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The Bar Council of India, New Delhi Vs. Gudimeda Kesavaramayya and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 391 of 1971
Judge
Reported inAIR1972AP206
ActsAdvocates Act, 1961 - Sections 2, 7, 24 and 49; Constitution of India - Article 14; Advocates Rules, 1967 - Rule 11
AppellantThe Bar Council of India, New Delhi
RespondentGudimeda Kesavaramayya and anr.
Appellant AdvocateK.B. Krishna Murty and ;K.B. Ratnasasatyr, Advs.
Respondent AdvocateN.C.V. Ramanujachary, ;A.S. Srinivasa Rangachari and ;Kota Raghava Rao, Advs.
Excerpt:
.....in law it is contended, that the appellate acted clearly in excess of its powers. it is sell known that for a proper comprehension of subjects like jurisprudence, constitutional law etc. 17. we are clearly of opinion that the function of laying down standards of legal education necessarily implies the power to define a standard of general education as a condition for admission to a course of law. the contention of the respondent that her is bound to be admitted to the roll of advocates is not well founded......the legislative intendment is unmistakably indicated in the distinction drawn between the degrees obtained prior to the date specified in section 24 and the degrees obtained thereafter. there is a striking contrast underlying the provisions which one cannot fall to notice. in respect of degrees obtained before the date fixed, no further question of recognition by the bar council of india arises. the degree in law obtained before that date are rendered immune from any further scrutiny or recognition by the bar council of india. the provisions in regard to degrees obtained after february 28, 1963 offers contrast, which the legislature admittedly adopted. having regard to this position there can be no escape from the conclusion that the legislature has conferred an unqualified.....
Judgment:

Parthasarathi, J.

1. The respondent, a law graduate, applied to the Bar Council of Andhra, Pradesh for admission on the roll of advocates. His application was rejected on the ground that as per the requirements laid down by the bar Council of India, he was not eligible for enrollment as advocate. No degree of law obtained after 30th June, 1964 from any University in India was recognised unless such degree was obtained after undergoing a course of study in law for a minimum period of two years after graduation. That rule was embodied in a resolution of the Bar Council of India adopted by it on 25-2-1963. By the same resolution an exception was made in regard to persons who commenced a course of study in law before graduation, prior to the 28th February 1963, provided they obtain a degree in law before the first October, 1966.

2. The respondent took up a course of study in law prior to 28th February, 1963, but did not obtain a degree in law within the time allowed viz., October 1, 1966. He got a degree in law in 1969. The bar Council of Andhra Pradesh. therefor came to the conclusion that in terms of the resolution of the Bar Council of India, the respondent lacked the requisite qualification for enrolment.

3. The respondent moved this Court under Article 226 of the Constitution of India and sought a writ of mandamus to compel the Bar Council of Andhra Pradesh to enrol him as an advocate. His petition rests on the plea that the fixation of the 'upper limit of 1-10-66 as per the provision to resolution 201 of 1963 dated 25-2-63 of the Bar Council of India is ultra vires of its powers and null and void.

4. The writ was granted by our learned brother, Krishna Rao, J., and his decision is in question in this appeal preferred by the Bar Council of India.

5. It is necessary for the elucidation of the contentions urged by counsel before, us, to advert to some provisions of the Advocates Act, 1961. The act, (Act 25 if 12961) is a consolidating and amending enactment relating to legal practitioners and its objective is to constitute an All India Bar. Chapter II of the Act provides for the constitution of the State Bar Councils and the Bar Council of India. Section 6 defines the functions of the State bar councils. Among others it is one of their functions to prepare and maintain roll of advocates and to admit persons as advocates on their rolls.

The functions of the Bar council of India inter alia area, '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' and 'to recognise Universities whose degree in law shall be a qualification for enrolment as an Advocate and for that purpose to visit and inspect universities.'

6. Besides the functions specifically defined in clauses (a) and (k) of Section 7, there is a residuary provision which empowers Bar Council of India 'to do all other things necessary for discharging the aforesaid functions.'

7. The third chapter of the Act contains provisions relating to the admission and enrolment of advocates. The controversy in this appeal relates to the exercise of the power under Section 24 of the Act. It provides that subject to the provisions of the /Act and rules made thereunder, a person shall be qualified to be admittedly as an Advocate on a State roll, if in. Firstly in a person seeking admission as an advocate must be a citizen of India, and the second requirement is that he must have completed the age of twenty one years.

