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TMI Blog2024 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... .......................... 13 ii. Advocates Act: A Complete Code ................................................................. 17 iii. Delegated legislation ..................................................................................... 20 iv. Power to levy fees .......................................................................................... 22 v. Regulatory fees .............................................................................................. 25 E. Fees charged by the SBCs................................................................................ 28 F. SBCs cannot charge enrolment fees beyond the mandate of Section 24(1)(f) ............................................................................................................................. 31 i. Legislative Scheme ........................................................................................ 31 ii. Bar Councils cannot levy fees beyond the express stipulation of law ..... 39 G. All fees charged at the time of enrolment are 'enrolment fees' .................... 46 i. Charges other than the enrolment fee cannot be a valid pre-condition ... 48 ii. Article 14: substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for admission as an advocate on a State roll is made to the SBCs.5 The SBCs are required to issue a certificate of enrolment to every person whose name is enrolled in the roll of advocates.6 Section 24 prescribes the qualifications and conditions for a person to be admitted as an advocate.7 5. To qualify to be admitted as an advocate on a State roll, a person must: (a) be a citizen of India; (b) complete the age of twenty-one years; (c) obtain a degree in law; (d) fulfil such other conditions as may be specified in the rules made by the SBCs under Chapter III; and (e) pay an enrolment fee of Rupees six hundred payable to the SBC and Rupees one hundred to the BCI along with any stamp duty, if chargeable. In the case of a person belonging to the Scheduled Castes or Scheduled Tribes, the enrolment fee of Rupees one hundred is payable to the SBC and Rupees twenty-five to the BCI. 6. The SBCs charge enrolment fees stipulated under Section 24(1)(f) of the Advocates Act to admit law graduates on their State roll. At the time of enrolment, the SBCs also charge various "fees" and "charges" in addition to the enrolment fees in the form of library fund contributions, administratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be admitted as advocates on the state rolls; d. Section 6(3) of the Advocates Act prescribes how the SBCs may constitute 'funds' to fulfil their functions under Section 6(2). It does not allow imposing additional charges under different heads along with the enrolment fees or charging exorbitant fees as a mandatory condition for persons to get enrolled; e. The exorbitant enrolment fees prevent law graduates belonging to economically weaker sections of society from getting admitted to the rolls of the SBCs. Such an indirect bar on law graduates enrolling as advocates offends Article 19(1)(g) of the Constitution. It also makes the process of enrolment coercive, improper, unjust and unfair, violating Article 14 of the Constitution; and f. The Advocates' Welfare Fund Act 2001 enacted by Parliament allows for the collection of funds through various sources for the welfare of advocates. This amount does not need to be collected by levying exorbitant enrolment fees. 10. Mr Manan Kumar Mishra, senior counsel made the following submissions on behalf of the BCI: a. Bar Councils require adequate operational funds to effectively discharge their functions. They require funds for day-to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draft Uniform Rules (For Enrolment and Other Fees To Be Charged By The State Bar Councils) 202311 laying down a uniform fee to be charged by all SBCs at the time of enrollment. 11. In view of the above submissions, the BCI has submitted that this Court exercise its extraordinary powers under Article 142 to implement a uniform enrolment fee structure that adequately caters to the financial requirements of the SBCs until legislative amendments are made to the Advocates Act. Additionally, it has urged this Court to direct the Union Government to revise the enrolment fee prescribed in Section 24(1)(f). 12. The SBCs have filed counter affidavits justifying the imposition of the fees charged by them at the time of enrollment. In essence, they contend that (i) the statutorily prescribed enrolment fee in Section 24(1)(f) fails to account for the current economic situation; (ii) the SBCs are charging fees in addition to the statutorily prescribed enrolment fee in return for services such as library fee and ID card fee under their rule-making powers under Section 15 and Section 28; and (iii) the additional charges are essential to enable the SBCs to fulfil their statutory functions. In ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of an all-India Bar. 15. To give effect to this demand, the colonial legislature enacted the Indian Bar Councils Act 192616 "to provide for the constitution and