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PETITIONER:

V.SUDEER

Vs.

RESPONDENT:

BAR COUNCIL OF INDIA & ANR.

DATE OF JUDGMENT: 15/03/1999

BENCH:

S.B.Majmudar, S.N.Phukan

JUDGMENT:

S.B.Majmudar, J.

Leave granted in the Special Leave Petitions.

These Writ Petitions under Article 32 of the

Constitution of India as well as the two special leave

petitions being S.L.P.(C) Nos.13755 of 1996 and 12989 of

1998 moved by the Bar Council of Maharashtra & Goa and the

Bar Council of India respectively raise a common question

for our consideration, namely, whether the Bar Council of

India Training Rules, 1995 (for short `the Rules) as

amended by the Resolution of the Bar Council of India in its

meeting dated 19th July, 1998 relating to training to

entrants of legal profession are within the competence of

the Bar Council of India or are ultra vires its rule making

powers under the Advocates Act, 1961 (for short `the Act)

and in the alternative whether these Rules are unreasonable

and arbitrary and hence violative of Article 14 of the

Constitution of India.

The writ petitioners, who have successfully completed

their legal education by getting requisite Law degrees from

the Universities concerned have contended before us in these

writ petitions that their right to practise Law as made

available under the relevant provisions of the Act is being

arbitrarily denied by the impugned rules framed by the Bar

Council of India and, therefore, their fundamental right

under Article 19(1)(g) of the Constitution of India is being

violated. That the said Rules do not impose any reasonable

restrictions on the exercise of their fundamental right. It

is also contended that in any case, the Rules are so framed

as to be totally unworkable and are highly unreasonable and

discriminatory in character and hence they offend Article 14

of the Constitution of India also. The civil appeal arising

out of the SLP by the Bar Council of Maharashtra & Goa

brings in challenge the decision of the Bombay High Court

which upheld the impugned rules and dismissed the writ

petition filed by it and that is how the State Bar Council

is before us. Its contention is on the same lines as

canvassed by learned counsel appearing for the writ

petitioners. While civil appeal arising out of SLP (C

)No.12989 of 1998 filed by the Bar Council of India, on the

other hand, brings in challenge the Judgment and Order

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rendered by the learned Single Judge of Punjab & Haryana

High Court, who took the view in favour of the original writ

petitioner - Respondent herein, that the impugned rules

would not apply to the writ petitioner who had obtained his

Law degree in 1981 as the Rules were purely prospective in

character. It is, therefore, obvious that all these matters

raise a common question regarding legality and validity of

the impugned rules. If the Rules are upheld, then only

further question whether they are prospective in nature or

not would survive. This Court has treated the Writ Petition

(Civil) No.398 of 1996 as the leading petition and,

therefore, we shall also refer to the pleadings of the

parties and the relevant documents filed therein in the

latter part of this judgment. By order dated 16th

September, 1997, a three Judge Bench of this Court, presided

over by S.C.Agrawal, J., appointed Shri Joseph Vellapally,

learned senior advocate as amicus curiae to assist the Court

on behalf of the petitioner. All other petitioners in

person were permitted to submit their written submissions

and the oral arguments were permitted to be submitted on

behalf of all of them by learned amicus curiae senior

advocate. We have to place on record our high sense of

appreciation for the pains taken by amicus curiae Senior

Advocate, Shri Joseph Vellapally, who has been good enough

to look into all the relevant aspects of the matter and has

placed his oral and written submissions in this connection.

By order dated 21st February, 1997, another two Judge Bench

of this Court, while treating writ petition (Civil) No.398

of 1996 as a leading petition, directed that other petitions

that are pending in the High Court or which may be filed

thereafter shall remain stayed till further orders of this

Court. The parties have exchanged relevant pleadings which

are all brought on record supported by documents on which

they rely.

It appears that earlier when these group of matters

reached final hearing, in the light of what transpired in

the Court then, a Bench of this Court consisting of

S.C.Agrawal and B.N.Kirpal, JJ. by order dated 30th

September, 1997 adjourned these proceedings to enable the

Bar Council of India to take a fresh decision in the matter

in the light of its decision taken in the earlier meetings

regarding suitable modification of the impugned rules. It

appears that ultimately on 4th August, 1998, before the

Bench of three learned Judges, Shri P.P.Rao, learned senior

counsel, placed a copy of the Resolution of Bar Council of

India whereby the Rules were amended. We have also

mentioned the earlier Resolution by which the impugned rules

were amended. It is thereafter that these group of matters

reached for final hearing before us. We, therefore, have to

examine the legality and validity of the impugned rules as

amended by the Resolution of the Bar Council of India dated

19th July, 1998.

Rival Contentions: We may briefly mention the rival

contentions submitted for our consideration by learned

counsel Shri N.N.Keshwani, who appeared in support of Writ

Petition No.425 of 1998, as well as learned amicus curiae

Shri Joseph Vellapally on behalf of other writ petitioners

and Shri P.P.Rao, learned senior counsel for the Bar Council

of India, which is the author of the impugned rules in

support of their respective cases.

Learned counsel for the petitioners submitted, tracing

the history of the relevant provisions of the Act and the

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Rules, that there is no power with the Bar Council of India

to frame the impugned rules. That Section 7 of the Act lays

down the statutory functions of the Bar Council of India.

The provisions thereof do not entitle the Bar Council of

India to frame such impugned rules prescribing a

pre-condition before enrolment of an applicant as an

advocate under the Act by requiring him to undergo

pre-enrolment training and apprenticeship as laid down under

the impugned rules. It was also submitted that Section 24

sub-section (3)(d) of the Act also was not available to the

Bar Council of India to frame such Rules. As a sequel, it

was submitted that rule making power of the Bar Council of

India as laid down by Section 49 could not be pressed in

service by it in support of the impugned rules.

On the other hand, learned counsel in writ petition

No.425 of 1998, submitted that even assuming that the

impugned rules fall within the rule making power of the Bar

Council of India, the Rules framed are so obnoxious,

arbitrary, unreasonable and unworkable that they violate the

fundamental right of the petitioners under Article 14 of the

Constitution of India in any case. The appeal arising from

SLP No.12989 of 1998 filed by the Bar Council of India,

raising the question of retrospective effect of the Rules in

question projected an additional contention, which may not

survive if the Rules are held to be ultra vires the rule

making power of the Bar Council of India. In support of the

contentions raised on behalf of the petitioners by the

learned counsel, reliance was placed on a three Judge Bench

judgment of this Court in Indian Council of Legal Aid &

Advice & Ors. vs. Bar Council of India & Anr., 1995 (1)

SCC 732, while Shri Rao, learned senior counsel for the Bar

Council of India, submitted on the other hand, that the said

decision while interpreting the provisions of Section

49(1)(ah) of the Act was rendered per incuriam as it had not

noticed the decision of the Constitution Bench of this Court

in re: Lily Isabel Thomas, 1964 (6) SCR 229, as well as the

express provisions of Section 24(3)(d) of the Act. Mr. Rao

submitted that the impugned rules were legal and valid and

were properly framed under Section 7 read with Section

24(3)(d) and Section 49(1) and (2) of the Act. In the light

of the aforesaid rival contentions, the following points

arise for our consideration :

1. Whether the impugned rules are ultra vires the

rule making power of the Bar Council of India as available

to it under the provisions of the Act. 2. If the aforesaid

question is answered in negative and in favour of the Bar

Council of India, whether the impugned rules are arbitrary

and unreasonable so as to violate the guarantee of Article

14 of the Constitution of India; 3. If the impugned rules

are legal and valid, whether the respondent in Bar Council

of Indias appeal, who has got his Law degree prior to the

coming into force of these Rules, can be required to comply

with these Rules if he applies for being enrolled as an

advocate under the Act after the Rules came into force;

and 4. What final order? We shall deal with these points

seriatim. Point No.1: In order to appreciate the rival

contentions centering round this point, it will be necessary

to have a peep into the historical background of the Act

which came into force years back in 1961 and also have a

birds eye view of the subsequent amendments thereto spread

over number of years during its currency till date. It will

also be necessary to keep in view the salient features of

the relevant provisions of the Act. The Act seeks to amend

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and consolidate the law relating to legal practitioners and

to provide for the constitution of Bar Councils and an

All-India Bar. A Bill was introduced in the Parliament

seeking to implement the recommendations of the All-India

Bar Committee made in 1953 after taking into account the

recommendations of the Law Commission on the subject of

Reform of Judicial Administration in so far as the

recommendations related to the Bar and to Legal Education.

The main features of the Bill were as under :-

(1) the establishment of an All-India Bar Council and

a common roll of advocates, an advocate on the common roll

having a right to practise in any part of the country and in

any Court, including the Supreme Court; (2) the integration

of the bar into a single class of legal practitioners known

as advocates; (3) the prescription of a uniform

qualification for the admission of persons to be advocates;

(4) the division of advocates into senior advocates and

other advocates based on merit; (5) the creation of

autonomous Bar Councils, one for the whole of India and one

(sic) for each State.

Section 2, sub-section (1) clause (a) of the Act

defines, amongst others, an advocate to mean an advocate

entered in any roll under the provisions of this Act.

Section 2, sub-section (1) clause (d) defines Bar Council

to mean a Bar Council constituted under this Act. While

as per clause (e) Bar Council of India means the Bar

Council constituted under Section 4 for the territories to

which this Act extends. Law graduate is defined by

clause (h) to mean a person who has obtained a bachelors

degree in Law from any University established by Law in

India; and a legal practitioner in clause (i) to mean an

advocate [or vakil] of any High Court, a pleader, mukhtar or

revenue agent;. The term roll is defined in clause (k)

to mean a roll of advocates prepared and maintained under

this Act;. The State Bar Council is defined in clause

(m) as a Bar Council constituted under Section 3; and

State roll is defined in clause (n) as a roll of

advocates prepared and maintained by a State Bar Council

under Section 17. When we turn to Section 17, we find that

it is in Chapter III of the Act dealing with admission and

enrolment of advocates. Section 16, which precedes Section

17, deals with Senior and other Advocates and lays down in

sub-section (1) thereof that : There shall be two classes

of advocates, namely, senior advocates and other advocates

and then follows Section 17, sub-section (1) which provides

that : Every State Bar Council shall prepare and maintain

a roll of advocates. Sub-section (2) reads thereof as under

:- Each such roll of advocates shall consist of two parts,

the first part containing the names of senior advocates and

the second part, the names of other advocates.

Section 22 provides for certificate of enrolment and

sub-section (1) thereof lays down that There shall be

issued a certificate of enrolment in the prescribed form by

the State Bar Council to every person whose name is entered

in the roll of advocates maintained by it under this Act.

