Supreme Court Upholds Bar Council’s Power to Set Pre-Enrollment Standards: Bar Council of India vs. Bonnie Foi Law College (2023)

Introduction

Date of the Judgment: 10 February 2023

Citation: Civil Appeal No. 969 of 2023 (Arising out of SLP (C) No.22337 of 2008)

Judges: Sanjay Kishan Kaul, J., Sanjiv Khanna, J., Abhay S. Oka, J., Vikram Nath, J., J.K. Maheshwari, J. (authored by Sanjay Kishan Kaul, J.)

Can the Bar Council of India, the apex regulatory body for legal professionals, set standards for entry into the legal profession, such as pre-enrollment training or examinations? This question was at the heart of a recent Supreme Court judgment. The Court addressed the powers of the Bar Council of India to regulate the legal profession and to ensure quality control of entrants into the profession. The five-judge bench, speaking through Justice Sanjay Kishan Kaul, examined the extent of the Bar Council of India’s authority to prescribe pre-enrollment qualifications for advocates.

Case Background

The dispute began with an application by Bonnie Foi Law College for affiliation to conduct a legal study course. The Supreme Court, concerned about the diminishing standards of legal education, appointed a committee headed by Mr. Gopal Subramanium, the then Solicitor General of India, to examine issues relating to affiliation and recognition of law colleges. The committee submitted a report on 06.10.2009, highlighting the need for a bar examination and compulsory apprenticeship for aspiring lawyers.

The report noted that the Advocates Act, 1961, originally included a requirement for apprenticeship, which was later removed by the 1973 Amendment. The Bar Council of India attempted to reintroduce this requirement through the 1995 Rules, but the Supreme Court struck down these rules in the case of V. Sudeer v. Bar Council of India [(1999) 3 SCC 176], stating that the statutory amendment had removed the basis for such rules.

Timeline

Course of Proceedings

Due to the significant implications for the legal profession, a three-judge bench of the Supreme Court referred the matter to a Constitution Bench on 18.03.2016. The reference order framed three key questions for the Constitution Bench to answer:

• Whether pre-enrolment training under the Bar Council of India Training Rules, 1995 could be validly prescribed, and whether the decision in V. Sudeer v. Bar Council of India requires reconsideration.
• Whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961.
• If the above questions are answered in the negative, whether a post-enrolment examination can be validly prescribed by the Bar Council of India under Section 49(1)(ah) of the Advocates Act, 1961.

Legal Framework

The judgment primarily revolves around the interpretation of the Advocates Act, 1961, particularly the powers of the Bar Council of India. Key sections include:

• Section 7 of the Advocates Act, 1961: This section outlines the functions of the Bar Council of India, including disciplinary powers, protection of advocates’ interests, and general supervision over State Bar Councils. Specifically, Section 7(1)(g) grants the Bar Council of India the power to exercise general supervision and control over State Bar Councils. Section 7(1)(h) provides for promotion of legal education and for laying down standards of such education in consultation with Universities in India and State Bar Councils. Section 7(1)(l) empowers the Bar Council of India to perform all other functions conferred on it by or under the said Act and Section 7(1)(m) to do all other things necessary for discharging the aforesaid functions.
• Section 24 of the Advocates Act, 1961: This section specifies the qualifications for a person to be admitted as an advocate on a State roll. Section 24(1) lists the basic qualifications, while Section 24(3)(d) allows for additional qualifications to be prescribed by the Bar Council of India. It states, “Notwithstanding anything contained in sub-section (1), a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills such other conditions as may be specified in the rules made by the Bar Council of India in this behalf.”
• Section 30 of the Advocates Act, 1961: This section deals with the right to practice, making it subject to the provisions of the Act.
• Section 49 of the Advocates Act, 1961: This section grants the Bar Council of India the general power to make rules for discharging its functions. Section 49(1)(ag) specifically empowers the Bar Council of India to prescribe rules regarding “the class or category of persons entitled to be enrolled as advocates”. Section 49(1)(ah) deals with the conditions subject to which an advocate shall have the right to practice. Section 49(1)(ae) empowers the Bar Council of India to make rules determining the seniority among advocates.
• Section 48B of the Advocates Act, 1961: This section empowers the Bar Council of India to issue directions to ensure uniformity and fairness of the procedure followed by each of the State Bar Councils.

