Full Judgment Text
TN DI AN COUNC IL OF LE QAL AID AND ADV ICE, ET C. ETC.
A
v.
BAR COUNC IL OF IN DI A AN D ANR.
JA NU ARY 1 7, 1 995
B [AM. AHMADI, CJ, S. MOHAN AND K. S. PARIPOORNAN, JJ.]
Advocate Act, 1961-Sections 24 & 49( 1)-Bar Council of India
Rule s-Ru le 9- Validity o f-Enr olment as a11 advocate-E nt ry of persons who
complete age of 45 years barred-Whether Rule 9 is val id-H eld, N o-Rul e
struck dow 11 as ultra vires the Ac t-Rul e is discriminato ry.
C
Co nstitution of India- Ari. 14-Bar Co uncil of In dia Ru les-Ru le
9-Validity of-Entry of persons who completed the age of 45 years as
advocates barred-Whether Rule 9 is re asonable-Held, No-Rule violates
principle of equality.
D
Writ petitions were filed challenging th e legality and validity of Rule
9 added by th e Bar Couocil of India by resolution No. 64 / 93 dated 22nd
Augu st, 1993 in Ch apter 111 of Part VI of the Bar Council of India Rules.
The newly added rule barred the entry of persons who had completed the
age of 45 years on the date of application for enrolm ent as an advocate
E
from being enrolled as such by the concerned State Bar Co un cil.
Petitioners cha ll enged the rule as inconsistent with Articles 14, 19 (1)(g)
and 21 of the Constitution and section 24 of the Advocate :. Act, 1961.
The Bar Council of India contended that it had acted bonafide within
F the framework of the Ac t and the Constitution. According to it the rig ht
to practise as an advocate not being a fundamental right but only a
privilege conferred by the Act could always be withdrawn and in any case
reasonable re str i ct ions could be imposed. It w as alleged that the restric-
tion imposed by the ne wl y added rule was to serve a public purpose and
co uld never be termed as unreasonable, violative of Article 14 of the
G Constitution. Since the u pper age limit bad been fixed to save tb e legal
profession from decay and deterioration it could not be sa id to be incon-
sistent with Art icles 21 and 14 of the Constitution. According to the
re spondent Bar Council of India a person who had a lr eady spe nt the best
years of his life in pur suing some o ther profession or occupation co uld not
H be said to have the co rre ct aptitude of a service oriented profe ss ional a nd
304
COUNC ILOFL EG ALAIDANDADVI CEv . BAR COUNCIL 305
stan~ard
could not be expected to maintain the high of professional A
co nduct. It was submitted that persons who retire from various govern- .
ment, semi- government and ot her in st itutions when admitted to the legal
profession use their earlier contacts to convass for cases and such be-
haviour leaves a lingering effect on the profession. Such per sons being not
inspired by lofty ideals of the profession, their only motive being money-
B
making for which they are pr epared to stoop to any level.
Allowing the petitions, this Co urt
1.1. Section 24 of the Advocates Act, prescribes the minimum
HELD:
age for enrolment as twenty one years complete. There is no provision in
C
the Act which can be said to prescribe the maximum age for entry into the
profession. There is no provision empowering the Bar Council of India to
fraine such a rule. [314-H, 316-B)
1.2. By rule 9 of the Bar Council of India Rules, the entry of those
who have completed 45 years at the date of application for enrolment is
D
sought to be barred. The rule 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. But it does not permit laying down
of conditions for entry into the profession. Therefore, clause (ah) of E
Section 49(1) of the Act does not empower the Ba.r 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 v ir es the
sa id provision. [315-F-G]
1.3. is within the exclusive domain of the State Bar Council to
It F
admit persons as advocates on their rolJs or to remove their names from
the rolls. There is no provision dealing with admission and enrolment of
advocates which restricts the entry of those who ha . ve completed 45 years
as advocates. Nor ba s any State Bar Council made any such rule. [317- G)
1.4. There is no basis to accept the interpretation that all those above G
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
H
306 SUPREME CO URT REPO RT S
1 1995] 1 S.C. R.
A 45 years or !s inse rting an additional clause in Section 24A of the Act
pr escribing a disqualification. Therefore, the impugned rule is beyond the
rule making p ow er of the Rar Council of India and is, therefore, 1tltra v ir es
the Ac t. [318-E-H]
B 1.5 . The rationale for the rule stated to be is to maintain the dignity
and purity of the profession by keeping out tho se who retire from various
government, quasi government and other in stitut ions since they on being
enrolled as advocates use their pa st contacts to canvass for cases and
thereby bring the profess io n into di srepute an d also pollute the minds of
young fresh entrants to the profession. Thu s the object of the rule is clearly
C
to shut the doors of the profession for those who seek entry into the
profession after completing the age of 45 year s. In the first place, there is
no reliable sta tistical or other material pla ced 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
D profession. Secondly, the rule does not debar only such pe rsons from entry
into the profe ss ion but those who have completed 45 years of age on the
date of seeking enr olment. Thirdly those who were enrolled as advocates
while they were young and had later taken up som e job in any government
or quasi-government or s imilar institution and had kept the sanad in
E abeyance are no t debarred from reviving the ir sa nad s even after they have
completed 45 years of age. There may be a large number of persons who
in itially entered the profession but later to ok up jobs or entered any other
gainful occupation who re ve rt to practis e at a later date eve after they
have crossed the age of 45 years and under the impugned ru ~.: ~ .Il!J are not
debarred from practising. Therefore, in the first place th ere is no depend-
able material in support of the rationale on which the rule i foundu l an d
F
secondly the rule is discriminatory as it debar s one group of person s who
have crossed the age of 45 years from enrolment while allowing another .
group to revive and co ntinue practice even after crossing the age of 45
years. The rule, therefore, is clearly discriminatory. Thirdly, it is un-
G rea sonable and arbitrary as the choice of the age of 45 ye ars is ma rle
keeping only a certain group in mind ignoring the vast majority of oth er
persons who were in the service of government or quasi-gove rnment or
similar institution at any point of time. Thu s, the impugned rule violates
the principle of equality enshrined in Article 14 of the Constitution.