incorporation of Bar Councils and to confer powers and impose duties on such Bar Councils." Section 3 prescribed the constitution of a Bar Council for every High Court. Section 8 pertained to the admission and enrolment of Advocates. It authorized the High Courts to prepare and maintain a roll of advocates. Section 9 empowered the Bar Councils to make rules regulating the admission of persons to be advocates of the High Court including the charging of fees payable to the Bar Councils in respect of enrolment. Thus, the 1926 Act empowered the Bar Councils to prescribe fees in respect of enrolment. However, the 1926 Act did not substantially fulfil the demands of the Indian legal practitioners for an all-India Bar. In 1951, the Government set up the All- India Bar Committee to inquire into this issue and provide a feasible legal solution. 16. The Committee recommended setting up of the SBCs and an All-India Bar Council, uniform minimum qualification for admission to the roll of Advocates, a common roll of Advocates mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 1959 was introduced in Parliament. The Bill was referred to a Joint Committee of Parliament which submitted its recommendations in 1960. The Joint Committee recommended renaming the proposed enactment as the Advocates Act because there would only be one class of legal practitioners in India, that is, advocates. Importantly, the Joint Committee recommended reducing the proposed enrolment fee from Rupees five hundred to Rupees two-hundred and fifty. The aim behind reducing the enrollment fee was "to bring in as many eligible lawyers within its [the legislation's] fold as possible."19 19. The recommendation of the Joint Committee was accepted by Parliament and incorporated under Section 24(1)(f). During the Parliamentary debates preceding the passage of the Advocates Act, many members suggested that the enrolment fee of Rupees two-hundred fifty was exorbitant.20 It was suggested that the enrolment fee should be further reduced or abolished altogether.21 The then Minister of Law (Mr A K Sen) justified the rationale for prescribing Rupees two hundred fifty as enrolment fee thus: "So far the Bar Council is concerned, a fee of Rs. 250 is not very unreasonable especially having regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty under Entry 44 of List III of the Seventh Schedule. 23. The Advocates Act was enacted to implement the recommendations of the All-India Bar Committee. According to the Statement of Objects and Reasons, the main features of the enactment are: (i) establishment of an All-India Bar Council and a common roll of advocates, and advocates on the common roll having a right to practice in any part of the country and any Court, including the Supreme Court; (ii) integration of the bar into a single class of legal practitioners known as advocates; (iii) prescription of a uniform qualification for the admission of persons to be advocates; (iv) division of advocates into senior advocates and other advocates based on merit; and (v) creation of autonomous Bar Councils, one for the whole of India and one for each State. 24. The 1926 Act did not prescribe any qualifications to be possessed by persons applying for admission as advocates. Under the 1926 Act, the Bar Councils prescribed qualifications, but the enrollment was carried out by the High Courts. Under the Advocates Act, the enrolment process is completely undertaken by the SBCs. The SBCs are mandated to maintain and prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the principles for the guidance of the delegated authority.37 As a corollary, the delegated authority must carry out its rule-making functions within the framework of the law. The delegated legislation must be consistent with the law under which it is made and cannot go beyond the limits of policy and standards laid down in the law.38 28. Although delegated legislation enjoys the presumption of constitutionality, it does not enjoy the same immunity as the parent legislation. It is now wellestablished39 that delegated legislation can be challenged on the following grounds: (i) lack of legislative competence to make delegated legislation; (ii) violation of fundamental rights guaranteed under the Constitution; (iii) violation of any provision of the Constitution; (iv) failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act; (v) repugnance to any other enactment; and (vi) manifest arbitrariness. 29. Modern legislation often contains provisions enabling the delegate of the legislature to frame subordinate legislation. The statutory provision for delegation is often couched in general terms empowering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext of Article 265 means an Act of legislature and cannot comprise an executive order or rule without express statutory authority. (iii) The term "tax" under Article 265 read with Article 366(28) includes imposts of every kind viz. tax, duty, cess or fees. (iv) As an incident of sovereignty and in the nature of compulsory exaction, a liability founded on principle of contract cannot be a "tax" in its technical sense as an impost, general, local or special." 