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PETITIONER: V.SUDEER

       Vs.

RESPONDENT: BAR COUNCIL OF INDIA & ANR.

DATE OF JUDGMENT:       15/03/1999

BENCH: S.B.Majmudar, S.N.Phukan

JUDGMENT:

S.B.Majmudar, J.

Leave granted in the Special Leave Petitions.

     These   Writ  Petitions  under   Article  32  of   the Constitution  of  India  as well as the  two  special  leave petitions  being  S.L.P.(C) Nos.13755 of 1996 and  12989  of 1998  moved by the Bar Council of Maharashtra & Goa and  the Bar  Council  of India respectively raise a common  question for  our  consideration, namely, whether the Bar Council  of India  Training  Rules,  1995  (for short  ‘the  Rules)  as amended by the Resolution of the Bar Council of India in its meeting  dated  19th  July,  1998 relating  to  training  to entrants  of  legal profession are within the competence  of the  Bar Council of India or are ultra vires its rule making powers  under the Advocates Act, 1961 (for short ‘the  Act) and  in the alternative whether these Rules are unreasonable and  arbitrary  and  hence violative of Article  14  of  the Constitution of India.

     The  writ petitioners, who have successfully completed their  legal education by getting requisite Law degrees from the Universities concerned have contended before us in these writ  petitions  that  their right to practise Law  as  made available  under the relevant provisions of the Act is being arbitrarily  denied by the impugned rules framed by the  Bar Council  of  India and, therefore, their  fundamental  right under Article 19(1)(g) of the Constitution of India is being violated.   That the said Rules do not impose any reasonable restrictions on the exercise of their fundamental right.  It is  also contended that in any case, the Rules are so framed as  to be totally unworkable and are highly unreasonable and discriminatory in character and hence they offend Article 14 of the Constitution of India also.  The civil appeal arising out  of  the  SLP by the Bar Council of  Maharashtra  &  Goa brings  in  challenge the decision of the Bombay High  Court which  upheld  the  impugned rules and  dismissed  the  writ petition  filed by it and that is how the State Bar  Council is  before  us.   Its  contention is on the  same  lines  as canvassed   by  learned  counsel   appearing  for  the  writ petitioners.   While  civil  appeal arising out  of  SLP  (C )No.12989  of 1998 filed by the Bar Council of India, on the other  hand,  brings  in challenge the  Judgment  and  Order

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rendered  by  the learned Single Judge of Punjab  &  Haryana High Court, who took the view in favour of the original writ petitioner  -  Respondent  herein, that the  impugned  rules would  not apply to the writ petitioner who had obtained his Law  degree in 1981 as the Rules were purely prospective  in character.  It is, therefore, obvious that all these matters raise  a common question regarding legality and validity  of the  impugned  rules.   If the Rules are upheld,  then  only further  question whether they are prospective in nature  or not would survive.  This Court has treated the Writ Petition (Civil)  No.398  of  1996  as   the  leading  petition  and, therefore,  we  shall  also refer to the  pleadings  of  the parties  and  the  relevant documents filed therein  in  the latter  part  of  this  judgment.    By  order  dated   16th September, 1997, a three Judge Bench of this Court, presided over  by S.C.Agrawal, J., appointed Shri Joseph  Vellapally, learned senior advocate as amicus curiae to assist the Court on  behalf  of  the petitioner.  All  other  petitioners  in person  were  permitted to submit their written  submissions and  the  oral arguments were permitted to be  submitted  on behalf  of  all  of  them by learned  amicus  curiae  senior advocate.   We  have  to place on record our high  sense  of appreciation  for  the pains taken by amicus  curiae  Senior Advocate,  Shri Joseph Vellapally, who has been good  enough to  look into all the relevant aspects of the matter and has placed  his oral and written submissions in this connection. By  order dated 21st February, 1997, another two Judge Bench of  this Court, while treating writ petition (Civil)  No.398 of 1996 as a leading petition, directed that other petitions that  are  pending in the High Court or which may  be  filed thereafter  shall remain stayed till further orders of  this Court.   The parties have exchanged relevant pleadings which are  all  brought on record supported by documents on  which they rely.

     It  appears  that earlier when these group of  matters reached  final  hearing, in the light of what transpired  in the  Court  then,  a  Bench  of  this  Court  consisting  of S.C.Agrawal  and  B.N.Kirpal,  JJ.   by  order  dated   30th September,  1997  adjourned these proceedings to enable  the Bar  Council of India to take a fresh decision in the matter in  the light of its decision taken in the earlier  meetings regarding  suitable modification of the impugned rules.   It appears  that  ultimately  on 4th August, 1998,  before  the Bench  of three learned Judges, Shri P.P.Rao, learned senior counsel,  placed a copy of the Resolution of Bar Council  of India  whereby  the  Rules  were   amended.   We  have  also mentioned the earlier Resolution by which the impugned rules were  amended.  It is thereafter that these group of matters reached for final hearing before us.  We, therefore, have to examine  the legality and validity of the impugned rules  as amended  by the Resolution of the Bar Council of India dated 19th July, 1998.

     Rival  Contentions:  We may briefly mention the  rival contentions  submitted  for  our  consideration  by  learned counsel  Shri N.N.Keshwani, who appeared in support of  Writ Petition  No.425  of 1998, as well as learned amicus  curiae Shri  Joseph Vellapally on behalf of other writ  petitioners and Shri P.P.Rao, learned senior counsel for the Bar Council of  India,  which  is the author of the  impugned  rules  in support of their respective cases.

     Learned counsel for the petitioners submitted, tracing the  history  of the relevant provisions of the Act and  the

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Rules,  that there is no power with the Bar Council of India to frame the impugned rules.  That Section 7 of the Act lays down  the  statutory functions of the Bar Council of  India. The  provisions  thereof do not entitle the Bar  Council  of India   to   frame  such   impugned  rules   prescribing   a pre-condition  before  enrolment  of  an  applicant  as   an advocate  under  the  Act  by  requiring  him  to  undergo pre-enrolment training and apprenticeship as laid down under the  impugned rules.  It was also submitted that Section  24 sub-section  (3)(d) of the Act also was not available to the Bar  Council of India to frame such Rules.  As a sequel,  it was  submitted that rule making power of the Bar Council  of India  as  laid down by Section 49 could not be  pressed  in service by it in support of the impugned rules.

