JUDGMENT
Kania, C.J.
1. This is a petition under Art. 226 of the constitution of India, praying for a writ of mandamus or a writ inthenature of Mandamus or any other appropriate weit dircetion or order directing the respondents Nos. 1 and 2 ot desist the forberar form enforcing r. 1 (1) 9d) of Part IV of the Bar Council of India Rules as they stood prior to their amendment in 1982. The Bar Council of India rules inquestion have beenpublished in the Gazetter of India on 6thSeptember 1975. The petitioner has also asked for a direction or order directing Respondents Nos. 1 and 2 to desist and forbear form regusing enrolment to the petitioner on the basis of the said R. 1 (1) (D).
2. The Petitioner is a student who has passed his law examination. Respondent No. 1 is Bar Council of India, Respondents No. 2 is The Bar Council of Maharashtra, Respondent No. 3 is the University of Bombay and respondent No. 4 is Sta te of Maharashtra.
3. the Petitioner passed his I. C. S. E. Examinations in December 1977 securing 69 percent marks. Thereafter he pased his higher secondart school examination and secured 6 per cent marks at that examination. The petitioner than passed his B. Com Examinations in April 1982 with 62 per cent of the marks. As the intended to practies as a lawyer and specialise intaxationlaw the enrolled intheChartered Accoundtant’s course (commencing June 1982) conducted by the Insitutue of Chartered Accouontants of India. In September 1982, the petitioner enrolled in the Government Law College at Bombay. In April 1985 he passed his final LL B. examination with 63 per cent marks and obtained the LL. B degree. He stood 5th in the University of Bombay for that examination He passed in finalchartered Accountancy Examination inNovermber 1985. At the time of filling intheform for admission toethe government Law College in Septermber 1982 thepetitioner had duly disclosed that thehad already enrolled for the Chartered Accoutant’s course/ InDecember 1985 the petitioner submitted anapplication tothe2 nd respondent for rnrolment as an advocate ofthis Court. Inthat application thePetitioner dulydisclosed that while prosecuting studies in law form July 1982 to July 1985, he had joined the Chartered Accountant’s course and completed his articles for the period June 7, 1982 to June 7, 1985. In response to thePetitioners aplication the Secretary of the 2nd respondent by his letter dated 17 the Jaunary 1986 informed the petitioner that having regard totheexisting enrolmetn rules (I, e. r 1. (1 (d) the petitioner was not entitled tobe enrolled as an Advocate Subsequently the Petitioner was given a cyclostyled circular by the 2nd respondent whichinter alia staed that having regard totheaforsaid rule which had been framed by the 1st respondent unde S. 7(h) and (I) A 24 (1) (c) (iii) and S. 49(1)(d) of the Advocates Act 1961 applicants for enrolment as an Advocates were required to established and they had obtained the degree in law without undergoing any order course of istructions simutaeously during the period of three years study of law. The rest of the contents of the said circular are not material for our consideration.
4. some other facts also canbe taken note of at this stage about which there is no controversy. At the relevant time under the rules framed by the respondent NO. and respondent No. 2 student who had graduated form any recognised Univesity was entitled to entrol for the studey of alw and the Unveristy permitted the study of law as a part time course that is thestudetns were permited to study law for the LL. B examination and at the same theto take up full the exployment inany oreganisation/. In fact most of the colleges inBombayhave fixed all their lectures in sucha waythat students who are regularly serving invaruos organisation could obtain the LL. B degree. Even under the impuged rule ther was o restriction agasisnt such students appliying for enrolment as Advocates onthis counrt on obtaining their LL, B. degree.
