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K.S. Iyer Vs. Bar Council Represented by Its Secretary, H.C. Madras - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 209 of 1962
Judge
Reported inAIR1964Mad390
ActsLegal Practitioners Act, 1879 - Sections 6 and 7; Bar Councils Act, 1926 - Sections 24; Constitution of India - Articles 14 and 19(1); Bar Councils Rules - Rule 1VB
AppellantK.S. Iyer
RespondentBar Council Represented by Its Secretary, H.C. Madras
Appellant AdvocateParty in Person
Respondent AdvocateA. Balasubramanian, Adv. and ;Adv. General
Cases ReferredB). In R. M. D. Chamarbaugvalla v. Union of India
Excerpt:
civil - enrollment - sections 6 and 7 of legal practitioners act, 1879, section 24 of bar councils act, 1926, articles 14 and 19 (1) of constitution of india and rule 1 (v-b) of bar councils rules - appellant not law graduate but he was practising pleader - whether appellant be entitled to be enrolled as advocate under section 24 - requirement in rule 1 (v-b) as to university qualification is so distinct and separate that even if it were to be struck out rest of rule would be sufficient without standards as laid down in rule 1 (v-a) to enable person for being admitted as advocate - present case comes within scope of second of rules - words 'taken degree of any university in arts or science' occurring in rule 1 (v-b) struck out as invalid being discriminatory in its operation - appellant.....s. ramachandra iyer, c.j.1. this is; an appeal from the judgment of veeraswami j. refusing to issue a writ of certiorari prayed for by the appellant to have the order of the slate bar council, madras, dated 27-6-1962, quashed. the appellant is a first grade pleader, practising till recently in the district of kanyakumari. he applied to she bar council under s. 25 of the advocates act, 1961 (which will hereafter be referred to as the act) for admission as an advocate on the state roll. the enrolment committee of the bar council not being satisfied with the appellant's qualifications as prescribed by section 24(1)(c) and (d) of the act, took action under section 26 and by its letter dated 27th june 1962 referred the application to the bar council of india for its opinion. it was on the.....
Judgment:

S. Ramachandra Iyer, C.J.

1. This is; an appeal from the judgment of Veeraswami J. refusing to issue a writ of certiorari prayed for by the appellant to have the order of the Slate Bar Council, Madras, dated 27-6-1962, quashed. The appellant is a First Grade Pleader, practising till recently in the district of Kanyakumari. He applied to She Bar Council under S. 25 of the Advocates Act, 1961 (which will hereafter be referred to as the Act) for admission as an advocate on the State roll. The Enrolment Committee of the Bar Council not being satisfied with the appellant's qualifications as prescribed by Section 24(1)(c) and (d) of the Act, took action Under Section 26 and by its letter dated 27th June 1962 referred the application to the Bar Council of India for its opinion. It was on the basis, that that letter amounted to a final order rejecting his application that the appellant applied to this court under Article 226 of the Constitution to quash it. Veeraswami J. dismissed the application and hence this appeal.

2. After the appeal was argued fully, we pointed out to the appellant that the letter sought to be quashed was only in the form of a tentative opinion by the Bar Council and that no final order of the State Bar Council rejecting his application had yet been passed and that it would only after the Bar Council of India had expressed its opinion that final order on his application could be passed. The learned Advocate General as well as the appellant then agreed that we might defer our judgment till that opinion. was obtained, presumably for the reason that if that opinion were to be in favour of the appellants there would be no necessity for pursuing the appeal. We acceded to that request. We are now informed that: the Bar Council of India has given its opinion agreeing with the State Bar Council that the appellant does not possess the qualifications requisite to be admitted as an advocate Under Section 24 of the Act. No final order has yet been passed by the State Bar Council wider Section 26(3) of the Act. Learned Advocate General, however, did not want to contest the appeal that no certiorari will lie in the circumstances of the case as it would always be open to this court to issue an appropriate writ if the circumstances warranted such a course.