Section 23 lays down Right of pre-audience and the priority

given to the various advocates while addressing Courts. It

lays down the scheme of priority as follows : The

Attorney-General of India has pre-audience over all other

advocates. Next comes Solicitor-General of India in the

order of priority for audience. Then, the Additional

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Solicitor-General of India; followed by the second

Additional Solicitor- General of India, further followed by

Advocate General of any State. Next in the hierarchy of the

priority come senior advocates and last are other advocates

having right of audience. It becomes, therefore, clear that

once an applicant is enrolled as an advocate in the State

roll maintained by the State Bar Council, he gets right of

audience subject to the scheme of priorities as mentioned in

Section 23 and naturally audience implies the full right

of addressing the Court on all legal and factual issues

involved in the case in which he appears as an advocate

under the Act. Now follows Section 24, which lays down the

qualifications for a person to be admitted as an advocate

on a State roll. The said section, with its relevant

sub-sections (1),(2) and (3) deserves to be extracted in

extenso at this stage :

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 fulfils the

following conditions, namely :- (a) he is a citizen of

India: Provided that subject to the other provisions

contained in this Act, a national of any other country may

be admitted as an advocate on a State roll, if citizens of

India, duly qualified, are permitted to practise Law in that

other country; (b) he has completed the age of twenty-one

years; (c) he has obtained a degree in Law - (i) before the

[12th day of March, 1967], from any University in the

territory of India; or (ii) before the 15th day of August,

1947, from any University in any area which was comprised

before that date within India as defined by the Government

of India Act, 1935; or [(iii) after the 12th day of March,

1967, save as provided in sub-clause (iiia), after

undergoing a three-year course of study in Law from any

University in India which is recognised for the purposes of

this Act by the Bar Council of India; or (iii-a) after

undergoing a course of study in Law, the duration of which

is not less than two academic years commencing from the

academic year 1967-68, or any earlier academic year from any

University in India which is recognised for the purposes of

this Act by the Bar Council of India; or] [(iv) in any

other case, from any University outside the territory of

India, if the degree is recognised for the purposes of this

Act by the Bar Council of India; or] [he is a barrister and

is called to the Bar on or before the 31st day of December,

1976; [or has passed the articled clerks examination or

any other examination specified by the High Court at Bombay

or Calcutta for enrolment as an attorney of that High

Court;] or has obtained such other foreign qualification in

Law as is recognised by the Bar Council of India for the

purpose of admission as an advocate under this Act]; (d)[

xx xx xx] (e) he fulfils such other conditions as may be

specified in the Rules made by the State Bar Council under

this Chapter; [(f) he has paid, in respect of the

enrolment, stamp duty, if any, chargeable under the Indian

Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to

the State Bar Council of [six hundred rupees and to the Bar

Council of India, one hundred and fifty rupees by way of a

bank draft drawn in favour of that Council]: Provided that

where such person is a member of the Scheduled Castes or the

Scheduled Tribes and produces a certificate to that effect

from such authority as may be prescribed, the enrolment fee

payable by him to the State Bar Council shall be [one

hundred rupees and to the Bar Council of India, twenty-five

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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 to have passed that examination.] (2)

Notwithstanding anything contained in sub-section (1), [a

vakil or a pleader who is a Law graduate] may be admitted as

an advocate on a State roll if he - (a) makes an application

for such enrolment in accordance with the provisions of this

Act, not later than two years from the appointed day; and

(b) fulfils the conditions specified in clauses (a), (b),

(e) and (f) of sub-section (1). [{3) Notwithstanding

anything contained in sub-section (1), a person who - (a)[xx

xx] has, for at least three years, been a vakil or a pleader

or a mukhtar, or was entitled at any time to be enrolled

under any Law [xx xx xx] as an advocate of a High Court

(including a High Court of a former Part B State) or of a

Court of Judicial Commissioner in any Union territory; or

[(aa) before the Ist day of December, 1961, was entitled

otherwise than as an advocate to practise the profession of

Law (whether by way of pleading or acting or both) by virtue

of the provisions of any Law, or who would have been so

entitled had he not been in public service on the said date;

or] (b) [xx xx xx] (c) before the 1st day of April, 1937,

has been an advocate of any High Court in any area which was

comprised within Burma as defined in the Government of India

Act, 1935; or (d) is entitled to be enrolled as an advocate

under any rule made by the Bar Council of India in this

behalf, may be admitted as an advocate on a State roll if

he- (i) makes an application for such enrolment in

accordance with the provisions of this Act; and (ii)

fulfils the conditions specified in clauses (a), (d), (e)

and (f) of sub-section (1). Xx xx xx The aforesaid Section

has undergone number of amendments by passage of time since

the enactment of the said Act. It is, therefore, necessary

to refer to the relevant amendments to that Section. It may

be noted that Section 24 sub-section (1), as it stands on

the statute book on date, does not include clause (d) which

was omitted by Section 18 of amending Act 60 of 1973 with

effect from 31st January, 1974. This clause (d) of Section

24 as it stood originally from 1961 read as under :

(d) he has undergone a course of training in Law and

passed an examination after such training both of which

shall be prescribed by the State Bar Council; Provided that

this clause not apply to - (i) a barrister who has received

practical training in England or a person who has obtained a

degree in Law from any University in India before the

appointed day; (ii) any person who has for at least two

years held a judicial office in the territory of India or is

a member of the Central Legal Service; (iii) any person who

has for at least two years held a judicial office in any

area which was comprised before the 15th day of August,

1947, within India as defined in the Government of India

Act, 1935, or has been an advocate of any High Court in any

such area; (iv) any person who has practised before any

High Court and who has discontinued practice by reason of

his taking up employment under the Government, a local

authority or any other person; and (v) any other class of

persons who by reason of their legal training or experience

are declared by the Bar Council of India to be exempt from

the provisions of this clause;

The aforesaid clause (d) also underwent a change from

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1964. The said clause (d), in the form in which it is

extracted above was operative only upto 1964. It was

amended in 1964 and then read as under :

in clause (d) - (i) the words after such training

shall be omitted; (ii) in the proviso, for paragraph (i),

the following paragraph shall be substituted, namely :- (i)

a person who has obtained a degree in Law from any

University in India on the results of an examination held

before the 31st day of March, 1964 or such other later date

as may be prescribed, or a barrister who was called to the

Bar before such date, or a barrister who, having qualified

after that date, has received such practical training in Law

as may be recognised in this behalf by the Bar Council of

India;

It becomes, therefore, clear that between 1961 to

1964, the State Bar Council, as a condition of enrolment,

required an applicant to undergo a course of training in Law

and also required him to pass the examination after such a

training. But after 1964 till 1973, it was permissible for

the State Bar Council to prescribe a course of training in

Law as a precondition for enrolment of a candidate and he

was also required to pass the requisite examination during

the training or even after completion of the training course

and such examination could be prescribed by the State Bar

Council concerned only. It is further required to be noted

that in the aforesaid Section 24, between 1961 to 1964,

there was no sub-section (3). That sub-section (3) came to

be inserted in Section 24 in 1964 by Act 21 of 1964. In

order to appreciate the scope and ambit of sub-section (3)

of Section 24, as inserted by the aforesaid amending Act, it

will be profitable to have a look at the objects and reasons

underlying the introduction of the said amendment. These

objects and reasons stated that it was felt necessary to

give powers to the Bar Council of India with a view to

enable it to add to the categories of eligible candidates

those persons who were otherwise not eligible to be enrolled

under Section 17 read with Section 24(1) of the Act, as it

then stood on the statute book. In para 3 of the objects of

the Bill at Item No.5 was mentioned the fact that categories

of persons who were not by then entitled to be enrolled as

advocates could be brought in by conferring powers on the

Bar Council of India as per the amending provisions. Thus,

sub-section (3) of Section 24 was brought on the statute

book by the said amending Act 21 of 1964.

Before we come to the present texture of Section 24,

we may mention one more amending Act 60 of 1973, which by

Section 18 thereof, deleted the then existing clause (d)

from sub-section (1) of Section 24. Meaning thereby, after

31st January, 1974, the State Bar Councils were deprived of

their powers to prescribe a course of pre- enrolment

training in Law and examination to be undergone by Law

graduates who were seeking enrolment as advocates on the

State roll.

We may at this stage refer to the statement of objects

and reasons as mentioned in the Advocates (Amendment) Bill,

1970 for further amending the Act and which (Amendment) Bill

ultimately resulted into the Amending Act 60 of 1973 by

which Section 24(1)(d) stood deleted. The said clause, as

noted earlier, entitled the State Bar Councils to frame

Rules for prescribing pre-enrolment training and examination

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subject to which a person would get qualified to be enrolled

as an advocate on the State roll. The reason why this pre-

enrolment training and examination was sought to be done

away with by the Parliament is clearly seen from the

statement of objects and reasons for introducing the

aforesaid (Amendment) Bill of 1970. The said statement of

objects and reasons was produced before us by learned

Additional Solicitor General, Shri.C.S.Vaidyanathan for our

scrutiny. Amongst others the need for deleting the

statutory provision regarding pre-enrolment training was

highlighted by paragraph (iii) of the said statement of

objects and reasons. It is profitable to reproduce the said

paragraph as under :- Pre-enrolment training - The Bar

Council of India has decided that in future a degree in Law

can be obtained only after undergoing a three-year course of

study in Law after graduation as a result of which the age

of entry into the legal profession becomes much higher than

the age of entry in other professions. It is, therefore,

felt that after a three- year course in Law in a University

it is not necessary to retain the statutory provision in the

Act requiring a further examination or practical training.

It becomes clear from a mere look at the said

paragraph that it was the Bar Council of India itself which

had decided that a Degree of Law obtained by a person after

undergoing three years course of study after graduation

would be enough for qualifying him to be enrolled as an

Advocate under the Act and, therefore, pre-enrolment

training till then required of him before getting enrolment

was not necessary. This decision of the Bar Council of

India was accepted by the Parliament and aforesaid provision

by way of additional eligibility condition for enrolment as

an advocate as then existing under Section 24(1)(d) was

deleted. So far as three years LLB degree course is

concerned, the syllabus prescribed by the Bar Council of

India itself by its communication dated 21st October, 1997

addressed to the Registrars of all the Universities

imparting Legal Education in India, the Deans of faculties

of Laws of Universities and the Members of the Law colleges

makes it clear that practical training to be given to a Law

student prior to his getting degree of Law from University

after completing three years course was to be included in

the course of study. As practical training was suggested by

the Bar Council of India itself for being included in the

curriculum to be prescribed by the Universities for Law

students, it obviously became redundant for providing

further practical training before enrolment of such trained

graduates in Law. That is precisely the reason why after

January, 1974 need for pre-enrolment training was not

insisted upon by the legislature and that too at the

suggestion and on the recommendation of the Bar Council of

India itself. However, learned Senior Counsel Shri P.P.Rao

for the Bar Council of India is right when he contends that

in those days it may have been so felt, but with passage of

time and experience gained by the Bar Council of India

regarding the actual working of legal profession at various

levels in India and also in the light of the recommendation

of higher power committee chaired by Honble Mr. Justice

A.M. Ahmadi to be referred to hereinafter, the need for

providing training to advocates before they become entitled

to practise was visualised and that is the reason why the

impugned rules were enacted and that, therefore, what the

Bar Council of India decided in 1973 cannot create any

estoppel against the Bar Council of India in 1995. Even

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accepting this contention, the question remains whether the

Bar Council of India by resorting to the enactment of

impugned rules had remained within the permissible limits of

its rule making power or not and it is this question which

has to be considered by us in the present proceedings.