5. the submission of Mr. Chagla, learned counsel for the petitioner is that the impugned R. 1 (1) (d) is outside the rule making authority or respondent No. 1 and hence bad inlaw and of no legalvalidity,. It was submitted by hin that he said rule had no reasonable and proximaate nexus as recognised inlaw with thefunction of the Bar Council of India or with thepromotion of Legal edcuation of thkestandard of such education and heace and Bar Council of India, respondent No. had exceeded its juridictionin framing thsiad rule. It was next submitted by him that even assuming that respondent No.1 had jurisdiction toframe a rule preventing thelaw students who intended tornroll as Advocates formunder going any other course of instruciton during their study for law degree the said impugned rule was clearly discrimintory as between student who were studing law whole doing full timejobs andlaw students who were undegoing any ordercourse of instruction. It was submitted by him s that if students were permitted to take up full time employment andstudey law at the same timeand this wasnot regarded as a disqualification for obtaining enrolment as advocates it was utterly irrational andillegal tolay down such a disqualification against students who were undergoing any other course of instruciton during their study for obtaining a law degree. It wasfurther submitted by him intheslterantive that inany event evenir the object of the restriction was to restrain law students who intended to be enrolled as advocates form under going anyother course of instructions the resetriction imposed was unreasonable and excessive as it disqualified students who had taken instructions is matters like publie speaking or study of lanuguages or typing knowledge of which subjects would be helpful to theem evenin the parctive of law. It was pointed out by him that the course of instructions undertaken by the students during their studey of law time or come in theway of his study of law and so as foar as theimpugned rule sought todisqualify evensuch law students form being enrolled as advocates therule was clearly excessive.
6. It was on the other hadn contendedby Mr. Jaisinghani, learned counselfor the respondent No. 1 that the aforsaid rule fell witin the rule making power of the Bar Council of India, respondent No. 1 herein on the gourn that it was within the scopt of he function of respondent No. 1 and pertained tolaying downthe standard of legal edcution. It was submitted by him that the classification made in the said rule between the students who were studying law and at the same timer infull time employment and students who during thstudy of law had undertaken any order the study of was reasonable any did not amount tounlawful discrimination.
7. In order toappreciate thecorrentness of these contentions it will be useful tomake a note of some of the relevant provisions of the Advocates Act, 1961, referred tohereinafter ast he said act and the Bar Council of India Rules as they stood prior to the amendment 1982. The said Act was enacted to amend an consolidate thelaw ralating to legal practitioners.
8. Section 7 deals with the functions of the Bar Council Act of India.Section 7(1)(h) runs as follows.
“7 (1) The functions of the Bar Council of India shall Be-
(h) to promote legal education and to lay down standards of such education in consultation with the Universities inIndia imparting such edcation and the State Bar Councils.”
Section 24 deals with the question as to the persons who may be admitted as advocates ona State roll. The relevant conditions are as follows;
24(1) Subect of the provisions of the is Act, and the rules made there under a paersonshall be qualified toi be admitted as an advocation a State roll if he fulfits thefollwing conditions, namely.
and (b)
he has obtained a degree inlaw-
and (ii)
after the 12 the Day of March, 1967 save as provied in sub clause (iiiA) after undergoing a three year course of study in law form any University in India which is recognised for the purposes of theis Act by the Bar Council of India.”
Section 49 of the said Act confers rule making powers of the Bar Council of India. The relevant provisions of that section are as follows;
“49 (1) the Bar Council of India may make rules for discharging its functions under th Act, and inparticular such reles may presecibe-
(ag) the class or category of person entiltled tobe enrolled as advocates.
thestandards of legal education tobe observed by Universities of India and the inspection of Univesities for that purpose.”
9. Bar Council of India framed certain rules known as Bar Council of India Rules under its rule making powers. Part IV of the said rules deals with standards of legal education the recognition of degree in law for admission as advocate Sub-rule (1) of r. 1 inPart IV prescribes the conditions required robe fulfilled for recognition of a degree inlaw obtained form any University intheterritory of India after the 12th day of March, 1967 for the purposes of S. 24(1)(c)(iii) of the said Act. The opening portion of sub-rule (1) of rule 1 runs as following.
“1. 91) Save as provided in Section 24(1)(c)(iii) of the Act degree inlaw obtained form any University in the territory of India aftet the 12 th day of March 197\67 ..recoginsed for purposes of s. 24(1)(c)(iii) of the Act unless the follwing conditions are fulfilled.’
The condition set out in cl (d) of that sub-rule whchwas introfuced in 1977 by Resolution No. 72 of 1977 runs as follows.
” I. (D) that the law degree has been obtained without undergoing anyorder course oninstruction simulanrously during the period of three years of sutdy in law.
