A INDIAN COUNCIL OF LEQAL AID AND ADVICE, ETC. ETC.

v.

BAR COUNCIL OF INDIA AND ANR.

JANUARY 17, 1995

B (AM. AHMADI, CJ, S. MOHAN AND K.S. PARIPOORNAN, JJ.)

Advocate Act, 1961-Sections 24 & 49(1)-Bar Council of India

Rules-Rule 9-Validity of-Enrolment

as an advocate-Entry of persons who

complete

age of 45 years barred-Whether Rule 9 is

valid-Held, Ncr-Rule

C strnck down as ultra vires the Act-Rule is discriminatory.

D

Constitution of India-Art. 14--Bar Council of India Rules-Rule

9-Validity of-Entry of persons who completed the age of 45 years as

advocates barred-Whether Rule 9 is reasonable-Held, Ncr-Rule violates

principle

of equality.

Writ petitions were filed challenging the legality

and validity of Rule

9 added by the

Bar Council of India by resolution No. 64/93 dated 22nd

August,

1993 in Chapter 111 of

Part VI of the Bar Council of India Rules.

The newly added rule barred the entry of persons who had completed the

E age of 45 years on the date of application for enrolment as an advocate

from being enrolled

as such by the concerned State Bar Council. Petitioners challenged the rule as inconsistent with Articles 14, 19(1)(g)

and 21 of the Constitution and section 24 of the Advocates Act:, 1961.

Th~ Bar Council of India contended that it had acted bonafide within

F' the framework of the Act and the Constitution. According to it the right

to practise as

an advocate not being a fundamental right but only a

privilege conferred by the Act could always be withdrawn

and in any case

reasonable restrictions could be imposed.

It was alleged that the restric·

tion imposed by the

newly added rule was to serve a public purpose and

could never be termed

as unreasonable, violative of Article 14 of the

G Constitution. Since the upper age limit had been fixed to save the legal

profession from decay and deterior.ation it could not be said to be incon·

sistent with Articles

21 and 14 of the Constitution. According to the

respondent

Bar Council of India a person who had already spent the best

years of his life

in pursuing some other profession or occupation could not

H be

said to have the correct aptitude of a service oriented professional and

304

..

j1

COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL 305

could not be expected to maintain the high stan~ard of professional A

conduct. It was submitted that persons who retire from various govern· .

ment, semi· government and other institutions when admitted to the legal

profession use their earlier contacts to convass for cases

and such

be·

haviour leaves a lingering effect on the profession. Such persons being not

inspired

by lofty ideals of the profession, their only motive

being· money­

making for which they are prepared to stoop to any level.

B

Allowing the petitions, this Court

HELD : 1.1. Section

24 of the Advocates Act, prescribes the minimum

age for enrolment as

twenty one years complete. There is no provision in C

the Act which can be said to prescribe the maximum age for entry into the

profession. There is no provision empowering the Bar Council of India to

Craine such a rule. [314-H, 316-B]

1.2.

By rule 9 of the Bar Council of India Rules, the entry of those

who have completed 45 years at the date of application for enrolment is D

sought to be barred. The rule operates at the pre-enrolment stage and

cannot, therefore, receive the shelter of clause (ah) of section 49(1) of the

Act.

Under the said clause conditions applicable to an advocate touching

his right to practise can be laid down. But

it does not permit laying down

of conditions for entry into the profession. Therefore, clause (ah) of

E

Section 49(1) of the Act does not empower the

Bar Council of India to

frame a rule barring persons

who have completed 45 years of age from

enrolment

as an advocate. The impugned rule is, therefore, ultra vires the

said provision. [315-F-G]

1.3.

It is within the exclusive domain of the State Bar Council to F

admit persons as advocates on their rolls or to remove their names from

the rolls. There is no provision dealing with admission

and enrolment of

advocates which restricts the entry of those

who ha.ve completed 45 years

as advocates. Nor has any State

Bar Council made aoy such rule. [317-G]

1.4. There is no basis

to accept the interpretation that all those above G

the age group

of 45 years constitute a class within the scope of clause (ag)

of Section 49(1) of the Act to permit the Bar Council of India to debar

their entry into the profession for all times. In the guise of making a rule

the Bar Council of India is virtually introducing an additional clause in

Section

24 of the Act prescribing an upper age ceiling of completed age of H

306 SUPREME COURT REPORTS [1995) 1 S.C.R.

A 45 years or ~s inserting an additional clause in Section 24A of the Act

prescribing a disqualification. Therefore, the impugned rule is beyond the

rule making power of the Bar Council of India and is, therefore, ultra vires

the Act. [318-E-H]

