A TNDIAN COUNCIL OF LEQAL AID AND ADVICE, ETC. ETC.  v.  

BAR COUNCIL OF INDIA AND ANR.  

JANUARY 17, 1995  

B [AM. AHMADI, CJ, S. MOHAN AND K.S. PARIPOORNAN, JJ.]  

Advocate Act, 1961-Sections 24 & 49( 1)-Bar Council of India  Rules-Rule 9-Validity of-Enrolment as a11 advocate-Entry of persons who  complete age of 45 years barred-Whether Rule 9 is valid-Held, No-Rule  

C struck dow11 as ultra vires the Act-Rule is discriminatory.  

D  

Constitution of India- Ari. 14-Bar Council of India Rules-Rule  9-Validity of-Entry of persons who completed the age of 45 years as  advocates barred-Whether Rule 9 is reasonable-Held, No-Rule violates  principle of equality.  

Writ petitions were filed challenging the legality and validity of Rule  9 added by the Bar Couocil of India by resolution No. 64/93 dated 22nd  August, 1993 in Chapter 111 of Part VI of the Bar Council of India Rules.  The newly added rule barred the entry of persons who had completed the  

E age of 45 years on the date of application for enrolment as an advocate  from being enrolled as such by the concerned State Bar Council.  Petitioners challenged the rule as inconsistent with Articles 14, 19(1)(g)  and 21 of the Constitution and section 24 of the Advocate:. Act, 1961.  

The Bar Council of India contended that it had acted bonafide within  F 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to practise as an advocate not being a fundamental right but only a  privilege conferred by the Act could always be withdrawn and in any case  reasonable restrictions could be imposed. It was alleged that the restric- tion imposed by the newly added rule was to serve a public purpose and  could never be termed as unreasonable, violative of Article 14 of the  

G Constitution. Since the upper age limit bad been fixed to save tbe legal  profession from decay and deterioration it could not be said to be incon- sistent with Articles 21 and 14 of the Constitution. According to the  respondent Bar Council of India a person who had already spent the best  years of his life in pursuing some other profession or occupation could not  

H be said to have the correct aptitude of a service oriented professional and  304

COUNCILOFLEGALAIDANDADVICEv. BAR COUNCIL 305  

could not be expected to maintain the high stan~ard of professional A  conduct. It was submitted that persons who retire from various govern- .  

ment, semi- government and other institutions when admitted to the legal  

profession use their earlier contacts to convass for cases and such be-

haviour leaves a lingering effect on the profession. Such persons being not  

inspired by lofty ideals of the profession, their only motive being money-

making for which they are prepared to stoop to any level.  B  

Allowing the petitions, this Court  

HELD: 1.1. Section 24 of the Advocates Act, prescribes the minimum  age for enrolment as twenty one years complete. There is no provision in C  the Act which can be said to prescribe the maximum age for entry into the  

profession. There is no provision empowering the Bar Council of India to  fraine such a rule. [314-H, 316-B)  

1.2. By rule 9 of the Bar Council of India Rules, the entry of those  who have completed 45 years at the date of application for enrolment is D  sought to be barred. The rule 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. But it does not permit laying down  of conditions for entry into the profession. Therefore, clause (ah) of E  Section 49(1) of the Act does not empower the Ba.r 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. [315-F-G]  

1.3. It is within the exclusive domain of the State Bar Council to F  admit persons as advocates on their rolJs or to remove their names from  

the rolls. There is no provision dealing with admission and enrolment of  advocates which restricts the entry of those who ha.ve completed 45 years  as advocates. Nor bas any State Bar Council made any such rule. [317-G)  

1.4. There is no basis to accept the interpretation that all those above G  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 H

306 SUPREME COURT REPORTS 11995] 1 S.C.R.  

A 45 years or !s inserting an additional clause in Section 24A of the Act  prescribing a disqualification. Therefore, the impugned rule is beyond the  

rule making power of the Rar Council of India and is, therefore, 1tltra vires  

the Act. [318-E-H]  