     On  the  other hand, learned counsel in writ  petition No.425  of  1998,  submitted  that even  assuming  that  the impugned  rules fall within the rule making power of the Bar Council  of  India,  the  Rules  framed  are  so  obnoxious, arbitrary, unreasonable and unworkable that they violate the fundamental right of the petitioners under Article 14 of the Constitution  of India in any case.  The appeal arising from SLP  No.12989  of  1998 filed by the Bar Council  of  India, raising the question of retrospective effect of the Rules in question  projected an additional contention, which may  not survive  if  the Rules are held to be ultra vires  the  rule making power of the Bar Council of India.  In support of the contentions  raised  on  behalf of the  petitioners  by  the learned  counsel, reliance was placed on a three Judge Bench judgment  of  this  Court in Indian Council of Legal  Aid  & Advice  &  Ors.  vs.  Bar Council of India & Anr., 1995  (1) SCC  732, while Shri Rao, learned senior counsel for the Bar Council of India, submitted on the other hand, that the said decision  while  interpreting  the   provisions  of  Section 49(1)(ah) of the Act was rendered per incuriam as it had not noticed the decision of the Constitution Bench of this Court in re:  Lily Isabel Thomas, 1964 (6) SCR 229, as well as the express provisions of Section 24(3)(d) of the Act.  Mr.  Rao submitted  that the impugned rules were legal and valid  and were  properly  framed  under Section 7  read  with  Section 24(3)(d) and Section 49(1) and (2) of the Act.  In the light of  the  aforesaid rival contentions, the  following  points arise for our consideration :

     1.   Whether  the impugned rules are ultra  vires  the rule  making power of the Bar Council of India as  available to it under the provisions of the Act.  2.  If the aforesaid question  is  answered in negative and in favour of the  Bar Council  of India, whether the impugned rules are  arbitrary and  unreasonable so as to violate the guarantee of  Article 14  of the Constitution of India;  3.  If the impugned rules are  legal and valid, whether the respondent in Bar  Council of  Indias appeal, who has got his Law degree prior to  the coming  into force of these Rules, can be required to comply with  these  Rules  if he applies for being enrolled  as  an advocate  under  the Act after the Rules came into  force; and  4.  What final order?  We shall deal with these  points seriatim.   Point  No.1:  In order to appreciate  the  rival contentions centering round this point, it will be necessary to  have  a peep into the historical background of  the  Act which  came  into force years back in 1961 and also  have  a birds  eye view of the subsequent amendments thereto spread over number of years during its currency till date.  It will also  be  necessary to keep in view the salient features  of the  relevant provisions of the Act.  The Act seeks to amend

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and  consolidate the law relating to legal practitioners and to  provide  for  the constitution of Bar  Councils  and  an All-India  Bar.   A  Bill was introduced in  the  Parliament seeking  to  implement the recommendations of the  All-India Bar  Committee  made in 1953 after taking into  account  the recommendations  of  the  Law Commission on the  subject  of Reform  of  Judicial  Administration  in   so  far  as   the recommendations related to the Bar and to Legal Education. The main features of the Bill were as under :-

     (1) the establishment of an All-India Bar Council and a  common roll of advocates, an advocate on the common  roll having a right to practise in any part of the country and in any Court, including the Supreme Court;  (2) the integration of  the bar into a single class of legal practitioners known as   advocates;    (3)  the   prescription  of   a   uniform qualification  for the admission of persons to be advocates; (4)  the  division  of advocates into senior  advocates  and other  advocates  based  on  merit;   (5)  the  creation  of autonomous  Bar Councils, one for the whole of India and one (sic) for each State.

     Section  2,  sub-section  (1) clause (a)  of  the  Act defines,  amongst others, an advocate to mean an advocate entered  in  any  roll under the provisions  of  this  Act. Section  2, sub-section (1) clause (d) defines Bar Council to  mean a Bar Council constituted under this Act.   While as  per  clause  (e) Bar Council of India means  the  Bar Council  constituted under Section 4 for the territories  to which  this  Act  extends.  Law graduate  is  defined  by clause  (h) to mean a person who has obtained a  bachelors degree  in  Law  from any University established by  Law  in India; and a legal practitioner in clause (i) to mean an advocate [or vakil] of any High Court, a pleader, mukhtar or revenue  agent;.  The term roll is defined in clause  (k) to  mean  a roll of advocates prepared and maintained under this  Act;.   The State Bar Council is defined in  clause (m)  as  a  Bar Council constituted under Section  3;  and State  roll  is  defined  in  clause (n)  as  a  roll  of advocates  prepared  and maintained by a State  Bar  Council under Section 17.  When we turn to Section 17, we find that it  is in Chapter III of the Act dealing with admission and enrolment of advocates.  Section 16, which precedes Section 17,  deals with Senior and other Advocates and lays down  in sub-section  (1) thereof that :  There shall be two classes of  advocates, namely, senior advocates and other advocates and  then follows Section 17, sub-section (1) which provides that  :  Every State Bar Council shall prepare and maintain a roll of advocates. Sub-section (2) reads thereof as under :-  Each such roll of advocates shall consist of two parts, the  first part containing the names of senior advocates and the second part, the names of other advocates.

     Section  22 provides for certificate of enrolment  and sub-section  (1)  thereof  lays down that  There  shall  be issued  a certificate of enrolment in the prescribed form by the  State Bar Council to every person whose name is entered in  the roll of advocates maintained by it under this  Act. Section 23 lays down Right of pre-audience and the priority given to the various advocates while addressing Courts.  It lays  down  the  scheme  of   priority  as  follows  :   The Attorney-General  of  India has pre-audience over all  other advocates.   Next  comes Solicitor-General of India  in  the order  of  priority  for  audience.   Then,  the  Additional

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Solicitor-General   of  India;   followed   by  the   second Additional  Solicitor- General of India, further followed by Advocate General of any State.  Next in the hierarchy of the priority  come senior advocates and last are other advocates having right of audience.  It becomes, therefore, clear that once an applicant is enrolled as an advocate in the State roll  maintained by the State Bar Council, he gets right of audience subject to the scheme of priorities as mentioned in Section  23 and naturally audience implies the full  right of  addressing  the  Court on all legal and  factual  issues involved  in  the  case in which he appears as  an  advocate under  the Act.  Now follows Section 24, which lays down the qualifications  for a person to be admitted as an  advocate on  a  State  roll.  The said section,  with  its  relevant sub-sections  (1),(2)  and (3) deserves to be  extracted  in extenso at this stage :

