BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/01/2011
CORAM
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.(MD) No.7936 of 2006
M.P.(MD)No.1 of 2006
B.Balakrishna Pillai
... Petitioner
Versus
1. The Bar Council of India,
rep. by its Secretary,
Rouse Avenue,
Institution Area, Near Bal Bhavan,
New Delhi 110 002.
2. The Bar Council of Tamil Nadu,
rep. by its Secretary,
High Court Campus, Chennai 600 104. ... Respondents
Writ Petition is filed under Article 226 of the Constitution
of India praying for a Writ of Declaration, declaring that the removal
proceedings No.12/2000 pending before the 1st respondent herein, has deemed to
have been concluded in favour of the petitioner and consequently, not to give
effect to the suspension order of the second respondent in ROC.No.1070/2001,
dated 29.08.2001.
!For Petitioner ... Mr.D.Rajagopal
^For 1st Respondent ... Mrs.J.Nisha Banu
For 2nd Respondent ... Mr.S.Muthukrishnan
:ORDER
The petitioner has sought for a Writ of Declaration, declaring
that the removal proceedings No.12/2000 pending before the Bar Council of India,
rep. by its Secretary, New Delhi, 1st respondent herein, as deemed to have been
concluded in favour of the petitioner and consequently, not to give effect to
the suspension order of the second respondent in ROC.No.1070/2001, dated
29.08.2001.
2. It is the case of the petitioner that he had completed
B.A., Degree Economics in April 1981 in First Class. Thereafter, he registered
his educational particulars with the Employment Exchange, Nagercoil, which he
renewed till January’ 1994. As he did not get any suitable job, he was forced
to work as an Advocate Clerk in 1993-94 and having gained experience as an
Advocate Clerk, he intended to study law course and accordingly, on 14.06.94, he
joined the LLB course (evening class) in SLSRC Havanur College of Law,
Bangalore, a recognised college, affiliated to Bangalore University.
3. The petitioner has further submitted that he
regularly attended the classes during the Academic years 1994-95, 1995-96 and
1996-97 and completed LLB Degree in April 1997. A Provisional Degree
certificate was issued on 15.10.1997 by the Principal, SLSRC Havanur Collage of
Law, Bangalore and thereafter, he was issued a convocation certificate on
03.03.1998, by the Bangalore University and that the same approved by Bar
Council of India. On completion of LLB Course, he applied for enrolment as an
Advocate before the Bar Council of Tamil Nadu and that he was admitted as a Pre-
enrollment Trainee on 24.11.1997. He was assigned Trainee No.2250.
4. The petitioner has further submitted that his
Enrollment application was duly attested by the President of Nagercoil Bar
Association, Mr.P.Selvaraj. On completion of one year of Pre-enrolment training
in the District Court and Subordinate Courts in Nagercoil, due paper publication
was effected on 04.12.1998 in Dinakaran Tamil Daily, calling for objections, if
any, to his enrolment as an Advocate. As no objection was received, he enrolled
as an Advocate on 29.01.1999, after complying with the mandatory requirements
contemplated under law. His enrolment number is 41/1999. Thereafter, he also
became a member of the Bar Association, Nagercoil and started practicing as an
Advocate and also exercised his vote in the Bar Council Elections.
5. While that be so, after 3 years of completion of
his Degree course, a complaint has been given on 26.08.2000 to the Bar Council
of Tamil Nadu against four Advocates, including the petitioner, alleging that
during our course of study, they did not regularly attend the LLB Course and
that they were working as Advocate Clerks, attached with the Counsel, practising
in Nagercoil courts and attended the courts. The complainant also requested the
Bar Council of Tamil Nadu to take necessary action. Pursuant to the said
complaint, the Bar Council of Tamil Nadu issued a notice under ROC No.1185/2000,
dated 05.09.2000 to the petitioner, to show cause, as to why, his name should
not be struck off from the rolls of the Bar Council of Tamil Nadu and why action
should not be initiated against the petitioner and some others, under the rules
of the Bar Council and in this regard, directed the petitioner to submit his
explanation on or before 20.09.2000.
6. The petitioner has further submitted that on
receipt of the show cause notice, he submitted his explanation on 18.09.2000 and
the same was forwarded to the Bar Council of India for further action. An
enquiry was ordered to be conducted by the State Bar Council of Tamil Nadu, by
the Bar Council of India under Removal proceedings No.12/2000. Similar Removal
proceedings were also ordered to be initiated in respect of three others, under
Removal Proceedings No 6/2000, 10/2000 and 11/2000 respectively. The Bar Council
of Tamil Nadu, referred the matter to the Enrollment Committee and under a
common notification in ROC No.1070/2001, dated 29.08.2001, the petitioner and
three others were placed under suspension, till the disposal of the removal
proceedings.
7. The petitioner has further submitted that the
Disciplinary Committee of Bar Council of Tamil Nadu conducted an enquiry into
the allegations levelled against them. The petitioner pleaded before the said
committee that he was working as an Advocate clerk, at Nagercoil under one
Mr.G.Ramakrishnan, Advocate from 1981 to 1994 and that he joined SLSRC Havanur
College of Law, at Bangalore in the year 1994 and completed the course in 1997
and obtained LLB Degree. He also submitted that while he was undergoing the
course of study, he was staying at Hosur near Bangalore with his younger sister,
Mrs.V.Lakshmi. He also produced the attendance certificate issued by SLSRC
Havanur Collage of law to prove that he attended the classes regularly and that
he did not work as an Advocate clerk during that period and therefore, pleaded
to drop the removal proceedings.
8. The petitioner has further submitted that the Bar
Council of Tamil Nadu submitted a common report, dated 07.06.2003, in all the
Removal Proceedings, including Removal Proceedings No.12/2000, initiated against
the petitioner, holding that the LLB Degree obtained by him and others may be
valid for any other purpose, but that will not entitle them to enrol as
Advocates and since they have already been enrolled by the Bar Council of Tamil
Nadu, as Advocates, they are liable to be removed from the rolls of Bar Council
of Tamil Nadu.
9. Pursuant to the said enquiry report, the Bar
Council of India issued a notice, dated 25.09.2003/26.09.2003 to show cause as
to why, petitioner’s name should not removed from the Rolls of the State Bar
Council of Tamil Nadu and called upon him to send a reply, by 23.10.2003.
Accordingly, he submitted a reply dated 17.10.2003 to the Bar Council of India.
On receipt of the same, the Bar Council of India directed him to appear before
the Council on 09.11.2003, which was subsequently postponed to 22.02.2003. He
appeared before the Bar Council of India on 22.02.2004 and thereafter, nothing
had happened.
10. In the meanwhile, an advocate against whom,
similar Removal proceedings were initiated, has approached this Court and
obtained stay of the suspension order, dated 29.08.2001, in W.A.M.P.No.2991/2003
in W.A.No.2127/2003. Yet another person against whom, similar removal
proceedings were initiated, has filed Writ Petition in W.P.No.3005/04, to issue
a Writ of Declaration, declaring that the removal proceedings No.11/2000,
pending before the Bar Council of India, as deemed to have been concluded, in
his favour and consequently, not to give effect to the order of suspension, made
in ROC.No.1070/2001, dated 29.08.2001. This Court, by an order, dated
26.07.2006, has quashed the removal proceedings and permitted the Writ
Petitioner therein to continue the legal profession.
11. In these circumstances, the petitioner has come up
with the present Writ Petition, contending inter alia that he had attended the
classes regularly, during the years 1994-95, 1995-1996 and 1996-97, as per the
requirement of the Bangalore University. It is his further submission that
regarding academic matters, the College is the authority to say, as to whether,
the petitioner had attended the classes regularly, during the course period. He
further submitted that Section 24 of the Advocates Act 1961, prescribes the
conditions and qualification of a person to be admitted as an Advocate on the
State roll. But the said Section is silent about the minimum attendance of the
lectures on each of the subjects and also at tutorials, moot courts and
practical training course. However the Bar Council of India Rules, Part IV,
Section B Rule 3 prescribes the requirement of minimum attendance of 66% of the
lectures, on each of the subjects, as also at tutorials, moot courts and
practical training course. He therefore submitted that the rules, being
procedural, shall not take away the substantial rights conferred on him to claim
the benefit under section 24 of the Advocates Act.
12. The petitioner has further submitted that on securing
LLB Degree, application for his enrolment as an Advocate was made as per the
provisions of section 25 and 26 of the Act and on due enquiry and scrutiny of
the same, he was enrolled as an Advocate and even, the Bar Council of India, at
its meeting held on 1st and 2nd April 2001, has considered the question of
eligibility of those students for enrolment as Advocates, who have completed the
LLB Degree and decided that students who have obtained LLB Degree from SLSRC
College of Law Bangalore, prior to the academic year 1998-99 may be allowed to
be enrolled as Advocates.
