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TMI Blog2024 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(1)(f) as an enrolment fee. Instead of devising ways and means to charge fees from enrolled advocates for rendering services, the SBCs and the BCI have been forcing young law graduates to cough up exorbitant amounts of money as a pre-condition for enrolment. Once the advocates are enrolled on the State rolls, the Bar Councils can charge fees for the services provided to the advocates in accordance with the provisions of the Advocates Act. It is for the SBCs and the BCI to devise an appropriate method of charging fees that is fair and just not only for the law graduates intending to enroll, but also for the advocates already enrolled on the State rolls. There are several reasonable ways by which the SBCs and BCI can and already do collect funds at later stages of an advocate s career. Payment of Other Miscellaneous Fees as a Pre-condition for Enrolment - HELD THAT:- It is clarified that the only charges permissible at the stage of enrolment are those stipulated under Section 24(1)(f) of the Advocates Act. All other miscellaneous fees, including but not limited to, application form fees, processing fees, postal charges, police verification charges, ID card charges, administrative fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory fees .............................................................................................. 25 E. Fees charged by the SBCs................................................................................ 28 F. SBCs cannot charge enrolment fees beyond the mandate of Section 24(1)(f) ............................................................................................................................. 31 i. Legislative Scheme ........................................................................................ 31 ii. Bar Councils cannot levy fees beyond the express stipulation of law ..... 39 G. All fees charged at the time of enrolment are enrolment fees .................... 46 i. Charges other than the enrolment fee cannot be a valid pre-condition ... 48 ii. Article 14: substantive equality and manifest arbitrariness ....................... 51 iii. Article 19(1)(g): unreasonableness .............................................................. 60 H. Financial implications for the SBCs and the BCI ............................................ 65 I. Conclusions ...................................................................................................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a; (b) complete the age of twenty-one years; (c) obtain a degree in law; (d) fulfil such other conditions as may be specified in the rules made by the SBCs under Chapter III; and (e) pay an enrolment fee of Rupees six hundred payable to the SBC and Rupees one hundred to the BCI along with any stamp duty, if chargeable. In the case of a person belonging to the Scheduled Castes or Scheduled Tribes, the enrolment fee of Rupees one hundred is payable to the SBC and Rupees twenty-five to the BCI. 6. The SBCs charge enrolment fees stipulated under Section 24(1)(f) of the Advocates Act to admit law graduates on their State roll. At the time of enrolment, the SBCs also charge various fees and charges in addition to the enrolment fees in the form of library fund contributions, administration fees, identity card fees, welfare funds, training fees, processing fees, certificate fees, etc. The amount of fees charged by the SBCs differ significantly. This results in a situation where a law graduate has to pay somewhere between Rupees fifteen thousand to Rupees forty-two thousand (depending upon the SBC) as cumulative fees at the time of enrolment. 7. The petitioner instituted proceedings under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally weaker sections of society from getting admitted to the rolls of the SBCs. Such an indirect bar on law graduates enrolling as advocates offends Article 19(1)(g) of the Constitution. It also makes the process of enrolment coercive, improper, unjust and unfair, violating Article 14 of the Constitution; and f. The Advocates Welfare Fund Act 2001 enacted by Parliament allows for the collection of funds through various sources for the welfare of advocates. This amount does not need to be collected by levying exorbitant enrolment fees. 10. Mr Manan Kumar Mishra, senior counsel made the following submissions on behalf of the BCI: a. Bar Councils require adequate operational funds to effectively discharge their functions. They require funds for day-to-day functioning including administrative expenses, staff salaries, infrastructure maintenance and technological advancements. Inadequate funding will hinder the ability of SBCs to comply with their statutory obligations under the Advocates Act; b. The enrollment fee prescribed under Section 24(1)(f) was fixed by the legislature in 1993 and has not been modified since. It fails to account for inflation and is not adequate to meet current ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Advocates Act. Additionally, it has urged this Court to direct the Union Government to revise the enrolment fee prescribed in Section 24(1)(f). 