     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:   Provided  that  subject  to  the  other  provisions contained  in this Act, a national of any other country  may be  admitted as an advocate on a State roll, if citizens  of India, duly qualified, are permitted to practise Law in that other  country;  (b) he has completed the age of  twenty-one years;  (c) he has obtained a degree in Law - (i) before the [12th  day  of  March,  1967], from any  University  in  the territory  of India;  or (ii) before the 15th day of August, 1947,  from  any University in any area which was  comprised before  that date within India as defined by the  Government of  India Act, 1935;  or [(iii) after the 12th day of March, 1967,   save  as  provided  in  sub-clause   (iiia),   after undergoing  a  three-year  course of study in Law  from  any University  in India which is recognised for the purposes of this  Act  by  the Bar Council of India;  or  (iii-a)  after undergoing  a course of study in Law, the duration of  which is  not  less  than two academic years commencing  from  the academic year 1967-68, or any earlier academic year from any University  in India which is recognised for the purposes of this  Act  by  the Bar Council of India;  or] [(iv)  in  any other  case,  from any University outside the  territory  of India,  if the degree is recognised for the purposes of this Act by the Bar Council of India;  or] [he is a barrister and is  called to the Bar on or before the 31st day of December, 1976;   [or  has passed the articled clerks examination  or any  other examination specified by the High Court at Bombay or  Calcutta  for  enrolment  as an attorney  of  that  High Court;]  or has obtained such other foreign qualification in Law  as  is recognised by the Bar Council of India  for  the purpose  of admission as an advocate under this Act];   (d)[ xx  xx  xx] (e) he fulfils such other conditions as  may  be specified  in the Rules made by the State Bar Council  under this  Chapter;   [(f)  he  has   paid,  in  respect  of  the enrolment,  stamp duty, if any, chargeable under the  Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the  State Bar Council of [six hundred rupees and to the Bar Council  of India, one hundred and fifty rupees by way of  a bank  draft drawn in favour of that Council]:  Provided that where such person is a member of the Scheduled Castes or the Scheduled  Tribes and produces a certificate to that  effect from  such authority as may be prescribed, the enrolment fee payable  by  him  to  the State Bar Council  shall  be  [one hundred  rupees and to the Bar Council of India, twenty-five

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rupees]  .   [Explanation  -  For   the  purposes  of   this sub-section,  a  person shall be deemed to have  obtained  a degree  in  Law  from a University in India on the  date  on which  the  results of the examination for that  degree  are published by the University on its notice-board or otherwise declaring   him  to  have   passed  that  examination.]  (2) Notwithstanding  anything  contained in sub-section (1),  [a vakil or a pleader who is a Law graduate] may be admitted as an advocate on a State roll if he - (a) makes an application for such enrolment in accordance with the provisions of this Act,  not later than two years from the appointed day;   and (b)  fulfils  the conditions specified in clauses (a),  (b), (e)  and  (f)  of  sub-section  (1).   [{3)  Notwithstanding anything contained in sub-section (1), a person who - (a)[xx xx] has, for at least three years, been a vakil or a pleader or  a  mukhtar, or was entitled at any time to  be  enrolled under  any  Law  [xx xx xx] as an advocate of a  High  Court (including  a  High Court of a former Part B State) or of  a Court  of Judicial Commissioner in any Union territory;   or [(aa)  before  the Ist day of December, 1961,  was  entitled otherwise  than as an advocate to practise the profession of Law (whether by way of pleading or acting or both) by virtue of  the  provisions  of any Law, or who would have  been  so entitled had he not been in public service on the said date; or]  (b)  [xx xx xx] (c) before the 1st day of April,  1937, has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act, 1935;  or (d) is entitled to be enrolled as an advocate under  any  rule  made by the Bar Council of India  in  this behalf,  may  be admitted as an advocate on a State roll  if he-  (i)  makes  an  application   for  such  enrolment   in accordance  with  the  provisions  of this  Act;   and  (ii) fulfils  the  conditions specified in clauses (a), (d),  (e) and (f) of sub-section (1).  Xx xx xx The aforesaid Section has  undergone number of amendments by passage of time since the  enactment of the said Act.  It is, therefore, necessary to refer to the relevant amendments to that Section.  It may be  noted  that Section 24 sub-section (1), as it stands  on the  statute book on date, does not include clause (d) which was  omitted  by Section 18 of amending Act 60 of 1973  with effect  from 31st January, 1974.  This clause (d) of Section 24 as it stood originally from 1961 read as under :

     (d)  he has undergone a course of training in Law and passed  an  examination  after such training both  of  which shall be prescribed by the State Bar Council;  Provided that this  clause not apply to - (i) a barrister who has received practical training in England or a person who has obtained a degree  in  Law  from  any University in  India  before  the appointed  day;   (ii) any person who has for at  least  two years held a judicial office in the territory of India or is a member of the Central Legal Service;  (iii) any person who has  for  at least two years held a judicial office  in  any area  which  was  comprised before the 15th day  of  August, 1947,  within  India as defined in the Government  of  India Act,  1935, or has been an advocate of any High Court in any such  area;   (iv) any person who has practised  before  any High  Court  and who has discontinued practice by reason  of his  taking  up  employment under the  Government,  a  local authority  or any other person;  and (v) any other class  of persons  who by reason of their legal training or experience are  declared by the Bar Council of India to be exempt  from the provisions of this clause;

     The  aforesaid clause (d) also underwent a change from

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1964.   The  said  clause (d), in the form in  which  it  is extracted  above  was  operative  only upto  1964.   It  was amended in 1964 and then read as under :

     in  clause (d) - (i) the words after such  training shall  be omitted;  (ii) in the proviso, for paragraph  (i), the following paragraph shall be substituted, namely :- (i) a  person  who  has  obtained  a  degree  in  Law  from  any University  in  India on the results of an examination  held before  the 31st day of March, 1964 or such other later date as  may be prescribed, or a barrister who was called to  the Bar  before such date, or a barrister who, having  qualified after that date, has received such practical training in Law as  may  be recognised in this behalf by the Bar Council  of India;

     It  becomes,  therefore,  clear that between  1961  to 1964,  the  State Bar Council, as a condition of  enrolment, required an applicant to undergo a course of training in Law and  also required him to pass the examination after such  a training.   But after 1964 till 1973, it was permissible for the  State Bar Council to prescribe a course of training  in Law  as  a precondition for enrolment of a candidate and  he was  also required to pass the requisite examination  during the training or even after completion of the training course and  such  examination could be prescribed by the State  Bar Council  concerned only.  It is further required to be noted that  in  the  aforesaid Section 24, between 1961  to  1964, there  was no sub-section (3).  That sub-section (3) came to be  inserted  in Section 24 in 1964 by Act 21 of  1964.   In order  to appreciate the scope and ambit of sub-section  (3) of Section 24, as inserted by the aforesaid amending Act, it will be profitable to have a look at the objects and reasons underlying  the  introduction of the said amendment.   These objects  and  reasons stated that it was felt  necessary  to give  powers  to  the Bar Council of India with  a  view  to enable  it  to add to the categories of eligible  candidates those persons who were otherwise not eligible to be enrolled under  Section 17 read with Section 24(1) of the Act, as  it then stood on the statute book.  In para 3 of the objects of the Bill at Item No.5 was mentioned the fact that categories of  persons who were not by then entitled to be enrolled  as advocates  could  be brought in by conferring powers on  the Bar  Council of India as per the amending provisions.  Thus, sub-section  (3)  of Section 24 was brought on  the  statute book by the said amending Act 21 of 1964.

     Before  we come to the present texture of Section  24, we  may  mention one more amending Act 60 of 1973, which  by Section  18  thereof, deleted the then existing  clause  (d) from  sub-section (1) of Section 24.  Meaning thereby, after 31st  January, 1974, the State Bar Councils were deprived of their  powers  to  prescribe  a  course  of  pre-  enrolment training  in  Law  and examination to be  undergone  by  Law graduates  who were seeking enrolment as advocates on  the State roll.