B 1.5. The rationale for the rule stated to be is to maintain the dignity

and purity of the profession by keeping out those who retire from various

government, quasi government

and other institutions since they on being

enrolled as advocates use their

past contacts to canvass for cases and

thereby bring the profession into disrepute

and also

pollute the minds of

C young fresh entrants to the profession. Thus. the object of the rule is clearly

to

shut the doors of the profession for those who seek entry into the

profession after completing the age of

45 years. In the first place, there is

no reliable statistical

or other material placed on record in support of the

inference

that ex-government or quasi-government servants or the like

indulge in undesirable activity of the type mentioned after entering the

D profession. Secondly, the rule does not debar only such persons from entry

into the profession but those

who have completed 45 years of age on the

dale of seeking enrolment. Thirdly those

who were enrolled as advocates

while they were young

and had later taken up some job in any government

or quasi-government or similar institution and had kept the sanad in

E abeyance

are not debarred from reviving their sanads even after they have

completed

45 years of age. There

may· be a large number of persons who

initially entered the profession but later took up jobs or entered any other

gainful occupation

who revert to practise at a later date

eve· after they

have crossed the age of

45 years and under the impugned

ru:.: t.iey are not

debarred from practising. Therefore, in the first place there is no depend·

F able material in support of the rationale on which the rule is foundtc! and

secondly the rule is discriminatory as it debars one group of persons who

have crossed the age of 45 years from enrolment while allowing another .

group to revive and continue practice even after crossing the age of 45

years. The rule, therefore, is clearly discriminatory. Thirdly, it is un-

G reasonable and arbitrary as the choice of the age of 45 years is made

keeping only a certain group in mind ignoring the vast majority of other

persons

who were in the service of government or. quasi-government or

similar institution at any point of time. Thus, the impugned rule violates

the principle of equality enshrined in Article

14 of the Constitution.

H

(319-B-G]

~

I

..

'·

•

COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL (AHMADI, CJ.) 307

CIVIL APPELLATE JURISDICTION : Writ Petition (C) No. 786 A

of 1993 etc. etc.

(Under Article 32 of the Constitution of India.)

V.R. Reddy, Additional Solicitor General, Rajinder Sachar, Soli J.

Sorabjee, G.V. Iyer,

AK. Ganguli,

R.P. Bhatt, V.N. Ganpule, Sanjay B

Parikh, B:P. Singh, R.K. Karanjawala, Manik Karanjawala, Darshana

Bhogilal, Nandini Gore, Ruby Ahuja, D.A. Dave,

N.

Seervai, C.N. Sree

Kumar, C. Ravichandran Iyer, Rani Chhabra, Ms. Kiran Suri, P. Parmes­

waran, R.P. Srivastava, H.A. Raichura, U.A. Rana, Rajiv Tyagi, Anand

Prasad, Mohinder Rupal, for Gagrat & Co., R. Mohan, R. Nedumaran, C

V.G. Pragasam, R.B. Misra, V.B. Joshi and B.P. Singh for the appearing

parties.

The

J udgemnt of the Court was delivered by

.. AHMADI, CJ. The Bar Council of India by Resolution No. 64/93 D

dated 22nd August, 1993 added Rule 9 in Chapter III of Part VI of the

Bar Council of India Rules which resolution

was gazetted on 25th

Septem-

ber, 1993. The said newly added rule reads as under :

"A person who has completed the age of 45 years on the date on E

which he submits his application for his enrolment as an advocate

to the State Bar Council shall not be enrolled as an advocate."

All the State Bar Councils in the country were duly informed about the

insertion of the said rule. The legality and validity of the said rule is

questioned in this batch of petitions as inconsistent with Articles·

14, F

19(1)(g) and 21 of the Constitution and

Section 24 of the Advocates Act,

1961, hereinafter called 'the Act'.

The Act came into force with effect from 19th

May, 1961. The

dictionary of the Act

is to be found in

Section 2, clause (a) whereof defines

an Advocate

as a person entered in any roll under the provisions of the G

Act as such and the term 'roll' according to clause (k) means a roll of

advocates prepared and maintained under the Act.

