TMI Blog1999 (3) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners, who have successfully completed their legal education by getting requisite Law degrees from the Universities concerned have contended before us in these writ petitions that their right to practise Law as made available under the relevant provisions of the Act is being arbitrarily denied by the impugned rules framed by the Bar Council of India and, therefore, their fundamental right under Article 19(1)(g) of the Constitution of India is being violated. That the said Rules do not impose any reasonable restrictions on the exercise of their fundamental right. It is also contended that in any case, the Rules are so framed as to be totally unworkable and are highly unreasonable and discriminatory in character and hence they offend Article 14 of the Constitution of India also. The civil appeal arising out of the SLP by the Bar Council of Maharashtra Goa brings in challenge the decision of the Bombay High Court which upheld the impugned rules and dismissed the writ petition filed by it and that is how the State Bar Council is before us. Its contention is on the same lines as canvassed by learned counsel appearing for the writ petitioners. While civil appeal arising out of SLP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in the earlier meetings regarding suitable modification of the impugned rules. It appears that ultimately on 4th August, 1998, before the Bench of three learned Judges, Shri P.P.Rao, learned senior counsel, placed a copy of the Resolution of Bar Council of India whereby the Rules were amended. We have also mentioned the earlier Resolution by which the impugned rules were amended. It is thereafter that these group of matters reached for final hearing before us. We, therefore, have to examine the legality and validity of the impugned rules as amended by the Resolution of the Bar Council of India dated 19th July, 1998. Rival Contentions: We may briefly mention the rival contentions submitted for our consideration by learned counsel Shri N.N.Keshwani, who appeared in support of Writ Petition No.425 of 1998, as well as learned amicus curiae Shri Joseph Vellapally on behalf of other writ petitioners and Shri P.P.Rao, learned senior counsel for the Bar Council of India, which is the author of the impugned rules in support of their respective cases. Learned counsel for the petitioners submitted, tracing the history of the relevant provisions of the Act and the Rules, that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules are ultra vires the rule making power of the Bar Council of India as available to it under the provisions of the Act. 2. If the aforesaid question is answered in negative and in favour of the Bar Council of India, whether the impugned rules are arbitrary and unreasonable so as to violate the guarantee of Article 14 of the Constitution of India; 3. If the impugned rules are legal and valid, whether the respondent in Bar Council of Indias appeal, who has got his Law degree prior to the coming into force of these Rules, can be required to comply with these Rules if he applies for being enrolled as an advocate under the Act after the Rules came into force; and 4. What final order? We shall deal with these points seriatim. Point No.1: In order to appreciate the rival contentions centering round this point, it will be necessary to have a peep into the historical background of the Act which came into force years back in 1961 and also have a birds eye view of the subsequent amendments thereto spread over number of years during its currency till date. It will also be necessary to keep in view the salient features of the relevant provisions of the Act. The Act seeks to amend and consol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior advocates and other advocates and then follows Section 17, sub-section (1) which provides that : Every State Bar Council shall prepare and maintain a roll of advocates. Sub-section (2) reads thereof as under :- Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates. Section 22 provides for certificate of enrolment and sub-section (1) thereof lays down that There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it under this Act. Section 23 lays down Right of pre-audience and the priority given to the various advocates while addressing Courts. It lays down the scheme of priority as follows : The Attorney-General of India has pre-audience over all other advocates. Next comes Solicitor-General of India in the order of priority for audience. Then, the Additional Solicitor-General of India; followed by the second Additional Solicitor- General of India, further followed by Advocate General of any State. Next in the hierarchy of the priority come senior advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lerks 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)[ xx xx xx] (e) he fulfils such other conditions as may be specified in the Rules made by the State Bar Council under this Chapter; [(f) he has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council of [six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council]: Provided that where such person is a member of the Scheduled Castes or the Scheduled Tribes and produces a certificate to that effect from such authority as may be prescribed, the enrolment fee payable by him to the State Bar Council shall be [one hundred rupees and to the Bar Council of India, twenty-five rupees] . [Explanation - For the purposes of this sub-section, a person shall be deemed to have obtained a degree in Law from a Univ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g both of which shall be prescribed by the State Bar Council; Provided that this clause not apply to - (i) a barrister who has received practical training in England or a person who has obtained a degree in Law from any University in India before the appointed day; (ii) any person who has for at least two years held a judicial office in the territory of India or is a member of the Central