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TMI Blog1996 (4) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Degree of Bachelor of Laws on 4th March 1991. Thereafter the appellant applied to the respondent State Bar Council of Maharashtra Goa for being enrolled as an advocate under the Advocates Act, 1961 (hereinafter referred to as the Act ). This application was moved by the appellant on 26th July 1991. The appellant insisted that even though he is a medical practitioner he is entitled to simultaneously carry on the profession as an advocate. The Enrollment Committee of the respondent-State Bar Council rejected his request for being enrolled as an advocate simultaneously with his carrying on his medical practice as a surgeon. The appellant was ultimately informed on 16th November 1992 that his application for enrollment as an advocate was rejected. He was also supplied a copy of the reasons for refusal for grant of a sanad . The appellant feeling aggrieved by the said refusal filed writ petition No.2584 of 1992 in the High Court of Bombay. After hearing the petitioner a Division Bench of the High Court summarily dismissed his writ petition on 14th December 1992. It is thereafter that the appellant moved the present proceedings by way of special leave petition. By an order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Council does not suffer from any vice nor was it violative of any of the fundamental rights invoked by the appellant for getting it voided on that score. It may be stated that the Medical Council of India to whom notice was issued had referred this matter to is Executive Committee which was of the view that Medical Council of India has no objection to any medical practitioner holding registerable recognized medical certificate who is also qualified in law, practising medicine and law simultaneously. In the light of the aforesaid rival contentions the following points arise for our determination. 1. Whether impugned Rule (l) framed by the State Bar Council of Maharashtra Goa suffers from the vice of excessive delegation of legislative power and hence is void and inoperative at law. 2. Whether the said rule is violative of Article 19(1)(9) and is not saved by sub-article (6) thereof. 3. Whether the aforesaid rule is violative of Articles 14 and 21 of The Constitution. We shall deal with the aforesaid points in the same sequence in which they are noted. However, before dealing with them it is necessary to have a glance at the relevant statutory settings in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een with the High Courts, stood transferred to the Bar Council of India and State Bar Councils. The Bar Councils have become complete autonomous bodies with elected representatives of advocates. Every State Bar Council has (a) one or more Disciplinary Committees; (b) an Executive Committee consisting of five members; (c) an Enrollment Committee consisting of three members; and such other committees as may be found necessary. The Act came into force with effect from 19.5.1961. The dictionary of the Act is to be found in Section 2, clause (a) whereof defines an advocate as a person entered in any roll under the provisions of the Act as such and the term roll according to clause (k) means a roll of advocates prepared and maintained under the Act. Section 3 provides that there shall be a Bar Council for each of the States to be known as the Bar Council of that State. Section 4 next provides for a Bar Council for the territories to which the Act extends to be known as the Bar Council of India. The functions of the State Bar Council and the Bar Council of India have been set out in Sections 6 and 7 respectively. The functions of the State Bar Council include admission of persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or office under the State on any charge involving moral turpitude; Section 25 indicates the authority to whom applications for Enrollment may be made; Section 26 provides for the disposal of such applications; Section 26-A confers power on the State Bar Council to remove any name from its roll; Section 27 provides that where a State Bar Council has refused application of any person for admission as an advocate, no other State Bar Council shall entertain his/her application for admission on its roll except with the previous consent of the former and of the Bar Council of India. Section 28 confers power on a State Bar Council to make rules to carry out the purposes of the Chapter which may in particular, inter alia, provide for the conditions subject to which a person may be admitted as an advocate on its roll. Chapter IV deals with the Right to Practise . Section 29 says that subject to the provisions of the Act and any rule made thereunder there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates. According to Section 30 every advocate whose name is entered in the State roll shall be entitled as of right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may now briefly indicate the scheme. Before we do so it may not be out of place to mention that the profession of law is one of the oldest profession and was practised in one form cr the other in the hoary past. After the advent of the British in India, certain rules in regard to the practise of law were introduced. Before independence there were Mukhtars and Vakils who were permitted to practise law in moffusil courts even though not all of them were Law graduates. However, slowly and gradually they were allowed to wither away and their place was taken by Pleaders who were, after securing a degree in Law, permitted to practise at the district level. Those who were enrolled as advocates could practise in any court subordinate to the High Court including the High Court. The difference between a Pleader and an Advocate was merely on account of the fee charged for enrollment. After independence, came the Act which was enacted to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an all-India Bar . The Act creates an all-India Bar