3. The only question then is whether the appellant will be entitled to be enrolled as an advocate Under Section 24 of the Act. That provision so far as is material for the purpose of this case runs thus :

'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-

(c) he has obtained a degree in law

(i) before the 28th day of February 1962 from any University in the Territory of India; or .... he is Barrister;

(d) he has undergone a course of training in law and passed an examination after such training both of which shall be prescribed by the State Bar Council;

Provided that this clause shall not apply to ...

(v) any other class of persons who by reason of their legal training or experience and declared by the Bar Council of India to be exempt from the provisions of this clause;........

(2) Notwithstanding anything contained in Sub-section (1), a vakil, pleader or an Attorney who is a law graduate, or who is not a law graduate, but was entitled to be enrolled as an advocate of a High Court, immediately before the appointed day under any law then in force, may be admitted as an advocate on a State roll if he - (a) makes an application for such enrolment in accordance with the provisions of this Act, not later than two years from the appointed day; and (b) fulfils the conditions specified in clauses (a), (b), (e) and (f) of Sub-section (1).'

The appellant is not a law graduate but he was a Pleader practising in the Kanyakumari Dt. and his case could coma, if at all only Under Section 24(2) of the Act, namely,

'If he is entitled to be enrolled as an advocate of a High Court immediately before the appointed day under any law then in force.'

In order to ascertain whether that condition-has been satisfied, it is necessary to refer briefly to certain introductory matters. The appellant passed, his School Final examination sometime prior to the year 1925. Later he qualified himself for practising as a Second Grade Pleader by passing an examination in the former Travancore State, prescribed by the Government of that State. He was enrolled as such in the year 1925. After his enrolment he was practising for about six years in the Court of the District Munsiff, Padmanabhapuram. In the year 1981, he enrolled himself as a District Munsif's court vakil, Nagarcoil. Ten years later he availed himself of an opportunity to pass the Travancore Bar Council Examination after undergoing training for two years which enabled him to get enrolled as a First Grade District Court Vakil Under Section 9(3) of the Travancore Bar Councils Act. While this entitled him to practise in the District Court with a permanent sanad, it did not authorise him to practise before the Travancore High Court.

4. In the year 1956. the State Reorganisation Act came into force. Kanyakumari District which comprised in itself the Nagarcoil area, was transferred to the State of Madras. By virtue of the powers vested Under Sections 6 and 7 of the Legal Practitioners Act, 1879, this court has issued a notification that all first Grade Pleaders who immediately before the 1st November 1958, were entitled to practise in the courts in the territories formerly within the appellate jurisdiction of the Travancore Cochin High Court, and now within the appellate jurisdiction of the Madras High Court, shall be eligible for admission as First Grade Pleaders and practise in the districts of Kanyakumari and Tirunelveli. Accordingly the appellant who was holding a permanent First Grade Pleader's sannad was recognised as being entitled to practise in the subordinate Courts of Kanyakumari and Tiruuelveli Districts. On 13-11- 1957, the State Government in response to a recommendation from this court issued a notification Under Section 120 of the States Reorganisation Act to the effect that all First Grade and Second Grade Pleaders practising in the transferred territories of the erstwhile Travancore-Cochin State might be recognised as First and Second Grade Pleaders respectively of this State under the rules by the High Court and that the permanent sannad holders among them might be admitted without requiring them to make any additional payment as First and Second grade pleaders of this State and that they might be treated on the same tooting as similar class of pleaders of the old Pudukottai State by renewing their sannads on their paying the usual fee. Sometime thereafter the appellant filed his paper before the Bar Council constituted under the Indian Bar Councils Act, 1926 for emelment as an Advocate of this court. The Bar Council declined to accede to his request as he did not possess the requisite qualifications which would entitle him to be enrolled as an advocate. The passing of the Advocates Act, 1961 appears to have given fresh hopes to the appellant who applied to the State Bar Council (respondent before us) for being admitted as an Advocate on the State roll. The Enrolment Committee of the State Bar Council which enquired into the matter was of the view that the appellant could not be admitted as an advocate as he did not possess the necessary qualification which would justify treating him as a person entitled to be enrolled as an advocate under the pre-existing law.

