Supreme Court Dismisses Plea Challenging BCI's Upper-Age Limit For LLB Admission As Violative Of Competition Act

The Supreme Court on Monday dismissed a plea which alleged that the Bar Council of India has violated the Competition Act by "misusing its dominant position" by imposing an upper-age limit of 30 years for pursuing legal education.The petition was filed by a man, who is in government service now, claiming that by enacting Clause 28 of Schedule III, Rule 11 to Part IV– Rules of Legal Education, 2008 under the Advocates Act, 1961 (barring candidates of General category who have attained the age of more than 30 years from pursuing legal education), the BCI has imposed maximum age restriction upon the new entrants to enter into the legal education and thus, created indirect barriers to the new entrants in the profession of legal service.However, the Court clarified that the dismissal will not come in the way of the petitioner approaching the appropriate legal forum to adjudicate the controversy. It was the case of the appellant that the Clause 28 has been incorporated by the BCI in contravention of Section 4 of the Act by 'misusing its dominant position'.The bench of Justices S. K. Kaul and M. M. Sundresh was hearing the appeal against the November, 2021 judgment of the NCLAT upholding the order passed by the Competition Commission of India(CCI) in January, 2021 whereby the CCI held that the case filed by the Appellant/ Informant under Section 4 of the Competition Act, 2002 does not merit examination. The CCI had held that BCI cannot be regarded as an "enterprise" coming under the Competition Act."You may deem this to be an unreasonable restriction on your right to practice but this is not a Competition matter. Considering how the history of the legal profession is construed to be, we cannot accept this proposition", Justice Kaul told the advocate for the appellant.The bench then proceeded to dictate the following order- "Dismissed. However, the dismissal will not come in the way of the petitioner approaching the appropriate legal forum to adjudicate the controversy."As recorded by the NCLAT in its impugned judgment 8.11.2021, "the grievances of the Appellant/ Informant before the First Respondent/ Competition Commission of India are that (i) the Second Respondent/ 'Bar Council of India' (an elected body of Advocates) and its members had conspired to reduce the competition to its electors by creating indirect entry barriers into the profession of legal service; (ii) That the Second Respondent/ 'Bar Council of India' is misusing its dominant position in controlling the legal education in India through Clause 28 of the Rules of Legal Education, 2008 and as such, the action of the Second Respondent/ 'Bar Council of India' is in breach of Section 4 'Abuse of dominant position' of the Competition Act, 2000."The NCLAT noted that in the aforesaid background, the Appellant before the First Respondent/ Competition Commission of India had sought the relief of declaration that Clause 28 of the Rules of Legal Education, 2008 of the Second Respondent/ 'Bar Council of India' has an illegal and void ab initio one. Further, the Appellant prayed for imposition of maximum possible penalty on the Second Respondent/ 'Bar Council of India' for willful contravention of Section 4 of the Competition Act, 2002."In the instant case, before this 'Tribunal' the seminal point that arises for rumination is whether the Second Respondent/ 'Bar Council of India' comes within the ambit of 'enterprise' as per Section 2(h) of the Competition Act, 2002. In this connection, it is worthwhile for this Tribunal to advert to Section 2(h) of the Competition Act, 2002...As a matter of fact, Section 7(1) of the Advocates Act, 1961 relates to 'Functions of Bar Council of India' (Statutory Body) and the relevant runs as under:'(e) to promote and support law reform; (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 enrolment as an advocate and for that purpose to visit and inspect Universities 3 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; (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'. That apart, Section 49 of the Advocates Act, 1961 under the caption 'General power of the Bar Council of India to make rules' confers power on the Bar Council of India to make rules for discharging its functions under this Act. Undoubtedly, the definition of 'enterprise' is very wide and the definition does not only cover those institutions connected with activities pertaining to goods but also covers activities relating to provisions of 'services' of any kind,...

Supreme Court Dismisses Plea Challenging BCI's Upper-Age Limit For LLB Admission As Violative Of Competition Act

Mehal Jain

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