Indian
Counsil of Legal Aid & Advice Vs. B.C.I [1995] INSC 61 (17 January 1995)
Ahmadi
A.M. (Cj) Ahmadi A.M. (Cj) Mohan, S. (J) Paripoornan, K.S.(J)
CITATION:
1995 AIR 691 1995 SCC (1) 732 JT 1995 (1) 423 1995 SCALE (1)181
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by AHMADI, C.J.- The Bar Council of India
by Resolution No. 64 of 1993 dated 22-8-1993 added Rule 9 in Chapter III of Part
VI of the Bar Council of 735 India Rules which resolution was gazetted on 25-9-1993. The said newly added rule reads as under:
"A
person who has completed the age of 45 years on the date on which he submits
his application for his enrolment as an advocate to the State Bar Council shall
not be enrolled as an advocate." All the State Bar Councils in the country
were duly informed about the insertion of the said rule. The legality and
validity of the said rule is questioned in this batch of petitions as
inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution and Section
24 of the Advocates Act, 1961, hereinafter called "the Act".
2. The
Act came into force with effect from 19-5-1961.
The
dictionary of the Act is to be found in Section 2, clause (a) whereof defines
an advocate as a person entered in any roll under the provisions of the Act as
such and the term 'roll' according to clause (k) means a roll of advocates
prepared and maintained under the Act. Section 3 provides that there shall be a
Bar Council for each of the States to be known as the Bar Council of that
State.
Section
4 next provides for a Bar Council for the territories to which the Act extends
to be known as the Bar Council of India. The functions of the State Bar Council
and the Bar Council of India have been set out in Sections 6 and 7
respectively. The functions of the State Bar Council include admission of
persons as advocates on its roll, preparation and maintenance of such roll,
safeguarding the rights, privileges and interests of advocates on its roll and
to do all things necessary for discharging the above functions. The functions
of the Bar Council of India include the laying down of standards of
professional conduct and etiquette for advocates and for safeguarding their
rights, privileges and interests. Chapter III which deals with "Admission
and Enrolment of Advocates" comprises of Sections 16 to 28. Section 16
provides that there shall be two classes of advocates, senior advocates and
other advocates; Section 17 sets out how every State Bar Council shall prepare
and maintain a roll of advocates; Section 18 deals with the transfer of name of
an advocate from one State roll to another; Section 19 enjoins upon every State
Bar Council to send a copy of the roll of advocates to the Bar Council of
India; Section 20 makes special provision for enrolment of every advocate who
was entitled to practise in the Supreme Court immediately before the
appointment day in the roll of a State Bar Council; Section 21 relates to the
fixation of seniority; Section 22 provides for issuance of certificate of
enrolment and Section 23 confers the right of preaudience on the Attorney
General of India, the Solicitor General of India, the Additional Solicitor
General of India, etc. Section 24 to the extent it is relevant for our purpose
provides as under:
"24.
Persons who may be admitted as advocates on a State roll.(1) Subject to the
provisions of this Act, and the rules made thereunder, a person shall be
qualified to be admitted as an advocate on a State roll, if he fulfils the
following conditions, namely:
(a) he
is a citizen of India;
736
(b) he has completed the age of twenty-one years; and (c) he has obtained a
degree in law- Section 24-A provides that no person shall be admitted as an
advocate on a State roll, for the period indicated in the proviso, if he is
convicted of an offence involving moral turpitude, or if he is convicted of an
offence under the provisions of Untouchability (Offences) Act, 1955 or if he is
dismissed or removed from employment or office under the State on any charge
involving moral turpitude; Section 25 indicates the authority to whom
applications for enrolment may be made; Section 26 provides for the disposal of
such applications; Section 26-A confers power on the State Bar Council to
remove any name from its roll; Section 27 provides that where a State Bar
Council has refused the application of any person for admission as an advocate,
no other State Bar Council shall entertain his/her application for admission on
its roll except with the previous consent of the former and of the Bar Council
of India and Section 28 confers power on a State Bar Council to make rules to
carry out the purposes of the Chapter which may in particular, inter alia,
provide for the conditions subject to which a person may be admitted as an
advocate on its roll. Chapter IV deals with the "Right to Practise".