13. The petitioner has further contended that under section
36-B of the Advocates Act, any disciplinary proceedings initiated by the State
Bar Council shall be concluded, within a period of one year from the date of
receipt of the complaint or the date of initiation of the proceedings, at the
instance of the State Bar Council, failing which, such proceedings shall stand
transferred to the Bar Council of India. The said Section prescribes no time
limit for the conclusion of the proceedings. But the same should be completed
expeditiously. It is the grievance of the petitioner that eventhough the 1st
Respondent has conducted the enquiry on 22.02.2004, till date no orders have
been passed. In such circumstances, as per the orders of this Court made in
W.P.No.3005 of 2004, he is entitled to seek for a similar relief granted in the
above writ petition. According to him, he cannot be kept under suspension for a
prolonged period. For the abovesaid reasons, he has prayed for the relief as
stated supra.
14. Though notice has been served on both the
respondents, no counter affidavit has been filed. However, Mrs.Nisha Banu,
learned counsel for the first respondent, Bar Council of India, submitted that
the Secretary of the Nagercoil Bar Association has filed a complaint on
26.08.2000 to the Secretary, Bar Council of Tamil Nadu against four lawyers that
they have been working as advocate clerks and finished law degree without
attending the class. The said complaint along with the explanation given by the
applicants, including the petitioner, were forwarded to the Bar Council of India
for taking necessary action. The Bar Council of India, vide its letter, dated
02.05.2001, had remanded the matter back to the Bar Council of Tamil Nadu for
conducting a detailed enquiry.
15. Learned counsel for the first respondent further
submitted that the Secretary of the Nagercoil Bar Association, in his complaint,
dated 25.08.2001, has requested the Enrolment Committee to suspend the
advocates, against whom enquiries were pending till the enquiry was over. The
Enrolment Committee of the Bar Council of Tamil Nadu accepted the request of the
Secretary of the Nagercoil Bar Association and suspended the following four
advocates from practice: –
1. Mr.E.Chithambarahanu Pillai
2. Mr.J.Parameswaran Thambi
3. Mr. R. Subramonia Pillai
4. Mr.B.Balakrishna Pillai (Petitioner herein)
Thereafter, the Enrolment Committee has sent a recommendation to the Bar Council
of India, through the Bar Council of Tamil Nadu, vide its letter in
R.O.C.No.1060/2001, dated 28.08.2001.
16. Learned counsel for the first respondent further
submitted that in continuation of the above mentioned letter, the Secretary of
the Bar Council of Tamil Nadu, through his letter in R.O.C.No.1073/2001, dated
30.08.2001, has informed the Bar Council of India that the four advocates,
including the petitioner, have been suspended from practice as advocates, till
the proceedings are over and also requested the Bar Council of India to ratify
the action of the Enrolment Committee in this regard. In the mean while, the
Bar Council of Tamil Nadu, has requested the Bar Council of India to give some
more time to file the enquiry report and finally, submitted its enquiry report,
vide letter No.R.O.C.No.379/2003, dated 10.06.2003. The said Enquiry Report was
placed before the Bar Council of India, at its meeting held on 24.08.2003. After
consideration of the same, the Council issued Show Cause Notices to the
concerned advocates.
17. She further submitted that on receipt of the show cause
notices, the abovesaid four advocates, including petitioner submitted their
replies. Thereafter, the Bar Council of India directed them to appear in person
or through their Counsel before the Bar Council of India, at its meeting on
22.02.2004. In the meantime, the Bar Council of Tamil Nadu, by letter
No.R.O.C.No.305/2006, dated 18.04.2006, has informed the Bar Council of India
that Mr.E.Chithambarahanu Pillai, Mr.J.Parameswaran Thambi and Mr.R.Subramonia
Pillai filed Writ Petitions in Madurai Bench of this Court and obtained interim
stay. It was also informed that in respect of the petitioner herein, no case
was pending at that time.
18. Learned counsel for the first respondent, Bar Council of
India further submitted that the Bar Council of India, vide its letter
No.BCI:D:81/2007, dated 05.01.2007, has directed the petitioner to appear before
the Council on 22.01.2007. In response to the same, the petitioner also sent a
reply to the Bar Council of India that he has obtained interim stay on
19.01.2007 before the Madurai Bench, in this Writ Petition. Therefore, the Bar
Council of India, at its meeting held on 20/21.01.2007, after considering
Removal Proceeding No.12/2000, in respect of the petitioner and also the letter
received from his Counsel, has decided as follows: –
“Ms A.Sumathi, advocate appeared on behalf of
shri.S.Balarkrishna Pillai and informed the Council that Shri Balakrishna Pillai
had filed a Writ Petition challenging the removal proceedings pending before the
Bar Council of India and it is informed that a stay of the proceedings has been
obtained by Shri Balakrishna Pillai and therefore he wants the proceedings to be
deferred till the Writ petition is decided. Accordingly, the removal proceedings
No. 12 / 2000 Is deferred pending disposal of the writ petition filed by him in
the Madras High Court (Madurai Bench).”
19. Learned counsel for the first respondent submitted that
in view of the pendency of the Writ Petition, no further action could be pursued
in the Removal Proceedings. She further submitted that as there is no specific
time limit prescribed under Section 36 of the Advocate’s Act for conclusion of
the removal proceedings, the same cannot be declared as deemed to have been
concluded in favour of the writ petitioner.
20. Learned counsel for the first respondent further
submitted that the order made in W.P.No.3005/04, dated 26.07.2006, cannot be
cited as a precedent, for the reason that the contention that Section 36 of the
Act does not impose any time restriction in concluding the removal proceedings,
has not been adverted to by this Court. It is her further contention that in
the above Writ Petition, earlier, the petitioner therein had filed a Writ
Petition in W.P.No.11004 of 2002, challenging the order of Bar Council of Tamil
Nadu and this Court, by an order, dated 02.12.2003, directed the Bar Council of
India to pass orders on the removal proceedings No.11 of 2000, pending against
the petitioner therein, within a period of two months from the date of passing
of the order and since no orders were passed for nearly two years, this Court
has declared that the removal proceedings pending against the petitioner therein
as deemed to have been concluded. For the above said reasons, she prayed for
dismissal of the Writ Petition.
21. Before adverting to the facts of this case, it is
relevant to have a cursory look at the provisions relating to the
qualifications prescribed for enrolment as an Advocate under the Advocates Act,
1961 and Bar Council of India Rules.
22. Advocates Act, 1961, was enacted to have a conslidated
law relating to legal practitioner and to provide for the constitution of Bar
Councils and an All India Bar Council. Among other main features of the Act, one
of the main feature of the Act is that the prescription of a uniform
qualification for admission of persons to be enrolled as advocates. Chapter 2
deals with Bar Councils. Section 3 of the Act deals with State Bar Councils.
Section 4 of the Act deals with Bar Council of India and as per the said
Section, there shall be a Bar Council for the territories, to which, the Act
extends, to be known as the Bar Council of India. The functions of the Bar
Council of the State are enumerated in Section 6 of the Act, which includes,
“(a) to admit persons as advocates on its roll.
(b) ……………
(c) to entertain and determine cases of misconduct against
advocates on its roll.
(d) ………
(e) ……..
(f) ………
(g) ………
(h) to perform all other functions conferred on it by or under
this Act.”
23. The relevant clauses in Section 7(c) of the Act are
extracted hereunder:
“c. To lay down the procedure to be followed by its
disciplinary committee and the disciplinary committee of each State Bar Council.
d. To safeguard the rights, privileges and interest of
advocates
e. To promote and support law reform
g. To exercise general supervision and control over State Bar
Councils
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
(ic) to recognise on a reciprocal basis foreign qualifications
in law obtained outside India for the purpose of admission as advocate under
this act.
l. to perform all other functions conferred on it by or under
this Act
m. to do all other things necessary for discharging the
aforesaid functions.”
24. Section 24 of the Advocates Act, speaks about persons,
who may be admitted as advocates in the State rolls and the same is extracted
hereunder:
“24. Persons who may be admitted as advocates on a State
roll:-
(1) Subject to the provisions of this Act. And rules made
thereunder, a person shall be qualified to be admitted as an advocate on a State
roll, if he fulfills the following conditions, namely:-
a. he is a citizen of India:
Provided that subject to the other provisions contained in the
Act, a national of any other country may be admitted as an advocate on a State
roll, if citizens of India, duly qualified, are permitted to practice law in
that other country.
b. he has completed the age of twenty-one years.
c. he has obtained a degree in law-
i. before the [(Note:- Subs. by Act 60 of 1973, sec.18, for
the words “28th day of February,1963” 12th day of March, 1967] from any
University in the territory of India, or
ii. before the 15th August, 1947, from any University in any
area which was comprised before that date within India as defined by the
Government of India Act, 1935, or
iii. [Note:- Subs. by Act 60 of 1973, sec.18, for clause
(iii)) after the 12th day of March, 1967, save as provided in sub clause after
undergoing a three years course of study in law from any University in India
which is recognised for the purpose of this Act by the Bar Council of India, or
(iiia) after undergoing a course of study in law, the duration
of which is not less than two academic years commencing from the academic year
1967-98 or any earlier academic year from any University in India which is
recognised for the purpose of this Act by the Bar Council of India, or]
[(Note:- Subs. by Act 60 of 1973, sec.18, for the words “he is
a barrister”.) he is barrister and is called the Bar and on before the 31st day
of December, 1976
[(Note:- Ins. by Act No.107 of 1976, sec.6) “or has passed the
articled clerks” examination or any other examination specified by the High
Court at Bombay or Calcutta for enrolment as an attorney of that High Court] or
has obtained such other foreign qualification in law as is recognised by the Bar
Council of India for the purpose of admission as an advocate under this Act.]
iv. (Note:- Ins. by Act 21 of 1964 sec.13) In any other case,
from any University outside the territory of India, if the degree is recognised
for the purpose of this Act by the Bar Council of India or
(d) (Note:- Clause (d) omitted by Act 60 of 1973, sec.18)
e. he fulfills such other conditions as may be specified in
the rules made by the State Bar Council under this Chapter.
f. [(Note:- Clause (f) subs. by Act 60 of 1973, sec.18) he has
paid, in respect of the enrolment, stamp duty, if any, chargeable under the
Indian Stamp Act, 1899, and an enrolment fee payable to the State Boar Council
of [(Note:- Subs. by Act 70 of 1993, sec.6) six hundred rupees and to the Bar
Council of India, one hundred and fifty rupees by way of a bank draft drawn in
favour of that Council.]
