W.P. No. 506 of 1986

12th February, 1987.

Petitioner Counsel: I.M. Chagla, Aspi Chinoy, D.J. Khambatta, Pimenta Kaposi, Satpute
Respondent Counsel: S.B. Jaisinghani, T. Ajwani, N.H. Gursahani, A.A. Irani, R.D. Dhanuka, B.E. Patil

JUDGMENT

JUDGMENT:- KANIA. C.J.:This is a petition under Article 226 of the Constitution of India, praying for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondents Nos. 1 and 2 to desist and forbear from enforcing Rule 1(1)(d) of part IV of the Bar Council of India Rules as they stood prior to their amendment in 1982. The Bar Council of India Rules in question have been published in the Gazette of India on 6th September 1975. The petitioner has also asked for a direction or order directing respondents Nos. 1 and 2 to desist and forbear from refusing enrolment to the petitioner on the basis of the said Rule 1(1)(d).

2. The Petitioner is a student who has passed his law examination. Respondent No. 1 is Bar Council of India, Respondent No. 2 is The Bar Council of Maharashtra, Respondent No. 3 is the University of Bombay and Respondent No. 4 is State of Maharashtra.

3. The Petitioner passed his I.C.S.E. Examinations in December 1977 securing 69 percent marks. Thereafter he passed his higher secondary school examination and secured 66 percent marks at that examination. The petitioner then passed his B.Com. Examination in April 1982 with 62 percent of the marks. As he intended to practice as a lawyer and specialise in taxation law he enrolled in the Chartered Accountant's course (commencing June 1982) conducted by the Institute of Chartered Accountants of India. In September 1982, the petitioner enrolled in the Government Law College at Bombay. In April 1985 he passed his final LL.B. examination with 63 per cent marks and obtained the LL.B. degree. He stood 5th in the University of Bombay for that examination. He passed his final Chartered Accountancy Examination in November 1985. At the time of filling in the form for admission to the Government Law College in September 1982 the petitioner had duly disclosed that he had already enrolled for the Chartered Accountant's course. In December 1985 the Petitioner submitted an application to the 2nd respondent for enrolment as an advocate of this Court. In that application the petitioner duly disclosed that while prosecuting studies in law from July 1982 to July 1985, he had joined the Chartered Accountant's course and completed his articles for the period June 7, 1982 to June 7, 1985. In response to the Petitioner's application the Secretary of the 2nd respondent by his letter dated 17th January 1986 informed the petitioner that having regard to the existing enrolment rules (i.e. rule 1(1)(d)) the petitioner was not entitled to be enrolled as an Advocate. Subsequently the Petitioner was given a cyclostyled circular by the 2nd respondent which inter alia stated that having regard to the aforesaid rule which had been framed by the 1st Respondent under Section 7(h) and (i), Section 24(1)(c)(iii) and Section 49 (1)(d) of the Advocates Act 1961 applicants for enrolment as an Advocate were required to establish that they had obtained the degree in law without undergoing any other course of instructions simultaneously during the period of three years study of law. The rest of contents of the said circular are not material for our consideration.

4. Some other facts also can be taken note of at this stage about which there is no controversy. At the relevant time under the rules framed by the respondent No. 1 and respondent No. 2 a student who had graduated from any recognised University was entitled to enrol for the study of law and the University permitted the study of law as a part-time course, that is the students were permitted to study law for the LL.B. examination and at the same time to take up full time employment in any organisation. In fact most of the colleges in Bombay have fixed all their lectures in such a way that students who are regularly serving in various organisations could obtain the LL.B. degree. Even under the impugned rule there was no restriction against such students applying for enrolment as Advocates on this count on obtaining their LL.B. degree.

