2006 (3) TMI 797 - HC - Indian Laws

Summary

Issues Involved:

1. Whether priests and nuns are engaged in any trade, business, or occupation in the context of Section 2(h) of the Bar Council of Kerala Rules.
2. The applicability of Rule 2(h) of the Bar Council of Kerala Rules to priests and nuns.
3. The interpretation of the term "profession" and "engaged in a profession."
4. The validity of the Bar Council of India's appeal against the judgment of the Single Judge.

Detailed Analysis:

Issue 1: Whether priests and nuns are engaged in any trade, business, or occupation in the context of Section 2(h) of the Bar Council of Kerala Rules.

The High Court examined whether priests and nuns could be considered engaged in any trade, business, or occupation under Section 2(h) of the Bar Council of Kerala Rules. The petitioners argued that priesthood and nunhood are religious lifestyles and not professions. They emphasized that they were not engaged in any salaried job or activity resulting in remuneration. The Bar Council of Kerala and the Bar Council of India opposed this, arguing that the vocation of divinity had the trappings of employment and profession.

Issue 2: The applicability of Rule 2(h) of the Bar Council of Kerala Rules to priests and nuns.

The Court analyzed Rule 2(h) of the Bar Council of Kerala Rules, which requires applicants for enrolment as advocates to declare that they are not in full or part-time employment or service and are not engaged in any trade, business, or profession. The Court noted that the petitioners fulfilled all qualifications for enrolment as advocates and had no disqualifications under Section 24A of the Advocates Act, 1961. The Court held that the bar under Rule 2(h) would only apply if a person is "engaged" in a profession, which implies earning profit or remuneration.

Issue 3: The interpretation of the term "profession" and "engaged in a profession."

The Court distinguished between "doing a profession" and "engaged in a profession." It concluded that the word "engaged" necessarily means earning profit or remuneration. The Court held that while religion/divinity is indeed a profession, priests and nuns who are not earning from their religious activities are not "engaged" in a profession. The Court emphasized that a complete ban on entry into the legal profession for a class of clergymen would be illegal. It must be determined on a case-by-case basis whether an individual is engaged in a profession.

Issue 4: The validity of the Bar Council of India's appeal against the judgment of the Single Judge.

The Court noted that the Bar Council of Kerala accepted the Single Judge's judgment and was keen to implement it, while the Bar Council of India challenged it. The Court found that the petitioners were not "engaged in a profession" as they were only receiving subsistence or maintenance allowances. The Court dismissed the appeals by the Bar Council of India, stating that priests and nuns who are not gainfully employed in their religious activities should not be barred from practising law. The Court did not address the question of the competence of the Bar Council of India's appeal, as it found the appeals devoid of substance on merits.

In conclusion, the High Court held that priests and nuns who are not engaged in a profession generating income are eligible for enrolment as advocates. The appeals by the Bar Council of India were dismissed, affirming the Single Judge's judgment.