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TMI Blog2006 (3) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2005 - E dated 7th November, 2005. Whereas the Bar Council of Kerala has accepted the judgment of the learned Single Judge and is keen to implement the same, the Bar Council of India, however, takes exception to the same by challenging it through present writ appeals. The only, but significant question that arises for determination is whether the Father and two Nuns were engaged in any trade, business or occupation in the context of Section 2(h) of the Bar Council of Kerala Rules. Before, however, we may deal with and answer the question as posed above in the light of the contentions that have been raised by the learned counsel appearing for the parties, it will be useful to extract, even though in brevity, the acts constraining a Priest and two Nuns to approach this Court for the desired relief. W.P.(C). No. 20635 of 2005 was filed by a Roman Catholic Priest who graduated in Law from the Bangalore University. He sought enrolment by an application which was filed before the Kerala Bar Council. On receipt of the application he was called upon to submit certain particulars he was not holding any post or rendering any service or doing any business or profession in any society or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition filed by a Roman Catholic Priest it was pleaded in the counter affidavit filed by the Bar Council of Kerala that the petitioner entered the profession of divinity and the vocation chosen by him had got all the trappings of an employment and a profession. He was employed as a Parish Priest and therefore he was not eligible to be enrolled as an advocate as per the relevant Rules. Nuns, priests and sanyasins belonging to different religions are members of a profession and are not expected allowing them to be enrolled practice the legal profession allowing them to be enrolled as advocates. If they were permitted to enter the field of administration of justice, the same would run counter to the fundamental tenets of secularism and therefore they were not entitled to be enrolled as advocates. The cause of the two petitioners engaged in nunhood was also opposed on similar grounds. A counter affidavit was also filed by the Bar Council of India showing opposition to the prayers made by the petitioners. It has been pleaded that the decisions made by the Bar Council of India and Bar Council of Kerala were in tune with the provisions of the Advocates Act and the Rules framed thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application. The enrolment committee of a State Bar Council shall dispose of any application referred to the Bar Council of India in conformity with the opinion of the Bar Council of India. Where the enrolment committee of the State Bar Council may refuse any application for admission as an advocate on its roll, it would send intimation to all other State Bar Council about such refusal. Sub-sections (1) to (4) of Section 26 in so far as the same contains procedure as mentioned above read as follows: 26. Disposal of applications for admission as an advocate.- (1) A State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-section (2) and (3), and to any direction that may be given in writing by the State Bar Council in this behalf, such committee shall dispose of the application in the prescribed manner: (2) Where the enrolment committee of a State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, except a person, who is in part-time service as Professor, Lecturer or Teacher in Law. Form No. 6 on which the declaration to the effect aforesaid has to be given reads as follows: (Undertaking to be given by the Candidate) 1. I...............do hereby declare that I am not in full or part time employment or services and I am not engaged in any trade, business or profession. 2. I...............do hereby undertake that if after my admission as an advocate, I accept full or part-time service or Tarn engaged in any trade, business or profession (other than such as is exempted by the Bar Council of Kerala from the operation of this undertaking), I shall forthwith inform the Council of such employment or engagement and shall cease to practise as an Advocate. 3. I...............do hereby undertake that I shall not accept any employment which, in the opinion of the Bar Council, is derogatory to the status of an Advocate. Date: Signature of the applicant 6. Mr. V.V. Surendran, learned counsel appearing for the Bar Council of India, the appellant herein, has urged before us that the petitioners while doing their duties as Priest and Nuns are engaged in a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for the just remuneration of those whose service they need. Suitable provision is likewise to be made for such social welfare as they may need in infirmity, sickness or old age. Married deacons who dedicate themselves fulltime to the ecclesiastical ministry, deserve remuneration sufficient to provide for themselves and their families. Those, however, who receive a remuneration by reason of a secular profession which they exercise or exercised, are to see to their own and to their families needs from that income. Counsel also relied upon Article 3 of Part III of the said canon with special reference to Canon 654 which reads as follows: By religious profession, members make a public vow to observe the three evangelical counsels. Through the ministry of the Church, they are consecrated to God and are incorporated into the institute, with the rights and duties defined by law. 8. The contention of the learned counsel based upon the definition or word 'profession' as contained in Words Phrases is that profession of a clergyman is indeed a profession and whether the same may have an element of profit, salary or remuneration would be wholly meaningless. Once, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness and profession. Any person engaged in any trade or business cannot be said to be engaged gratuitously. Trade or business necessarily generates money. The same has to be true with the word 'profession' as well. Priests and Nuns may or may not be engaged in profession, even though, as mentioned above, professing religion is indeed a profession. A complete ban for entry into the legal profession to a class of clergyman would be wholly illegal. Before the bar created under Rule 2(h) of the Rules is applied it shall have to be found out as to whether a particular person professing religion is engaged in the same or not. We have already held above that the word 'engaged' means gainfully employed, be it for remuneration, profit or salary. 12. We have already mentioned above that there is no embargo on the entry of the petitioners to the profession of a lawyer but for Rule 2(h) of the Rules, and the same, as mentioned above, would not be applicable to the case of the petitioners who are said to be certainly not engaged in the profession of religion, being paid only subsistence or maintenance allowance to sustain them only and it cannot be termed such engagement as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained Degree of Bachelor of Laws on 4th March, 1991. Thereafter he applied to the State Bar Council of Maharashtra Goa for being enrolled as an advocate under the Advocates Act, 1961. He insisted that even though he is a medical practitioner as an advocate. The Enrolment Committee of the Bar Council rejected his request for being enrolled as an advocate simultaneously with his carrying on his medical practice as a surgeon. He was ultimately informed that his application for enrolment as an advocate was rejected. He filed writ petition in the High Court of Bombay, which was dismissed. He then moved the Honourable Supreme Court by way of a special leave petition. The respondent Bar Council of Maharashtra in exercise of its powers under Sections 28(2) and 24(1)(e) of the Act of 1961 has framed Rules. Rule (1) of the Rules, which is relevant, reads as follows: A person who is otherwise qualified to be admitted as an Advocate but is either in full or part time service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate. Provisions of Rule (1) as quoted above are pari materia to Rule 2(h) of the Bar Council of Kerala Rules. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not in dispute, nor a single word has been urged before us that the information supplied by the petitioners is in any manner incorrect, false or exaggerated. Unlike the appellant before the Honourable Supreme Court who was generating income from his medical profession, petitioners are living on subsistence or maintenance. By engaging themselves in the profession of divinity they are not generating any income. They are not gainfully employed. They are not holding any office or profit and they are not getting any salary that may be enough even to follow the ordinary pursuits of their life. They are just sustaining themselves. This sustenance simply with a view to keep the body and soul together cannot be termed as 'engagement in a profession' in contrast to the medical profession in which Haniraj L. Chulani was engaged. That is the distinction between the case of the petitioners in hand and that of Haniraj L. Chulani, the appellant before the Supreme Court. 16. In view of the discussion as made above, we hold that simply because an applicant seeking entry in to a noble profession is professing religion would not be enough to reject the application and to bar him fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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