1995 (1) TMI 382 - SC - Indian Laws

Whether person who has completed the age of 45 years on the date on which he submits his application for his enrollment as an advocate to the State Bar Council shall not be enrolled as an advocate? Held that - On the plain language of the said clause it seems clear to us that under the said provision the Bar Council of India can lay down the conditions subject to which an advocate shall have the right to practise These conditions which the Bar Council of India lay down are applicable i.e. a person who has already been enrolled as an advocate by the concerned State Bar Council. The conditions which can be prescribed must apply at the post - enrolment stage since they are expected to relate to the right to practise. By the impugned rule the entry of those who have completed 45 cars at the date of application for enrolment is sought to be barred. The rule clearly operates at the pre-enrolment stage and cannot therefore receive the shelter of clauses (ah) of Section 49(1) of the Act. Under the said clause conditions applicable to an advocate touching his right to practise can be laid down and if laid down he must exercise his right subject to those conditions. But the language of the said clause does not permit laying down of cautions Am entry into tic profession. We have therefore no hesitation in coming to the conclusion that clause (ah) of Section (1) of the Act does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from enrolment as an advocate. The impugned rule is therefore ultra vires the said provision. We are unable to subscribe to the view that all those who have completed the age of 45 years and an otherwise eligible to be enrolled as advocates constitute a class or category which can be disqualified as single block from entering the profession. Besides as stated above clause (ag) identification and specification of a class or category of persons entitled to be enrolled as advocates and not disentitled to be enrolled as an advocates. We therefore are of the opinion the impugned rule is beyond the rule making power of the Bar Council of India and is therefore ultra vires the Act. It is unreasonable and arbitrary as the choice of the age of 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons who were in the service of government or quasi-government or similar institutions at any point of time. Thus in our view the impugned rule violates the principle of equality enshrined in Article 14 of the Constitution. These petitions succeed. The new rule 9 inserted in Chapter III extracted in the opening paragraph of this judgment is struck down as ultra vires the Act and opposed to Article 14 of the Constitution.

Issues Involved:
1. Legality and validity of Rule 9 of Chapter III of Part VI of the Bar Council of India Rules.
2. Consistency of Rule 9 with Articles 14, 19(1)(g), and 21 of the Constitution.
3. Compatibility of Rule 9 with Section 24 of the Advocates Act, 1961.
4. Rule-making powers of the Bar Council of India under Section 49 of the Advocates Act.
5. Reasonableness and arbitrariness of Rule 9.

Detailed Analysis:

1. Legality and Validity of Rule 9:
The Bar Council of India introduced Rule 9, which prohibits the enrollment of individuals over the age of 45 as advocates. The Supreme Court examined whether this rule was within the legal framework of the Advocates Act, 1961. The Court found that the rule was ultra vires the Act as Section 24 of the Act, which prescribes the minimum age for enrollment, does not provide for a maximum age limit. The Act does not empower the Bar Council of India to frame such a rule.

2. Consistency with Articles 14, 19(1)(g), and 21 of the Constitution:
The petitioners argued that Rule 9 was inconsistent with Articles 14 (Right to Equality), 19(1)(g) (Right to Practice Any Profession), and 21 (Right to Life and Personal Liberty) of the Constitution. The Court held that the rule was discriminatory and violated Article 14 because it imposed an arbitrary age limit without any reliable statistical or other material evidence to support the rationale behind it. The Court did not find it necessary to examine the rule's consistency with Articles 19(1)(g) and 21, given its finding under Article 14.

3. Compatibility with Section 24 of the Advocates Act, 1961:
Section 24 of the Advocates Act prescribes the qualifications for enrollment as an advocate, including the completion of 21 years of age. The Court noted that the Act does not specify a maximum age limit for enrollment. Rule 9, which imposes an upper age limit, was found to be inconsistent with Section 24 as it introduces a restriction not contemplated by the Act.

4. Rule-Making Powers under Section 49 of the Advocates Act:
The Bar Council of India argued that its rule-making power under Section 49(1)(ag) and (ah) allowed it to prescribe the class or category of persons entitled to be enrolled as advocates and the conditions subject to which an advocate shall have the right to practice. The Court held that these provisions do not authorize the Bar Council to impose an upper age limit for enrollment. The rule-making power under Section 49(1)(ah) applies to conditions at the post-enrollment stage, not pre-enrollment.

5. Reasonableness and Arbitrariness of Rule 9:
The rationale for Rule 9 was to maintain the dignity and purity of the legal profession by preventing retired individuals from using their past contacts to canvass for cases, which could negatively influence young entrants. However, the Court found no reliable evidence to support this rationale. Additionally, the rule was discriminatory as it only barred new entrants over 45 years old while allowing those who had previously enrolled and later took up other jobs to practice even after crossing 45 years. The rule was deemed unreasonable and arbitrary, violating Article 14 of the Constitution.

Conclusion:
The Supreme Court struck down Rule 9 as ultra vires the Advocates Act and violative of Article 14 of the Constitution. The Bar Council of India and the State Bar Councils were directed to implement this judgment. No order as to costs was made.

← Previous Next →