Full Judgment Text
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PETITIONER:
INDIAN COUNSIL OF LEGAL AID & ADVICE
Vs.
RESPONDENT:
B.C.I
DATE OF JUDGMENT17/01/1995
BENCH:
AHMADI A.M. (CJ)
BENCH:
AHMADI A.M. (CJ)
MOHAN, S. (J)
PARIPOORNAN, K.S.(J)
CITATION:
1995 AIR 691 1995 SCC (1) 732
JT 1995 (1) 423 1995 SCALE (1)181
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
AHMADI, C.J.- The Bar Council of India by Resolution No. 64
of 1993 dated 22-8-1993 added Rule 9 in Chapter III of Part
VI of the Bar Council of
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India Rules which resolution was gazetted on 25-9-1993. The
said newly added rule reads as under:
"A person who has completed the age of 45
years on the date on which he submits his
application for his enrolment as an advocate
to the State Bar Council shall not be enrolled
as an advocate."
All the State Bar Councils in the country were duly informed
about the insertion of the said rule. The legality and
validity of the said rule is questioned in this batch of
petitions as inconsistent with Articles 14, 19(1)(g) and 21
of the Constitution and Section 24 of the Advocates Act,
1961, hereinafter called "the Act".
2. The Act came into force with effect from 19-5-1961.
The dictionary of the Act is to be found in Section 2,
clause (a) whereof defines an advocate as a person entered
in any roll under the provisions of the Act as such and the
term ’roll’ according to clause (k) means a roll of
advocates prepared and maintained under the Act. Section 3
provides that there shall be a Bar Council for each of the
States to be known as the Bar Council of that State.
Section 4 next provides for a Bar Council for the
territories to which the Act extends to be known as the Bar
Council of India. The functions of the State Bar Council
and the Bar Council of India have been set out in Sections 6
and 7 respectively. The functions of the State Bar Council
include admission of persons as advocates on its roll,
preparation and maintenance of such roll, safeguarding the
rights, privileges and interests of advocates on its roll
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and to do all things necessary for discharging the above
functions. The functions of the Bar Council of India
include the laying down of standards of professional conduct
and etiquette for advocates and for safeguarding their
rights, privileges and interests. Chapter III which deals
with "Admission and Enrolment of Advocates" comprises of
Sections 16 to 28. Section 16 provides that there shall be
two classes of advocates, senior advocates and other
advocates; Section 17 sets out how every State Bar Council
shall prepare and maintain a roll of advocates; Section 18
deals with the transfer of name of an advocate from one
State roll to another; Section 19 enjoins upon every State
Bar Council to send a copy of the roll of advocates to the
Bar Council of India; Section 20 makes special provision for
enrolment of every advocate who was entitled to practise in
the Supreme Court immediately before the appointment day in
the roll of a State Bar Council; Section 21 relates to the
fixation of seniority; Section 22 provides for issuance of
certificate of enrolment and Section 23 confers the right of
preaudience on the Attorney General of India, the Solicitor
General of India, the Additional Solicitor General of India,
etc. Section 24 to the extent it is relevant for our
purpose provides as under:
"24. Persons who may be admitted as advocates
on a State roll.(1) Subject to the provisions
of this Act, and the rules made thereunder, a
person shall be qualified to be admitted as an
advocate on a State roll, if he fulfils the
following conditions, namely:
(a) he is a citizen of India;
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(b) he has completed the age of twenty-one
years; and
(c) he has obtained a degree in law-
Section 24-A provides that no person shall be admitted as an
advocate on a State roll, for the period indicated in the
proviso, if he is convicted of an offence involving moral
turpitude, or if he is convicted of an offence under the
provisions of Untouchability (Offences) Act, 1955 or if he
is dismissed or removed from employment or office under the
State on any charge involving moral turpitude; Section 25
indicates the authority to whom applications for enrolment
may be made; Section 26 provides for the disposal of such
applications; Section 26-A confers power on the State Bar
Council to remove any name from its roll; Section 27
provides that where a State Bar Council has refused the
application of any person for admission as an advocate, no
other State Bar Council shall entertain his/her application
for admission on its roll except with the previous consent
of the former and of the Bar Council of India and Section 28
confers power on a State Bar Council to make rules to carry
out the purposes of the Chapter which may in particular,
inter alia, provide for the conditions subject to which a
person may be admitted as an advocate on its roll. Chapter
IV deals with the "Right to Practise". Section 29 says that
subject to the provisions of the Act and any rule made
thereunder there shall, as from the appointed day, be only
one class of persons entitled to practise the profession of
law, namely, advocates. According to Section 30 every
advocate whose name is entered in the State roll shall be
entitled as of right to practise throughout the territories
to which the Act extends in all courts including the Supreme
Court of India, before any Tribunal or person legally
authorised to take evidence and before any authority or
person before whom such advocate is, by or under any law for
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the time being in force, entitled to practise. Section 33
further provides that no person shall, on or after the
appointed day, be entitled to practise in any court or
before any authority or person unless he is enrolled as an
advocate under the Act. Chapter V deals with "Conduct of
Advocates". Under Section 35 where on receipt of a
complaint or otherwise a State Bar Council has reason to
believe that any advocate on its roll has been guilty of
professional or other misconduct it shall refer the case for
disposal to its disciplinary committee. Section 37 provides
for an appeal to the Bar Council of India against an order
made by the disciplinary committee of a State Bar Council.