We may, at this stage, also refer to Section 7, laying

down the statutory functions of the Bar Council of India.

This Section, as it stood at the relevant time, read as

under :

7. Functions of Bar Council of India - [(1)] The

functions of the Bar Council of India shall be - (a) [ xx xx

xx] (b) to lay down standards of professional conduct and

etiquette for advocates; (c) to lay down the procedure to

be followed by its disciplinary committee and the

disciplinary committee of each State Bar Council; (d) to

safeguard the rights, privileges and interests of advocates;

(e) to promote and support Law reform; (f) to deal with and

dispose of any matter arising under this Act, which may be

referred to it by a State Bar Council; (g) to exercise

general supervision and control over State Bar Councils;

(h) to promote Legal Education and to lay down standards of

such education in consultation with the Universities in

India imparting such education and the State Bar Councils;

(i) to recognise Universities whose degree in Law shall be a

qualification for enrolments as an advocate and for that

purpose to visit and inspect Universities [or cause the

State Bar Councils to visit and inspect Universities in

accordance with such directions as it may give in this

behalf]; [(ia) to conduct seminars and organise talks on

legal topics by eminent jurists and publish journals and

papers of legal interest; (ib) to organise legal aid to the

poor in the prescribed manner; (ic) to recognise on a

reciprocal basis foreign qualifications in Law obtained

outside India for the purpose of admission as an advocate

under this Act;] (j) to manage and invest the funds of the

Bar Council; (k) to provide for the election of its

members; (l) to perform all other functions conferred on it

by or under this Act; (m) to do all other things necessary

for discharging the aforesaid functions. [(2) The Bar

Council of India may constitute one or more funds in the

prescribed manner for the purpose of - (a) giving financial

assistance to organise welfare schemes for indigent,

disabled or other advocates; (b) giving legal aid or advice

in accordance with the Rules made in this behalf; [(c)

establishing Law libraries.] (3) The Bar Council of India

may receive any grants, donations, gifts or benefactions for

all or any of the purposes specified in sub-section (2)

which shall be credited to the appropriate fund or funds

constituted under that sub-section.]

(Emphasis supplied)

It is to be noted that clause (a) of Section 7, which

originally stood, got omitted with effect from 31st January,

1974. That clause (a) pertained to maintenance of rolls of

advocates. Hence from 1974 the Bar Council of India was

not concerned with maintenance of rolls of advocates which

function became the sole concern of State Bar Councils only.

These rolls obviously consisting of names of entrants to the

legal profession were clearly envisaged under Section 24 of

the Act. The next relevant Section is 24-A dealing with

disqualification for enrolment of a person desirous of

being an advocate under the Act. That section was inserted

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by Act 60 of 1973. It is relevant to note that the

Legislature thereunder has enumerated three categories of

persons who are disqualified from being enrolled as

advocates even though they might otherwise fulfil the

requirements of Section 24 sub-section (1). The imposition

by the impugned Rules of the requirement of an applicant to

undergo pre-enrolment training does not result into any

disqualification of such an applicant if he has not

undertaken such a training as it is not treated by the

legislature as one of such disqualifications as envisaged by

Section 24A. In other words, by the statutory provisions of

Sections 24(1) and Section 24-A, after 1973, no legislative

intention can be culled out requiring an applicant law

graduate seeking enrolment as advocate under the Act to

undergo any pre-enrolment training as a condition for

enrolment nor its absence to be treated as a

disqualification for enrolment. Next relevant Section is

Section 28, which deals with powers of the State Bar

Council to make Rules to carry out the purposes of the

Chapter dealing with admission and enrolment of advocates.

The said Section, as standing on the statute book on date,

does not contain clause (b) in sub-section (2) thereof.

Clause (b) was deleted by Section 21 of amending Act 60 of

1973 with effect from 31.1.1974. The said sub-clause (b),

prior to its deletion read as under : (b) a course of

practical training in Law and the examination to be passed

after such training for admission as an advocate on the roll

of the Bar Council;

A conjoint reading of Section 28, sub-section 2(b) and

Section 24(1)(d) as it existed on the statute book prior to

31.1.1974 makes it clear that from 31st January, 1974, the

legislature did not think it fit to clothe the State Bar

Councils with the power to prescribe any pre-enrolment

training and examination to be undergone by an applicant for

enrolment as an Advocate on the State roll. As clause (d)

was deleted from Section 24(1), simultaneously the rule

making power earlier conferred on the State Bar Councils for

effective exercise of that statutory function also stood

withdrawn. Meaning thereby, from 31.1.1974 any person who

had a requisite Law degree as laid down by Section 24 sub-

section (1), became entitled to be enrolled as an Advocate

on the State roll maintained by the State Bar Council and he

was not required to undergo any such pre-enrolment training

which he was required to undergo prior to 31st January,

1974. It is also pertinent to note that sub- section (3) of

Section 24 had remained operative from 1964 onwards all

throughout till 1974 simultaneously with the then existing

power of the State Bar Councils to prescribe pre-enrolment

training and examination to be undertaken by the applicants

desirous of being enrolled as advocates. When both these

provisions simultaneously existed on the statute book from

1964 to the beginning of 1974, it becomes obvious that the

question of prescribing pre-enrolment training and

examination to be undertaken by an applicant for being

enrolled as an advocate on the State roll, remained solely

in the domain of the concerned State Bar Councils and the

Bar Council of India had nothing to do on this aspect of the

matter. Consequently Section 24(3) dealt with a topic not

covered by the sweep of Section 24(1) especially clause (d)

thereof. The next relevant Section for our present purpose

is Section 29, which is found in Chapter IV dealing with

right to practise. The right to practise naturally is

available to those advocates who are enrolled under the Act

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and whose names are mentioned in the State roll as per

Section 17 of the Act. A new entrant to the legal

profession obviously would be an ordinary advocate and not a

senior advocate. But only two types of advocates are

contemplated by Section 17 sub-section (2) of the Act as

seen earlier. An advocate can either be a senior advocate

or a non- senior advocate, meaning thereby, other advocate.

Moment a person is enrolled as an advocate on the State

roll, he would become statutorily entitled to practise as

laid down under Section 17 which provides under sub-section

(1) that : Every State Bar Council shall prepare and

maintain a roll of advocates in which shall be entered the

names and addresses of - (a) all persons who were entered as

advocates on the roll of any High Court under the Indian Bar

Councils Act, 1926 (38 of 1926), immediately before the

appointed day [including persons, being citizens of India,

who before the 15th day of August, 1947, were enrolled as

advocates under the said Act in any area which before the

said date was comprised within India as defined in the

Government of India Act, 1935, and who at any time] express

an intention in the prescribed manner to practise within the

jurisdiction of the Bar Council; (b) all other persons who

are admitted to be advocates on the roll of the State Bar

Council under this Act on or after the appointed day.

Section 30, which up till now has not come into force

lays down :

Subject to the provisions of this Act, every advocate

whose name is entered in the [State roll] shall be entitled

as of right to practise throughout the territories to which

this Act extends, - (i) in all Courts including the Supreme

Court; (ii) before any tribunal or person legally

authorised to take evidence; and (iii) before any other

authority or person before whom such advocate is by or under

any Law for the time being in force entitled to practise.

So far as clause (i) of Section 30 is concerned, it is

not in dispute that even though the main section has not

come into force, all persons who are enrolled as advocates

on the State roll are entitled as of right to practise in

all Courts, including the Supreme Court and no one has

challenged their said right. Whether such enrolled

advocates can practise in Tribunals or any other authority

would remain a moot question in the absence of bringing into

force Section 30. Section 32 deals with the power of Court

to permit appearances in particular cases by persons not

enrolled as advocates. That power of the Court obviously

is not touched by the impugned rules, as fairly stated by

learned senior counsel Shri P.P.Rao for the respondent Bar

Council of India. Then follows Section 33 which deals with

the right to practise conferred on the advocates and lays

down that :

Except as otherwise provided in this Act or in any

other Law for the time being in force, 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 this Act.

A conjoint reading of Sections 23, 29 and 33 leaves no

room for doubt that once a person is found qualified to be

admitted as an advocate on the State roll having satisfied

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the statutory conditions of eligibility laid down in

sub-section (1) of Section 24, he will automatically become

entitled as of right to practise full-fledged in any Court

including the Supreme Court. Next follows Section 34,

sub-section (1) which provides that : (1) The High Court

may make Rules laying down the conditions subject to which

an advocate shall be permitted to practise in the High Court

and the Courts subordinate thereto.

This rule making power of the High Court operates on

its own and cannot be pressed in service by the Bar Council

of India for effectively proving the authorship of their

impugned rules and, therefore, we need not dilate on the

same any further. The next relevant section is Section 49.