     We may at this stage refer to the statement of objects and  reasons as mentioned in the Advocates (Amendment) Bill, 1970 for further amending the Act and which (Amendment) Bill ultimately  resulted  into  the Amending Act 60 of  1973  by which  Section 24(1)(d) stood deleted.  The said clause,  as noted  earlier,  entitled  the State Bar Councils  to  frame Rules for prescribing pre-enrolment training and examination

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subject to which a person would get qualified to be enrolled as  an advocate on the State roll.  The reason why this pre- enrolment  training  and examination was sought to  be  done away  with  by  the  Parliament is  clearly  seen  from  the statement  of  objects  and   reasons  for  introducing  the aforesaid  (Amendment) Bill of 1970.  The said statement  of objects  and  reasons  was  produced before  us  by  learned Additional  Solicitor General, Shri.C.S.Vaidyanathan for our scrutiny.    Amongst  others  the   need  for  deleting  the statutory  provision  regarding pre-enrolment  training  was highlighted  by  paragraph  (iii) of the said  statement  of objects and reasons.  It is profitable to reproduce the said paragraph  as  under  :- Pre-enrolment training -  The  Bar Council  of India has decided that in future a degree in Law can be obtained only after undergoing a three-year course of study  in Law after graduation as a result of which the  age of  entry into the legal profession becomes much higher than the  age  of entry in other professions.  It is,  therefore, felt  that after a three- year course in Law in a University it is not necessary to retain the statutory provision in the Act requiring a further examination or practical training.

     It  becomes  clear  from  a  mere  look  at  the  said paragraph  that it was the Bar Council of India itself which had  decided that a Degree of Law obtained by a person after undergoing  three  years  course of study  after  graduation would  be  enough  for qualifying him to be enrolled  as  an Advocate  under  the  Act   and,  therefore,   pre-enrolment training  till then required of him before getting enrolment was  not  necessary.   This decision of the Bar  Council  of India was accepted by the Parliament and aforesaid provision by  way of additional eligibility condition for enrolment as an  advocate  as  then existing under Section  24(1)(d)  was deleted.   So  far  as  three years  LLB  degree  course  is concerned,  the  syllabus prescribed by the Bar  Council  of India  itself by its communication dated 21st October,  1997 addressed   to  the  Registrars  of  all  the   Universities imparting  Legal Education in India, the Deans of  faculties of  Laws of Universities and the Members of the Law colleges makes  it clear that practical training to be given to a Law student  prior to his getting degree of Law from  University after  completing  three years course was to be included  in the course of study.  As practical training was suggested by the  Bar  Council of India itself for being included in  the curriculum  to  be  prescribed by the Universities  for  Law students,  it  obviously  became   redundant  for  providing further  practical training before enrolment of such trained graduates  in  Law.  That is precisely the reason why  after January,  1974  need  for  pre-enrolment  training  was  not insisted  upon  by  the  legislature and  that  too  at  the suggestion  and on the recommendation of the Bar Council  of India  itself.  However, learned Senior Counsel Shri P.P.Rao for  the Bar Council of India is right when he contends that in  those days it may have been so felt, but with passage of time  and  experience  gained by the Bar  Council  of  India regarding  the actual working of legal profession at various levels  in India and also in the light of the recommendation of  higher  power committee chaired by Honble Mr.   Justice A.M.   Ahmadi  to be referred to hereinafter, the  need  for providing  training to advocates before they become entitled to  practise  was visualised and that is the reason why  the impugned  rules  were enacted and that, therefore, what  the Bar  Council  of  India decided in 1973  cannot  create  any estoppel  against  the Bar Council of India in  1995.   Even

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accepting  this contention, the question remains whether the Bar  Council  of  India  by resorting to  the  enactment  of impugned rules had remained within the permissible limits of its  rule making power or not and it is this question  which has to be considered by us in the present proceedings.

     We may, at this stage, also refer to Section 7, laying down  the  statutory functions of the Bar Council of  India. This  Section,  as  it stood at the relevant time,  read  as under :

     7.   Functions  of Bar Council of India -  [(1)]  The functions of the Bar Council of India shall be - (a) [ xx xx xx]  (b)  to lay down standards of professional conduct  and etiquette  for advocates;  (c) to lay down the procedure  to be   followed   by  its   disciplinary  committee  and   the disciplinary  committee  of each State Bar Council;  (d)  to safeguard the rights, privileges and interests of advocates; (e) to promote and support Law reform;  (f) to deal with and dispose  of any matter arising under this Act, which may  be referred  to  it  by a State Bar Council;  (g)  to  exercise general  supervision  and control over State  Bar  Councils; (h)  to promote Legal Education and to lay down standards of such  education  in  consultation with the  Universities  in India  imparting such education and the State Bar  Councils; (i) to recognise Universities whose degree in Law shall be a qualification  for  enrolments as an advocate and  for  that purpose  to  visit  and inspect Universities [or  cause  the State  Bar  Councils  to visit and inspect  Universities  in accordance  with  such  directions as it may  give  in  this behalf];   [(ia)  to conduct seminars and organise talks  on legal  topics  by eminent jurists and publish  journals  and papers of legal interest;  (ib) to organise legal aid to the poor  in  the  prescribed manner;  (ic) to  recognise  on  a reciprocal  basis  foreign  qualifications in  Law  obtained outside  India  for the purpose of admission as an  advocate under  this Act;] (j) to manage and invest the funds of  the Bar  Council;   (k)  to  provide for  the  election  of  its members;  (l) to perform all other functions conferred on it by  or under this Act;  (m) to do all other things necessary for  discharging  the  aforesaid functions.   [(2)  The  Bar Council  of  India may constitute one or more funds  in  the prescribed  manner for the purpose of - (a) giving financial assistance  to  organise  welfare   schemes  for   indigent, disabled or other advocates;  (b) giving legal aid or advice in  accordance  with  the Rules made in this  behalf;   [(c) establishing  Law  libraries.] (3) The Bar Council of  India may receive any grants, donations, gifts or benefactions for all  or  any  of the purposes specified in  sub-section  (2) which  shall  be credited to the appropriate fund  or  funds constituted under that sub-section.]