Section 36 provides that where on receipt of a complaint or
otherwise, the Bar Council of India has reason to believe
that any advocate whose name is not entered on any State
roll has been guilty of professional or other misconduct, it
shall refer the case to the disciplinary committee. Any
person aggrieved by an order made by the disciplinary
committee of the Bar Council of India under Section 36 or 37
may prefer an appeal to the Supreme Court of India under
Section 38 of the Act. The powers of the disciplinary
committee have been enumerated in Section 42. Chapter VI
deals with ’Miscellaneous’ matters. We are concerned with
Section 49 which empowers the Bar Council of India to make
rules for discharging its functions under the Act. Clauses
(ag) and (ah) of sub-section (1) of Section 49, inter alia,
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empower the Bar Council of India to make rules (i)
prescribing the class or category of persons entitled to be
enrolled as advocates and (ii) laying down the conditions
subject to which an advocate shall have the right to
practise and the circumstances under which a person shall be
deemed to practise as an advocate in a court. These, in
brief, are the relevant provisions of the Act which have a
bearing on the question of legality and validity of the
newlyadded Rule 9 in Chapter III of Part VI of the Rules.
3. It will be seen from the above provisions that unless a
person is enrolled as an advocate by a State Bar Council, he
shall have no right to practise in a court of law or before
any other Tribunal or authority. Once a person fulfils the
requirements of Section 24 for enrolment, he becomes
entitled to be enrolled as an advocate and on such enrolment
he acquires a right to practise as stated above. Having
thus acquired a right to practise he incurs certain
obligations in regard to his conduct as a member of the
noble profession. The Bar Councils are enjoined with the
duty to act as sentinels of professional conduct and must
ensure that the dignity and purity of the profession are in
no way undermined. Its job is to uphold the standards of
professional conduct and etiquette. Thus every State Bar
Council and the Bar Council of India has a public duty to
perform, namely, to ensure that the monopoly of practice
granted under the Act is not misused or abused by a person
who is enrolled as an advocate. The Bar Councils have been
created at the State level as well as the Central level not
only to protect the rights, interests and privileges of its
members but also to protect the litigating public by
ensuring that high and noble traditions are maintained so
that the purity and dignity of the profession are not
jeopardized. It is generally believed that members of the
legal profession have certain social obligations, e.g., to
render "pro bono publico" service to the poor and the
underprivileged. Since the duty of a lawyer is to assist
the court in the administration of justice, the practice of
law has a public utility flavour and, therefore, he must
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strictly and scrupulously abide by the Code of Conduct
behoving the noble profession and must not indulge in any
activity which may tend to lower the image of the profession
in society. That is why the functions of the Bar Council
include the laying down of standards of professional conduct
and etiquette which advocates must follow to maintain the
dignity and purity of the profession.