Section 3 provides that

there shall be a Bar Council for each of the States to be known as the Bar

Council of that State. Section 4 next provides for a Bar Council for the

territories to which the Act extends tp be known as the Bar Council of H

308 SUPREME COURT REPORTS [1995) 1 S.C.R.

A India. The functions of the State bar Council and the Bar Council of India

have been set out

in Sections 6 & 7, respectively. The functions of the State

Bar Council include admission of persons

as advocates on its roll, prepara­

tion and

mainten~e of such roll, safeguarding the rights, pr,ivileges and

interests of advocates

on its roll and to do all things necessary for discharg-

B ing the above functions. The functions of the Bar Council of India include

the laying down of standards of professional conduct and etiquette for

advocates and for safeguarding their rights, privileges and interests. Chap­

ter III which deals with 'Admission and Enrollment of Advocates' com­

prises of Sections

16 to 28. Section 16 provides that there shall be two

classes of advocates, senior advocates and other advocates;

Section 17 sets

C out how every State Bar Councils shall p~epare and maintain a roll of

advocates; Section 18 deJls with the transfer of name of an advocate from

one State roll to another; Section

19 enjoins upon every State Bar Council

to send a copy of the roll of advocates to the Bar Council of India; Section 20 makes special provision for enrolment of every advocate who was

D entitled to practice in the Supreme Court immediately before the appoint­

ment day in the roll of a State Bar Council; Section 21 relates to the fixation

of seniority; Section

22 provides for issuance of certificate of enrolment

and Section

23 confers the right of pre-audience on the Attorney General

of India, the Solicitor General of India, the Additional Solicitor General

of India, etc. Section

24 to the extent it is relevant for our purpose provides

E

·as under:

F

G

"24. Persons who may be admitted as advocates on a State roll -

(1) Subject to the provisions of this Act, and the rules made

thereunder, a person shall be qualified to be admitted

as an

advocate on a State roll,

if he fulfills the following conditions,

namely:-

(a) he

is a citizen of India;

(b) he has completed the age of

twenty-one years; and

(c) he has obtained a degree in

law. Section 24A provides that no person shall be admitted as an advocate on

a State roll, for the period indicated in the proviso, if he is convicted of

H an offence involving moral turpitude, or if he is convicted of an offence

>·

'Y

,..

I=

f

l

!"'

!-

I

I

I

\...

I

i-,

"

'

' r-

.

<

....

COUNCILOFLEGALAIDANDADVICEv. BARCOUNCIL[AHMADL O.j 309

under the provisio~s of Ontouchability (Offences) Act, 1955 or if he is A

dismissed or removed from employment or office under the State on any

charge involving moral turpitude; Section

25 indicates the authority to

whom applications for enrolment may be made; Section

26 provides for the

disposal of such applications; Section

26A confers powers on the State Bar

Council to remove any name from its roll; Section

27 provides that where

B

a State Bar. Council has refused the application of any person for admission

as an advocate,

no other State Bar Council shall entertain his/her applica-

tion for admission on its roll except with the previous consent of the former

and of the Bar Council of India and Section

28 confers power on a State

Bar Council to make rules to carry out the purposes of the Chapter which

may in particular,

inter alia, provide for the conditions subject to which a

person

may be admitted as an advocate on its roll. Chapter IV deals with

the 'Right to

Practise'. Section 29 says that subject to the provisions of the

Act and any rule made thereunder there shall, as from the appointed day,

c

be only one class of persons entitled to practise the profession of law,

namely, advocates. According to Section

30 every advocate whose name is D

entered in the State roll shall be entitled as of right to practise throughout

the territories to which the Act extends in all courts including the Supreme

Court of India, before any Tribunal or person legally authorised to take

evidence and before any authority or person before whom such advocate

is, by or under any law for the time being in force, entitled to practise.

Section

33 further provides that no person shall, on or after the appointed

day, be entitled to practise in any court or before any authority or person

unless he

is enrolled as an advocate under the Act. Chapter

V deals with

'Conduct of Advocates'. Under Section 35 where on receipt of a complaint

or otherwise a State Bar Council has reason to believe that any advocate

E

F

on its roll has been guilty of professional or other misconduct it shall refer

the case for disposal to its disciplinary committee. Section 37 provides for

an appeal to the bar Council of India against an order made by the

disciplinary committee of a State Bar Council. Section 36 provides that

where on receipt of a complaint or otherwise, the Bar Council of India has

reason to believe that any advocate whose name

is not entered on any

State

roll has been guilty of professional or other misconduct, it shall ref er the G

case to the disciplinary committee. Any person aggrieved by an order made

by the disciplinary committee of the Bar Council of India under Section

36

or 37 may prefer an appeal to the Supreme Court of India under Section

38 of the Act. The powers of the disciplinary committee have been

H

310 SUPREME COURT REPORTS

/

(1995U,-S.C.R.

A enumerated in Section 42. Chapter VI deals with 'Miscellaneous' matters.