5. Prior to the passing of the Advocates Act, admission as an Advocate of the High Court was regulated by the Indian Bar Councils Act. Rules have been framed by the Bar Council with the previous sanction of the High Court Under Sections 9 and 15 of that enactment for regulating admission of persons as advocates. We are reproducing here rules 1 (v), 1 (v-B), 1 (v-C) and 1-B (i) which are relevant for the present purpose-

'1. Subject to the conditions hereinafter mentioned.......

(v) Any person who having passed the pleadership examination of the Madras High Court shall have been admitted as a First Grade Pleader, and is practising as such on the date of his application for enrolment: or

(v-A) Any person who having passed the pleadership examination has practised as a Second Grade Pleader for not less than 15 years, continuously within the State of Madras: or a person who having passed the Muktyarship examination in Pudukottai before its merger with the Madras State has been allowed to practise as a Second Grade Pleader by the Madras State and whose total period of practice as Muktyar and Second Grade Pleader amounts to not less than fifteen years; or

(v-B) Any person who has practised for not less than ten years continuously as a District Court Vakil, or as a First Grade Pleader in the Kanyakumari Dt. or Shencotta Taluk, has taken a Degree of any University in Arts or Science, and has also either taken a Degree in law or of any University in India, or passed the Pleadership examination held by the Travancore or Cochin State or the Travancore-Cochin State: or

(v-C) Any person who has practised for not less than ten years continuously as a District Court Vakil, or as a First Grade Pleader, in the Kanyakumari District or Shencottah Taluk and would have been entitled as of right to be enrolled as an advocate of the erstwhile Travancore-Cochin High Court or the Kerala High Court may be admitted as an advocate of the High Court..........

1-B (1) Any person who immediately before the 1st day of November 1956, was an Advocate entitled to practise in the High Court of Travancore-Cochia and was permanently residing in and practising in any of the Subordinate courts in the transferred territories comprised in the present district of Kanyakumari and in the taluk of Shencottah in the district of Tirunelveli of the State shall, subject to the conditions hereinafter specified, be eligible to be enrolled as an advocate of the High Court of Madras, and entitled to practise in that court Under Section 66(5) of the States Reorganisation Act , 1956.'

6. It will be seen from the rules referred to above that the qualifications necessary for a First Grade Pleader practising in the Kanyakumari District to be enrolled as an advocate are: ,

(1) he must have practised as such for not less than ten years continuously as a District Court Vakil or as a First Grade Pleader in the Kanyakumari Dt:

(2) he must have obtained a degree from an University in Arts or Science: and

(3) he has obtained either a Degree in law of any of the Universities in India or has passed the Pleadership examination held by the Travancore or Cochin State or the Travancore-Cochin State.

7. The appellant possesses two of the three qualifications, namely, he has been practising for not less than ten years in the Kanyakumari Dt. and has further passed the pleadership examination of the former Travancore State. But he has not obtained any degree in any University in Arts or Science. Under rule 1 (iB) as it stands, he will not be entitled to have himself enrolled as an advocate of this court. But it will be seen from a reference to rule 1 (v-A), that the same qualifications have not been required in the case of practitioners from the former Pudukottai State. A person who passed the Muktyarship examination conducted by the Pudukottai State before its merger with the Madras Stats (to appear for which examination admittedly no qualification as to possessing a degree of any University is required) and who has been allowed to practise as a Second Grade Pleader in the State of Madras and whose total period of practice is not less than 15 o years would be entitled to have himself enrolled as an advocate of this court. That would mean that while in the case of a pleader from Pudukottai State a lesser standard of qualification was considered sufficient, so far as the pleaders from Kanyakumari, Dt. were concerned there has been an imposition of an additional qualification, viz, a degree in Arts or Science a qualification which was not considered necessary in the case of practitioners from Pudukottai State. In G. O. Ms. No. 2954 (Home Dept) dated 13-11-1957, passed by the Government under the provisions of Section 120 of the States Reorganisation Act, it has been provided that the pleaders who belonged to the former State of Travancore-Cochin Stale should be treated on the same footing as the similar class of pleaders of the old Pudukottai State. Their sannads can be renewed yearly by supplying them with the required copy stamp paper, the cost being met by, from the contingencies.