Legal Service; (iii) any person who has for at least two years held a judicial office in any area which was comprised before the 15th day of August, 1947, within India as defined in the Government of India Act, 1935, or has been an advocate of any High Court in any such area; (iv) any person who has practised before any High Court and who has discontinued practice by reason of his taking up employment under the Government, a local authority or any other person; and (v) any other class of persons who by reason of their legal training or experience are declared by the Bar Council of India to be exempt from the provisions of this clause; The aforesaid clause (d) also underwent a change from 1964. The said clause (d), in the form in which it is extracted above was operative only upto 1964. It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of Section 24, we may mention one more amending Act 60 of 1973, which by Section 18 thereof, deleted the then existing clause (d) from sub-section (1) of Section 24. Meaning thereby, after 31st January, 1974, the State Bar Councils were deprived of their powers to prescribe a course of pre- enrolment training in Law and examination to be undergone by Law graduates who were seeking enrolment as advocates on the State roll. We may at this stage refer to the statement of objects and reasons as mentioned in the Advocates (Amendment) Bill, 1970 for further amending the Act and which (Amendment) Bill ultimately resulted into the Amending Act 60 of 1973 by which Section 24(1)(d) stood deleted. The said clause, as noted earlier, entitled the State Bar Councils to frame Rules for prescribing pre-enrolment training and examination subject to which a person would get qualified to be enrolled as an advocate on the State roll. The reason why this pre- enrolment training and examination was sought to be done away with by the Parliament is clearly seen from the statement of objects and reasons for introducing the aforesaid (Amendment) Bill of 1970. The said statement of objects and reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the legislature and that too at the suggestion and on the recommendation of the Bar Council of India itself. However, learned Senior Counsel Shri P.P.Rao for the Bar Council of India is right when he contends that in those days it may have been so felt, but with passage of time and experience gained by the Bar Council of India regarding the actual working of legal profession at various levels in India and also in the light of the recommendation of higher power committee chaired by Honble Mr. Justice A.M. Ahmadi to be referred to hereinafter, the need for providing training to advocates before they become entitled to practise was visualised and that is the reason why the impugned rules were enacted and that, therefore, what the Bar Council of India decided in 1973 cannot create any estoppel against the Bar Council of India in 1995. Even accepting this contention, the question remains whether the Bar Council of India by resorting to the enactment of impugned rules had remained within the permissible limits of its rule making power or not and it is this question which has to be considered by us in the present proceedings. We may, at this stage, also refer to Section 7, lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .] (Emphasis supplied) It is to be noted that clause (a) of Section 7, which originally stood, got omitted with effect from 31st January, 1974. That clause (a) pertained to maintenance of rolls of advocates. Hence from 1974 the Bar Council of India was not concerned with maintenance of rolls of advocates which function became the sole concern of State Bar Councils only. These rolls obviously consisting of names of entrants to the legal profession were clearly envisaged under Section 24 of the Act. The next relevant Section is 24-A dealing with disqualification for enrolment of a person desirous of being an advocate under the Act. That section was inserted by Act 60 of 1973. It is relevant to note that the Legislature thereunder has enumerated three categories of persons who are disqualified from being enrolled as advocates even though they might otherwise fulfil the requirements of Section 24 sub-section (1). The imposition by the impugned Rules of the requirement of an applicant to undergo pre-enrolment training does not result into any disqualification of such an applicant if he has not undertaken such a training as it is not treated by the legislature as one of such disqualifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the question of prescribing pre-enrolment training and examination to be undertaken by an applicant for being enrolled as an advocate on the State roll, remained solely in the domain of the concerned State Bar Councils and the Bar Council of India had nothing to do on this aspect of the matter. Consequently Section 24(3) dealt with a topic not covered by the sweep of Section 24(1) especially clause (d) thereof. The next relevant Section for our present purpose is Section 29, which is found in Chapter IV dealing with right to practise. The right to practise naturally is available to those advocates who are enrolled under the Act and whose names are mentioned in the State roll as per Section 17 of the Act. A new entrant to the legal profession obviously would be an ordinary advocate and not a senior advocate. But only two types of advocates are contemplated by Section 17 sub-section (2) of the Act as seen earlier. An advocate can either be a senior advocate or a non- senior advocate, meaning thereby, other advocate. Moment a person is enrolled as an advocate on the State roll, he would become statutorily entitled to practise as laid down under Section 17 which provides under sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or before any authority or person unless he is enrolled as an advocate under this Act. A conjoint reading of Sections 23, 29 and 33 leaves no room for doubt that once a person is found qualified to be admitted