Case Analysis of

V. Sudheer v. Bar Council of India

[1999 (3) SCC 176].

By:-

RITWIK GUHA MUSTAFI

3rd-year BA.LL.B

SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BANGALORE

Mail id: ritwik.mustafi@law.christuniversity.in

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November 25, 2020

Abstract.

The issue of conducting the Bar examinations by the Bar Council of India and the State Bar associations
for the admission of the candidates into the legal profession has been much debated upon. The following
case was an attempt by the Supreme Court of India to address this issue. The court observed the various
nuances as well as the historical background and developments of the Advocates Act of 1961 and the Bar
Council of India Training Rules of 1995 for the purpose of this case. The court held that the impugned
1995 rules were unconstitutional.

This case analysis provides a brief overview of the relevant facts, issues, and arguments of both sides in
this case. This analysis examines the judgment of the apex court and makes some suggestions upon the
same. This analysis finds the judgment of the court to be erroneous on some points and proper on others
and relevant observations have been given. Doctrinal methodology of research has been used in this case
since ample materials in the form of articles and case notes were available.

Keywords: Bar, examinations, background, India, erroneous.

Introduction.

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This case comprised of writ petitions under article 32 of the Constitution of India (Remedies for
enforcement of rights) and two Special Leave Petitions (hereinafter SLPs) under article 136 of the
Constitution. The SLPs were moved by the Bar Council of Maharashtra and Goa and the Bar Council of
India wherein a common question was raised for consideration. 1

The legality and competence of 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 for providing
training to the fresh entrants of legal (specifically litigation) profession was questioned.

The All India Bar Examinations (AIBE) has been a contentious issue, with multiple parties filing
petitions against it before various courts. 2

Facts of the case.

This case shows that the parent Act checks the legislative powers of the executive.

The writ petitioners had completed their legal education and had obtained the law degrees from their
Universities. They contended that their right to practise law is being arbitrarily denied by the impugned
rules framed by the Bar Council of India and their fundamental right under Article 19(1) (g) of the
Constitution of India is being violated. 

The legality and competence of 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 for providing
training to the fresh entrants of legal (specifically litigation) profession was questioned. The Bar Council
of India Training Rules of 1995 provided, inter alia, that no person shall be entitled to be enrolled as an
advocate unless he is eligible to be enrolled as such under section 24 of the Advocates Act, 1961 and has
undergone training as prescribed under these rules. The successful completion of the training period
required the candidate to regularly attend the chamber or office of the guide, study case papers,
correspondence, draft pleadings, attend courts, and particularly study cases with a view to get acquainted
with the practice in courts and minimum attendance for 225 days in all in courts and chambers in a year. 3

The civil appeal arising out of the Special Leave Petition of the Bar Council of Maharashtra and Goa
challenged the order of the High Court of Bombay wherein the court had upheld the legality and validity
of the aforementioned rules and had dismissed the writ petitions. The civil appeal arising out of the

1
https://www.legalcrystal.com/cases/search/name:borwe
2
Utkarsh Srivastava, In Defence of the All India Bar Examination, THE WIRE (Nov. 21, 2020, 06:00 P.M.),
https://thewire.in/law/in-defence-of-the-all-india-bar-exam
3
The Bar Council of India Training Rules, 1995, https://indiankanoon.org/doc/128629281/

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Special Leave Petition of the Bar Council of India challenged the decision of the Punjab and Haryana
High Court wherein it was stated that the rules of 1995 were purely prospective in nature and thus, the
court had denied the claim of the petitioner who had obtained his law degree in 1981.

Issues involved in the case.

 Whether or not the impugned rules of the Bar Council of India are ultra vires the rule-making
power of the Bar Council of India as available to it under the provisions of the act?
 Whether or not the impugned rules are arbitrary and unreasonable in nature so as to violate the
article 14 (Right to Equality) of the Constitution of India?
 Whether or not the respondent 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? 4

Legal aspects involved in the case.