8. It has been argued by the appellant that this notification of the Government would require that even as regards their enrolment on the rolls of the advocates of the Madras High Court, persons having qualifications similar to those possessed by the practitioners of the Pudukottai State should be allowed to enroll themselves as advocates by virtue of that notification. Veeraswami J. rejected the contention, holding that there was nothing in the Government's Order to entitle pleaders from Kanyakumari Dt giving them a right to be enrolled as advocates of the High Court of Madras, which could be done only if the conditions prescribed by the rules framed under the Bar Councils Act, 1928 were satisfied. We are in agreement with that view. The Government Order merely regulates their rights as pleaders in this State. A pleader as such has no right to be enrolled as an advocate of this High Court. His right to be enrolled as an Advocate, will depend upon the rules framed under the Bar Councils Act. 1926, and his fulfilling the conditions laid down therein. The learned Judge held that rule 1 (v-B) was discriminatory in that the qualifications prescribed in the case of practitioners of the Pudukottai State to become advocates were less stringent than those prescribed for pleaders coming from Kanyakumari Dt. That conclusion only means that the entire rule 1 (v-B) which was discriminatory in character would be invalid and there would be no provision enabling the practitioners from Kanyakumari Dt. to get themselves enrolled as advocates of the Madras High Court.

9. The appellant who argued his case in person first contended that he having been admitted as a first grade pleader with a right to practise in the State of Madras, would be entitled to have the same rights and privileges as the other first grade pleaders in this State and that accordingly he would be entitled to be admitted as an Advocate of this High Court on the same terms and conditions as they would be entitled to. There is a fallacy in this argument. Under the rules, the mere fact that a person is a first grade pleader with a right to practise in the Madras State does not entitle him to be enrolled as an advocate of this Court. He should in addition have passed the first grade pleadership examination conducted by this High Court. The first grade pleadership examination conducted by this Court was open only to graduates. The requirement of passing the first grade pleadership examination implied that the candidate was already a graduate of one of the universities. Presumably because of this, the rule-making authority insisted that the first grade pleaders of other States who by reason of the reorganisation of the States had come over to the State of Madras with a view to set up practice, should possess that minimum educational qualifications. The appellant, as stated earlier, does not possess any university qualification and the mere circumstance that he had been recognised as a first grade pleader by virtue of a notification issued by this Court Under Sections 6 and 7 of the Legal Practitioners Act would not qualify him to be enrolled as an advocate. It was next contended that the insistence of the qualification of being a graduate in Arts or Science is wholly an unnecessary one for carrying on the profession as an Advocate and that this requirement amounts to an unreasonable restriction on the fundamental right of practising as an Advocate in Courts. It was argued that the condition in rule 1 (v.B) which requires that the pleader should be a graduate if he wants to be enrolled as an advocate must be regarded as invalid. Reference was made in this connection to the following passage from Cooley's Constitutional Law at page 300 :

'The State may require special training for some employments and forbid persons engaging in them who have not proved their fitness on examination and been duly licensed. Such are the cases of practitioners of law, and dentistry, medicine and in tact of any employment, which involves the safety and health of the general public. If by such regulation one who has practised his profession for a time is prevented from continuing its pursuit he is not deprived of property without due process of law, and new examinations may be imposed and new licence required of those already engaged in the callings. The statutes which provide for such tests must consider moral and intellectual qualifications alone and must be free from unreasonable class discrimination. A statute has been declared invalid which required a bar examination as to intellectual and moral requirements generally but excepted from its provisions those who had served in the military or naval forces of the United States during , the World War and received an Honourable discharge therefrom and who were disabled therein.'

