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
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]
1995(2) SCT 185.
2. Re: Lily Isabel Thomas, 1964(6) SCR 229.
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 learnedamicus
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 Judges, Shri P.R. Rao, learned senior counsel, 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 this group of matters reached for final 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.
5. 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.R. Rao, learned senior counsel for the Bar Council of India, which is the author of the impugned rules in support of their respective cases.
6. Learned counsel for the petitioners submitted, tracing the history of the relevant provisions of the Act and the Rules, that there is no power with the Bar Council of India to frame the impugned 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 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 support of the impugned rules.
7. 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 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 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
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 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 Section
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