CASE ANALYSIS OF

INDIAN COUNCIL OF LEGAL AID AND ADVICE AND OTHER

V.

BAR COUNCIL OF INDIA AND ANOTHER

BY

SUYASH SHRIVASTAVA

1st YEAR

INDORE INSTITUTE OF LAW, INDORE

MOB. 9713334891

E-mail :- shrivastavasuyash9765@gmail.com

April 2020

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BRIEF FACTS OF THE CASE

The Bar Council of India(BCI) is a statutory body under section4 of the Advocates Act, the body
has the power to regulate legal practice and legal education in India, and such rules and powers
are defined under Bar Council of India Rules,1975.On 22nd August,1993, by Resolution No.64/93
added Rule 9 in Chapter III of Part VI of the rules which attracted widespread criticism from
lawyers, legal organizations and various other jurists and people pursuing law. The Part VI
empowers the Bar Council of India to make rules governing advocates, this part has four chapters
of which the Chapter III, which is in question, lays down rules which deals with conditions for
right to practice advocacy [under section49(a)(ah) of the Advocates Act].

The newly added rule puts a restriction on people above the age of 45 years who want to seek entry
as advocates or to be specific, if the person has completed the age of 45 years on the date on which
he submits his application to enroll as an advocate his application will be rejected. The rule was
said to be violative of Article14{Right to equality}, Article19(1)(g) {Right to practice any
occupation}, Article21 {Right to life and personal liberty} of the Constitution of India and Sections
7(Functions of Bar Council ), 15(Power of Bar Council to make rules), 24(Persons who may be
admitted as advocates under state roll), 24-A(Disqualification of enrolment), 28(Power of State
bar council to make rules),49(1)(ag) {class or category entitled to be enrolled}&(ah) {conditions
and circumstances under which person is deemed to practice as an advocate}, of the Advocates
Act,1961,hereinafter called “the act”. A writ petition was filed under Article32 of the Constitution
of India Petitions were filed against the impugned rule challenging the validity and legality of the
newly added rule1.

FACTS IN ISSUE

A writ petition was filed by the appellant under Article32 of the Constitution of India, seeking to
struck down the newly laid rule by the Bar Council of India on the footing that it contradicts

1Indian Council of Legal Aid and Advice, etc. etc. vs. Bar Council of India and another,MANU/SC/0134/1995

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Article14, 19(1)(g), and 21of the Constitution of India. The petitioner also claims that under
section 49(1)(ag) of “the act”, Bar Council of India has the power to prescribe class or category of
persons to be enrolled as advocates ,here, it cannot be inferred from the language that it gives the
power to disentitle someone from entering the profession. Further it is claimed by the petitioner
that even if the Bar Council is conferred with the power to prescribe conditions which would
govern the right to practice of an advocate under section 49(1)(ah) of “the act”, the word
“conditions” here refers to advocates i.e. if conditions are laid down, then it must apply at post
enrolment stage and the rule inserted talks of pre-enrolment stage, so the newly added rule does
not adheres to this section. Also, according to section24 of “the act” which deals with the
conditions required to be enrolled as an Advocate, neither it is mentioned nor there is any provision
which defines the maximum age for enrolling into the profession. Petitioner also defies that the
rule falls within the purview of section 24-A, which states conditions for disqualification of a
person seeks enrolment into the profession, even here it is nowhere mentioned about creating a
category of persons of certain age group who can be debarred from enrolment. Further the sections
7,15,28 which talks of functions and powers of Bar Council and State Bar Councils to make rules,
does not empower them to make any such rule which can restrain entrants by just inserting an age
clause.

PETITIONER’S ARGUMENT

(a). The rule is violative of principle of equality under Article14 and discriminatory, as the rule
debars people from enrolling if they have attained the age of 45years, while it overlooks those who
have initially entered the field but later took up some other jobs or occupation, and wished to
practice advocacy at a future date maybe after the age of 45years.

(b).The rule is inconsistent with the provision under Article19(1)(g), because it refrains people of
an age category from practicing the profession of their choice.

(c).Functions and Powers of BCI enshrined under sections 7&15 respectively of ‘the act’, does
not empowers or authorize them to make any provision which would debar people from entering
the profession.

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(d). There are conditions stated in section 24 of the act which needed to be conformed while
enrolling as an advocate, the section is silent on any upper age limit which needed to be kept in
mind.

(e).The rule is outside the purview of section24-A, neither the particular section gives any leeway
to insert any such provision.