5. The submission of Mr. Chagla, learned counsel for the petitioner is that the impugned rule 1(1)(d) is outside the rule making authority of respondent No. 1 and hence bad in law and of no legal validity. It was submitted by him that the said rule had no reasonable and proximate nexus as recognised in law with the functions of the Bar Council of India or with the promotion of legal education of the Standard of such education and hence the Bar Council of India, respondent No. 1, had exceeded its jurisdiction in framing the said rule. It was next submitted by him that even assuming that respondent No. 1 had jurisdiction to frame a rule preventing the law students who intended to enroll as advocates from undergoing any other course of instruction during their study for law degree the said impugned rule was clearly discriminatory as between students who were studying law while doing full time jobs and law students who were undergoing any other course of instruction. It was submitted by him that if students were permitted to take up full time employment and study law at the same time and this was not regarded as a disqualification for obtaining enrolment as advocates it was utterly irrational and illegal to lay down such a disqualification against students who were undergoing any other course of instruction during their study for obtaining a law degree. It was further submitted by him in the alternative that in any event, even if the object of the restriction was to restrain law students who intended to be enrolled as advocates from undergoing any other course of instructions the restriction imposed was unreasonable and excessive as it disqualified students who had taken instructions in matters like public speaking or study of languages or typing, knowledge of which subjects would be helpful to them even in the practice of law. It was pointed out by him that the course of instructions undertaken by the students during their study of law might be such as might not take much of his time or come in the way of his study of law and so as far as the impugned rule sought to disqualify even such law students from being enrolled as advocates, the rule was clearly excessive.

6. It was on the other hand contended by Mr. Jaisinghani, learned counsel for the respondent No. 1 that the aforesaid rule fell within the rule making power of the Bar Council of India, respondent No. 1 herein, on the ground that it was within the scope of the function of respondent No. 1 and pertained to laying down the standard of legal education. It was submitted by him that the classification made in the said rule between the students who were studying law and at the same time in full time employment and students who during the study of law had undertaken any other course of study was reasonable and did not amount to unlawful discrimination.

7. In order to appreciate the correctness of these contentions it will be useful to make a note of some of the relevant provisions of the Advocates Act, 1961, referred to hereinafter as the said Act and the Bar Council of India Rules as they stood prior to the amendment, 1982. The said Act was enacted to amend and consolidate the law relating to legal practitioners.

8. Section 7 deals with the functions of the Bar Council of India. Section 7(1)(h) runs as follows:

"7.(1) The functions of the Bar Council of India shall be- (h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;"

Section 24 deals with the question as to the persons who may be admitted as advocates on a State roll. The relevant conditions are as follows:

24 (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) ... ...

b) ... ...

c) he has obtained a degree in law- i) ... ...

ii) ... ...

iii) after the 12th day of March 1967, save as provided in a sub-clause (iii), after undergoing a three-year 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;"Section 49 of the said Act confers rule making powers on the Bar Council of India. The relevant provisions of that section are as follows:

"49 (1) The Bar Council of India may make rules for discharging its functions under this Act, and in particular, such rules may prescribe-

... ...

(ag) the class or category of the persons entitled to be enrolled as advocates.

(d) the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose.

9. The Bar Council of India framed certain rules known as Bar Council of India Rules under its rule making powers. Part IV of the said rules deals with standards of legal education and recognition of degrees in law for admission as advocate. Sub-rule (1) of Rule 1 in part IV prescribes the conditions required to be fulfilled for recognition of a degree in law obtained from any University in the territory of India after the 12th day of March, 1967 for the purposes of section 24(1)(c)(iii) of the said Act. The opening portion of sub-rule (1) of Rule 1 runs as follows:

"1. (1) Save as provided in Section 24(1)(c)(iii) of the Act, a degree in law obtained from any University in the territory of India after the 12th day of March, 1967 shall not be recognised for purposes of Section 24(1)(c)(iii) of the Act unless the following conditions are fulfilled:"

The condition set out in clause (d) of that sub-rule, which was introduced in 1977 by Resolution No. 72 of 1977 runs as follows:

"1. (1)(d) that the law degree has been obtained without undergoing any other course of instruction simultaneously during the period of three years of study in law."

There is a proviso to this clause which is not material for our purpose. By another Resolution No. 79/77 it was clarified that the resolution on double course applies to professional courses like Chartered Accountants. It is the said Rule (1)(d) and the said resolution clarifying the said rule which are in challenge before us.