[319-8-G]
H
COU N CIL OF L EGA L AID AN D ADVI CE v. BAR C OU CIL !A HM AD I. 30 7
CJ .I
CIVIL APPELLATE JU R! S £?1CTION : Wril Petition ( C) N o. 7 86 A
of 1 993 etc. e tc.
(U nd er Arlicle 32 of lh c Co nslilution of In di a)
V.R. Reddy, Additional So li c il or General, Rajinder Sa char, Soli
J.
Sora bj ee , G.V. Iyer, A.K . Ga nguli , R.P. Bh alt, V.N. Ganpule, Sa nj ay
B
Parikh, B:P. Singh, R.K. Kara njaw al a, Maoik Karanjawal a, Darshana
Bhogilal, Nandioi Gore, Ru by A huja , D .A. Da ve , N. See rv ai, C. N. Sree
Kumar, C. Ravi chandran I ye r, Ra ni Chhabra, Ms. Kirao S uri, P. Parmes-
warao, R.P. Srivasta va , H. A. R aic hur a, U. A. R an a, Rajiv Ty a gi , Anand
Pras ad , Mohinder Rup al, for Gagrat & Co., R. Mo h an , R. Nedumaran,
C
V.G. Pragasam, R.B. Mi sra, V.B . Jos hi and B.P . Singh for the appearing
parties.
The Judgemnt of the Co urt was deli ve red by
AHMADI , CJ. The Bar Counc il of India by Resolution N o. 64 / 93 D
dated 22 nd August, 1 99 3 added Rule 9 in Ch apter III of Part VI of the
Bar Council of Indi a Rules whi ch resolution wa s ga ze tted on 25th Se pt e m-
ber, 19 93. The said ne wly added rule reads as und er :
"A person who h as completed th e age of 45 years on th e date on
E
which he submits hi s application for his enrolment as an advocate
to the State Bar Council shall not be enro ll ed as an advocate."
All the State Bar Councils in the country were du fy 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, F
19 (1)(g) and 21 of the Constitution and Section 24 of the Advocates Act,
1961 , hereinafter called 'the Act'.
The Act came into fo r ce wi th e ffec t fro m 19 th May, 1 96 1. The
dictionary of the Act is to be found in Sec ti on 2, clause (a) whereof de fin es
an Advocate as a pers on entered in an y roll under the pr ov isions of the G
Act as such and th e term 'roll' according to cl ause (k) m ea ns a ro ll of
advocates prepared and maintained und er the Act. Se cti on 3 provides that
there shall be a Bar Council for each of the Stat es to be known as th e Bar
Council of that Stat e. Section 4 next pro vid es for a Bar Co un c il for the
territories to which the Act extends t.o be known as the Bar Co unc il of H
SUPREME COURT REPORTS
308 1995J 1 S.C.R.
f
Indi a. Th e fun c ti ons of the State ba r Co uncil a nd th e Bar Co un c il of In di a
A
h av e been set o ut in Sec ti ons 6 & 7, r es pectively . The fun c ti ons of the State
Bar Co un ci l in cl ud e a dmi ss ion of per so ns as adv ocat es on it s roll , prepara-
rnain t e n~
ti on and of such roll , sa feguardi ng th e right s, pr.iv ilege s and
in ter es ts of ad voca tes on it s ro ll a nd to do all things necessa ry for discharg-
B in g th e above fun ction s. The fun c ti ons of th e Bar Council of India include
the l ay in g down of standards of profess ional condnct and etiquette for
advocates and for safeguardi ng th e ir ri g ht s, privileges and interest s. Cha p-
ter III which deals with 'Admission and Enrollment of Ad voca tes' com-
pri ses of Sections 16 to 28. Sec ti on 16 provid es that there s hall be two
cla sses of ad voc at es, se ni or a dvo ca t es and other advocates; Section 17 sets
C out how eve ry State Bar Co un c il s s hall prepare a nd maintain a roll of
advocat es; Se c ti on 18 deJls with the transfer of name of an advocate from
one State ro ll to another; Section 19 e nj o ins upon every State Bar Council
to se nd a copy of the roll of advoc a tes to th e Bar Council of Indi a; Section
20 mak es special provi sion for enro lm e nt of every advocate who was
D entitled to practi ce in the Supreme Court imm ediately before the appoin t-
ment day in the roll of a State Bar Co uncil ; Sec ti on 21 relates to the fixation
of senior ity ; Section 22 provides for i ss uan ce of certificate of enrolment
and Sec tion 23 confers the right of pre-audien ce on the Attorn ey General
of India, the Solicitor General of Indi a, the Additio nal Solicitor General
of India, etc. Section 24 to the extent it is rel eva nt for our purpo se provides
E · as under :
" 24 . Per so ns who may be admitted as ad voca t es 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
F a dvo ca te on a State roll , if he fulfill s the following conditions,
nam el y:-
( a) he is a ci ti ze n of India;
(b) he h as co mpl eted the age of tw enty-one yea r s; a nd
G
(c) he has obtained a de gree in law .