This is the section which lays down the rule making power of

the Bar Council of India and is the sheet-anchor of the

respondent Bar Council of India for supporting the impugned

rules. It is, therefore, necessary to note the relevant

provisions of this Section. Section 49 sub-section [(1)]

provides that : The Bar Council of India may make Rules

for discharging its functions under this Act, and, in

particular, such Rules may pr escribe - xxx xxx xxx [(af)the

minimum qualifications required for admission to a course of

degree in Law in any recognised University;] (ag) the class

or category of persons entitled to be enrolled as advocates;

(ah) 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 Cou

rt; ] xxx xxx xxx

Before considering the next relevant Section, it is

necessary to note that clause (af), as it stands in the

present form in Section 49(1), was substituted by Act 60 of

1973 by Section 38 thereof with effect from 31.1.74. Prior

thereto, clause (af) which was in force from 1964 onwards,

read as under : (af) the category of persons who may be

exempted from undergoing a course of training and passing an

examination prescribed under clause (d) of sub-section (1)

of Section 24;

It, therefore, becomes clear that from 1964 till the

end of 1973, the Bar Council of India had rule making power

to exempt those persons who were otherwise required to

undergo pre-enrolment training and passing an examination as

prescribed by the State Bar Councils under Section 24 (1)(d)

as it stood on the statute book during that time. So the

power of exemption from undergoing the training to

applicants for enrolment as advocates was with the Bar

Council of India, while the power to prescribe training and

examination solely rested with the State Bar Councils

concerned. Once the legislature by Act 60 of 1973, deprived

the State Bar Councils of their rule making power to

prescribe training and examination in view of deletion of

clause(d) of sub-section (1) of Section 24 from the parent

Act, the rule making power exempting categories of persons

from pre-training and pre-examination prior to enrolment as

earlier available to the Bar Council of India was also

withdrawn and clause (af) in the present form got

substituted with effect from 31.1.1974. Clauses (ag) and

(ah) were already inserted in Section 49 by Act 21 of 1964

and they have continued to exist on the statute book all

throughout till date. These topics of rule making power

existed with the Bar Council of India at the same time when

the provision regarding pre-service training and examination

as a condition of enrolment existed on the statute book

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under Section 24(1)(d). In other words, between 1964 to the

end of 1973 i.e. till 31st January, 1974, the topic of

prescription of pre-enrolment training and pre-enrolment

examination which remained strictly in the domain of the

State Bar Councils remained excluded from the rule making

powers provided by clauses (ag) and (ah) of Section 49 so

far as the Bar Council of India was concerned. It is

axiomatic that these general rule making powers in clauses

(ag) and (ah) of Section 49 necessarily did not take in

their sweep the power to provide for pre-enrolment training

and examination for applicants who were seeking enrolment as

advocates under the Act from 1964 to the end of 1973. It is

easy to visualise that the legislature itself dispensed with

the concept of pre-enrolment training and examination for

new entrants to the Bar with effect from 31.01.1974. As

noted earlier, this was done on the recommendation of the

Bar Council of India itself. Under these circumstances, it

cannot be presumed that the same legislature without

expressly including the same topic in the rule making power

of the Bar Council of India, impliedly permitted the Bar

Council of India itself to prescribe pre-enrolment training

to new entrants at the Bar simultaneously with the

withdrawal of the same training from 1974 onwards. It is

difficult to countenance the submission of Shri Rao for the

respondent Bar Council of India that there was any

concurrent power to prescribe pre-enrolment training to

applicants both with the State Bar Councils and the Bar

Council of India between 1964 and end of 1973. The next

relevant Section for our purpose is Section 49-A, which

deals with the power of Central Government to make Rules.

Sub-section (1) lays down that :

The Central Government may, by notification in the

Official Gazette, make Rules for carrying out the purposes

of this Act including Rules with respect to any matter for

which the Bar Council of India or a State Bar Council has

power to make Rules.

Thus, powers of the Central Government to make Rules

are parallel to the powers to make Rules available to the

Bar Council of India or the State Bar Councils under the

very same Act. Sub-section (2) of Section 49-A, as it stood

prior to 31.1.1974, provided amongst others, by clause(d)

thereof, rule making power in connection with the category

of persons who were exempted from undergoing a course of

training and passing an examination prescribed under clause

(d) of sub-section (1) of Section 24. It becomes obvious

that this provision had become otiose as it sought to exempt

the category of persons from the sweep of compulsory

pre-enrolment training and examination being a condition for

enrolment as advocates under the then existing clause (d) of

sub- section (1) of Section 24 which was deleted from the

statute book from 1974 onwards. Thus, from 1974 there will

be no occasion for the Central Government to exercise power

of exemption for such category of persons earlier covered by

Section 24(1)(d). However, it may be noted that Section

49-A sub-section 2 (c) entitles the Central Government to

frame Rules regarding the class or category of persons

entitled to be enrolled as advocates under the Act. It is

on the same lines as the rule making power of the Bar

Council of India under Section 49 sub-section (1) clause

(ah). We may note at this stage that the Central Government

has not exercised any rule making power regarding

pre-enrolment training for prospective advocates. We,

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therefore, need not dilate on this aspect any more. The

last relevant Section is Section 52 which deals with

Saving and it lays down that : Nothing in this Act shall

be deemed to affect the power of the Supreme Court to make

Rules under Article 145 of the Constitution - (a) for laying

down the conditions subject to which a senior advocate shall

be entitled to practise in that Court; (b) for determining

the persons who shall be entitled to [act or plead] in that

Court.

It is in the background of the aforesaid statutory

scheme of the Act, as subjected to various amendments from

time to time till date, that the moot question posed for our

consideration about the legal efficacy of the impugned rules

will have to be examined.

It becomes, therefore, necessary to have a close look

at the impugned rules as amended by the Resolution of the

Bar Council of India dated 19th July, 1998. These rules

styled as the Bar Council of India Training Rules, 1995

provided for certain pre-conditions to be complied with by

an applicant to be enrolled on the roll of the State Bar

Council. The Rules are said to have been promulgated in

exercise of the Bar Council of Indias rule making powers

under Section 24(3)(d) of the Act. However, Shri Rao,

learned senior counsel for the respondent Bar Council of

India, is right when he contends that he can also sustain

the Rules under any other legally permissible rule making

power discernible from the relevant provisions of the Act.

Rule 2 of the impugned rules provides that No person shall

be entitled to be enrolled as an advocate unless he is

eligible to be enrolled as such under Sec.24 of Advocates

Act, 1961 and has undergone training as prescribed under

these Rules. The said rule 2, as amended up to 19th July,

1998 further reads that: However, while undergoing

training, the trainees shall be enrolled provisionally as

Trainee Advocates after approval of name of their guides

by the State Bar Council and the State Bar Council shall

issue identity card to said provisionally enrolled Trainee

advocates for their identification. Detailed procedure

has been laid down how a trainee advocate has to function

during the period of training. Such candidate has to

maintain two types of diaries as approved by the State Bar

Council - one for the work done in chambers and the other

for the work in Courts. As per Rule 4 the training period

shall commence from the certificate of guide that the

candidate is being trained by him. Rule 5 deals with

qualification of advocate to become guide of such

trainees. Rule 7 deals with period of training for a

minimum of one year. Rule 10 provides that : No

candidate shall engage himself in any employment,

profession, business, trade or calling during the course of

training in any manner. Rule 15 lays down seniority of a

trainee advocate on successful completion of the training

period by providing that he shall be entitled to seniority

from the date of provisional enrolment as trainee under the

Rules. Such a trainee advocate as per Rule 15 (b) shall be

entitled to appear in the Court for seeking adjournments and

to make mentioning on instruction of their guide and shall

be under disciplinary control of the State Bar Council and

the Bar Council of India. Rule 15AA provides that in case

period of training of a particular candidate is extended by

the State Bar Council under Rule 9 on the ground of

inadequate training, said extended period shall not be

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counted towards seniority.

It becomes at once clear that the impugned rules are

said to have been framed by the Bar Council of India in

exercise of its statutory powers under Section 24(3)(d) of

the Act. We have already traced the history of the

aforesaid statutory provisions. It is no doubt true that

sub-section (3) of Section 24 starts with a non obstante

clause and provides that notwithstanding anything contained

in sub-section (1), a person mentioned in categories

(a),(aa), (c) and (d) may be admitted as an advocate on a

State roll if he applies as laid down in clause (1) and

fulfils the conditions specified in clauses (a), (b), (e)

and (f) of sub- section (1). The objects and reasons for

enacting the said provision, as noted earlier, have clearly

laid down that it was felt by the legislature that despite

the operation of Sections 17 and 24 of the Act, there were

some persons who though not covered by the said provision

and had not satisfied the conditions for enrolment as laid

down in these provisions deserved to be enrolled as

advocates. With that end in view, the Bar Council of India

was provided with the rule making power under sub-section

3(d) of Section 24 by way of an enabling provision to extend

the statutory coverage of Section 24(1) for bringing in such

otherwise ineligible candidates for enrolment and even for

such additional class of persons to be enrolled as advocates

by exercise of rule making power of the Bar Council of India

they had to satisfy the statutory requirements of clauses

(a), (b), (e) and (f) of sub-section (1) of Section 24.

This enabling provision available to the Bar Council of

India by Rules to extend the scope of eligibility in favour

of those who were ineligible under Section 24(1) to be

enrolled as advocates did not touch upon the question of

eligibility in connection with pre-enrolment training and

examination or to put it differently, the enabling power

available to the Bar Council of India to make eligible

otherwise ineligible persons for enrolment as advocates

under Section 24(1) did not cover the question of

pre-enrolment training and examination at all. It must,

therefore, be held on express language of Section 24

sub-section 3(d) that the rule making power of the Bar

Council of India proceeded only in one direction, namely,

for bringing into the sweep of Section 24(1) all those who

were not entitled to be enrolled as advocates under the

provisions of Section 24(1). The non-obstante clause with

which sub- section (3) of Section 24 starts, provides that

despite the conditions mentioned for enrolment in

sub-section (1) of Section 24 might not have been satisfied

by person concerned, if the Bar Council of India thought

that such a person also deserved to be enrolled as an

advocate, then rule making power under clause (d) of

sub-section (3) of Section 24 could be resorted to by the

Bar Council of India. The said power, to say the least,

could be utilised for making ineligible persons eligible for

enrolment despite what is stated under sub-section (1) of

Section 24 but it could never be utilised in the reverse

direction for disqualifying those from enrolment who were

otherwise qualified to be enrolled as per sub- section (1)

of Section 24. It was a power given to the Bar Council of

India to extend the coverage of Section 24(1) and not to

whittle it down. It is, therefore, difficult to appreciate

the contention of learned senior counsel, Shri Rao for the

Bar Council of India, that by exercise of the said rule, it

could impose a further condition of disability of otherwise

eligible candidate to be enrolled even if he had satisfied

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all the statutory conditions laid down by Section 24

sub-section (1). To illustrate the nature of such rule

making power and the limited scope thereof, it may be

visualised that as per Section 24 sub-section (1) clause (c)

unless a person has obtained the degree of Law from any

recognised University in India, he would not be entitled to

be enrolled as an advocate. Still the Bar Council of India

in its wisdom and discretion by exercising its enabling rule

making power under Section 24 sub-section (3)(d) read with

Section 49(1) may permit a citizen of India who might have

obtained degree from a foreign University like a Law degree

from England or a Law degree from Harvard Law School of

America or a law degree from Canadian or Australian

University to be enrolled as advocate. Such category of

persons who could not have been enrolled on the express

language of Section 24 (1) could be enrolled by the State

Bar Councils under Section 24(3)(d) if the Bar Council of

India in exercise of its rule making power had covered them

for such enrolment. It is this beneficial and enabling

power for bringing in the sweep of the umbrella of Section

24(1) those who would have otherwise been out of it which is

conferred by Sub-section (3) (d) of Section 24 on the Bar

Council of India read with Section 49(1). It is also

necessary to note that this power is available to the Bar

Council of India from 1964 all throughout till date, while

between 1963 to January 1974, pre-enrolment training and

examination could be prescribed as a condition by the State

Bar Councils as per the then existing condition (d) of

sub-section (1) of Section 24 for such enrolment.