We are concerned with Section 49 which empowers the Bar Council of

India to make rules for discharging its functions under the Act. Clauses

(ag) and (ah) of sub-section (1) of Section

49

il!ler alia, empower the Bar

Council of India to make rules (i) prescribing the class or category of

B persons entitled to be enrolled as advocates and (ii) laying down the

conditions subject to which an advocate shall have the right

to practise and

the circumstances under which a person shall be deemed to practise

as an

advocate in a court. These, in brief, are the relevant provisions of the Act

which have a bearing on the question of legality and validity of the newly

added rule 9 in Chapter III of

Part VI of the Rules.

c

It will be seen from the above provision!> that unless a person is

enrolled as an advocate by a State Bar Council, he shall have no right to

practise in a court of law or before any other Tribunal or authority. Once

a person fulfills the requirements of Section

24 for enrolment, he becomes

D entitled to be enrolled as an advocate and on such enrolment he acquires

a right to practise

as stated above. Having thus acquired a right to practise

he incurs certain obligations in regard to his conduct

as a member of the

noble profession. The Bar Councils are enjoined with the duty to act as

sentinels of professional conduct and must ensure that the dignity and

purity of the profession are in no

way undermined. Its job is to uphold the

E standards of professional conduct and etiquette. Thus

. every State Bar

Council and the Bar Council of India has a public duty to perform, namely,

to ensure that the monopoly of practice granted under the Act

is not

misused or abused by a person

who is enrolled as an advocate. The Bar

Councils have been created at the

State level as well as the Central level

F not only to protect the rights, interests and privileges of its members but

also to protect the litigating public

by ensuring that high and noble tradi-

_

tions are maintained so that the purity and dignity of the. profession are

not jeopardized. It is generally believed that members of the legal profes­

sion have certain social obligatiqns, e.g., to render 'pro bono publico'

service to the poor and the under-privileged. Since the duty of a lawyer is

G to assist the court in the administration of justice, the practice of law has

a public utility flavour and, therefore, he must strictly and scrupulously ·

abide by the Code of Conduct behaving the noble profession and must not

indulge in any activity which may tend to lower the image of the profession

in society. That

is why the functions of the Bar Council include the laying

H down

of standards of professional conduct and etiquette which advocates

l

-{

COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL (AHMADI, CJ.) 311

must follow to maintain the dignity and purity of the profession._ A

In the above background it was contended on behalf of the-Bar

Council of India that the need to uphold standards of professional conduct

and etiquette cannot

be

over~emphasised. The Act, besides highlighting the

essential functions of the Bar Council of India

in this behalf, provides for

B

the enforcement of the same and sets up disciplihary authorities to chastise

and, if necessary, punish members of the profession for misconduct. The

punishment

may include suspension from practice as well as removal of

the name from the roll of advocates. Section 49(1) confers power on the

Bar Council of India to make rules,

illter alia, for discharging its functions

under the Act. Section 49(1)(ag) when read with Section

24 of the Act c

confers wide powers on the Bar Council of India to indicate the class or catt<gorx of persons who may be enrolled as advocates which power would

include the power to refuse enrolment in certain circumstances. The

obligation to maintain the dignity and purity of the profession and to punish

erring members carries with it the power to regulate entry into the profes-

D

..; sion with a view to ensuring that only profession-oriented and service-

oriented people join the Bar and those not

so oriented are kept out.

Counsel submitted that a person

who has already spent the best years of

his life in pursuing some other profession or occupation cannot be said to

have the correct attitude of a service-oriented professional and cannot

be

E

expected to maintain the high standards of professional conduct. Accord-

ing to the respondent-Bar Council of India persons

who retire from various

government, quasi-government and other institutions when admitted to the

legal profession use their earlie~ contacts to convass for cases; a conduct

which brings ·down the standard of professional ethics expected to be

* maintained by a member of the profession and that has a very adverse F

influence on the minds of young fresh entrants to the profession. It is no

answer to state that disciplinary action can be taken against those who

deviate from the standard of conduct expected of a member of the Bar

because all cases of infraction of the Code of Conduct do not come to the

notice of the Bar Council and behaviour· leaves a lingering effect on the

G •

profession. It is in order to uphold the high standards of professional

morality and integrity that the Bar Council of India was compelled to enact

. J'

'

a rule restricting the entry into the legal profession by prescribing the age

limit of

45 years. The Bar Council of India contends that it has acted bona

fide

within the framework of the Act and the Constitution. According to it

the right to practise as an advocate not being a fundamental right but only

H

'