32. The Seventh Schedule to the Constitution differentiates between taxing entries and general entries. Subjects pertaining to the levy of taxes must be traced to specific taxing entries enumerated in either List I or List II.43 In addition, Parliament has the residuary power under Article 248 read with Entry 97 of List I to legislate on matters not enumerated in List II or List III, including on matters of taxation. The power of the legislature to levy fees is dealt with under separate heads: (i) Entry 96 of List I empowers Parliament to levy fees in respect of any matters in List I; (ii) Entry 66 of List II empowers the State legislatures to levy fees in respect of any matters in List II; and (iii) Entry 47 of List I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... type of cases is furnished by the licence fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really not upon the costs incurred by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant, and if the money paid by the licence-holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regarded as a tax" In Shirur Mutt (supra), it was held that a fee is money taken by the Government "as the return for the work done or services rendered."48 Therefore, a fee was characterised by an element of quid pro quo between the payer and the public authority. 36. In a series of subsequent decisions, this Court held that a levy can be regarded as a fee if it has a "reasonable relationship" with services rendered by the public authority.49 The traditional view that there must be an actual quid pro quo for a fee has not been applied in the strict sense in subsequent decisions of this Court. It h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een thousand five hundred for candidates from SC and ST category. 41. The Bar Council of Odisha is charging Rupees forty-two thousand one hundred from advocates at the time of enrolment. In their counter affidavit, the SBC concedes the fact that Section 24(1)(f) only mandates the SBCs to charge Rupees seven hundred fifty in total at the time of enrolment. However, the SBC sought to justify charging the enhanced enrolment fee and other fees from the advocates "having regard to the functions of the Odisha Bar Council" under the Advocates Act. The SBC further claims that in line with its functions under Section 6, it has created various welfare funds for the benefit of advocates on its roll and utilizes the contributions received from the fees towards this end. Resultantly, the SBC is charging Rupees twenty-six thousand nine hundred as a one-time deposit to enable an advocate to avail of a lifetime benefit of various welfare schemes. This amount is in addition to the enrolment fee of Rupees six thousand, processing/ development fees of Rupees seven thousand, and other miscellaneous charges. The SBC justified charging Rupees six thousand as the enrolment fee on the basis of a BCI reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the overall annual expense of Rupees nine lakh. 44. The legal profession is a serious occupation and requires advocates to maintain exemplary conduct both inside and outside the court.58 The SBCs and the BCI perform the important function of regulating and maintaining the standards of conduct required from advocates. The Bar Councils conduct activities related to providing advocates knowledge about the substantive and procedural aspects of law. Many SBCs have published books and manuals and assisted members of the legal profession in acquiring the practical skills required for the successful pursuit of a career as an advocate. The Bar Councils conduct welfare schemes for advocates. During the period of the Covid pandemic and even at other times, the Bar Councils have stepped in to provide relief to advocates and their families. In doing so many Bar Councils have provided significant aid to advocates. The enrolment fee and other miscellaneous fees are the only source of income available to the SBCs to perform their functions under the Advocates Act and implement welfare schemes for advocates. However, the imposition of the enrolment fee and other miscellaneous fees by the SBCs mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandates Bar Councils to maintain books of account for audit; (o) Section 13 provides that vacancies in Bar Councils cannot be a ground to challenge the validity of acts done by a Bar Council; and (p) Section 14 pertains to challenges to elections to Bar Councils. 47. Chapter II establishes Bar Councils and delineates their functions and responsibilities. The provisions of the Chapter II also empower Bar Councils to constitute disciplinary and other committees and appoint qualified staff. The rule-making powers granted to Bar Councils under Section 15 are regulatory powers and must be construed widely60 because they support the objective of regulation of the legal profession. 