Provided that where such person is a member of the Schedule
Castes or the Scheduled Tribes and produces a certificate to the effect from
such authority as may be prescribed, the enrolment fee payable by him to the
State Bar Council shall be [(Note:- Subs. by Act 70 of 1993, sec.6) one hundred
rupees and to the Bar Council of India, twenty-five rupees.]
[Explanation – (Note:- Ins. by Act 14 of 1962, sec.2) For the
purpose of this sub-section, a person, shall be deemed to have obtained a degree
in law from a University in India on the date on which the results of the
examination for that degree are published by the University on its notice-board
or otherwise declaring him to have passed that examination.]
(2) Notwithstanding anything contained in sub-section (1)
[(Note:- Subs. by Act 21 of 1964, sec.13, for certain words.) a vakil or a
pleader who is a law graduate] 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. fulfills the conditions specified in clauses (a), (b) and
(f) of sub-section (1).
(3) [(Note:- Sub-sections (3) and (4) ins. by Act 21 of 1964,
sec.13) Notwithstanding anything contained in sub-section (1) a person who-
a. (Note:- The words “before the 31st day of March,1964 and
then in force” omitted by Act 33 of 1968, sec.2) has, for at least three years,
been a vakil or a pleader or a mukhtar or was entitled at any time to be
enrolled under any law (Note:- The words “before the 31st day of March,1964 and
then in force” omitted by Act 33 of 1968, sec.2) as an advocate of a High Court
(including a High Court of a former Part B State) or of a Court of Judicial
Commissioner in any Union territory, or
aa. [(Note:- Sub-clause (aa) ins. by Act 60 of 1973, sec.18)
before the 1st day of December, 1961 was entitled otherwise than as an advocate
to practice the profession of law (whether by way of pleading or acting or both)
by virtue of the provisions of any law, or who would have been so entitled had
he not been in public service on the said date or.
a. [(Note:- Sub-clause (b) omitted by Act 60 of 1973,
sec.18)].
b. Court in any area which was comprised within Burma as
defined in the Government of India Act, 1935 or
c. is entitled to be enrolled as an advocate under any rule
made by the Bar Council of India in this behalf, may be admitted as an advocate
on a State roll if he-
(i) makes an application for such enrolment in accordance with
the provision s of this Act, and
i. fulfills the conditions specified in clauses (a), (b), (e)
and (f) of sub-section (1).
1. [(Note:- Sub-section (4) omitted by Act 107 of 1976,
sec.6)]”
25. Section 36-B deals with the disposal of the disciplinary
proceedings and it reads as follows:
“36B. Disposal of disciplinary proceedings- (1) The disciplinary committee
of a State Bar Council shall dispose of the complaint received by it under
Section 35 expeditiously and in each case the proceedings shall be concluded
within a period of one year from the date of the receipt of the complaint or the
date of initiation of the proceedings at the instance of the State Bar Council,
as the case may be, failing which such proceedings shall stand transferred to
the Bar Council of India which may dispose of the same as if it were a
proceeding withdrawn for inquiry under sub section (2) of section 36.
(2) Notwithstanding anything contained in sub section (1) where on the
commencement of the Advocates (Amendment) Act, 1973, any proceedings in respect
of any disciplinary matter against an advocate is pending before the
disciplinary committee of a State Bar Council, that disciplinary committee of
the State Bar Council shall dispose of the same within a period of six months
from the date of such complaint, or, as the case may be, the date of initiation
of the proceedings at the instance of the State Bar Council, whichever is later,
failing which such other proceeding shall stand transferred to the Bar Council
of India for disposal under sub-section.”
26. The disciplinary committee of the Bar Council shall have
the same powers, as are vested in a civil court under the Code of Civil
Procedure, 1908 (5 of 1908), in respect of the matters enumerated in Section 42
of the Act. Section 49 of the Act deals with general power of the Bar Council
of India to make rules for discharging its functions under the Act and in
particular, such rules may prescribe,
“a. (Note:- Clause (a) subs. by Act 21 of 1964, sec.20) the
conditions subject to which an advocate may be entitled to vote at an election
to the State Bar Council, including the qualifications or disqualification of
voters, and the matter in which an electoral roll of voters may be prepared and
revised by a State Bar Council.
……………..
(af) [(Note:- Clause (af) subs. by Act 60 of 1973, sec.38) the
minimum qualification required for admission to a course of degree in law in any
recognized University.]
(ah) the conditions subject to which an advocate shall have
the right to practice and the circumstances under which a person shall be deemed
to practice as an advocate in a court.
……….
c. The standards of professional conduct and etiquette to be
observed by advocates.
d. The standards of legal education to be observed by
university in India and the inspection of Universities for that purpose.”
27. Bar Council of India Rules have been framed in exercise
of rule making powers under Advocate’s Act, 1961. Part IV of the Rules deals
with the courses leading to grant of LLB Degree. As per the rules, there shall
be two streams of law courses leading to LL.B. Degree viz. a five year and a
three year law course for the purposes of enrolment as advocates as prescribed
under the Rules contained in Section-A and Section-B respectively. As per
Clause 2(b) and (c) of Section-A of the Rules contained in Part-IV, pertaining
to five year course of law after 10+2 or 11+1, the law degree has been obtained
after undergoing a regular course of study in a duly recognised law college
under these rules for a minimum period of five years, out of which the first two
years shall be devoted to study of pre-law courses as necessary qualifications
for admission to three year course of study in law to be commenced thereafter.
The last six months of the three years of the law course shall include a regular
course of practical training. That the course of study in law has been by
regular attendance for the requisite number of lectures, tutorials, moot courts
and practical training given by a college affiliated to a University recognised
by the Bar Council of India.
28. As per Clause (4) of the Rules, the students shall be
required to put in a minimum attendance of 66% of the lectures on each of the
subjects as also at the moot courts and practical training course. Provided
that in exceptional cases, for reasons to be recorded and communicated to the
Bar Council of India, the Dean of the Faculty of Law or Principal of law
colleges may condone attendance short of those, if the students have attended
66% of the lectures in the aggregate for the semester or annual examination, as
the case may be.
29. Section B to Part IV of the abovesaid Rules deals
with Three year law course, after graduation. Similar to LLB course, this
course of study in law should be by regular attendance with the requisite number
of lectures, tutorials or moot courts in a college recognised by a University.
30. The core issue centres around the contention as to
whether the petitioner had attended regular classes at Bangalore and satisfied
the important criteria, viz., regular course with the minimum attendance in the
subjects, as per the statutory rules. The petitioner has also submitted that
rule 24 of the Bar Council of India Rules, cannot override the statutory
provision contained in the Act. Therefore, it is necessary to consider some of
the cases on this aspect.
31. In L.Meenakshi Sundaram v. Director of Legal Studies
reported in 1981 (II) MLJ 141, a Division Bench of this Court considered a
case, as to whether a student, who had completed correspondence course in BGL
degree conducted by Kamaraj University is eligible to pursue the third year
B.L., Degree course. He challenged the rejection of his candidature, on the
ground that acquisition of BGL degree, through correspondence, would not be
considered as equivalent to pursue B.L. Degree course in the University, is not
correct. The rejection made by the Registrar of University of the Madras, was
based on a resolution of the Syndicate of the University, which referred to a
letter of the Bar Council of India. While considering the powers of the Bar
Council of India to frame rules, to promote legal education and to lay down the
standards of education, for the purpose of recognition of the course, eligible
for admission to the rolls of the Bar Council, a pre-requisite to practise as an
Advocate, the Division Bench, at Paragraphs 10, 11, 13, 15 & 16, held as
follows:
“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.
The Court was unable to agree that the expression “standards
of such education” occurring in Section 7(1)(h) of the Act in any way whittles
down or narrows down the scope of the functions of the Bar Council of India, so
as to take away from such functions the right to lay down a prescription that
the course must be a regular course in the sense that the students are required
to attend regular classes and to put in certain percentage of attendance.