There is a proviso to this clause wich is not materialfor our purpose. By another Resoution No. 79/77 it was clarifed that the resolution on double course applies to preofessionalcourses like Chartered Accountants. It is said Rule 1 (1) (d) and the said reolution clarifying thesiad the which are inchallegned befroe us.
10. for the consideration of the disputes befor us we have to consider two questions. The first question is whether the provisions contained in the said impugned rule can be considered tobe within the ambit of the exprsssion “laying down standards of legal education” The submissionof Mr. Chagla intheis connectin is that under the power to lay doen standares of legal education the Bar Council of India can presecibe what degree or degrees are required tobe acquired for obtaining enrolment asanadvocate or it may presecribed thepresentage of marks whicha student must obtain at the degree examination. Or might presecibie thecourse of edcation subjects of study required of passing the degree exmination. But once the Bar Council of India recognised a law degree it wasnot thenopen to the Bar Council tolay down a condition that during the course of study of obtaining thedegree the student should not have udnertaken any or\ther fcourse of study. Me. Jaishignai any ther hadn contended that it was opento the respondent. No. 1 the Bar Council of India to presecribe that a Student who wanted to enroll as an advocate should not have have undertaken any order course of study during his study of law for thelaw degree. Insupport of his contention of drew out attention to a decision of the Division Bench of the Madras High Court in the case ………….. Director of Legal Studies Madras Law college reportion in AIR 1981 Mad 198. Inthat case th appellant peititioners had obtained the B,. L. Degree whichis equvalant to LL. B degree conferred by respondence course and without under going a regular course of study at al law college, It was held that the expression occuring in S. 7(1)(h) of the Advocates Act is capable of taking inevery ingredient which willgo toconstitute the enf or ultimate level of decation that is expected of a candidate who applies for enrolment as an. Advocate under the Act. It was pointed out by the Division Bench Act that the examination conducted by the University inquestion namely the Maduria Kamaraj University for the B. G. L. Degree through correspondence course was not the same as theexamination conducted bythesaid In one case the course was unde the non-semester pattern withanexamination condcted once a year whle an regular course wasunder the semeter pattern with an examination at the end of every semester. The question papers for the two courses were not common. The procedure for evaluation was also not common. Having regard to this factualposition. Having regard tothis factual position, the Division Bench found that it was not possible tohold that there was and difference between the B. G. L. degree of the said University obtained after pursing thecorrespondence course anda degree obtained after attending the regular clases. It was held that it was ocmpetent to the Bar Council of India toprecribe to enrolment as an advocate that candidate should obtain in law degree after undergoing a regulare course on three years attending classes and that theshould have o put to in attendance of 66 per cent of the lectures ineach of the subjects and a rule to that effect was within therule making powers of the Bar Council of India. Inour vies this case of of little assistance in determining the question before us.
11. In the case before us both the categories of students namely the students who were undergoing another course of instructionand thestudents who did no under go anysuch course of instructino were examined at the same examination with the same standards and same question papers. Law course attended by both rthe categorids of students was the same and hence it is difficult ot understand how it could be said that thelaw degree obtained bythecategory of students was different form the one obtained bythe other category.
12. In the over it is not necessary for us toconsider thewider question ast whether it is not within the powers of the Bar Council of India tolay down a rule that for a law student who internds toenroll as anadvocate it is not permissible toundergo any other course of instruciton provided the course of instruction is cuhas to affeft adversely inany manner the students study of law for the law degree, What we find inthepresent fase is that the restriction whichhas beenimposed by R. 1 (1) (d) is so wide as toclearly cover within its scope evena course of instruciton whichmight be so minor as not tointerfere with thefull time study of law or might even be such that it would help a student inhis studey of law. We fial to see onwhat basis a student who goes ot typing class for one hour inth eveing for a month or two or who takes a course of instruciton inpublic specking or eloctuting coule inany manner be adversely affected inhis stduey of law. In facr, underg oing a course of instructions like this would help the students tobecome a better Advocate Similarly if a student thelaw calses in undergoing instructinos as an articled clerk ina Chartered Accountant’s firm he would in our opinion be ulilising that time better formthe point of undertaking a future career as an advocate then a student whospends the spard timehe gets after attending law classes inunder tsking a job like a filing clerk or a typiset to a stenographer or a personal assistant toa business man in a commercial fool, In our view it is significant that theimpugned rule Namely R. 1 (10 (d) does not debara student who undertakes a regular hob inhis spare time form enrolling as an advocate in vies of this the restriction imposed by R. 1 (1) (d) appears to be clearly excessive and unwarranted looking to the actual circumstance prevaling.
