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advocates act, 1961, sections 324(3)(d), 29(2)(b), 49(1)(ag) and (ah) - bar council of india trai

advocates act, 1961, sections 324(3)(d), 29(2)(b), 49(1)(ag) and (ah) - bar council of india trai

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Citation : 1999 SOL Case No. 168

Before :- S.B. Majmudar and S.N. Phukan, JJ.
Writ Petition (Civil) No. 398 of 1996. D/d. 12/15.3.1999
V. Sudeer - Petitioner


Bar Council of India - Respondents
W.P. (C) No. 434/96, 438/96, C.A. No. 1468/99For the Appearing Parties

:- Mr. C.S. Vaidyanathan, Additional Solicitor General, Mr. Joseph

Vellapally, Sr. Advocate (A.C.) Mr. P.P. Rao, Sr. Advocate with Mr. V.B.
Joshi, Mr. Umesh Bhagwat, Mr. Janardan, Mr. Ranjit Kumar, Mr. S.
Ganesh, Mr. S.R. Setia, Mr. N.N. Keshwani, Mr. P. Parmeswaran, Mr.
Ajay Talesara, Mr. Sanjeev Sachdeva, Mr. E.C. Agrawala, Mr. A.
Mariarputham, Ms. Aruna Mathur, Mr. S. Srinivasan, Mr. S.S. Khanduja,
Mr. Y.P. Dhingra, Mr. B.K. Satija, Mr. G. Prakash, Ms. Beena Prakash, Mr.
G. Prabhakar, Mr. P. Gaur, Mrs. Deepa Rathore, Mr. Rajan Narain, Mr.
H.A. Raichura and Mr. R.K. Maheswari, Advocates.

A. Advocates Act, 1961, Sections 324(3)(d), 29(2)(b), 49(1)(ag) and (ah)
- Bar Council of India Training Rules, 1955 (as amended in July,
1998) - Pre- enrolment training as Advocate - Bar Council of India has
no power to make rules prescribing pre-training enrolment - Rules
made by the Bar Council are ultra vires its rule making power under
the Advocates Act - Striking off the rules will have prospective effect -
Supreme Court, however, recommended that :(i) It was laudable
object of Bar Council to make rules for providing training to your
entrants for improving standard of legal education and profession.(ii)
That Advocate Act be amended by Parliament to give rule making
power for training to young entrants.(iii) That till amended is made
by the Parliament, Bar Council can consider feasibility of making
rules providing for in-practice training to be made available to
enrolled Advocate. Such rules can be made by the Council under S.
49(1)(ah). [Paras 24, 25, 26, 28, 29, 31, 32 and 41]

B. Advocates Act, 1961, Sections 23, 24(1), 27 and 33 - Enrolment as
an Advocate - Once a person is admitted as an advocate on State roll,
he will automatically become entitled as of right to practise full-
fledged in any Court including Supreme Court. [Para 13]

C. Advocate Act, 1961, Section 49A(1) - Framing of rules under the
Act - Powers of Central Government to make rules are parallel to the
powers to make rules available to Bar Council of India or the State
Bar Council. [Para 13]

D. Advocate Act, 1961, Section 24(3)(d) and 49(1) - Rule Making
power of Bar Council of India - Bar Council can make rules for
making ineligible persons eligible for enrolment despite what is stated
in S. 24(1), but it could never be utilised in reverse direction for
disqualifying those from enrolment who were otherwise qualified to
be enrolled under S. 24(1). [Paras 16, 17, 18 and 23]

Cases referred :
1. Indian Council of Legal Aid & Advice & others v. Bar Council of India

& another, 1995(2) SCT 185.
2. Re: Lily Isabel Thomas, 1964(6) SCR 229.

S.B. Majmudar, J. - Leave granted in the Special Leave Petitions.

2. These Writ Petitions under Article 32 of the Constitution of India as
well as the two special leave petitions being SLP (C) Nos. 13755 of 1996
and 12989 of 1998 moved by the Bar Council of Maharashtra & Goa and
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
of India or are ultra vires its rule making powers under the Advocate 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.

3. The writ petitioners, who have successfully completed their legal
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 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 unreasonable 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 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. 12989 of 1998 filed 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 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 order dated 16th September, 1997, a three
Judge Bench of this Court, presided over by S.C. Agrawal, 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 learnedami cus

curiae senior advocate. 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, 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.

4. It appears that earlier this group of matters reached final 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 proceedings 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 impugned rules. It appears that ultimately on 4th August, 1998, before a Bench of three learned

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