Consequently, it cannot be said that the rule making power

under sub-section (3) (d) of Section 24 still enables the

Bar Council of India, after deletion of Section 24(1)(d) to

promulgate such a rule by which almost by back door such an

additional condition for enrolment to restrict the entry of

otherwise eligible candidates for enrolment under Section

24(1) can be imposed. Consequently, Section 24 sub-section

(3) (d) of the Act cannot be legitimately invoked by the Bar

Council of India for sustaining the impugned rules.

We may also mention one additional submission of

senior advocate Shri P.P.Rao in support of the impugned

rules. He contended that Section 24(1) of the Act itself

enables rule making authorities to enact Rules which may go

beyond the statutory provisions of Section 24(1) as enacted

by the legislature and, therefore, the Bar Council of India

as a rule making authority can by exercise of the said power

add to the conditions of enrolment as expressly laid down by

Section 24(1). It is not possible to agree with this

submission for the simple reason that Section 24 itself

contemplates the qualifications of a person who seeks

admission as an advocate on the State roll. To reiterate

granting of admission to a person for being enrolled as an

advocate under the Act is a statutory function of the State

Bar Council only. The Bar Council of India has no role to

play on this aspect. All it has to do is to approve any

Rules framed by the State Bar Council under Section 24(1)

laying down further qualifications for a person to be

enrolled by it on the State roll as an advocate. We have,

therefore, to read the rule making power mentioned under

Section 24(1) conjointly with the rule making power of the

State Bar Council as provided by section 28(1) especially

clause 2(d) thereof which provides as under :- (1) A State

Bar Council may make rules to carry out the purposes of this

Chapter.

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(2) In particular, and without prejudice to the

generality of the foregoing power, such rules may provide

for - Xxxx Xxxx Xxxx (d) the conditions subject to which a

person may be admitted as an advocate on any such roll.

Consequently, the submission of Shri P.P.Rao, learned

senior counsel for the Bar Council of India that the Council

also can exercise rule making power under Section 24(1) for

imposing an additional condition of qualification for a

person to be enrolled on State roll obviously cannot be

accepted. Shri Rao then next turned to Section 7 of the Act

and submitted that, amongst enumerated functions of the Bar

Council of India, at clause (h) of sub-section (1) is

specified a provision regarding promoting the legal

education and to lay down standards of such education in

consultation with the Universities in India imparting such

education and the State Bar Councils. It is difficult to

appreciate how the aforesaid clause (h) can also give any

support to the impugned rules. Shri Rao, learned senior

counsel for the Bar Council of India, is right when he

contends that the concept of `legal education is not

necessarily confined to only class room lectures or

theoretical study of law. It can include practical training

of prospective advocates. But even accepting that legal

connotation of the term `legal education, the question

remains as to how the Bar Council of India can promote legal

education. It can obviously promote legal education by

laying down standards of such education in consultation with

the respective universities in India imparting such

education. The words Universities in India imparting such

education as found in clause (h) of sub-section (1) leave

no room for doubt that the question of imparting legal

education is entrusted to the Universities in India and not

to the Bar Council of India. All that the Bar Council of

India can do is to suggest ways and means to promote such

legal education to be imparted by the Universities and for

that purpose it may lay down the standards of education,

syllabi in consultation with the Universities in India. It

is, therefore, difficult to appreciate how for promoting

legal education through the Universities imparting legal

education in India, the Bar Council of India can itself take

up the role of laying down pre- enrolment training for

applicants seeking to enter legal profession by getting

enrolled under Section 24 of the Act. The history of this

relevant provision spread over years, shows that

pre-enrolment training and examination constitute a topic

which the legislature in its wisdom entrusted to the State

Bar Councils and not to the Bar Council of India. Merely

because the legislature withdrew even that rule making power

in the light of the withdrawal of the statutory condition of

enrolment by enacting Section 24(1)(d) from the 31st

January, 1974, it could not be said that the then existing

rule making power on other topics which was available to the

Bar Council of India got enlarged or elongated by necessary

implication. The power, as couched in the same earlier

existing terms, has remained as it is after deletion of

Section 24(1)(d) by the Parliament. It is also to be noted

that the functions of the Bar Council of India under Section

7 were not enlarged to cover such a provision for

pre-enrolment training to applicants by suitably entrusting

the Bar Council of India such a function. Save and except

Section 7(1)(h) there is no sub-section in the said Section

which entitles the Bar Council of India to prescribe any

pre-enrolment training or examination to be undertaken by

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the prospective professional who wants to enrol himself as

such once he satisfies the requirements and the conditions

for such enrolment as laid down by Section 24 (1).

Consequently, the support of Section 7(1) as tried to be

invoked for sustaining the impugned rules also is of no

avail to learned senior counsel Shri Rao for the respondent

Bar Council of India. We may now refer to Section 49 of the

Act, which deals with general power of Bar Council of India

to make Rules. Sub-section (1) thereof lays down that the

Bar Council of India may make rules for discharging its

functions under this Act, and, in particular, such rules may

prescribe on various topics as enumerated therein from

clauses (a) to (j). A mere look at the aforesaid provision

makes it clear that the rule making power entrusted to the

Bar Council of India by the legislature is an ancillary

power for fructifying and effectively discharging its

statutory functions laid down by the Act. Consequently,

Rules to be framed under Section 49(1) must have a statutory

peg on which to hang. If there is no such statutory peg the

rule which is sought to be enacted dehors such a peg will

have no foothold and will become still born. The statutory

functions entrusted by the legislature to the Bar Council of

India under the Act so far as relevant for our present

purpose and which could be relied upon by Shri Rao, learned

senior counsel for the respondent Bar Council of India, are

Section 7(1)(h) and Section 24(3)(d). We have seen earlier

that neither of these statutory provisions entitles the Bar

Council of India to provide for the disqualification or a

disability or an additional condition for enrolment of a

person who is otherwise eligible to be enrolled as an

advocate under Section 24(1). Once that conclusion is

reached, the very foundation for supporting the impugned

rules gets knocked off. Consequently, if any such rule is

framed, supposedly by exercise of the rule making power as

enumerated in Section 49(1)(af), (ag) or (ah) on which also

reliance was placed by Shri Rao, the said rule having not

been made for discharging any of the statutory functions of

the Bar Council of India in this connection must necessarily

fail as it would be ultra vires the statutory functions of

the Bar Council of India. Any rule framed by rule making

authority going beyond its statutory functions must

necessarily be held to be ultra vires and inoperative at

law. Consequently, the valiant attempt made by Shri Rao for

sustaining the Rules under Section 49(1)(af), (ag) and (ah)

would remain abortive only on this short ground. But even

that apart, let us see whether any of these provisions can

sustain the impugned rules even on the assumption that such

an exercise otherwise remains a permissible one for the Bar

Council of India. Section 49(1)(af) deals with minimum

qualifications required for admission to a course of degree

in law in any recognised University. That obviously has

nothing to do with the impugned rules. Then comes clause

(ag) which deals with the class or category of persons

entitled to be enrolled as advocates. To recapitulate,

Section 49(1)(ag) was already on the statute book since 1964

till January 1974 when the topic of pre-enrolment training

and examination was solely within the domain of the State

Bar Councils and once on the said topic the State Bar

Council concerned had framed the requisite rules, they were

then subject to approval by the Bar Council of India.

Therefore, there was a complete code in this connection.

Once the State Bar Councils framed such rules and got them

approved by the Bar Council of India, then because of the

thrust of the parent provision of Section 24(1)(d) which was

operative at that time, it became a pre-condition for

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enrolment. There cannot be two parallel pre-conditions of

enrolment which can be simultaneously imposed, one under

Section 24(1)(d) by the concerned State Bar Council by

exercise of its powers under Section 28(2)(b) which existed

on the Statute Book between 1964 to January, 1974 and also

the possible provisions for imposing such pre-conditions for

enrolment by the Bar Council of India taking resort to the

supposed wide wordings of Section 49(1)(ag) during the very

same period as during that period Section 24(1)(d), Section

28(2)(b) and Section 49(1)(ag) conjointly existed on the

statute book. If such a concurrent power is envisaged by

Section 49(1)(ag), then the Bar Council of India instead of

being an approving authority at the relevant time would

itself become a prescribing authority in connection with

pre-enrolment training. It has also to be kept in view that

on the scheme of the Act enrolment of advocates is the task

of the State Bar Councils and not of the Bar Council of

India. It must, therefore, be held that the rule making

power contemplated by the legislature under Section

49(1)(ag) for being exercised by the Bar Council of India

was pertaining to only those classes or categories of

persons who were thought fit to be enrolled as advocates

though they might not be eligible to be enrolled under

Section 24(1) of the Act as it stood on the statute book.

In other words, this enabling rule making power only by

which the Bar Council of India could add to the category of

eligible persons for enrolment which would have otherwise

remained outside the sweep of the statutory scheme of

eligibility for enrolment as laid down by Section 24(1), did

not contemplate any power to curtail the existing

eligibility of applicants under Section 24(1) for enrolment

as advocates. It is only for such additional class or

category of persons that the enabling provision as per the

said rule making power could be available to the Bar Council

of India. It is difficult to appreciate how by any process

of interpretation an enabling provision can be treated as a

restrictive one. In fact, on a conjoint reading of Section

24(3)(d) and Section 49(1)(ag) the conclusion becomes

inevitable that the Bar Council of India in exercise of its

statutory function entrusted to it under sub-section (3)(d)

of Section 24(1) can frame suitable rule for bringing in the

umbrella of enrolment provision those who otherwise would

have remained outside. The rule making power under Section

49(1)(ag) has to take colour from the statutory function

entrusted to the Bar Council of India by Section 24(3)(d).

As we have already held that Section 24(3)(d) does not

enable the Bar Council of India to impose additional

restriction on the eligibility of an applicant who seeks

enrolment as per Section 24(1) by necessary implication

power under Section 49(1)(ag) also cannot enable such an

impermissible exercise. The rule making power under Section

49(1)(ag) is ancillary to the statutory function entrusted

to the Bar Council of India by Section 24(3)(d) and it

cannot travel beyond the said statutory sphere.

So far as Section 49(1)(ag) is concerned, it has also

to be kept in view, as noted earlier that Section 24(3)(d)

and Section 49(1)(ag) were simultaneously introduced in the

Act in 1964. At that time there were specific provisions

regarding pre-enrolment training under Section 24(1)(d) and

Section 28(2)(b). Thus, the enactment of Section 24(3)(d)

and Section 49(1)(ag) could never have been intended to

include implied power/function to make pre-enrolment

training Rules and that too by the Bar Council of India

which had nothing to do at the initial stage of enrolment of

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advocates on the State rolls. In this connection, it is

also useful to refer to section 49(1)(ag) with section 29 of

the Act. Section 29 in terms provides as under:- Subject

to the provisions of this Act and any Rules made thereunder,

there shall, as from the appointed day, be only one class of

persons entitled to practise the profession of Law, namely,

advocates.