48. In Pratap Chandra Mehta v. State Bar Council of MP,61 a two-Judge Bench of this Court observed that the power of Bar Councils to frame rules must be interpreted broadly: "51. The power to frame rules has to be given wider scope, rather than a restrictive approach so as to render the legislative object achievable. The functions to be performed by the Bar Councils and the manner in which these functions are to be performed suggest that democratic standards both in the election process and in perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her." 51. We can derive the following principles concerning the rule-making power of the SBCs under Section 15: (i) the SBCs can exercise rule-making powers only for the subject matters specified under Chapter II; (ii) although the SBCs have a broad rule-making power, it must be exercised to further the object and purpose of the Advocates Act; (iii) the SBCs cannot use their rule-making power under Section 15 with respect to subject matters on which the BCI has been granted exclusive power to make rules under the Advocates Act; and (iv) approval by the BCI to an invalid rule made by the SBCs cannot be deemed to validate the invalid rule. 52. The scope of the rule-making power of Bar Councils under Section 15 pertains to carrying "out the purposes of" Chapter II. As mentioned above, the purposes of Chapter II can be determined from Sections 3 to 14. Therefore, the scope of the rule-making power of Bar Councils under Section 15 extends to give effect to the provisions of Chapter II, namely, Sections 3 to 14. 53. Chapter III pertains to the admission and enrolment of advocates. As discussed in the earlier segment of this judgment, the Advocates Act is a complete code for admission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d statutorily under Section 24(1). Section 24(1) lays down requirements such as citizenship, age, and educational efficiency that make a person eligible to be admitted on a State roll. These minimum qualifications enable a person to effectively perform their responsibilities as legal professionals. In addition, the BCI can also prescribe "such other conditions" in addition to the qualifications already prescribed under Section 24(1). Generally, a condition is a qualification, restriction, or limitation.66 However, the "conditions" to be imposed by the SBCs should be consistent with the qualifications already prescribed by the statute. The BCI cannot prescribe any conditions or qualifications that: (i) seek to modify what has already been prescribed by the statute; (ii) are contrary to the stipulated qualifications; and (iii) are inconsistent with the object and purpose of the Advocates Act. 56. Section 24(1)(e) has to be read conjointly with Section 28(1)(d) which empowers the SBCs to make rules prescribing "the conditions subject to which a person may be admitted as an advocate on any such roll." Since Section 24(1) already prescribes the basic substantive qualifications, the SBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the parent statute. Unlike the legislature, which has sovereign legislative powers derived from the Constitution, the delegated authority is conferred powers by the parent enactment. Therefore, delegated authority must strictly conform to the provisions of the statute under which it is framed.70 A delegate cannot alter or change the legislative policy.71 A delegate cannot override the provisions of the parent enactment either by exceeding the legislative policy or making provisions inconsistent with the enactment.72 60. In Agricultural Market Committee v. Shalimar Chemical Works Ltd.,73 the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act 1966 allowed the market committee to levy market fees on all transactions of purchase and sale provided the transactions took place within the notified market area. Section 12 created a legal fiction by providing that if any notified agricultural produce, livestock, or products of livestock is taken out of a notified market area, it shall be presumed to have been purchased or sold within such area. The market committee framed bylaws providing that the notified agricultural produce, livestock or products of livestock shall be dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power delegated under the Act, and if it does any of the above, the rule becomes ultra vires the Act." 63. In Assam Co. Ltd. (supra), it was observed that enactment empowered the State Government to make such rules as were necessary for carrying out the purposes of the enactment. It was further observed that the object and the scheme of the enactment did not empower the State authorities to recompute agricultural income contrary to the computation made by the Central officers. It was held that the rule framed by the State government was ultra vires because it enlarged the scope of the enactment. 64. In Consumer Online Foundation and Others v. Union of India,75 this Court was dealing with the validity of the levy of development fees on embarking passengers by the lessees of the Airports Authority of India76 at the international airports in New Delhi and Mumbai. The unamended Section 22A of the Airports Authority of India Act 199477 empowered the AAI, after the previous approval of the Central Government, to levy development fees on embarking passengers "at the rate as may be prescribed." A two-Judge Bench of this Court held that the development fee was in the nature of a cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pees seven hundred fifty for advocates belonging to the general category and Rupees one hundred twenty-five for advocates belonging to the SC and ST category. The SBCs cannot charge "enrolment fees" beyond the express legal stipulation under Section 24(1)(f) as it currently stands. Therefore, prescribing enrolment fees beyond Rupees seven hundred for general candidates and Rupees one hundred twenty-five for SC and ST candidates is contrary to Section 24(1)(f). The subject matter of enrolment fee is covered by the Advocates Act. Therefore, the SBCs, being delegated authorities, do not have any legislative powers to prescribe enrolment fees contrary to the statutory stipulation. 