Section 24A provides that no pers on shall be admitted as an advocate on
a State ro ll , fo r th e period indicated in the pro vi so, if he is convicted of
an offence in vo lvin g moral turpitud e, or he is co nvict ed of an offence
H if
COUNCIL OF LEGAL AID AND ADV I CE' '· BAR COU CIL (Al IMADI. O.J 309
under the provisions of Untouchability (Offences) Act, 1 955 or if he is
A
d is mi ssed or removed fr om employment or oflice under the Stale on any
charge in vo l vi ng mo ral tur pi tude; Section 25 indicates the authority Lo
whom applicat io ns fo r enro lm ent may be made; Sec ti on 26 provides for the
dis po sal of s uch applica ti on s; Section 26A confers powers on the State Bar
Council to remove any name from its ro ll ; Sec ti on 27 provides 1h at where
B
a State Bar. Co un cil has refused the app li cation of any person fo r ad mi ssion
as an advocate, no other State Bar Co unc il sha ll entertain hi s/her applica-
ti on fo r ad mi ssion on it s ro ll except with the previous consent of the fo rmer
a nd of th e B ar Co unc il of India and Section 28 confers power on a State
Bar Colinc il to make rules to carry out the purposes of the Chapter which
may in particular, inc er alia , provide for the conditions subject to which a
person may be admitted as an advocate on its roll Chapter IV deals wi th
the 'Right to Practise'. Section 29 says that subject to th e provisions of the
Act and any rule made th ereunder there shall, as from th e a pp ointed da y,
c
be only one cl ass of persons entitled to pra cti se the profession of law,
namel y, advocates. According to Section 30 eve ry advocate who se name is D
e nt ered in the State roll sha ll be entitled as of rig ht to practise throughout
the territories to w hi ch the Act extends in all courts including the Supreme
Co urt of India, before any Tribunal or person l eg ally autho ri sed to take
evidence and before any authority or person before whom such advocate
is, by or under any law for the time being in force, entitled to practise.
Section 33 funher pro vid es that no person shall, on or after th e a pp ointed
E
d ay, be entitled to practise in any court or before any authority or person
unless he is enrolled as an advocate under the Act. Ch ap ter V deals with
'Co nduct of Advo ca tes'. Under Section 35 where on receipt of a complaint
or ot herwise a S tat e Bar Co unc il has reason to believe th at any advocate
on it s roll has been guilty of professional or other misconduct it sha ll re f er
th e case for disp osa l to its disciplinary co mmittee. Section 37 provides for
an appeal to the bar Co uncil of India against an or de r made by the
di sc iplinary committee of a State Bar Co un c il . Section 36 provides that
where on receipt of a complaint or otherwi se , the Bar Counc il of India has
reason to be li eve that any advocate whose name is not en tered on any State
F
roll has b ee n guilty of pro fessional or o th er mi sco ndu ct, it shall refer th e G
case to the disciplinary committee. Any person aggrieved by an order made
by th e discipl in ary co mmitt ee of th e Bar Council of Indi a under Section 36
or 37 may pr efer an appeal to th e S upr eme Court of India under Section
38 of the Act. The powers of th e di sc iplinary committee have been
H
SU PREME COURT REPORTS [1 995 ] 1 S.C. R.
310
A e num erated in Section 42. Ch ap ter VI tl e a!s w ith ' Mi sce ll an eo us' matter s.
We are co nc e rn ed with Sec ti on 49 whic h em pow ers th e Bar Co un ci l of
I ndia to mak e rul es fo r discha rging it s fun c tio ns u nde r the Act. Clau ses
(ag) anti (a h) of s ub- sec ti on (1) of Section 49 in t er alia , e mp owe r th e Bar
Co un ci l of India to m ake rul es (i) pr esc ribing the clas s or ca t ego ry of
B per so ns e ntitl ed to be enro ll ed as advocat es and (i i) l ay in g down the
co ndi ti ons su bj ect lo wh ich an advocate s hall h ave th e ri g ht to prac ti se a nd
the circu mstan ces under which a per so n sha ll be de emed lo prac ti se as an
ad vocate in ·a co ur t. Thes e, in brief, a re the rel evant provi s io ns of th e Act
which h ave a bearing on the qu estion of l ega lit y and valid it y of the n ew ly
a dd ed rul e 9 in Chapter lII of Part VI of the Rule s.
c
It will be seen from th e a bo ve provi sion !> that unl ess a per so n is
en ro ll ed as an advocate by a State Bar Co un ci l, he sh all ha ve no right to
practi se in a co ur·t of law or before any other Tribunal or authorit y. Once
a per so n fulfill s the requirements of Section 24 for e nr o lm e nt , he becomes
D e ntitl ed to be e nro ll ed as an advoca te and on such en ro lm e nt he acquires
a right to prac ti se as stated above. H av ing thus acq uir ed a right to practise
he incurs certain ob l iga ti ons in r ega rd to his co nduct as a me mb er of the
noble pro fe ss ion. The Bar Cou nc il s are e njoin ed wit h the duty to act as
se ntinels of pr ofess i ona l co ndu ct a nd mu st ensure that the digni ty and
purity of the profe ss ion a re in no w ay undermined. Its job is to uph o ld the
standards of profession al co ndu ct and etiquett e. Thus eve ry State Bar
E
Council and the Bar Cou nc il of India has a public duty to perform, namely,
to ens ure that the monopoly of pr act i ce gr anted und er the Act is not
misused or a bu sed by a person wh o is enrolled as an advocate. The Bar
Councils have been created at the State l eve l as well as the Central l eve l
not o nl y to pro te ct th e rights, inter es ts and privile ges of it s me mb ers but
F
al so to protect the litigating public by ensuring that hi gh and n ob le tra di-
tion s are maintained so that th e pu rity a nd di gnity of the profession are
no t j eo pardi ze d. It is generally be li eve d th at me mb ers of the legal profes-
sion hav e certa in social ob li gatiqn s, e.g., to re nd er 'pro bono pub li co'
service to th e po or a nd th e und er-pri vi le ged. Si n ce the duty of a l awye r is
G to assis t the court in the admi nist rati on of ju s ti ce, the practice of l aw h as
a public utility fla vo ur a nd , therefore, he mu st stric tl y an d scrupulously
abide by th e Code of Con du ct beh oving the n ob le profession and mu st not
indulg e in any act ivit y which may te nd to l ower the image of the professi on
in s ociety . Th at is why the function s of the B ar Cou nc il includ e the laying
H d ow n of stand ards of professional co nduct a nd etiquette w hi ch advocates
COUNC IL OF LEG AL A ID AND ADVICE 1•. BAR COUNC IL (AHMAD I, CJ.]
