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.
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.
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 and the Bar Council of India are empowered to make rules under Section 28 read with Section 49 of the Act.
It was observed that Section 24(1)(f) had been amended twice in order to increase the rate of the enrollment fees and to add the conditions of payment of stamp duty.
"Section 24(1)(f) of the Act of 1961 was amended by the Bar Council of India in 1972 adding the conditions of payment of stamp duty and it was further amended in 1993 increasing rate of enrollment fees and payment of part thereof to the Bar Council of India. Thereafter, by framing appropriate rules, in exercise of power under Section 49 of the Act of 1961, and by publishing the same in the Official Gazette, the said amount was increased. The said exercise of power is within the competence and scope of Section 49 of the Act of 1961 in view of the fact that provisions of Section 24 of the Act of 1961 was expressly made subject to the provisions of Section 49 of the Act of 1961 in the Scheme of the Act."
The Bench went a step further to state that Section 15 of the Advocates' Welfare Fund Act, 2001 implemented the constitution of a Welfare Fund for the benefit of advocates and for matters connected therewith or incidental hereto, provided that 20% of the enrollment fee received by the State Bar Council under Section 24(1)(f) shall be directed to the Fund. Similarly, the amount received by the Bar Council of India would be utilized for various activities for the benefit of the advocate and the litigants as per Section 7 of the Act.
"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."
It was also held that despite the validity of Gazette Notifications dated 26.06.2013 and 20.09.2015 not being challenged in the instant petition, they were to be recorded are being neither ultra vires nor unconstitutional nor against Section 28 of the Act.
Therefore, the increase in the rate of fees has been justified in the Order and on application of principles of harmonious construction, it has been discerned that there is no conflict in the Act and the Rules.
"The Act of 1961 provides entitlement to levy enrollment fees for enrollment as an advocate. Prescribing the right to levy fees be considered to be fundamental and it cannot be whittled by any rule. Prescribing the rate of fees is merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act of 1961. The harmonious construction between the Act and the Rules which governs the field of operation of both the provisions is that the rate as mentioned in Section 24 is to be treated as bare minimum fees which is always amenable for further increase. Since the petitioner has not challenged the validity of either the provisions of Section 24 or 49 of Act of 1961 or Rules framed thereunder, both the provisions shall prevail under the prevail."