Section 29 says that subject to the provisions of the Act and any rule made thereunder
there shall, as from the appointed day, be only one class of persons entitled
to practise the profession of law, namely, advocates. According to Section 30
every advocate whose name is entered in the State roll shall be entitled as of
right to practise throughout the territories to which the Act extends in all
courts including the Supreme Court of India, before any Tribunal or person
legally authorised to take evidence and before any authority or person before
whom such advocate is, by or under any law for the time being in force,
entitled to practise. Section 33 further provides that no person shall, on or
after the appointed day, be entitled to practise in any court or before any
authority or person unless he is enrolled as an advocate under the Act. Chapter
V deals with "Conduct of Advocates". Under Section 35 where on
receipt of a complaint or otherwise a State Bar Council has reason to believe
that any advocate on its roll has been guilty of professional or other
misconduct it shall refer the case for disposal to its disciplinary committee.
Section 37 provides for an appeal to the Bar Council of India against an order
made by the disciplinary committee of a State Bar Council.
Section
36 provides that where on receipt of a complaint or otherwise, the Bar Council
of India has reason to believe that any advocate whose name is not entered on
any State roll has been guilty of professional or other misconduct, it shall refer
the case to the disciplinary committee. Any person aggrieved by an order made
by the disciplinary committee of the Bar Council of India under Section 36 or
37 may prefer an appeal to the Supreme Court of India under Section 38 of the
Act. The powers of the disciplinary committee have been enumerated in Section
42. Chapter VI deals with 'Miscellaneous' matters. We are concerned with
Section 49 which empowers the Bar Council of India to make rules for
discharging its functions under the Act. Clauses (ag) and (ah) of sub-section
(1) of Section 49, inter alia, 737 empower the Bar Council of India to make
rules (i) prescribing the class or category of persons entitled to be enrolled
as advocates and (ii) laying down the conditions subject to which an advocate
shall have the right to practise and the circumstances under which a person
shall be deemed to practise as an advocate in a court. These, in brief, are the
relevant provisions of the Act which have a bearing on the question of legality
and validity of the newlyadded Rule 9 in Chapter III of Part VI of the Rules.
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 fulfils 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 underprivileged. 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. In
the above background it was contended on behalf of the Bar Council of India
that the need to uphold standards of professional conduct and etiquette cannot
be over emphasised. The Act, besides highlighting the essential functions of
the Bar Council of India in this behalf, provides for the enforcement of the
same and sets up disciplinary authorities to chastise and, if necessary, punish
members of the profession for misconduct. The punishment may include suspension
from practise as well as removal of the name from the roll of advocates.
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 738 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. Counsel submitted that a person who has already spent the best years
of his life in pursuing some other profession or occupation cannot be said to
have the correct attitude of a service-oriented- professional and cannot be expected
to maintain the high standards of professional conduct. According to the
respondent-Bar Council of India persons who retire from various Government,
quasi-Government and other institutions when admitted to the legal profession
use their earlier contacts to canvass for cases; a conduct which brings down
the standard of professional ethics expected to be maintained by a member of
the profession and that has a very adverse influence on the minds of young
fresh entrants to the profession. It is no answer to state that disciplinary
action can be taken against those who deviate from the standard of conduct
expected of a member of the Bar because all cases of infraction of the Code of
Conduct do not come to the notice of the Bar Council and such behaviour leaves
a lingering effect on the profession. It is in order to uphold the high
standards of professional morality and integrity that the Bar Council of India
was compelled to enact a rule restricting the entry into the legal profession
by prescribing the age-limit of 45 years. The Bar Council of India contends
that it has acted bona fide within the framework of the Act and the
Constitution. According to it the right to practise as an advocate not being a
fundamental right but only a privilege conferred by the Act can always be
withdrawn and in any case reasonable restrictions can be imposed even if it
were a fundamental right under Article 19(1)(g) of the Constitution. The
restriction imposed by the newly added rule is to serve a public purpose and
can never be termed as unreasonable, violative of Article 14 of the
Constitution. Since the upper age limit has been fixed to save the legal
profession from decay and deterioration it is, contends the Bar Council,
difficult to comprehend how it can be said to be inconsistent with Article 21
and for that matter Article, 14 of the Constitution. The prescription of the
higher age limit does .not violate Section 24 of the Act and since Section 49
permits classification and categorisation which even Article 14 permits, the newly
added rule is clearly intra vires the Act and the Constitution. That, in brief,
is the defence set up by the Bar Council of India in support of the rule
impugned before us.