4. In the above background it was contended on behalf of
the Bar Council of India that the need to uphold standards
of professional conduct and etiquette cannot be over
emphasised. The Act, besides highlighting the essential
functions of the Bar Council of India in this behalf,
provides for the enforcement of the same and sets up
disciplinary authorities to chastise and, if necessary,
punish members of the profession for misconduct. The
punishment may include suspension from practise as well as
removal of the name from the roll of advocates. Section
49(1) confers power on the Bar Council of India to make
rules, inter alia, for discharging its functions under the
Act. Section 49(1)(ag) when read with Section 24 of the Act
confers wide powers on the Bar Council of India to indicate
the class or category of
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persons who may be enrolled as advocates which power would
include the power to refuse enrolment in certain
circumstances. The obligation to maintain the dignity and
purity of the profession and to punish erring members
carries with it the power to regulate entry into the
profession with a view to ensuring that only profession-
oriented and service-oriented people join the Bar and those
not so oriented are kept out. Counsel submitted that a
person who has already spent the best years of his life in
pursuing some other profession or occupation cannot be said
to have the correct attitude of a service-oriented-
professional and cannot be expected to maintain the high
standards of professional conduct. According to the
respondent-Bar Council of India persons who retire from
various Government, quasi-Government and other institutions
when admitted to the legal profession use their earlier
contacts to canvass for cases; a conduct which brings down
the standard of professional ethics expected to be
maintained by a member of the profession and that has a very
adverse influence on the minds of young fresh entrants to
the profession. It is no answer to state that disciplinary
action can be taken against those who deviate from the
standard of conduct expected of a member of the Bar because
all cases of infraction of the Code of Conduct do not come
to the notice of the Bar Council and such behaviour leaves a
lingering effect on the profession. It is in order to
uphold the high standards of professional morality and
integrity that the Bar Council of India was compelled to
enact a rule restricting the entry into the legal profession
by prescribing the age-limit of 45 years. The Bar Council
of India contends that it has acted bona fide within the
framework of the Act and the Constitution. According to it
the right to practise as an advocate not being a fundamental
right but only a privilege conferred by the Act can always
be withdrawn and in any case reasonable restrictions can be
imposed even if it were a fundamental right under Article
19(1)(g) of the Constitution. The restriction imposed by
the newly added rule is to serve a public purpose and can
never be termed as unreasonable, violative of Article 14 of
the Constitution. Since the upper age limit has been fixed
to save the legal profession from decay and deterioration it
is, contends the Bar Council, difficult to comprehend how it
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can be said to be inconsistent with Article 21 and for that
matter Article, 14 of the Constitution. The prescription of
the higher age limit does .not violate Section 24 of the Act
and since Section 49 permits classification and
categorisation which even Article 14 permits, the newly
added rule is clearly intra vires the Act and the
Constitution. That, in brief, is the defence set up by
the Bar Council of India in support of the rule impugned
before us.
5. It is clear from the above averments found in the
counter filed on behalf of the Bar Council of India that
the rationale is that the profession of law being a pious
and honourable profession, its main object being service of
mankind by serving the system of administration of justice,
it is the pious duty of the Bar Council to protect its
public image by restricting the inflow of a large number of
retired personnel who seek to enter the legal profession
solely for additional gains. Such persons are not inspired
by lofty ideals of the profession but their only motive is
money making for which they are
739
prepared to stoop to any levels which has a very negative
influence on young minds who join the profession after
graduation. Can the restriction imposed on this rationale
be sustained? That is the short question.
6. We have briefly noticed the relevant provisions of the
Act in the earlier part of this judgment. We may now
briefly indicate the scheme. before we do so it may not be
out of place to mention that the profession of law is one of
the oldest professions and was practised in one form or the
other in the hoary past. After the advent of the British in
India, certain rules in regard to the practise of law were
introduced. Before independence there were Mukhtars and
Vakils who were permitted to practise law in moffusil courts
even though not all of them were Law graduates. However,
slowly and gradually they were allowed to wither away and
their place was taken by Pleaders who were, after securing a
degree in Law, permitted to practise at the district level.
Those who were enrolled as advocates could practise in any
court subordinate to the High Court including the High
Court. The difference between a Pleader and an Advocate was
merely on account of the fee charged for enrolment. After
independence, came the Act which was enacted "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 Act creates an all India Bar with only one
class of legal practitioners, namely, advocates, who of
course are classified as senior advocates and other
advocates (Section 16). The general superintendence of
ethics and etiquette of the profession is the responsibility
of the Bar Councils created under the Act and they have been
charged with the duty to punish their members for
misconduct. The Act envisages the existence of a Bar
Council for every state. The function of admission of
persons as advocates is entrusted to every State Bar Council
which is required to prepare and maintain a roll for that
purpose. While disciplinary jurisdiction is conferred on
the State Bar councils to punish its members for misconduct,
it is at the same time charged with the duty to safeguard
their rights, privileges and interests. They must perform
all the functions conferred on them by or under the Act and
do everything that is necessary to discharge the functions
set out in Section 6. So far as the Bar Council of India is
concerned, its functions are of a more general nature, e.g.,
to lay down standards of professional conduct and etiquette
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for advocates, to safeguard their rights, privileges and
interests, to supervise and control the working of the State
Bar Council, to promote legal education, to recognise
universities, to organise legal aid to the poor and to
perform all other functions conferred by or under the Act
and do everything that may be necessary to discharge the
functions enumerated in Section 7. Besides the above it too
is required to exercise discipline and control over the
members of the profession. Thus the functions are divided
between the State Bar Councils and the Bar Council of India,
although for obvious reasons overlaps are unavoidable. The
rule-making power has been conferred on the State Bar
Councils under Sections 15 and 28 and on the Bar Council of
India under Section 49 of the Act.