 Article 14 of the Indian Constitution: This article is one of the Fundamental Rights accorded to
the Indian Citizens in Part III of the Constitution. This article basically states that “The State shall
not deny to any person equality before the law or the equal protection of the laws within the
territory of India”. Equality before Law basically means that all persons should be treated equally
no matter whether they are poor or rich, male or female, upper caste or lower caste. Equality
before Law prohibits providing any special privilege to any community or people. 5
 Article 19 (1) (g) of the Indian Constitution: The right to do business is a fundamental right
given to the citizens of India under Article 19 (1) (g) of part III of the Constitution of India. It
refers to a general right to carry on any type of business, occupation or profession to satisfy their
livelihood needs. It doesn’t include a right to carry on any activity which is illegal of nature or
hinders public interest.6
 Section 24 of the Advocates Act, 1961: This section specifies the qualifications of a person
entitled to be enrolled into the Bar. The qualifications are regarding the age (21 years), citizenship
(Indian), and the attainment of a law degree after 12 th March, 1967. The Advocates Act, 1961
empowers State Bar Councils to frame their own rules regarding enrolment of advocates. 7

4
https://www.scribd.com/document/5332579/advocates-act-1961-sections-324-3-d-29-2-b-49-1-ag-and-ah-bar-
council-of-india-trai
5
Aniket Tiwari, An overview of Right to Equality under Article 14 of the Constitution, IPLEADERS (Nov. 21, 2020,
06:40 P.M.), https://blog.ipleaders.in/article-14/
6
Noopur Dalal, What can you do if your right to do business is curtailed by a government notification, IPLEADERS
(Nov. 21, 2020, 06:45 P.M.), https://blog.ipleaders.in/rights-business-curtailed/

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  Bar Council of India Training Rules, 1995: These rules deal with the conditions and training
process to be undergone by a person before he can be enrolled as an advocate in a State Bar
Council.

Arguments by the petitioners.

The learned counsel for the petitioners submitted that there is no power with the Bar Council of India to
frame the impugned rules. It was also submitted 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. 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.8 In addition, the impugned rules were contended to be obnoxious, arbitrary, unreasonable
and unworkable, so much so that they violate the fundamental right to equality under article 14 of the
Constitution of India. It was also added that the retrospective nature of the impugned rules was
untenable. 9 Therefore, the petitioners contended that the impugned rules are ultra vires the powers of the
Bar Council of India and that they are unconstitutional and should be struck down.

Arguments of the Respondents.

The respondents argued that the impugned rules are very much within the powers (intra vires) of the Bar
Council of India to regulate and enforce. In addition, it was argued that the impugned rules were
reasonable, justified and well within the purview of the constitutional rights guaranteed to the citizens of
India.

Bar Council of India itself in exercise of its rule making power under Section 49(1)(ah) has framed the
Rules laying down conditions under which an enrolled advocate may not be permitted to practise or may
be suspended from practice or when can he resume practice. Shri Rao, learned senior counsel for the
respondent, was right when he contended that even though such rules might have been framed in past, if
the rule making power inheres in the Bar Council of India then such power can be exercised from time to

7
Nandini Tarway, Salient Features of Advocates Act, 1961, SCRIBD (Nov. 26, 2020, 06:50 P.M.),
https://www.scribd.com/document/339925881/SALIENT-FEATURES-OF-ADVOCATES-ACT-1961
8
https://www.scribd.com/document/60613687/abhinav
9
V. Sudheer v. Bar Council of India, (1999) 3 SCC 176 (India).

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time by framing additional rules. However, the question is whether Section 49(1)(ah) confers such a
power on the Bar Council of India. So far as this question is concerned, it has stood answered against the
respondent Bar Council of India by a three Judge Bench judgement of this Court reported in Indian
Council of Legal Aid & Advice & Ors. case (supra). A.M.Ahmadi, CJI, speaking for the three Judge
Bench, had to consider in the said decision, the question whether the Bar Council of India could frame a
rule restricting the enrolment of advocates to the State roll to only those who had not completed 45 years
of age.