(f).BCI acting arbitrarily added the new rule as the language in section49(1)(ag) clearly legitimizes
them to create a class or category of persons entitled to be ‘enrolled’ and not ‘rejected’. Even sub-
clause (ah) talks of advocates and does not aims at anyone who has not entered the profession.

RESPONDENT’S ARGUMENT

(a). People who spend major portion of their earning age working in some other profession or
occupation, in the later years enter the field of law just to have additional gains.

(b). It is the duty of the council to protect one of the oldest and pious professions from such people
as they tarnish the image of the profession.

(c).The rule is not discriminatory, as it is well within the powers of the council to regulate the entry
of only those who are profession and service oriented, and not those who are not so oriented.

(d). People who retire from various Government and Quasi government jobs enter the profession
and use their earlier contacts to canvass for cases, and leaves a murky image on the minds of young
entrants.

(e). The BCI has not violated article19(1)(g) as advocacy is not a fundamental right, it is a
privilege. Even if it comes under fundamental right the council is empowered to impose reasonable
restrictions.

(f). The rule is not inconsistent and incompatible with any article or section, and it is well within
the ambit of the rule making authority of the BCI to ‘categorize’ under section49 of “the act”.

INDIA v. OTHER COUNTRIES

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Every country has their own set of laws, and advocacy is considered to be a noble profession
everywhere. One needs to follow certain conditions for being listed as an advocates, these
conditions vary according to the rule of the land. Developed countries like UK, USA do not follow
any age criterion for admitting advocates, they need to pass examinations, get a degree in Law and
work for few years as a trainee before being qualified. But, there are countries which do have this
criterion.

According to Indonesian Law on Advocates the applicant’s age must be atleast 25years, other
conditions are quite similar like permanent citizenship, having bachelor’s degree in law, never
charged for a crime etc. The minimum age required to be an advocate in the Republic of
Philippines is same that of India i.e. 21years and in Thailand it is just 20years. Whereas in the
Hellenic Republic or popularly known as Greece, their law on advocates fixes the upper age limit
of 35years that means to be enrolled as an advocate one must be under 35years of age.

INTERNATIONAL LAW ON RIGHT TO EQUALITY

According to Universal Declaration of Fundamental Rights(UDHR) which is a document

comprising of 30 articles, was adopted by United Nations General Assembly(UNGA) in the year
1948. These articles talk of Human Rights, the Right to Equality is enshrined under article2 of the
document which states that everyone deserves all the rights and freedoms without any distinction
such as race, language, religion, caste,etc and no distinction shall be made on the basis of political,
jurisdictional or international status of the country or territory.

RIGHT TO EQUALITY

The Preamble of Indian constitution guarantees Equality of status and of opportunity and to
promote among them all. The right to equality is further discussed under Articles14-18 of the
Fundamental Rights, of which Article14 notifies the state to provide every citizen in the territory
of India equality before law or equal protection of the laws. Right to Equality also comes under
the umbrella of “basic structure”. The ambit of article14 was made clear in the case of R D Shetty

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v. International Airport Authority of India2, where the Apex court held that the actions of the
state must not be arbitrary and every such action must based on some reliable data. Without any
dependable data and just using superfluous considerations would not serve the purpose of equality.

In the leading case of Air India v. Nargesh Meerza3, where a regulation was issued by Indian
Airlines which states that an Air Hostess had to retire after crossing the age of 35years or if they
married within 4years of joining the service or on their 1st pregnancy, whichever took place earlier.
The rule was said to be violative of article14 by the Supreme Court, as it was unreasonable and
apparently discriminatory.

Also, Justice P.N. Bhagwati in the case of Bachan Singh v. State of Punjab4, observed that rule
of law excludes arbitrariness, he added that arbitrary act defies the very purpose of rule of law.
Article14 has greater ambit and it cannot be just restricted to reasonable classification.

The Supreme Court in the case of D.S. Nakara v. UOI5, held the rule 34 of Central Services
(pension) Rules, as unconstitutional and inconsistent with article14 because the rule was making
a distinction between the pensioners who retire before 1st April,1979 and after this date. This
distinction was held irrational and arbitrary.

RIGHT TO PROFESSION

One of the fundamental rights articulated in article19(1)(g) states that every citizen has the right
to practice any profession, trade, occupation, business. This right can be observed in the
constitution of many countries like: Germany{Article12},South Africa{Article136},
Switzerland{Article31}. In the case of Chintaman Rao v. State of MP6, Deputy commissioner
of Sagar issued an order which restricted people of a certain village from manufacturing ‘bidis’.