740
7. The power conferred by Section 15 is to make rules
providing for the elections of the members of the Bar
Council, its Chairman and Vice Chairman and matters
incidental thereto. These rules shall not have effect
unless approved by the Bar Council of India. We are not
concerned with the rule-making power under this provision.
Section 28 empowers the State Bar Council to make rules
which may, inter alia, provide for the form in which an
advocate must express his intention for entry of his name in
the roll of a State Bar Council, the form in which an
application must be made for admission as an advocate on its
roll and the conditions subject to which a person may be
admitted as an advocate on any such roll. These rules also
must be approved by the Bar Council of India before they
come into force. We have already indicated earlier the
matters in regard to which the Bar Council of India may make
rules for discharging its functions under the Act. Besides
the State Bar Councils and the Bar Council of India Section
34 confers power on the High Courts to make rules laying
down the conditions subject to which an advocate may be
permitted to practise in the High Court and courts
subordinate thereto. Power is also conferred on the Central
Government by Section 49-A to make rules by notification in
the Official Gazette for carrying out the purposes of the
Act including rules with respect to any matter for which the
Bar Council of India or a State Bar Council has power to
make rules. Thus the rulemaking power of the Central
Government is wide enough to embrace matters for which the
Bar Council of India or a State Bar Council has power to
make rules. These rules may, inter alia, lay down the
qualifications and disqualifications for membership of a Bar
Council, the manner in which the Bar Council of India must
exercise supervision and control over State Bar Councils,
the class or category of persons entitled to be enrolled as
advocates under the Act, the category of persons who may be
exempted for undergoing a course of training and passing an
examination prescribed under Section 24(1)(d), the manner in
which seniority among advocates may be determined, the
procedure to be followed by the disciplinary committee of
the Bar Council for hearing cases and any other matter which
may be prescribed. These, in brief, are the rule making
powers conferred on various agencies under the Act.
8. The newly added rule seeks to bar the entry of persons
who have completed the age of 45 years on the date of
application for enrolment as an advocate from being enrolled
as such by the State Bar Council concerned. While Section
24 of the Act prescribes the minimum age for enrolment as
twenty-one years complete, there is no provision in the Act
which can be said to prescribe the maximum age for entry
into the profession. Since the Act is silent on this point
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the Bar Council of India was required to resort to its rule-
making power. The rules made by the Bar Council of India
under Section 49(1) of the Act are in seven parts, each part
having its own chapters. Part VI is entitled "Rules
Governing Advocates" and the said part has three chapters.
Chapter I sets out the restrictions on senior advocates and
is relatable to Sections 16(3) and 49(1)(g) of the Act,
Chapter II lays down the standards of professional conduct
and etiquette and is relatable to Section
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49(1)(c) read with the proviso thereto and Chapter III deals
with "Conditions for right to practise" and is stated to be
made in exercise of power under clause (ah) of sub-section
(1) of Section 49 of the Act. That clause reads as under:
" (ah) the conditions subject to which an
advocate shall have the right to practise and
the circumstances under which a person shall
be deemed to practise as an advocate in a
court;"
On the plain language of the said clause it seems clear to
us that under the said provision the Bar Council of India
can lay down the ’conditions’ subject to which "an advocate"
shall have the right to practise. These conditions which
the Bar Council of India can lay down are applicable to an
advocate, i.e., a person who has already been enrolled as an
advocate by the State Bar Council concerned. The conditions
which can be prescribed must apply at the post-enrolment
stage since they are expected to relate to the right to
practise. They can, therefore, not operate at the pre-
enrolment stage. By the impugned rule, the entry of those
who have completed 45 years at the date of application for
enrolment is sought to be barred. The rule clearly operates
at the pre-enrolment stage and cannot, therefore, receive
the shelter of clause (ah) of Section 49(1) of the Act.
Under the said clause conditions applicable to an advocate
touching his right to practise can be laid down, and if laid
down he must exercise his right subject to those conditions.