A

B

-c

D

E

F

312

SUPREME COURT REPORTS [1995) 1 S.C.R.

a privilege conferred by .the Act can always be withdrawn and in any case

reasonable restrictions can be imposed

even if it were a fundamental right

under Article 19(1)(g) of the Constitution. The restriction imposed

by the

newly added rule

is to serve a public purpose and can never

b~ termed as

unreasonable, violative of Article 14 of the Constitution. Since the upper

age limit has been

fixed to save the legal profession from decay and

deterioration it

is, contends the Bar Council, difficult to comprehend how

it can be said to be inconsistent with Article

.21 and for that matter Article

14 of the Constitution. The prescription of the higher

·age limit does not

violate Section 24 of the Act and since Section 49 permits classification and

categorization which even Article

14

per~its, the newly added rule is

clearly intravires the Act and the Constitution. That, in brief, is the defence

set up

by the Bar Council of India in support of the rule impugned before

us. I ,,,

It is cleW'"ffrom the above averments found in the counter filed on

behalf of the711~'touncil of India that the rationale is that the profession

of law being: a pi6'us and honourable profession, its main object being

service of mah~ind by serving the system of administration of justice, it is

the pious duty of thetBar Council to protect its public image by restricting

the inflow of a large number of retired personnel who seek to enter a legal

profession

solelY. for additional gains.

Such persons are not inspired by

loftly ideals of the profession but their only motive

is money-making for

which they are prepared to stoop to

any levels which has a very negdiive

influence on young minds who join the profession after graduation. Can

the restriction imposed on

t-his rationale be sustained? That is the short

question.

We have briefly noticed the relevant provisions of the Act in the

earlier part of this judgment. We

may now briefly indicate the scheme.

Before

we do so it may not be out of place to mention that the profession

of

law is one of the oldest professions and was practised in one form or

G the other in the lioary past. After the advent of the British in India, certain

rules in regard to the practise of law were introduced. Before

inde­

pendence there were Mukhtars and Vakils who were permitted to practise

law in moffusil courts even though not

all of

them· were Law graduates.

However, slowly and gradually they were allowed to wither

away and their

H place was taken 'by

Pleaders who were, after securing a degree in law,

·r

y

*

.,....

""

COUNCILOFLEGALAIDANDADVICEv. BARCOUNCIL[AHMADI, CJ.) 313

permitted to practise at the district level. Thos~ who were enrolled as A

advocates could practice in any court ·subordinate to the High Court

including the High Court. The difference between a Pleader and an advo-

cate

was merely on account of the fee charged for enrolment. After

independence, came the Act which

was enacted 'to amend and consolidate

· the law relating to legal practitioners and to provide for the constitution of B

Bar Councils and an all-India Bar'. The Act creates an all-India Bar with

only one class of legal practitioners, namely, advocates, who of course are

classified as senior advocates and other advocates (Section 16). The

general superintendence of ethics and etiquette of the· profession is the

responsibility

of the Bar Councils created under the Act and they have C

been charged with the duty to punish their members for misconduct. The

I .

Act envisages the existence of a Bar Council for every State. The funcion

of admission of persons as advocates is entrusted to every State Bar

Council which is required to prepare and maintain a roll for that purpose.

While disciplinary jurisdiction

is conferred on the State Bar Councils to D

punish its members for misconduct, it is at the same time charged with the

duty to safeguard their rights, privileges and interest. They must perform

all the functions conferred-on them by or under the Act and do everything

that is necessary to discharge the functions set out in Section

6. So far as

the Bar Council of India

is concerned, its functions are of a more general E

nature, e.g., to lay down standards of professional conduct and etiquette

for advocates, to safeguard their rights; privilege~ and interests, to super-

vise and control the working of the State Bar Council, to promote legal

education, to recognise universities, to organise -~egal aid to the poor and

F

to perform all other functions conferred by or under the Act and do

everything that may necessary to discharge the functions enumerated in

Section

7. Besides the above it too is required to exercise discipline and

control over the members of the profession. Thus the functions are divided

between the State Bar Councils and the Bar Council of India, although for

obvious reasons overlaps are unavoidable. The rule making power has been

G

conferred on the State Bar Councils under Sections 15 and 28 and on the

Bar Council of India under Section

49 of the Act.