12. The SBCs have filed counter affidavits justifying the imposition of the fees charged by them at the time of enrollment. In essence, they contend that (i) the statutorily prescribed enrolment fee in Section 24(1)(f) fails to account for the current economic situation; (ii) the SBCs are charging fees in addition to the statutorily prescribed enrolment fee in return for services such as library fee and ID card fee under their rule-making powers under Section 15 and Section 28; and (iii) the additional charges are essential to enable the SBCs to fulfil their statutory functions. In order to fulfil these statutory functions, the SBCs inter alia run various welfare programs, insurance schemes, seminars and training programmes, which require adequate funding. 13. Mr Raghenth Basant, senior counsel appearing for the petitioners before the Kerala High Court assailed the levy of enrollment fees by the Bar Council of Kerala in excess of the fee prescribed in Section 24(1)(f). Mr Basant made the following submissions: a. Rules prescribed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 9 empowered the Bar Councils to make rules regulating the admission of persons to be advocates of the High Court including the charging of fees payable to the Bar Councils in respect of enrolment. Thus, the 1926 Act empowered the Bar Councils to prescribe fees in respect of enrolment. However, the 1926 Act did not substantially fulfil the demands of the Indian legal practitioners for an all-India Bar. In 1951, the Government set up the All- India Bar Committee to inquire into this issue and provide a feasible legal solution. 16. The Committee recommended setting up of the SBCs and an All-India Bar Council, uniform minimum qualification for admission to the roll of Advocates, a common roll of Advocates maintained by the respective SBCs, and permitting the enrolled advocates to practice in any court in India, including the Supreme Court. The Committee s observations on the finances of the BCI and the SBCs are relevant: It is obvious that in order to carry on its duties the All-India Bar Council and the State Bar Councils shall require funds. At present the Advocates, at the time of their enrolment, pay a certain amount ranging from Rs. 25/- to Rs. 100/- which goes to the Bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lment fee was to bring in as many eligible lawyers within its [the legislation s] fold as possible. 19 19. The recommendation of the Joint Committee was accepted by Parliament and incorporated under Section 24(1)(f). During the Parliamentary debates preceding the passage of the Advocates Act, many members suggested that the enrolment fee of Rupees two-hundred fifty was exorbitant.20 It was suggested that the enrolment fee should be further reduced or abolished altogether.21 The then Minister of Law (Mr A K Sen) justified the rationale for prescribing Rupees two hundred fifty as enrolment fee thus: So far the Bar Council is concerned, a fee of Rs. 250 is not very unreasonable especially having regard to the fact that when we are setting up an autonomous body, we must give it enough funds to make it effective and useful. If it is to discharge all the functions given to it under this statute, then it requires funds and therefore Rs. 250 per entrant is not too much of a fee to pay when the Bar Council is going to function in so many different ways. 22 (emphasis added) The statement of the Law Minister indicates that the enrolment fee was meant to allow the SBCs to effectively discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal practitioners known as advocates; (iii) prescription of a uniform qualification for the admission of persons to be advocates; (iv) division of advocates into senior advocates and other advocates based on merit; and (v) creation of autonomous Bar Councils, one for the whole of India and one for each State. 24. The 1926 Act did not prescribe any qualifications to be possessed by persons applying for admission as advocates. Under the 1926 Act, the Bar Councils prescribed qualifications, but the enrollment was carried out by the High Courts. Under the Advocates Act, the enrolment process is completely undertaken by the SBCs. The SBCs are mandated to maintain and prepare a State roll and admit persons as advocates on the roll if they fulfil the statutory prescriptions, along with any other qualifications laid down by the SBCs. Section 24(1) of the Advocates Act statutorily engrafts the minimum qualifications to be possessed by advocates seeking enrolment. The provision specifies the qualifications to be possessed by persons to be admitted as an advocate on a State roll. Additionally, the SBCs can also specify other conditions by rules. 