aspects subject tothe provisions of the said Act and the rules made thereunder. Therefore,the right to practise under Section 30 of the said Act could only berestricted by another provision in the said Act and not by the rules madeunder any provision in the said Act. If this interpretation were to stand,then the framing of the All India Bar Examination in its current formatwould have to be held illegal. However, the previous interpretations of

Athe provisions of the said Act in Jamshed Ansari v. High Court ofAllahabad & Ors.[14], and N.K. Bajpai v. Union of India & Anr.[15],make the right to practise subject to the provisions that grant the rule-making power, thereby validating the All India Bar Examination in itscurrent form at the expense of expanding the scope of the restriction onSection 30 of the said Act.B

14. The aforesaid was supplemented by the Amicus through anadditional note addressing concerns that were expressed in the Courtduring the proceedings on the practicality of the various thoughtprocesses. This inter alia included as to when the examination could beheld and how the candidates should be dealt with till the examinationCresults are declared. The supplementary suggestions are as under:

a.If the examination is held pre-enrolment, two alternativesare suggested: firstly, the candidates should be permitted totake the pre- enrolment examination on production of aDtranscript showing that they have received passing markin all their law school examinations and the degree certificatecan be submitted at the time of enrolment. Alternatively, ifthe eligibility could be extended to those persons who are inthe final semester of their law course, they could be allowedto take the examination and any result in such examinationEwould then be subject to the said person passing all thecomponents required under the University/College’s courseof study. This will be subject to the All India Bar Examinationresults being valid for limited period of time.b.During the period between date of passing the exam andFthe date of enrolment, any graduate with degree who isyet to appear for the All India Bar Examination or getenrolled under the Advocates Act would still be able to doall the tasks allied to the legal profession other than thefunction of acting or pleading before the Courts.

c.The determination of seniority in case of post-enrolmentexamination based on the date of birth of an advocatecurrently has statutory recognition and similar criterion

14 (2016) 10 SCC 554H15 (2012) 4 SCC 653

would suit even pre-enrolment examination. Thus, thepractice and procedure as it exists on date for post-enrolmentexamination would be apt for application to pre-enrolmentexamination, in addition to any criterion which has beenframed by the respective State Bar Councils.

d.Currently, any person who is provisionally enrolled is allowedto practice for two years, but is allowed to take the AllIndia Bar Examination not just for those two years but forany number of times till he passes the All India BarExamination. The date of reckoning seniority of thecandidate is from the date of the provisional enrolment.However, it was submitted that unlimited number of attemptswould not be in line with the scheme proposed by this Courtand must be limited to any number that this Court deemsfit.

e.Rule-making power under Section 49(1)(ah) of the said Actcould be invoked requiring an examination for advocateswho come back into the practice after substantial breakfrom practice. Alternatively, if this Court holds that the BarCouncil of India can make rules under Section 24(1) readwith 49(1)(ag) of the said Act which governs thecircumstances in which any person may be deemed“qualified to be admitted” as an advocate, useful inferencewould follow. Such rules could lay down that an enrolledadvocate, having taken an employment in non-legal contextfor substantial length of time would be deemed to be anew enrolee. In order to regain that qualification, that personcould be subjected to the re-examination rule and be requiredto take the All India Bar Examination once more.

f.The validity of the result obtained by any candidate in anypre- enrolment or post-enrolment bar examination mustalso be limited by time which would be policy matter forthe Bar Council of India to consider.

g.The Bar Council of India can exercise its power to issuedirections under Section 48B of the said Act to ensureuniformity and fairness of the procedure followed by eachof the State Bar Councils.

A15. Then Attorney General, Mr. K.K. Venugopal, who had alsobeen appointed as an Amicus and after taking us through the materialcrystallised two aspects as under:

a.The Bar Council of India is entitled to make rules underSection 49 of the said Act and the rule-making power ofBthe Bar Council of India would not be affected after the1973 Amendment.

b.The pre-enrolment training may not be necessary since whatis gained through the mandate of the internship is farsuperior.

16. The Chairman of the Bar Council of India, Mr. Manan KumarMishra, learned Senior Advocate, highlighted the powers of the BarCouncil 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 givesabsolute control to the Bar Council of India to exercise supervision andDcontrol over the State Bar Councils.