311
mu st foll ow to maintain th e dignity and purity of the profe ss ion ..
A
In th e ab ove b ac k gro un d it wa s co nt e nd ed on behalf of th e- Bar
Co un c il of India th at th e n ee d to uph old standards of professi o nal co ndu ct
and e tiqu e tt e cannot be ove r- e mpha si s ed . Th e Act , b esi d es hi ghlig htin g th e
essential function s of th e Bar Co un ci l of Indi a in thi s be ha lf , provides fo r
B
th e e nfor ce ment of th e same and se ts up di sciplinary authorities to ch as ti se
and, if nec essary, puni sh members of the pro fess ion for mi sco nduct. Th e
puni s hm e nt ma y in clude sus pen si on from prac ti ce as we ll as re mo v al of
the nam e from th e ro ll of advocates. Section 49(1) confers power on th e
Bar Coun c il of lndia to mak e rule s, int er alia, for di sc h arging its functions
under the Act. S ec ti on 49(1)(a g) when read with Section 24 of the Act C
co n fe rs wide po wer s on th e Bar Counc il of Ind ia to indi cate th e class or
ca teg ory of per so ns wh o m ay be enrolled as advocates whic h p owe r would
include the power to refu se e nr o lm ent in certain ci r cums t ances. The
o bli ga ti on to mainta in the dignity and purity of the profession and to punish
erring memb ers carries with it th e p owe r to r eg ul a te entry into the prof es - D
sion with a vi ew to ens uring that o nl y profe ss i on-o ri e nt ed and se rvic e-
o ri e nt ed p eo pl e j oin the Bar and tho se not so o ri ented are kept out.
Co un se l s ubmitt ed th at a per so n who h as already spent the b est years of
his Lif e in pur s uin g so me other pro fess ion or occupation cannot be said to
h ave the co rrect attitude of a se rvi ce-o ri en ted professional and cannot be
expec ted to maintain the high standards of profe ss ional cond u ct. Accord-
E
in g to the r es pondent- Bar Cou nc il of India persons wbo retire from var iou s
government, qu as i -gove rnment and o th er in stituti ons when admitted to the
profe ssi~ n ea rli e ~
l egal us e th eir contacts to co nva ss for cases; a co nduct
w hi ch brin gs down the standard of prof essio nal e thi cs expected to be
maintained by a mem be r of the prof ess ion an d that has a very ad verse F
influ e nce on th e mind s of you ng fr es h entrants to the prof essio n. It is no
answe r to state that d isc iplinary action can be tak en against thos e who
d evia te from th e standard of co nd':1 cl expected of a memb er of the Bar
because a ll cases of infr a cti on of th ·e Code of Co nduct do not co me to the
not ic e of the Bar Co uncil and be havi o ur · l eaves a lin ge rin g effect on the
pr ofess ion . It is in order to uphold. the high standards of pr ofess ional
G
mo rality and int egrity that the Bar Council of Indi a wa s compe ll ed to enact
a rule restr icting the entry int o the l egal prof ess ion by pr esc ri b in g the age
limit of 45 yea r s. The Bar Co un c il of India contends th at it h as ac ted bona
fide within the fram ewor k of th e Act and the Co nstituti on. According to it
the right to practise as an a dv oca te not being a fundamental ri ght but o nl y H
312 SUPREME COU RT R EPORTS 11 995 ) 1 $.C.R.
A 'a privil ege co nf erred by the Act ca n a lwa ys be withdrawn and in any case
reasonable re stric ti ons can be imp ose d eve n if it were a f un<l ame nt al ri gh!
un de r Article 19 ( 1)(g) of the Co nstitution. Th e r es tri c tion imp ose d by th e
b ~
ne wly added rule is to se rve a public purpo se and can n eve r te rm ed as
unrea so n ab l e, violative of Article 14 of th e Co nstitution. Si n ce th e upper
age limit h as been fix ed to s av e th e l ega l prof ess ion fr om decay a nd
deterioration it i s, contends the Bar Co un c il , difficult to co mprehe nd how
B
it can be said to be incon siste nt with Article 21 a nd for that matter Article
14 of the Co nstitution. The prescription of th e high er · age limit do es not
violate Sec ti on 24 of the Act and s in ce Section 49 permits cla ss ification and
categorization which even Article 14 pern:ti ts, the ne wl y added rul e is
C cl early intra vi res the Act and th e Co nstitution. That, in brief, is th e defen ce
set up by th e Bar Council of India in support of the rul e impugned before
u s.