8. It is the third condition that has given rise to the controversy. A degree of law is an essential pro-requisite for enrolment as an Advocate. If a person obtained a degree of law, from any University in India prior to 28th February, 1963, that has been recognised as a sufficient qualification.

9. It will be noticed that the date '28th February, 1963' is mentioned as the dividing line. All degrees in law obtained before that date from any University are accepted without question or further recognition. In regard to degrees in law obtained thereafter from any University in the territory of India. the section postulates that the recognition of that degree for the purposes of the Act by the bar Council of India is a necessary pre-condition. We are not herein concerned with degree in law obtained from Universities outside India, or degree in law obtained prior to 15th August, 1947 from Universities which were then part of India but have ceased to be in India.

10. Section 49 of the Act vests general power in the bar Council of India to make rules. Under clause (ag) of Section 49, the Bar Council of India is competent to prescribe the class or category of persons entitled to be enrolled as Advocates. But this provision was introduced in he Act by the Amending at 21 of 1964. That is to say, the power conferred by clause (ag) of section 49 was not vested in the Bar Council when the impugned resolution 201 of 1963 was passed by it on the 25th of February, 1963.

11. The contention urged on be half of the Ist respondent that the resolution 201 of 1963 is ultra vires the power of the Bar Council of India was upheld by Krishna Rao, J. The first contention of Mr. K. B. Krishna Murty on behalf of the appellate is that the view taken by the learned Judge is incorrect. The resolution 201 may be extracted hereunder:

'1. Resolved that a degree in law obtained on or before the 30th June, 1964 from any University established by law in the territory of India be recognised for the purpose of Section 24(1) (c) (iii) of the Advocates Act, 1961.

2. Resolved that no degree in law obtained after the 30th June, 1964 from any University in the territory of India shall be recognised unless such degree has been obtained after undergoing a course of study in law for a minimum period of two years after graduation provided however that nothing herein contained shall affect a person who has commenced a course of study in law before graduation prior to the 28th February, 1963, and obtained a degree in law before the Ist October, 1966.'

12. It is submitted that Section 24 vests wide discretion in the Bar Council of India in respect of recognition of law degree taken after 28th February, 1963. The power vested by the statute in the Bar Council of India is sought to be curtailed by the respondent who argues that the provisions of section 24 are controlled by Section 7. It is submitted that under Section 7, the Bar Council of India is competent to take steps to promote legal education and to lay down standards of such education and to recognise Universities whose degree in law shall be a qualification for enrolment. Consequently it is urged that the functions of the Bar Council are limited to the definition of standards of legal education alone. In prescribing the requirement of graduation order to the commencement of a course of study in law it is contended, that the appellate acted clearly in excess of its powers.

13. On a perusal of the provisions of Section 24 it is apparent, that the statute has drawn a clear distinction between persons who obtained degrees in law prior to 28th February, 1963 and persons who obtained such degree thereafter. In regard to the format category, the Bar council of India is bound to recognise degrees of law as an adequate qualification for admission as an advocate on the Roll of Advocates. In regard to persons obtaining a degree in law after that date, the statute has, in express terms, left it to the discretion of the Bar Council of India to recognise or not to recognise degrees in law conferred by the Universities sin India. There can be little doubt that the power conferred on the Bar Council of India in regard to recognition of degree in law obtained after the 28th February, 1968 is unqualified or unfettered. The Legislative intendment is unmistakably indicated in the distinction drawn between the degrees obtained prior to the date specified in Section 24 and the degrees obtained thereafter. There is a striking contrast underlying the provisions which one cannot fall to notice. In respect of degrees obtained before the date fixed, no further question of recognition by the Bar Council of India arises. The degree in law obtained before that date are rendered immune from any further scrutiny or recognition by the Bar Council of India. The provisions in regard to degrees obtained after February 28, 1963 offers contrast, which the legislature admittedly adopted. 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 purpose of the Act the degrees in law conferred by Universities in India after the 28th February 1963.

