TMI Blog2020 (11) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... the law or a rule unconstitutional should be one of the last resorts which the Court may take. According to the Black's Law Dictionary, a lawyer is a person learned in the law; as an attorney, counsel or solicitor, a person licensed to practice law . The legal profession is not a business or a trade. A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting. The advocate is expected to devote full time to his profession of law. Although, the profession is called a noble profession, yet it does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protect and promoted. An institution cannot survive in its name or on its part glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich, traditions consistent with its grace, dignity, utility and prestige. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat and she would obtain the final Sanad after clearing the Bar Council of India Exam. She has already filed an undertaking to this effect. We read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice. The Bar Council of Gujarat as well as the Bar Council of India is directed to act accordingly after applying the rules in consonance with what has been stated above and issue a provisional Sanad to the writ applicant so as to entitle her to appear in the Bar Council of India Exam - The Bar Council of Gujarat shall issue the Enrollment Number to the writ applicant on the same line and in the same format as given to all other applicants who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant to take up the Bar Council Examination. 2. We need not state the facts of this litigation in details as those have been stated in the order passed by this Court dated 06.10.2020. We quote the order as under; 2. The gist of the case put up by the writ applicant, in her own words, as pleaded in the memorandum of the writ application, reads thus: March 1996 The writ applicant obtained degree of Bachelor of Commerce from Kolkata University. The writ applicant has been living in Ahmedabad since 1996. The writ applicant presently lives with her son, her retired father and is the sole earning person in the family. 05.05.2009 The husband of the writ applicant who was a journalist passed away. The writ applicant presently lives with her son, her retired father and is the sole earning person in the family. * The Bar Council of India introduced the All India Bar Examination, an exam which is mandatory for all law students graduating from Academic Year 2009-10 onwards and enrolled as advocates under Section 24 of the Advocates Act, 1961. it is mandatory for an advocate to be enrolled as such before taking the All India Bar Examination. As per the Bar Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have ceased to exist and that he intends to resume his practice. 2016 The writ applicant took up studies of law after a gap of 20 years since her graduation in Commerce and obtained degree of Bachelor of Laws during the period between 2016 and 2019. 2018 The son of the writ applicant joined a University for a Bachelor Degree. 2019 After getting degree of Bachelor of Laws, the writ applicant applied for enrollment as an Advocate with a view to clear the Bar Council Examination and getting enrollment certificate. The writ applicant duly filled in the application form and also paid fees of ₹ 16,600/- as required. The writ applicant also duly declared that she is in employment. * The Bar Council of Gujarat, however, did not accept the form of the writ applicant. The writ applicant was told that the application was not accepted as the writ applicant had declared that she was in employment and that a form of only that person who makes a declaration that she is not employed either in full or part time service or employment and is not engaged in any trade, business or profession can be accepted, Further persons above the age of 30 are required to furnish an affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat shall accept such application and shall not require the writ applicant to resign from her current employment. (v) The Bar Council of Gujarat shall issue Provisional Enrollment Certificate to the writ applicant on or before 15.10.2020, considering that the online registration for the next All India Bar Examination closes on 17.10.2020. (vi) The respondents shall permit the writ applicant to appear in the All India Bar Examination, as may be held. (vii) The writ applicant undertakes that she will not practice as an advocate on the basis of the Provisional Enrollment Certificate issued to her. (viii) The writ applicant shall further undertake that if after the issuance of enrollment certificate and after passing of the All India Bar Exam, if she continues to be in full or part time service or employment or is engaged in any trade, business or profession, she shall deposit her enrollment certificate with the Bar Council and shall not practice as an Advocate. (ix) The writ applicant shall file undertaking in terms of this order on or before 09.10.2020. 5. As stated above, this interim order is passed having regard to the peculiar facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recall the order dated 6.10.2020 passed in captioned petition. 7. The applicant humbly prays this Hon'ble Court to permit the applicant to rely on the contents of the affidavit in reply filed by the applicant in the captioned petition at the time of hearing of the present applicant, and the same may be considered as a part and parcel of this application. 4. At the same time, the applicant also came up with a Civil Application No.02 of 2020 with the following prayers:- (A) The Hon'ble Court may be pleased to direct the Respondents to give Enrollment number to the Applicant on the same line and in the same format as given to all other applicants who apply for enrollment as an Advocate and which is acceptable to and compatible with the online All India Examination portal; (B) For interim relief for the para A above; (C)) For exemplary costs; 5. In the civil application filed by the writ applicant, the following has been pointed out:- 2. This Hon'ble Court vide order dated 6.10.2020 passed an interim order for the purpose of allowing the writ applicants to appear in the All India Bar Examination. 3. In terms of the aforesaid order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form you that your enrollment application was placed before the Enrollment Committee of the Bar Council of Gujarat in its meeting dated 13.10.2020 as per the aforesaid oral order dated 6.10.2020 with regard to issue Provisional Enrollment to you. The Enrollment Committee considered that the Hon'ble High Court has passed order only for the purpose of allowing you to appear in the All India Bar Examination, as may be held and this order shall not be treated as a permission to you to continue with both i.e. your employment and practice. Therefore, it is resolved to provisionally enroll you subject to only appearing in the All India Bar Examination. Particulars regarding your provisional Enrollment and its date are as under:- Enrollment No. G/Provisional-I/2020 Date of Enrollment 13/10/2020 The Enrollment Committee further considered that you have to submit undertaking on or before 09.10.2020 to the Hon'ble High Court of Gujarat in respect of that you will not practice as an advocate on the basis of provisional enrollment certificate issued to you and if after the issuance of enr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the 'G'. The Bar Council of Gujarat issued the Enrollment Number as G/Provisional-I/2020, which has not been accepted by the On-line Registration System. 