10. On the basis of the above statement of law, it has been contended that while a statute or rule can reasonably impose special qualifications in law, it will be an unreasonable and arbitrary exercise of the statutory power, if in addition to such qualification, a degree in Arts or Science of any university is insisted upon. We cannot at all agree.

11. For carrying on the honourable profession of law, it is essential that certain standards should be maintained ; to maintain such standards a certain amount of moral and intellectual background and equipment would be absolutely necessary. The recognised method of testing for such intellectual and moral background is a training in an University. The insistence of a degree in Arts or Science cannot therefore be regarded as anything extraneous to the practice, of the profession of law. Further having regard to the diversity of the problems that come up before law Courts, it is essential that there should be a minimum university qualification for practising the profession of law. This principle has been accepted by Section 24 of the Advocates Act, which requires that every person who seeks to be enrolled as an Advocate after the coming into force of the Act should possess a degree in law which implies that he should have earlier obtained a degree in Arts or Science from any university. Again as pointed out in Ananthakrishnan v. State of Madras, : AIR1952Mad395 the right to plead and act on behalf of suitors in Court is not a right flowing from citizenship, The exclusive right to represent suitors in a Court which an advocate possesses is really in the nature of a privilege, though the fact that it is a privilege does not imply that the conferment of the privilege can be discriminatory. Even if the right to act and plead is deemed to be a right comprised in the right to practice the profession guaranteed under Article 19(1)(g), the requirement of particular standards in regard to general educational qualification is but a reasonable restriction on such a right. We are therefore, of the opinion that there is nothing inherently wrong in Rule 1 (v-B) in its insisting on an university qualification in Arts or Science. The appellant then relied upon the decision of the Supreme Court in Chintaman Rao v. State of M. P., : [1950]1SCR759 , where it was held that the words reasonable restriction in Article 19(6) of the Constitution would itself imply that the limitation or restriction imposed on the person in the enjoyment of his right should not be arbitrary or be of an excessive nature beyond what is required in the interests of the public. Applying that test, it cannot be said that the imposition of a qualification, as to possession of a University degree by persons who want to practice before Courts as advocates, is in any way arbitrary or beyond what is required in the interests of the public.

12. The difficulty in the present case is that the rule-making authority did not insist on the existence of that qualification in the case of all persons. As regards practitioners from the Pudukottai State, the authority was willing to enrol them as advocates even if they did not possess that qualification, but in the case of practitioners from Kanyakumari Dt., it considered such a qualification essential. As the learned Judge has pointed out this undoubtedly is a discriminatory exercise of the power. If the rule-making authority had insisted upon the practitioners from Pudukottai State also that they should possess a university degree in Arts or Science before they could be allowed the privilege of getting themselves enrolled as advocates of this court, there would be nothing wrong about it. But for one reason or another they were satisfied with a lower educational standard in regard to them. The appellant now says, legitimately it has to be conceded that if the rule-making authority can reduce the standard in the case of a particular class of practitioners, there is no reason why the same uniform standard should not be adopted in the ease of practitioners similarly situate. The learned Advocate General, however, contended that the rules as to qualifications for being enrolled as an advocate in the case of practitioners of the Pudukottai State were found fed on a reasonable classification as Pudukottai had got completely merged with the State of Madras and that the legal practitioners who were till the date at the merger appearing in the courts in that State would no longer have courts in which they could appear but for the rule. It was said that the position will be different in regard to practitioners of the Kanyakumari Dt., as they could still practice in the State of Travancore.

13. We are, however, unable to accept this distinction as a reasonable restriction basis for a discriminatory treatment. Practitioners of the Pudukottai State can certainly appear before subordinate courts in this State. What rule .1 (v-A) permitted was to get themselves enrolled as advocates of this Court. It was not essential for the purpose of allowing them to continue their profession, that they would be allowed the additional privilege of getting themselves enrolled us advocates of this Court. We can find do distinction in principle between the practitioners of the erstwhile Pudukottai State, and those who have come over to this State from the State of Travancore by reason of the reorganisation of the States.