25. Section 24A provides that no person shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slation can be challenged on the following grounds: (i) lack of legislative competence to make delegated legislation; (ii) violation of fundamental rights guaranteed under the Constitution; (iii) violation of any provision of the Constitution; (iv) failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act; (v) repugnance to any other enactment; and (vi) manifest arbitrariness. 29. Modern legislation often contains provisions enabling the delegate of the legislature to frame subordinate legislation. The statutory provision for delegation is often couched in general terms empowering the delegate the power to frame rules to carry out the purposes of this Act or a particular segment of the statute contained in a Chapter. The general provision is then followed by a provision enumerating specific matters on which the delegate may frame rules. A similar legislative scheme is reflected in Sections 15 and 28 of the Advocates Act. Where a rule-making power is conferred upon the delegate in general terms, a subsequent enumeration of matters on which the delegate may frame rules is illustrative and does not limit the scope of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the levy of taxes must be traced to specific taxing entries enumerated in either List I or List II.43 In addition, Parliament has the residuary power under Article 248 read with Entry 97 of List I to legislate on matters not enumerated in List II or List III, including on matters of taxation. The power of the legislature to levy fees is dealt with under separate heads: (i) Entry 96 of List I empowers Parliament to levy fees in respect of any matters in List I; (ii) Entry 66 of List II empowers the State legislatures to levy fees in respect of any matters in List II; and (iii) Entry 47 of List III empowers both Parliament and the State legislatures (subject to Article 254) to levy fees for any matter enumerated in List III. Parliament has prescribed an enrolment fee under Section 24(1)(f) of the Advocates Act under Entry 96 of List I. 33. The legislature can delegate its power to levy fees.44 Since a fee is an impost and a compulsory exaction of money, the power of a delegate to levy fees must flow from the express authority of law. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla45 this Court observed : 7. [ ] In our view, such power of impositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shirur Mutt (supra), it was held that a fee is money taken by the Government as the return for the work done or services rendered. 48 Therefore, a fee was characterised by an element of quid pro quo between the payer and the public authority. 36. In a series of subsequent decisions, this Court held that a levy can be regarded as a fee if it has a reasonable relationship with services rendered by the public authority.49 The traditional view that there must be an actual quid pro quo for a fee has not been applied in the strict sense in subsequent decisions of this Court. It has been held that the relationship between the levy of a fee and services rendered is one of general character and not of mathematical exactitude.50 37. In Corporation of Calcutta v. Liberty Cinema,51 a Constitution Bench observed that licence fees are not necessarily charged in return for services rendered. This Court referred to a Privy Council decision52 which inter alia held that licence fees could be charged to defray the costs of administering the local regulations. In Secunderabad Hyderabad Hotel Owners Association v. Hyderabad Municipal Corporation,53 this Court observed that licence fees could broadly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated various welfare funds for the benefit of advocates on its roll and utilizes the contributions received from the fees towards this end. Resultantly, the SBC is charging Rupees twenty-six thousand nine hundred as a one-time deposit to enable an advocate to avail of a lifetime benefit of various welfare schemes. This amount is in addition to the enrolment fee of Rupees six thousand, processing/ development fees of Rupees seven thousand, and other miscellaneous charges. The SBC justified charging Rupees six thousand as the enrolment fee on the basis of a BCI resolution dated 26 June 2013. The BCI resolution reads thus: The council is of the unanimous view that the enrolment fee fixed earlier is too less amount and it has never been revised after the year of 1961. The council resolves that the enrolment fee per candidate will be Rs 6000 and for SC/ST Candidates, it should be Rs 3000. This provision is applicable throughout the country and out of this as per the provisions of the Act, 20% amount is to be sent to the Bar Council of India by all the State Bar Councils. These rules will come into effect the day it is published in the Gazette of India. Soon after the publication the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Bar