14. This being the clear effect and intendment of Section 24, is it open to limit or curtail the powers vested in the bar Council of India by reference to the provisions of Section 7? The endeavour on behalf of the respondent is to lay stress on the provisions of Section 7 and to formulate the thesis that the power of the Bar Council of India does not extend beyond laying down standards of legal education. Mr. Ramanujachari contends that it is not competent for the Bar Council of India to prescribe graduation as an indispensable requirement for taking up a course of study in law.

15. The clause (h) of Section 7 does not lend itself to the narrow construction advocated by counsel. It is competent for the Bar Counsil. It is competent for the Bar Council of India to take steps for the promotion of legal education and in pursuit of that objective to lay down standards of such education. Is it consistent with reason to urge that standards of legal education can be prescribed without the prior equipment or accomplishments of students of law? It s a mere illusion to think that without the foundational general education, sound standards of legal education can be achieved.

16. The expression 'standards of such education' is sufficiently wide to enable the Bar Council to insist upon a minimum level of general education as a steppingstone for taking up the study of law. It is sell known that for a proper comprehension of subjects like jurisprudence, constitutional law etc., a fairly high standard of academic training is indispensable. The ability to grasp and assimilate principles of law cannot be expected of a person who has not obtained a degree in arts, science or commerce. How can be standards of legal education be maintained or promoted unless persons admitted to the study of law have the standard of ability or the faculty of comprehension to imbibe the essential principles of law?

17. We are clearly of opinion that the function of laying down standards of legal education necessarily implies the power to define a standard of general education as a condition for admission to a course of law. There standard of legal education cannot be disassociated from the antecedent equipment of general education. We cannot accede to the contention of Mr. Ramanujachari that clause (h) of Section 7 ought to be understood as excluding the power to fix a minimum academic standard as a pre-requisite for the commencement of studies in law.

18. Assuming that the functions of the Bar Council envisaged in clause (h) of Section 7 must be limited in the manner suggested by the counsel, it is nevertheless, a function of the Bar Council of India under clause (I) to recognise Universities whose degree in law shall be a qualification for enrolment as an Advocate. The necessary implication of clause (I) read along with clause (n) of section 7 is that it is permissible for the Bar Council of India to restrict recognition to the law degrees conferred by Universities which ordain as a precondition graduation before the commencement of a course of study in law. It is within the competence of the Bar Council of India to accord recognition of degrees of law subject to the condition hat the commencement of legal education should be preceded by graduation. Our learned brother Krishna Rao. J., referred to the definition of 'law graduate' occurring in Section. 2(h) of the Act. The words 'law graduate' according to the statute, mean a person a who has obtained a Bachelor's degree in law from any University established in India. From the definition of 'law graduate' adopted by the statute, it does not follow that the Bar Council of India is under a compulsion to accept degrees of law of all Universities as sufficient qualification for admission on the Roll of Advocates under Section 24. There is no provision in the Act which compels the Bar Council to accept every law degree as adequate qualification for enrolment. There is, on the contrary, a provision in Section 2(h) which vests the option in the Bar council to recognise or not to do so law degrees obtained after February, 28, 1963.

19. Having defined 'law graduate' in Section 2(h) the legislature has chosen under Section 24 to confer the power of recognition of degrees of law on the Bar Council of India. The power exercisable under Section 2(h) cannot be nullified by reference to the definition clause in Section 2(h). In enacting Section 2(h) the Legislature cannot be said to have been unaware of the definition of 'law graduate' incorporated by it is Section 2(h).

20. Before Krishna Rao, J., it was argued on behalf of the Bar Council of India that Section 49 of the Act empowers it to frame rules as to the class or category of persons who might be enrolled as advocates. Clause (ag) of Section 49 was not part of the Statute at the relevant time and the resolution cannot be ascribed to the exercise of the power conferred by the exercise of the power conferred by that clause which is, therefore, not germane for the decision of the controversy about the vires of the resolution adopted by the appellant at an earlier point of time.

21. Great stress has been laid by learned counsel for the respondent on the statement of objects and reasons set out in the Bill that ultimately became the Act 25 of 1961. In the Statement, of Objects and Reasons it was said that the Bill seeks to implement the recommendations of the All India Bar Committee made in 1953. The Committee expressed the option that a degree in law is a sufficient qualification for enrolment as an advocate and that it is not necessary to provide for the additional qualification of a degree in arts. science or commerce. It is true that the Committee expressed such an opinion, and it is also clear that the Bill was introduced with a view to implement in the main the recommendations of the Committee. But these facts cannot be allowed to override the plain provisions of the law. A reference to the statement of the objects and reasons might be permissible in the case of ambiguity of a statutory provision. In the case on hand the need for the reference to the objects and reasons does not arise because, in our opinion, the provisions of Section 2(h) are quite clear and are free from ambiguity.