Contra View Point:

17. The significant contra view point was made by the petitionersin T.C. (C) No.13/2011 seeking to contend that since the pre-enrolmentEexamination was done away in the light of the statutory provisions inV. Sudeer[16], the first two questions of the reference order need noreconsideration. With respect to third question of the post-enrolmentexamination for which Rules 9 to 11 have been inserted in Chapter III ofPart VI of the Bar Council of India Rules, the plea of striking down wasbased on the following aspects:Fa.Section 16 of the said Act provides for only two categoriesof advocates, i.e. Senior Advocates and other advocates,and does not provide for any third category of “provisionallyenrolled advocates” who shall be finally enrolled after givingthe All India Bar Examination.

b.Section 22 of the said Act provides for certificate ofenrolment to any person whose name is entered in the rollof advocates maintained by the respective State Bar

Council. Hence, once an advocate enters the State Roll, heis an advocate and there is no bar on his practice.

c.Section 24 of the said Act which exhaustively provides forconditions and qualifications for the persons to be admittedas advocates does not set any condition to the effect ofclearing any post-enrolment examination for continuing asan advocate.

d.Section 28 of the said Act was amended and the power ofState Bar Councils to provide for an examination and trainingprior to enrolment was done away with.

e.Section 30 of the said Act which provides for right topractice does not provide for clearing an examination topractice.

f.Rule 9 of the Bar Council of India Rules is unconstitutionaland violative of Article 14 of the Constitution, as persongraduating before the introduction of the All India BarExamination and applying for enrolment is not required totake the Examination, whereas those from 2009-2010 aremandated to take the Examination, making the rulediscriminatory 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.Sudeer[17]was for enlarging the scope of eligibility of becoming anadvocate, and not to narrow it down. Further, there was no accountabilityand transparency with respect to the fees collected by Bar Council ofIndia and its association with an entity named ‘Pearl First’ which foundno 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 concernsof all those who appeared before us to see that the best come into theprofession. Quality of lawyers is an important aspect and part ofadministration of justice and access to justice. Half baked lawyers serveno purpose. It is this quality control, which has been the endeavour of allthe efforts made over period of time.

17 (supra)

A20. The object of Parliament enacting the said Act was toconsolidate the law relating to legal practitioners. The prominent role ofthe Bar Council of India, the apex body, is apparent from the functionsprescribed for the Bar Council of India under Section 7 of the said Act.Clause (h) of Sub-Section (1), provides for promotion of legal educationand for laying down standards of such education in consultation withBUniversities in India and State Bar Councils. Sub-Clause (m) is in thenature of residuary clause, having the widest amplitude to do all otherthings necessary for discharging the aforesaid functions. These provisionsdo not entrust the Bar Council of India with direct control of legaleducation, as primarily legal education is within the province of theCuniversities. Yet, the Bar Council of India, being the apex professionalbody of the advocates, is concerned with the standards of legal professionand the equipment of those who seek entry into that profession.[18] Neitherthese provisions, nor the role of the universities to impart legal education,in any way, prohibit the Bar Council of India from conducting pre-enrolment examination, as the Council is directly concerned with theDstandard of persons who want to obtain license to practice law as aprofession.21. Along with the aforesaid provision, we would like to advert tothe post-legal education stage for admission of advocates on the StateEroll. Section 24 of the said Act prescribes as to who are the persons whomay be prescribed as Advocates on State roll. Sub-Section (1) of Section24 provides conditions fulfilling which person shall be qualified to beadmitted as an advocate on State roll. Sub-Section (3) of Section 24 ofthe said Act begins with the non-obstante clause qua Sub-Section (1) bystating “notwithstanding anything contained in Sub-Section (1)”. ClauseF(d) of Sub- Section (3) of Section 24 of the said Act refers to theentitlement to be enrolled as an Advocate under any Rule made by theBar Council of India in this behalf.

22. It is under Clause (d) of Sub-Section (3) of Section 24 of thesaid Act that the Bar Council of India sought to introduce the All IndiaGBar Examination, which would be uniformly applicable irrespective ofthe recognised educational institutions from which person wouldcomplete law before he was enrolled at the Bar. It is this endeavour ofthe 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 CouncilHof India v. Board of Management, Dayanand College of Law and Ors. (2007) 2 SCC 202

this Court in V. Sudeer[19]and that challenge succeeded. We would haveto look carefully at this judgment in V. Sudeer[20]as in the referenceorder to the Constitution Bench, the first two questions referred to usreally emanate from this judgment i.e. the authority of the Bar Councilof India to provide for pre-enrolment training in terms of the 1995 Rulesand whether pre-enrolment examination can be prescribed by the BarCouncil of India under the said Act. In terms of the 1995 Rules, traineeadvocates are entitled to appear in court for seeking adjournments andto make mentioning on instruction of their guides, after their provisionalenrolment.