Councils conduct welfare schemes for advocates. During the period of the Covid pandemic and even at other times, the Bar Councils have stepped in to provide relief to advocates and their families. In doing so many Bar Councils have provided significant aid to advocates. The enrolment fee and other miscellaneous fees are the only source of income available to the SBCs to perform their functions under the Advocates Act and implement welfare schemes for advocates. However, the imposition of the enrolment fee and other miscellaneous fees by the SBCs must be consistent with the Constitution and the scheme of the Advocates Act. F. SBCs cannot charge enrolment fees beyond the mandate of Section 24(1)(f) i. Legislative Scheme 45. Parliament has enacted the Advocates Act under Article 246 read with Entries 77 and 78 of List I to deal with legal practitioners and their qualifications, enrolment, right to practice, and discipline. The Advocates Act establishes the SBCs and the BCI to create a common all-India bar. The SBCs have been entrusted with the function of admitting persons as advocates on the State roll. Persons who are admitted on the roll are entitled to the right to practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profession. 48. In Pratap Chandra Mehta v. State Bar Council of MP,61 a two-Judge Bench of this Court observed that the power of Bar Councils to frame rules must be interpreted broadly: 51. The power to frame rules has to be given wider scope, rather than a restrictive approach so as to render the legislative object achievable. The functions to be performed by the Bar Councils and the manner in which these functions are to be performed suggest that democratic standards both in the election process and in performance of all its functions and standards of professional conduct need to be adhered to. In other words, the interpretation furthering the object and purposes of the Act has to be preferred in comparison to an interpretation which would frustrate the same and endanger the democratic principles guiding the governance and conduct of the State Bar Councils. 49. The SBCs have broad powers under Section 15 to give effect to the provisions of Chapter II. Although the rule-making power under Section 15 is broad, it is confined to the subject matters of Chapter II. In Bar Council of Delhi v. Surjeet Singh,62 the issue before a three-Judge Bench was whether the Bar Council of Delhi co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Councils under Section 15 pertains to carrying out the purposes of Chapter II. As mentioned above, the purposes of Chapter II can be determined from Sections 3 to 14. Therefore, the scope of the rule-making power of Bar Councils under Section 15 extends to give effect to the provisions of Chapter II, namely, Sections 3 to 14. 53. Chapter III pertains to the admission and enrolment of advocates. As discussed in the earlier segment of this judgment, the Advocates Act is a complete code for admission of advocates on the State roll. Section 28 empowers the SBCs to make rules to carry out the purposes of Chapter III. According to Section 28(2), the SBCs can make rules providing for the: (a) time within which and form in which an advocate shall express an intention for the entry of their name in the State roll under Section 20; (b) form in which an application shall be made to the SBCs for admission as an advocate and how such application shall be disposed of by the enrolment committee of the SBCs; (c) conditions subject to which a person may be admitted as an advocate; and (d) instalments in which the enrolment fee may be paid. 54. The admission of persons as advocates on the State roll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modify what has already been prescribed by the statute; (ii) are contrary to the stipulated qualifications; and (iii) are inconsistent with the object and purpose of the Advocates Act. 56. Section 24(1)(e) has to be read conjointly with Section 28(1)(d) which empowers the SBCs to make rules prescribing the conditions subject to which a person may be admitted as an advocate on any such roll. Since Section 24(1) already prescribes the basic substantive qualifications, the SBCs are empowered under Section 24(1)(e) read with Section 28(1)(d) to make rules concerning other conditions not already prescribed under Section 24(1). 