The argument that “standards of such education” occurring in
Section 7(1) refers only to the excellence of the education aimed at and will
not take in any other matter such as whether the course should be a regular one
or may be by correspondence or how much attendance a candidate should have put
in cannot be accepted. (Para 10)
Section 24(1) of the Advocates Act opens by saying that the
provisions contained therein shall be subject to the provisions of this Act and
the rules made thereunder. Consequently, the expression “a three year course of
study in law”, occurring in Section 24(1)(c)(iii), has to be read subject to the
rules framed by the Bar Council of India, and if so read, there is absolutely no
inconsistency between the rules framed by the Bar Council of India and the
statutory provisions contained in Section 24 (1)(c)(iii) of the Act.
(Para 11)
It is not possible to hold that there is no difference between
the B.G.L.Degree of the Madurai Kamaraj University obtained after pursing the
correspondence course and the degree obtained after attending regular classes.
If so, there is absolutely no scope for the invocation of Article 14 of the
Constitution at all, because, from the very nature of the case, the two degrees
are not identical or equal.
(Para 13)
The Constitution itself provides that any law relating to professional
qualifications necessary for practising any profession or carrying on any
occupation, trade or business will be valid and not in any way derogatory to the
right of a citizen under Article 19(1)(g). (Para 16)
The prescription made by the Bar Council of India in the rules
framed by them regarding attendance in a regular course in a college or the
prescription regarding a particular percentage of attendance at such lecturers
in law relating to professional qualification necessary for practising the
profession of an advocate is consequently saved by Article 19(6) of the
Constitution of India. (Para 15)”
32. As regards the contention of the petitioner that since
the removal proceedings have not been completed within one year from the date of
institution and therefore, it should be deemed to have been completed in favour
of the petitioner, it is relevant to consider some of the decisions. In
Karnataka State Bar Council v. H.Subramanya Jois reported in AIR 1993 Kar 7
(DB), the respondent therein sought for quashing a resolution of the Bar Council
of Karnataka, by which, the case of the respondent was referred to a
Disciplinary Committee. The Disciplinary Committee took the case on file. An
objection was made by the respondent-Advocate that the complaint ought to have
been disposed of within a period of one year from the date of receipt of the
complaint by the Bar Council and therefore, the Bar Council had no competence to
refer the complaint to the disciplinary committee. The objection of the
respondent was rejected by the disciplinary committee. Thereafter, a Writ
Petition was filed, challenging the same. A learned Single Judge accepted the
petitioner’s contention, by holding that the purpose of the period of limitation
prescribed under the Advocates Act, 1961 is to require an early and expeditious
disposal of the complaints against an Advocate and therefore, the period of one
year prescribed under Section 36-B of the Act has to be computed from the date
of the receipt of complaint by the Bar Council and not from the date of the
reference of complaint to the Disciplinary Committee. Rejecting the contentions
of the respondent therein, the Division Bench of Karnataka High Court, at
Paragraphs 7, 8, 9 and 10, held as follows:
“7. The disposal of the complaint referred here is to be by
the Disciplinary Committee; the mandate of the provisions of Section 36(1) is
clearly directed to the Disciplinary Committee requiring it to dispose of the
complaint. However, the petitioner’s contention was that the words — “in each
case the proceeding shall be concluded within a period of one year from the date
of receipt of the complaint” –in Section 36(1) are to be understood, as
referring to the complaint received by the Bar Council, and not by the
Disciplinary Committee. This overlooks the content of Section 36(1); subject
matter of Section 36(1) is the disposal of the case may by the Disciplinary
Committee. Case may be referred to the Disciplinary Committee, either on receipt
of the complaint by the Bar Council or by the Bar Council suo motu. When a case
is referred by the Bar Council suo motu (without any complaint being received by
it), then, certainly the Disciplinary Committee is given an year’s time from the
date of reference to conclude the proceedings before it; this is very clear from
the words “shall be concluded within a period of one year from….. the date of
initiation of the proceedings at the instance of the State Bar Council”. If so,
naturally, a different period of limitation to conclude the proceedings by the
Disciplinary Committee, when it is a case of a reference of a complaint, could
not have been thought of. At any rate, a plain reading of Section 36(1) conveys
the meaning that the period of one year, is the period provided to consider the
proceedings by the Disciplinary Committee and, therefore, such a period would
commence only when the proceedings of the Disciplinary Committee are initiated
and not earlier. 8. Rule 17(2) makes the position further clear. It
reads :
“The date of receipt of the complaint or the date of the
initiation of the proceedings at the instance of the State Bar Council shall be
the date on which the State Bar Council refers the case for disposal to its
Disciplinary Committee under Section 35(1).”
Confining the above words to the instant case, Rule 17(2) would read:
“The date of receipt of the complaint….. shall be the date on which the State
Bar Council refers the case for disposal to the Disciplinary Committee under
Section 35(1).”
9. Rule 17(2) actually identifies the relevant date. It points
out that in the case of a complaint, the date of its receipt is not the actual
date when the Bar Council received it, but, it is the date on which the case is
referred to the Disciplinary Committee for disposal. It is impossible to
understand this Rule in any other manner.
10. If the case is not disposed of within the prescribed
period, proceedings are to be transferred to the Bar Council of India under
Section 36(1). For this purpose, Rule 17(1) requires the Secretary of every
State Bar Council to furnish the relevant particulars to the Bar Council of
India. It is in this context Rule 17(2) clarifies that the “date of receipt of
the complaint” shall be the date on which the case is referred to the
Disciplinary Authority, so that if proceedings are not completed within one year
from the said date, the case shall stand transferred to the Bar Council of
India.”
It is to be noted in the above reported case that even if the proceedings
referred to the Disciplinary Committee were not completed within one year, the
case has to be transferred to the Bar Council of India and it is categorically
held that the proceedings cannot be declared as abated.
33. In Rattan Singh, I.A.S. v. Bar Council of India
and others reported in 1994 (2) SCC 102, a Civil Appeal and a Writ Petition were
disposed of by a common order. Facts of the Civil Appeal are that the first
respondent therein was a post-graduate in Political Science and Modern History,
undertook studies in LL.B. course in Calcutta University, as a non-collegiate
woman candidate under Regulation 35 of the Calcutta University, First
Regulations, 1951 framed under the Calcutta University Act, 1951. She was
conferred a law degree in terms of Regulation 35 by the Calcutta University and
she applied to the Bar Council of West Bengal, for enrolment as an Advocate.
However, she was informed by the Assistant Secretary of the Bar Council that she
was not entitled to be enrolled, as she did not fulfil the condition of Rule
1(1)(c) of Part IV of the Bar Council of India Rules, 1975. Coming to know of
rejection of her application for enrollment, she challenged the vires of the
rule itself.
34. Insofar as the writ petition is concerned, the Writ
Petitioner therein, passed his Bachelor of Arts examination in 1953 and acquired
a Master’s degree in Economics in 1956 and joined the Punjab Civil Service,
Executive Branch, on May 8, 1957. As a member of the civil service, he
exercised quasi-judicial powers in different capacities for some time and on the
basis of a resolution of the Executive Council of the Kurukshetra University and
the Academic Council, vide resolutions Nos.30 and 33 respectively, dated
September 15, 1973, the petitioner had undertaken a three year L.L.B
(Professional) course and secured a degree in 1978. He decided to quit the
Government service and thereafter, applied for enrolment as an Advocate paying
the fee of Rs.250 for such enrolment. In that application, he made it clear that
he would resign from government service, as soon as his eligibility for
enrolment as an Advocate was determined. This case was referred to the Bar
Council of India and the decision was awaited from the latter. However, there
was no response. When he came to know that no non-collegiate degree-holder had
ever been enrolled, since September 6, 1975, the date on which the Rules came
into force, as an Advocate, he thought it futile to await and filed a petition
under Articles 32 and 19(1)(g) of the Constitution of India. On the above facts
of both cases, the Supreme Court, at Paragraphs 11 to 17, held as follows:
“11. We may now reproduce Sub-rule (1) of Rule 1 of Part IV of
the Rules as it stood at all material times.”
1 (1) Save as provided in Section 24(1)(c)(iiia) 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:
(a) That at the time of joining the course of instruction in
law for a degree in law, he is a graduate of a University, or possesses such
academic qualifications which are considered equivalent to a graduates’ degree
of a University by the Bar Council of India;
(b) that the law degree has been obtained after undergoing a
course of study in law for a minimum period of three years as provided in these
rules;
(c) that the course of study in law has been by regular
attendance at the requisite number of lectures, tutorials and “moot courts in a
college recognised by a University”,
Rule 2 required the Council to publish by a notification in
the Gazette of India and prominent newspapers, the names of Universities whose
degrees are recognised under the rules and forward copies thereof to the
concerned Universities. Thus, under Rule 1(1) after March 12, 1967, a degree of
law obtained from any University shall not be recognised for the purpose of
Section 24(1)(c)(iii) of the Act unless the conditions stated in Clause (c) are
satisfied. Under the said clause the degree of law was not to be recognised
unless the course of study in law has been by regular attendance at the
requisite number of lectures, tutorials and moot courts in a college recognised
by a University. The respondent No. 1 of the first mentioned appeal admittedly
appeared and passed the three law examinations as non-collegiate student without
attending lectures, tutorials and moot courts. Her contention is that before she
started the study of law she was aware of the requirement of Regulation 35 and
had obtained the Law Degree in compliance therewith. It is not disputed that the
proviso was added to the said Regulation on December 14, 1979 before she passed
the final examination in 1980. This proviso was added to make the Regulation
consistent with the Rules. It may here be mentioned that the Calcutta High Court
in her case by the impugned judgment reported in AIR1983Cal461 struck down the
said rule as ultra vires the provisions of the Act. It may also be stated that
in the case of the Kurukshetra University student also it is an admitted fact
that he did not attend the course and passed as a non-collegiate.