It is clear from th e above averments found in the co unter filed on
D behalf of the Bar Council of India that th e rationale is that th e profe ss ion
of law being a pi ous and honourable profe ss io n, its main object be ing
se rvice of mankind by se rving the s ystem of administration of jus ti ce, it is
th e piou s duty of the Bar Council to protect it s public image by re stricting
th e inflow of a large numb er of retired personnel who seek to enter a l eg al
profe ss ion solely for additional gains. Such persons are not inspired by
E loftly ideals of the profession but their only moti ve is mon ey- making for
which they are prepared to stoop to any l ev el s which ha s a very n egd iive
influen ce on yo ung minds who join the profession after graduation. Can
the restriction impo se d on this ra ti o nal e be sustained? That is the short
qu es tion.
F
We h ave briefly noticed the relevant pro vis ion s of the Act in the
earlier part of this judgmen t. We may n ow bri e fl y indi ca te the schem e.
B efo re we do so it m ay not be o ut of pla ce to me nti on th at the profession
of la w is one of th e o ld es t professions and wa s prac ti sed in one form or
G th e other in the ho a ry past. After th e advent of th e British in Indi a, ce rtain
rul es in regard to th e practise of law were introdu ce d. Before inde-
penden ce there were Mukhtars and Vakils who were permitted to practise
law in m offus il co urts even tho ugh not all of them were Law graduate s.
Howev e r, s lowly and gradually they were allowed to wither away and their
place was taken by Pl eaders who were, after securing a degree in la w,
H
COU CIL OF LEGAL AlD AND ADVICE v. BAR COU C IL AH MAD I, CJ.]
I 313
permiued to prac li se at th e di strict l eve l. Tho s ~ who were enrolled as
A
advocat es co uld pracli ce in any court ·subordinate to the Hi gh Court
including th e Hi gh Cou rt. The differe nc e be Lweeo a Pl eader and an advo-
cate wa s merel y on account of th .e fee charged for enro lm e nt After
indepe nd e nc e, cam e the Act which was enacted ' to am e nd and conso lid ate
the law rela ting to legal pr ac ti tioners and to provide for the co nstilulion of B
Bar Council s and an all-India Bar'. The Act creates an all-India Bar wilh
o nl y one class of legal practitioner s, namel y, advocates, who of co ur se are
cla ss ified as se nior advocates and other advocates (Section 16). The
gene ral superintende nce of e thi cs and etiquette of th e profe ss i on is the
responsibility of the Bar Councils created under the Act and they h ave
C
been charged with the duty to punish th ei r members for mi sconduct. The
Act envisages the existence of a Bar Council for every State. The funcion
of admission of per so ns as advocates is entrusted to every State Bar
Council which is required to prepare and maintain a roll for th at purpose.
Whil e di sciplinary jurisdiction is conferred on th e Slate Bar Councils to D
punish its members for misconduct, it is at the s ame time charged with the
duty to safeguard their right s, privileges and interest. They mu st perform
all the functions conferred on them by or under the Act and do eve rything
that is nece ssary to discharge the functions set out in Section 6. So far as
the Bar Council of India is concerned, it s functions are of a more general E
nature, e.g ., to l ay down standards of professio nal conduct and etiquette
privileg~
for advocates, to safeguard their rights, and interests, to super-
vise and control the working of the State Bar Co uncil, to promote legal
education, to recognise universities, to organise legal aid to the poor and
to perform all o th er functions conferred by or under the Act and do
F
everything that may necessary to discharge the functions enumerated in
Section 7. Besides the above it too is required to exercise di scipline and
control over the members of the profe ss ion. Thus the functions are divid ed
between th e State Bar Councils and the Bar Co uncil of India, a lth o ugh for
obviou s reasons ov erlaps are un avo id ab l e. The rul e makin g power ha s been G
conferred on the State Bar Co uncil s und er Sections 15 and 28 and on the
Bar Council of India under Section 49 of the Act.
The power conferred by Section 15 is to make rul es providing for the
elections of the members of the Bar Council, its Chairman and Vice-Chair-
man and matters incidental thereto. These rules shall not hav e effec t unl ess H ·
3 14 SUPREME CO URT REPOR TS [1 995 ] 1 S.C. R.
A appr ov ed . by the Ba r Council of I nd ia. We are not co nce rn ed wi lh the ru l ~
makin g p owe r under th is pr ov ision. Sec lion 28 em pow ers the State Bar
Co un ci l to m ak e rul es w hi ch m ay, i11c er alia, p rovi de fo r lh e fo rm in w hi ch
an ad voca le mu st ex pres s his in lent io n for e nt ry of hi s na me in the ro ll of
a State Ba r Co uncil, th e fo rm in wh ic h an appl ica ti on mu st be made fo r
B ad mi ss io n as an adv o cate on it s ro ll and the co nd iti ons s ubj ec t to wh ic h a
person m ay be admitted as an advocate on any such ro ll . Th ese rul es al so
mu st be approved by th e Bar Co un c il of Ind ia b efo re th ey co me into for ce .