as an advocate on the State roll having satisfied the statutory conditions of eligibility laid down in sub-section (1) of Section 24, he will automatically become entitled as of right to practise full-fledged in any Court including the Supreme Court. Next follows Section 34, sub-section (1) which provides that : (1) The High Court may make Rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. This rule making power of the High Court operates on its own and cannot be pressed in service by the Bar Council of India for effectively proving the authorship of their impugned rules and, therefore, we need not dilate on the same any further. The next relevant section is Section 49. This is the section which lays down the rule making power of the Bar Council of India and is the sheet-anchor of the respondent Bar Council of India for supporting the impugned rules. It is, therefore, nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the same time when the provision regarding pre-service training and examination as a condition of enrolment existed on the statute book under Section 24(1)(d). In other words, between 1964 to the end of 1973 i.e. till 31st January, 1974, the topic of prescription of pre-enrolment training and pre-enrolment examination which remained strictly in the domain of the State Bar Councils remained excluded from the rule making powers provided by clauses (ag) and (ah) of Section 49 so far as the Bar Council of India was concerned. It is axiomatic that these general rule making powers in clauses (ag) and (ah) of Section 49 necessarily did not take in their sweep the power to provide for pre-enrolment training and examination for applicants who were seeking enrolment as advocates under the Act from 1964 to the end of 1973. It is easy to visualise that the legislature itself dispensed with the concept of pre-enrolment training and examination for new entrants to the Bar with effect from 31.01.1974. As noted earlier, this was done on the recommendation of the Bar Council of India itself. Under these circumstances, it cannot be presumed that the same legislature without expressly including t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t training for prospective advocates. We, therefore, need not dilate on this aspect any more. The last relevant Section is Section 52 which deals with Saving and it lays down that : Nothing in this Act shall be deemed to affect the power of the Supreme Court to make Rules under Article 145 of the Constitution - (a) for laying down the conditions subject to which a senior advocate shall be entitled to practise in that Court; (b) for determining the persons who shall be entitled to [act or plead] in that Court. It is in the background of the aforesaid statutory scheme of the Act, as subjected to various amendments from time to time till date, that the moot question posed for our consideration about the legal efficacy of the impugned rules will have to be examined. It becomes, therefore, necessary to have a close look at the impugned rules as amended by the Resolution of the Bar Council of India dated 19th July, 1998. These rules styled as the Bar Council of India Training Rules, 1995 provided for certain pre-conditions to be complied with by an applicant to be enrolled on the roll of the State Bar Council. The Rules are said to have been promulgated in exercise of the Bar Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Bar Council of India in exercise of its statutory powers under Section 24(3)(d) of the Act. We have already traced the history of the aforesaid statutory provisions. It is no doubt true that sub-section (3) of Section 24 starts with a non obstante clause and provides that notwithstanding anything contained in sub-section (1), a person mentioned in categories (a),(aa), (c) and (d) may be admitted as an advocate on a State roll if he applies as laid down in clause (1) and fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub- section (1). The objects and reasons for enacting the said provision, as noted earlier, have clearly laid down that it was felt by the legislature that despite the operation of Sections 17 and 24 of the Act, there were some persons who though not covered by the said provision and had not satisfied the conditions for enrolment as laid down in these provisions deserved to be enrolled as advocates. With that end in view, the Bar Council of India was provided with the rule making power under sub-section 3(d) of Section 24 by way of an enabling provision to extend the statutory coverage of Section 24(1) for bringing in such otherwise ine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). To illustrate the nature of such rule making power and the limited scope thereof, it may be visualised that as per Section 24 sub-section (1) clause (c) unless a person has obtained the degree of Law from any recognised University in India, he would not be entitled to be enrolled as an advocate. Still the Bar Council of India in its wisdom and discretion by exercising its enabling rule making power under Section 24 sub-section (3)(d) read with Section 49(1) may permit a citizen of India who might have obtained degree from a foreign University like a Law degree from England or a Law degree from Harvard Law School of America or a law degree from Canadian or Australian University to be enrolled as advocate. Such category of persons who could not have been enrolled on the express language of Section 24 (1) could be enrolled by the State Bar Councils under Section 24(3)(d) if the Bar Council of India in exercise of its rule making power had covered them for such enrolment. It is this beneficial and enabling power for bringing in the sweep of the umbrella of Section 24(1) those who would have otherwise been out of it which is conferred by Sub-section (3) (d) of Section 24 on the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such rules may provide for - Xxxx Xxxx Xxxx (d) the conditions subject to which a person may be admitted as an advocate on any such