     (Emphasis supplied)

     It  is to be noted that clause (a) of Section 7, which originally stood, got omitted with effect from 31st January, 1974.  That clause (a) pertained to maintenance of rolls of advocates.   Hence  from 1974 the Bar Council of India  was not  concerned with maintenance of rolls of advocates  which function became the sole concern of State Bar Councils only. These rolls obviously consisting of names of entrants to the legal  profession were clearly envisaged under Section 24 of the  Act.   The next relevant Section is 24-A  dealing  with disqualification  for  enrolment  of a person  desirous  of being an advocate under the Act.  That section was inserted

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by  Act  60  of  1973.   It is relevant  to  note  that  the Legislature  thereunder  has enumerated three categories  of persons   who  are  disqualified   from  being  enrolled  as advocates  even  though  they  might  otherwise  fulfil  the requirements  of Section 24 sub-section (1).  The imposition by  the impugned Rules of the requirement of an applicant to undergo  pre-enrolment  training  does not result  into  any disqualification  of  such  an  applicant   if  he  has  not undertaken  such  a  training as it is not  treated  by  the legislature as one of such disqualifications as envisaged by Section 24A.  In other words, by the statutory provisions of Sections  24(1) and Section 24-A, after 1973, no legislative intention  can  be  culled out requiring  an  applicant  law graduate  seeking  enrolment  as advocate under the  Act  to undergo  any  pre-enrolment  training  as  a  condition  for enrolment   nor   its   absence  to    be   treated   as   a disqualification  for  enrolment.  Next relevant Section  is Section  28,  which  deals  with powers of  the  State  Bar Council  to  make  Rules to carry out the  purposes  of  the Chapter  dealing with admission and enrolment of advocates. The  said Section, as standing on the statute book on  date, does  not  contain  clause (b) in sub-section  (2)  thereof. Clause  (b) was deleted by Section 21 of amending Act 60  of 1973  with effect from 31.1.1974.  The said sub-clause  (b), prior  to  its  deletion read as under :  (b) a  course  of practical  training in Law and the examination to be  passed after such training for admission as an advocate on the roll of the Bar Council;

     A conjoint reading of Section 28, sub-section 2(b) and Section  24(1)(d) as it existed on the statute book prior to 31.1.1974  makes it clear that from 31st January, 1974,  the legislature  did  not think it fit to clothe the  State  Bar Councils  with  the  power to  prescribe  any  pre-enrolment training and examination to be undergone by an applicant for enrolment as an Advocate on the State roll.  As clause (d) was  deleted  from  Section 24(1), simultaneously  the  rule making power earlier conferred on the State Bar Councils for effective  exercise  of that statutory function  also  stood withdrawn.   Meaning thereby, from 31.1.1974 any person  who had  a requisite Law degree as laid down by Section 24  sub- section (1), became entitled to be enrolled as an Advocate on the State roll maintained by the State Bar Council and he was  not required to undergo any such pre-enrolment training which  he  was  required to undergo prior to  31st  January, 1974.  It is also pertinent to note that sub- section (3) of Section  24  had  remained operative from 1964  onwards  all throughout  till 1974 simultaneously with the then  existing power  of the State Bar Councils to prescribe  pre-enrolment training  and examination to be undertaken by the applicants desirous  of  being enrolled as advocates.  When both  these provisions  simultaneously existed on the statute book  from 1964  to the beginning of 1974, it becomes obvious that  the question   of   prescribing   pre-enrolment   training   and examination  to  be  undertaken by an  applicant  for  being enrolled  as an advocate on the State roll, remained  solely in  the  domain of the concerned State Bar Councils and  the Bar Council of India had nothing to do on this aspect of the matter.   Consequently Section 24(3) dealt with a topic  not covered  by the sweep of Section 24(1) especially clause (d) thereof.   The next relevant Section for our present purpose is  Section  29, which is found in Chapter IV  dealing  with right  to practise.  The right to practise naturally  is available  to those advocates who are enrolled under the Act

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and  whose  names  are mentioned in the State  roll  as  per Section  17  of  the  Act.   A  new  entrant  to  the  legal profession obviously would be an ordinary advocate and not a senior  advocate.   But  only  two types  of  advocates  are contemplated  by  Section 17 sub-section (2) of the  Act  as seen earlier.  An advocate can either be a senior advocate or  a non- senior advocate, meaning thereby, other advocate. Moment  a  person is enrolled as an advocate on the  State roll,  he  would become statutorily entitled to practise  as laid  down under Section 17 which provides under sub-section (1)  that  :   Every State Bar Council  shall  prepare  and maintain  a roll of advocates in which shall be entered  the names and addresses of - (a) all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils  Act,  1926  (38 of 1926), immediately  before  the appointed  day [including persons, being citizens of  India, who  before  the 15th day of August, 1947, were enrolled  as advocates  under  the said Act in any area which before  the said  date  was  comprised within India as  defined  in  the Government  of India Act, 1935, and who at any time] express an intention in the prescribed manner to practise within the jurisdiction  of the Bar Council;  (b) all other persons who are  admitted  to be advocates on the roll of the State  Bar Council under this Act on or after the appointed day.

     Section  30, which up till now has not come into force lays down :

     Subject to the provisions of this Act, every advocate whose  name is entered in the [State roll] shall be entitled as  of right to practise throughout the territories to which this  Act extends, - (i) in all Courts including the Supreme Court;    (ii)  before  any   tribunal  or  person   legally authorised  to  take evidence;  and (iii) before  any  other authority or person before whom such advocate is by or under any Law for the time being in force entitled to practise.

     So far as clause (i) of Section 30 is concerned, it is not  in  dispute that even though the main section  has  not come  into force, all persons who are enrolled as  advocates on  the  State roll are entitled as of right to practise  in all  Courts,  including  the Supreme Court and  no  one  has challenged   their  said  right.    Whether  such   enrolled advocates  can practise in Tribunals or any other  authority would remain a moot question in the absence of bringing into force Section 30.  Section 32 deals with the power of Court to  permit  appearances in particular cases by  persons  not enrolled  as advocates.  That power of the Court  obviously is  not  touched by the impugned rules, as fairly stated  by learned  senior counsel Shri P.P.Rao for the respondent  Bar Council  of India.  Then follows Section 33 which deals with the  right to practise conferred on the advocates and lays down that :

     Except  as  otherwise provided in this Act or in  any other  Law for the time being in force, 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 this Act.

     A conjoint reading of Sections 23, 29 and 33 leaves no room  for doubt that once a person is found qualified to  be admitted  as an advocate on the State roll having  satisfied

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the  statutory  conditions  of   eligibility  laid  down  in sub-section  (1) of Section 24, he will automatically become entitled  as of right to practise full-fledged in any  Court including  the  Supreme  Court.  Next  follows  Section  34, sub-section  (1) which provides that :  (1) The High  Court may  make Rules laying down the conditions subject to  which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto.