69. As discussed in the above segments of this judgment, the legislature prescribed the enrolment fee under Section 24(1)(f) to cover "all functions" carried out by the SBCs and the BCI under the Advocates Act. The legislative history suggests that the legislature was averse to imposing any charges other than enrolment fees at the time of enrolment. This was in furtherance of the legislative object to foster an inclusive Bar. However, the SBCs are imposing miscellaneous fees and charges in the guise of an en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he resolution dated 26 June 2013 is devoid of legal authority and contrary to Section 24(1)(f) of the Advocates Act. G. All fees charged at the time of enrolment are 'enrolment fees' 72. In this batch of matters, we have transferred to this Court similar petitions pending before the Kerala High Court. In T Koshy v. Bar Council of Kerala,80 the SBC was charging special fees for enrolment from candidates who had retired from government service. A Single Judge of the Kerala High Court observed that the special fees were charged in addition to the enrolment fees and other miscellaneous charges such as application form fee, registration fee, enrolment certificate fee, and verification fee. The vires of the miscellaneous fees was not challenged before the High Court. The High Court construed the special fee charged by the SBC as an enrolment fee and held that the amount charged by the SBC was over and above the enrolment fee stipulated by Section 24(1)(f). In appeal, the Division Bench of the High Court upheld the judgment of the Single Judge by holding that Section 28(2)(d) did not empower the SBC "to prescribe any fee for enrolment, either in the form of enrolment fee or special fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y/10th examination. (b) Certificate of concerned Board for Senior Secondary or intermediate examination. (c) Certificate of graduation, if any or/and the LLB degree or the provisional certificates of these Degrees granted by the University as well as the mark-sheets of all the three or five year of LL.B. examinations. The office of State Bar Councils shall charge a sum of Rs. 2500/- for verification of the said certificates from the candidates at the time of submission of the enrolment forms only." 77. In view of the BCI resolution, many SBCs increased the verification fees charged by them. Currently, the SBCs charge various fees such as verification fees, application fees, registration fees, and identity card fees at the time of enrolment. The SBCs charge these fees as concomitant to the process of enrolment. For instance, a verification fee is charged for the verification of academic qualification certificates of the candidates. The verification fee is collected from the candidates "at the time of submission of enrolment forms." These additional fees are in furtherance of the process of enrolment of advocates and are encompassed within the meaning of the phrase "in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vels. It was further observed: "172. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. The disadvantage must be addressed not by treating a woman as "weak" but by construing her entitlement to an equal citizenship. The former legitimises patronising attitudes towards women. The latter links true equality to the realisation of dignity. The focus of such an approach is not simply on equal treatment under the law, but rather on the real impact of the legislation. Thus, Section 497 has to be examined in the light of existing social structures which enforce the position of a woman as an unequal participant in a marriage." 82. In Navtej Singh Johar v. Union of India,88 a Constitution Bench held that Section 377 undermined substantive equality because it created barriers, systemic and deliberate, for the effective participation of the members of the LGBTIQ+ community in the workforce. 