57. Section 49 pertains to the general power of the BCI to make rules. It provides that the BCI may make rules for discharging its functions under the Advocates Act. The BCI may prescribe rules providing for the conditions subject to which an advocate may be entitled to vote at Bar Council elections, qualifications for membership of Bar Councils and disqualification for such membership, minimum qualifications required for admission to a course for a degree in law in any recognised university, etc. Importantly, Section 49(1)(h) empowers the BCI to make rules presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions of purchase and sale provided the transactions took place within the notified market area. Section 12 created a legal fiction by providing that if any notified agricultural produce, livestock, or products of livestock is taken out of a notified market area, it shall be presumed to have been purchased or sold within such area. The market committee framed bylaws providing that the notified agricultural produce, livestock or products of livestock shall be deemed to have been purchased or sold after the notified commodity has been weighed, measured, counted or when it is taken out of the notified market area. Thus, the bylaws introduced additional circumstances to the legal fiction contemplated under Section 12. 61. A two-Judge Bench of this Court identified the following relevant principles in matters of delegated legislation: 26. [ ] the delegate which has been authorized to make subsidiary rules and regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act and has to restrict itself to the mode of implem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embarking passengers by the lessees of the Airports Authority of India76 at the international airports in New Delhi and Mumbai. The unamended Section 22A of the Airports Authority of India Act 199477 empowered the AAI, after the previous approval of the Central Government, to levy development fees on embarking passengers at the rate as may be prescribed. A two-Judge Bench of this Court held that the development fee was in the nature of a cess or tax for generating revenue for the specified purposes mentioned in Section 22A.78 Further, it was held that the power to levy a development fee under Section 22 could not be exercised without the rules prescribing the rate at which the development fee was to be levied. Since no rules were framed prescribing the rate of development fee, it was held that the levy was without authority of law. 65. In Consumer Online Foundation (supra), the Central Government determined the rate of development fee in two letters communicated to the lessees. This Court held that under Section 22A the Central Government only had the power to grant its approval to the levy and collection of development fees but had no power to fix the rate at which the developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed the enrolment fee under Section 24(1)(f) to cover all functions carried out by the SBCs and the BCI under the Advocates Act. The legislative history suggests that the legislature was averse to imposing any charges other than enrolment fees at the time of enrolment. This was in furtherance of the legislative object to foster an inclusive Bar. However, the SBCs are imposing miscellaneous fees and charges in the guise of an enrolment fee, which cumulatively exceed the statutory stipulation under Section 24(1)(f). The decision of the SBCs to charge an enrolment fee beyond the stipulated amount is contrary to the legislative object of the Advocates Act. 70. Section 24(1)(f) is a fiscal regulatory provision and has to be construed strictly. Parliament has prescribed the enrolment fees in the exercise of its sovereign legislative powers. The SBCs and the BCI, being delegates of Parliament, cannot alter or modify the fiscal policy laid down by Parliament. The delegate can create substantive rights and obligations only to the extent to which the parent enactment empowers the delegate.79 By prescribing additional fees at the time of enrolment, the SBCs have created new substantiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. The High Court construed the special fee charged by the SBC as an enrolment fee and held that the amount charged by the SBC was over and above the enrolment fee stipulated by Section 24(1)(f). In appeal, the Division Bench of the High Court upheld the judgment of the Single Judge by holding that Section 28(2)(d) did not empower the SBC to prescribe any fee for enrolment, either in the form of enrolment fee or special fee. 81 The Special Leave Petition filed by the SBC was dismissed by this Court on 4 June 2019.82 73. In adjudicating upon WP (C) No. 3068 of 2023,83 another Single Judge of the Kerala High Court relied on T Koshy (supra) to observe that the SBC is only entitled to collect the enrolment fee stipulated under Section 24(1)(f) of the Advocates Act. Subsequently, the writ petition was heard by a Division Bench of the Kerala High Court which passed an interim order directing the SBC to admit the petitioners on the State roll by accepting Rupees seven hundred fifty as enrolment fees. 74. Given the above background, two issues arise for consideration: (i) whether the miscellaneous fees which are charged in addition to the enrolment fee at the time of enrolment can be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant to the process of enrolment. For instance, a verification fee is charged for the verification of academic qualification certificates of the candidates. The verification fee is collected from the candidates at the time of submission of enrolment forms. These additional fees are in furtherance of the process of enrolment of advocates and are encompassed within the meaning of the phrase in respect of the enrolment appearing in Section 24(1)(f). 