The power conferred by Section

15 is to make rules providing for the

elections of the members of the Bar Council, its Chairman and Vice-Chair-

man and matters incidental thereto. These rules shall not have effect unless

H

·

314 SUPREME COURT REPORTS [1995] 1 S.C.R.

A approved_ by the Bar Council of India. We are not concerned with the rule

making power under this provision. Section 28 empowers the State Bar

Council to make rules

which may, inter alia, provide for the form in which

an advocate must express his intention for entry of his name in the roll of

a

State Bar Council, the form in which an application must be made for

B admission as an advocate on its roll and the conditions subject to which a

person may be admitted

as an advocate on any such roll. These rules also

must be approved

by the Bar Council of India before they come into force.

We have already indicated earlier the matters in regard to which the Bar

Council of India may

fl!.ake rules for discharging its functions under the

Act. Besides the State Bar Councils and the Bar Council of India Section

C 34 confers power on the High Courts to make rules laying down the

conditions subj~ct to which an advocate may be permitted to practise in

the High Court and courts subordinate thereto. Power is also conferred on

the Central Government

by

Section 49-A to make rules by notification in

the Official Gazette for carrying out the purposes of the Act including rules

D with respect to any matter for which the Bar Council of India or a State

Bar Council has power to make rules. Thus the rule making power of the

Central Government

is wide enough to embrace matters for which the Bar

Council of India or a

State Bar Council has power to make rules. These

rules

may, inter alia, lay down the qualifications and disqualifications for

membership of a Bar Council, the manner in which the Bar Council of

E India must exercise supervision and control over

State Bar Councils, the

class or category of persons entitled to be enrolled

as

advocates under the

·Act, the category of persons who may be exempted for undergoing a course

of training and passing an examination prescribed under Section 24(1)(d),

the manner in which seniority among advocates

may be determined, the

F procedure to be followed by the disciplinary committee of the Bar Council

for hearing cases and

any other matter which may be prescribed. These, in

brief, are the rule making powers conferred on various agencies under the

Act.

The

newly added rule seeks to bar the entry of persons who have

G . completed the age of 45 years on the date of application for enrolment as

an advocate from being enrolled

as such by the concerned

State Bar

Council. While Section 24 of the Act prescribes the minimum age for

enrolment

as twenty-one years complete, there is no provision

in the Act

which can be said to prescribe the maximum

age for entry into the

H profession.

Since the Act is silent on this point the Bar Council of India

'r·

-

COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL (AHMADI, CJ.) 315

was required to resort to its rule ~aking power. The rules made by the Bar A

Council of India under Section 49(1) of the Act are in seven parts, each ·

'IF part having its own chapters. Part VI is entitled 'Rules Governing

Advocates' and the said part has· three chapters. Chapter I sets out the

restrictions on senior advocates and is relatable to Section 16(3) and

49(1)(g) of the Act, Chapter II

lays down the standards of professional B

conduct and etiquette and is relatable to

Section 49(1)(c) .read with the

proviso thereto and chapter III deals with 'Conditions for right to practice~

and is stated to be made in exercise of power under clause (ah) of

sub-section

(1) of

Section 49 of the Act. That clause reads as under :

"(ah) -the conditions subject to which an advocate shall have the C

right to practise and the circumstances under which a person shall

be deemed to practise

as an advocate in a

court;"

On the plain language of the said clause it seems clear to us that under the

said provision the Bar Council of India can

lay down the 'conditions' D

subject to which 'an advocate' shall have the right to practise. These

conditions which the Bar Council of India can lay down are applicable to

an advocate, i.e., a person

who has already been enrolled as an advocate

by the concerned

State Bar Council. The conditions which can be

prescribed must apply at the post-enrolment stage since they are expected E

to relate to the right to practise. They_ can, therefore, not operate at the

pre-enrolment stage.

By the impugned rule, the entry of those who have

completed

45 years at the date of application for enrolment is sought to

be

barred. The rule clearly operates at the pre-enrolment stage and cannot,

therefore, receive the shelter of clause

(ah) of

Section 49(1) of the Act.

Under the said clause conditions applicable to an advocate touching his

right to practise can be laid

down, and if laid down he must exercise his

right subject to those conditions. But the language of the said clause does

F

not permit laying down of conditions for entry into the profession. We have,

therefore, no hesitation in coming to the conclusion

th'at clause (ah) of

Section 49(1) of the Act does not empower the Bar Council of India to G

frame a rule barring persons who have completed 45 years of age from

enrolment

as an advocate. The impugned rule is, therefore, ultra vires the

said provision.