13. In connection withwant we have discussed above we may note that the Unversity of Bombay by its Circular No. 393 dated 31-4-74 laid down a restriction stating that the no students is allowed to keep terms simulataneously for two courses in theUniversity Howerver theUniversity was careful enoubh by Circular No. 368 of 1978 toclarify that thestudents registeneing themselves for ny of the courses of theUniversity maybe allowed to register simultaneously for the Certificate of Diploma course is nay one of the language set out therein or the Diploma Course in Music conducted by the University or other courses of a similar type. We do not propose to refer to the rest of thie circular as it is on similar lines. We have referred to the aforesaid portion of the circular only toshow that even inframing a restriction like the one in question before us the body framing it and which has the rquisite power todo so like theUniversity of Bombay or the Bar Council of India can exercise its discretion reasonably, as the Unversity has done toprovide exceptions to therestriction which would make the restricition just andreasonble. The University of Bombay has tried to make thesimilar restriction imposed by it reasonable But unfortunately the Bar Councilof India has forgetten todo this inframing theaforesaid rule. This circular of the University illustrates how a proper restriction could have beenimposed regarding under going different courses ofinstructions simultaneously with studing for a law degree. In coutract therestriction imposed bythe Bar Council of clearly appears of the excessive and beyond the powers of theBar Council of India.
14. It was urged by Mr. Jasinghani learned counsel for the Bar Council of India. That thepowers of the Bar Council of India that thepowers of the Bar Council of India to students who wish toenroll as anadvocate was unfettered andunqualified and it was not open to the court toconsider whether any a restriction was reasonable or had anything todowith the functions of the Bar Council of India or with the standard of education and so on. Insupport of this submission Mr. Jaisinghnai placed reliance of the decision of the Division Bench of the Andhra Pradesh High Court inthecase of Bar Council of India v. G. kesavaramayya . Inthat case it has been observed as follows; “In regard to person obtaining a degree inlaw after that date (28 theFebruary 1963), the statue has inexpress terms left it to the descertiony of the Bar Council of India ……………….. Having regard tothis position ther can be no escape from the conclusion that thelegislature had conferred anunqualified power and dicretion on the Bar Council of India to recognise of not to recognise for he purpose of the Act the degree in law conferred by Universitioes in India after the the 28the February 1963, Inour view the observation the Andhra Pradesh HighCourt have tobe considered inthelight of thefacts of that case. Inthat casethe degree inlaw was obtained by the student concerned after 30th June 1964 and it was not obtained after undergoing a course of study inlaw for not less then 2 years after graduation which was the munimum period for study of law prescribed under the relevant rule adopted by the Bar Council of India. This limitation imposed bythe Bar council of India, nemely of 2 years minimum study of law after granduation was clearly connected with the students legal education and hence it was clearly withinthedicretionary power of the Bar Council tohave framed such a rule. In our vies allthat the observation means is that the Advocates Act does not expressly precribe any limitationonthe discretion conferred on the Bar Council of India of frame rules for the purposes mentioned in s. 49 of the Act We do not think that the learned Judges ever meant tosaythat thediscretion conferred by Section 49 of the Advocates Act on the Bar Council of India of frame Rules was a totally untrammelled and unfettled discretion because sucha discretion is unknown tothelaw of the country any would be violative of Art. 14 of the Constitution of India. It is wellsetled inlaw they every subordinate law making authority had a power to frame subordinte legislatiion only provied to frame subordinate legislation only provided it is reasonble and withing thelimits of therule making power of that body.