83. In Bonnie Foi Law College (supra), a Constitution Bench of this Court recognized the effect of the exorbitant enrolment fees charged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of time and struggle through greater hardships. Despite being extremely talented, a number of young lawyers hardly get proper opportunity or exposure in their profession. New entrants to the profession in the initial stages of the profession suffer with the meagre stipend which young lawyers may receive during their initial years, coupled with the absence of a legislation concerning this, they struggle to manage their food, lodging, transportation and other needs. Despite their valiant efforts, they are unable to march ahead in their profession. It is only after years of hardwork and slogging that some of the fortunate lawyers are able to make a name for themselves and achieve success in the profession. For the majority of the legal fraternity, everyday is a challenge. Despite the difficult times, the lawyer who sets up practice straight after enrolment, struggles to settle down ... in the profession. Some of the lawyers remain struggling throughout their lives yet choose to remain in the profession. It is something like "riding a bicycle uphill with the wind against one". ( emphasis added ) 86. Young law graduates who start litigating right after graduation earn anywhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities. On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advice on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as "merit" reproducing and reaffirming social hierarchies." (emphasis added) 88. Social capital and networks play an important role in the Indian legal setup in advancing legal careers. Most litigation chambers hire advocates through networks and community linkages. The structure of the Indian legal system is such that social capital and networks also play an important role in getting clients. The lack of social capital and network is acutely felt by advocates from marginalized communities.94 The marginalized sections of our society fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates systemic discrimination against persons from marginalized and economically weaker sections by undermining their equal participation in the legal profession. Therefore, the current enrolment fee structure charged by the SBCs is contrary to the principle of substantive equality. 91. In Ravinder Kumar Dhariwal v. Union of India,98 a three-Judge Bench of this Court held that substantive equality is aimed at producing equality of outcomes through different modes of affirmative action. The purpose of the Advocates Act of creating an inclusive Bar cannot be defeated by having exclusionary conditions which seek to create social and economic barriers. The Bar Councils have a responsibility in the public interest to ensure greater representation of persons from marginalized communities in the legal profession. 92. The decision of the SBCs to charge exorbitant fees also suffers from the vice of manifest arbitrariness. In Khoday Distilleries Ltd v. State of Karnataka,99 this Court laid down the following principles for challenging delegated legislation: (i) the test of arbitrary action which applies to executive actions does not necessarily apply to delegated legislation; (ii) a delegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision allows the State to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. Thus, the right to practice law is not only a statutory right but also a fundamental right protected under Article 19(1)(g).104 However, the right of citizens to practice law can be regulated and is not absolute.105 Under the Advocates Act, only those advocates who are admitted on the State roll have a right to practice throughout the territory of India.106 96. In Chintamanrao v. State of Madhya Pradesh,107 a Constitution Bench explained the purpose of the expression "reasonable restrictions" thus: "8. The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carry on his occupation, trade or business under Article 19(1)(g) and such infringement can properly be made the subject-matter of a challenge under Article 32 of the Constitution." 99. In Mohammad Yasin (supra), the United Provinces Town Areas Act 1914 empowered the Town Area Committee to charge fees for the use or occupation of any immoveable property vested in or entrusted to the management of the Town Area Committee, including any public street or place. It was held that this power did not include the power to levy licence fees on a person intending to sell in wholesale at any place in the town area. Therefore, it was held that the licence fee imposed by the Town Area Committee was ultra vires the 1914 Act: "20. In our opinion, the bye-laws which impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye-laws cannot be said to constitute a valid law which alone may, under Article 19(6) of the Constitution, im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excessive financial burdens on young law graduates at the time of enrolment causes economic hardships, especially for those belonging to the marginalized and economically weaker sections of the society. Therefore, the current enrolment fee structure charged by the SBCs is unreasonable and infringes Article 19(1)(g). H. Financial implications for the SBCs and the BCI 103. As discussed in the above segments of this judgment, we are cognizant of the fact that the SBCs and the BCI depend entirely on the amount collected from candidates at the time of enrolment for performing their functions under the Advocates Act, including payment of salaries to their staff. According to the legislative scheme of the Advocates Act, the Bar Councils must only charge the amount stipulated under Section 24(1)(f) as an enrolment fee. Instead of devising ways and means to charge fees from enrolled advocates for rendering services, the SBCs and the BCI have been forcing young law graduates to cough up exorbitant amounts of money as a pre-condition for enrolment. 