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Dr. Haniraj L. Chulani v.

Bar Council of Maharashtra & Goa


Memorial Submitted By Sanjay Patnaik- 246 Devopam Baidya- 321 Suyash Verma- 346

Facts y y The appellant is a permanent resident of Bombay. He is a medical practitioner (colorectal surgeon) since 1970. During the continuance of his said profession as a medical practitioner, the appellant joined LL.B. Degree Course and obtained Degree of Bachelor of Laws on 4th March 1991. Thereafter the appellant applied to the respondent State Bar Council of Maharashtra & Goa for being enrolled as an advocate under the Advocates Act, 1961 (hereinafter referred to as 'the Act'). This application was moved by the appellant on 26th July 1991. The appellant insisted that even though he is a medical practitioner he is entitled to simultaneously carry on the profession as an advocate. The Enrollment Committee of the respondent-State Bar Council rejected his request for being enrolled as an advocate simultaneously with his carrying on his medical practice as a surgeon. The appellant was ultimately informed on 16th November 1992 that his application for enrollment as an advocate was rejected. He was also supplied a copy of the reasons for 'refusal for grant of a sanad'. The appellant feeling aggrieved by the said refusal filed writ petition No.2584 of 1992 in the High Court of Bombay. After hearing the petitioner a Division Bench of the High Court summarily dismissed his writ petition on 14th December 1992. It is thereafter that the appellant moved the present proceedings by way of special leave petition. By an order dated 30th November 1993 delay in filing the special leave petition was condoned and notice was ordered to be issued to the Bar Council of Maharashtra & Goa with a direction that the notice will state that the matter will be disposed of at the notice stage itself. Subsequently after hearing the learned senior counsel for the appellant by an order dated 21st September 1995 notice was ordered to be issued to Bar Council of India as well as the Medical Council of India.

Issues y Whether impugned Rule (l) framed by the State Bar Council of Maharashtra & Goa suffers from the vice of excessive delegation of legislative power and hence is void and inoperative at law? Whether the said rule is violative of Article 19(1)(9) and is not saved by sub-article (6) thereof?

Whether the aforesaid rule is violative of Articles 14 and 21 of The Constitution?

Arguments Whether impugned Rule (l) framed by the State Bar Council of Maharashtra & Goa suffers from the vice of excessive delegation of legislative power and hence is void and inoperative at law? The code provides standards for identification and measurement of professional deviance. Thus, from the pre-entry point to legal Profession till the exit point from the legal profession, the Bar Council of India and the State Bar Councils monitor the career of the legal practitioner. It is the entire scheme of the Act when considered in the light of the nature of the legal profession to which such entry is given which has to be kept in view while considering the submissions that the power given to the State Bar Councils to regulate such entries by framing rules is a piece of excessive delegation of legislative power. Section 28 sub-section (2) similarly gives power to the State Bar Council to make rules for carrying out the purposes of the Act and in particular such rules may provide the conditions subject to which a person may be admitted as an advocate. Such rule- making power flows from Section 28(2)(d). Even though the aforesaid rule making power is couched in wide terms the said power entrusted to the Stats Bar Council cannot be said to be unfettered or unhedged. The said rule-making power draws its sustenance from the guidelines laid down by the Act itself which entrusts the duty to the concerned State Bar Council to regulate entry to the legal profession which has the aforesaid well established connotations and attributes. The concerned Bar Councils are entrusted by the legislature itself with the aforesaid rule-making power enabling them to determine the requirements of the concerned State Courts where the new entrants have to practice and to lay down appropriate conditions regulating such entries. As the power to make rules is entrusted by legislature to the chosen representatives of legal practitioners themselves who would be alive to the requirements of the concerned State where the Bar Council functions and the needs of the litigating public residing in the Stats in the light of the set-up of courts in the States concerned, it cannot be said that the power is in any way unfettered or uncanalised so as to amount to total effacement of legislatives control. Sufficient guidelines are laid down by the legislature itself while conferring such powers on the State Bar Councils.

The guideline flow from the nature of the profession to which admissions are to be given, the selection of the chosen representatives of the profession to be the recipients of such power and the requirements of the Statute itself laying down the conditions for regulating professional conduct of advocates as discernible from various provisions of the Act and the rules framed by a Central Bar Council itself for the guidance of all State Bar Councils functioning in the country which entrusted with the task of regulating the conduct of legal profession throughout the country under supervision and guidance of Central Bar Council. The entire edifice of the Act in this connection has to be kept in view for finding out the relevant guidelines for enlightening the path of State Bar Councils entrusted with the task of framing rules regulating entries of new aspirants who are to be permitted to enter the fold of legal profession. However, as discussed earlier, in the set-up of the entire scheme of the Act and the rules framed by the Central Bar Council and in the light of the nature of the power entrusted to the elected body of advocates themselves it cannot be said that while regulating the entry to the legal profession the Bar Councils would find themselves without any yardstick or guideline and would be trading an unchartered sea and consequently the rules of enrollment framed by them would fall foul on the altar of permissible delegation of legislative power. It is, therefore, not possible to agree with the contention of the appellant that the impugned rule suffers from the vice of excessive delegation of legislative power or by providing rule-making power to the State Bar Councils for regulating entries of new advocates seeking to join the profession the legislature has effaced itself. The conditions which the State Bar Councils can lay down by rules must be conditions which would be germane to the high and exacting standards of advocacy expected of the new entrants to the fold of the profession. Implicit in the conferment of such rule-making power is the guideline laid down by the legislature itself that the conditions must be commensurate with the fructification of the very purpose of the Act of putting the profession of advocates on a sound footing so that the concerned new entrant can well justify his role as an officer of the Court admitted to the fold of the noble profession to which he seeks his admission. Any conditions laid down by the State Bar Councils for fructifying this laudable object of legislature would remain germane to the exercise of this power and can well be said to be logically flowing from it. It cannot, therefore, be said that any unguided and unchartered power is handed over on a platter by the legislature to the concerned Bar Councils for regulating entry to the legal profession. Rule- making power conferred on the State Bar Councils is inherently hedged in with the obligation to frame only such rule, regarding enrollment which would fructify the purpose of having efficient members of the Bar who can stand up to the expectation of the noble and learned profession to which they are to be given entry. Any rule which effectuates this purpose will he within the permissible field and will not fall foul on the altar of Article 14 and Article 19(1)(9) read with Article 19(6). Any rule framed for enrollment which does not meet this yardstick will be a taboo. Hence it cannot be said that the rule making power entrusted to the State Bar Councils suffers from absence of any guidelines or exhibits effacement of legislative power. The first point for determination, therefore, is answered in the negative by holding that the impugned rule does not suffer from vice of any excessive delegation of legislative power.