22. The view taken by our learned brother is expressed in these words:

'In the guise of a rule-making power I do not think it is open to the Bar Council to go beyond its functions under the Act and lay down a further qualification that a law graduate should not only possess a Bachelor's degree in law, but also be a graduate of a University. A combined reading of Section 7 (h) and (I) and Section 49 (ag) leads to the conclusion that the function of the Bar Council is only restricted to laying down the standards of legal education.'

23. For reasons set out by us earlier we are unable to share the view that commended itself to him. Section 49 (ag) has no bearing on the question because that provision, as we have already noticed, was inserted in the Act by an Amending Act of later date. With respect, we do not think that the language of Section 7 furnishes a basis for a narrow concept of the functions of the Bar Council of India. In any case, the effect of Section 2(h) cannot be neutralised or whittled down by a reference to Section 7 of the Act. Out conclusion of India has the power to recognise degrees of law obtained after 28th February, 1963 subject only to the condition that a course of study of law is preceded by graduation.

24. The next contention urged by counsel for the respondent is that in fixing the time limit of Ist October, 1969, manner. It is stated that in respect of persons who commenced their legal education prior to 28th February, 1963, a classification has been made in a manner violative of Article 14 of the Constitution. We are unable to appreciate this contention. It must be remembered that the resolution lays down the broad rule that a degree of law obtained after 30th June, 1964 was to be recognised subject to the condition of the holder thereof having been a graduate in arts, science or commerce before commencing the study of law. As this rule was productive o hardship in regard to non-graduates who commenced courses of study of law prior to that date, the Bar Council made a concession in their favour. The proviso embodies the concession. It is to the effect that in regard to persons who commenced their study prior to 28th February, 1963, an exception was to be made. They were given sufficient time to obtain a law degree and the date time to obtain a law degree and the date fixed was Ist October, 1966. Mr. Krishna Murthy submits that as a matter of fact, the persons who commenced legal education before 28th February, 1963 were given a period of five years to obtain a degree of law. It is pointed out that the year 1963 was substituted for 1962 by act 32 of 1962 and that therefore the period allowed for completion of law course was, in effective, five years,. It cannot be said that the time limit prescribed is unreasonable. No question of any discriminatory classification arises.

25. The extreme contention urged by counsel that no limit ought to have been fixed and that all candidates who commenced their studies prior to 28th February, 1963 should have been given an unlimited period for obtaining degrees in law, is without any merit.

26. On behalf of the appellant, our attention was drawn to S. Anantha-Krishnan v. State of Madras, : AIR1952Mad395 , wherein it was pointed out that the right to plead and act on behalf of suitors in a court is not a right following citizenship. The exclusive right to represent suitors in Court which an advocate possesses is really in the nature of a privilege. It is submitted that just as the charge of a fee by the levy of stamp duty for such privilege cannot be deemed to be invalid or unconstitutional, it is not unreasonable or repugnant to the constitutional provisions to prescribe qualifications for entry into the profession of law. If, in prescribing such qualifications, an exception is allowed upto a particular point of time, and the limit thus fixed is not unreasonable, no constitutional infirmity arises merely because some persons are adversely affected by the time limit that is imposed.

27. As pointed out in A. N. Rangaswamy v. The industrial Tribunal, Fort St. George, Madras, : AIR1954Mad553 a person who has obtained the requisite legal qualifications is not entitled on that ground alone to a right of audience in Courts. He must be admitted to the bar before he could practice. the admission to the bar is regulated by statutes. The right to practices in Courts is determined by statutory provisions. Where the right does not arise in terms of the statutory provisions, the in terms of the statutory provisions, the lack or denial of such right or privilege though resulting in a hardship or disadvantage, does not ipso facto offend the provisions of Article 14 of the Constitution.