78. Additionally, the SBCs also collect charges such as building fund and benevolent fund from advocates at the time of enrolment. These charges are per se not related to the process of enrolment, but in most cases the candidates have no choice but to pay the levies. The SBCs admit that they charge the fees at the time of enrolment as a one-time payment for all the services offered by them. The SBCs contend that they charge these fees at the time of enrolment because the advocates do not pay periodic fees after enrolment. 79. Admission on the roll of advocates is a pre-requisite for any person intending to practice law in India. At the time of enrolment, candidates have little agency but to pay the miscellaneous fees imposed by the SBCs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India,88 a Constitution Bench held that Section 377 undermined substantive equality because it created barriers, systemic and deliberate, for the effective participation of the members of the LGBTIQ+ community in the workforce. 83. In Bonnie Foi Law College (supra), a Constitution Bench of this Court recognized the effect of the exorbitant enrolment fees charged by the SBCs: 54. We also have one caveat arising from the plea that different State Bar Councils are charging different fees for enrolment. This is something which needs the attention of the Bar Council of India, which is not devoid of the powers to see that a uniform pattern is observed and the fee does not become oppressive at the threshold of young students joining the Bar. 84. The burden of payment of enrolment fees and other miscellaneous fees imposed by the SBCs falls equally on all persons seeking enrolment. While the burden is facially neutral, it perpetuates structural discrimination against persons from marginalized and economically weaker sections of the society. In more than one way, the process of enrolment perpetuates a culture89 of systemic exclusion and discrimination that impacts the entry of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sets up practice straight after enrolment, struggles to settle down in the profession. Some of the lawyers remain struggling throughout their lives yet choose to remain in the profession. It is something like riding a bicycle uphill with the wind against one . ( emphasis added ) 86. Young law graduates who start litigating right after graduation earn anywhere between Rupees ten thousand to Rupees fifty thousand per month, depending upon the location of their practice and the chambers they join. The structure of the Indian legal setup is such that the struggle for getting acceptance in chambers and law firms is greater for those who belong to the marginalized sections, first-generation advocates, or law graduates without a degree from a National Law University. A recent report suggests that many law students from the Dalit community face English language barriers, reducing their opportunities of practicing before the High Courts and the Supreme Court where the court proceedings are in English.92 In a legal system that is predisposed against the marginalized, the pre-condition of paying exorbitant fees in the name of enrolment fee creates a further barrier for many. 87. In Neil Aure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigation chambers hire advocates through networks and community linkages. The structure of the Indian legal system is such that social capital and networks also play an important role in getting clients. The lack of social capital and network is acutely felt by advocates from marginalized communities.94 The marginalized sections of our society face insurmountable obstacles in navigating the Indian legal system.95 This is further compounded by their lack of representation in the legal profession. Greater representation of the marginalized communities in the legal profession will increase the diversity within the profession, enable the marginalized sections to trust the legal system and facilitate the delivery of legal aid and services to unrepresented communities. 