Arguments

The Bar Council of India, supported by the Amicus Curiae, argued that it has the power to prescribe pre-enrollment conditions, including training and examinations, to maintain the standards of the legal profession. The Bar Council contended that:

• The 1973 Amendment, which removed the power of State Bar Councils to prescribe training and examinations, did not affect the Bar Council of India’s powers under Section 49 of the Advocates Act, 1961.
• Section 24(1) of the said Act is subject to other provisions of the Act and the rules made thereunder, including Section 24(3)(d) which empowers the Bar Council of India to prescribe additional qualifications for enrolment.
• Section 49(1)(ag) of the said Act empowers the Bar Council of India to specify the class or category of persons entitled to be enrolled as advocates.
• The Bar Council of India has the power of general supervision over the State Bar Councils under Section 7(1)(g) of the said Act, which includes the power to direct State Bar Councils not to enroll persons who have not undertaken the training course or examination prescribed by the Bar Council of India.

The opposing parties, primarily petitioners in T.C.(C) No.13/2011, argued that the Bar Council of India does not have the power to prescribe pre-enrollment conditions. They contended that:

• The decision in V. Sudeer v. Bar Council of India correctly interpreted the law, and the first two questions of the reference order need no reconsideration.
• Section 16 of the said Act provides for only two categories of advocates, i.e., Senior Advocates and other advocates, and does not provide for any third category of “provisionally enrolled advocates”.
• Section 22 of the said Act provides for a certificate of enrolment to any person whose name is entered in the roll of advocates maintained by the respective State Bar Council, and once an advocate enters the State Roll, there is no bar on his practice.
• Section 24 of the said Act exhaustively provides for conditions and qualifications for the persons to be admitted as advocates and does not set any condition to the effect of clearing any post-enrolment examination for continuing as an advocate.
• Section 28 of the said Act was amended, and the power of State Bar Councils to provide for an examination and training prior to enrolment was done away with.
• Section 30 of the said Act, which provides for the right to practice, does not provide for clearing an examination to practice.
• Rule 9 of the Bar Council of India Rules is unconstitutional and violative of Article 14 of the Constitution, as a person graduating before the introduction of the All India Bar Examination and applying for enrolment is not required to take the Examination, whereas those from 2009-2010 are mandated to take the Examination, making the rule discriminatory in nature.
• The power given to the Bar Council of India in V. Sudeer v. Bar Council of India was for enlarging the scope of eligibility of becoming an advocate, and not to narrow it down.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for determination:

1. Whether pre-enrolment training in terms of Bar Council of India Training Rules, 1995 framed under Section 24(3)(d) of the Advocates Act, 1961 could be validly prescribed by the Bar Council of India and if so whether the decision of this Court in Sudeer vs. Bar Council of India & Anr.[(1999) 3 SCC 176] requires reconsideration.
2. Whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961.
3. In case question Nos. 1 and 2 are answered in the negative, whether a post-enrolment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1)(ah) of the Advocates Act, 1961.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court overturned its previous ruling in V. Sudeer v. Bar Council of India, holding that the Bar Council of India does have the power to prescribe pre-enrollment conditions, including training and examinations, for advocates. The Court emphasized the importance of maintaining the quality of legal professionals and ensuring that only well-equipped individuals enter the profession.

The Court’s reasoning was based on the following points:

• The 1973 Amendment only took away the powers of the State Bar Councils to prescribe training and examinations, but it did not affect the powers of the Bar Council of India.
• Section 49(1)(ag) of the Advocates Act, 1961, specifically empowers the Bar Council of India to prescribe rules regarding the class or category of persons entitled to be enrolled as advocates.
• Section 24(3)(d) of the Advocates Act, 1961, allows the Bar Council of India to prescribe additional qualifications for enrolment, notwithstanding the basic qualifications listed in Section 24(1).
• The Bar Council of India has the power of general supervision over the State Bar Councils under Section 7(1)(g) of the said Act, which includes the power to direct State Bar Councils not to enroll persons who have not undertaken the training course or examination prescribed by the Bar Council of India.

