TMI Blog2020 (3) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution Bench vide order dated 18th March, 2016 passed in Special Leave Petition (Civil) No.22337 of 2008 [ 1771842 ]. Demand of fee above ₹ 750/- for purposes of enrollment - HELD THAT:- The power to admit persons as advocates is provided under Section 24 of the Advocates Act, 1961 - The State Bar Council and the Bar Council of India are empowered to make rules under Section 28 read with Section 49 of the Act of 1961 in given circumstances. The increase in the rate of fees is properly and adequately justified. Further, even by applying the principles of harmonious construction of the provisions also, it is clear that there is no conflict between the provisions of the Act of 1961 and its Rules. The Act of 1961 provides entitlement to levy enrollment fees for enrollment as an advocate. Prescribing the right to levy fees be considered to be fundamental and it cannot be whittled by any rule. Prescribing the rate of fees is merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act of 1961. The harmonious construction between the Act and the Rules which governs the field of operation of both the provisions is that the rate as mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued. Affidavits have been filed in response. 3. We have heard the petitioner in person, Shri Mehul Suresh Shah, learned Senior Advocate assisted by Shri Manan A. Shah, learned counsel for the Bar Council of India and Shri Kashyap Jani, learned advocate appearing for the Bar Council of Gujarat. 4. Originally, the relief claimed by the petitioner was that a Writ of Mandamus be issued to the respondent Bar Council of Gujarat to process his application for registration and enrollment with enrollment fee of ₹ 750/- only and no more and the second relief claimed was that a Writ be issued directing the Bar Council of India and the Bar Council of Gujarat to issue Certificate of Right to Practice under Section 30 of the Advocates Act, 1961 without any delay post enrollment. 5. The petitioner claims to have completed his Three Year LL.B. Degree Course and after completing the same has applied to the Bar Council of Gujarat for being enrolled as an advocate, which application apparently has not been processed as the petitioner is not willing to deposit the fee required for such enrollment and registration by the Bar Council of Gujarat. Subsequently, the petitioner by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure proper discharge of their duties and the maintenance of discipline among them and for the rest of citizens otherwise provided therein under Article[19] [2] through [6] as special circumstances mostly as and only when in the INTEREST OF GENERAL PUBLIC AND NONE OTHER as any attempt to circumvent them by such Bodies whose primary objectives revolves around and are to rid of any ETHICAL MISCONDUCTS rather than anything else, otherwise risks overstepping the realm of Laws and Article [14] SPECIFIC GROUNDS (15) Here; the Petitioner is challenging the legality and validity of Rules 9 to 11 in Part -VI, Chapter-III of the Bar Council of India Rules - Conditions for 'Right to Practice ' inserted by Resolution No. 73/2010 passed by Bar Council of India (Annexure- A ) being ultravires of S-24 and S-30 (Annexure: B ) of the Advocates Act, 1961 and also Articles [14], [19]( 1] I g] and [21] of Constitution of India. The BCI and BCG can not make Rules exceeding the Advocate's Act and Advocate's act has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove and beyond ₹ 750/- for purposes of any enrollment and issue of Certificate of Right to Practice is arbitrary and cannot be made as being beyond the competence of the Bar Council of India and the Bar Council of Gujarat; and iii)There is also challenge to the vires of Rules 9 to 11 introduced by Resolution No.73 of 2010 in Part-VI, Chapter-III of the Bar Council of India Rules. 9. We first deal with the challenge to the vires of Rules 9, 10 and 11 contained in Resolution No.73 of 2010 in Part-VI, Chapter-III of the Bar Council of India Rules. Said Resolution No.73 of 2010 is reproduced below: BAR COUNCIL OF INDIA New Delhi, the 5th June 2010 ALL INDIA BAR EXAMINATION RULES-2010 The Bar Council of India at its meeting held on 30th April 2010 passed the following resolution:- Resolution No.73/2010 RESOLVED that the Bar Council of India, being vested with the power of laying down conditions subject to which advocates shall have the right to practice the profession of law under the Advocates Act, 1961, shall conduct an All India Bar Examination, the passing of which would entitle the advocate to a Certificate of Practice whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia to the address of the successful advocate within 30 days of the date of declaration of results. (2) The Certificate of Practice shall be issued by the Bar Council of India under the signature of the Chairman, Bar Council of India. 