10. For the consideration of the disputes before us we have to consider two questions. The first question is whether the provisions contained in the said impugned rule can be considered to be within the ambit of the expression "laying down standards of legal education". The submission of Mr. Chagla in this connection is that under the power to lay down standards of legal education the Bar Council of India can prescribe what degree or degrees are required to be acquired for obtaining enrolment as an advocate or it may prescribe the percentage of marks which a student must obtain at the degree examination or might prescribe the course of education, subjects of study required for passing the degree examination. But once the Bar Council of India recognised a law degree it was not then open to the Bar Council to lay down a condition that during the course of study for obtaining the degree the student should not have undertaken any other course of study. Mr. Jaisinghani on the other hand contended that it was open to the respondent No. 1, the Bar Council of India, to prescribe that a student who wanted to enroll as an advocate should not have undertaken any other course of study during his study of law for the law degree. In support of his contention he drew our attention to a decision of the Division Bench of the Madras High Court in the case of L. Meenakshi Sundram vs. Director of Legal Studies, Madras Law College and ors., AIR 1981 Madras 198. In that case the appellant/petitioners had obtained the B.L. Degree which is equivalent to LL.B. degree conferred by respondent No. 3 after having gone through a correspondence course and without undergoing a regular course of study at a law college. It was held that the expression "to lay down standards of such education" occurring in section 7 (1)(h) of the Advocates Act is capable of taking in every ingredient which will go to constitute the end or ultimate level of education that is expected of a candidate who applies for enrolment as an Advocate under the Act. It was pointed out by the Division Bench that the examination conducted by the University in question, namely, the Madurai Kamaraj University for the B.G.L. Degree through correspondence course was not the same as the examination conducted by the said University for the B.G.L. Degree regular course. In one case the course was under the non-semester pattern with an examination conducted once a year, while the regular course was under the semester pattern with an examination at the end of every semester. The question papers for the two courses were not common. The procedure for evaluation was also not common. Having regard to this factual position, the Division Bench found that it was not possible to hold that there was no difference between the B.G.L. degree of the said University obtained after pursuing the correspondence course and a degree obtained after attending the regular classes. It was held that it was competent to the Bar Council of India to prescribe for enrolment as an advocate that a candidate should obtain in law degree after undergoing a regular course of three years, attending classes, and that he should have put in an attendance of 66 per cent of the lectures in each of the subjects and a rule to that effect was within the rule making powers of the Bar Council of India. In our view this case is of little assistance in determining the question before us.

11. In the case before us both the categories of students, namely, the students who were undergoing another course of instruction and the students who did not undergo any such course of instruction were examined at the same examination, with the same standards and same question papers. Law course attended by both the categories of students was the same and hence it is difficult to understand how it could be said that the law degree obtained by one category of students was different from the one obtained by the other category.

12. In our view it is not necessary for us to consider the wider question as to whether it is not within the powers of the Bar Council of India to lay down a rule that for a law student who intends to enroll as an advocate, it is not permissible to undergo any other course of instruction, provided the course of instruction is such as to affect adversely in any manner the student's study of law for the law degree. What we find in the present case is that the restriction which has been imposed by rule 1(1)(d) is so wide as to clearly cover within its scope even a course of instruction which might be so minor as not to interfere with the full time study of law or might even be such that it would help a student in his study of law. We fail to see on what basis a student who goes to a typing class for one hour in the evening for a month or two or who takes a course of instruction in public speaking or elocution could in any manner be adversely affected in his study of law. In fact, undergoing a course of instruction like this would help the student to become a better advocate. Similarly, if a student were to spend the time he gets after attending the law classes in undergoing instructions as an articled clerk in a Chartered Accountant's firm he would in our opinion, be utilising that time better, from the point of undertaking a future career as an advocate, then a student who spends the spare time he gets after attending law classes in undertaking a job like a filing clerk or a typist or a stenographer or a personal assistant to a businessman in a commercial firm. In our view it is significant that the impugned rule, namely Rule 1(1)(d) does not debar a student who undertakes a regular job in his spare time from enrolling as an advocate. In view of this, the restriction imposed by Rule 1(1)(d) appears to be clearly excessive and unwarranted looking to the actual circumstances prevailing.