The Court also addressed the practical aspects of conducting the All India Bar Examination, including:

• Students who have cleared all examinations to be eligible to pursue the final semester of the final year course of law can be allowed to take the All India Bar Examination.
• During the period between passing the examination and enrolment, law graduates can perform tasks allied to the legal profession, other than acting or pleading before the courts.
• Seniority at the Bar can be determined based on the date of birth of an advocate.
• The Bar Council of India can frame rules to require advocates who return to practice after a substantial break to take the All India Bar Examination again.
• The validity of the All India Bar Examination results should be limited by time.
• The Bar Council of India can issue directions under Section 48B of the Advocates Act, 1961, to ensure uniformity and fairness in the procedure followed by each of the State Bar Councils.

How each authority was viewed by the Court?

• V. Sudeer v. Bar Council of India [(1999) 3 SCC 176]*: The Court overruled this judgment, stating that it incorrectly interpreted the powers of the Bar Council of India. The Court held that the 1973 Amendment did not curtail the Bar Council of India’s power to prescribe pre-enrollment conditions.
• Indian Council of Legal Aid and Advice & Ors. v. Bar Council of India & Anr. [(1995) 1 SCC 732]*: This case was discussed in the context of the Bar Council of India’s powers, but the decision primarily focused on the age cap issue and did not directly influence the current judgment.
• Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa [(1996) 3 SCC 342]*: The Court used this case to support the view that the Bar Council of India has wide powers to regulate the legal profession, including the power to filter students at the entry stage.
• Satish Kumar Sharma v. Bar Council of H.P [(2001) 2 SCC 365]*: The Court followed this judgment to support the view that enrolment under Section 24 of the said Act is subject to the Rules framed by the Bar Council of India under Section 49 of the said Act.
• Jamshed Ansari v. High Court of Allahabad & Ors. [(2016) 10 SCC 554]* and N.K. Bajpai v. Union of India & Anr. [(2012) 4 SCC 653]*: The Court followed these judgments to support the view that the right to practice is subject to the provisions that grant the rule-making power.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the need to ensure the quality of legal professionals and to uphold the standards of the legal profession. The Court emphasized that the Bar Council of India, as the apex regulatory body, has the responsibility to maintain these standards. The Court also considered the practical aspects of conducting the All India Bar Examination and made suggestions to ensure that the process is fair and efficient.

Fact:Law Ratio

Logical Reasoning

Key Takeaways

• The Supreme Court has upheld the Bar Council of India’s authority to regulate the entry of advocates into the legal profession.
• The judgment overrules the previous decision in V. Sudeer v. Bar Council of India, clarifying the scope of the Bar Council’s powers.
• The Bar Council of India can now prescribe pre-enrollment training and examinations for aspiring advocates.
• The All India Bar Examination is a valid mechanism to ensure the quality of legal professionals.
• The judgment provides clarity on the interplay between the powers of the Bar Council of India and the State Bar Councils.
• The Bar Council of India is expected to take necessary steps within three months to implement the judgment.

Directions

The Supreme Court directed the Bar Council of India to take necessary steps within a period of three months to implement the judgment. The Court also clarified that the setting aside of the judgment in V. Sudeer v. Bar Council of India is in no manner an imprimatur to mandating the requirement of pre-enrolment training.

Development of Law

The ratio decidendi of the case is that the Bar Council of India has the power to prescribe pre-enrollment conditions, including training and examinations, for advocates. This judgment overturns the previous position of law established in V. Sudeer v. Bar Council of India, which had restricted the Bar Council’s powers in this regard. The current judgment reaffirms the Bar Council of India’s role as the apex regulatory body for the legal profession and gives it the necessary authority to maintain the standards of the profession.

Conclusion

The Supreme Court’s judgment in Bar Council of India vs. Bonnie Foi Law College & Ors. is a significant decision that clarifies the powers of the Bar Council of India to regulate the legal profession. By overruling V. Sudeer v. Bar Council of India, the Court has affirmed the Bar Council’s authority to prescribe pre-enrollment standards, including training andexaminations. This decision is aimed at ensuring that only qualified individuals enter the legal profession, thereby maintaining the standards of the profession and safeguarding the interests of the public. The judgment emphasizes the importance of the Bar Council’s role in regulating the legal profession and gives it the necessary powers to fulfill its responsibilities. The Court’s directives also ensure that the implementation of the judgment is carried out efficiently and fairly.