Gujarat HC Rejects Challenge To Levy Of Increased Enrollment Fee By Bar Council [Read Judgment]

The Gujarat High Court has dismissed a writ petition which challenged the right of the Bar Council of India and Bar Council of Gujarat to levy as well as increase the fee for enrollment of advocates and issuance of Certificate of Practice as stipulated under the Advocates Act, 1961 and Bar Council of India Rules, 1975. While the power of the Bar Council of India to levy the enrollment fees has been prevented from being whittled, the High Court of Gujarat refrained from going into the question of whether the All India Bar Examination could be conducted as the matter is stated to be before the Supreme Court of India. STATUTORY PROVISIONS Part VI of the Bar Council of India Rules (hereinafter, "Rules") governs the functioning of advocates; Chapter-III in particular governs the Conditions for Right to Practice and these Rules are made in pursuance of Section 49(1)(ah) of the Advocates Act (hereinafter, "Act"). Section 24 of the Act enumerates the conditions which allows a person to be admitted as advocate on a State roll and Section 30 of the Act stipulates that every advocate whose name is entered in the State roll is entitled to practise throughout the territories to which the Act extends. Rules 9 to 11 of Part-VI, Chapter-III of the Rules were inserted by Resolution No. 73/2010 passed by the Bar Council of India. This Resolution laid down the conduction of the All India Bar Examination, which must be undertaken by all advocates in order to receive the Certificate of Practice. Rule 9 states that no advocate shall be entitled to practice without having successfully passed the AIBE and that it should be mandatory for all students graduating from academic year 2009-2010 onwards. While Rule 10 lays down the details regarding the implementation of the AIBE, Rule 11 discusses the Certificate of Practice which is to be issued to a successful advocate on passing of the AIBE. FACTS OF THE CASE The original relief that was claimed by the Petitioner was for the issuance of Writ of Mandamus to Respondent Bar Council of Gujarat to process the application of the Petitioner for registration and enrollment with enrollment fee of Rs. 750/- only and, the second relief was for a Writ to be issued to Bar Council of India and Bar Council of Gujarat to issue Certificate of Right to Practice under Section 30 of the Advocates Act, 1961 without any delay post enrollment. The third prayer seeking for Rules 9 to 11 in Part-VI, Chapter-III of the Rules to be declared ultra vires Sections 24 and 30 of the Act as well as Articles 14, 19(1)(g) and 21 of the Constitution of India, was added by way amendment. It is stated that no further facts and grounds were adduced to support the relief. The Petitioner, whose application for enrollment has not been processed by Bar Council of Gujarat due to non-deposition of fee, has averred that the legality and validity of the Rules 9 to 11 must be challenged as BCI and BCG cannot make Rules exceeding the eligibility criteria enumerated in the Act. HELD The Bench of the Gujarat High Court comprising Chief Justice Vikram Nath and Justice Ashutosh J. Shastri, has dismissed the petition and recorded scathing remarks regarding the inexperience of the advocate who has filed the petition. 1. Challenge to the All India Bar Examination. The Bench noted that the challenge to the AIBE is already sub-judice before the Hon'ble Supreme Court and is to be considered by the Constitution Bench as per an Order dated 18th March, 2016 which was passed in Special Leave Petition (Civil) No. 22337/2008. The 18th March, 2016 Order had recorded that questions that were to be determined were of considerable importance affecting the legal profession in general and had to be authoritatively answered by a Constitution Bench of five judges. The questions which had been referred are: "1. Whether pre-enrollment training in terms of Bar Council of India Training Rules, 1995 framed under Section 24(3)(d) of the Advocates Act, 1961 could be validly prescribed by the Bar Council of India, and if so, whether the decision of this Court in Sudeer v. Bar Council of India & Anr requires reconsideration. 2. Whether a pre-enrollment examination can be prescribed by the Bar Council of India can be prescribed by the Bar Council of India under Advocates Act, 1961. 3. In cases questions Nos. 1 and 2 are answered in the negative, whether a post-enrollment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1)(ah) of the Advocates Act, 1961. In light of the aforementioned Order, the Bench decided not to go into the question of challenge to the AIBE. 2. On challenge to demand of enrollment fee beyond Rs. 750 The Bench noted that conditions of stamp duty and enrollment fees is provided under Section 24(1)(f) of the Act. Additionally, it was further observed that the State Bar Council...

Gujarat HC Rejects Challenge To Levy Of Increased Enrollment Fee By Bar Council [Read Judgment]

Radhika Roy

"Even on the principles of harmonious construction of various provisions of the Act and the Rules, the action of Bar Council of India in increasing the rate of fees cannot be said to unreasonable, unauthorized or ultra vires", HC held

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