5. It
is clear from the above averments found in the counter filed on behalf of the
Bar Council of India that the rationale is that the profession of law being a
pious and honourable profession, its main object being service of mankind by
serving the system of administration of justice, it is the pious duty of the
Bar Council to protect its public image by restricting the inflow of a large
number of retired personnel who seek to enter the legal profession solely for
additional gains. Such persons are not inspired by lofty ideals of the
profession but their only motive is money making for which they are 739
prepared to stoop to any levels which has a very negative influence on young
minds who join the profession after graduation. Can the restriction imposed on
this rationale be sustained? That is the short question.
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 hoary past. 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 practise 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 interests. 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 be 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.
740
7. The
power conferred by Section 15 is to make rules providing for the elections of
the members of the Bar Council, its Chairman and Vice Chairman and matters
incidental thereto. These rules shall not have effect unless approved by the
Bar Council of India. We are not concerned with the rule-making power under
this provision.
Section
28 empowers the State Bar Council to make rules which may, inter alia, provide
for the form in which an advocate must express his intention for entry of his
name in the roll of a State Bar Council, the form in which an application must
be made for admission as an advocate on its roll and the conditions subject to
which a person may be admitted as an advocate on any such roll. These rules
also must be approved by the Bar Council of India before they come into force.
We have already indicated earlier the matters in regard to which the Bar
Council of India may make rules for discharging its functions under the Act.
Besides the State Bar Councils and the Bar Council of India Section 34 confers
power on the High Courts to make rules laying down the conditions subject to
which an advocate may be permitted to practise in the High Court and courts
subordinate thereto. Power is also conferred on the Central Government by
Section 49-A to make rules by notification in the Official Gazette for carrying
out the purposes of the Act including rules with respect to any matter for
which the Bar Council of India or a State Bar Council has power to make rules.
Thus the rulemaking power of the Central Government is wide enough to embrace
matters for which the Bar Council of India or a State Bar Council has power to
make rules. These rules may, inter alia, lay down the qualifications and
disqualifications for membership of a Bar Council, the manner in which the Bar
Council of India must exercise supervision and control over State Bar Councils,
the class or category of persons entitled to be enrolled as advocates under the
Act, the category of persons who may be exempted for undergoing a course of
training and passing an examination prescribed under Section 24(1)(d), the
manner in which seniority among advocates may be determined, the procedure to
be followed by the disciplinary committee of the Bar Council for hearing cases
and any other matter which may be prescribed. These, in brief, are the rule
making powers conferred on various agencies under the Act.
8. The
newly added rule seeks to bar the entry of persons who have completed the age
of 45 years on the date of application for enrolment as an advocate from being
enrolled as such by the State Bar Council concerned. While Section 24 of the
Act prescribes the minimum age for enrolment as twenty-one years complete,
there is no provision in the Act which can be said to prescribe the maximum age
for entry into the profession. Since the Act is silent on this point the Bar
Council of India was required to resort to its rule- making power. The rules
made by the Bar Council of India under Section 49(1) of the Act are in seven
parts, each part having its own chapters. Part VI is entitled "Rules
Governing Advocates" and the said part has three chapters.
Chapter
I sets out the restrictions on senior advocates and is relatable to Sections
16(3) and 49(1)(g) of the Act, Chapter II lays down the standards of
professional conduct and etiquette and is relatable to Section 741 49(1)(c)
read with the proviso thereto and Chapter III deals with "Conditions for
right to practise" and is stated to be made in exercise of power under
clause (ah) of sub-section (1) of Section 49 of the Act. That clause reads as
under:
"
(ah) the conditions subject to which an advocate shall have the right to practise
and the circumstances under which a person shall be deemed to practise as an
advocate in a court;" On the plain language of the said clause it seems
clear to us that under the said provision the Bar Council of India can lay down
the 'conditions' subject to which "an advocate" shall have the right
to practise. These conditions which the Bar Council of India can lay down are
applicable to an advocate, i.e., a person who has already been enrolled as an
advocate by the State Bar Council concerned. The conditions which can be
prescribed must apply at the post-enrolment stage since they are expected to
relate to the right to practise. They can, therefore, not operate at the pre-
enrolment stage. By the impugned rule, the entry of those who have completed 45
years at the date of application for enrolment is sought to be barred. The rule
clearly operates at the pre-enrolment stage and cannot, therefore, receive the
shelter of clause (ah) of Section 49(1) of the Act.
Under
the said clause conditions applicable to an advocate touching his right to practise
can be laid down, and if laid down he must exercise his right subject to those
conditions.