23. The judgment in V. Sudeer[21], though operative prospectively,opined that such rule making power of the Bar Council of India wasultra vires the parent Act as it stood amended after the 1973 Amendment.In so far as the exercise of power under Clause (d) of Sub-Section (3)of Section 24 of the said Act was concerned, it was opined that person,who is otherwise eligible for enrolment having qualified the law degree,could not be denied enrolment by prescribing additional qualifications ofpre-enrolment training and an examination of enrolment as an Advocate.

24. The decision of this Court in Indian Council of Legal Aidand Advice (supra) was also discussed though that was matter dealingonly with the aspect of prescribing the age bar to be eligible to be enrolledat the Bar.

25. The discussion notes that between 1961 and 1964, the StateBar Councils required an applicant to undergo course of training in lawand pass the examination after such training as conditions of enrolment.But after 1964 till 1973, it was permissible for the State Bar Councils toprescribe course of training in law as pre-condition of enrolment of acandidate and he was also required to pass the requisite examinationduring the training or even after completing the training course and suchexamination could be prescribed by the State Bar Council concernedonly. The object and reasons of the 1973 Amendment provided that itwas felt necessary to give powers to the Bar Council of India to enableit to add to the categories of the eligible candidates who were otherwisenot eligible to be enrolled under Section 17 read with Section 24(1) ofthe said Act before the said amendment. The reasoning, which permeates19 (supra)20 (supra)21 (supra)

Athe judgments in V. Sudeer[22]is that if statutorily the power of the StateBar Councils has been taken away in respect of particular aspect i.e.either for providing training or for holding examination, the endeavour ofthe Bar Council of India to introduce pre-enrolment examination couldnot be sustained as it would go contrary to the intent of the 1973Amendment.B

26. The third question framed for reference refers to Section49(1)(ah) of the said Act for providing post-enrolment examination ifthe answers to the first two questions are in negative. Section 49 dealswith the general powers of Bar Council of India to make rules and Sub-Clause (ah) specifically deals with the conditions subject to which anCAdvocate shall have the right to practise and the circumstances underwhich person can be deemed to practise as an Advocate in Court.

27. We now turn to the submissions of Mr. K.V. Vishwanathan,learned Senior Counsel, who assisted this Court as an Amicus as hepleaded about what he perceived as the fallacies of the earlier judgmentDof V. Sudeer[23]. He contended in this behalf that the powers of the StateBar Councils and the Bar Council of India encompass different fieldsand that of the Bar Council of India are much wider. He also submittedthat when the legislature ousted the power of the State Bar Councils inthis behalf, it did not per se amount to whittling down the powers of theEBar Council of India under the existing provisions, which do not standmodified or deleted. The functions of the State Bar Councils, on plainreading of Section 6 deal with their powers relating to preparing andmaintaining the rolls and admissions of persons as advocates on theirrolls. However, the power of the Bar Council of India under Section49(1)(ag) of the said Act empowers the Bar Council of India to prescribeFRules that would specify class or category of persons, who are entitledto be enrolled as advocates. Section 49(1)(ag) reads as under:

“49. General power of the Bar Council of India to makerules – [(1)] The Bar Council of India may make rules fordischarging its funtions under this Act, and, in particular, such rulesGmay prescribe-

…. …. …. …. …. ….

22 (supra)21 (supra)H23 (supra)

(ag) the class or category of persons entitled to be enrolled asadvocates;”

28. Thus, he contended that the meaning of entitlement, wouldindicate that the Bar Council of India could prescribe such conditions,which would give the right or claim to person to be enrolled as anadvocate and the power of Bar Council of India prior to enrolment cannotbe ousted. Further, the significance of Section 24(1) has to be read withother provisions of the said Act and the Rules made thereunder includingthe “notwithstanding clause” at the beginning of Sub-Section (3) ofSection 24.

29. In the aforesaid context, we believe that we have to read thepowers of the State Bar Councils and the Bar Council of India in thecontext of their respective statutory provisions. The powers are not parimateria. Bar Council of India has much larger powers and authority assubmitted and discussed aforesaid including in the submissions of thelearned Amicus.