2Ramana Dayaram Shetty vs. International Airport Authority of India and Ors.,MANU/SC/0048/1979
3Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc,MANU/SC/0688/1981
4Bachan Singh and ors. vs State Of Punjab and ors.,MANU/SC/0341/1980
5D.S. Nakara & Others vs Union Of India,MANU/SC/0237/1982
6Shri Chintaman Rao & Another vs The State Of Madhya Pradesh,MANU/SC/0008/1950
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Supreme Court held that the decision is arbitrary and it is in contravention with the fundamental
rights.

But except few fundamental rights are not absolute, they come with some restrictions. With respect
to the article19(1)(g) reasonable restrictions can be imposed with respect to article19(6). As was
held in the case of Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa7, here the
appellant was a medical practitioner and while continuing his existing profession he took the
degree of L.L.B. He then applied to State Bar Council for being enrolled as an advocate but his
application was rejected by stating that he cannot practice advocacy while simultaneously
practicing another profession, later he moved to SC challenging the decision. SC upheld the
decision of Bar Council and imparted that this is not violative of any right,law needs full time
attention and one cannot indulge in any other profession while practicing advocacy.

ARBITRARINESS

The term refers to doing acts upon one’s discretion, that act may be capricious or cannot be
justified. The case of Rajan Sharma v. Bar Council of India 8showcases an example on the same,
when a resolution was passed by the BCI on a certain date to supplement a rule to “Rules of Legal
Education” which would create an age limit for admission in 3 and 5year law courses. According
to the rule a person after attaining the of 20yrs(GEN) and 22yrs(Other backward communities) is
not eligible to take choose 5yr course, and for 3yr course the age limit was 30yrs(GEN) and
35(Other backward communities).The Supreme Court ruled in favor of the petitioner, while calling
the rule as arbitrary and violative of sections of “the act”. Similar was the case of Rishabh Duggal
v. Bar Council of India 9, where the division bench of SC declared the clause 28 of “Rules of legal
education” as unconstitutional and not in accordance with the act.

A petition was filed for quashing a rule of Rules of Legal Education,2008, according to which
maximum age for appearing in CLAT is 20yrs(GEN) and 22yrs(other backward classes). The

7Dr. Haniraj L. Chulani vs Bar Council Of Maharashtra & Goa,MANU/SC/1120/1996

8Rajan Sharma v. Bar Council of India, Indian Kanoon
9Rishabh Duggal v. Bar Council of India, Indian Kanoon
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Rajasthan High Court found the rule arbitrary and inconsistent with provisions of “the act” and
ordered to withdraw the rule in Kshitij Sharma and another v. BCI10.

THE CRITERION OF AGE

In many instances it can be seen that BCI or State councils frame rules by using ‘age’ as a factor
to bring changes in the enrolment process. The newly laid rule(Indian Council of Legal Aid and
Advice. vs. BCI)was also challenged in the case of J. Sampath Kumar v. Bar Council Of
India11, where the Madras HC held that prescribing an age limit does not constitute a class or
category, also the rule is made without reliable data and declared the rule as unconstitutional and
inconsistent with the provisions of the act.

A petition was filed challenging the validity of Rule6(4)(i)and 6(4)(iii)(a)of the Gujarat Judicial
Service Recruitment (Amendment Rules) 1979, the aforesaid rules restricts an individual on
attaining the age of 49yrs from being promoted to the position of Assistant Judge. The apex court
in the case of Indravadan H. Shah v. State Of Gujarat & Anr12, proclaimed the rule as
inconsistent with the articles 14&16 of the constitution, and is liable to be quashed.

Also in the case of M. Radhakrishnan v. The Secretary13, where the facts were quite similar to
that of Indian Council’s case with an additional clause that enrolled advocates from other State
councils after attaining the age of 45yrs would not be allowed to transfer their enrolment to the
Bar council of Tamil Nadu (TN), this was introduced by adding rule 8(A) to the Enrolment rules
of Bar council of TN. The Madras HC referred to the judgment of Indian Council’s by the Apex
court and declared the rule as void and unconstitutional.

