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TMI Blog2020 (3) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... re as per Advocate's Act SECTION-24 provisions with immediate effect and without any further delay or ado on part of BCG or BCI under any false pretexts or excuses. (19) Further, grant the Petitioner in the same Writ, directing Bar Council of India and Bar Council of Gujarat to grant 'Right to Practice Law' and Certificate there-under as per effectively provisioned in The Advocate's Act S-30 to start Practice in Gujarat High Court for Constitutional Practice under Article [14], [19][1][g] and [21] without any delay post enrollment." 2. Subsequently, by way of amendment, the petitioner added paragraph 17A as an additional prayer. The same is reproduced below: "(17A) To declare the legality and validity of Rules 9 to 11 in Part-VI, Chapter-III of the Bar Council of India Rules-Conditions for right to Practice inserted by Resolution No.73/2010 passed by as ultra vires of S-24 and S-30 of the Advocates Act 1961 and Article 14, 19(1)(g) and 21 of constitution of India." Notices were issued. Affidavits have been filed in response. 3. We have heard the petitioner in person, Shri Mehul Suresh Shah, learned Senior Advocate assisted by Shri Manan A. Shah, learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as the way they are defined to be so and Supreme to any Authority defined under Article [12] - THAT IS ANY AUTHORITY WITHIN TERRITORY OF INDIA AND EVEN THE TERRITORIES ELSEWHERE UNDER THE CONTROL OF GOVERNMENT OF INDIA" which includes even private entities within aforementioned territory of India as long as acting with and as an authority besides Union Government, the Parliament and States' Governments and their legislatures, including The Executive including the President and State's Governors and the Judiciary, WHEN ACTING IN SUCH MANNER through myriad of Laws, Regulations, Rules, Bylaws and all their amendments inclusive and even the Entities having Customs having the 'Force of Law' which also covers Social structures. (14) The only Exception allowed to restrict the Part-III of Constitution of India as provided for therein under Article[33] is given to Parliament which may by law determine the extent to which any of the Rights conferred by PART-III shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure proper discharge of their duties and the mainten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as is and declared to be so vide GR No.1139 attached herewith (Annexure "B")." 7. Both the respondents filed their affidavits. The petitioner has filed rejoinder in reply to the counter affidavits of the respondents. 8. At the outset, we may record that on a careful reading of the contents of the petition, we find that some wild allegations have been made. The petitioner although claims to be a Law Graduate but apparently having no experience of drafting a petition or arguing a matter has made all kinds of careless and wild allegations of which we are not taking note of but at times, it is difficult to understand as to what the petitioner wants to contend by way of the averments contained in the pleadings filed by him. What we could derive from the reading of the pleadings submitted by the petitioner and the submissions made by him are as follows: i) There is challenge to the All India Bar Examination; ii) The demand of any fee above and beyond Rs. 750/- for purposes of any enrollment and issue of Certificate of Right to Practice is arbitrary and cannot be made as being beyond the competence of the Bar Council of India and the Bar Council of Gujarat; and iii)There is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree months prior to the scheduled date of examination. (d) The percentage of marks required to pass the Bar Examination shall be determined by the Bar Council of India. (e) An unsuccessful advocate may appear again for the Bar Examination, without any limit on the number of appearances. (f) The Bar Council of India, through a committee of experts, shall determine the syllabus, recommended readings, appointment of paper setters, moderators, evaluators, model answers, examination hall rules and other related matters. (g) The Bar Council of India shall determine the manner and format of application for the examination. (h) Upon successfully passing the Bar Examination, the advocate shall be entitled to a Certificate of Practice. Application for Certificate of Practice 11. (1) The Certificate of Practice shall be issued by the Bar Council of India to the address of the successful advocate within 30 days of the date of declaration of results. (2) The Certificate of Practice shall be issued by the Bar Council of India under the signature of the Chairman, Bar Council of India." 