B 1.5. The rationale for the rule stated to be is to maintain the 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  

C 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  

D 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 institution and had kept the sanad in  

E 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 eve after they  

have crossed the age of 45 years and under the impugned ru~.: ~.Il!J are not  

debarred from practising. Therefore, in the first place there is no depend-

F able material in support of the rationale on which the rule i foundu l 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 practice even after crossing the age of 45  

years. The rule, therefore, is clearly discriminatory. Thirdly, it is un-

G reasonable and arbitrary as the choice of the age of 45 years is ma rle  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 institution at any point of time. Thus, the impugned rule violates  

the principle of equality enshrined in Article 14 of the Constitution.  

H [319-8-G]

COUNCIL OF LEGAL AID AND ADVICE v. BAR COU CIL !AHMAD I. CJ.I 307  

CIVIL APPELLATE JUR!S£?1CTION : Wril Petition (C) No. 786 A  of 1993 etc. etc.  

(Under Arlicle 32 of lhc Conslilution of India)  

V.R. Reddy, Additional Solicilor General, Rajinder Sachar, Soli J.  Sorabjee, G.V. Iyer, A.K. Ganguli, R.P. Bhalt, V.N. Ganpule, Sanjay B  Parikh, B:P. Singh, R.K. Karanjawala, Maoik Karanjawala, Darshana  Bhogilal, Nandioi Gore, Ruby Ahuja, D.A. Dave, N. Seervai, C.N. Sree  Kumar, C. Ravichandran Iyer, Rani Chhabra, Ms. Kirao Suri, P. Parmes- warao, R.P. Srivastava, H.A. Raichura, U.A. Rana, Rajiv Tyagi, Anand  Prasad, Mohinder Rupal, for Gagrat & Co., R. Mohan, R. Nedumaran, C  V.G. Pragasam, R.B. Misra, V.B. Joshi and B.P. Singh for the appearing  parties.  

The Judgemnt of the Court was delivered by  

AHMADI, CJ. The Bar Council of India by Resolution No. 64/93 D  dated 22nd August, 1993 added Rule 9 in Chapter III of Part VI of the  Bar Council of India Rules which resolution was gazetted on 25th Septem- ber, 1993. The said newly added rule reads as under :  

"A person who has completed the age of 45 years on the date on E  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 dufy 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, F  19(1)(g) and 21 of the Constitution and Section 24 of the Advocates Act,  1961, hereinafter called 'the Act'.  

The Act came into force with effect from 19th May, 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 G  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 t.o be known as the Bar Council of H

308 SUPREME COURT REPORTS f 1995J 1 S.C.R.  

A India. The functions of the State bar Council and the Bar Council of India  have been set out in Sections 6 & 7, respectively. The functions of the State  Bar Council include admission of persons as advocates on its roll, prepara- tion and rnainten~ of such roll, safeguarding the rights, pr.ivileges and  interests of advocates on its roll and to do all things necessary for discharg-

B ing the above functions. The functions of the Bar Council of India include  the laying down of standards of professional condnct and etiquette for  advocates and for safeguarding their rights, privileges and interests. Chap- ter III which deals with 'Admission and Enrollment of Advocates' com- prises of Sections 16 to 28. Section 16 provides that there shall be two  classes of advocates, senior advocates and other advocates; Section 17 sets  

C out how every State Bar Councils shall prepare and maintain a roll of  advocates; Section 18 deJls 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  

D entitled to practice in the Supreme Court immediately before the appoint- ment 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 pre-audience 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  

E ·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  

F advocate on a State roll, if he fulfills the following conditions,  namely:-

(a) he is a citizen of India;  

G  (b) he has completed the age of twenty-one years; and  

(c) he has obtained a degree in law.  