10 Kshitij Sharma And anr. v. Bar Council Of India And Anr, Indian Kanoon
11 J. Sampath Kumar vs. Bar Council of India represented by its Secretary and Anr.,MANU/TN/0817/1994
12 Indravadan H. Shah vs. State of Gujarat and Anr.,MANU/SC/0458/1986
13 M. Radhakrishnan vs. The Secretary, The Bar Council of India and The Secretary, The Bar Council of Tamil
Nadu,MANU/TN/3154/2006
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VALIDITY OF SECTION24 OF THE ACT

The Council amended a rule in Bar Council of India Training Rules, 1995, according to which
before enrolling as an advocate a person must go through training and apprenticeship. Petition was
filed challenging the rule at The Maharashtra & Goa HC where the judgment was delivered in the
favor of the Council. The petitioner then approached SC, where the court in the case of V. Sudeer
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v. BCI held that the power to amend pre-enrollment rules is not with BCI. The said rule is
violating article 19(1)(g) & 21of the constitution and various other sections of “the act”.
Furthermore, the court added that except the conditions those articulated in section24 of “the act”
no other can be put on a person enrolling as an advocate.

PRE-ENROLMENT STAGE

There are conditions which needed to be fulfilled for becoming an advocate as enunciated in
section24 of the act, and section 24(1) mentions the conditions on which one’s application can be
rejected. These applicants are admitted or disqualified as per the say of State Bar Councils and
BCI has no right to interfere in this matter. All the conditions or powers that are entrusted with
either State or BCI, does not empower them to make any rule that would restrain anyone before
the enrolment stage or pre-enrolment stage, but there are many instances when rules were made to
restrain a person from enrolling.

In the case of Aparna Basu Mallick v. BCI 15, the appellant was rejected by the Bar Council of
West Bengal even after abiding by all the rules of the act framed for women but not with just one
rule of Bar Council i.e. Rule 1(1) sub clause (c). The rule stated that degree will not be recognized
if the student has not attained some requisite mark of attendance in lectures, moot courts and
tutorials in the college. Aggrieved by the rule she filed a writ petition before the court of law,
Calcutta HC declared the said rule as inoperative and void, and going against the section24 and
framing a law for pre-enrolment stage is not acceptable.

14V.Sudeer vs Bar Council Of India & Anr,MANU/SC/1635/1999

15Aparna Basu Mallick vs Bar Council Of India And Ors.,MANU/WB/0082/1983
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FUNCTIONS AND POWERS OF BAR COUNCIL

The BCI has the authority and obligation to perform wide variety of functions. They are
empowered to set standards, maintain dignity, protect the rights of advocates and promote this
noble profession. The BCI is superior to State Bar Councils, it supervises them and even controls
money matter and legal education in the country, all these are enunciated under section7. Section
15 deals with the matters on which BCI is entitled to make rules, broadly they make rules on
elections of its members, their rights and duties or the overall management of the field. State Bar
Councils have the power to admit an applicant, the superior body i.e. BCI is not allowed to interfere
in this matter. It can be concluded that any of the powers or functions does not illustrates that pre-
enrolment stage can be altered or there is a provision to do the same.

TERSE

(a). The rule is violating Article14 of the Constitution and the question about article 19(1)(g) is
not decided.

(b).Section24&49(1)(ah) of the act does not empowers the BCI to make rules for the pre-enrolment
stage.

(c).Neither section7 nor 15 authorizes BCI to create such provision, hence the rule is inconsistent
with these sections.

(d). The rule is beyond the ambit of section24-A.

(e).Candidates are admitted under state roll, also conditions for admission are laid down by State
Bar Councils and not BCI.

(f).Section49(1)(ag) talks of making class or category for admission and not disqualification, hence
the rule is ultra vires.

(g). The rule9 of chapterIII is abolished.

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CRITICAL OVERVIEW OF THE JUDGEMENT

The judgment was in accordance with the Article14 of the constitution which confers the citizens
Right To Equality, however it was silent on whether the rule has violated one’s Right To Profession
{article19(1)(g)}or not. The Apex Court made it quite clear that no one is allowed to formulate
rules on matters which are not under their control. The impugned rule was apparently arbitrary, as
there is no provision in any of the act concerned that could be used as a reference.