30. We are unable to agree with the reasoning in V. Sudeer[24]thatbecause the State Bar Councils’ power for providing training or forholding examination was taken away by the 1973 Amendment, it ipsofacto amounts to taking away such powers if they so vested with theBar Council of India. The legislative object was clear i.e. not to confersuch powers on the State Bar Councils. However, that could not affectthe position of the power of the Bar Council of India, and naturally sucha power existed. If the Bar Council of India never had such power,then the same could not be read by implication. But, if the Bar Councilof India had sufficient powers, then the 1973 Amendment would nottake away those powers of the Bar Council of India as the saidamendment did not deal with the aspect of the powers of the Bar Councilof India.31. In addition, the learned Judges in V. Sudeer[25]opined that ifsuch power has to be conferred, it should be conferred legislatively.While in principle, there can be no disagreement with the broad proposition,the issue is whether such power is already existing with the Bar Councilof India under the statutory provisions. The functions of the Bar Councilof India, as specified under Section 7, inter alia prescribe an exercise

24 (supra)

25 (supra)

Aof general supervision and control over the State Bar Councils underClause (g) of Sub- Section (1) of Section 7. Further, under Sub-Clause(l), the Bar Council of India has the power to perform all other functionsconferred on it by or under the said Act and under Clause (m) to do allother things necessary for discharging the aforesaid functions. Thepowers are, thus, wide and extensive as conferred by the legislature.BThus, when under Section 24(1), the Bar Council of India has the statutorypower of prescribing Rules subject to which person may be treated asqualified to be admitted as an Advocate in the State roll, then we believethat the Bar Council of India is not devoid of its jurisdiction in undertakinga pre-enrolment training course or examination prescribed by the BarCCouncil of India.

32. In case of any subsisting doubt, we must refer to Section49(1)(ag) of the said Act, which while dealing with the general powersof the Bar Council of India to make rules, specifically stipulates that theclass or category of person entitled to be enrolled as advocates, is anDaspect for which all powers have been conferred on the Bar Council ofIndia. Thus, the provision for an examination for enrolment of advocatesby the Bar Council of India can hardly be doubted. We had specified atthe inception itself that quality control of entry into the Bar is the need ofthe hour.E

33. The objective of the legislature while giving wide powers tothe Bar Council of India under Section 49, which gives it the powers tomake Rules, read with Section 24(3)(d), which gives it the powers toprescribe the norms for entitlement to be enrolled as an Advocate underthe Rules of the Bar Council of India, leads us to the conclusion thatFthese are adequate powers with the Bar Council of India under the saidAct to provide such norms and Rules.

34. We are, thus, of the view that while considering the questionsreferred to us, the only conclusion which can be laid is that the interdictplaced by the judgment of this Court in V. Sudeer[26]on the powers of theGBar Council of India cannot be sustained and we cannot hold thatV. Sudeer[27]lays down the correct position of law.

35. The effect of the view expressed by us would be that it has tobe left to the Bar Council of India as to at what stage the All India Bar

26 (supra)H27 (supra)

Examination has to be held – pre or post. There are consequencesespecially in respect of the interregnum period which would arise inholding the All India Bar Examination in either scenario, and it is not forthis Court to delve into them but it would be appropriate to leave it to theBar Council of India to look to the niceties of both situations. However,in view of larger ramifications we do consider it appropriate to delve intosome, though not all of the aspects which may get involved in holding theAll India Bar Examination, especially in view of some suggestions madeby the Amicus.

36. We may take note of the fact that the All India Bar Examinationis scheduled to be held twice in year. It is necessary that this scheduleshould be strictly followed as otherwise the students with law degreeswould be left idling their time.

37. One of the questions which arose was whether only on passingthe examination from law University/College or obtaining such degreeshould person be eligible to take the All India Bar Examination? InIndia, the various recognised institutions providing law degrees oftendeclare results at different times. The concern is that person on accountof non- declaration of result may lose out on the opportunity to appear inthe All India Bar Examination leading to fairly long hiatus period oftime without having the opportunity to work in court proceedings.

38. We are inclined to accept the suggestion from the learnedAmicus that students who have cleared all examinations to be eligible topursue the final semester of the final year course of law, on productionof proof of the same, could be allowed to take the All India BarExamination. The result of the All India Bar Examination would be subjectto the person passing all the components required under the course ofstudy of the University/College. This would be subject to the All IndiaBar Examination results being valid for specified period of time.

39. More often than not, there would be hiatus period betweenthe date of passing the examination from law University/College andthe date of enrolment. The eligibility of law graduate to perform certaintasks may thus arise. The suggestion made is that during the periodbetween the date of passing the examination and the date of enrolment,any graduate with the degree who is yet to appear for the Bar examinationor get enrolled under the said Act should be able to do all the tasks allied

Ato the legal profession other than the function of acting or pleading beforethe courts. We give our imprimatur to this suggestion.

