Bar Council of India vs Bonnie Foi Law College & Ors.

Disposing of the appeal and the petitions, the Court HELD: 1.1 The object of Parliament enacting the Advocates Act, 1961 was to consolidate the law relating to legal practitioners. The prominent role of the Bar Council of India, the apex body, is apparent from the functions prescribed for the Bar Council of India under Section 7 of the said Act. Clause (h) of Sub-Section (1), provides for promotion of legal education and for laying down standards of such education in consultation with Universities in India and State Bar Councils. Sub-Clause (m) is in the nature of a residuary clause, having the widest amplitude to do all other things necessary for discharging the aforesaid functions. These provisions do not entrust the Bar Council of India with direct control of legal education, as primarily legal education is within the province of the universities. Yet, the Bar Council of India, being the apex professional body of the advocates, is concerned with the standards of legal profession and the equipment of those who seek entry into that profession. Neither these provisions, nor the role of the universities to impart legal education, in any way, prohibit the Bar Council of India from conducting preenrolment examination, as the Council is directly concerned with the standard of persons who want to obtain a license to practice law as a profession. Section 24 of the said Act prescribes as to who are the persons who may be prescribed as Advocates on State roll. Sub-Section (1) of Section 24 provides conditions fulfilling which a person shall be qualified to be admitted as an advocate on a State roll. Sub-Section (3) of Section 24 of the said Act begins with the non-obstante clause qua Sub-Section (1) by stating “notwithstanding anything contained in Sub-Section (1)”. Clause (d) of Sub- Section (3) of Section 24 of the said Act refers to the entitlement to be enrolled as an Advocate under any Rule made by the Bar Council of India in this behalf.It is under Clause

(d) of Sub-Section (3) of Section 24 of the said Act that the Bar Council of India sought to introduce the All India Bar Examination, which would be uniformly applicable irrespective of the recognised educational institutions from which a person would complete law before he was enrolled at the Bar. It is this endeavour of the Bar Council of India, which came to be assailed in the judgment of this Court in V. Sudeer and that challenge succeeded. Judgment in V. Sudeer have to be looked carefully as in the reference order to the Constitution Bench, the first two questions referred to this Court really emanate from this judgment i.e. the authority of the Bar Council of India to provide for pre-enrolment training in terms of the 1995 Rules and whether pre-enrolment examination can be prescribed by the Bar Council of India under the said Act. In terms of the 1995 Rules, trainee advocates are entitled to appear in court for seeking adjournments and to make mentioning on instruction of their guides, after their provisional enrolment. The third question framed for reference refers to Section 49(1)(ah) of the said Act for providing a post-enrolment examination if the answers to the first two questions are in negative.[Paras 20-22, 26][360-D-H; 361-A-B; 362-B-C]

1.2 The powers of the State Bar Councils and the Bar Council of India have to be read in the context of their respective statutory provisions. The powers are not pari materia. Bar Council of India has much larger powers and authority. This Court is unable to agree with the reasoning in V. Sudeer that because the State Bar Councils’ power for providing training or for holding examination was taken away by the 1973 Amendment, it ipso facto amounts to taking away such powers if they so vested with the Bar Council of India. The legislative object was clear i.e. not to confer such powers on the State Bar Councils. However, that could not affect the position of the power of the Bar Council of India, and naturally such a power existed. If the Bar Council of India never had such a power, then the same could not be read by implication. But, if the Bar Council of India had sufficient powers, then the 1973 Amendment would not take away those powers of the Bar Council of India as the said amendment did not deal with the aspect of the powers of the Bar Council of India. The functions of the Bar Council of India, as specified under Section 7, inter alia prescribe an exercise of general supervision and control over the State Bar Councils under Clause (g) of SubSection (1) of Section 7. Further, under Sub-Clause (l), the Bar Council of India has the power to perform all other functions conferred on it by or under the said Act and under Clause (m) to do all other things necessary for discharging the aforesaid functions. The powers are, thus, wide and extensive as conferred by the legislature. Thus, when under Section 24(1), the Bar Council of India has the statutory power of prescribing Rules subject to which a person may be treated as qualified to be admitted as an Advocate in the State roll, then the Bar Council of India is not devoid of its jurisdiction in undertaking a preenrolment training course or examination prescribed by the Bar Council of India. Section 49(1)(ag) of the said Act, which while dealing with the general powers of the Bar Council of India to make rules, specifically stipulates that the class or category of person entitled to be enrolled as advocates, is an aspect for which all powers have been conferred on the Bar Council of India. Thus, the provision for an examination for enrolment of advocates by the Bar Council of India can hardly be doubted. [Paras 29-32][363C-H; 364-A-E]