But the language of the said clause does not permit laying
down of conditions for entry into the profession. We have,
therefore, no hesitation in coming to the conclusion that
clause (ah) of Section 49(1) of the Act does not empower the
Bar Council of India to frame a rule barring persons who
have completed 45 years of age from enrolment as an
advocate. The impugned rule is, therefore, ultra vires the
said provision.
9. Can the rule be saved under any other provision of the
Act? As stated earlier the Act in Section 24(1)(b) provides
that the person who seeks enrolment as an advocate must have
completed the age of twenty-one years. Nowhere does the Act
provide the maximum age beyond which a person shall not be
entitled to enrolment as an advocate nor does the Act make
any specific provision empowering the Bar Council of India
to frame such a rule. Reliance was, however, placed on
clause (ag) of Section 49(1) which reads as under:
"(ag) the class or category of persons entitled to be
enrolled as advocates;"
Can persons who have completed 45 years of age be said to
constitute a class or category to entitle the Bar Council of
India to debar them from being enrolled as advocates? Rule
49(1) empowers the Bar Council of India to make rules for
discharging its functions under the Act and in particular
those enumerated in clauses (a) to (j) thereof. None of the
functions under Section 7 specifically provides for laying
down such a condition debarring persons of a certain age
group from enrolment as advocates. The clause relied upon
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is couched in positive terms, namely, it says the rules may
prescribe the class
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or category of persons who may be admitted to the legal
profession. Therefore, under this clause the class or
category of persons "entitled to be enrolled" as advocates
may be prescribed. The rule can, therefore, specify the
class or category of persons ’entitled’ to be enrolled as
advocates, but the rule (sic clause) gives no indication
that it can debar persons belonging to a certain age group
from being enrolled as advocates. Where a provision is
couched in positive language and is in the nature of an
enabling provision, there is no canon of construction which
says that by necessary implication the rule-making authority
can make a provision disentitling admission or enrolment to
the profession. Such a submission is difficult to
countenance.
10.But the larger question needs to be answered and that is
whether the said clause applies to persons belonging to a
certain age group. Section 28(1)(d) of the Act authorises a
State Bar Council to make rules prescribing the conditions
subject to which a person may be admitted as an advocate.
The power to specify the class or category of persons
entitled to be enrolled as advocates is conferred on the Bar
Council of India under Section 49(1)(ag) and on the Central
Government under Section 49-A of the Act. The role which a
State Bar Council has to play under Section 28 is distinct
from that the Bar Council of India has to play under Section
49(1)(ag) of the Act, in that, after the class or category
is identified, they do not automatically get admitted or
enrolled, they still have to abide by the requirements for
admission to the State roll. Therefore, apart from a class
or group being declared "entitled to enrolment", the other
conditions or norms evolved by the State Bar Council for
entry of the individual on its roll would have to be
satisfied.
11.It seems Parliament while enacting the Act created
agencies at the State level as well as at the Central level
in the form of State Bar Councils and Bar Council of India
and invested them with rule-making powers on diverse matters
touching the legal profession, presumably because it must
have realised that matter pertaining to the profession are
best left to informed bodies comprising of members of the
said profession. However, while doing so it provided for
basic substantive matters, e.g., eligibility for entry into
the profession (Section 24), disqualification for enrolment
(Section 24-A), authority entitled to grant admission
(Sections 25 and 26), the authority which can remove any
name from the roll (Section 26-A), etc., and placed them
within the domain of a State Bar Council. Thus it is the
State Bar Council which alone must decide the question of
enrolment of an applicant on its roll. Under Section 24 a
person who is a citizen of India and possesses a degree in
Law becomes qualified to be admitted as an advocate if he
has completed twenty-one years of age, subject of course to
the other provisions of the Act. No doubt he must fulfil
the other conditions specified in the rules made by the
State Bar Council [Section 24(1)(e)]. Every person whose
name is entered in the list of advocates has a right to
practise in all courts including the Supreme Court, before
any tribunal or other authority. It is, therefore, within
the exclusive domain of the State Bar Councils to admit
persons as advocates on their rolls or to remove their names
from the rolls.
743
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There is no provision in Chapter III dealing with admission
and enrolment of advocates which restricts the entry of
those who have completed 45 years as advocates. Nor has the
State Bar Council made any such rule under its rulemaking
power.