We h av e al ready indi cated ea rli er the matters in r ega rd to whi ch the Bar
Co un ci l of In di a m ay make rul es fo r di scharg in g it s functions und er the
Ac t. B esi d es t he State Bar Co un c il s and the Bar Co un c il of India Sec ti on
C 34 confe rs powe r on th e Hi gh Courts to make rules la ying down the
con di ti ons s u b i ~c t to w hi ch an ad voca te m ay be permitted to pr ac ti se in
th e Hi gh Co urt and co urts s ub ord in ate th eret o. Power is also co n fe rred on
the Ce ntral Gove rnm ent by Sec ti on 49- A to make rul es by no tifi ca ti on in
th e O ffi cial G aze tte fo r carr yi ng o ut the purp oses of the Act including rul es
w ith r es pe ct to any matter fo r' whi ch th e Bar Co u nc il of India or a State
D
Bar Co u nc il h as p ower to make rul es. Thus the rul e m aki ng powe r of the
Central Gove rnm en t is wide enough to e mb race matters fo r w hi ch the Bar
Co un ci l of India or a State Bar Co un c il h as powe r to mak e rul es. These
rul es m ay , i nte r ali a, l ay do wn the qu a lifi ca ti ons a nd d is qu a lifi ca ti ons fo r
me mb ership of a Bar Co un c il , the ma nn er in w hi ch the Bar Co un c il of
E Ind ia must exe r cise su pe r vis ion a nd co ntrol ove r State Bar Cou nc il s, th e
class or ca t egory of persons e ntitl ed to be enro ll ed as advoca t es und er the
· Act, the cat egory of per so ns who m ay be exe mpted fo r under go in g a co urse
of tra ini ng and pa ss in g an examina ti on pr esc r ibe d under Se ction 24(1 )( d),
the m an ner in w hi ch seniority among ad voca t es m ay be dete rmin ed, the
F procedure to be fo ll owed by the di sc iplinary co mmi ttee of the Bar Co un c il
fo r h ea rin g cases an d any other matter which m ay be pr esc rib ed. Th ese, in
bri ef, are the ru le ma kin g p owe rs co nf erred on various age nci es und er the
Act.
The new ly added rul e see ks to bar th e entry of per so ns who ha ve
G . c ompl eted the age of 45 ye ars on th e date of application for e nrolm e nt as
an ad voca te fr om being enro ll ed as such by th e co ncerned State Bar
Co un c il . Whi le Sec ti on 24 of the Act pr esc rib es th e minimum age fo r
enrolme nt as t we n ty -one ye ars comp let e, there is no p rovisio n in the Act
wh ic h can be sa id to presc rib e th e m axim um age fo r ent ry in to the
pr ofes si on. Since the Ac t is s il e nt on th is point the Bar Co un c il of India
H
)-
COU CIL OF L EG AL A ID AND AD VICE v. B AR COU C IL !AH MAD I, O .]
315
was req ui red to resort to its rule ~ a kin g power. Th e rules made by the Bar
A
Co un cil of India under Section 49(1) of the Act are in seven pa re s, each ·
part h av in g its own chapter s. P ar t Vl is entitled 'Rules G ov erning
Advocates' and the sa id part bas three chapter s. Chapter 1 sets out the
restric ti ons on senior ad vo cates and is relatable to Section 16(3) and
4 9( l)( g) of the Act, Chapter IT la ys down the standards· of pro fe ss ional B
conduct and etiquette and is relatable to Sec ti on 49(1)( c) _read with the
pr ovi so thereto and cha pt er Ill de al s with 'Conditions for right to practice'
a nd is stated to be made in exercise of power under cl ause (a h) of
sub-section (1) of Sec ti on 49 of the Ac t. That cl au se reads as under :
"(ah) - the conditions s ubj ect to which an advocate shall have the C
right to pr actise and the circumstan ce s under which a person shall
be deemed to practise as an advocate in a court;"
On the pl ain language of the said clause it seems cl ear to us that under the
sa id pro vi sion the Bar Council of lndia can lay down th e 'conditions'
D
s ubj ec t to which 'an advocate' shall have the ri g h~ to pra ctise. Th ese
conditions which the Bar Council of lndia can lay down are applicable to
an advocate, i .e ., a person who has alr ea dy b ee n enrolled as an ad vo cate
by the concerned State B ar Council. Th e conditions which can be
prescribed must apply at the post-enro lm ent stage since they are expected
E
to relate to the right to pr ac t is e. They can, th erefore, not operate at the
pre-enrolment stage. By the impugned rule, the entry of tho se who have
completed 45 years at the date of app li ca ti on fo r enrolme nt is ·sought to be
barre d. The rule clearly operates at the pr e- enrolme nt stage and cannot,
there fo re, recei ve the shelter of clause (ah) of Section 49(1) of the Ac t.
Under the said clause conditions applica bl e to an advocate touching his
right to prac ti se ca n be laid down, and if la id do wn he mu st exercise his
right s ubj ec t to those condition s. But the language of the said clause does
F
not permit laying d own of conditions for entry into the profession. We have,
therefore, no hesitation in coming to the conclusion tliat clause (ah) of
Section 49(1) of the Act does not empower the Bar Council of India to G
frame a rule barring per so ns who h ave completed 45 years of age from
enrolment as an advocate. Th e impugned rule is, th erefore, ult ra vi r es the
said pro vis ion.
Can the rule be saved under any other pro vis ion of the Ac t? As H
316 SU PR EME COURT RE PORTS 11 995] 1 S.C.R.
A stated ea rli er the Act in Sec ti on 24(1)(b) provides that th e person who
seeks enrolment as an advocate mu st have completed th e age of twent y-o ne
yea rs. N ow here does the Act pr ovi de the m axi mum age beyond w hi ch a
person sha ll not be entitled to enrolment as an advocate nor does the Act
make any spec ifi c provision empowering the Bar Counc il of India lo fr ame
B such a rul e. Re li ance was, however pl aced on clause (ag) of Section 49(1)
which reads as under :
"( ag) the class or category of persons entitled to be enrolled as
advocates."