     This  rule making power of the High Court operates  on its  own and cannot be pressed in service by the Bar Council of  India  for effectively proving the authorship  of  their impugned  rules  and, therefore, we need not dilate  on  the same  any further.  The next relevant section is Section 49. This is the section which lays down the rule making power of the  Bar  Council  of India and is the sheet-anchor  of  the respondent  Bar Council of India for supporting the impugned rules.   It  is, therefore, necessary to note  the  relevant provisions  of  this Section.  Section 49 sub-section  [(1)] provides  that  :  The Bar Council of India may make  Rules for  discharging  its  functions  under this  Act,  and,  in particular, such Rules may pr escribe - xxx xxx xxx [(af)the minimum qualifications required for admission to a course of degree  in Law in any recognised University;] (ag) the class or category of persons entitled to be enrolled as advocates; (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  Cou rt;  ] xxx xxx xxx

     Before  considering  the next relevant Section, it  is necessary  to  note  that clause (af), as it stands  in  the present  form in Section 49(1), was substituted by Act 60 of 1973  by Section 38 thereof with effect from 31.1.74.  Prior thereto,  clause (af) which was in force from 1964  onwards, read  as  under :  (af) the category of persons who may  be exempted from undergoing a course of training and passing an examination  prescribed under clause (d) of sub-section  (1) of Section 24;

     It,  therefore, becomes clear that from 1964 till  the end  of 1973, the Bar Council of India had rule making power to  exempt  those  persons who were  otherwise  required  to undergo pre-enrolment training and passing an examination as prescribed by the State Bar Councils under Section 24 (1)(d) as  it  stood on the statute book during that time.  So  the power   of  exemption  from   undergoing  the  training   to applicants  for  enrolment  as advocates was  with  the  Bar Council  of India, while the power to prescribe training and examination  solely  rested  with  the  State  Bar  Councils concerned.  Once the legislature by Act 60 of 1973, deprived the  State  Bar  Councils  of their  rule  making  power  to prescribe  training  and examination in view of deletion  of clause(d)  of sub-section (1) of Section 24 from the  parent Act,  the rule making power exempting categories of  persons from  pre-training and pre-examination prior to enrolment as earlier  available  to  the Bar Council of  India  was  also withdrawn   and  clause  (af)  in   the  present  form   got substituted  with  effect from 31.1.1974.  Clauses (ag)  and (ah)  were already inserted in Section 49 by Act 21 of  1964 and  they  have continued to exist on the statute  book  all throughout  till  date.  These topics of rule  making  power existed  with the Bar Council of India at the same time when the provision regarding pre-service training and examination as  a  condition  of enrolment existed on the  statute  book

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under Section 24(1)(d).  In other words, between 1964 to the end  of  1973  i.e.  till 31st January, 1974, the  topic  of prescription  of  pre-enrolment training  and  pre-enrolment examination  which  remained strictly in the domain  of  the State  Bar  Councils remained excluded from the rule  making powers  provided  by clauses (ag) and (ah) of Section 49  so far  as  the  Bar  Council of India was  concerned.   It  is axiomatic  that these general rule making powers in  clauses (ag)  and  (ah)  of Section 49 necessarily did not  take  in their  sweep the power to provide for pre-enrolment training and examination for applicants who were seeking enrolment as advocates under the Act from 1964 to the end of 1973.  It is easy to visualise that the legislature itself dispensed with the  concept  of pre-enrolment training and examination  for new  entrants  to the Bar with effect from  31.01.1974.   As noted  earlier,  this was done on the recommendation of  the Bar  Council of India itself.  Under these circumstances, it cannot  be  presumed  that   the  same  legislature  without expressly  including the same topic in the rule making power of  the  Bar Council of India, impliedly permitted  the  Bar Council  of India itself to prescribe pre-enrolment training to  new  entrants  at  the   Bar  simultaneously  with   the withdrawal  of  the same training from 1974 onwards.  It  is difficult  to countenance the submission of Shri Rao for the respondent  Bar  Council  of  India   that  there  was   any concurrent  power  to  prescribe pre-enrolment  training  to applicants  both  with  the State Bar Councils and  the  Bar Council  of  India between 1964 and end of 1973.   The  next relevant  Section  for  our purpose is Section  49-A,  which deals  with  the power of Central Government to make  Rules. Sub-section (1) lays down that :

     The  Central  Government may, by notification in  the Official  Gazette, make Rules for carrying out the  purposes of  this 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,  powers of the Central Government to make  Rules are  parallel  to the powers to make Rules available to  the Bar  Council  of India or the State Bar Councils  under  the very same Act.  Sub-section (2) of Section 49-A, as it stood prior  to  31.1.1974, provided amongst others, by  clause(d) thereof,  rule making power in connection with the  category of  persons  who were exempted from undergoing a  course  of training  and passing an examination prescribed under clause (d)  of  sub-section (1) of Section 24.  It becomes  obvious that this provision had become otiose as it sought to exempt the  category  of  persons  from  the  sweep  of  compulsory pre-enrolment training and examination being a condition for enrolment as advocates under the then existing clause (d) of sub-  section  (1) of Section 24 which was deleted from  the statute  book from 1974 onwards.  Thus, from 1974 there will be  no occasion for the Central Government to exercise power of exemption for such category of persons earlier covered by Section  24(1)(d).   However, it may be noted  that  Section 49-A  sub-section  2 (c) entitles the Central Government  to frame  Rules  regarding  the class or  category  of  persons entitled  to be enrolled as advocates under the Act.  It  is on  the  same  lines  as the rule making power  of  the  Bar Council  of  India under Section 49 sub-section  (1)  clause (ah).  We may note at this stage that the Central Government has   not   exercised  any   rule  making  power   regarding pre-enrolment  training  for   prospective  advocates.   We,

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therefore,  need  not dilate on this aspect any  more.   The last  relevant  Section  is  Section  52  which  deals  with Saving and it lays down that :  Nothing in this Act shall be  deemed to affect the power of the Supreme Court to  make Rules under Article 145 of the Constitution - (a) for laying down the conditions subject to which a senior advocate shall be  entitled to practise in that Court;  (b) for determining the  persons who shall be entitled to [act or plead] in that Court.

     It  is  in the background of the  aforesaid  statutory scheme  of the Act, as subjected to various amendments  from time to time till date, that the moot question posed for our consideration about the legal efficacy of the impugned rules will have to be examined.