12. There is no specific provision in Section 7 of the Act
which enumerates the functions of the Bar Council of India
empowering it to fix the maximum age beyond which entry into
the profession would be barred. that is why reliance is
placed on the rule-making power of the Bar Council of India
enshrined in Section 49. That section empowers the making
of rule by the Bar Council of India "for discharging its
functions" under the Act, and, in particular, such rules may
prescribe the class or category of persons entitled to be
enrolled as advocates. The functions of the Bar Council of
India enumerated in Section 7 do not envisage laying down a
stipulation disqualifying persons otherwise qualified from
entering the legal profession merely because they have
completed the age of 45 years. On the other hand Section
24-A was introduced by Section 19 of Act 60 of 1973 with
effect from 31-1-1974 to disqualify certain persons from
entering the legal profession for a limited period. By the
impugned rule every person even if qualified but who has
completed 45 years of age is debarred for all times from
enrolment as an advocate. If it had been possible to
restrict the entry of even those class or category of
persons referred to in Section 24-A by a mere rule made by
the Bar Council of India, where was the need for a statutory
amendment? That is presumably because matters concerning
disqualification even for a limited period was considered to
be falling outside the ken of rulemaking power, being a
matter of public policy. It is difficult to accept the
interpretation that all those above the age group of 45
years constitute a class within the scope of clause (ag) of
Section 49(1) of the Act to permit the Bar council of India
to debar their entry into the profession for all times. In
the guise of making a rule the Bar Council of India is
virtually introducing an additional clause in Section 24 of
the Act prescribing an upper age ceiling of completed age of
45 years beyond which no person shall be eligible for
enrolment as an advocate or is inserting an additional
clause in Section 24-A of the Act prescribing a
disqualification. Viewed from either point of view we are
clearly of the opinion that the rulemaking power under
clause (ag) of Section 49(1) of the Act does not confer any
such power on the Bar Council of India. We are unable to
subscribe to the view that all those who have completed the
age of 45 years and are otherwise eligible to be enrolled as
advocates constitute a class or category which can be
disqualified as a single block from entering the profession.
Besides, as stated above clause (ag) relates to
identification and specification of a class or category of
persons ‘entitled’ to be enrolled and not ’disentitled’ to
be enrolled as advocates. We, therefore, are of the opinion
that the impugned rule is beyond the rulemaking power of the
Bar Council of India and is, therefore, ultra vires the Act.
13. The next question is, is the rule reasonable or
arbitrary and unreasonable? The rationale for the rule, as
stated earlier, is to maintain the
744
dignity and purity of the profession by keeping out those
who retire from various Government, quasi-Government and
other institutions since they on being enrolled as advocates
use their past contacts to canvass for cases and thereby
bring the profession into disrepute and also pollute the
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minds of young fresh entrants to the profession. Thus the
object of the rule is clearly to shut the doors of the
profession for those who seek entry into the profession
after completing the age of 45 years. In the first place,
there is no reliable statistical or other material placed on
record in support of the inference that ex-government or
quasi-government servants or the like indulge in undesirable
activity of the type mentioned after entering the
profession. Secondly, the rule does not debar only such
persons from entry into the profession but those who have
completed 45 years of age on the date of seeking enrolment.
Thirdly, those who were enrolled as advocates while they
were young and had later taken up some job in any Government
or quasi-Government or similar institutions and had kept the
sanad in abeyance are not debarred from reviving their
sanads even after they have completed 45 years of age.
There may be a large number of persons who initially entered
the profession but later took up jobs or entered any other
gainful occupation who revert to practise at a later date
even after they have crossed the age of 45 years and under
the impugned rule they are not debarred from practising.
Therefore, in the first place there is no dependable
material in support of the rationale on which the rule is
founded and secondly the rule is discriminatory as it debars
one group of persons who have crossed the age of 45 years
from enrolment while allowing another group to revive and
continue practise even after crossing the age of 45 years.
The rule, in our view, therefore, is clearly discriminatory.
Thirdly, it is unreasonable and arbitrary as the choice of
the age of 45 years is made keeping only a certain group in
mind ignoring the vast majority of other persons who were in
the service of Government or quasi-Government or similar
institutions at any point of time. Thus, in our view the
impugned rule violates the principle of equality enshrined
in Article 14 of the Constitution.
14.In the view that we take on the aforesaid points we do
not consider it necessary to examine the larger question
whether or not the impugned rule violates Article 19(1)(g)
of the Constitution. We, therefore, do not express any view
on the said question.
15.In the result, these petitions succeed. The new Rule 9
inserted in ChapterIII extracted in the opening paragraph of
this judgment is struck down as ultra vires the Act and
opposed to Article 14 of the Constitution. The Bar Council
of India and the State Bar Councils are directed not to
implement the said rule. No order as to costs.
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