Holding such rule to be ultra vires the powers of the Bar Council of India under the Act, it was held that
such a rule could not be sustained under Section 49(1)(ah) as the said provision dealt with a situation after
enrolment of advocates and could not take in its sweep any situation prior to their enrolment. Shri Rao,
learned senior counsel for the respondent Bar Council of India, tried to salvage the situation by submitting
that the said decison was per incuriam on the ground that Section 24(3)(d) was not noticed. We have
already held that Section 24 (3)(d) is the provision which permits the Bar Council of India by exercise of
rule making power to make otherwise ineligible person eligible for enrolment and does not act in the
reverse direction to make otherwise eligible persons ineligible. Once that conclusion is reached, Section
24(3)(d) becomes totally irrelevant for deciding the question whether the rule impugned before the three
Judge Bench in that case could have been sustained by the Bar Council of India by taking resort to
Section 24(3)(d). Non-consideration of such irrelevant provision, therefore, cannot make the ratio of the
decision in the aforesaid case per incuriam.

An overview and an analysis of the judgment.

The court observed that the advocates act seeks to amend and consolidate the law relating to legal
practitioners and to provide for the constitution of Bar Councils and an All-India Bar. The court also
observed the required conditions to be fulfilled for persons to be admitted as advocates on a state roll.
After examining the original section 24 (d) of the 1961 act and its subsequent amendment in 1964, the
court clarified that between 1961 and 1964, the State Bar Council, as a condition of enrolment, required
an applicant to undergo and complete a course of training in Law. 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. 10

10
https://www.scribd.com/document/5332579/advocates-act-1961-sections-324-3-d-29-2-b-49-1-ag-and-ah-bar-
council-of-india-trai

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The court stated that the Bar Council of India was given the powers 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 and that after 31st January, 1974, the State Bar Councils were deprived of
their powers to prescribe a course of pre- enrolment training in Law and examination to be undergone by
Law graduates who were seeking enrolment as advocates on the State roll. 11

The 2-judge bench comprising of Hon’ble Justices S.B. Majumdar and S.N. Phukan of the apex court
additionally referred to the statement of objects and reasons of the Advocates (Amendment) Bill, 1970
which had ultimately resulted in the termination of the Section 24 (1) (d) of the 1961 Advocates Act. The
reasoning for the same was highlighted in the third paragraph of the aforementioned statement of objects
and reasons. The reason was that the Bar Council of India had mandated that the legal profession can be
entered into by someone only after pursuing a Law degree for 3 years after graduation. This meant that
age of entry in the legal profession was higher than that of other professions and hence, a further
examination or practical training wasn’t required for the people joining the legal profession after pursuing
the 3-year Law degree after their graduation.

Bar council of India regulates the legal profession. In 1961, the parliament came up with the Advocates
Act, 1961. By the virtue of this act, the parliament gave the power to the BCI to make rules regarding
lawyers training. So in response to that, the BCI comes up with the Bar Council of India Training Rule.
The parent Act here is the Advocates Act. The BCI training rules say that: Before enrolment with the bar,
while you are pursuing your law degree, you must have at least an year of job experience. And after
getting enrolled with the bar, you will be mandated to do another year of training, and doing so you’ll be
eligible to get your certificate to practice.

This rule is challenged in the Supreme Court saying that the BCI has no authority and that it goes beyond
the scope of the parent act. It is ULTRA VIRES to the parent act because the power given to the BCI is in
relation to making rules for training after the enrolment with the BCI. The Supreme court accepted the
argument and said that control of Bar comes only after the enrolment of a person into the bar. This case
shows that the parent Act checks the legislative powers of the executive.