The Section 49(1)(ag) of the act is quite equivocal, as there is no clarification regarding what could
be the basis for creating a class or category of persons for enrolment in any of the provisions.
Though the apex court made it clear that the language is construed in positive terms and it should
not be interpreted otherwise, but, there was no mention on what should be the criteria before
framing such ‘class or category’. This would disconcert one and in the future there is a possibility
that such cases may reappear before the court. Also, there is still too much confusion regarding the
rule making power of the State bar councils and BCI. The BCI and the Parliament are empowered
to make rules on the formation of class or category, but one needs to abide by the requirements of
the State council as the person is admitted on the state roll, that means there is a possibility that
such rules on enrolment may pummel.

The rule was even challenged on the basis of whether the impugned rule is inconsistent with the
principle of right to have personal liberty or not in several other petitions, as enshrined in
article21,but this segment remained untouched by the apex court.

SUGGESTIONS

Even after this landmark judgment there were cases of similar nature, the reason for clinging
towards the age bar by the bar councils is still not clear. Many a times a tussle can be seen between
State Bar Councils and the BCI regarding the rule making authority, in the above judgment also
the court accepted that ‘overlaps are unavoidable’.

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-The Apex court or the Parliament should come up with suggestions or laws to overcome this
problem, Guidelines can be introduced by them through which the State councils and the BCI
would relish distinct powers and without any overlapping of laws.

-There were quite vindictive arguments regarding the constitutionality of such rules with respect
to article 19(1)(g) & 21, but the point is still unanswered. The apex court should provide a
legitimate opinion on the same.

-To prohibit the councils from framing rules which create an age bar by just putting up some
hypothetical arguments, some concrete steps like introducing a restrictive order on such rules
should be introduced.

CONCLUSION

The Apex court while delivering this landmark judgment clearly explained the language,
provisions, and distribution of powers between State councils and the BCI. The court reiterated
that the language which is construed in positive terms should not be used otherwise to formulate
laws which would hinder the rights. The judgment showcased that no action of the state or related
authorities can restrain one from enjoying his right to equality, also, it made sure that any law
which is formulated on non reliable or statistical data is liable to be quashed. Authorities usually
frame rules which are not in their ambit of powers, or the act by which they are governed does not
authorize them to modulate rules, the judgment gave the necessary setback to such rule making
authorities. The judgment made the point clear that the BCI is not empowered to make rules on
admission of the candidates and this power rests with the State councils, but the court didn’t
mention that whether State councils are allowed to interfere in the pre-enrolment stage. The
judgment was also silent on whether the impugned rule is in consistency with the right to
profession and whether the right to have personal liberty is infringed or not, these points need
clarification.

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REFERENCES

1.Indian Council of Legal Aid and Advice, etc. etc. vs. Bar Council of India and
another,MANU/SC/0134/1995
2.Ramana Dayaram Shetty vs. International Airport Authority of India and
Ors.,MANU/SC/0048/1979
3.Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc,MANU/SC/0688/1981
4. Bachan Singh and ors. vs State Of Punjab and ors.,MANU/SC/0341/1980
5.D.S. Nakara & Others vs Union Of India,MANU/SC/0237/1982
6. Shri Chintaman Rao & Another vs The State Of Madhya Pradesh,MANU/SC/0008/1950
7 Dr. Haniraj L. Chulani vs Bar Council Of Maharashtra & Goa,MANU/SC/1120/1996
8. Rajan Sharma v. Bar Council of India, Indian Kanoon
9. Rishabh Duggal v. Bar Council of India, Indian Kanoon
10.Kshitij Sharma Andanr vs Bar Council Of India And Anr, Inidan Kanoon
11.J. Sampath Kumar vs. Bar Council of India represented by its Secretary and
Anr.,MANU/TN/0817/1994
12. Indravadan H. Shah vs. State of Gujarat and Anr.,MANU/SC/0458/1986
13. M. Radhakrishnan vs. The Secretary, The Bar Council of India and The Secretary, The Bar
Council of Tamil Nadu,MANU/TN/3154/2006
14. V.Sudeer vs Bar Council Of India & Anr,MANU/SC/1635/1999
15. Aparna Basu Mallick vs Bar Council Of India And Ors.,MANU/WB/0082/1983

ABOUT THE AUTHOR

Suyash Shrivastava is a first year student of B.A.L.L.B(Hons) from Indore Institute of Law, Indore.
He is chiefly interested in the field of constitutional and criminal law. Also, he has a profound
interest in studying and analyzing political issues, and writing articles or blogs on the same, he is
further willing to polish his skills. He has participated and volunteered in events like debate,moot
court and various events in school and college. He is a proficient speaker and researcher,and
aspires to set up his own practice.

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