Section 49(1)(ag) also deals with the class or

category of persons entitled to be enrolled as advocates.

Thus, by the said provision the Bar Council of India in

exercise of its rule making power can add to the class of

persons contemplated by Section 29 by enlarging the said

class of advocates entitled to practise as full-fledged

advocates. Entitlement to practise the profession of law

necessarily means full- fledged entitlement to plead and

argue cases of their clients before the courts of law.

There cannot be any truncated right to practise profession

of law which is sought to be culled out by Shri P.P. Rao,

learned Senior Counsel for the Bar Council of India on a

conjoint reading of Sections 29 and 49 (1)(ag) of the Act.

That takes us to the last provision on which reliance was

placed by Shri Rao, learned senior counsel for the

respondent. That is Section 49(1)(ah). A mere look at the

said provision shows that it confers rule making power on

the Bar Council of India to prescribe 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. It is, therefore,

obvious that once a person has been enrolled as an advocate

under the Act, his right to practise can be made subject to

certain conditions if the Bar Council of India seeks to

impose such conditions on an enrolled advocate. In other

words, rule making power under Section 49(1)(ah) deals with

a situation which is post enrolment of an advocate and does

not deal with pre-enrolment situation for a candidate

seeking enrolment. The impugned rules provide for

pre-enrolment training. It is true that the Rules also

provide for provisional enrolment. But provisional

enrolment envisaged by the rules is totally dehors the

scheme of the Act. To recall enrolment of advocates is a

function entrusted by the legislature to the State Bar

Councils and not to the Bar Council of India. Section 17

read with Section 24, leaves no room for doubt that a person

who seeks enrolment as an advocate has to show his

eligibility to be brought on State roll of advocates. A

State roll of advocates has to be maintained only by the

State Bar Council. Consequently, there would remain no

occasion for the Bar Council of India to provide for a

condition of pre- enrolment training. The State Bar

Councils alone could provide for pre- enrolment training

till Section 24(1)(d) was on the statute book up to January,

1974. After an advocate is enrolled as a full-fledged

advocate how his right to practise is to be conditioned may

be made a subject matter of rule making power of the Bar

Council of India as per Section 49(1)(ah). But in the facts

of the present case, the aforesaid provision cannot be of

any help to the respondent Bar Council of India for

sustaining the impugned rules for two obvious reasons;

firstly, provision for pre-enrolment training of prospective

advocates is not entrusted by the legislature to the Bar

Council of India while laying down its statutory functions

under Section 7, as seen earlier. Therefore, the very first

part of Section 49 will hit the said rule as it would not be

a rule for discharging the statutory function of the Bar

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Council of India. But there is still a second cogent reason

for showing that clause (ah) of sub-section (1) of Section

49 cannot support the impugned rules. The said rules do not

seek to regulate the right of practice available to an

already enrolled full-fledged advocate. The entitlement of

an enrolled advocate is to be culled out from a conjoint

reading of Sections 17, 24(1) and the definition of advocate

as found in Section 2(1)(a). Once a person is enrolled as

an advocate, how the right to practise of such enrolled

advocate can be regulated or monitored may legitimately form

the subject matter of a rule framed under Section 49(1)(ah).

But the impugned rules by providing the concept of a trainee

advocate with only a limited right to ask for adjournment

and mentioning the cases of his guide totally violate the

scheme of the Act. Section 17 sub-section (2) of the Act

lays down that there can be only two classes of advocates;

senior advocates and non-senior or ordinary advocates. It

is difficult to appreciate how a trainee advocates class

can be created by exercising supposed rule making power of

the Bar Council of India under Section 49(1)(ah). It is

also interesting to note that the Bar Council of India

itself in exercise of its rule making power under Section

49(1)(ah) has framed the Rules laying down conditions under

which an enrolled advocate may not be permitted to practise

or may be suspended from practice or when can he resume

practice. Shri Rao, learned senior counsel for the

respondent, was right when he contended that even though

such rules might have been framed in past, if the rule

making power inheres in the Bar Council of India then such

power can be exercised from time to time by framing

additional rules. However, the question is whether Section

49(1)(ah) confers such a power on the Bar Council of India.

So far as this question is concerned, it has stood answered

against the respondent Bar Council of India by a three Judge

Bench judgement of this Court reported in Indian Council of

Legal Aid & Advice & Ors. case (supra). A.M.Ahmadi, CJI,

speaking for the three Judge Bench, had to consider in the

said decision, the question whether the Bar Council of India

could frame a rule restricting the enrolment of advocates to

the State roll to only those who had not completed 45 years

of age. Holding such rule to be ultra vires the powers of

the Bar Council of India under the Act, it was held that

such a rule could not be sustained under Section 49(1)(ah)

as the said provision dealt with a situation after enrolment

of advocates and could not take in its sweep any situation

prior to their enrolment. Shri Rao, learned senior counsel

for the respondent Bar Council of India, tried to salvage

the situation by submitting that the said decison was per

incuriam on the ground that Section 24(3)(d) was not

noticed. We have already held that Section 24 (3)(d) is the

provision which permits the Bar Council of India by exercise

of rule making power to make otherwise ineligible person

eligible for enrolment and does not act in the reverse

direction to make otherwise eligible persons ineligible.

Once that conclusion is reached, Section 24(3)(d) becomes

totally irrelevant for deciding the question whether the

rule impugned before the three Judge Bench in that case

could have been sustained by the Bar Council of India by

taking resort to Section 24(3)(d). Non-consideration of

such irrelevant provision, therefore, cannot make the ratio

of the decision in the aforesaid case per incuriam. The

second ground on which Shri Rao tried to submit that the

said decision was per incuriam was by inviting our attention

to a Constitution Bench judgment of this Court in re: Lily

Isabel Thomas case (supra). Now it must be kept in view

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that the said decision was rendered in connection with an

entirely different statutory scheme. Section 52 of the Act,

as noted earlier, saves power of the Supreme Court to make

Rules under Article 145 of the Constitution of India for

determining persons who are eligible to practise before the

Supreme Court. Thus, the constitutional power of the

Supreme Court for regulating the working of advocates in the

Supreme Court who were otherwise entitled to practise in any

Court in India under the Act could be validly exercised.

When we turn to the constitutional power of the Supreme

Court under Article 145, we find clearly mentioned therein

that subject to the provisions of any law made by the

Parliament, the Supreme Court may from time to time, with

the approval of the President, make rules for regulating

generally the practice and procedure of the Court including

rules as to the persons practising before the Court. As

Section 52 of the Act has expressly saved the powers of the

Supreme Court under Article 145 for determining the persons

who shall be entitled to practise and plead before the

Supreme Court, Article 145 could operate on its own without

any fetter being imposed by any statutory law enacted by the

Parliament. Accordingly, in the light of Article 145, a

question arose before the Constitution Bench in the

aforesaid case, whether the Supreme Court was competent to

enact a rule in connection with advocates practising before

it, who could act as an advocate on record subject to their

passing examination as laid down under the rules. The term

persons practising before the Court as laid down by

Article 145(1)(a) in connection with such rule making power

was interpreted to take in its sweep not only persons

actually practising but even entitled to practise before the

Supreme Court. In this connection, the phraseology found in

the Union List in the 7th Schedule of the Constitution in

Entry 77, namely, persons entitled to practise before the

Supreme Court was held to be in pari materia with the phrase

persons practising before the Court as found in Article

145(1)(a). In the light of the aforesaid wide sweep of

Article 145(1)(a), expressly saved by Section 52 of the Act

it was held that the rule laying down examination to be

undergone by practising advocates before the Supreme Court

before they could act as advocates on record was within the

rule making power of the Supreme Court. It is difficult to

appreciate how the aforesaid decision of the Constitution

Bench rendered in the light of an entirely different

constitutional scheme can be of any assistance to the Bar

Council of India in the present case. For sustaining the

rule making power of the Bar Council of India, the express

provisions of Section 7 and Section 24(3)(d) read with

Section 49(1)(ah) would be the only relevant provisions

which were considered by this Court in a three Judge Bench

judgment Indian Council of Legal Aid & Advice & Ors. case

(supra). The ratio of the Constitution Bench judgment

rendered in connection with an entirely different question

posed for decision in the light of the relevant provisions

of the constitutional scheme dealing with the rule making

power of the Supreme Court under Article 145, therefore,

cannot be said to be laying down anything contrary to what

the three Judge Bench judgment laid down in connection with

this very statutory scheme which squarely arises for

consideration in the present case. Hence, even the second

ground canvassed by learned senior counsel, Shri Rao for the

Bar Council of India, for whittling down the binding effect

of the aforesaid three Judge Bench judgment of this Court,

cannot be sustained.

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We may at this stage note one submission of Shri

C.S.Vaidyanathan, learned Additional Solicitor General. He

contended that the impugned Rules 15A to 15C atleast can be

sustained under the rule making power of the Bar Council of

India under section 49(1)(ah) of the Act. It is not

possible to agree with this contention for the simple reason

that by the impugned rules no training is prescribed

subsequent to enrolment under the Act. Rules seek to impose

pre- enrolment training, as noted earlier. Consequently,

such a rule cannot be sustained under the aforesaid

provision as clearly ruled by a Three Judge Bench Judgment

of this Court in Indian Council of Legal Aid & Advice

Boards Case (supra). Even that apart, a close look at

Section 49(1)(ah) clearly shows that the said provision

enables the Bar Council of India to lay down conditions

subject to which an advocate who has already got enrolled

can have a right to practise. Right to practise as

available to an advocate duly enrolled under the Act is a

full-fledged right to practise which, as noted earlier,

would include not only seeking adjournments but also to

plead and argue for the client for whom he appears before

the Court. Thus any truncating of the very right to

practise itself in exercise of rule making power under

Section 49(1)(ah) by creating a new class of trainee

advocates cannot be sustained by the said provision. All

that the said provision enables the Bar Council of India to

do is to frame a rule under the said provision which may

impose conditions subject to which an enrolled advocate can

carry on his full-fledged practice as an advocate. In this

connection, it is profitable to look at the very Rules

earlier enacted by the Bar Council of India under Section

49(1)(ah) of the Act. They are found in Part VI,

Chapter-III of the Bar Council of India Rules. We have

already referred to the gist of these Rules earlier.

However, it will be profitable to extract these Rules in

extenso to highlight the scope and ambit of rule making

power vested in the Bar Council of India under Section

49(1)(ah) as until now understood by the very same rule

making authority.

Conditions for right to practise 1. Every Advocate

shall be under an obligation to see that his name appears on

the roll of the State Council within whose jurisdiction he

ordinarily practices.