12. We may at this stage notice decision of this Court
rendered in Baldev Raj Sharma v. Bar Council of India and Ors (1989 Supple. (2)
SCC 91) The factual background in which that decision was rendered was that the
petitioner therein had obtained the LL.B. degree (academic) as a private
candidate from the Kurukshetra University. That was a course of two years
duration. He thereafter joined the LL.B. (professional) course in the third year
as a regular student of Kanpur University. After obtaining the degree, he sought
enrolment as an advocate which was refused by the Bar Council of Punjab &
Haryana on the ground that he did not fulfil the requirements of Rule 1 (1)(c)
fad Section 24(1)(c)(iii) or (iii-a) of the Act. The petitioner thereupon moved
this Court under Article 32 of the Constitution. This Court after referring to
the relevant provisions namely, Sections 7(h) and (i), Section 24(1)(c)(iii) and
(iii-a) and Section 49(1)(b) of the Act read with Rule 1 (1)(c) of the Rules
held that the said Rule envisaged regular attendance of the student for the
entire period of the law course before he can seek enrolment as an advocate.
This Court further observed that the Rules merely amplified what was intended by
Section 24(1)(c)(iii) namely, the three years course of study in law must be
pursued by maintaining regular attendance. The court clearly negatived the
suggestion that there was any inconsistency between the provisions of the Act
and the Rules. This was because in the opinion of the Court there was a
substantial difference between the course of studies pursued as a regular
student and the course of study pursued as a private candidate. The policy
underlying the provisions of the Rules makes it clear that considerable emphasis
is laid on regular attendance at the law classes and this is manifest from the
plain language of the provisions referred to earlier. Since the petitioner had
failed to show that he had complied with the requirements of the said Rules, the
Court observed that the action refusing to enrol him was unassailable.
13. In view of the ratio of this decision, the conclusion of
the Calcutta High Court that Rule 1 (1)(c) was ultra vires Section 7(i),
24(1)(c)(iii) or Section 49(1)(d) stands overruled by necessary implication.
Once this Court has observed that the requirements of Rule 1 (1)(c) merely
amplify the requirements of the relevant provisions of the Act and do not run
counter thereto, the vires of the said Rule vis-a-vis, provisions of the Act
stands settled in favour of the validity of Rule 1 (1)(c). Therefore, both the
grounds on which the Calcutta High Court struck down the validity of Rule 1
(1)(c) stand negatived. The impugned decision of the Division Bench of the
Calcutta High Court therefore cannot be sustained.
14. Now under Section 7, one of the functions of the Bar
Council of India is to recognise Universities whose degree in law shall be
qualification for enrolment as an advocate and for that purpose to visit and
inspect the Universities. This power of recognition of Universities conferred
where the degree of law of that Universities is conferred where the degree 15 of
law of the University entitles the degree-holder for enrolment as an advocate.
Under Section 24(1)(c)(iii) which is relevant for this purpose, a person shall
be qualified to be admitted as an advocate on a State roll if he fulfils the
conditions of having undergone a three year course of study in law from any
University in India which is recognised by the Bar Council of India. Sub-section
3 of Section 24 is an exception clause to Sub-section 1 as it begins with a non
obstante clause which entitles a person to be enrolled as a advocate under
special rule made in that behalf. No such Rule was relied upon as having been
made under Sub-section 3 of Section 24. Section 49(1)(d) empowers the Bar
Council of India to make rules which may prescribe the standards of legal
education to be observed by Universities in India and the inspection of
Universities for that purpose. If the acquisition of a degree in law is
essential for being qualified to be admitted as an advocate on a State roll, it
is obvious that the Bar Council of India mast have the authority to prescribe
the standards of legal education to be observed by Universities in the country.
On a conjoint reading of these provisions of the Act with Rule 1 (1)(c) in Part-
IV of the Rules which prescribe the standards for legal education and
recognition of degrees in law as well as admission as advocates, it is difficult
to understand how one can say that the said Rule is inconsistent with any of the
provisions of the Act. What Rule 1(1) (c) requires is that the course of study
in law must be completed by regular attendance at the requisite number of
lectures, tutorials and moot courts in a college recognised by a University. As
pointed out earlier, this Court in Ballav Raj Sharma’s case pointed out that
there was a substantial difference between a course of studies pursued as a
regular student and the course of studies pursued as a private candidate. The
policy underlying the relevant provisions of the Rules is to lay emphasis on
regular attendance of the law classes. It is, therefore, clear that a candidate
desiring enrolment as an advocate must fulfil the conditions set out under the
relevant clause of Section 24 read with Rule 1 (1)(c) of the Rules. In the
present case since both the candidates admittedly did not pursue any regular
course of study at any college recognised by the University by attending the law
classes, lectures, tutorials and moot courts, they cannot be said to have
complied with the requirements for enrolment as an advocate. In that view of the
matter we think that the view taken by the Calcutta High Court reported in
Aparna Basumallkk v. Bar Council of India (AIR1983Cal461) is erroneous.
15. Our attention was then invited to the decision taken by
the Bar Council of India in the case of one Gulwant Singh who had joined the
course of instruction for first LL.B. in the academic year 1967-68 as a private
candidate and obtained a law degree of three years from the Punjab University as
a private candidate. On a reference being made to the Bar Council of India, the
latter opined that he was entitled to be enrolled even though he had passed the
law degree as a private candidate. On the analogy of this candidate, it was
submitted that both the candidates before us were also entitled to be enrolled
as advocates. We do not think that the submission is well founded for the simple
reason that the case of Gulwant Singh fell within the scope of Section
24(1)(c)(iia) since he had commenced the study in law from the academic year
1967-68 and not after 12th March, 1967.
16. It was lastly submitted that so far as the Calcutta
student was concerned, her cause was governed by Regulation 35 which
specifically permitted a woman candidate to appear as non-collegiate student.
This Regulation underwent a change on the addition of the proviso by the
Resolution of December 7, 1979 which required the University to inform the woman
candidate in advance that she will not be eligible for enrolment as an advocate
and the degree to be awarded shall bear an inscription to the effect that it was
obtained as a non-collegiate student. Regulation 35 could not hold the field
unless it was consistent with the provisions of the Act and the Rules. That is
why the proviso was required to be added to the regulation. But if the
University had omitted to insert the proviso that would not have entitled a
woman candidate for enrolment as an advocate on securing a degree as a non-
collegiate. Unless the degree of law was secured consistently with the
requirements of the provisions of the Act and the Rules would not serve as a
qualification for enrolment. The proviso was added to Regulation 35 by way of
extra caution. After the incorporation of Rule 1 (1)(c) in its present form,
Regulation 35 could not entitle a woman candidate to be enrolled as an advocate
if she secured the degree as a non-collegiate.
17. For the above reasons, we are of the opinion that Civil
Appeal No. 8816 of 1983 deserves to be allowed. We allow the same, reverse the
decision of the Division Bench of the Calcutta High Court and restore the
decision of the learned single Judge dismissing the Writ Petition which decision
is reported as Aparna Basumallick v. Bar Council of India (AIR1983Cal37). For
the same reasons, Writ Petition No. 1153 of 1991 must also fail and shall stand
dismissed. The C.M.Ps and the T.A. will also stand disposed of. There will,
however, be no order as to costs in both the matters.”
35. In Baldev Raj Sharma v. Bar Council of India and
Ors., reported in AIR 1989 SC 1541, the petitioner filed a Writ Petition before
the Supreme Court against an order of the Bar Council of Punjab and Haryana,
rejecting his application for enrolment as an advocate. After acquiring
Bachelor of Arts degree from the Punjab University, Patiala, the petitioner
therein joined the Bachelor of Laws (Academic) course in Kurukshetra University.
The course is of two years’ duration. Thereafter, he joined the LL.B.
(Professional) course in the third year in Kanpur University as a regular
student. The Kanpur University confers two distinct degrees, LL.B. (General),
which is a two year course, and LL.B. (Professional), which is a three year
course. As per the University Regulations, a person who has been awarded LL.B.
(General) degree is eligible for admission to the LL.B, (Professional) three
year. The petitioner attended classes as a regular student of the LL.B.