9. The Bar Council of India also seems to be putting up a defiant stance by saying that as the writ applicant is serving in a private office, she is not entitled to be enrolled as an Advocate. The argument canvassed on behalf of the Bar Council of India is that if the writ applicant is permitted to be enrolled as an Advocate, the same may open flood gates for the others. 10. In short, the Bar Council of India as well as the Bar Council of Gujarat has a common argument to canvas that the rules framed by the Bar Council of Gujarat (Enrollment) Rules under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 (for short the Act, 1961 ) puts an embargo upon the writ applicant unless she resigns from her present employment and files an affidavit to that effect. The Bar Council of India seeks to rely upon Rule 49 of its Rules. 11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative of the above referred articles of the Constitution. 17. Ms. Jani, in the alternative, submitted that this Court may read down the relevant rules of the State Bar Council to the effect that a person who makes a declaration that she is engaged in any service, employment, trade, business or profession, may be admitted as an advocate, however, the enrollment certificate may remain in the custody of the Bar Council until the advocate makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he/she intends to resume. 18. Mr. Manan Shah, the learned counsel appearing for the Bar Council of India and Mr. R.C. Jani, the learned counsel appearing for the Bar Council of Gujarat have relied upon a decision of this Court in the case of Jalpa Pradeepbhai Desai vs. Bar Council of India, reported in AIR (Guj) 2017 O 134 and the decision of the Supreme Court in the case of Satish Kumar Sharma vs. The Bar Council of Himachal Pradesh, reported in AIR 2001 SC 509. 19. Rule 2 of the Bar Council of Gujarat (Enrollment) Rules, reads thus; 2) Every person applying to be admitted as an Advocate shall in his application make a declaration that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his being a full time salaried employee. Law Officer for the purpose of this Rule means a person who is so designated by the terms of his appointment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employer. 22. It is a settled law that in interpreting a statute or a rule, the Court must bear in mind that the legislature does not intend what is inconvenient and unreasonable. If a rule leads to an absurdity or manifest injustice from any adherence to it, the Court can step in. A statute or a rule ordinarily should be most agreeable to convenience, reason and as far as possible to do justice to all. A law/rule should not be made without a purpose or object and when it is found so, the Court should not be hesitant in applying the principle of 'reading down' or 'reading into' the provision to make it effective and workable, more particularly when it is found that the object is illusory and appears to be nothing but a shadow hunting process. A law/rule should be beneficial in the sense that it should suppress the mischief and advance the remedy. In interpreting a rule, it is legitimate to take into consideration the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of the Act. The validity of a rule is to be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute, reasonable and not contrary to general principles. 26. We may quote with profit the observations of the Supreme Court in the case of Namit Sharma Vs. Union of India reported in (2013) 1 SCC 745. In that case, the subject matter before the Supreme Court was the one under the Right to Information Act, 2005. The Court made the following observations in paragraphs 51 and 61, which are reproduced hereinbelow:- 51. Another most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer had to be in the negative. However, despite coming to the conclusion that the High Court was right in holding that the rule in question suffered from an element of arbitrariness, the remedy did not lie in striking down the impugned Rules, the existence of which was necessary in the larger interest of the institution as well as the populace of the Ahmedabad Municipal Corporation. The Court observed that the striking down of the rule would mean opening the doors of the institution for admission to all the eligible candidates in the country, which would definitely be opposed to the very object of the establishment of the institution by a local Body. In such circumstances, the following observations of the Supreme Court in paragraph 14 are very apt and could be made applicable to the facts of the present case. 14. Before proceeding to interpret Rule 7 in the manner which we think is the correct interpretation, we have to bear in mind that it is not the jurisdiction of the court to enter into the arena of the legislative prerogative of enacting laws. However, keeping in mind the fact that the rule in question is only a subordinate legislation and by declaring the rule ultra vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or solicitor, a person licensed to practice law . The legal profession is not a business or a trade. A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting. The advocate is expected to devote full time to his profession of law. Although, the profession is called a noble profession, yet it does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protect and promoted. An institution cannot survive in its name or on its part glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich, traditions consistent with its grace, dignity, utility and prestige. Hence, the provisions of the Act and Rules made thereunder, inter alia, are aimed at to achieve the same. Such provisions of the Act and Rules should be given effect to in their true spirit and letter to maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood. She has made herself very clear that she may be issued a provisional Sanad and such provisional Sanad shall remain in deposit with the Bar Council of Gujarat and she would obtain the final Sanad after clearing the Bar Council of India Exam. She has already filed an undertaking to this effect. We have quoted the entire undertaking in the earlier part of our judgment. If that be so, may it not be said that the object of Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules as well as Rule 49 of the Bar Council of India Rules is protected and sub-served. 33. In such circumstances, referred to above, we read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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