Supreme Court Strikes Down Bar Council of India Rule in Advocates Enrolment Due to Ultra Vires Rule-Making and Discrimination. Upper Age Limit of 45 Years for Fresh Enrolment Fails Under Section 24 of the Advocates Act, 1961 and Violates Article 14 of the Constitution.

Case Note & Summary

The dispute arose from writ petitions filed under Article 32 of the Constitution directly before the Supreme Court challenging the constitutional validity of Rule 9 inserted by the Bar Council of India in Chapter III of Part VI of the Bar Council of India Rules. The rule was introduced by Resolution No. 64/93 dated 22 August 1993 and gazetted on 25 September 1993. It provided that a person who had completed the age of 45 years on the date of submitting an application for enrolment as an advocate to a State Bar Council shall not be enrolled as an advocate. The petitioners contended that the rule was inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution and Section 24 of the Advocates Act, 1961. The Bar Council of India defended the rule as bona fide and within the framework of the Act and Constitution, arguing that the right to practise as an advocate was a statutory privilege, not a fundamental right, and that the restriction served the public purpose of saving the legal profession from decay and deterioration. It submitted that persons retiring from government, semi-government and other institutions used their previous contacts to canvass for cases and polluted the minds of young entrants to the profession. The court traced the statutory scheme of the Advocates Act, 1961. Section 24 prescribed the qualifications for admission on a State roll: citizenship, completion of 21 years of age and a law degree. There was no provision prescribing a maximum age for entry into the profession. Section 24A set out disqualifications for enrolment based on conviction for moral turpitude or dismissal from employment, but no age-based disqualification. The functions of State Bar Councils under Section 6 included admission of persons as advocates, preparation and maintenance of rolls, and safeguarding rights and interests of advocates. The Bar Council of India's functions under Section 7 included laying down standards of professional conduct and etiquette, but the Act did not empower it to prescribe conditions for admission and enrolment. Chapter III dealt with admission and enrolment and conferred power on State Bar Councils to make rules for that purpose under Section 28. The primary legal question was whether Rule 9 was ultra vires Section 24 and Section 49(1) of the Advocates Act and whether it violated Article 14. The Court held that Rule 9 operated at the pre-enrolment stage and could not receive shelter under clause (ah) of Section 49(1), which only allowed conditions applicable to an advocate touching the right to practise, after enrolment. Clause (ag) of Section 49(1) also did not permit the Bar Council of India to debar entry into the profession. By framing Rule 9, the Bar Council had virtually introduced an additional clause in Section 24 prescribing an upper age ceiling or inserted a new disqualification in Section 24A. It was within the exclusive domain of the State Bar Councils to admit persons as advocates, and no State Bar Council had made any rule restricting entry after 45 years of age. The Court further held that the rule was discriminatory and arbitrary. There was no reliable statistical or other material to support the inference that ex-government or quasi-government servants indulged in undesirable canvassing after entering the profession. The rule did not debar only such persons but every person who completed 45 years of age before applying for fresh enrolment. At the same time, a person who had enrolled as an advocate while young, later took up a job and kept the sanad in abeyance, could revive the sanad and resume practice after crossing 45 years, notwithstanding the rule. This distinction showed that the rule debarred one group of persons from enrolment while allowing another group to continue practice after 45, thereby violating Article 14. The choice of the age of 45 years was also arbitrary. Accordingly, the petitions were allowed and Rule 9 was struck down as ultra vires the Advocates Act, 1961 and violative of Article 14 of the Constitution.

Headnote

Issue of Consideration

Final Decision

The writ petitions were allowed. Rule 9 of Chapter III of Part VI of the Bar Council of India Rules, inserted by Resolution No. 64/93 dated 22 August 1993, was struck down as ultra vires the Advocates Act, 1961 and violative of Article 14 of the Constitution.

Law Points