(Professional) Course-third year of the Kanpur University, as required by the
Rules and Regulations framed by that University and thereafter, applied to the
State Bar Council of Punjab and Haryana with the necessary enrolment fee for
enrolment as an advocate under the Advocates Act, 1961. The Bar Council of
Punjab and Haryana denied enrolment to the petitioner as an advocate on the
ground that the petitioner has not fulfilled the conditions laid down in Rule
1(1)(c) of the Rules of the Bar Council of India framed under Section 7(h) and
(i), Section 24(1)(c)(iii) and (iiia) and Section 49(1)(d). The main objection
of the Punjab and Haryana Bar Council was that the petitioner had obtained LL.B.
(Academic) degree (two years’ study course) as a private candidate. When the
rejection of the Bar Council of Punjab and Haryana was challenged, the Supreme
Court, after referring to Section 24 of the Advocates Act and the Rules framed
thereunder, at Paragraph 3, held as follows:
“The Bar Council of India has framed Rules under the Advocate Act, 1961.
Rule 1(1)(c) of Part IV of the Bar Council of India Rules, 1975 provides that
except as provided in Section 24(1)(c)(iiia) of the Advocates Act a degree in
law obtained from any University in the territory of India after 12th March,
1967 shall not be recognised for the purposes of Section 24(1)(c)(iii) of the
Act unless the conditions specified there are fulfilled, including the condition
“that the course of study in law has been by regular attendance at the requisite
number of lectures, tutorials and moot courts in a college recognised by a
University”. These rules were replaced by a fresh set of rules in 1984 and the
new Rule 1(1)(c) is almost identical. The Rule clearly requires that the course
of study in law should have been by regular attendance for the requisite number
of lectures, tutorials and moot courts and practical training. The Rule
envisages that for the entire period of the law course there must be a regular
attendance of the student before he can satisfy the conditions necessary for
enrolment as an advocate under the Advocates Act. 1961. The Rules amplify what
is intended in Section 24(1)(c)(iii) of the Act. The three years’ course of
study envisaged by that sub clause in the Act intends that the three years’
course of study in law must be pursued by maintaining regular attendance. We are
unable to say that there is any inconsistency between the Act and the Rule. So
also in a case falling under Clause (iiia) of Section 24(1)(c) of the Act, a
course of study in law must be pursued for not less than two academic years in
terms of that sub-clause and Rule 1(1)(c) will apply to such a case also. There
is a substantial difference between a course of study pursued as a regular
student and a course of study pursued as a private candidate. The policy
underlying the relevant provisions of the Bar Council Rules indicates the great
emphasis laid on regular attendance at the law classes. The conditions are
specifically spelt out when the Act is read along with the Rules. When so read,
it is plain that a candidate desiring enrolment as an advocate under the
Advocates Act must fulfil the conditions mentioned in Section 24(1)(c)(iii) or
Section 24(1)(c)(iiia) read with Rule 1(1)(c) of the Bar Council of India Rules,
1975. In the present case the petitioner failed to do so. His application for
enrolment was rightly rejected.”
36. On the duties and responsibilities of the State Bar
Councils and Bar Council of India, in Indian Council of Legal Aid v. Bar Council
of India reported in 1995 (1) SCC 732, the Supreme Court, at Paragraph 3, 4 and
6, held as follows:
“3. It will be seen from the above provisions that unless a person is
enrolled as an advocate by a State Bar Council, he shall have no right to
practise in a court of law or before any other Tribunal or authority. Once a
person fulfills the requirements of Section 24 for enrolment, he becomes
entitled to be enrolled as an advocate and on such enrolment he acquires a right
to practise as stated above. Having thus acquired a right to practise he incurs
certain obligations in regard to his conduct as a member of the noble
profession. The Bar Councils are enjoined with the duty to act as sentinels of
professional conduct and must ensure that the dignity and purity of the
profession are in no way undermined. Its job is to uphold the standards of
professional conduct and etiquette. Thus every State Bar Council and the Bar
Council of India has a public duty to perform, namely, to ensure that the
monopoly of practice granted under the Act is not misused or abused by a person
who is enrolled as an advocate. The Bar Councils have been created at the State
level as well as the Central level not only to protect the rights, interests and
privileges of its members but also to protect the litigating public by ensuring
that high and noble traditions are maintained so that the purity and dignity of
the profession are not jeopardized. It is generally believed that members of the
legal profession have certain social obligations, e.g., to render ‘pro bono
publico’ service to the poor and the under-privileged. Since the duty of a
lawyer is to assist the court in the administration of justice, the practice of
law has a public utility flavour and, therefore, he must strictly and
scrupulously abide by the Code of Conduct behoving the noble profession and must
not indulge in any activity which may tend to lower the image of the profession
in society. That is why the functions of the Bar Council include the laying down
of standards of professional conduct and etiquette which advocates must follow
to maintain the dignity and purity of the profession.
4. ……..Section 49(1) confers power on the Bar Council of
India to make rules, inter alia, for discharging its functions under the Act.
Section 49(1)(ag) when read with Section 24 of the Act confers wide powers on
the Bar Council of India to indicate the class or category of persons who may be
enrolled as advocates which power would include the power to refuse enrolment in
certain circumstances. The obligation to maintain the dignity and purity of the
profession and to punish erring members carries with it the power to regulate
entry into the profession with a view to ensuring that only profession-oriented
and service-oriented people join the Bar and those not so oriented are kept out.
6. We have briefly noticed the relevant provisions of the Act
in the earlier part of this judgment. We may now briefly indicate the scheme.
Before we do so it may not be out of place to mention that the profession of law
is one of the oldest professions and was practised in one form or the other in
the honorary post. After the advent of the British in India, certain rules in
regard to the practise of law were introduced. Before independence there were
Mukhtars and Vakils who were permitted to practise law in moffusil courts even
though not all of them were Law graduates. However, slowly and gradually they
were allowed to wither away and their place was taken by Pleaders who were,
after securing a degree in law permitted to practise at the district level.
Those who were enrolled as advocates could practice in any court subordinate to
the High Court including the High Court. The difference between a Pleader and an
advocate was merely on account of the fee charged for enrolment. After
independence, came the Act which was enacted ‘to amend and consolidate the law
relating to legal practitioners and to provide for the Constitution of Bar
Councils and an all-India Bar’. The Act creates an all-India Bar with only one
class of legal practitioners, namely, advocates, who of course are classified as
senior advocates and other advocates (Section 16). The general superintendence
of ethics and etiquette of the profession is the responsibility of the Bar
Councils created under the Act and they have been charged with the duty to
punish their members for misconduct. The Act envisages the existence of a Bar
Council for every State. The function of admission of persons as advocates is
entrusted to every State Bar Council which is required to prepare and maintain a
roll for that purpose. While disciplinary jurisdiction is conferred on the State
Bar Councils to punish its members for misconduct, it is at the same time
charged with the duty to safeguard their rights, privileges and interest. They
must perform all the functions conferred on them by or under the Act and do
everything that is necessary to discharge the functions set out in Section 6. So
far as the Bar Council of India is concerned, its functions are of a more
general nature, e.g., to lay down standards of professional conduct and
etiquette for advocates, to safeguard their rights, privileges and interests, to
supervise and control the working of the State Bar Council, to promote legal
education, to recognise universities, to organise legal aid to the poor and to
perform all other functions conferred by or under the Act and do everything that
may necessary to discharge the functions enumerated in Section 7. Besides the
above it too is required to exercise discipline and control over the members of
the profession. Thus the functions are divided between the State Bar Councils
and the Bar Council of India, although for obvious reasons overlaps are
unavoidable. The rule making power has been conferred on the State Bar Councils
under Sections 15 and 28 and on the Bar Council of India under Section 49 of the
Act.”
37. Reverting back to the case on hand, material on record
shows that a complaint, dated 26.08.2000, has been lodged by the Bar
Association, Nagercoil to take action against four lawyers, including the
petitioner, who has been alleged to have been working as an Advocate’s Clerk in
Nagercoil and did not attend the law course regularly, as regular attendance is
necessary for the course of study for obtaining a law degree. The Bar Council
of India, by proceedings, dated 31.01.2001, has instructed the Bar Council of
Tamil Nadu to take all the facts into consideration and pass a detailed order.
Pursuant to the same, the Bar Council of Tamil Nadu, after providing an
opportunity to the Advocates, has sent a report to the Bar Council of India,
vide proceedings in R.O.C.No.1060 of 2001, dated 28.08.2001 in Removal
Proceedings No.6 of 2000. The petitioner along with three others have been
placed under suspension and thereafter, ratification has been sought for, by the
Secretary, Bar Council of Tamil Nadu. The Bar Council of India, has requested
the State Council to submit a report by 15th February’ 2002. The Disciplinary
Committee No.2 of the Bar Council of Tamil Nadu, in its report, dated 7.06.2003,
after considering the case of the petitioner, has recorded as follows:
“PW.1, Ashok Padmaraj is the Secretary of the Complainant
Association. He has filed the proof affidavit stating the facts of the case of
the complainant. He was thoroughly cross examined by the respondents’ counsels.
PW.2, G.Nagendran the Secretary of the Advocate Clerks Association, Nagercoil
has deposed for the complainant. He has produced the registers of his
Association in Ex.C1 to C4. The various entries in these documents show that
the respondent B.Balakrishna Pillai was a member of the Clerks Association.
