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PETITIONER: INDIAN COUNSIL OF  LEGAL AID & ADVICE

       Vs.

RESPONDENT: B.C.I

DATE OF JUDGMENT17/01/1995

BENCH: AHMADI A.M. (CJ) BENCH: 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:

HEADNOTE:

JUDGMENT: 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

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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

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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

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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

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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

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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

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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

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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

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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

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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. 747