2020 (11) TMI 508 - HC - Indian Laws

Interpretation of statute - validity of Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules - Bar Council of India as well as the Bar Council of Gujarat has a common argument to canvas that the rules framed by the Bar Council of Gujarat (Enrollment) Rules under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act 1961 puts an embargo upon the writ applicant unless she resigns from her present employment and files an affidavit to that effect. Whether we should strike down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules being violative of Article 14 of the Constitution or we should uphold the validity by adopting the principle of reading down or reading into so as to make the rule effective and workable and ensure the attainment of the object of the rule? HELD THAT - Ordinarily the Courts would be reluctant to declare a law or rule invalid or ultra-vires on account of unconstitutionality. The Court should make all possible endeavour to interpret in a manner which would be in favour of the constitutionality as declaring the law or a rule unconstitutional should be one of the last resorts which the Court may take. According to the Black s Law Dictionary a lawyer is a person learned in the law; as an attorney counsel or solicitor a person licensed to practice law . The legal profession is not a business or a trade. A person practicing law has to practice in the spirit of honesty and not in the spirit of mischief-making or money-getting. The advocate is expected to devote full time to his profession of law. Although the profession is called a noble profession yet it does not remain noble merely by calling it as such unless there is a continued corresponding and expected performance of a noble profession. Its nobility has to be preserved protect and promoted. An institution cannot survive in its name or on its part glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and honourable one it has to continue its meaningful useful and purposeful performance inspired by and keeping in view the high and rich traditions consistent with its grace dignity utility and prestige. Hence the provisions of the Act and Rules made thereunder inter alia are aimed at to achieve the same. Such provisions of the Act and Rules should be given effect to in their true spirit and letter to maintain clean and efficient Bar in the Country to serve the cause of justice which again is noble one. Rule 49 provides that an advocate shall not be a full time salaried employee of any person government firm corporation or concern. The rule further provides that so long as such advocate continues to practice there is no problem but if an advocate takes up any such employment referred to above he is obliged to intimate such fact to the Bar Council on whose roll his name appears. The advocate was thereupon ceased to practice as an advocate so long as he continues in such employment. In fact by reading down the Rules 1 and 2 of the State Bar Council (Enrollment) Rules we are bringing the Rules 1 and 2 respectively of the State Bar Council in tune or in conformity with Rule 49 of the Bar Council of India Rules. Rule 49 specifically talks about an advocate . It is suggestive of the fact that a person can be termed as an advocate only after he is lawfully enrolled on the Bar Council. This is suggestive of the fact that if a practicing advocate decides to take up any other job with any person government firm corporation or concern his duty is to intimate the Bar Council and after the necessary intimation he would cease to practice as an advocate. It is too much to say that a person desirous to get himself enrolled as an Advocate with the State Bar Council should be asked at its inception to give up any other vocation business or job and only thereafter he can be enrolled on the roll of the State Bar Council. We are dealing with a matter in which as single mother has come before us saying that no sooner she is enrolled as an Advocate after clearing the Bar Council Entrance Exam then she would file a declaration on oath that she has given up the job which she has as on date. The lady is in a helpless situation. Today if she gives up her job being a single mother and god forbid if she is unable to clear the All India Bar examination then she would be left without any means of livelihood. She has made herself very clear that she may be issued a provisional Sanad and such provisional Sanad shall remain in deposit with the Bar Council of Gujarat and she would obtain the final Sanad after clearing the Bar Council of India Exam. She has already filed an undertaking to this effect. We read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part time service or employment or is engaged in any trade business or profession who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate however the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice. The Bar Council of Gujarat as well as the Bar Council of India is directed to act accordingly after applying the rules in consonance with what has been stated above and issue a provisional Sanad to the writ applicant so as to entitle her to appear in the Bar Council of India Exam - The Bar Council of Gujarat shall issue the Enrollment Number to the writ applicant on the same line and in the same format as given to all other applicants who apply for enrollment as an Advocate and which is acceptable to and compatible with the On-line All India Bar Examination portal. Let this exercise be undertaken at the earliest and the registration number shall be given to the writ applicant within a period of three days from the date of issue of the writ of this order. Application disposed off.

Summary

Issues Involved:
1. Validity of Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules.
2. Application of Rule 49 of the Bar Council of India Rules.
3. Whether the writ applicant can be enrolled as an advocate while being employed.
4. Interim relief for the writ applicant to appear in the All India Bar Examination.
5. Review/recall of the interim order dated 06.10.2020 by the Bar Council of India.
6. Issuance of a compatible enrollment number for online registration.

Detailed Analysis:

1. Validity of Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules:
The writ applicant challenged Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules, which prohibit the enrollment of a person engaged in full or part-time service, employment, trade, business, or profession. The applicant argued that these rules are "manifestly arbitrary, unreasonable, and violative of Articles 14, 19(1)(g), and 21 of the Constitution of India." The Court considered whether to strike down these rules or to read them down to make them effective and workable. The Court decided to read down the rules to allow a person engaged in other professions to be admitted as an advocate, with the enrollment certificate withheld until the person ceases such engagements.

2. Application of Rule 49 of the Bar Council of India Rules:
Rule 49 prohibits an advocate from being a full-time salaried employee of any person, government, firm, corporation, or concern. The Court noted that Rule 49 applies to practicing advocates and requires them to cease practicing if they take up full-time employment. The Court aligned Rules 1 and 2 of the Bar Council of Gujarat with Rule 49, allowing a person to be enrolled as an advocate while in employment, provided they cease such employment before practicing law.

3. Whether the writ applicant can be enrolled as an advocate while being employed:
The writ applicant, a single mother, sought enrollment as an advocate without resigning from her current employment. The Court acknowledged her predicament and allowed her to be provisionally enrolled, with the enrollment certificate to be deposited with the Bar Council until she ceases her employment. This approach ensures that the applicant can appear for the Bar Examination without losing her current livelihood.

4. Interim relief for the writ applicant to appear in the All India Bar Examination:
The Court passed an interim order allowing the writ applicant to submit her enrollment application and appear in the All India Bar Examination. The Bar Council of Gujarat was directed to issue a provisional enrollment certificate without requiring the applicant to resign from her employment. The applicant was required to undertake not to practice as an advocate until she ceases her employment.

5. Review/recall of the interim order dated 06.10.2020 by the Bar Council of India:
The Bar Council of India sought to review/recall the interim order, arguing that allowing the applicant to be enrolled while employed would open floodgates for others and contravene established rules and judgments. The Court rejected this argument, emphasizing the need for a balanced approach that considers individual circumstances and ensures the rules' objectives are met.

6. Issuance of a compatible enrollment number for online registration:
The Bar Council of Gujarat issued a provisional enrollment number that was not compatible with the online registration system for the All India Bar Examination. The Court directed the Bar Council to issue an enrollment number in the same format as other applicants, ensuring the writ applicant could register for the examination.

Conclusion:
The Court read down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules to allow provisional enrollment of persons engaged in other professions, with the condition that the enrollment certificate be withheld until they cease such engagements. The Bar Council of Gujarat was directed to issue a compatible enrollment number for the writ applicant. The interim order was upheld, and the review/recall application by the Bar Council of India was dismissed. The main writ application and related civil applications were disposed of accordingly.