PW.2 has also stated that during the relevant period the respondent
B.Balakrishnan Pillai was a member of the Advocate Clerks Association and he was
working as a Advocate Clerk at Nagercoil.
The respondent B.Balakrishna Pillai was examined as RW.3.
Only the most relevant portion in his evidence is being considered. Admittedly,
he was working as advocate clerk at Nagercoil under G.Ramakrishnan, advocate
from 1981 to April 1994. During 1994 to 1997, he did his law course in the
S.S.L.R.C. Havanur College of Law at Bangalore. He has stated that his younger
sister V.Lakshmi was living at Hosur near Bangalore and he was staying with her
when he was studying his law course. Ex.R34 is the Attendance Certificate
issued to him by his college. He studied his law course properly and obtained
his law degree in a proper manner. His enrolment was duly done.”
38. All the four Lawyers, including the petitioner, against
whom, removal proceedings were initiated, have obtained law degrees from
colleges outside the State of Tamil Nadu. The disciplinary committee, while
considering as to whether the petitioner and others have satisfied the minimum
attendance of 66% of the lecturers, on each of the subjects, as also the
tutorials, moot courts and practical training, has observed that the distance
between the Nagercoil and Bangalore is 650 Kms. To prove that it is not
possible for the writ petitioner and others to attend regular course in college
at Bangalore, the complainant, the Secretary, Nagercoil Bar Association, has
examined PW.2, Mr.G.Nagendran and marked exhibits, C1 to C4, Registers and
Minutes Book maintained by the Advocate Clerks’s Association, in which, it has
been found that three of them were members of the Advocate Clerk Association
and they were paying their subscription.
39. Out of the four Advocates against whom, removal
proceedings have been initiated, except, Mr.E.Chithambarahanu Pillai, who had
claimed to have worked in N.S.K. Polytechnic, Kanyakumari, others were Advocate
Clerks. To sustain the avernments that they have not attended regular courses
and satisfied the minimum attendance as required under the rules, the Committee,
after considering the evidence, has observed that they have not furnished any
material records, precisely to prove that they had put in 66% of the lectures,
on each of the subjects, as also at tutorials, moot courts and practical
training course. Before the Committee, the petitioner and others have relied on
Exs.R14, 24 and 34, said to be the Attendance Certificates issued by the
respective colleges. Ex.R14 is the Attendance Certificate issued by the SLSRC
Havanur College of Law, Bangalore, to Mr.J.Parameswaran Thambi (R.P.No.10 of
2000). Ex.R24, Attendance Certificate issued by Islamiah College of Law in
respect of Mr.P.Subramonia Pillage (R.P.No.11 of 2000). Ex.P34 is the
Attendance Certificate issued by the S.L.S.R.C. Havanur College of Law,
Bangalore, to the petitioner (R.P.No.12 of 2000). Upon consideration of the
same, the Enquiry Committee has observed that,
“All these three documents relied on by the respondent to
prove their attendance as required under the Rule are totally silent as to how
many lecturers, tutorials, moot courts and practical training courses were
required to be attended and how many of them were attended by the respondents.
In the absence of those particulars in these three documents and in view of the
facts that they have been issued after four or five years after the completion
of the law course, we are not inclined to place any reliance on these three
documents in Ex.R14, R24 and R34.”
40. Thus, it is seen from the report of the State Bar
Council that though the petitioner and two others have contended that they have
stayed in the same place, near to the Law Colleges in Bangalore, they have not
examined anyone to corroborate the same. Again, the contents of the supporting
affidavits of the advocates under whom, they claimed to have worked as Advocate
Clerks, have not been proved by examining them before the Committee. Therefore,
in these circumstances, the Enquiry Committee has observed that,
“all the three respondents have not discharged their burden of
proof and they have failed to prove that they have complied with the condition
laid down in Rule 1(i)(c) Section B Part IV of the Bar Council of India Rules.”
41. Placing reliance on a decision of Division Bench of
Punjab and Haryana High Court in Janak Raj v. Bar Council of India reported in
AIR 2001 P & H 374, the Enquiry Committee, has further observed that,
“the LLB Degrees held by the respondents in Removal
Proceedings No.06/2000, 10/2000, 11/2000 and 12/2000 may be valid for any other
purpose but will not entitle them to enroll as advocates and since they have
been already enrolled by the Bar Council of Tamil Nadu as advocates they are
liable to be removed from the Bar Council of Tamil Nadu.”
42. The facts of the above reported judgment are as follows:
The petitioner therein joined the Office of the Deputy Commissioner, Ferozepur
in the year 1962 and after attaining the age of superannuation, he retired from
service on October, 31, 1997. He passed B.A., in the year 1971, while in service
and in the year 1995, he joined the Three Years’ LL.B. (Professional) course “as
a regular student in Faculty of Law, Shia Degree College, Lucknow”, affiliated
to University of Lucknow. He claimed that in August 1996, he had taken up
L.L.B., examination, subject to the condition that no leave would be granted. He
completed the course in the year 1998. A provisional certificate, dated November
29, 1999, was issued by the University, certifying that the petitioner had
passed the Degree of Bachelor of Law in the Second Class. The Principal of the
College also certified that the petitioner had passed the examination as a
regular student from the institution and that his attendance was as per norms
prescribed by Lucknow University. Thereafter, the petitioner had submitted the
forms along with the requisite fee for enrolment as a trainee to the Bar
Council. As the Training Service Rules were struck down by the Supreme Court in
V.Sudeer v. Bar Council of India, the petitioner approached the Bar Council for
enrolment as an Advocate. On receipt of the application, the Bar Council asked
the petitioner to furnish following information along with the supporting
documents :–
(i) “Place of posting during law course 1995-1998.
(ii) Distance (one side) from place of posting to place of Law
College.
(iii) Proof of leave or study leave from your Department duly
obtained for the purpose of at tending the regular classes from the date of
admission till the date of retirement. The details should be yearwise and
monthwise.
(iv) Copy of permission order to join LL.B. classes at
Lucknow.”
43. The petitioner submitted a reply on July 14, 1999. The
distance between the office of the Deputy Commissioner, Ferozepur and the
College was 720 kms. He had obtained 143 days’ earned leave during the period
from May 15, 1995 to July 21, 1997. Besides, he also claimed to have availed
casual leave. For the proof of leave, having been obtained for the purpose of
attending regular classes and copy of the order, granting permission to join
LL.B. classes at Lucknow, the petitioner has contended that he had already
submitted the same. The Bar Council, vide letter, dated August 1, 2000,
rejected his application for enrolment. Assailing the correctness of the order
of rejection, the petitioner inter alia contended that the action of the
respondents in rejecting his claim was arbitrary and discriminatory, as the
attendance given by the college had not been properly considered. It was also
contended that no action for the cancellation of the degrees awarded by the
respective Universities had been taken by the Bar Council. According to him,
other persons who had obtained degrees, in a similar manner had been enrolled.
While considering the above submissions, the Division Bench, at Paragraphs 11,
12, 13 and 14, held as follows:
“11. The Advocates Act, 1961 embodies the law relating to the
legal practitioners. Section 24 of the Act lays down the conditions which a
person has to fulfil before he can be considered as “qualified to be admitted as
an Advocate on a State roll”. One of these conditions is that he should have
“obtained a degree in law after undergoing a three years’ 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”. It has been further provided that he should fulfil
“such other conditions as may be specified in the rules made by the State Bar
Council under this chapter”.
12. In exercise of the powers under the Act, Rules have been
framed by the Bar Council of India. These lay down the standards of legal
education as required under the Act. In Section ‘B’ which is applicable in the
case of persons obtaining a degree of Law on the completion of three years of
study, Rule 1(1) (b & c) provide that a degree in law shall not be recognised
for the purposes of Section 24(1)(c)(iii) unless the following conditions are
fulfilled:–
(b) that the law degree has been obtained after undergoing a
course of study in law for a minimum period of three years as provided in these
rules.
(c) that the course of study in law has been by regular
attendance at the requisite number of lectures, tutorials or moot Courts in a
college recognised by a University.
13. Rule 3 requires that the students shall be required to put
in a minimum attendance of 66% of the lectures in each of the subjects as also
at tutorials, moot Courts and practical training course.
14. What is the position in the present cases? The petitioners
were admittedly employed in the office of the Deputy Commissioner, Ferozpur when
they had joined the course. They have not been able to show as to how many
lectures had been delivered and that they had actually attended the requisite
percentage thereof. In this situation, it is apparent that the petitioners did
not fulfil the conditions prescribed under the Act and the Rules.
44. As regards the contention that some other persons were
permitted to enrol themselves as Advocates, at Paragraph 24, the Division Bench
held as follows:
“24. The onus of proving that equals have been treated
unequally lay on the petitioners. They have not shown that the persons who were
similarly situate have been treated differently. Still further, even if it is
assumed that the respondents have enrolled certain persons despite the fact that
they did not fulfil the prescribed conditions of eligibility, this Court cannot
compel the respondents to repeat the wrong. No direction to act in violation of
a rule can be Issued by the Court. Resultantly, the plea of discrimination
cannot be sustained.”