But
the language of the said clause does not permit laying down of conditions for
entry into the profession. We have, therefore, no hesitation in coming to the
conclusion that clause (ah) of Section 49(1) of the Act does not empower the
Bar Council of India to frame a rule barring persons who have completed 45
years of age from enrolment as an advocate. The impugned rule is, therefore,
ultra vires the said provision.
9. Can
the rule be saved under any other provision of the Act? As stated earlier the
Act in Section 24(1)(b) provides that the person who seeks enrolment as an
advocate must have completed the age of twenty-one years. Nowhere does the Act
provide the maximum age beyond which a person shall not be entitled to enrolment
as an advocate nor does the Act make any specific provision empowering the Bar
Council of India to frame such a rule. Reliance was, however, placed on clause
(ag) of Section 49(1) which reads as under:
"(ag)
the class or category of persons entitled to be enrolled as advocates;"
Can persons who have completed 45 years of age be said to constitute a class or
category to entitle the Bar Council of India to debar them from being enrolled
as advocates? Rule 49(1) empowers the Bar Council of India to make rules for
discharging its functions under the Act and in particular those enumerated in
clauses (a) to (j) thereof. None of the functions under Section 7 specifically
provides for laying down such a condition debarring persons of a certain age
group from enrolment as advocates. The clause relied upon is couched in
positive terms, namely, it says the rules may prescribe the class 742 or
category of persons who may be admitted to the legal profession. Therefore,
under this clause the class or category of persons "entitled to be
enrolled" as advocates may be prescribed. The rule can, therefore, specify
the class or category of persons 'entitled' to be enrolled as advocates, but
the rule (sic clause) gives no indication that it can debar persons belonging
to a certain age group from being enrolled as advocates. Where a provision is
couched in positive language and is in the nature of an enabling provision,
there is no canon of construction which says that by necessary implication the
rule-making authority can make a provision disentitling admission or enrolment
to the profession. Such a submission is difficult to countenance.
10.But
the larger question needs to be answered and that is whether the said clause
applies to persons belonging to a certain age group. Section 28(1)(d) of the
Act authorises a State Bar Council to make rules prescribing the conditions
subject to which a person may be admitted as an advocate.
The
power to specify the class or category of persons entitled to be enrolled as
advocates is conferred on the Bar Council of India under Section 49(1)(ag) and
on the Central Government under Section 49-A of the Act. The role which a State
Bar Council has to play under Section 28 is distinct from that the Bar Council
of India has to play under Section 49(1)(ag) of the Act, in that, after the
class or category is identified, they do not automatically get admitted or
enrolled, they still have to abide by the requirements for admission to the
State roll. Therefore, apart from a class or group being declared
"entitled to enrolment", the other conditions or norms evolved by the
State Bar Council for entry of the individual on its roll would have to be
satisfied.
11.It
seems Parliament while enacting the Act created agencies at the State level as
well as at the Central level in the form of State Bar Councils and Bar Council
of India and invested them with rule-making powers on diverse matters touching
the legal profession, presumably because it must have realised that matter
pertaining to the profession are best left to informed bodies comprising of
members of the said profession. However, while doing so it provided for basic
substantive matters, e.g., eligibility for entry into the profession (Section
24), disqualification for enrolment (Section 24-A), authority entitled to grant
admission (Sections 25 and 26), the authority which can remove any name from
the roll (Section 26-A), etc., and placed them within the domain of a State Bar
Council. Thus it is the State Bar Council which alone must decide the question of
enrolment of an applicant on its roll. Under Section 24 a person who is a
citizen of India and possesses a degree in Law
becomes qualified to be admitted as an advocate if he has completed twenty-one
years of age, subject of course to the other provisions of the Act. No doubt he
must fulfil the other conditions specified in the rules made by the State Bar
Council [Section 24(1)(e)]. Every person whose name is entered in the list of
advocates has a right to practise in all courts including the Supreme Court,
before any tribunal or other authority. It is, therefore, within the exclusive
domain of the State Bar Councils to admit persons as advocates on their rolls
or to remove their names from the rolls.
743
There is no provision in Chapter III dealing with admission and enrolment of
advocates which restricts the entry of those who have completed 45 years as
advocates. Nor has the State Bar Council made any such rule under its
rulemaking power.
12.