14. The rules framed by the Bar Council were intended for the purpose of integrating the Bar, by enabling legal practitioners to get admitted on the State roll. Such rules should treat the same class of persons in the same manner, and on the same footing. The classification suggested by the learned Advocate General, namely, a distinction between the practitioners from Padukottai State and those of Kanyakumari Dt., has no relation to the object sought to be achieved, namely, of providing a healthy, learned and sound Bar for the High Court. The learned Advocate general then contended that, in substance, the rule enabling the pleaders of Kanyakumari Dt., to enrol themselves as advocates was a mere concession shown to them, and it could not be regarded as creating any right to get themselves enrolled and that, therefore, they cannot claim that a concession given to them is not the same as the one given to some other class of practitioners. Here again we must reiterate that the purpose of the rule was for integrating the various sections of the Bar, and not with a view to giving any concession to any particular class of practitioners. To achieve that object it was not necessary that there should be a rule applying one standard for persons coming from one part of the State and another standard for persons coming from another area. The essential object of the rule is to provide an integrated Bar competent to appear and plead before the High Court. It cannot be viewed merely as a provision to solve the problems arising out of the reorganisation of the States. That has already been provided for by admitting such persons as first grade pleaders. We are, therefore, in agreement with Veeraswami .J., that R.1 (v-B) is invalid in that it is discriminatory in regard to treatment, between the same class of persons.

15. It has next to be considered whether the entire rule has to be declared invalid, or only that part of it which impose an additional qualification in regard to practitioners from Kanyakumari Dt. The appellant has contended that the portion of the rule which requires an applicant for enrolment as an advocate to have taken a degree of any University in Arts or Science is a separable condition, and that being invalid, it should be declared void and that the rest of the rule can remain. Veeraswami J., did not accept this contention as, in the learned Judge's opinion, it formed an integral part of the qualification prescribed in the case of practitioners of the Kanyakumari Dt. The learned Judge has pointed out that in the case of practitioners from Pudukottai State a different standard was prescribed in that instead of insisting upon a University degree, 15 years of experience as a practitioner was insisted upon, and that in the case of practitioners of the Kanyakumari Dt., ten years alone was insisted. There is, in our opinion, much to be said in favour of that view. But having given the opinion matter our earnest and careful consideration, we are of the opinion that it cannot be said that the requirement as to possession of a degree of an University in Arts or Science is an integral part of rule 1 (V-B). In R. M. D. Chamarbaugvalla v. Union of India, : [1957]1SCR930 , the Supreme Court after summarising the relevant authorities, on the point, laid down seven principles, of which the first two are relevant for the present purpose. They are these :

'1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself is a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.'

16. It will be apparent that the rule-making authority in the instant case would have enacted the valid part even if it had known that the part relating to the requirement of an University degree in Arts or Science for getting enrolled as an Advocate was invalid, for the object of the rule was to enable the practitioners from the Kanyakumari Dt., to enrol themselves as advocates of this Court provided they had experience as such for a particular period. That they did not regard a degree from a University was not essential for being admitted as advocate on the rolls of this Court is clear from the fact that it did not impose such a requirement in the case of practitioners from the Pudukottai State. The requirement in R. 1 (V-B) as to the University qualification is so distinct and separate that even if it were to be struck out, the rest of the rule would be sufficient, without imperilling the standards as laid down in R. 1 (V-A), to enable a person for being admitted as an advocate of this Court. We are, therefore, of the opinion that the present case comes within the scope of the second of the rules stated above and that the words has taken a degree of any University in Arts or Science occurring in S. i(V-B) should be struck out as invalid being discriminatory in its operation. -That would mean that the appellant would be entitled to be admitted as an advocate of this Court prior to the passing of the Advocates Act. The Bar Council was, therefore, bound to admit him as an advocate if he satisfied the other conditions laid down in the rules. A writ of mandamus will issue to the Bar Council accordingly. There will be no order/as to costs.


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