roll. Consequently, the submission of Shri P.P.Rao, learned senior counsel for the Bar Council of India that the Council also can exercise rule making power under Section 24(1) for imposing an additional condition of qualification for a person to be enrolled on State roll obviously cannot be accepted. Shri Rao then next turned to Section 7 of the Act and submitted that, amongst enumerated functions of the Bar Council of India, at clause (h) of sub-section (1) is specified a provision regarding promoting the legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils. It is difficult to appreciate how the aforesaid clause (h) can also give any support to the impugned rules. Shri Rao, learned senior counsel for the Bar Council of India, is right when he contends that the concept of `legal education is not necessarily confined to only class room lectures or theoretical study of law. It can include practical training of prospective advocates. But even acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirements and the conditions for such enrolment as laid down by Section 24 (1). Consequently, the support of Section 7(1) as tried to be invoked for sustaining the impugned rules also is of no avail to learned senior counsel Shri Rao for the respondent Bar Council of India. We may now refer to Section 49 of the Act, which deals with general power of Bar Council of India to make Rules. Sub-section (1) thereof lays down that the Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe on various topics as enumerated therein from clauses (a) to (j). A mere look at the aforesaid provision makes it clear that the rule making power entrusted to the Bar Council of India by the legislature is an ancillary power for fructifying and effectively discharging its statutory functions laid down by the Act. Consequently, Rules to be framed under Section 49(1) must have a statutory peg on which to hang. If there is no such statutory peg the rule which is sought to be enacted dehors such a peg will have no foothold and will become still born. The statutory functions entrusted by the legislature to the Bar Council of India u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 24(1)(d) which was operative at that time, it became a pre-condition for enrolment. There cannot be two parallel pre-conditions of enrolment which can be simultaneously imposed, one under Section 24(1)(d) by the concerned State Bar Council by exercise of its powers under Section 28(2)(b) which existed on the Statute Book between 1964 to January, 1974 and also the possible provisions for imposing such pre-conditions for enrolment by the Bar Council of India taking resort to the supposed wide wordings of Section 49(1)(ag) during the very same period as during that period Section 24(1)(d), Section 28(2)(b) and Section 49(1)(ag) conjointly existed on the statute book. If such a concurrent power is envisaged by Section 49(1)(ag), then the Bar Council of India instead of being an approving authority at the relevant time would itself become a prescribing authority in connection with pre-enrolment training. It has also to be kept in view that on the scheme of the Act enrolment of advocates is the task of the State Bar Councils and not of the Bar Council of India. It must, therefore, be held that the rule making power contemplated by the legislature under Section 49(1)(ag) for being ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d power/function to make pre-enrolment training Rules and that too by the Bar Council of India which had nothing to do at the initial stage of enrolment of advocates on the State rolls. In this connection, it is also useful to refer to section 49(1)(ag) with section 29 of the Act. Section 29 in terms provides as under:- Subject to the provisions of this Act and any Rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of Law, namely, advocates. Section 49(1)(ag) also deals with the class or category of persons entitled to be enrolled as advocates. Thus, by the said provision the Bar Council of India in exercise of its rule making power can add to the class of persons contemplated by Section 29 by enlarging the said class of advocates entitled to practise as full-fledged advocates. Entitlement to practise the profession of law necessarily means full- fledged entitlement to plead and argue cases of their clients before the courts of law. There cannot be any truncated right to practise profession of law which is sought to be culled out by Shri P.P. Rao, learned Senior Counsel for the Bar Council of India on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n earlier. Therefore, the very first part of Section 49 will hit the said rule as it would not be a rule for discharging the statutory function of the Bar Council of India. But there is still a second cogent reason for showing that clause (ah) of sub-section (1) of Section 49 cannot support the impugned rules. The said rules do not seek to regulate the right of practice available to an already enrolled full-fledged advocate. The entitlement of an enrolled advocate is to be culled out from a conjoint reading of Sections 17, 24(1) and the definition of advocate as found in Section 2(1)(a). Once a person is enrolled as an advocate, how the right to practise of such enrolled advocate can be regulated or monitored may legitimately form the subject matter of a rule framed under Section 49(1)(ah). But the impugned rules by providing the concept of a trainee advocate with only a limited right to ask for adjournment and mentioning the cases of his guide totally violate the scheme of the Act. Section 17 sub-section (2) of the Act lays down that there can be only two classes of advocates; senior advocates and non-senior or ordinary advocates. It is difficult to appreciate how a trainee advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision, therefore, cannot make the ratio of the decision in the aforesaid case per incuriam. The second ground on which Shri Rao tried to submit that the said decision was per incuriam was by