Section 24A 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  

H an offence involving moral turpitude, or if he is convicted of an offence

COUNCIL OF LEGAL AID AND ADVICE''· BAR COU CIL (Al IMADI. O.J 309  

under the provisions of Untouchability (Offences) Act, 1955 or if he is A  dismissed or removed from employment or oflice under the Stale on any  

charge involving moral turpitude; Section 25 indicates the authority Lo  whom applications for enrolment may be made; Section 26 provides for the  

disposal of such applications; Section 26A confers powers on the State Bar  Council to remove any name from its roll; Section 27 provides 1hat where  

B  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 applica-

tion 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 Colincil to make rules to carry out the purposes of the Chapter which  may in particular, incer 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,  

c  

be only one class of persons entitled to practise the profession of law,  

namely, advocates. According to Section 30 every advocate whose name is D  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 funher provides that no person shall, on or after the appointed E  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  

F  

roll has been guilty of professional or other misconduct, it shall refer the G  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  

H

310 SUPREME COURT REPORTS [1995] 1 S.C.R.  

A enumerated in Section 42. Chapter VI tlea!s 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) anti (ah) of sub-section (1) of Section 49 inter alia, empower the Bar  Council of India to make rules (i) prescribing the class or category of  

B persons entitled to be enrolled as advocates and (ii) laying down the  conditions subject lo which an advocate shall have the right to practise and  the circumstances under which a person shall be deemed lo 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 newly  added rule 9 in Chapter lII of Part VI of the Rules.  

c  It will be seen from the above provision!> that unless a person is  

enrolled as an advocate by a State Bar Council, he shall have no right to  practise in a cour·t of law or before any other Tribunal or authority. Once  a person fulfills the requirements of Section 24 for enrolment, he becomes  

D 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  

E 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  

F 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 tradi- tions are maintained so that the purity and dignity of the profession are  not jeopardized. It is generally believed that members of the legal profes- sion have certain social obligatiqns, e.g., to render 'pro bono publico'  service to the poor and the under-privileged. Since the duty of a lawyer is  

G 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  

H down of standards of professional conduct and etiquette which advocates

COUNCIL OF LEGAL AID AND ADVICE 1•. BAR COUNCIL (AHMADI, CJ.] 311  

must follow to maintain the dignity and purity of the profession ..  

In the above background it was contended on behalf of the-Bar  Council of India that the need to uphold standards of professional conduct  

A  

and etiquette cannot be over-emphasised. The Act, besides highlighting the  essential functions of the Bar Council of India in this behalf, provides for B  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 practice as well as removal of  the name from the roll of advocates. Section 49(1) confers power on the  Bar Council of lndia to make rules, inter alia, for discharging its functions  under the Act. Section 49(1)(ag) when read with Section 24 of the Act C  confers wide powers on the Bar Council of India to indicate the class or  category of persons who may be enrolled as advocates which power would  include the power to refuse enrolment in certain circumstances. The  obligation to maintain the dignity and purity of the profession and to punish  erring members carries with it the power to regulate entry into the prof es- D  sion 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. Accord- E  ing to the respondent-Bar Council of India persons wbo retire from various  government, quasi-government and other institutions when admitted to the  legal professi~n use their earlie~ contacts to convass 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 F  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 cond':1cl expected of a member of the Bar  because all cases of infraction of th·e Code of Conduct do not come to the  notice of the Bar Council and behaviour· leaves a lingering effect on the  profession. It is in order to uphold. the high standards of professional G  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 H

312 SUPREME COURT REPORTS 11995) 1 $.C.R.  

A 'a privilege conferred by the Act can always be withdrawn and in any case  reasonable restrictions can be imposed even if it were a f un<lamental righ!  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 b~ 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  

B 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  categorization which even Article 14 pern:tits, the newly added rule is  

C clearly intra vi res 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.  

It is clear from the above averments found in the counter filed on  D 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 a legal  profession solely for additional gains. Such persons are not inspired by  

E loftly ideals of the profession but their only motive is money-making for  which they are prepared to stoop to any levels which has a very negdiive  influence on young minds who join the profession after graduation. Can  the restriction imposed on this rationale be sustained? That is the short  question.  