89. Section 24(1)(f) prescribes an enrolment fee of Rupees seven hundred fifty from general candidates and Rupees one hundred twenty-five from SC and ST candidates. Therefore, the enrolment fee prescribed for candidates from the SC and ST communities is far less than the fees paid by a candidate from the general category. In 1993, Parliament increased the enrolment fee for general candidates from Rupees two-hundred fifty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge exorbitant fees also suffers from the vice of manifest arbitrariness. In Khoday Distilleries Ltd v. State of Karnataka,99 this Court laid down the following principles for challenging delegated legislation: (i) the test of arbitrary action which applies to executive actions does not necessarily apply to delegated legislation; (ii) a delegated legislation can be struck down only if it is manifestly arbitrary; and (iii) a delegated legislation is manifestly arbitrary if it is not in conformity with the statute or offends Article 14. In Clariant International Ltd. v. SEBI,100 a three-Judge Bench of this Court held that when any criterion is fixed by a statute or by a policy, the subordinate authority must follow the policy formulation broadly and substantially. Non-conformity with the legislative policy will render delegated legislation arbitrary.101 93. In Shayara Bano v. Union of India,102 a Constitution Bench held that manifest arbitrariness must be something done by the legislature capriciously, irrationally, and/or without adequate determining principles. It was further held that legislation which is excessive and disproportionate would also be manifestly arbitrary. In Joseph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality. 97. In Rashid Ahmed v. Municipal Board, Kairana,108 a Constitution Bench of was called upon to decide the validity of bye-laws framed by the Municipal Board. Bye-law 2 provided that no person could establish any new market or place for wholesale transactions without the previous permission of the Municipal Board. Justice S R Das (as the learned Chief Justice then was), speaking for the Constitution Bench, held: 11. The Constitution by Article 19(1) guarantees to the Indian citizen the right to carry on trade or business subject to such reasonable restrictions as are mentioned in clause (6) of that article. The position, however, under Bye-law 2 is that while it provided that no person shall establish a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable property vested in or entrusted to the management of the Town Area Committee including any public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye-laws cannot be said to constitute a valid law which alone may, under Article 19(6) of the Constitution, impose a restriction on the right conferred by Article 19(1)(g). In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by Article 19(1)(g) of our Constitution. 100. In Cooverjee B Bharucha v. Excise Commissioner,110 another Constitution Bench held that a licence fee levied without the authority of law was not protected under Article 19(6). In R M Seshadri v. District Magistrate,111 the District Collector imposed a condition compelling the licencee to exhibit at each performance one or more approved films of such length and for such length of time as directed by the Government. The condition was challenged for violation of Article 19(1)(g). A Constitution Bench of this Court observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rendering services, the SBCs and the BCI have been forcing young law graduates to cough up exorbitant amounts of money as a pre-condition for enrolment. 104. Once the advocates are enrolled on the State rolls, the Bar Councils can charge fees for the services provided to the advocates in accordance with the provisions of the Advocates Act. It is for the SBCs and the BCI to devise an appropriate method of charging fees that is fair and just not only for the law graduates intending to enroll, but also for the advocates already enrolled on the State rolls. There are several reasonable ways by which the SBCs and BCI can and already do collect funds at later stages of an advocate s career. For instance, under the Advocates Welfare Fund Act 2001, advocates must affix mandatory welfare stamps on vakalatnamas which are used to collect funds for advocate welfare. Unlike an enrollment fee charged before a graduate is given a fair chance to earn a living, such sources of income are directly correlated to the advocates practice. 105. It is clarified that the only charges permissible at the stage of enrolment are those stipulated under Section 24(1)(f) of the Advocates Act. All other miscella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, if any, as a pre-condition to enrolment; c. The decision of the SBCs to charge fees and charges at the time of enrolment in excess of the legal stipulation under Section 24(1)(f) violates Article 14 and Article 19(1)(g) of the Constitution; and d. This decision will have prospective effect. The SBCs are not required to refund the excess enrolment fees collected before the date of this judgment. 110. In view of the above, the writ petition, transferred cases and transfer petitions are disposed of. 111. Pending application(s), if any, stand disposed of. FOOT NOTE 1 SBCs 2 Advocates Act 3 Section 3, Advocates Act 4 BCI ; Section 4, Advocates Act 5 Section 25, Advocates Act 6 Section 22, Advocates Act 7 Section 24, Advocates Act [It reads: 24. Persons who may be admitted as advocates on a State roll. (1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely: (a) he is a citizen of India: Provided that 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have obtained a degree in law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice-board or otherwise declaring him to have passed that examination.]] 