     It  becomes, therefore, necessary to have a close look at  the  impugned rules as amended by the Resolution of  the Bar  Council  of India dated 19th July, 1998.   These  rules styled  as  the  Bar Council of India Training  Rules,  1995 provided  for certain pre-conditions to be complied with  by an  applicant  to be enrolled on the roll of the  State  Bar Council.   The  Rules are said to have been  promulgated  in exercise  of  the Bar Council of Indias rule making  powers under  Section  24(3)(d)  of the Act.   However,  Shri  Rao, learned  senior  counsel for the respondent Bar  Council  of India,  is  right when he contends that he can also  sustain the  Rules  under any other legally permissible rule  making power  discernible from the relevant provisions of the  Act. Rule  2 of the impugned rules provides that No person shall be  entitled  to  be enrolled as an advocate  unless  he  is eligible  to  be enrolled as such under Sec.24 of  Advocates Act,  1961  and has undergone training as  prescribed  under these  Rules.  The said rule 2, as amended up to 19th July, 1998  further  reads  that:    However,  while   undergoing training,  the  trainees shall be enrolled provisionally  as Trainee  Advocates after approval of name of their  guides by  the  State Bar Council and the State Bar  Council  shall issue  identity card to said provisionally enrolled Trainee advocates  for  their identification.  Detailed  procedure has  been  laid down how a trainee advocate has to  function during  the  period  of  training.  Such  candidate  has  to maintain  two types of diaries as approved by the State  Bar Council  -  one for the work done in chambers and the  other for  the work in Courts.  As per Rule 4 the training  period shall  commence  from  the  certificate of  guide  that  the candidate  is  being  trained  by him.  Rule  5  deals  with qualification   of  advocate  to   become  guide  of   such trainees.   Rule  7  deals with period of training  for  a minimum  of  one  year.   Rule  10  provides  that  :   No candidate   shall   engage  himself   in   any   employment, profession,  business, trade or calling during the course of training  in any manner.  Rule 15 lays down seniority of a trainee  advocate  on successful completion of the  training period  by providing that he shall be entitled to seniority from  the date of provisional enrolment as trainee under the Rules.   Such a trainee advocate as per Rule 15 (b) shall be entitled to appear in the Court for seeking adjournments and to  make mentioning on instruction of their guide and  shall be  under disciplinary control of the State Bar Council  and the  Bar Council of India.  Rule 15AA provides that in case period  of training of a particular candidate is extended by the  State  Bar  Council  under  Rule 9  on  the  ground  of inadequate  training,  said  extended period  shall  not  be

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counted towards seniority.

     It  becomes at once clear that the impugned rules  are said  to  have  been framed by the Bar Council of  India  in exercise  of its statutory powers under Section 24(3)(d)  of the  Act.   We  have  already  traced  the  history  of  the aforesaid  statutory  provisions.  It is no doubt true  that sub-section  (3)  of Section 24 starts with a  non  obstante clause  and provides that notwithstanding anything contained in  sub-section  (1),  a   person  mentioned  in  categories (a),(aa),  (c)  and (d) may be admitted as an advocate on  a State  roll  if  he applies as laid down in clause  (1)  and fulfils  the  conditions specified in clauses (a), (b),  (e) and  (f)  of sub- section (1).  The objects and reasons  for enacting  the said provision, as noted earlier, have clearly laid  down that it was felt by the legislature that  despite the  operation of Sections 17 and 24 of the Act, there  were some  persons  who though not covered by the said  provision and  had not satisfied the conditions for enrolment as  laid down  in  these  provisions  deserved   to  be  enrolled  as advocates.   With that end in view, the Bar Council of India was  provided  with the rule making power under  sub-section 3(d) of Section 24 by way of an enabling provision to extend the statutory coverage of Section 24(1) for bringing in such otherwise  ineligible candidates for enrolment and even  for such additional class of persons to be enrolled as advocates by exercise of rule making power of the Bar Council of India they  had  to satisfy the statutory requirements of  clauses (a),  (b),  (e)  and (f) of sub-section (1) of  Section  24. This  enabling  provision  available to the Bar  Council  of India  by Rules to extend the scope of eligibility in favour of  those  who  were ineligible under Section  24(1)  to  be enrolled  as  advocates did not touch upon the  question  of eligibility  in  connection with pre-enrolment training  and examination  or  to put it differently, the  enabling  power available  to  the  Bar Council of India  to  make  eligible otherwise  ineligible  persons  for enrolment  as  advocates under   Section  24(1)  did  not   cover  the  question   of pre-enrolment  training  and examination at all.   It  must, therefore,  be  held  on  express  language  of  Section  24 sub-section  3(d)  that  the rule making power  of  the  Bar Council  of  India proceeded only in one direction,  namely, for  bringing into the sweep of Section 24(1) all those  who were  not  entitled  to be enrolled as advocates  under  the provisions  of Section 24(1).  The non-obstante clause  with which  sub- section (3) of Section 24 starts, provides  that despite   the   conditions  mentioned   for   enrolment   in sub-section  (1) of Section 24 might not have been satisfied by  person  concerned, if the Bar Council of  India  thought that  such  a  person  also deserved to be  enrolled  as  an advocate,  then  rule  making  power  under  clause  (d)  of sub-section  (3)  of Section 24 could be resorted to by  the Bar  Council  of India.  The said power, to say  the  least, could be utilised for making ineligible persons eligible for enrolment  despite  what is stated under sub-section (1)  of Section  24  but it could never be utilised in  the  reverse direction  for  disqualifying those from enrolment who  were otherwise  qualified to be enrolled as per sub- section  (1) of  Section 24.  It was a power given to the Bar Council  of India  to  extend the coverage of Section 24(1) and  not  to whittle  it down.  It is, therefore, difficult to appreciate the  contention of learned senior counsel, Shri Rao for  the Bar  Council of India, that by exercise of the said rule, it could  impose a further condition of disability of otherwise eligible  candidate to be enrolled even if he had  satisfied

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all  the  statutory  conditions  laid  down  by  Section  24 sub-section  (1).   To  illustrate the nature of  such  rule making  power  and  the  limited scope thereof,  it  may  be visualised that as per Section 24 sub-section (1) clause (c) unless  a  person  has obtained the degree of Law  from  any recognised  University in India, he would not be entitled to be  enrolled as an advocate.  Still the Bar Council of India in its wisdom and discretion by exercising its enabling rule making  power under Section 24 sub-section (3)(d) read  with Section  49(1) may permit a citizen of India who might  have obtained  degree from a foreign University like a Law degree from  England  or  a Law degree from Harvard Law  School  of America  or  a  law  degree   from  Canadian  or  Australian University  to  be enrolled as advocate.  Such  category  of persons  who  could  not have been enrolled on  the  express language  of  Section 24 (1) could be enrolled by the  State Bar  Councils  under Section 24(3)(d) if the Bar Council  of India  in exercise of its rule making power had covered them for  such  enrolment.   It is this beneficial  and  enabling power  for bringing in the sweep of the umbrella of  Section 24(1) those who would have otherwise been out of it which is conferred  by  Sub-section (3) (d) of Section 24 on the  Bar Council  of  India  read  with Section 49(1).   It  is  also necessary  to  note that this power is available to the  Bar Council  of India from 1964 all throughout till date,  while between  1963  to January 1974, pre-enrolment  training  and examination  could be prescribed as a condition by the State Bar  Councils  as  per the then existing  condition  (d)  of sub-section   (1)   of  Section  24  for   such   enrolment. Consequently,  it cannot be said that the rule making  power under  sub-section  (3) (d) of Section 24 still enables  the Bar  Council of India, after deletion of Section 24(1)(d) to promulgate  such a rule by which almost by back door such an additional  condition for enrolment to restrict the entry of otherwise  eligible  candidates for enrolment under  Section 24(1)  can be imposed.  Consequently, Section 24 sub-section (3) (d) of the Act cannot be legitimately invoked by the Bar Council of India for sustaining the impugned rules.