15. One other ground on which R. 1 (1) (d) was strongly attacked and in our view rightly attacked is that it was clearly discriminatory and violative of the provisions of Article 14 of the Constitution of India, It was urged by Mr,. Chagla that the said restriction permits a law graduate who had during theperod of this studies inlaw a full time he was pursing his legal studies in law a full time job to obtain enrolment as an advocate but prevents law graduate whowas undergoing another course of instruciton furieng the imte he was pursuing his legal studies form getting enrolled It was pointed out by him that a law student studing inlaw college who during his study time under gies instruction ina course like public speakingm typing or even training as ‘Charatered Accountant would be far more suited to be an advocate than a student who during the time when he undergoes studies ina law college takes up a full time employment as a clerk,or a peon or a sles man with a commercial concern or a large corportion. Inspite of this thestudent who has taken regular employment during the time when pursuing the study of law is permitted to be enrolled but a student who is undergoing some other course of instruction like the petitioner before us is disqualified form getting enrolment. We find that the submission of Mr. Chagla is correct and must be upheld. Between theaforesaid twoclasses inverymanay cases it can be safely said thethe student undergoing two coures of instruction. Namely one in law and theother in some other filed would be better qualified tobe enrolled as an advocate than a student wh during the time the studies law has takenup fulltime employment. Even other wise a student undergoing another course of instruction unconnceted with law of advocacy is no worse off than a student working at a…………..concerned unless the other courses of study is incompatible with a study of law It is true, as pointed out by the Bar Council of India in the affidavit in reply that thke students studying for a law degree may be insuch financial circumstances that theey might need fulltime employment in order topusue the study of law and at the same time tomaintain themselves. This, however, cannot furnish any ground for permitting suchworking studnets tobe enrolled as Advocates, But if they are tobe permitted to be enrorlled as advocates there is no basis onwhich the same facility can be denied to student like the pertitioners whohave under gone some other courses of instruction during the time when they were studying law in law classes for the law degree.
16. It is interesting to point out inthis connection that the Bar Council of Maharashtra respondent No. 2 herein has applied its won mind to the question and taken up a posistion which is conflicting with thepossition taken up by the Bar Council of India. The Maharashtra Bar Council has passed a resolution which runs as follows.
“RESOLVED that on mature considerations of the scheme of legal education and bearing in mind that law course is aneveing or morning course pursued evenby fulltime exployees this Bar Council sees no reason why a person filing terms for law should not be allowed todosimultaneously some other diplma course like Charterd Accountants course of Post Graduate course. In the opinion of the Bar Council some of the courses like Chartered Accountant course. Course of Jounalism diploma inlabour accountancy etc are supplementary to thelaw course and adds better value to an Advocate. It is therefore resolved that the Bar Council of India should be reaquested toamend their rules regarding enrolment so that there is no prohibition against enrolment of candidates having undergone such courses simultaneously. ”
we are infull agreement with the ressons set out in the Resoultion of the Bar Council of Maharashtra for taking a different view that the one taken by the Bar Councilof India.
17. Before parting with the matter we may reger to one other casse cited by Mr. Jaisinghani andthat it is the decision of the case of Kruse v. Johnson reported in (1898) 2 QB 91. He strongly relied on the observation inth judgment of Lord Russell, CJ., to the effect that the Court ought tobe slow to hold that a by law is void for unresonavless. There is not quarrel with the aforesad principle laid down inth judgmetn It is, however, significant that int ehvery same judgment there is a clear finding that a by law which is made is such a way as to be manifestly parial or unequal inties operation between different classes or unjust or involving an unjustifiable interference with the liberty of those subject to it is clearly bad and can be interfered with. In our view R.1 (1) (d) frmed by the Bar Council of India fallas within the latter classs and hence the aforesaid judgement is of no assistance of Mr. Jainsighani.
18. We may mention that it way submitted by Mr. Chagla that R. 1 (10 (d) framed by the Bar Council of India was ultra vires the rulemaking power of the Bar Council of India because it was not covered bynayof the provisions of section 49 of the Advocates Act and hence it was beyond thejurisdiction such of the Bar Council of India to have framed such a restirction. We decline togo into this question because we have already taken the view tehe that aforsaid R. 1 (1) (d) is bad in law for the reasons which we have already set out.
19. In the result the petitionis allowed. Rule absolute interms of prayer (a).
20. Mr. Chagla states that he does not press for costs as counsel for petitiner as well as advocates on record are not charging any fees. Invies of this there will be no order as to costs.
21. Petition allowed.