Can the rule be saved under

any other provision of the Act? As H

316 SUPREME COURT REPORTS (1995] 1 S.C.R.

A stated earlier the Act in Section 24(1)(b) provides th~t the person .who

seeks enrolment as an advocate must have completed the age of twenty-one

years. Nowhere does the Act provide the

maximum age beyond which a

person shall not be entitled to enrolment

as an advocate nor does the Act

make

any specific provision empowering the Bar Council of India to frame

B such

a rule. Reliance was, however placed on clause (ag) of Section 49(1)

which reads as under :

"(ag) the class or category of persons entitled to be enrolled

as

advocates."

C Can persons who have completed 45 years of age be said to constitute a

class or category to entitle the Bar Council of India to debar them from

being enrolled

as advocates? Rule 49(1) empowers the Bar Council of

India to make rules for discharging its functions under the

Act and in

particular those enumerated in clauses (a) to

G) thereof. None of the

D functions under Section 7 specifically provides for laying down such a

condition debarring persons of a certain

age group from enrolment as

advocates. The Clause relied upon is couched in positive terms, namely, it

says the rules may prescribe the

class or category of persons who may be

admitted to the legal profession. Therefore, under this rule the class or

category of persons 'entitled to be· enrolled' as advocates may

be

E prescribed. The

r-ule can, therefore, ~ecify the class O£ category of persons

'entitled' to be enrolled

as an advocates, but the rule gives no indication

that it can debar persons belonging to a certain age group from being

enrolled

as advocates. Where a provision is couched in positive language

and

is in the nature of an enabling provision, there is no canon of construc-

F tion which says that by necessary implication the rule making authority can

make a provision disentitling admission or enrolment to the profession.

Such a submission is difficult to countenance.

But the larger question needs to be answered and that

is whether the

said clause applies to persons belonging to a certain age group.

Section

G 28(1)(d) of the Act authorises a State Bar Council to make_rules prescrib­

ing the conditions subject to which a person

may be admitted as an

advocate. The power to specify the class or category of persons entitled to

be enrolled

as advocates is conferred on the Bar Council of India under

Section 49(1)(ag) and on the Central Gove~rull.ent under Section 49A of

H the Act. The role which a State Bar Council has to play under Section. 28

-

COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL (AHMADI, CJ.) 317

is distinct from that the Bar Council of India has to play under Section A

49(l)(ag) of the Act, in that, after the class or category is identified, they·

do not automatically get admitted or enrolled they still have to abide by

the requirements for admission to the State roll. Therefore, apart from a

class or group being declared 'entitled to enrolment', the other conditions

or norms evolved

by the State Bar Council for entry of the individual on B

its role would have to be satisfied.

It seems

Parliament while enacting the Act created agencies at the

State

level as well as at the Central level in the form of

State Bar Councils

and Bar Council of India and invested them with rule making powers on

diverse matters touching the legal profession, presumably because it must

C

have realised that matter pertaining to the profession are best left to

informed bodies comprising of members of the said profession. However,

while doing

so it provided for basic substantive matters, e.g., eligibility

fo~

entry into the profession (Section 24), disqualification for enrolm~nt (Sec-

tion 24A), authority entitled to grant admission (Sections

25 and 26), the D

authority which can remove any name from the roll (Section 26A), etc.,

and placed them within the domain of a State Bar Council. Thus it

is the

State Bar Council which alone must decide on the question of

enrolment

of an applicant on its roll. Under Section 24 a person who is a citizen of

India and possesses a degree in law becomes qualified to be admitted

as E

an advocate if he has completed twenty one years of age, subject of course

to the other provisions of the Act. No doubt he must fulfil the other

conditions specified in the rules made by the State Bar Council (Section

24(1)(e)). Evety person whose

name is entered in the list of advocates has

a right to practise in all courts including the Supreme Court, before any

F

tribunal or other authority. It is, therefore, within the exclusive domain of

the State Bar Councils to admit persons

as advocates on their rolls or to

remove their names from the rolls. There is no provision

in Chapter III

dealing with admission and enrolment of advocates which restricts the

entry of those

who have completed 45

year~ as advocates. Nor has the State

Bar Council made any such rule under its rule making power. G

There is no specific provision in Section 7 of the Act which

enumerates· the functions of the Bar Council of India empowering it to

fix

the maximum age beyond which entry into the profession would be barred.

That

is why reliance is placed on the rule making power of the Bar

Council H

318 SUPREME COURT REPORTS [1995) 1 S.C.R.

A:•·· oi..thu.iia enshrined in Section 49. T~at Section empowers the making of

rule by The Bar Council of India 'for discharging its functions' under the

Act, and,

in particular, such rules may prescribe the class or category of

persons entitled to be enrolled

as advocates. The functions of the Bar

Council of India enumerated

in

Section 7 do not envisage laying down a

B stipulation disqualifying persons otherwise qualified from entering the legal

profession merely because they have completed the age of

45 years.