There is no specific provision in Section 7 of the Act which enumerates the
functions of the Bar Council of India empowering it to fix the maximum age
beyond which entry into the profession would be barred. that is why reliance is
placed on the rule-making power of the Bar Council of India enshrined in
Section 49. That section empowers the making of rule by the Bar Council of
India "for discharging its functions" under the Act, and, in
particular, such rules may prescribe the class or category of persons entitled
to be enrolled as advocates. The functions of the Bar Council of India
enumerated in Section 7 do not envisage laying down a stipulation disqualifying
persons otherwise qualified from entering the legal profession merely because
they have completed the age of 45 years. On the other hand Section 24-A was introduced
by Section 19 of Act 60 of 1973 with effect from 31-1-1974 to disqualify
certain persons from entering the legal profession for a limited period. By the
impugned rule every person even if qualified but who has completed 45 years of
age is debarred for all times from enrolment as an advocate. If it had been
possible to restrict the entry of even those class or category of persons
referred to in Section 24-A by a mere rule made by the Bar Council of India,
where was the need for a statutory amendment? That is presumably because matters
concerning disqualification even for a limited period was considered to be
falling outside the ken of rulemaking power, being a matter of public policy.
It is difficult to accept the interpretation that all those above the age group
of 45 years constitute a class within the scope of clause (ag) of Section 49(1)
of the Act to permit the Bar council of India to debar their entry into the
profession for all times. In the guise of making a rule the Bar Council of
India is virtually introducing an additional clause in Section 24 of the Act
prescribing an upper age ceiling of completed age of 45 years beyond which no
person shall be eligible for enrolment as an advocate or is inserting an
additional clause in Section 24-A of the Act prescribing a disqualification.
Viewed from either point of view we are clearly of the opinion that the
rulemaking power under clause (ag) of Section 49(1) of the Act does not confer
any such power on the Bar Council of India. We are unable to subscribe to the
view that all those who have completed the age of 45 years and are otherwise
eligible to be enrolled as advocates constitute a class or category which can
be disqualified as a single block from entering the profession.
Besides,
as stated above clause (ag) relates to identification and specification of a
class or category of persons `entitled' to be enrolled and not 'disentitled' to
be enrolled as advocates. We, therefore, are of the opinion that the impugned
rule is beyond the rulemaking power of the Bar Council of India and is,
therefore, ultra vires the Act.
13.
The next question is, is the rule reasonable or arbitrary and unreasonable? The
rationale for the rule, as stated earlier, is to maintain the 744 dignity and
purity of the profession by keeping out those who retire from various
Government, quasi-Government and other institutions since they on being
enrolled as advocates use their past contacts to canvass for cases and thereby
bring the profession into disrepute and also pollute the minds of young fresh
entrants to the profession. Thus the object of the rule is clearly to shut the
doors of the profession for those who seek entry into the profession after
completing the age of 45 years. In the first place, there is no reliable
statistical or other material placed on record in support of the inference that
ex-government or quasi-government servants or the like indulge in undesirable
activity of the type mentioned after entering the profession. Secondly, the
rule does not debar only such persons from entry into the profession but those
who have completed 45 years of age on the date of seeking enrolment.
Thirdly,
those who were enrolled as advocates while they were young and had later taken
up some job in any Government or quasi-Government or similar institutions and
had kept the sanad in abeyance are not debarred from reviving their sanads even
after they have completed 45 years of age.
There
may be a large number of persons who initially entered the profession but later
took up jobs or entered any other gainful occupation who revert to practise at
a later date even after they have crossed the age of 45 years and under the
impugned rule they are not debarred from practising.
Therefore,
in the first place there is no dependable material in support of the rationale
on which the rule is founded and secondly the rule is discriminatory as it
debars one group of persons who have crossed the age of 45 years from enrolment
while allowing another group to revive and continue practise even after
crossing the age of 45 years.
The
rule, in our view, therefore, is clearly discriminatory.
Thirdly,
it is unreasonable and arbitrary as the choice of the age of 45 years is made
keeping only a certain group in mind ignoring the vast majority of other
persons who were in the service of Government or quasi-Government or similar
institutions at any point of time. Thus, in our view the impugned rule violates
the principle of equality enshrined in Article 14 of the Constitution.
14.In
the view that we take on the aforesaid points we do not consider it necessary
to examine the larger question whether or not the impugned rule violates
Article 19(1)(g) of the Constitution. We, therefore, do not express any view on
the said question.
15.In
the result, these petitions succeed. The new Rule 9 inserted in ChapterIII
extracted in the opening paragraph of this judgment is struck down as ultra vires
the Act and opposed to Article 14 of the Constitution. The Bar Council of India
and the State Bar Councils are directed not to implement the said rule. No
order as to costs.
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