F  

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  

G 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 inde- pendence 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  

H place was taken by Pleaders who were, after securing a degree in law,

COU CIL OF LEGAL AlD AND ADVICE v. BAR COU CIL I AHMADI, CJ.] 313  

permiued to praclise at the district level. Thos~ who were enrolled as A  advocates could praclice in any court ·subordinate to the High Court  including the High Court. The difference beLweeo a Pleader and an advo- cate was merely on account of th.e 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 constilulion of B  Bar Councils and an all-India Bar'. The Act creates an all-India Bar wilh  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 C  been charged with the duty to punish their members for misconduct. The  Act envisages the existence of a Bar Council for every State. The funcion  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 Slate Bar Councils to D  punish its members for misconduct, it is at the same time charged with the  duty to safeguard their rights, privileges and interest. They must perform  all the functions conferred on them by or under the Act and do everything  that is necessary to discharge the functions set out in Section 6. So far as  the Bar Council of India is concerned, its functions are of a more general E  nature, e.g., to lay down standards of professional conduct and etiquette  for advocates, to safeguard their rights, privileg~ and interests, to super- vise and control the working of the State Bar Council, to promote legal  education, to recognise universities, to organise legal aid to the poor and  

F to perform all other functions conferred by or under the Act and do  everything that may necessary to discharge the functions enumerated in  Section 7. Besides the above it too is required to exercise discipline and  control over the members of the profession. Thus the functions are divided  between the State Bar Councils and the Bar Council of India, although for  obvious reasons overlaps are unavoidable. The rule making power has been G  conferred on the State Bar Councils under Sections 15 and 28 and on the  Bar Council of India under Section 49 of the Act.  

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-Chair- man and matters incidental thereto. These rules shall not have effect unless H ·

314 SUPREME CO URT REPORTS [1995] 1 S.C.R.  

A approved. by the Bar Council of India. We are not concerned wilh the rul~  making power under this provision. Seclion 28 empowers the State Bar  Council to make rules which may, i11cer alia, provide for lhe form in which  an advocale must express his inlention for entry of his name in the roll of  a State Bar Council, the form in which an application must be made for  

B 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  

C 34 confers power on the High Courts to make rules laying down the  conditions subi~ct 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  

D with respect to any matter for' which the Bar Council of India or a State  Bar Council has power to make rules. Thus the rule making 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  

E 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  

F 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.  

The newly added rule seeks to bar the entry of persons who have  G . completed the age of 45 years on the date of application for enrolment as  

an advocate from being enrolled as such by the concerned State Bar  Council. 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  

H profession. Since the Act is silent on this point the Bar Council of India

)-

COU CIL OF LEGAL AID AND ADVICE v. BAR COU CIL !AHMADI, O .] 315  

was requi red to resort to its rule ~aking power. The rules made by the Bar A  Council of India under Section 49(1) of the Act are in seven pares, each ·  part having its own chapters. Part Vl is entitled 'Rules Governing  Advocates' and the said part bas three chapters. Chapter 1 sets out the  restrictions on senior advocates and is relatable to Section 16(3) and  49(l )(g) of the Act, Chapter IT lays down the standards· of professional B  conduct and etiquette and is relatable to Section 49(1)( c) _read with the  proviso thereto and chapter Ill deals with 'Conditions for right to practice'  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 C  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 lndia can lay down the 'conditions' D  subject to which 'an advocate' shall have the righ~ to practise. These  conditions which the Bar Council of lndia can lay down are applicable to  

an advocate, i.e., a person who has already been enrolled as an advocate  

by the concerned State Bar Council. The conditions which can be  prescribed must apply at the post-enrolment stage since they are expected E  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  

F  

not permit laying down of conditions for entry into the profession. We have,  

therefore, no hesitation in coming to the conclusion tliat clause (ah) of  Section 49(1) of the Act does not empower the Bar Council of India to G  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.  

Can the rule be saved under any other provision of the Act? As H

316 SUPREME COURT REPORTS 11995] 1 S.C.R.  

A 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 lo frame  

B 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."  