Whether the said rule is violative of Article 19(1)(9) and is not saved by sub-article (6) thereof? The impugned rule does not impose any unreasonable restriction on the right of the professional carrying on any other avocation and insisting on continuing to carry on such profession, while it prohibits entry of such a person to the legal profession. If the contention of the appellant is countenanced and any person professing any other profession is permitted to join the legal profession having obtained the Degree of Law and having fulfilled the other requirements of Section 24, then even chartered accountants, engineers and architects would also legitimately say that during court hours they will practice law and they will simultaneously carry on their other profession beyond court hours. If such simultaneous practices of professionals who want to carry on more than one profession at a time are permitted, the unflinching devotion expected by the legal profession from its members is bound to be adversely affected. If the peers being chosen representatives of the legal profession constituting the State Bar Council, in their wisdom, had thought it fit not to permit such entries of dual practitioners to the legal profession it cannot be said that they have done anything unreasonable or have framed an arbitrary or unreasonable rule. Whether the aforesaid rule is violative of Articles 14 and 21 of The Constitution? The rule carves out a well-defined class of professionals carrying on other professions and denies to members of this well-defined class entry to the legal profession so long as they insist on carrying on any other profession simultaneously with the legal profession. The said classification has a reasonable nexus to the object sought to be achieved, namely, the efficiency of advocates belonging to the legal profession and the better administration of justice for which the legal profession is a partner with the judiciary. The challenge mounted on the rule in the light of Article 14, therefore, has to fail. That leaves out the challenge to the rule in the light of Article 21. It is difficult to appreciate this challenge. It is no doubt true that right to live includes right to livelihood. However the appellant is not denied his right to livelihood. He is already a professional carrying on the profession of a medical practitioner. He wants to have a second string to his bow. He wants simultaneously to be permitted to practice law with a view to earn additional or more livelihood. So far as his aforesaid demand is concerned the impugned rule requires that unless he gives up that other practice and joins wholeheartedly the legal profession he cannot be permitted to enter the legal profession. That rule cannot be said to be laying down a procedure not established by law. On the contrary that procedure has been found to be well sustained under Article 19(1) (g) read with Article 19(6). Once that conclusion is reached the absolute requirement of Article 21 would be out of the way. Appellant cannot be said to have been deprived of his right to livelihood by pursuing two professions, contrary to any established procedure of law. Consequently the impugned rule cannot be faulted on the touchstone of Articles 21. The third point for determination also, therefore, is decided against the appellant.

Judgment The appellant submitted that the Medical Council of India has no objection to the appellant's simultaneously practicing law along with his practicing law along with his practicing as a surgeon. The appellant also submitted that in foreign countries in some of the States such simultaneously practice is permitted. In our view all this is beside the point. Whether the Medical Council of India has no objection to their members' practicing law or whether in foreign countries under certain circumstances other professionals are permitted to simultaneously practice law would not be strictly relevant in deciding the short question with which we are concerned, namely, whether the State Bar Council had undertaken an impermissible exercise in enacting the impugned rule restricting entries of other professionals to the legal profession while they are not prepared to give up their other professions and on the contrary insist on simultaneously practicing more than one professions. While deciding this question the wider question whether there can be a better rule than one framed by the State Bar Council would be beside the point and cannot be of any assistance. Such a contention, therefore, cannot be of any avail to the learned senior counsel for the appellant. The aforesaid were the only contentions canvassed on behalf of the appellant and as they fail the appeal also fails and will stand dismissed. In the facts and circumstances of the case there will be no order as to costs. Law as a Noble Profession It cannot be gainsaid that law is universally described as an honorable profession. An advocate is an officer of justice and friend of the court. A conduct, therefore, which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean that he is subordinate to the Judge. It only means that he is an integral part for the Administration of justice. Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions which its members are expected to upkeep and uphold. Members of the profession claimed that they are the leaders of thought and society. The central function that the legal profession must perform is nothing less than the administration of justice. The aforesaid well established connotations and contours of the requirements of legal profession themselves supply the necessary guideline for the concerned Bar Councils to frame rules for regulating the entries of persons to the profession.