1.3 The objective of the legislature while giving wide powers to the Bar Council of India under Section 49, which gives it the powers to make Rules, read with Section 24(3)(d), which gives it the powers to prescribe the norms for entitlement to be enrolled as an Advocate under the Rules of the Bar Council of India, leads to the conclusion that these are adequate powers with the Bar Council of India under the said Act to provide such norms and Rules. The interdict placed by the judgment of this Court in V. Sudeer on the powers of the Bar Council of India cannot be sustained and it cannot be held that V. Sudeer lays down the correct position of law. It has to be left to the Bar Council of India as to at what stage the All India Bar Examination has to be held – pre or post. [Paras 33-36][364-E-H; 365-A] V. Sudeer v. Bar Council of India (1999) 3 SCC 176 : [1999] 1 SCR 1048 – held not correct law.

2. Students who have cleared all examinations to be eligible to pursue the final semester of the final year course of law, on production of proof of the same, could be allowed to take the All India Bar Examination. The result of the All India Bar Examination would be subject to the person passing all the components required under the course of study of the University/College. This would be subject to the All India Bar Examination results being valid for a specified period of time. [Para 38][365-E-F]

3. Appropriate rules can be framed laying down that an enrolled advocate who takes up an employment in a non-legal context for a substantial length of time (say for five years) would be deemed to be a new enrolee and in order to regain the qualification, that person would be required to take the All India Bar Examination once more. The requirements of an active legal practice and that of an unconnected job are different. Even if a person has a law degree or enrolment, it does not mean that his ability to assist the court would continue with him if there are long hiatus period of time in some unconnected job. He would have to hone and test his skills afresh. Thus, if there is a substantial break, norms should be specified by the Bar Council of India that to regain that qualification, the person would be subject to re-examination and would be required to take the All India Bar Examination once more. [Para 42][366-G-H; 367-A-B]

4. The other two suggestions made by the learned Amicus that the validity of the result obtained by any candidate in any pre-enrolment or a post-enrolment bar examination must be limited by time which would be a policy matter for the Bar Council of India to consider, and the Bar Council of India can exercise its power to issue directions under Section 48B of the said Act to ensure uniformity and fairness of the procedure followed by each of the State Bar Councils, are agreed with. [Para 43][367-C]

Indian Council of Legal Aid and Advice & Ors. v. Bar Council of India & Anr. (1995) 1 SCC 732 : [1995] 1 SCR 304; Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa (1996) 3 SCC 342 : [1996] 1

Suppl. SCR 51; Satish Kumar Sharma v. Bar Council of H.P (2001) 2 SCC 365 : [2001] 1 SCR 34; Jamshed Ansari v. High Court of Allahabad & Ors. (2016) 10 SCC 554 : [2016] 4 SCR 111; N.K. Bajpai v. Union of India & Anr. (2012) 4 SCC 653 : [2012] 2 SCR 433; O.N. Mohindroo v. Bar council of Delhi and Ors. (1968)

2 SCR 709; Bar Council of India v. Board of

Management, Dayanand College of Law and Ors.

(2007) 2 SCC 202 : [2006] 9 Suppl. SCR 756 – referred to.