C Can persons who have completed 45 years of age be said to co nstitute 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 r ul es for discharging its functions under the Act and in
particular those enumerated in clauses (a) to G) thereof. None of the
D functions under Sec ti on 7 specifically provides for laying down such a
condition debarring persons of a certain age group from enrolment as
advoca te s. The Clause relied up on is couched in positi ve terms, namel y, it
sa ys the rules may pre scribe the class or category of persons who may be
admitted to the legal profession. Ther efore, und er this rule the class or
category of per sons 'entitled to be · enro ll ed' as advocates may be
prescribed. The rule can, therefore, i:p ecify the class or category of persons
E
'entitled' to be enrolled as an advocates, but the rule gives no indication
that it can debar persons belonging to a certain age group from being
enrolled as advocates. Where a provision couch ed in positive language
is
and in the nature of an enabling provision, th e re is no canon of construc-
is
tion whi ch says that by necessary implication the rule making authority can
F
make a provision disentitling admission or enrolment to the profession.
Such a submission is difficult to countenance.
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 prescrib-
G
ing the conditions s ubj ect to which a person may be admitted as an
advocate. Th e power to specify the class or category of persons entitled to
be enro ll ed as advocates confe rr ed on the Bar Council of India under
is
Section 49(1)(ag) and on the Central Government under Section 49A of
the Act. The role which a State Bar Council has to pl ay under Section 28
H
COU CILOFLEGALAIDAND ADVlCE v. BARCOUNCIL( AHMAD I,
q .] 317
fr o ~
is di s tin ct th at th e Bar Co un c il of Indi a ha s to play und er Section A
49(1)(ag) of the Act, in that, after th e cla ss or ca t ego ry is id e ntifi ed, th ey ·
.,.
<l o not a ut omatica ll y ge t admi tted or e nr o ll ed th ey s till h ave to abi de by
th e requireme nt s for admi ss ion to the State ro ll . Th er efo r e, apart fr om a
class or gro up be in g declared 'entitled to e nr o lm e nt ', th e other conditions
or norms evo l ved by th e State Bar Co un ci l for entry of th e indi vi dual on
B
it s rol e would hav e to be sa ti s fi e d.
It seems Parliament while enac ting th e Act created agencies at th e
State l eve l as well as at the Central lev el in the form of State Bar Councils
and Bar Cou ncil of India and inve sted them with rul e making powers on
div er se matters tou c hing th e legal profe ss ion, pres um a bly beca use it mu st C
prof es~ ion
h ave rea li sed that matter pertaining to the are be st left to
inform ed bodies compri sing of members of the said profess ion. H oweve r,
whil e doing so it provided for basic substanti ve matter s, e.g., e ligibility fo~
ent ry into th e profe ss ion (Section 24) , di s qu a lifi ca ti on for enrolm ~ nt (S ec-
tion 24A) , authority entitled to grant a dmi ssion (Sections 25 and 26) , the D
authority which can remove any name from the roll (Section 26A), etc.,
and placed them within th e domain of a State Bar Council. Thus it is th e
State Bar Council which alone mu st decide on 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 beco mes qualified to be admitted as E
an advocate if he has completed twenty one y ea rs of age, subject of course
to the other provisions of the Act. No doubt he must fulfil the other
conditions specified in th e rules made by the State Bar Council (Section
24(1)(e)). Ev e ry person whos e name is entered in the list of advocates ha s
a right to practise in all courts including the Supreme Court, before an y
tribunal or other authority. It is , there for e, within the exclusive domain of
the State Bar Councils to admit persons as advocates on their rolls or to
re mo ve th eir nam es from the ro ll s. There is no provision in Cha pt er III
d ea lin g with a dmi ss ion and enrolme nt of adv ocates which r es tricts the
entry of those who h ave co mpl eted 45 years as advocates. Nor h as th e State
Bar Council mad e any s uch rule under its rul e making p owe r.
F
G
There is no specific provision in Section 7 of the Act which
e num erates the functions of the Bar Council of India empowering it to fix
th e maximum age beyond which entry into the profe ss ion would be barred.
