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TMI BlogOn the recent Hon’ble Supreme Court judgment in respect of Advocate Enrolment Fee – An Open and Personal EpistleX X X X Extracts X X X X X X X X Extracts X X X X ..... On the recent Hon’ble Supreme Court judgment in respect of Advocate Enrolment Fee – An Open and Personal Epistle - By: - Venkatesh S - Other Topics - Dated:- 6-8-2024 - At the very outset the author would like to thank the Hon ble CJI lead Division Bench, and wishes to place on record his appreciation and congratulate the Hon ble Supreme Court for, yet again, upholding the Rule of Law and Supremacy of Legal Sprit by rendering an epoch defining judgement dated 30.07.2024 in Writ Petition (C) No. 352 of 2023 [ GAURAV KUMAR VERSUS UNION OF INDIA AND ORS. - 2024 (8) TMI 2 - SUPREME COURT ], whereby the fee charged towards enrolment of Advocate was capped at the statutorily prescribed amounts as per the provisions of Advocates Act, 1961. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e uninitiated, the issue pertains to the practice of charging excess fees and, in some cases exorbitant amounts, by most, not all, of the State Bar Councils across the country, towards the enrolment of Advocates, which is a statutorily mandated prerequisite for any qualified Law graduate to practice before any court of law in the country. Simply put without being enrolied an Advocate cannot accept Vakalat. Last year Writ Petitions were filed in Hon ble High Courts and Hon ble Supreme as well. By an order dated 17 July 2023, the Hon ble Supreme had transferred all the cases and the referenced judgment came to be passed by the Hon ble Supreme Court, whereby the highest court of the country has emphatically ordered that the fees charged the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Bar Councils towards enrolment of the Advocated shall be capped to ₹ 750 as per the provisions of the Advocate Act, 1961, rejecting the various contentions of the Bar Councils, especially the ground that the statutorily prescribed fee of ₹ 750, which was fixed decades ago is not economically viable given the cost of inflation, the elaborate as well as the Information Technology enabled enrolment process, the various measures, including but not limited to staff salary, background verifications, which is being undertaken to ensure the enrolment of only qualified persons and cull out the fakes . The judgment authored by the Hon ble Chief Justice of India is a fantastic, and detailed piece of scholarly work one running into more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than five dozen pages, 68 pages to precise, which is systematically organized under nine parts covering, among others, the background, legislative history, the 2016 resolution of the Bar Council of India pertaining to fixing the verification fee, financial implication for the Bar Councils, the fees charged by the State Bar Councils etc with more than 100 references and foot notes. The judgment had gone into various relevant aspects and provisions, including but not limited to rule making power of Bar Council of India, interpretation of enrolment fee, the Legislative scheme reflected through the Advocates Act, 1961, applicability of Articles 14 and 19(1)(g) of the Constitution of India . Some the salient features, and highlights of the Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment are quoted below: Advocate Act is a complete code All fees charged at the time of enrolment are enrolment fees Bar Councils cannot levy fees beyond the express stipulation of law Charges other than the enrolment fee cannot be a valid pre-condition [for enrolment] Young law graduates seeking to enter litigation start from a position of disadvantage Social capital and networks play an important role in the Indian legal setup in advancing legal careers Dignity is crucial to substantive equality; the current enrolment fee structure charged by the SBCs [State Bar Councils] is contrary to the principle of substantive equality. The decision of the SBCs to charge exorbitant fees also suffers from the vice of manifest arbitrariness The excess e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrolment fee imposed by the SBCs is without authority of law There are no reasonable criteria behind the decision of the SBCs to charge such exorbitant amounts as enrolment fees Current enrolment fee structure charged by the SBCs is unreasonable and infringes Article 19(1)(g) The Judgment pointed out and discussed certain applicable principles, which are quoted below: The power of the authority to impose restrictions on the right under Article 19(1)(g) is not absolute and must be exercised in a reasonable manner Any fees or licences levied by the authorities must be valid and levied on the basis of the authority of law Delegated legislation which is contrary to or beyond the scope of the legislative policy laid down by the parent legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n places an unreasonable restriction in violation of Article 19(1)(g) Based on the above quoted principles and reasoning the highest court of the country held that 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 , which is welcome order, especially for law graduates from not so affluent background as well as those with financial constraints. Nevertheless, in respect of the effect of the judgment the Hon ble Court held This decision will have prospective effect. The SBCs are not required to refund the excess enrolment fees collected before the date of this judgment (emphasis added), which is quit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e surprising as well as intriguing because there is no strong case or reasoning was elucidated for arriving at such a significant and impactful decision cum conclusion except the following The SBCs have been levying the enrolment fees for a considerable duration and utilizing the collected amounts to carry out their day-to-day functioning , despite the judgment citing and recording the applicable caselaw viz SOMAIYA ORGANICS VERSUS STATE OF UTTAR PRADESH - 2001 (4) TMI 84 - SUPREME COURT and holding that The result of this decision would have entitled advocates who have paid the excess enrolment fee to a refund from the SBCs. It is a humble but considered view of the author that letting the Bar Councils go scot-free and not holding them acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountable for their transgression and unlawful activity is not in line with the notion of real complete justice, and principles of Rule of Law and supremacy of law and thus a bolt to the constitutional democracy. The author humbly submit that in respect of refund the Hon ble Court could have taken due diligence and care and order the refund for the persons who had paid excess fee and applied for enrolment on or after the filing of the petitions or at least on or after 10 th April 2023, the date on which the Hon ble Supreme Court Issued Notice, and not fix the date of the judgment, which was delivered after a lapse of more than 15 months from the date of order of notice. Such an appropriate threshold/cutoff date based on the consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equity, the balance of convenience and fairness, and to meet the ends of justice would have served complete justice, and more importantly such a reasoned and just cutoff date would fix accountability, and act as a deterrent to the powers to be, authorities etc to take due care and comply with law of the land, and not act in arbitrary and unreasonable manner, going forward. In the interest of full disclosure and as a matter of fact disclaimer, the author wishes to state that he is a Doctorate in Physics from Wayne State University, Detroit, USA, and an academician, Application Engineer, Certified Management System Auditor (ISO Standards) turned Advocate practicing at Madurai since been enrolled in the Bar Council of Tamil Nadu Puducherry in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 2023 during the pendency of the relevant Writ Petitions and have paid enrolment fee of ₹ 44,100 in July 2023, plus a prescribed contribution of ₹ 10,000 towards the Advocate Welfare fund, and had incurred additional expenses to the tune of about ₹ 15,000 towards preparation, uploading of application and logistics in respect of multiple visits to Chennai. And given the lack of resources available at his disposal as well as not so positive or encouraging experience of the author, including but not limited to the non-registration by the Hon ble Supreme Court Registry of one of his Review Petitions for almost one year for no apparent reasons, he is constrained to pen this open letter than file a Review Petition befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Hon ble Supreme Court. - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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