104. Once the advocates are enrolled on the State rolls, the Bar Councils can charge fees for the services provided to the advocates in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. 108. The result of this decision would have entitled advocates who have paid the excess enrolment fee to a refund from the SBCs.115 The SBCs have been levying the enrolment fees for a considerable duration and utilizing the collected amounts to carry out their day-to-day functioning. Therefore, we declare that this judgment will have prospective effect. Resultantly, the SBCs are not required to refund the excess enrolment fees collected before the date of this judgment. I. Conclusions 109. In view of the above discussion, we conclude that: a. The SBCs cannot charge "enrolment fees" beyond the express legal stipulation under Section 24(1)(f) as it currently stands; b. Section 24(1)(f) specifically lays down the fiscal pre-conditions subject to which an advocate can be enrolled on State rolls. The SBCs and the BCI cannot demand payment of fees other than the stipulated enrolment fee and stamp duty, if any, as a pre-condition to enrolment; c. The decision of the SBCs to charge fees and charges at the time of enrolment in excess of the legal stipulation under Section 24(1)(f) violates Article 14 and Article 19(1)(g) of the Constitution; and d. This decision will have pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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]; (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 University in India on the date on which the results of the examination for that degree are published by the University on its notice-board or otherwise declaring him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, Lok Sabha (26 November 1992) 451. [The minister stated: "The Bar Council of India and the State Bar Councils represented that the expenses involved in the administration of the Bar Council of India and the State Bar Councils are growing every year and that it has become necessary to revise the enrolment fee upwards from Rs. 250/- to Rs. 750/- without disturbing the fee payable in case of persons belonging to Scheduled Castes and Scheduled Tribes."] 24 Bar Council of Maharashtra v. Union of India, 2002 SCC OnLine Bom 251 [3] 25 1968 SCC OnLine SC 3 26 Entry 77, List I, Seventh Schedule, Constitution of India. [It reads: 77. Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practice before the Supreme Court"] 27 Entry 78, List I, Seventh Schedule, Constitution of India. [It reads: 78. Constitution and organization (including vacations) of the High Court except provisions as to officers and servants of High Court; persons entitled to practice before High Courts.] 28 O N Mohindroo (supra) [9]; Bar Council of U P v. State of U P, (1973) 1 SCC 261 [11] 29 (1973 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax."]; Indian Mica Micanite Industries v. State of Bihar, (1971) 2 SCC 236 [15]. 50 Kewal Krishan Puri v. State of Punjab, (1980) 1 SCC 416 [23]; Sreenivasa General Traders v. State of A P, (1983) 4 SCC 353 [31]. 51 1964 SCC OnLine SC 65 [8] 52 George Walkem Shannon v. Lower Mainland Dairy Products Board, 1938 AC 708. 53 (1999) 2 SCC 274 [9] 54 Vam Organic Chemicals Ltd v. State of U P, (1997) 2 SCC 715 [18]; A P Paper Mills Ltd. v. Government of A P, (2000) 8 SCC 167 [24]. 55 Indian Mica Micanite Industries v. State of Bihar, (1971) 2 SCC 236 [14] 56 Resolution No. 32 of 2013, Gazette Notification dated 28 June 2013. 57 BCI. D 7114/2016(C1) dated 22 December 2016 58 In Re Sanjiv Dutta, Deputy Secretary, Ministry of Information and Broadcasting, (1995) 3 SCC 619 [20]; Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, (2017) 5 SCC 465 [39] 59 Section 30, Advocates Act 60 Gupta Modern Breweries v. State of Jammu and Kashmir, (2007) 6 SCC 317 [20] 61 (2011) 9 SCC 573 62 (1980) 4 SCC 211 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 20% has to be transferred to the Bar Council of India. The Bar Council of India and State Bar Council have to keep the same in a fixed deposit and the interest on the said deposits shall alone be utilized for the Welfare of the Advocates"44. Explanation 1.-Statement of particulars as required by Rule 40 in the form set out shall require to be submitted only once in three years. Explanation 2.-The Advocates who are in actual practise and are not drawing salary or not in full time service and not drawing salary from their respective employers are only required to pay the amount referred to in this rule. Explanation 3.-This rule will be effective from 1-10-2006 and for period prior to this, advocates will continue to be covered by old rule."] 86 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 [409] 87 (2019) 3 SCC 39 [171] 88 (2018) 10 SCC 1 [453] 89 See Nitisha v. Union of India, (2021) 15 SCC 125 [77] 90 Rule 25, Part IV of the Rules of Legal Education 2008, BCI mandates law students to complete an internship under an advocate for a minimum of 12 weeks for the three year law course and twenty weeks for the five year law course. 91 (2014) 16 SCC 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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