28. It follows from what has been stated above that the mere possession of a degree in law does not warrant the claim that the holder of the degree can insist on the privilege to practice in Courts being granted. The Legislature has though it fit to entrust to the Bar Council of India the power to regulate admission to the profession of law, and the Bar Council is also empowered to recognise degrees of law for the purposes of the Advocates Act. The relevant statutory provisions empower the Br Council to lay down that degrees of law of a particular category constitute the qualification for enrollment as Advocates. According to the resolution passed by the Bar council, degrees of law will be recognised subject to the study of law being preceded by graduation. The Bar Council, however, thought it expedient and just not to enforce the new rule in respect of persons who have previously taken up law studies without graduation. Accordingly they were allowed a reasonable length of time for the completion of their studies. If in that context a date had been fixed for the completion of the studies by persons who were exempted from the operation of the new rule, the provision cannot be said to be repugnant to Article 14 of the Constitution. All non graduates who commenced legal studies before the date of the resolution were treated alike and there was no denial of equality in fixing the outer time limit for the completion of the studies. The argument that the proviso under which the outer time limit for the completion of law studies has been fixed is repugnant to Article 14 of the Constitution is wholly untenable.

29. In Hathising Mfg. Co. Ltd. v. Union of India. : (1960)IILLJ1SC , the question arose whether, a distinction between the employers who closed their undertakings on or before 27th Novembers, 1956, and those who closed their undertakings after that date come within the purview of Art. 14 of the Constitution. It was argued that a discrimination was practiced inasmuch as a distinction was drawn between the two categories of undertakings by reason of the fixation of a date and because of the differential treatment meted out in consequence of the fixation of the date. The statutory provision required the employers to pay compensation to their employees when the industrial undertakings were closed. The impugned provision made a distinction between the employers who closed the undertakings before the date fixed and those who closed their undertakings after the date. The Supreme Court held that, in enacting a law imposing a liability as flowing from certain transactions subsequent to a specified date, no discrimination offending Article 14 was made In the present case also the impugned resolution, applies a rule generally to all persons, the result being determined with reference to a specified point of time. On the application of the principle deducible from the case cited, we have no hesitation in holding that no unlawful discrimination has been made.

30. It was next argued that after clause (a) of Section 49 has been inserted, the Bar Council of India made rules with retrospective effect in respect of recognition of degrees in law for admission as Advocates. Rule 11 made on 12th March. 1967 reads as follows:

'Nothing in these rules shall affect persons who joined a course of instruction in law for a degree in law before the Ist academic term of the year 1967 and have taken a degree in law before 31st December, 1971 but they shall continue to be governed by the Resolution No. 201/1963 dated 26th February, 1963 read with Resolutions Nos. 50/1965 dated 11-4-1965, 16/1966 dated 27-2-1966 and 121/1966 dated 27-8-1966.'

31. On the strength of the above rule it is contended that all degree in law obtained before 31st December, 1961 are saved but that exception has been introduced in regard to persons who commenced their studies prior to 26th February, 1963. It is pointed out that the rule is tantamount to making an exception with retrospective effect, denying the benefit of he new rule to persons covered by that exception. This argument rests upon a fallacy and on a mis-reading of the rules. They are primarily intended for prescribing certain subjects of study in a course of instruction in law. A three-year degree course in law was prescribed. The rules framed in March. 1967 were intended to be applicable to persons who were to commence their study of law thereafter.

32. It was made clear by rule 11 that the rules framed afresh were not intended to affect persons who came within the purview of the earlier resolution of the Bar Council dated 25th February, 1963. It is clear that the new rules are applicable to a set of persons not coming within the scope of the earlier resolution dated 25th February 1963. In other word, the ambit of the earlier resolution, and the persons affected by it, are altogether different from the scope of the new rules and the persons who would be governed thereby. There is no basis for the argument that the rules framed in 1967 were made operative retrospectively so as to adversely affect certain persons.

33. The result is that the stand taken by the appellant has to be accepted and the resolution date 25th February. 1963, must be held as valid. The contention of the respondent that her is bound to be admitted to the Roll of Advocates is not well founded. No mandamus as claimed by him can be issued. The appeal is therefore allowed, and the respondent's application for a writ of mandamus is rejected. In the circumstances of the case we direct parties to bear their respective costs in this appeal and before Krishna Rao, J.

Appeal allowed.

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