with only one class of legal practitioners, namely, advocates, who of course are clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f members of the said profession. However, while doing so it provided for basic substantive matters, e.g., eligibility for entry into the profession (Section 24), disqualification for enrollment (Section 24-A), authority entitled to grant admission (Sections 25 and 26), the authority which can remove any name from the roll (Section 26-A), etc., and placed them within the domain of a State Bar Council. Thus it is the State bar Council which alone must decide the question of enrollment of an applicant on its roll. Under Section 24 a person who is a citizen of India and possesses a degree in Law becomes qualified to be admitted as an advocate if he has completed twenty-one years of age, subject of course to the other provisions of the Act. No doubt he must fulfil the other conditions specified in the rules made by the State Bar Council [Section 24(1)(8)]. Every person whose name is entered in the list of advocates has a right to practise in all courts including the Supreme Court, before any tribunal or other authority. It is, therefore, within the exclusive domain of the State Bar Councils to admit persons as advocates on their rolls or to remove their names from the rolls. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any business which descended to him by survivorship or inheritance or by Will provided he does not personally participate in the management thereof. (x) Any person who reviews Parliamentary Bills for a remuneration, edits legal textbooks at a salary, does press Vetting for news-papers, sets and examines question papers or is a part-time teacher or lecturer or an assistant to an editor of a Law journal provided his hours or work and/or engagement do not conflict with the hours of court, and subject to the rules against advertising and full-time employment to which an Advocate after enrollment is subject to, is engaged in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal. (xi) Any other person or class of persons as the Bar Council may from time to time exempt. The said rule which is impugned in the present proceedings clearly bars an otherwise qualified person from being enrolled as an advocate if he is engaged in any other profession. It is based on the premise that an advocate must devote his full time and attention to the legal profession. It is because of the aforesaid provision in the rule that appellant s entry to the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kground of the aforesaid statutory provisions and the relevant rules that we now proceed to deal with the points for determination that have fallen for our consideration. Point No.1 So far as the question of excessive delegation of legislative power is concerned we must note at the outset that the Act has been enacted, as seen earlier, with a view to regulate the right of advocates to practise law. The rules framed by the Bar Council of India especially relating to standards of professional conduct and etiquette clearly aim at securing high standards of competence in legal services and seek to strengthen professional relationships among its members and promote the welfare of the society as a whole. Specific norms have been laid down in respect of conduct of the persons practising the profession vis-a-vis the public, the court, the client, the opposite lawyer and professional brethren. Lawyer s duty to train juniors and impart free legal aid to poor is part of the ethics. The code thus provides standards for identification and measurement of professional deviance. As noted earlier the Act besides highlighting the essential functions of Bar Council of India provides for enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities with such directions as it may give in this behalf. It conducts seminars and organize talks on legal topics by eminent jurists and publishes journals and papers of legal interest. In this connection, it also exercises general supervision and control over the State bar Councils. It is also entrusted with the task of promoting and supporting law reform. All these provisions as laid down by Section 7 of the Act leave no room for doubt that even prior to the enrollment as advocate the teaching of law and laying down of the curriculum for law courses are also the tasks entrusted to the Bar Council of India, which is the apex body of professionals monitoring these matters in conjunction with the State Bar Councils. Thus even at preentry stage of an advocate to the profession his equipments as a student of law and the requirement of basic legal education with which he should be armed before he can aspire to be enrolled as an advocate are also looked after by the Bar Council of India and the concerned Stats Bar Council which works under the general supervision and control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. An advocate is an officer of justice and friend of the court. A conduct, therefore, which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean that he is subordinate to the Judge. It only means that he is an integral part for the Administration of justice. Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions which its members are expected to upkeep and uphold. Members of the profession claimed that they are the leaders of thought and society. The central function that the legal profession must perform is nothing less than the administration of justice. The aforesaid well established connotations and contours of the requirements of legal profession themselves supply the necessary guideline for the concerned Bar Councils to frame rules for regulating the entries of persons to the profession. As noted earlier, the impugned rule has been framed by the Maharashtra State Bar Council in the exercise of its rule-making power under Section 24(1)(e) read with Section 28(2) of the Act. Section 24 deals with Persons who ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as discernible from various provisions of the Act and the rules framed by a Central Bar Council itself for the guidance of all State Bar Councils functioning in the country which entrusted with the task of regulating the conduct of legal profession throughout the country under supervision and guidance of Central Bar Council. The entire edifice of the Act in this connection has to be kept in view for finding out the relevant guidelines for enlightening the path of State Bar Councils entrusted with the task of framing rules regulating entries of new aspirants who are to be permitted to enter the fold of legal profession. In this connection the learned senior counsel for the the appellant invited our attention to the decision of this Court in A.N. Parasuraman Ors. v. State of Tamil Nadu (1989) 4 SCC 683 and Ajoy Kumar Banerjee Ors. etc. etc. v. Union of India Ors. (1984) 3 SCC 127 for buttressing her submission that legislature cannot delegate essential legislative functions to its delegate. There cannot be any dispute about the settled legal position on this aspect. However, as discussed by us earlier, in the set-up of the entire scheme of the Act and the rules fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose will he within the permissible field and will not fall foul on the altar of Article 14 and Article 19(1)(9) read with Article 19(6). Any rule framed for enrollment which does not meet this yardstick will be a taboo. Hence it cannot be said that the rule making power entrusted to the State Bar Councils suffers from absence of any guidelines or exhibits effacement of legislative power. The first point for determination, therefore, is answered in the negative by holding that the impugned rule does not suffer from vice of any excessive delegation of legislative power. That takes us to the consideration of Point No.2. Point No.2. It is no doubt true that under Article 19, sub-Article (1)(g) all citizens have a right to practise any profession, or to carry on any occupation, trade or business and any profession may include even plurality of professions. However, this is not an absolute right. It is subject to sub-Article (6) of Article 19 which lays down that nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for being argued the next day in the court. Under these circumstances his attention would be divided. We would naturally be. in a dilemma as to whether to attend to his patient on the operation table in the evening or to attend to his legal profession and work for preparing cases fur the next day and to take instructions from his clients for efficient conduct of the cases next day in the court. If he is an original side advocate he may be required to spend his evenings and even late nights for making witnesses ready for examination in the court next day. Under these circumstances as a practising advocate if he gives attention to his clients in his chamber after court hours and if he is also required to attend an emergency operation at that very time, it would be very difficult for him to choose whether to leave his clients and go to attend his patient in the operation theater or to refuse to attend to his patients. If he selects the first alternative his clients would clamour, his preparation as advocate would suffer and naturally it would reflect upon his performance in the court next day. If on the other hand he chooses to cater to the needs of his clients and his legal work, hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional conduct. So far as regulating enrollment, to the profession is concerned it is the task entrusted solely to the State Bar Council by the Legislature as seen earlier while considering the scheme of the Act. While carrying on that task if the entry to the profession is restricted by the State Bar Council by enacting the impugned rule for not allowing any other professional to enter the Bar. When he does not want to give up the other profession but wants to carry on the same simultaneously with legal practice, it cannot be said that the Bar Council has by enacting such a rule imposed any unreasonable restriction on the fundamental right of the prospective practitioner who wants to enter the legal profession. Learned senior advocate for the appellant vehemently contended that such a rule is not found to have been framed by other State Bar Councils. In our view that would not make any difference. We are called upon to decide the question whether the impugned rule framed by the respondent-State Bar Council stands the test of Article 19(1)(9) or not. While deciding that question whether other State Bar Councils permit by their rules entry of other professional to the legal profe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the rule in the light of Article 14, therefore, has to fail. That leaves out the challenge to the rule in the light of Article 21. It is difficult to appreciate this challenge. It is no doubt true that right to live includes right to livelihood. However the appellant is not denied his right to livelihood. He is already a professional carrying on the profession of a medical practitioner. He wants to have a second string to his bow. He wants simultaneously to be permitted to practise law with a view to earn additional or more livelihood. So far as his aforesaid demand is concerned the impugned rule requires that unless he gives up that other practice and joins wholeheartedly the legal profession he cannot be permitted to enter the legal profession. That rule cannot be said to be laying down a procedure not established by law. On the contrary that procedure has been found to be well sustained under Article 19(1)(g) read with Article 19(6). Once that conclusion is reached the absolute requirement of Article 21 would be out of the way. Appellant cannot be said to have peen deprived of his right to livelihood by pursuing two professions, contrary to any established procedure of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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