On the

other hand Section 24A was introduced by Section 19 of Act 60 of 1973

with effect from 31st January, 1974 to disqualify certain persons from

entering the legal profession for a limited period.

By the impugned rule

C every person even if qualified but who has completed 45 years of age is de~rred for all times from enrolment as an advocate. If it had been

. possible to restrict the entry of even those class or category of persons

referred to in Section 24A by a mere rule made by the Bar Council of India,

where

was the need for a statutory amendment? That is presumably

D because matters concerning disqualification even for a limited period was

considered to be falling outside the ken of rule making power, being a

matter of public policy. It

is difficult to accept the interpretation that all

those above the age group of

45 years constitute a class within the scope

of clause (ag) of

Section 49(1) of the Act to permit the Bar Council of

India to debar their entry into the profession for all times. In the guise of

E making a rule the Bar Council of India is virtually introducing an additional

clause in

Section 24 of the Act prescribing an upper age ceiling of com­

pleted age of

45 years beyond which no person shall be eligible for

enrolment

as an advocate or is inserting an additional clause in

Section

24A of the Act prescribing a disqualification. Viewed from either point of

F · view we are clearly of the opinion that the rule making power under clause

(ag) of Section 49(1) of the Act does not confer any such power on the

Bar Council of India. We are unable to subscribe to tht> view that all those

'

who have completed the age of 45 years and are otherwise eligible to be

enrolled

as advocates constitute a class or category which can be dis-

G qualified as a single block from entering the

professioQ. Besides, as stated

above clause (

ag) identification and specification of a class or category of

persons 'entitled' to be enrolled and not 'disentitled' to be enrolled

as

advocates. We, therefore, are of the opinion that the impugned rule is

beyond the rule making power of the Bar Council of India and is, therefore,

H ultra vires the Act.

'r

I

'

COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL (AHMADI. CJ.] 319

The next question is, is the rule reasonble or arbit~ary an<l un-A

reasonable? The rationable for the rule, as stated earlier, is to maintain

the dignity and purity of the profession

by keeping out those who retire

from various government, quasi-government and other institutions since

they on being enrolled as advocates use their past contacts to canvass for

cases and thereby bring the profession into disrepute and also pollute the

B

minds of young fresh entrants to the profession. Thus the object of the

rule

is clearly to shut the doors of the profession for those whc seek entry

into the profession after completing the age of

45 years. In the first place,

there

is no reliable statistical or other material placed on record in

support of the inference that ex-government or quasi-government servants

C

or the like indulge in undesirable activity of the type mentioned after

entering the profession. Secondly, the rule does not debar only such

persons from entry into the profession but those who have completed

45

years of age on the date of seeking enrolmnent. Thirdly those who

were

enrolled as advocates while they were young and had later taken up some D

job in any government or quasi-goverment or similar institution and had

kept the sanad in abeyance are not debarred from reviving their sanads

even after they have completed

45 years of age. There may be a large

number

of persons who initially entered the profession but later took up

jobs or entered any other gainful occupation who revert to practise at a

later date even after they have crossed the age

of 45 years and under the E

impugned rule they are not debarred from practising. Therefore, in

t4e

first place there is no dependable material in support of the rationale on

which the rule is founded and secondly the rule is discriminatory as it

debars one group of persons who have crossed the age

of 45 years from

entrolment while allowing another group to revive and continue

practi~e

even after crossing the age of 45 years. The rule, in our view, therefore,

is clearly discriminatory. Thirdly, it

is

unreasonable and arbitrary as the

choice

of the age of 45 years is made keeping only a certain group in

mind ignoring the vast majority of other persons who were in the service

F

of government or quasi-government or similar institutions at any point of G

time. Thus, in our view the impugned rule violates the principle of

equality enshrined in Article 14 of the Constitution.

In

the view that we take on the aforesaid points we do not consider

it necessary to examine the larger question whether

or not the impugned H

320 SUPREME COURT REPORTS [1995] 1 S.C.R.

A rule violates Article .19(1)(g) of the Constitution. Wei therefore, do not

express

any

view on the said question.

In the result, these petitions succeed. The new rule 9 inserted in

Chapter

m extracted in the opening paragraph

·Of this judgment is struck

down as

ultra vires the Act and opposed to Article 14 of the Constitution.

B The Bar Council of India and the State Bar Councils are directed not to

implement the said rule.

No order as to costs.

A.G. Petitions allowed.

~·

I