inviting our attention to a Constitution Bench judgment of this Court in re: Lily Isabel Thomas case (supra). Now it must be kept in view that the said decision was rendered in connection with an entirely different statutory scheme. Section 52 of the Act, as noted earlier, saves power of the Supreme Court to make Rules under Article 145 of the Constitution of India for determining persons who are eligible to practise before the Supreme Court. Thus, the constitutional power of the Supreme Court for regulating the working of advocates in the Supreme Court who were otherwise entitled to practise in any Court in India under the Act could be validly exercised. When we turn to the constitutional power of the Supreme Court under Article 145, we find clearly mentioned therein that subject to the provisions of any law made by the Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anything contrary to what the three Judge Bench judgment laid down in connection with this very statutory scheme which squarely arises for consideration in the present case. Hence, even the second ground canvassed by learned senior counsel, Shri Rao for the Bar Council of India, for whittling down the binding effect of the aforesaid three Judge Bench judgment of this Court, cannot be sustained. We may at this stage note one submission of Shri C.S.Vaidyanathan, learned Additional Solicitor General. He contended that the impugned Rules 15A to 15C atleast can be sustained under the rule making power of the Bar Council of India under section 49(1)(ah) of the Act. It is not possible to agree with this contention for the simple reason that by the impugned rules no training is prescribed subsequent to enrolment under the Act. Rules seek to impose pre- enrolment training, as noted earlier. Consequently, such a rule cannot be sustained under the aforesaid provision as clearly ruled by a Three Judge Bench Judgment of this Court in Indian Council of Legal Aid Advice Boards Case (supra). Even that apart, a close look at Section 49(1)(ah) clearly shows that the said provision enables the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce for any reason whatsoever, shall intimate by registered post to the State Bar Council on the rolls of which his name is entered, of such suspension together with his certificate of enrolment in original. (2) Whenever any such advocate who has suspended his practice desires to resume his practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, along with an affidavit stating whether he has incurred any of the disqualifications under Section 24A, Chapter III of the Act during the period of suspension. (3) The Enrolment Committee of the State Bar Council may order the resumption of his practice and return the certificate to him with necessary endorsement. If the Enrolment Committee is of the view that the Advocate has incurred any of the disqualifications the Committee shall refer the matter under proviso to Section 26(1) of the Act. (4) On suspension and resumption of practice the Secretary shall act in terms of Rule 24 of Part IX. 6. (1) An Advocate whose name has been removed by order of the Supreme Court or a High Court or the Bar Council as the case may be, shall not be entitled to practice the profession of Law either before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court or Court subordinate to it, can be laid down by the High Court by its rule making power under Section 34(1). This necessarily is a situation which is post enrolment. Similar situation would fall for consideration if the Bar Council of India seeks to exercise its power under pari materia rule making power under Section 49(1)(ah) but as the impugned rules travel backwards and seek to enter upon and monitor pre-enrolment situation, the said exercise obviously remains in a forbidden field for the Bar Council of India. It has also to be appreciated that the powers of the constitutional Courts like the High Courts which are Courts of record stand on an entirely different footing as compared to powers of statutory authority like the Bar Council of India which has to justify exercise of its powers within the four corners of the Statute which has created it. It is also not the submission of any learned counsel before us that any of the High Courts has framed any rule requiring the State Bar Councils not to enrol any advocate on its roll if he has not undertaken any pre-enrolment training by resorting to its rule making power under Section 34(1). It is only the Bar Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecome entitled to practise in the courts. The said High Power Committee, after inviting the views of the Chief Justices and State Bar Councils as well as the Bar Council of India made valuable suggestions. The relevant suggestions in connection with legal education are suggestion nos.1, 12, 13, 15, 16 which are required to be noted. They read as under : 1. In laying down the standards of Legal Education, the Bar Councils Legal Education Committee constituted under Rule 4 of Chapter III of the Bar Council of India Rules, 1965 must reflect the participation of representatives of (1) the Judiciary, (2) the Bar Council and (3) the U.G.C. It is proposed that the Rules be amended and the Legal Education Committee be restructured to involve the bodies above-mentioned. Xx xx xx 12. Rule 21 of the Bar Council Rules directing that every University shall endeavour to supplement the lecture method with case method, tutorials and other modern techniques of imparting Legal Education must be amended in a mandatory form and it should include problem method, moot courts, mock trials and other aspects and make them compulsory. 