10. The above rules only provide for the holding of the All India Bar Examination. It further provides that an advocate enrolled under Section 24 of the 1961 Act would be entitled to practice only after successfully clearing the All India Bar Examination conducted by the Bar Council of India. It also provides the manner in which the All India Bar Examination is held and issuance of certificate of Right to Practice within 30 days of successful passing of the said examination. As far as the challenge to the above All India Bar Examination as inserted by Resolution No.73 of 2010 is concerned, the question is already sub-judice before the Hon'ble Supreme Court to be considered by the Constitution Bench vide order dated 18th March, 2016 passed in Special Leave Petition (Civil) No.22337 of 2008. Said order dated 18.3.2016 passed by the Supreme Court is reproduced as under: One of the questions that has been raised for determination b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Judges. 11. In fact, holding of All India Bar Examination was duly approved by the Supreme Court in its order dated 14.12.2009 passed in Special Leave Petition (Civil) No.22337 of 2008. But since the matter is already engaging the attention of the Supreme Court, we are not going into that question. Order dated 14.12.2009 passed by the Hon'ble Supreme Court is reproduced below: We have heard Mr. Gopal Subramanium, learned Solicitor General of India. In pursuance of the directions of this Court, the time frame for implementation of the three-member Committee report has been given to the Court. According to this time frame, preparation of parameters and list of experts for inspection of Law Schools/Colleges would be completed by 31st December, 2009. Mr. Subramanium also submitted that the Directorate of Legal Education will be operationalized by 31st of December, 2009 and the Directory of Law Schools and Law Colleges will be prepared by 15th January, 2010. He further submitted that the institutions which have not been inspected earlier, would be inspected on or before 31st January, 2010. Mr. Subramanium further submitted that preparation of a detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purposes of this Act by the Bar Council of India; or (iiia) After undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-68 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or] (iv) In any other case, from any University outside the territory of India, if the degree is recognised for the purpose of this Act by the Bar Council of India] or; [He is a barrister and is called to the Bar on or before the 31st day of December, 1976 [or has passed the articled clerks' examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court;] or has obtained such other foreign qualification in law as is recognised by the Bar Council of India for the purpose of admission as an advocate under this Act]: [(d) * * *] (e) He fulfills such other conditions as may be specified in the rules made the State Bar Council under this Chapter; [(f) He has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (ii) Fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-section [(4) ***] 13. The State Bar Council and the Bar Council of India are empowered to make rules under Section 28 read with Section 49 of the Act of 1961 in given circumstances. Sections 28 and 49 are reproduced below: 28. Power to make rules.- (1) A State Bar Council may make rules to carry out the purposes of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for- [(a) the time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State Bar Council under section 20;] [(b) ***] (c) the form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council; (d) the conditions subject to which a person may be admitted as an advocate on any such roll; (e) the instalments in which the enrolment fee may be paid. (3) No rules made under this Chapter shall have effect unless they have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bar Councils and the manner in which directions issued or orders made by the Bar Council of India may be enforced;] (j) any other matter which may be prescribed: [Provided that no rules made with reference to clause (c) or clause (gg) shall have effect unless they have been approved by the Chief Justice of India:] [Provided further that] no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government. [(2) Notwithstanding anything contained in the first proviso to sub-section (1), any rules made with reference to clause (c) or clause (gg) of the said sub-section and in force immediately before commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), shall continue in force until altered or repealed or amended in accordance with the provisions of this Act.] 14. Section 24(f) of the Act of 1961 was amended by the Bar Council of India in 1973 adding the conditions of payment of stamp duty and it was further amended in 1993 increasing rate of enrollment fees and payment of part thereof to the Bar Council of India. Thereafter, by framing appropriate rules, in exercise of power under section 49 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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