10. The above rules only provide for the holding of the All India Bar Examination. It further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court in Sudeer vs. Bar Council of India & Anr. [(1999) 3 SCC 176) requires reconsideration. (2) Whether a pre-enrollment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961. (3) In case questions Nos.1 and 2 are answered in the negative whether a post-enrollment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1)(ah) of the Advocates Act, 1961. Learned counsel for the parties shall now furnish additional sets of paper books within four weeks. The papers shall be placed before the Chief Justice of India for constituting an appropriate Bench. We request Mr.K.K.Venugopal, learned senior counsel to continue to render his valuable assistance to the Court when the matter comes up for hearing before the Constitution Bench of five Hon'ble Judges." 11. In fact, holding of All India Bar Examination was duly approved by the Supreme Court in its order dated 14.12.2009 passed in Special Leave Petition (Civil) No.22337 of 2008. But since the matter is already engaging the attention of the Supreme Court, we are not going into that question. Order dated 14.12.2009 passed by the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practice law in that other country; (b) He has completed the age of twenty-one years; (c) He has obtained a degree in law- (i) Before the [12th day of March, 1967] from any University, in the territory of India; or (ii) Before the 15th of August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or [(iii) After the 12th day of March, 1967, save as provided in sub-clause (iii) After undergoing a three years course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or (iiia) After undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-68 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or] (iv) In any other case, from any University outside the territory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember, 1961, was entitled otherwise than as an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law, or who would have been so entitled had he not been in public service on the said date; or] [(b) * * *] (c) Before the 1st day of April, 1937, has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act, 1935-, or (d) Is entitled to be enrolled as an advocate under any rule made by the Bar Council of India in this behalf, may be admitted as an advocate on a State roll if he- (i) Makes an application for such enrolment in accordance with the provisions of this Act; and (ii) Fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-section [(4) ***]" 13. The State Bar Council and the Bar Council of India are empowered to make rules under Section 28 read with Section 49 of the Act of 1961 in given circumstances. Sections 28 and 49 are reproduced below: "28. Power to make rules.- (1) A State Bar Council may make rules to carry out the purposes of this Chapter. (2) In particular, and without prejudice to the gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law obtained by persons other than citizens of India which shall be recognised for the purpose of admission as an advocate under this Act; (f) the procedure to be followed by the disciplinary committee of a State Bar Council and by its own disciplinary committee; (g) the restrictions in the matter of practice to which senior advocates shall be subject; [(gg) the form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any court or tribunal;] (h) the fees which may be levied in respect of any matter under this Act; [(i) general principles for guidance of State Bar Councils and the manner in which directions issued or orders made by the Bar Council of India may be enforced;] (j) any other matter which may be prescribed: [Provided that no rules made with reference to clause (c) or clause (gg) shall have effect unless they have been approved by the Chief Justice of India:] [Provided further that] no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government. [(2) Notwithstanding anything contained in the first proviso to sub-section (1), any rules made with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harmonious construction of the provisions also, it is clear that there is no conflict between the provisions of the Act of 1961 and its Rules. The Act of 1961 provides entitlement to levy enrollment fees for enrollment as an advocate. Prescribing the right to levy fees be considered to be fundamental and it cannot be whittled by any rule. Prescribing the rate of fees is merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act of 1961. The harmonious construction between the Act and the Rules which governs the field of operation of both the provisions is that the rate as mentioned in Section 24 is to be treated as bare minimum fees which is always amenable for further increase. Since the petitioner has not challenged the validity of either the provisions of Section 24 or 49 of Act of 1961 or Rules framed thereunder, both the provisions shall prevail under the law. 17. In this regard, strong reliance is placed on the decisions of the Hon'ble Supreme Court in the cases of Union of India and another Vs. Azadi Bachao Andolan and another reported in AIR 2004 SC page 1107, State of Madhya Pradesh and another Vs. Bhola alias Bhairon Prasad Raghuvanshi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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