PROVIDED that if an advocate does not apply for

transfer of his name to the roll of the State Bar Council

within whose jurisdiction he is ordinarily practising within

six months of the start of such practice, it shall be deemed

that he is guilty of professional misconduct within the

meaning of section 35 of the Advocates Act.

2. An Advocate shall not enter into a partnership or

any other arrangement for sharing remuneration with any

person or legal Practitioner who is not an Advocate.

3. Every Advocate shall keep informed the Bar Council

on the roll of which his name stands, of every change of his

address.

4. The Council or a State Council can call upon an

advocate to furnish the name of the State Council on the

roll of which his name is entered, and call for other

particulars.

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5. (1) An Advocate who voluntarily suspends his

practice for any reason whatsoever, shall intimate by

registered post to the State Bar Council on the rolls of

which his name is entered, of such suspension together with

his certificate of enrolment in original.

(2) Whenever any such advocate who has suspended his

practice desires to resume his practice, he shall apply to

the Secretary of the State Bar Council for resumption of

practice, along with an affidavit stating whether he has

incurred any of the disqualifications under Section 24A,

Chapter III of the Act during the period of suspension.

(3) The Enrolment Committee of the State Bar Council

may order the resumption of his practice and return the

certificate to him with necessary endorsement. If the

Enrolment Committee is of the view that the Advocate has

incurred any of the disqualifications the Committee shall

refer the matter under proviso to Section 26(1) of the Act.

(4) On suspension and resumption of practice the

Secretary shall act in terms of Rule 24 of Part IX.

6. (1) An Advocate whose name has been removed by

order of the Supreme Court or a High Court or the Bar

Council as the case may be, shall not be entitled to

practice the profession of Law either before the Court and

authorities mentioned under Section 30 of the Act, or in

chambers, or otherwise.

(2) An Advocate who is under suspension, shall be

under same disability during the period of such suspension

as an Advocate whose name has been removed from the roll.

7. An officer after his retirement or otherwise

ceasing to be in service shall not practise for a period of

two years in the area in which he exercised jurisdiction for

a period of 3 years before his retirement or otherwise

ceasing to be in service.

RESOLVED that nothing in these Rules shall prevent any

such person from practising in any Court or tribunal or

authority of superior jurisdiction to one in which he held

office.

Explanation: Officer shall include a Judicial

Officer, Additional Judge of the High Court and Presiding

Officer or Member of the Tribunal or authority or such other

Officer or authority as referred to in Section 30 of the

Act.

Area shall mean area in which the person concerned

exercising jurisdiction.

8. No Advocate shall be entitled to practice if in

the opinion of the Council he is suffering from such

contagious disease as makes the practice of Law a hazard to

the health of others. This disqualification shall last for

such period as the Council directs from time to time.

These rules show that subject to the conditions laid

down in these rules an enrolled advocate can practise as a

full-fledged advocate. His right once granted cannot be

restricted qua his acting in the Court when remaining

enrolled as an advocate on the State roll. It must,

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therefore, be held that Section 49(1) (ah) cannot sustain

the impugned rules. Shri Rao next contended that Section

34(1) of the Act which deals with the rule making power of

the High Court enabling it to lay down conditions subject to

which an advocate shall be permitted to practise in the High

Court is pari materia with Section 49(1)(ah). It clearly

shows that the High Court can by Rules restrict and impose

conditions on practising advocates before it or before any

subordinate Court. Similarly, the Bar Council of India can

also in exercise of similar statutory rule making power

under Section 49(1) of the Act, do so. We fail to

appreciate how this analogy can be of any avail to Shri Rao

for the respondent Bar Council of India. Once an advocate

is already enrolled on the State roll conditions subject to

which he can practise before the High Court or Court

subordinate to it, can be laid down by the High Court by its

rule making power under Section 34(1). This necessarily is

a situation which is post enrolment. Similar situation

would fall for consideration if the Bar Council of India

seeks to exercise its power under pari materia rule making

power under Section 49(1)(ah) but as the impugned rules

travel backwards and seek to enter upon and monitor

pre-enrolment situation, the said exercise obviously remains

in a forbidden field for the Bar Council of India. It has

also to be appreciated that the powers of the constitutional

Courts like the High Courts which are Courts of record stand

on an entirely different footing as compared to powers of

statutory authority like the Bar Council of India which has

to justify exercise of its powers within the four corners of

the Statute which has created it. It is also not the

submission of any learned counsel before us that any of the

High Courts has framed any rule requiring the State Bar

Councils not to enrol any advocate on its roll if he has not

undertaken any pre-enrolment training by resorting to its

rule making power under Section 34(1). It is only the Bar

Council of India which has tried to do so by enacting the

impugned rules. Consequently, any assistance sought to be

received by Shri Rao for the Bar Council of India from

Section 34(1) on the analogy of the High Courts rule making

power also cannot be any avail to him. These were the only

contentions canvassed by learned senior counsel Shri Rao for

the respondent Bar Council of India for sustaining the

impugned rules and as we have found that none of these

contentions can be sustained, the inevitable result is that

the impugned rules fail and must be held to be still born

being beyond the rule making power of the Bar Council of

India. Point No.1, therefore, has to be answered in

affirmative in favour of the writ petitioners and the

appellant in appeal arising out of SLP (C) No.13755 of 1996

and against the respondent Bar Council of India in the writ

petitions and which is also the appellant in appeal arising

out of SLP (C)No.12989 of 1998.

Point Nos.2 & 3: In view of our findings on point

no.1, it is not necessary to consider these two points and,

therefore, were not answered. Before parting with these

matters, it is necessary to note that in the light of the

experience of various Courts in which advocates are

practising since the time the Advocates Act has come into

force, the Law Commission of India and other expert bodies

that were entrusted with the task of suggesting improvements

in the standards of legal education and legal practitioners

felt it necessary to provide for compulsory training to

young advocates entering the portals of the Court rooms.

Training under senior advocates with a view to equip them

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with court craft and to make them future efficient officers

of the court became a felt need and there cannot be any

dispute on this aspect. In fact, the question of making

some suggestions regarding admission to law Colleges,

syllabus, training, period of practice at different levels

of courts etc., was taken up as Item No.16 in the last

Conference of the Chief Justices held in December, 1993.

The Conference resolved that Honble the Chief Justice of

India be requested to constitute a Committee consisting of

Honble Mr.Justice A.M.Ahmadi as its Chairman, and two other

members to be nominated by Honble the Chief Justice of

India to suggest appropriate steps to be taken in the matter

so that the law graduates may acquire sufficient experience

before they become entitled to practise in the courts. The

said High Power Committee, after inviting the views of the

Chief Justices and State Bar Councils as well as the Bar

Council of India made valuable suggestions. The relevant

suggestions in connection with legal education are

suggestion nos.1, 12, 13, 15, 16 which are required to be

noted. They read as under : 1. In laying down the

standards of Legal Education, the Bar Councils Legal

Education Committee constituted under Rule 4 of Chapter III

of the Bar Council of India Rules, 1965 must reflect the

participation of representatives of (1) the Judiciary, (2)

the Bar Council and (3) the U.G.C. It is proposed that the

Rules be amended and the Legal Education Committee be

restructured to involve the bodies above-mentioned. Xx xx

xx 12. Rule 21 of the Bar Council Rules directing that

every University shall endeavour to supplement the lecture

method with case method, tutorials and other modern

techniques of imparting Legal Education must be amended in a

mandatory form and it should include problem method, moot

courts, mock trials and other aspects and make them

compulsory. 13. (i) Participation in moot courts, mock

trials, and debates must be made compulsory and marks

awarded, (ii) Practical training in drafting pleadings,

contracts can be developed in the last year of the study,

and (i ii) Students visits at various levels to the

Courts must be exposu re. ma de compulsory so as to provide

a greater Xx xxxx 15. Entrance into the Bar after 12 months@@

II

or 18 months of Apprenticeship with Entry Examination. For

obtaining the Licence/Sanad from State Bar Councils it must

be prescribed that one should secure at least 50 per cent or

60 per cent marks at the Bar Council Examination. 16. So

far as the training under a Senior Lawyer during the period

of one year or 18 months of apprenticeship, the Act or the

Rules must stipulate that the senior must have at least 10

or 15 years standing at the District Court/High Court and

the students diary must reflect his attendance for three

months in the grass root level in a civil court and for

three months in a Magistrates court and at least six months

in a district court. The Advocate in whose office he works

must also certify that the student is fit to enter the Bar.

Unless these formalities are completed, the student should

not (sic) be permitted to sit for the Bar Council

Examination. Xx xx xx

It is true that these suggestions of the High Power

Committee clearly highlighted the crying need for improving

the standards of legal education and the requirements for

new entrants to the legal profession of being equipped with

adequate professional skill and expertise. There also

cannot be any dispute on this aspect. However, as the

saying goes a right thing must be done in the right

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manner. We appreciate the laudable object with which the

Bar Council of India has framed the impugned rules for

providing training to the young entrants to the profession

by laying down details as to how they should get appropriate

training during their formative years at the Bar.

Unfortunately, for the Bar Council of India that right thing

has not been done in the right manner. We equally share the

anxiety of the Bar Council of India for evolving suitable

methods for improving the standards of legal education and

legal profession. The aforesaid recommendations made by the

High Power Committee could have been put into practice by

following appropriate methods and adopting appropriate

modalities by the Bar Council of India. Unfortunately, the

attempt made by the Bar Council of India by enacting the

impugned rules has resulted into firing at the wrong end

though backed up by a very laudable purpose. We may in this

connection usefully refer to what the High Power Committee

itself observed at page 30 of the Report in connection with

Entrance into the Bar after 12 months or 18 months of

Apprenticeship with Entry Examination : Section 28(2) (b)

of the Advocates Act, 1961 as it stood in 1961, empowered

the State Bar Councils to make Rules for practical training

in Law Courts and for a Bar Council Examination. In

exercise thereof Rules were framed by Bar Councils in the

States prescribing the training and Bar Council Examination.

Unfortunately the same was omitted later on in the Act by

amendment and this has been the second major factor

responsible for the deterioration of standards in the legal

profession. Now that the Bar Council of India is wanting

the reintroduction of Section 28(2)(b) by Parliament for

training the Law Graduates for a period and for conducting

the Bar Council Examination, the Central Government must

soon re-enact the provision. But the new section must say

that the method of training and the Examination must be such

as may be prescribed by the Chief Justice of India after

considering the views of the Bar Council of India. As this

matter pertains to entry into the legal profession for

practice in Courts, the final authority in this behalf must

be with the Chief Justice of India but after obtaining the

views of the Bar Council of India. So far as the percentage

of marks to be obtained for purposes of receiving a

licence/sanad from the State Bar Councils, it must be

prescribed that one should secure at least 50 per cent or 60

per cent marks at the Bar Council examination. So far the

training under a senior Lawyer during the period of one year

or 18 months of apprenticeship, the Act or Rules must

stipulate that the senior must have at least 10 or 15 years

standing at a District Court/High Court and that the

students diary must reflect his attendance for three months

in the grassroot level in a Civil Court and for three months

in a Magistrates Court and at least six months in a

District Court/High Court. The Advocate in whose office he

works must also certify that the student is fit to enter the

Bar. Unless these formalities are completed, the student

should not be permitted to sit for the Bar Council

Examination above-mentioned.