13. In connection with what we have discussed above we may note that the University of Bombay by its Circular No. 393 dated 31-8-74 laid down a restriction stating that no student is allowed to keep terms simultaneously for two courses in the University. However, the University was careful enough, by Circular No. 368 of 1978 to clarify that the students registering themselves for any of the courses of the University may be allowed to register simultaneously for the Certificate or Diploma course in any one of the languages set out therein or the Diploma Course in Music conducted by the University or other courses of a similar type. We do not propose to refer to the rest of the circular as it is on similar lines. We have referred to the aforesaid portion of the circular only to show that even in framing a restriction like the one in question before us the body framing it and which has the requisite power to do so, like the University of Bombay or the Bar Council of India can exercise its discretion reasonably, as the University has done to provide exceptions to the restriction which would make the restriction just and reasonable. The University of Bombay has tried to make the similar restriction imposed by it reasonable. But unfortunately the Bar Council of India has forgotten to do this in framing the aforesaid rule. This circular of the University illustrates how a proper restriction could have been imposed regarding undergoing different courses of instructions simultaneously with studying for a law degree. In contrast, the restriction imposed by the Bar Council of India by framing the impugned Rule 1(1)(d) clearly appears to be excessive and beyond the powers of Bar Council of India.

14. It was urged by Mr. Jaisinghani, learned counsel for the Bar Council of India, that the powers of the Bar Council of India to frame rules imposing restrictions on law students who wish to enroll as an advocate was unfettered and unqualified and it was not open to the court to consider whether such a restriction was reasonable or had anything to do with the functions of the Bar Council of India or with the standard of education and so on. In support of this submission Mr. Jaisinghani placed reliance on the decision of the Division Bench of the Andhra Pradesh High Court, in the case of The Bar Council of India vs. G. Kesavaramayya AIR 1972 A.P. 206. In that case it has been observed as follows: "In regard to person obtaining a degree in law after that date, (28th February 1963), the statute has in express terms, left it to the discretion of the Bar Council of India..........Having regard to this position there can be no escape from the conclusion that the legislature has conferred an unqualified power and discretion on the Bar Council of India to recognise or not to recognise for the purposes of the Act the degrees in law conferred by Universities in India after the 28th February 1963. In our view the observations of the Andhra Pradesh High Court have to be considered in the light of the facts of that case. In that case the degree in law was obtained by the student concerned after 30th June 1964 and it was not obtained after undergoing a course of study in law for not less than 2 years after graduation which was the minimum period for study of law prescribed under the relevant rule adopted by the Bar Council of India. This limitation imposed by the Bar Council of India, namely of 2 years' minimum study of law after graduation was clearly connected with the students' legal education and hence it was clearly within the discretionary power of the Bar Council to have framed such a rule. In our view all that the observation means is that the Advocates Act does not expressly prescribe any limitation on the discretion conferred on the Bar Council of India to frame rules for the purposes mentioned in section 49 of the Act. We do not think that the learned Judges ever meant to say that the discretion conferred by Section 49 of the Advocates Act on the Bar Council of India to frame Rules was a totally untrammelled and unfettered discretion because such a discretion is unknown to the law of this country and would be violative of Article 14 of the Constitution of India. It is well settled in law that every subordinate law-making authority has a power to frame subordinate legislation only provided it is reasonable and within the limits of rule making power of that body.