40. Another issue which arises is that of seniority at the Bar. Thisis relevant for many purposes including chamber allotment, at the timeof elevation, etc. The determination of seniority in case of post-Benrolment examination based on the date of birth of an advocate is statedto have statutory recognition under Section 21 of the said Act currentlyand, thus, it has been suggested that similar criteria would suit in anypre or post enrolment examination. We must also note here that the BarCouncil of India has the powers to make rules determining the seniorityamong advocates under Section 49(1)(ae) of the said Act.

41. The Amicus has suggested that unlimited attempts to pass theAll India Bar Examination would not be in line of scheme proposedbefore this Court and it should be limited to any number of attemptswhich this Court deems fit to do so. We would, of our own, hesitate toDprescribe the number of opportunities available to law graduate to takethe All India Bar Examination, especially when it is only on passing theAll India Bar Examination that he would be entitled to be enrolled in apre-enrolment examination. In case of post-enrolment examination,the period of two years between enrolment and passing the All IndiaBar Examination is already specified.E42. Learned Amicus also sought to flag the issue of persons, whomay take up other jobs and may want to enrol themselves as advocateslater at some stage. There may also be persons who despite being enrolledat the Bar, decide to take another job and come back into the professionafter considerable period of time, at times even post retirement. It is inFthat context that the learned Amicus has suggested that the rule makingpower under Section 49(1)(ah) of the said Act could be invoked requiringan examination for the advocates who come back into the practice aftera substantial break from practice. We are inclined to accept the suggestionin principle that appropriate rules can be framed laying down that anGenrolled advocate who takes up an employment in non-legal contextfor substantial length of time (say for five years) would be deemed tobe new enrolee and in order to regain the qualification, that personwould be required to take the All India Bar Examination once more. Webelieve that the requirements of an active legal practice and that of anunconnected job are different. Even if person has law degree orH

enrolment, it does not mean that his ability to assist the court wouldcontinue with him if there are long hiatus period of time in someunconnected job. He would have to hone and test his skills afresh. Thus,if there is substantial break, norms should be specified by the BarCouncil of India that to regain that qualification, the person would besubject to re-examination and would be required to take the All IndiaBar Examination once more.

43. The other two suggestions made by the learned Amicus arethat the validity of the result obtained by any candidate in any pre-enrolment or post-enrolment bar examination must be limited by timewhich would be policy matter for the Bar Council of India to consider,and the Bar Council of India can exercise its power to issue directionsunder Section 48B of the said Act to ensure uniformity and fairness ofthe procedure followed by each of the State Bar Councils. We agreewith these suggestions.

44. We also have one caveat arising from the plea that differentState Bar Councils are charging different fees for enrolment. This issomething which needs the attention of the Bar Council of India, whichis not devoid of the powers to see that uniform pattern is observed andthe fee does not become oppressive at the threshold of young studentsjoining the Bar.

45. While we agree in principle with the suggestions of the learnedAmicus, these should receive the attention of the Bar Council of Indiaurgently in the process of steps taken by the Bar Council of India inview of this judgment.

46. We may note that the contra viewpoints sought to be suggestedbefore us predicated on the judgment of this Court in V. Sudeer[28]caseand in view of our opining that the same would not be good law, theyreally do not survive for consideration.

47. Our hope is that the aforesaid observations while conferring agreater role on the Bar Council of India, would make the Bar Council ofIndia more conscious of the importance of the role it has to perform,including ensuring that the only persons who are well equipped with thetools of law pass the All India Bar Examination. Further, in view ofperiodic changes in the legal position and the consequent nature of All

28 (supra)

AIndia Bar Examinations being held, we would like to make this judgmentprospectively applicable so that it does not disturb the scenarios whichhave prevailed during the interregnum period. We clarify that the settingaside of the judgment in V. Sudeer[29]is in no manner an imprimatur tomandating the requirement of pre-enrolment training. We expect theBar Council of India to take necessary steps within period of threeBmonths. We greatly appreciate the assistance rendered by learned amici.

48. In the end, we hope that our view would assist in bringingforth the enrolment of young bright minds at the Bar, who would be ableto assist the Court in more efficient manner so that the administrationCof justice is benefited.

49. The civil appeal and the petitions are disposed of leaving theparties to bear their own costs.

Divya Pandey

(Assisted by : Shevali Monga, LCRA)

Appeal and petitions disposed of.