Gaurav Kumar vs Union of India and Ors.

Held: While acting as a delegate of Parliament, the SBCs and the Bar Council of India (BCI) can frame rules under the Advocates Act – However, any rule enacted by the SBCs is only ancillary and cannot be so exercised to bring into existence substantive rights, obligations or disabilities not contemplated by the provisions of the parent enactment – Further, the rules must align with the object and purpose of the Advocates Act, namely, the creation of a common bar and regulation of legal practitioners and their qualifications, enrolment, right to practice, and discipline – A delegate cannot act contrary to the express provisions and object of the parent legislation – A delegate cannot widen or constrict the scope of the parent legislation or the legislative policy prescribed under it – A fiscal provision has to be construed strictly and a delegate cannot consider any circumstance, factors or condition not contemplated by the parent legislation – Section 24(1) lays down the qualifications subject to which an advocate may be admitted on a State roll – Section 24(1)(f) provides that the enrolment fee payable by general candidates is Rupees seven hundred fifty and by SC and ST candidates, Rupees one hundred and twenty-five – Section 24(1)(f) reflects the legislative policy of the Advocates Act that subject to the fulfilment of other conditions of Section 24(1), the payment of the stipulated monetary amount will make a person eligible to be admitted as an advocate – Presently, the SBCs charge enrolment fees in the following manner: (i) they charge an enrolment fee according to the legal stipulation under Section 24(1)(f), but charge miscellaneous fees, and (ii) they charge an enrolment fee beyond the legal stipulation in addition to charging miscellaneous fees – The SBCs cannot charge “enrolment fees” beyond the express legal stipulation under Section 24(1)(f) as it currently stands – Therefore, prescribing enrolment fees beyond Rupees seven hundred for general candidates and Rupees one hundred twenty-five for SC and ST candidates is contrary to Section 24(1)(f) – The subject matter of enrolment fee is covered by the Advocates Act – Therefore, the SBCs, being delegated authorities, do not have any legislative powers to prescribe enrolment fees contrary to the statutory stipulation – Section 24(1)

(f) specifically lays down the fiscal pre-conditions subject to which an advocate can be enrolled on State rolls – The SBCs and the BCI cannot demand payment of fees other than the stipulated enrolment fee and stamp duty, if any, as a pre-condition to enrolment – The decision of the SBCs to charge fees and charges at the time of enrolment in excess of the legal stipulation under Section 24(1)(f) violates Article 14 and Article 19(1)(g) of the Constitution. [Paras 58, 66, 67, 68, 109(b), 109(c)] Advocates Act, 1961 – All India Bar Committee – Legal Background – discussed.

Advocates Act, 1961 – A Complete Code – Admission and enrolment of advocates:

Held: The provisions of the Advocates Act indicate that it provides a complete machinery to deal with the admission and enrolment of advocates – The SBCs are vested with sufficient powers to ensure effectual and complete implementation of the enactment. [Para 26] Delegated Legislation – When can a delegated legislation be challenged:

Held: It is well established in Indian Express Newspapers (Bombay) (P) Ltd v. Union of India [1985] 2 SCR 287 and State of Tamil Nadu v. P Krishnamurthy [2006] 3 SCR 396 that delegated legislation can be challenged on the following grounds: (i) lack of legislative competence to make delegated legislation; (ii) violation of fundamental rights guaranteed under the Constitution; (iii) violation of any provision of the Constitution; (iv) failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act; (v) repugnance to any other enactment; and (vi) manifest arbitrariness. [Para 28] Constitution of India – Arts.265 and 366 – Power to levy fees: Held: (i) a fee is an impost in terms of Article 366(28); (ii) the expression “tax” occurring in Article 265 means all imposts, including fees and therefore any fee must be levied by the authority of a valid law; (iii) fees being a compulsory exaction of money, the power to levy fees cannot be implied; (iv) delegation of the power to levy fees to a delegate of the legislature should be specifically provided for under the parent legislation; and (v) the delegate must strictly act within the parameters of the legislative policy laid down by the parent legislation when levying fees and taxes.[Para 34] Constitution of India – Advocates Act, 1961 – s.24(1)(f) – Enrolment fee meets the characteristic of a Regulatory Fees: Held: The State grants a licence to regulate a particular trade, business, or profession – These regulatory activities entail a duty on behalf of the State or its instrumentalities to supervise, regulate, and monitor that particular trade, business, or profession – Because such activities require the State to expend public resources, the State can charge licence fees to defray the administrative costs – The enrolment fee stipulated by Section 24(1)(f) of Advocates Act meets the characteristic of a regulatory fee. [Paras 35, 38] Advocates Act, 1961 – s.24(1)(f) – Bar Councils cannot levy fees beyond the express stipulation of law:

Held: Section 24(1)(f) is a fiscal regulatory provision and has to be construed strictly – Parliament has prescribed the enrolment fees in the exercise of its sovereign legislative powers – The SBCs and the BCI, being delegates of Parliament, cannot alter or modify the fiscal policy laid down by Parliament – The delegate can create substantive rights and obligations only to the extent to which the parent enactment empowers the delegate – By prescribing additional fees at the time of enrolment, the SBCs have created new substantive obligations not contemplated by the provisions of the Advocates Act – The basis for the fees imposed by the SBCs has to be traceable to the provisions of the statute – There is no express provision in the Advocates Act empowering the SBCs to levy fees, except for the enrolment fee and stamp duty, if any, under Section 24(1)(f), at the time of admission of advocates on the State roll – The decision of the SBCs to charge miscellaneous fees is contrary to the legislative prescription of the Advocates Act. [Para 70]

Advocates Act, 1961 – s.24 – Charges other than the enrolment fee cannot be a valid pre-condition:

Held: Admission on the roll of advocates is a pre-requisite for any person intending to practice law in India – At the time of enrolment, candidates have little agency but to pay the miscellaneous fees imposed by the SBCs to get enrolled – Non-payment of the fees means that a candidate cannot get enrolled on the State roll – Thus, all the miscellaneous fees collected from a candidate at the time of enrolment essentially serve as a pre-condition to the process of enrolment – Section 24(1) specifically lays down the pre-conditions subject to which an advocate can be enrolled on State rolls – Since Section 24(1)(f) specifies the amount that can be charged by the SBCs as an enrolment fee, the SBCs and the BCI cannot demand payment of fees other than the stipulated enrolment fee as a pre-condition to enrolment. [Para 79] Bar Council of India Rules – Rule 40 under Section IVA of Chapter II of Part VI:

Held: Rule 40 under Section IVA of Chapter II of Part VI under the BCI Rules mandates every advocate borne on the rolls to pay the SBC a sum of Rupees three hundred every third year – The sum under Rule 40 can only be collected from advocates already admitted on the State rolls – Therefore, this sum cannot be collected from persons at the time of enrolment – It must be collected from advocates after they are admitted on the State roll. [Para 80] Constitution of India – Art.14 – Enrolment of advocates – Exorbitant Enrolment fees charged by SBCs – Substantive equality and manifest arbitrariness:

Held: The burden of payment of enrolment fees and other miscellaneous fees imposed by the SBCs falls equally on all persons seeking enrolment – While the burden is facially neutral, it perpetuates structural discrimination against persons from marginalized and economically weaker sections of the society – In more than one way, the process of enrolment perpetuates a culture of systemic exclusion and discrimination that impacts the entry of law graduates into the legal profession and even beyond – The right to pursue a profession of one’s choice and earn livelihood is integral to the dignity of an individual – Charging exorbitant enrolment fees and miscellaneous fees as a pre-condition for enrolment creates a barrier to entry into the legal profession – The levy of exorbitant fees as a pre-condition to enrolment serves to denigrate the dignity of those who face social and economic barriers in the advancement of their legal careers – This effectively perpetuates systemic discrimination against persons from marginalized and economically weaker sections by undermining their equal participation in the legal profession – Therefore, the current enrolment fee structure charged by the SBCs (Eg: the Bar Council of Maharashtra and Goa charges a cumulative fee of Rupees fifteen thousand from the general candidates and Rupees fourteen thousand five hundred from SC and ST candidates) is contrary to the principle of substantive equality. [Paras 84, 90]

Constitution of India – Art. 19(1)(g) – The right to practice law – Fees or licences levied by the authorities – Unreasonableness: Held: According to the current enrolment fee structure of the SBCs, an advocate has to pay anywhere between Rupees fifteen thousand to Rupees forty-two thousand as a pre-condition to enrolment – The SBCs charge enrolment fees in excess of the stipulated fee prescribed under Section 24(1)(f) – The excess enrolment fee imposed by the SBCs is without authority of law – Compounded with this there are no reasonable criteria behind the decision of the SBCs to charge such exorbitant amounts as enrolment fees – The SBCs cannot have unbridled powers to charge any fees given the express legislative policy under Section 24(1)(f) – Imposing excessive financial burdens on young law graduates at the time of enrolment causes economic hardships, especially for those belonging to the marginalized and economically weaker sections of the society – Therefore, the current enrolment fee structure charged by the SBCs is unreasonable and infringes Article 19(1)(g). [Para 102]

Advocates Act, 1961 – Exorbitant Enrolment fees charged by the SBCs – Financial implications for the SBCs and the BCI: Held: According to the legislative scheme of the Advocates Act, the Bar Councils must only charge the amount stipulated under Section 24(1)(f) as an enrolment fee – Once the advocates are enrolled on the State rolls, the Bar Councils can charge fees for the services provided to the advocates in accordance with the provisions of the Advocates Act – It is for the SBCs and the BCI to devise an appropriate method of charging fees that is fair and just not only for the law graduates intending to enroll, but also for the advocates already enrolled on the State rolls – There are several reasonable ways by which the SBCs and BCI can and already do collect funds at later stages of an advocate’s career. [Paras 103, 104]