These observations of the High Power Committee clearly

indicate that it was the stand of the representative of the

Bar Council of India before them that Section 28(2)(b) which

was earlier on the statute book and was deleted by the

Parliament, was required to be reintroduced. In other

words, it was felt by the Bar Council of India itself before

the High Power Committee that for providing pre-enrolment

training to prospective advocates relevant amendments to the

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Act were required to be effected. It is easy to visualise

that appropriate amendments in Sections 7 and 24(1) would

have clothed the Bar Council of India with appropriate power

of prescribing such pre-enrolment training for prospective

entrants at the Bar. That would have provided appropriate

statutory peg on which the appropriate rule could have been

framed and hanged. It is also necessary to note in this

connection that merely leaving the question of providing

pre-enrolment training and examination to only the State Bar

councils may create difficulties in the working of the All

India Statute. It goes without saying that as an enrolled

advocate is entitled to practise in any court in India,

common standard of professional expertise and efficient

uniform legal training would be a must for all advocates

enrolled under the Act. In these circumstances, appropriate

statutory power has to be entrusted to the Bar Council of

India so that it can monitor the enrolment exercise

undertaken by the State Bar Council concerned in a uniform

manner. It is possible to visualise that if power to

prescribe pre-enrolment training and examination is

conferred only on the State Bar Councils, then it may happen

that one State Bar Council may impose such pre-enrolment

training while another Bar Council may not and then it would

be easy for the prospective professional who has got

requisite law degree to get enrolment as the advocate from

the State Bar Council which has not imposed such

pre-enrolment training and having got the enrolment he may

start practice in any other Court in India being legally

entitled to practise as per the Act. To avoid such an

incongruous situation which may result in legal evasion of

the laudable concept of pre-enrolment training, it is

absolutely necessary to entrust the Bar Council of India

with appropriate statutory power to enable it to prescribe

and provide for all India basis pre-enrolment training of

advocates as well as requisite apprenticeship to make them

efficient and well informed officers of the Court so as to

achieve better administration of justice. We, therefore,

strongly recommend appropriate amendments to be made in the

Act in this connection.

We may also mention that till the Parliament steps in

to make suitable statutory amendments in the Act for

providing pre- enrolment training to prospective advocates

seeking enrolment under the Act, the Bar Council of India by

way of an interim measure can also consider the feasibility

of making suitable rules providing for in-practice training

to be made available to enrolled advocates. Such an

exercise may then not fall foul on the touchstone of Section

49(1)(ah). The impugned rules can be suitably re-enacted by

deleting the condition of pre-enrolment training to

advocates and instead of treating them to be a hybrid class

of trainee advocates with limited right of audience in

courts, may provide in-practice training to already enrolled

advocates atleast for the first year of their practice as

professionals. Such rules can also provide for appropriate

stipend to be paid to them by their guides, if during that

period such enrolled junior advocates are shown to have no

independent source of income. Then in the light of Section

17(2) of the Act such newly enrolled advocates who are

required to undergo in- practice training for first one year

of their entry in the profession can legitimately fall in

the category of other advocates apart from senior

advocates as contemplated by that provision.

We may also mention that all learned counsel for the

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petitioners and the appellant, Bar Council of Maharashtra

readily agreed to framing of such a rule by the Bar Council

of India. This would remove the infirmity in the impugned

rules in so far as they tried to create an entirely new and

truncated class of trainee advocates who can only ask for

adjournment and may mention the matters in the courts. It

would make them full-fledged advocates entitled to practise

law with full vigour in the very first year of their entry

in the profession if they are entrusted with the task of

arguing matters either by their seniors or by their guides

or by their clients who may impose confidence in them. This

would also avoid unnecessary complications of deemed

seniority and subsequent retrospective grant of seniority on

successful completion of training. This will also guarantee

them proper training in the chamber of senior advocates as

their guides. Successful completion of training by

advocates who are new entrants to the profession of law and

the corresponding obligation of their guides would make them

liable to disciplinary action by the State Bar Councils on

the ground of misconduct if they do not discharge their

obligations either as stipendiary or non-stipendiary junior

advocates on the one hand and their guides on the other. As

they would be full-fledged advocates the disciplinary

jurisdiction of the State Bar Council can also get

effectively attracted in connection with their alleged

misconduct if any. This type of in-practice training would

remove all the unnecessary hardship and can be well

sustained under the statutory scheme of the Act and the rule

making power of the Bar Council of India. We recommend the

Bar Council of India to look into this aspect for the

benefit of legal profession as a whole so that the void that

will be created by our striking down of the impugned rules

and till future statutory amendment, if any, is carried out

by the Parliament as recommended by us in this judgment, can

be effectively filled in by exercise of rule making power by

the Bar Council of India, as aforesaid.

Before parting with this aspect of the matter, we may

also mention that in the present proceedings at an earlier

stage a bench of this court which was then seized of this

matter after listening to arguments of the parties for some

time had observed that the Legal Education Committee and the

Bar Council of India should once again consider the

recommendations of the Honble Three Judges Committee, the

Law Ministers Conference and the recommendations made in

the Fourteenth Law Commission Report at pages 548 to 550.

The Court also gave appropriate suggestions. The said

suggestions have been brought on the record of this case by

way of copy of a letter addressed by advocate Shri Sanjeev

Sachdeva dated 24th September, 1977 to the Chairman, Bar

Council of India. The said suggestions read as under :- a.

Only graduates should be allowed to take the degree course

in law.

b. The University course in law should extend for a

period of two years and should be confined to the teaching

of theory and principles of law. Procedural, taxation and

other laws of a practical character should not be included

in the University Course.

c. Entry to the law colleges should be restricted by

a system of strict tests so that only deserving candidates

are admitted. This restriction of admission is necessary so

that proper standards of teaching may be maintained.

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d. A person who after obtaining his degree wishes to

enter the profession should pursue a professional course

conducted by the Bar Council in procedural and practical

subjects.

e. The Bar Councils should arrange lectures for the

benefit of apprentices undergoing this professional course.

f. Attendance by the apprentice of a certain minimum

number of lectures should be made compulsory.

g. Those who wish to enter the legal profession

should be required to work in the chambers of an experienced

lawyer and maintain diaries showing the work done by them.

h. The apprentice course should be of one years

duration.

i. The apprentices should be subjected to a very

stiff practical test.

These suggestions were communicated to the Bar Council

of India by its advocate Shri Sanjeev Sachdeva in the said

letter. It is profitable to extract what was sought to be

conveyed to the Bar Council of India as recommendations from

this Court : It also fell from their Lordships that the

training should be part of the curriculum of the University

and should not extend the period of study beyond the

existing three years or five years as the case may be. It

also fell from their lordships that the Training could be

under the supervision of the respective High Courts of the

State and the State Bar Councils.

It also fell from their Lordships that the training

need not be restricted to merely attending to the Chamber

but may also include attending to the court under the

supervision of the concerned Court staff.

It is also to be considered whether post enrolment

training for one year or less is at all required for those

entrants to the profession who have already worked as

solicitors article trainees for a number of years before

they apply for being enrolled as advocates. The nature of

the training which they have already undertaken while

working in the firms of solicitors may pose the question

whether any duplication of training or any additional

training is required for them for entering the legal

profession as advocates. Another aspect which requires

consideration by the Bar Council of India is as to whether

the corporate lawyers meaning those who have already

acquired sufficient legal training while working in the

corporate offices as law officers should be subjected to

such post enrolment training either wholly or even

partially. The Bar Council of India may do well to consider

all these relevant aspects before taking any decision on

this vexed question. We hope and trust that at least now

the Bar Council of India may do well to look into these

suggestions as well as the observations made by us in the

present judgment for salvaging the situation for the entire

legal profession in India and for putting young entrants at

the bar on right track so that after appropriate in-practice

training which they get from senior advocates and their

guides they can turn out to be efficient advocates for

serving the suffering humanity having legal problems to be

redressed through them and for helping the cause of justice

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more effectively. [Before concluding these proceedings, we

must mention that it would be necessary to direct that the

present judgment will operate only prospectively to avoid

unnecessary confusion and complications. It is, therefore,

made clear that because of the quashing of the impugned

rules, only applicants who apply for the first time for

enrolment after the date of the present judgment, will not

have to undergo pre-enrolment training. However, those

applicants who have already applied for such enrolment

during the time the impugned rules were in operation and

have completed their pre-enrolment training or are in the

process of completion of their training and have still not

been enrolled will not get the benefit of the present

judgment.]

A copy of this judgment is directed to be sent to the

Chairman, Law Commission of India, Secretary, Department of

Law and Justice, Government of India for considering what

appropriate steps can be taken in this connection.

In the result, these writ petitions are allowed. The

impugned rules are struck down. Appeal arising out of the

S.L.P. filed by the Bar Council of Maharashtra & Goa is

allowed. The impugned judgment of the High Court is set

aside. The writ petition filed by the Bar Council of

Maharashtra & Goa is accordingly, allowed. The appeal filed

by the Bar Council of India arising out of SLP (C)No.12989

of 1998 is dismissed on the ground that the question

regarding retrospective effect of the impugned rules will

not survive as the Rules themselves are struck down. The

final decision of the High Court allowing the writ petition

of the respondent is sustained on the aforesaid ground.

There will be no order as to costs in all these cases.

J. [S.B. Majmudar ]

...J. [ S.N.Phukan ] New Delhi, March 12,

1999.

After this judgment was pronounced on 12th March, 1999

and before it could be signed by both of us, at the request

of learned counsel for the parties, this matter was fixed

today for further directions in connection with the

retrospective operation of this judgment as mentioned in the

last paragraph of page 79. The said paragraph put in

bracket after hearing the parties, will stand substituted as

under :

Before concluding these proceedings, we must mention

that it would be necessary to direct that the present

judgment will operate only prospectively to avoid

unnecessary confusion and complications. It is clarified

that this judgment will have no retrospective effect in the

sense that it will not apply to those applicants for

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enrolment who have earlier applied for enrolment and have

successfully completed their pre-enrolment training as per

the impugned rules. However, all those who apply for

enrolment after this judgment will not have to undergo

pre-enrolment training. This will be irrespective of the

fact whether they had earlier applied for enrolment and have

not completed their pre-enrolment training under the

impugned rules till the date of this judgment or whether

they had not earlier applied for enrolment despite getting

their law degrees prior to the date of this judgment.