13. (i) Participation in moot courts, mock trials, and debates must be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the impugned rules has resulted into firing at the wrong end though backed up by a very laudable purpose. We may in this connection usefully refer to what the High Power Committee itself observed at page 30 of the Report in connection with Entrance into the Bar after 12 months or 18 months of Apprenticeship with Entry Examination : Section 28(2) (b) of the Advocates Act, 1961 as it stood in 1961, empowered the State Bar Councils to make Rules for practical training in Law Courts and for a Bar Council Examination. In exercise thereof Rules were framed by Bar Councils in the States prescribing the training and Bar Council Examination. Unfortunately the same was omitted later on in the Act by amendment and this has been the second major factor responsible for the deterioration of standards in the legal profession. Now that the Bar Council of India is wanting the reintroduction of Section 28(2)(b) by Parliament for training the Law Graduates for a period and for conducting the Bar Council Examination, the Central Government must soon re-enact the provision. But the new section must say that the method of training and the Examination must be such as may be prescribed by the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expertise and efficient uniform legal training would be a must for all advocates enrolled under the Act. In these circumstances, appropriate statutory power has to be entrusted to the Bar Council of India so that it can monitor the enrolment exercise undertaken by the State Bar Council concerned in a uniform manner. It is possible to visualise that if power to prescribe pre-enrolment training and examination is conferred only on the State Bar Councils, then it may happen that one State Bar Council may impose such pre-enrolment training while another Bar Council may not and then it would be easy for the prospective professional who has got requisite law degree to get enrolment as the advocate from the State Bar Council which has not imposed such pre-enrolment training and having got the enrolment he may start practice in any other Court in India being legally entitled to practise as per the Act. To avoid such an incongruous situation which may result in legal evasion of the laudable concept of pre-enrolment training, it is absolutely necessary to entrust the Bar Council of India with appropriate statutory power to enable it to prescribe and provide for all India basis pre-enrolment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n successful completion of training. This will also guarantee them proper training in the chamber of senior advocates as their guides. Successful completion of training by advocates who are new entrants to the profession of law and the corresponding obligation of their guides would make them liable to disciplinary action by the State Bar Councils on the ground of misconduct if they do not discharge their obligations either as stipendiary or non-stipendiary junior advocates on the one hand and their guides on the other. As they would be full-fledged advocates the disciplinary jurisdiction of the State Bar Council can also get effectively attracted in connection with their alleged misconduct if any. This type of in-practice training would remove all the unnecessary hardship and can be well sustained under the statutory scheme of the Act and the rule making power of the Bar Council of India. We recommend the Bar Council of India to look into this aspect for the benefit of legal profession as a whole so that the void that will be created by our striking down of the impugned rules and till future statutory amendment, if any, is carried out by the Parliament as recommended by us in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommendations from this Court : It also fell from their Lordships that the training should be part of the curriculum of the University and should not extend the period of study beyond the existing three years or five years as the case may be. It also fell from their lordships that the Training could be under the supervision of the respective High Courts of the State and the State Bar Councils. It also fell from their Lordships that the training need not be restricted to merely attending to the Chamber but may also include attending to the court under the supervision of the concerned Court staff. It is also to be considered whether post enrolment training for one year or less is at all required for those entrants to the profession who have already worked as solicitors article trainees for a number of years before they apply for being enrolled as advocates. The nature of the training which they have already undertaken while working in the firms of solicitors may pose the question whether any duplication of training or any additional training is required for them for entering the legal profession as advocates. Another aspect which requires consideration by the Bar Council of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned rules will not survive as the Rules themselves are struck down. The final decision of the High Court allowing the writ petition of the respondent is sustained on the aforesaid ground. There will be no order as to costs in all these cases. J. [S.B. Majmudar ] ...J. [ S.N.Phukan ] New Delhi, March 12, 1999. After this judgment was pronounced on 12th March, 1999 and before it could be signed by both of us, at the request of learned counsel for the parties, this matter was fixed today for further directions in connection with the retrospective operation of this judgment as mentioned in the last paragraph of page 79. The said paragraph put in bracket after hearing the parties, will stand substituted as under : Before concluding these proceedings, we must mention that it would be necessary to direct that the present judgment will operate only prospectively to avoid unnecessary confusion and complications. It is clarified that this judgment will have no retrospective effect in the sense that it will not apply to those applicants for enrolment who have earlier applied for enrolment and have successfully completed their pre-enrolment training as per the impugned rules. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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