15. One other ground on which Rule 1(1)(d) was strongly attacked, and in our view rightly attacked, is that it was clearly discriminatory and violative of. the provisions of Article 14 of the Constitution of India. It was urged by Mr. Chagla that the said restriction permits a law graduate who has, during the period of his studies in law, a full time job to obtain enrolment as an advocate; but prevents a law graduate who was undergoing another course of instruction during the time he was pursuing his legal studies from getting enrolled. It was pointed out by him that a law student studying in law college who during his study time undergoes instruction in a course like public speaking, typing or even training as Chartered Accountant would be far more suited to be an advocate than a student who during the time when he undergoes studies in a law college takes up a full time employment as a clerk, or a peon or a salesman with a commercial concern or a large Corporation. In spite of this the student who has taken regular employment during the time when pursuing the study of law is permitted to be enrolled but a student who is undergoing some other course of instruction like the petitioner before us is disqualified from getting enrolment. We find that the submission of Mr. Chagla is correct and must be upheld. Between the aforesaid two classes, in very many cases it can be safely said that the student undergoing two courses of instruction, namely one in law and the other in some other field would be better qualified to be enrolled as an advocate than a student who during the time he studies law has taken up full time employment. Even otherwise, a student undergoing another course of instruction unconnected with law of advocacy is no worse off than a student working at a regular job as far as his legal studies are concerned unless the other course of study is incompatible with a study of law. It is true, as pointed out by the Bar Council of India in the affidavit in reply, that the students studying for a law degree may be in such financial circumstances that they might need full time employment in order to pursue the study of law and at the same time to maintain themselves. This however, cannot furnish any ground for discriminating against students who are undergoing some other course of instruction during their study of law. This may be a ground for permitting such working students to be enrolled as Advocates. But if they are to be permitted to be enrolled as advocates there is no basis on which the same facility can be denied to students like the petitioner who have undergone some other courses of instruction during the time when they were studying law in law classes for a law degree.

16. It is interesting to point out in this connection that the Bar Council of Maharashtra respondent No. 2 herein has applied its own mind to the question and taken up a position which is conflicting with the position taken up by the Bar Council of India. The Maharashtra Bar Council has passed a resolution which runs as follows:

"RESOLVED that on mature considerations of the scheme of legal education and bearing in mind that law course is an evening or morning course pursued even by full time employees, this Bar Council sees no reasons why a person filing in terms for law should not be allowed to do simultaneously some other diploma course like Chartered Accountants Course or Post Graduate Course. In the opinion of the Bar Council some of the courses like Chartered Accountant's Course, Course of Journalism, diploma in labour, accountancy etc. are supplementary to the law course and add better value to an Advocate. It is therefore resolved that the Bar Council of India should be requested to amend their rules regarding enrolment so that there is no prohibition against enrolment of candidates having undergone such courses simultaneously."

We are in full agreement with the reasons set out in the Resolution of the Bar Council of Maharashtra for taking a different view than the one taken by the Bar Council of India.

17. Before parting with the matter we may refer to one other case cited by Mr. Jaisinghani, and that is the decision in the case of Kruse vs. Johnson (1898) 2 Q.B. page 91. He strongly relied on the observation in the judgment of Lord Russell C.J., to the effect that the court ought to be slow to hold that a by-law is void for unreasonableness. There is no quarrel with the aforesaid principle laid down in the judgment. It is however, significant that in the very same judgment there is a clear finding that a by-law which is made in such a way as to be manifestly partial or unequal in its operation between different classes, or unjust, or involving an unjustifiable interference with the liberty of those subject to it is clearly bad and can be interfered with. In our view rule 1(1)(d) framed by the Bar Council of India falls within the latter class and hence the aforesaid judgment is of no assistance to Mr. Jaisinghani.

18. We may mention that it was submitted by Mr. Chagla that Rule 1(1)(d) framed by the Bar Council of India was ultra vires the rule making power of the Bar Council of India because it was not covered by any of the provisions of Section 49 of the Advocates Act and hence it was beyond the jurisdiction of the Bar Council of India to have framed such a restriction. We decline to go into this question because we have already taken the view that the aforesaid Rule 1(1)(d) is bad in law for the reasons which we have already set out.

19. In the result the petition is allowed. Rule absolute in terms of prayer (a).

20. Mr. Chagla states that he does not press for costs as counsel for petitioner as well as advocates on record are not charging any fees. In view of this there will be no order as to costs.

Petition allowed.