C 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 G) thereof. None of the  

D 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 or category of persons who may be  admitted to the legal profession. Therefore, under this rule the class or  category of persons 'entitled to be · enrolled' as advocates may be  

E prescribed. The rule can, therefore, i:pecify the class or category of persons  'entitled' to be enrolled as an advocates, but the rule 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 construc-

F tion 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.  

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  G 28(1)(d) of the Act authorises a State Bar Council to make rules prescrib-

ing 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 49A of  

H the Act. The role which a State Bar Council has to play under Section 28

.,.  

COU CILOFLEGALAIDAND ADVlCE v. BARCOUNCIL(AHMADI, q .] 317  

is distinct fro~ that the Bar Council of India has to play under Section A  49(1)(ag) of the Act, in that, after the class or category is identified, they ·  <lo 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 B  its role would have to be satisfied.  

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 C  have realised that matter pertaining to the profes~ion 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 fo~  entry into the profession (Section 24), disqualification for enrolm~nt (Sec- tion 24A), authority entitled to grant admission (Sections 25 and 26), the D  authority which can remove any name from the roll (Section 26A), etc.,  and placed them within the domain of a State Bar Council. Thus it is the  State Bar Council which alone must decide on 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 E  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. 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 rule making power.  

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  

F  

G  

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 H

318 SU PREME COURT REPORTS I 1995] 1 S.C.R.  

A·· ol 1IQdia enshrined in Section 49. T~at 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  

B 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 24A was introduced by Section 19 of Act 60 of 1973  with effect from 31st January, 1974 to disqualify certain persons from  entering the legal profession for a limited period. By the impugned rule  

C 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 24A by a mere rule made by the Bar Council of India,  where was the need for a statutory amendment? That is presumably  

D because matters concerning disqualification even for a limited period was  considered to be falling outside the ken of rule making 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. ln the guise of  

E 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 com- pleted age of 45 years beyond which no person shall be eligible for  enrolment as an advocate or is inserting an additional clause in Section  24A of the Act prescribing a disqualification. Viewed from either point of  

F view we are clearly of the opinion that the rule making 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 thP 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 dis-

G qualified as a single block from entering the profession. Besides, as stated  above clause (ag) 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 rule making power of the Bar Council of India and is, therefore,  

H ultra vires the Act.  

-(  \

COUNCIL OF LEGAL AID A D ADVICE 1·. BAR COUNCIL I AHMADI. CJ .I 319  

The next question i. , is the rule reasonblc or arbit~ary anc.l un- A  reasonable? The rationable for the rule, a~ . tatec.l earlier, is to maintain  the c.lignity anc.l purity of the profession by keeping out tho. e who retire  

from various government, quasi-government anc.l other institutions since  they on heing enrollee.I as ac.lvocatcs use their past contacts to canvass fo r  

cases anc.l thereby bring the profession into disrepute anc.l also pollute the B  minds of young fresh entrants to the profession. Thus the object of the  

rule is clearly to shut the doors of the profession fo r those whc 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-governrneuc or quasi-government servants C  or the like indulge in undesirable activity of the type mentioned afte1  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 enrolmnent. Thirdly those who were  

enrolled as advocates while they were young and had later taken up some D  job in any government or quasi-goverment or similar institution aud 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 E  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  entrolment 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 t. .. reasonable 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  

F  

of government or quasi-government or similar institutions at any point of G  time. Thus, in our view the impugned rule violates the principle of  equality enshrined in Article 14 of the Constitution.  

In tile view that we take on the aforesaid points we do not consider  it necessary to examine the larger question whether or not the impugned H

320 SUPREME COURT REPORTS (1995) 1 S.C.R.  

A rule violates Article 19(1)(g) of the Constitution. We, therefore, do not  express any view on the said question.  

ln the result, these petitions succeed. The new rule 9 inserted in  

Chapter m ~xtracted in the opening paragraph of this judgment is struck  down as ultra vires the Act and opposed to Article 14 of the Constitution.  

B The Bar Council of India and the State Bar Councils are directed not to  implement the said rule. No order as to costs.  

A.G. Petitions allowed.  

.·