The court stated that the aforementioned facts implied that the Bar Council of India had itself agreed upon
the fact that a 3-year law degree would be enough for providing the proof for qualification for enrolments
as an advocate and that in the syllabus given by the Bar Council of India to all the recognized colleges
and universities around the country included practical training as a part of the curriculum.

11
https://indiankanoon.org/doc/1029236/

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The court additionally observed that there is no legislature which disqualifies the entrants from entering
into the legal profession in cases where that particular entrant has not undergone the pre-enrollment
training period. The court however agreed to the fact that the legal profession requires well-trained
professionals. Therefore, the court suggested that the entry exams for the 3-year law course in the
colleges should be tough and strict so as to gauge the potential merit of the candidates, the Bar Council
should introduce some procedural professional courses for the graduates pursuing the law degree, there
should be a minimum limit fixed for attendance in the law colleges, and finally a strict and practical
apprentice tests for the law graduates. The court implored the Bar Council of India to examine, deliberate,
and implement the aforementioned suggestions.

In this case, the court struck down the impugned 1995 rules and allowed the writ petitions. In order to
avoid confusion, the court clarified that this judgment shall be applicable in a prospective manner.

The court’s viewpoint about requirement of well-trained professionals in legal profession is absolutely
correct. The suggestions mentioned by the court are relevant and should be implemented keeping in view
the different circumstances and policies of each state and law college. The court did err in striking down
the rules in their entirety. Having a law degree and a few professional law courses under one’s name
doesn’t guarantee the existence of practical knowledge of the legal field. A training period is essential in
the legal profession. The rules were a bit ambiguous given the historical background, but the court
could’ve ordered an amendment of the language of the 1995 training rules.

Conclusion.

This case was an attempt made by the apex court to address the contentious issues of the All India Bar
Examinations for the enrollment of the advocates. It is concluded that the Bar Council of India has the
powers to regulate the rules related to the enrollment of advocates since it is the apex body of lawyers in
India. In addition, it is concluded that the training rules of 1995 weren’t violating article 14 and 19(1) (g)
of the Indian Constitution. A right to practice law isn’t an absolute and unconditional right. Given the fact
that in litigation, the quality of life of the clients are at stake, a training period for the fresh entrants will
only aid the entrants to hone their technical and other relevant legal skills. It provides an impetus to the
right to carry out a profession of one’s choice since a proper training period enhances the quality of the
work. Giving entry to well-trained individuals comes under the ‘intelligible differentia’, one of the
exceptions under article 14 i.e. Right to Equality.

References.

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 1.) Utkarsh Srivastava, ‘In Defence of the All India Bar Examination’ (The Wire, 17 Mar 2016) <
https://thewire.in/law/in-defence-of-the-all-india-bar-exam> accessed 21 November 2020.
2.) Aniket Tiwari, ‘An overview of Right to Equality under Article 14 of the Constitution’
(IPLEADERS, 6 Jan 2020) < https://blog.ipleaders.in/article-14/> accessed 21 November 2020.

3.) Noopur Dalal, ‘What can you do if your right to do business is curtailed by a government
notification’ (IPLEADERS, 15 Feb 2016) <https://blog.ipleaders.in/rights-business-curtailed/>
accessed 21 November 2020.
4.) Nandini Tarway, ‘Salient Features of Advocates Act, 1961’, (SCRIBD, 21 Feb 2017)
<https://www.scribd.com/document/339925881/SALIENT-FEATURES-OF-ADVOCATES-
ACT-1961> accessed 26 November, 2020
5.) V. Sudheer v. Bar Council of India, (1999) 3 SCC 176.

About the author.

Ritwik Guha Mustafi is a current 3 rd-year BA.LL.B student in the School of Law, Christ (Deemed to be
University), Bangalore. His areas of interest are IPR, ADR, Criminal Law, and Constitutional Law. He
was the content writer for 5th Voice website and Legal Education Experts website. He has interned in
Jharkhand High Court, Ranchi Civil courts and mediation center, and the Leo Cussen Center for Law,
Australia.