That is w hy reliance is placed on the rule making power of the Bar Council
H
-(
\
318 SU PREME COU RT REPORTS 1 995 ] 1 S.C. R.
I
T~ a t
A·· ol 1 IQdia ens hrin ed in Sec ti on 49 . S ec ti on e mp owers th e making of
rul e by the Bar Co un c il of Indi a ' for di sc har gin g i ts f unc ti ons' und er th e
Act , and, in particular, such rul es ma y pr esc ri be th e cla ss or ca t ego ry of
per so ns e nt i tl ed to be en ro ll ed as advoca t es . Th e fun c ti ons of th e Bar
Co un c il of Indi a e num erated in Sec tion 7 do not en visage la y in g d ow n a
stipula ti on di s qualifyi ng per so ns o th e rw i se qual ified from e nt eri ng the l ega l
B
profe ss i on merely becau se th ey h av e co mpl eted the age of 45 yea r s. On the
o th er hand Sec ti on 24 A was int ro du ce d by Section 19 of Ac t 60 of 1973
with e ff ect from 31st January, 1 97 4 to disqualify certain per so ns fr om
enter ing th e legal profe ss ion for a limit ed pe ri od. By the impugn ed rule
every person eve n if qu a lifi ed but who h as completed 45 yea rs of age is
C
debarred for all tim es fr om enrolment as an advocate. If it h ad b ee n
po ss ibl e to re strict th e entry of eve n those cla ss or ca t egory of per so ns
referred to in Section 24A by a mere rule made by th e Bar Co un c il of India,
where was the n eed for a statutory ame ndm ent? That is presumably
because ma tt ers conce rnin g di squalification eve n fo r a limit ed pe ri od was
D
considered to be f al ling o ut si de th e ken of rule making p owe r, being a
matter of public poli cy. It is difficult to accept the int erpretation that a ll
tho se above the age gro up of 45 yea rs co n st itute a clas s within the sco pe
of cl au se (ag) of Section 49(1) of the Act to permit the Bar Co un c il of
India to debar the ir entry into th e profe ss ion for a ll tim es. ln the g ui se of
E making a rul e the Bar Council of India is virtually intr od uc ing an additional
clause in Section 24 of the Act pr esc ribing an upper age cei lin g of co m-
pleted age of 45 yea rs beyond w hi ch no per so n sha ll be e li gib le for
enrolment as an advoca te or is in serting an additional cla u se in Section
24A of the Act pre sc ribing a di squalification. Vi ewe d from either point of
view we are cl e arly of the o pini on that the rul e mak in g power und er clau se
F
(ag) of Section 4 9(1) of th e Act does not co nf er any such power on the
Bar Council of India. We a re un able to s ub sc rib e to thP view that all those
' who ha ve co mpl e ted the age of 45 years and are o therwi se e ligible to be
enrolled as advocates co nstitute a cla ss or ca t ego ry which ca n be di s-
G qualified as a single blo ck fr om entering the pro fessio n. B es id es , as stated
above clau se (ag) id entification a nd specification of a cl ass or ca t ego ry of
per sons 'entitled' to be enrolled and not ' di sentitled' to be e nr olled as
adv ocat es. We, ther efo r e, are of the opinio n th at the impugn ed rule is
be yo nd the rul e ma kin g power of the Bar Co un ci l of Indi a and is, th erefore,
ultra v ir es the Act.
H
1· .
COUNCIL OF LEGAL A ID A D ADVICE BAR COUNCIL I AHMADI. CJ .I 319
arb it~ a r y
Th e ne xt qu es ti on i., is th e rul e rea so nblc or anc.l un - A
a ~
rea so nabl e? Th e rationable fo r th e rul e, . tate c.l ea rli er, is to maintain
th e c.lignit y anc.l pu ri ty of th e prof ess ion by k ee pi ng ou t th o. e who retire
fr om va ri ous gov e rnm e nt , quasi-government a nc.l o th er in stitutions si n ce
th ey on he in g en ro ll e e.I as a c.l vocatcs use th e ir past co nt acts to ca nv as s fo r
ca ses a nc.l thereby b rin g th e prof ess i on into di srepute a nc.l also pollute th e B
mind s of yo un g fr es h entrants to th e profe ss io n. Thus th e ob ject of th e
rul e is clearly to shut th e d oo rs of th e profess io n fo r those whc seek entry
into th e prof ess ion after co mpl eting the age of 45 yea r s. In th e firs t pl ace,
th ere is no re li a bl e statistical or other material placed on reco rd in
support of th e inferen ce that ex- g ove rnrn euc or quas i-go ve rnme nt serva nt s C
or th e lik e indulge in und es ir able ac ti vity of th e typ e mentioned afte1
e nt e rin g th e profe ss io n. Seco ndl y, th e rul e does not debar o nl y such
per so ns fr om entry into th e profession but those who ha ve completed 45
yea rs of age on th e date of see king enrolmne nt. Thirdly tho se who were
enro ll ed as advoca t es whi le t hey we re yo un g and had later tak en up some D
job in any gove rnm e nt or qu as i-g ove rm e nt or similar in stitution aud had
kept th e s an ad in abeyance are not debarred from r ev iving th e ir s an ads
eve n after they h ave co mpleted 45 ye ars of age. There ma y be a large
numb er of persons w ho initially e nt ered th e profession but later t oo k up
jobs or entered any other gainful occupation wh o r eve rt to pr ac tise at a
later date eve n after th ey h ave crossed th e age of 45 years and under the
E
impugned rul e they are not debarred fr om practis in g. Ther efo re, in the
fir st place th ere 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 h ave crossed th e age of 45 yea rs from
entrolme nt whil e allowing another gro up to r evi ve and conti nu e practi se
eve n after crossing th e age of 45 years. The rule, in our view, th erefor e,
is cl ea rl y di sc rimin atory. Thirdly, it is t. .. reason ab le a nd arbitr ary as th e
choice of th e age of 45 years is made kee pin g o nly a ce rt ain group in
min d ignoring th e va st majo ri ty of o th er per so ns who we re in th e se r vice
F
of gove rnm e nt or qu as i- gove rnm ent or s imil ar in stitutions at any point of G
tim e. Thu s, in o ur vi ew th e impugn ed rul e vio lates the principle of
equality ens hrin ed in Article 14 of the Co nstitution.
In tile vi ew that we take on the afo resaid points we do not co nsider
it necess ary to exa min e the lar ge r question whe th er or not th e impugned H
320 SUPR E ME COURT REPORTS (1995) 1 S.C.R.
A rule violates Article 19(1)(g) of the Constitution. We, therefore, do not
express any view on the said question.
ln the result, these petitions succeed. The new rule 9 in serted in
Chapt er ~x tracted in the opening paragraph of this judgment is struck
m
down as ultra v ire s the Act and opposed to Article 14 of the Constitution.
The Bar Council of India and the State Bar Councils are directed not to
B
implement the said rule. No order as to costs.
.·
A.G . Petitions allowed.