8 Akshai M Sivan v. Bar Council of Kerala, Writ Petition (Civil) No. 3068 of 2023 9 Manimaran v. Bar Council of India, Writ Petition (MD) No. 8756 of 2023 10 Amey Shejwal v. Bar Council of Maharashtra and Goa, Writ Petition No. 3795 of 2021 11 BCI Draft Enrolment Rules 12 BCI Rules 13 Section 41, Legal Practitioners Act 1879 14 Report of the All-India Bar Committee (1953) 15 15 Ibid 16 1926 Act 17 All-India Bar Committee (supra) 40 18 Law Commission of India, Fourteenth Report, Reform of Judicial Administration 1958 (Volume 1) 575. [It observed: It appears to us that the amount of Rs. 500 proposed by the Committee is excessive. At present various State bar Councils are receiving payments which range from Rs. 50 to Rs. 100 from each entrant to the profession and so far we have been able to ascertain, not only are the amounts received sufficient to finance their activities but some of these Councils have accumulated out of these and other receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to practice before High Courts.] 28 O N Mohindroo (supra) [9]; Bar Council of U P v. State of U P, (1973) 1 SCC 261 [11] 29 (1973) 1 SCC 261 30 Bar Council of U P (supra) [14] 31 Section 26A, Advocates Act 32 See Girnar Traders v. State of Maharashtra, (2011) 3 SCC 1 [80] 33 (1996) 3 SCC 342 [17] 34 Mahachandra Prasad Singh (Dr.) v. Bihar Legislative Council, (2004) 8 SCC 747 [13] 35 In re Delhi Laws Act 1912, (1951) SCC 568 [22] 36 Vasantlal Maganbhai Sanjanwala v. State of Bombay, 1960 SCC OnLine SC 27 [4] 37 Harishankar Bagla v. State of MP, (1954) 1 SCC 978 [12] 38 Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi, 1968 SCC OnLine SC 13 [13], [71] 39 Indian Express Newspapers (Bombay) (P) Ltd v. Union of India, (1985) 1 SCC 641 [77]; State of Tamil Nadu v. P Krishnamurthy, (2006) 4 SCC 517 [15] 40 Azfal Ullah v. State of U P, 1963 SCC OnLine SC 76 [13]; Rohtak and Hissar Districts Electric Supply Co. Ltd v. State of Uttar Pradesh, 1965 SCC OnLine SC 75 [18]. 41 D K Trivedi and Sons v. State of Gujarat, 1986 Supp SCC 20 [33] 42 (2009) 10 SCC 755 43 M P V Sundararamier Co. v. State of Andhra Pradesh, 1958 SCC OnLine SC 22 44 Kandivali Coop. Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 211 63 Reiterated in Bar Council of Maharashtra and Goa v. Manubhai Paragji Vashi, (2012) 1 SCC 314 [16] 64 Indian Council of Legal Aid and Advice v. Bar Council of India, (1995) 1 SCC 732 [11] 65 Dr. Haniraj L Chulani (supra) [18] 66 Union of India v. Rajdhani Grains Jaggery Exchange Ltd, (1975) 1 SCC 676 [13] 67 Kunj Behari Lal Butail v. State of H P, (2000) 3 SCC 40 [14] 68 Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST, (1974) 4 SCC 98 [12] 69 Harishankar Bagla v. State of Madhya Pradesh, (1954) 1 SCC 978 [12] 70 Indian Express Newspapers (Bombay) (P) Ltd v. Union of India, (1985) 1 SCC 641 [75]; General Officer Commanding-in-Chief v. Subhash Chandra Yadav, (1988) 2 SCC 352 [14]. 71 Rajnarain Singh v. Patna Administration Committee, (1954) 2 SCC 82 [32] 72 Avinder Singh v. State of Punjab, (1979) 1 SCC 137 [18]; J K Industries Ltd. v. Union of India, (2007) 13 SCC 673 [133] 73 (1997) 5 SCC 516 74 (2001) 4 SCC 202 75 (2011) 5 SCC 360 76 AAI 77 AAI Act 78 Section 22A, AAI Act. 79 See Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 [25] 80 2016 SCC OnLine Ker 41055 81 Bar Council of Kerala v. T Koshy, W A No. 2170 of 2017. 82 Bar Council of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India, American Bar Association (2021) 16 93 (2022) 4 SCC 1 94 Challenges for Dalits in South Asia s Legal Community, Chapter III Dalit Justice Defenders in India, American Bar Association (2021) 17 95 Hariram Bhambhi v. Satyanarayan, 2021 SCC OnLine SC 1010 [12] 96 K S Puttaswamy v. Union of India, (2017) 10 SCC 1 [525] 97 See Neil Aurelio Nunes (supra) [35] 98 (2023) 2 SCC 209 [37] 99 (1996) 10 SCC 304 [13] 100 (2004) 8 SCC 524 [63] 101 Secretary, Ministry of Chemicals Fertilizers, Government of India v. Cipla Ltd., (2003) 7 SCC 1 [9] 102 (2017) 9 SCC 1 [101] 103 Franklin Templeton Trustee Services (P) Ltd. v. Amruta Garg, (2021) 9 SCC 606 [79] 104 N K Bajpai v. Union of India, (2012) 4 SCC 653 [25] 105 Jamshed Ansari v. High Court of Judicature at Allahabad, (2016) 10 SCC 554 [17] 106 N K Bajpai (supra) [25] 107 1950 SCC 695 108 1950 SCC 221 109 (1952) 1 SCC 205 110 (1954) 1 SCC 18 [9] 111 (1954) 2 SCC 320 112 Minerva Talkies v. State of Karnataka, 1988 Supp SCC 176 [15] 113 2001 Act 114 Section 15, Advocates Welfare Fund Act 2001. [It reads: 15. Payment of certain monies to Fund by State Bar Council The State Bar Council shall pay to the Fund annually an amount equal to twen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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