45. As per the rules, the students shall be required to put
in a minimum attendance of 66% of the lectures on each of the subjects, as also
at tutorials, moot courts and practical training course. Only in exceptional
cases, for reasons to be recorded and communicated to the Bar Council of India,
the Dean of the Faculty of Law and the Principal of law colleges may condone
attendance short of those required by the Rule, if the student had attendance
66% of the lectures in the aggregate for the semester or examination as the case
may be.
46. Regular attendance of the lecturers, tutorials, moot
courts and practical training given by the college, affiliated by the University
and recognised by the Bar Council of India is a mandatory requirement for
securing a law degree and it is to be noted that a bachelor of academic laws,
now afforded by many Universities through distant education is not recognised
for enrolment as an advocate. Part IV of the Bar Council of India Rules
prescribe minimum lecture hours for certain papers, such as, (1) Moot Courts,
Pre-Trial Preparation, Participation in the Trial Proceedings, (2) Public
Interest, Loitering, Legal and Para-Legal Services and (3) Other Papers.
47. Thus, it is mandatory requirement under the Act and the
rules framed that a person, who seeks for enrolment, should attend regular
classes and satisfy the minimum percentage of attendance of the lectures, on
each of the subjects, as also at tutorials, moot courts and practical training
course. In the case where a person is employed, it is also a mandatory
requirement that to prove that permission has been granted by the employer for
the purpose of admission and attending the regular classes. One cannot
simultaneously work in an office or establishment, earn salary and claim to be
a regular student of a Law College, for the purpose of enrolment. He cannot be
omnipresent both in the college and in the Office/establishment, simultaneously.
If any records are produced by such persons, to satisfy that he was on leave,
during the period of study, duly granted by the employer, with the necessary
permission to pursue the regular course, then the case would be different. It
cannot be contended that the Bar Councils are powerless to enquire as to whether
the applicant has satisfied the requirement under the provisions of the Act and
the rules, prescribed for enrolment. It cannot also be contended that merely
because, a University or the College has given an attendance certificate, the
Bar Councils should be refrained from examining the veracity of the same and
find out whether the applicant has satisfied the mandatory requirement as to
whether, he has put in the required attendance.
48. As held in various decisions stated supra, unless
the applicant satisfies that he had underwent the regular course with the
regular attendance, the State Bar Council or the Bar Council of India is
empowered to take appropriate action, even to remove the lawyer from the rolls.
While doing so, the Bar Council of the State or Bar Council of India, as the
case may be, is empowered to consider the evidence on record. In Janak Raj’s
case, though the petitioner therein has produced a certificate from the college,
stating that he had undergone regular course of study, the Bar Council of Punjab
and Haryana independently considered the same, with other evidence and came to
the conclusion that the petitioner therein did not satisfy the requirement for
enrolment. Bar Council of the State and the Bar Council of India, statutory
bodies under the Advocate’s Act are empowered to examine as to whether the
requirements for enrolment as an advocate are satisfied. Merely because, a
person has already been admitted to the rolls of the State Bar Council, that
would not preclude the Councils to examine the complaints and pass necessary
orders under the provisions of the Act and the rules.
49. Material on record shows that on receipt of the enquiry
report of the Bar Council of Tamil Nadu, dated 07.06.2003, the petitioner has
been called upon to appear before the Bar Council of India on 9th November’ 2003
at the premises of Bar Council of India, New Delhi. In response to the notice,
the petitioner has sent a reply, dated 17.10.2003 to the Bar Council of India
and prayed to reverse the finding of the Enquiry Committee. He has also prayed
for permission to practice as an Advocate. Subsequently, on 01.11.2003, another
show cause notice has been issued by the Bar Council of India, directing the
petitioner to appear on 22nd February’ 2004 at New Delhi. When the Bar Council
of India, vide order, dated 05.01.2007, has directed the petitioner to appear on
20.01.2007, a reply has been sent, stating that he has obtained interim stay of
the removal proceedings in the present Writ Petition. The interim stay and the
pendency of this writ petition are cited as reasons for not concluding the
removal proceedings. The contention of the petitioner that he is entitled to
similar relief granted to the writ petitioner in W.P.No.3005 of 2004, dated
26.07.2006 and that the removal proceedings pending against him, before the Bar
Council of India are deemed to have been concluded, cannot be countenanced for
more than one reason.
50. Facts of the judgment made in W.P.No.3005 of 2004 are
that earlier, the petitioner therein had filed W.P.No.11004 of 2002, questioning
the order of Bar Council of Tamil Nadu. In the said Writ Petition, by order,
dated 02.12.2003, this Court has directed the Bar Council of India to pass
orders on the removal proceedings No.11 of 2000, within a period of two months
from the date of passing of the order in the Writ Petition. Thereafter, the
petitioner received a telegram from the Secretary, Bar Council of India,
intimating that the hearing in the removal proceedings has been fixed on
22.02.2004. Though he had attended enquiry and pleaded his case, no orders were
passed. In such circumstances, this Court, by observing that inspite of
specific instructions made in W.P.No.11004 of 2002, the Bar Council of India has
not passed any orders for nearly two years and on that basis, quashed the
removal proceedings.
51. As rightly contended by the learned counsel for the Bar
Council of India, when there is no specific time limit provided under Section 36
of the Advocate’s Act, for the Bar Council of India to pass orders, either of
its own motion or on the report, by any State Bar Council, the removal
proceedings initiated by the State Bar Council cannot be declared as deemed to
have been concluded in favour of the writ petitioner. Reading of Section 36-B
of the Advocate’s Act, 1961, makes it clear that the disciplinary committee of a
State Bar Council shall dispose of the complaint received by it, under Section
35 expeditiously and in each case, the proceedings shall be concluded within a
period of one year from the date of the receipt of the complaint or the date of
initiation of the proceedings, at the instance of the State Bar Council, as the
case may be, failing which, such proceedings shall stand transferred to the Bar
Council of India which may dispose of the same, as if it were a proceeding
withdrawn for inquiry under sub section (2) of section 36 of the Act.
52. The contention that the College is the authority to say
about the attendance and the Bar Council of State cannot examine the same,
cannot be countenanced, for the reason, the Bar Council of the State or the Bar
Council of India, being the disciplinary authority under the Act, has every
authority to verify the details, for the purpose as to whether, the applicant
satisfies the mandatory requirement of attending a regular course, with the
required percentage of attendance in the subjects. If the contentions of the
petitioner are to be accepted, then no disciplinary action can be taken against
any advocate, who secures a law degree and enrols as advocate, dehors the
statutory requirement. Power of the Councils cannot be severed, considering
their role under the Act to maintain discipline and for the enforcement of the
principles of the Act and the rules framed thereunder. Material on record shows
that the writ petitioner has also submitted his reply to the show cause notice
offering his explanation on the enquiry report. All that remains now, is only
passing of appropriate orders, in accordance with the provisions of the Bar
Council of India Rules.
53. With the mushroom growth of Institutions in neighbouring
States, offering legal education, sitting in the home State and being engaged in
some avocation, securing law degrees, has become easier. Judicial notice can
also been taken, the number of advocates enrolled in the State Bar Council has
exceeded the sanctioned strength in the law colleges in the State of Tamil Nadu.
The Bar Council of the State and the Bar Council of India have a statutory duty
to uphold high standards of legal education. On the one hand, Government
establishes School of Excellance with high degree in standards of legal
education and simultaneously, there is an enormous increase in the number of
persons, who secure law degrees, from the neibourhood States. There cannot be a
restriction in pursuing legal education from other States, but at the same time,
for the purpose of enrolment as an advocate, a noble profession, the Bar
Councils should thoroughly examine the applications submitted for enrolment at
the threshold and take appropriate action against those, who acquire law degrees
without satisfying the mandatory conditions under the Act and the rules framed
thereunder and practice as advocates. If the exercise is not taken up by the
Bar Councils, then the institution would in a way be responsible for allowing
persons not qualified for enrolment to practice the noble profession of law and
public interest would be affected.
54. In the light of the above discussion and the judicial
pronouncements stated supra, this Court is of the considered view that when the
removal proceedings are pending before the Bar Council of India and after having
submitted the reply to the show cause notice, it is not open to the petitioner
to seek for a declaration, as prayed for. Hence, the Writ Petition is
dismissed. Interim stay granted is vacated.
55. The Bar Council of India, New Delhi, is directed to pass
orders as expeditiously as possible, not later than four months from the date of
receipt of a copy of this order. It is made clear that the petitioner, who has
already submitted his reply to the proceedings, shall not protract. It is
sincerely hoped that the Bar Council of India, New Delhi, would comply with the
orders within the stipulated time on the basis of the materials available on
record. No costs. Consequently, connected Miscellaneous Petition is also
closed.
skm
To
1. The Secretary,
Bar Council of India,
Rouse Avenue,
Institution Area, Near Bal Bhavan,
New Delhi 110 002.
2. The Secretary,
Bar Council of Tamil Nadu,
High Court Campus, Chennai 600 104.