     We  may  also  mention one  additional  submission  of senior  advocate  Shri  P.P.Rao in support of  the  impugned rules.   He  contended that Section 24(1) of the Act  itself enables  rule making authorities to enact Rules which may go beyond  the statutory provisions of Section 24(1) as enacted by  the legislature and, therefore, the Bar Council of India as a rule making authority can by exercise of the said power add to the conditions of enrolment as expressly laid down by Section  24(1).   It  is  not possible to  agree  with  this submission  for  the  simple reason that Section  24  itself contemplates  the  qualifications  of  a  person  who  seeks admission  as  an advocate on the State roll.  To  reiterate granting  of admission to a person for being enrolled as  an advocate  under the Act is a statutory function of the State Bar  Council only.  The Bar Council of India has no role  to play  on  this aspect.  All it has to do is to  approve  any Rules  framed  by the State Bar Council under Section  24(1) laying  down  further  qualifications  for a  person  to  be enrolled  by it on the State roll as an advocate.  We  have, therefore,  to  read the rule making power  mentioned  under Section  24(1) conjointly with the rule making power of  the State  Bar  Council as provided by section 28(1)  especially clause  2(d) thereof which provides as under :- (1) A State Bar Council may make rules to carry out the purposes of this Chapter.

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     (2)  In  particular,  and  without  prejudice  to  the generality  of  the foregoing power, such rules may  provide for  - Xxxx Xxxx Xxxx (d) the conditions subject to which  a person may be admitted as an advocate on any such roll.

     Consequently,  the submission of Shri P.P.Rao, learned senior counsel for the Bar Council of India that the Council also  can exercise rule making power under Section 24(1) for imposing  an  additional  condition of qualification  for  a person  to  be  enrolled on State roll obviously  cannot  be accepted.  Shri Rao then next turned to Section 7 of the Act and  submitted that, amongst enumerated functions of the Bar Council  of  India,  at  clause (h) of  sub-section  (1)  is specified   a  provision  regarding   promoting  the   legal education  and  to lay down standards of such  education  in consultation  with the Universities in India imparting  such education  and  the State Bar Councils.  It is difficult  to appreciate  how  the aforesaid clause (h) can also give  any support  to  the impugned rules.  Shri Rao,  learned  senior counsel  for  the  Bar Council of India, is  right  when  he contends  that  the  concept  of ‘legal  education  is  not necessarily   confined  to  only   class  room  lectures  or theoretical study of law.  It can include practical training of  prospective  advocates.  But even accepting  that  legal connotation  of  the  term ‘legal education,  the  question remains as to how the Bar Council of India can promote legal education.   It  can  obviously promote legal  education  by laying down standards of such education in consultation with the   respective  universities  in   India  imparting   such education.   The words Universities in India imparting such education  as found in clause (h) of sub-section (1)  leave no  room  for  doubt that the question  of  imparting  legal education  is entrusted to the Universities in India and not to  the  Bar Council of India.  All that the Bar Council  of India  can  do is to suggest ways and means to promote  such legal  education to be imparted by the Universities and  for that  purpose  it may lay down the standards  of  education, syllabi  in consultation with the Universities in India.  It is,  therefore,  difficult to appreciate how  for  promoting legal  education  through the Universities  imparting  legal education in India, the Bar Council of India can itself take up  the  role  of laying down pre-  enrolment  training  for applicants  seeking  to  enter legal profession  by  getting enrolled  under Section 24 of the Act.  The history of  this relevant   provision   spread  over    years,   shows   that pre-enrolment  training  and examination constitute a  topic which  the legislature in its wisdom entrusted to the  State Bar  Councils  and not to the Bar Council of India.   Merely because the legislature withdrew even that rule making power in the light of the withdrawal of the statutory condition of enrolment  by  enacting  Section   24(1)(d)  from  the  31st January,  1974, it could not be said that the then  existing rule making power on other topics which was available to the Bar  Council of India got enlarged or elongated by necessary implication.   The  power,  as couched in the  same  earlier existing  terms,  has  remained as it is after  deletion  of Section  24(1)(d) by the Parliament.  It is also to be noted that the functions of the Bar Council of India under Section 7   were  not  enlarged  to   cover  such  a  provision  for pre-enrolment  training to applicants by suitably entrusting the  Bar Council of India such a function.  Save and  except Section  7(1)(h) there is no sub-section in the said Section which  entitles  the Bar Council of India to  prescribe  any pre-enrolment  training  or examination to be undertaken  by

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the  prospective professional who wants to enrol himself  as such  once he satisfies the requirements and the  conditions for  such  enrolment  as  laid   down  by  Section  24  (1). Consequently,  the  support of Section 7(1) as tried  to  be invoked  for  sustaining  the impugned rules also is  of  no avail  to learned senior counsel Shri Rao for the respondent Bar Council of India.  We may now refer to Section 49 of the Act,  which deals with general power of Bar Council of India to  make Rules.  Sub-section (1) thereof lays down that  the Bar  Council  of  India may make rules for  discharging  its functions under this Act, and, in particular, such rules may prescribe  on  various  topics as  enumerated  therein  from clauses  (a) to (j).  A mere look at the aforesaid provision makes  it clear that the rule making power entrusted to  the Bar  Council  of  India by the legislature is  an  ancillary power  for  fructifying  and   effectively  discharging  its statutory  functions  laid down by the  Act.   Consequently, Rules to be framed under Section 49(1) must have a statutory peg on which to hang.  If there is no such statutory peg the rule  which  is sought to be enacted dehors such a peg  will have  no foothold and will become still born.  The statutory functions entrusted by the legislature to the Bar Council of India  under  the  Act so far as relevant  for  our  present purpose  and which could be relied upon by Shri Rao, learned senior  counsel for the respondent Bar Council of India, are Section  7(1)(h) and Section 24(3)(d).  We have seen earlier that  neither of these statutory provisions entitles the Bar Council  of  India to provide for the disqualification or  a disability  or  an additional condition for enrolment  of  a person  who  is  otherwise  eligible to be  enrolled  as  an advocate  under  Section  24(1).  Once  that  conclusion  is reached,  the  very foundation for supporting  the  impugned rules  gets knocked off.  Consequently, if any such rule  is framed,  supposedly by exercise of the rule making power  as enumerated  in Section 49(1)(af), (ag) or (ah) on which also reliance  was  placed by Shri Rao, the said rule having  not been  made for discharging any of the statutory functions of the Bar Council of India in this connection must necessarily fail  as it would be ultra vires the statutory functions  of the  Bar  Council of India.  Any rule framed by rule  making authority   going  beyond  its   statutory  functions   must necessarily  be  held to be ultra vires and  inoperative  at law.  Consequently, the valiant attempt made by Shri Rao for sustaining  the Rules under Section 49(1)(af), (ag) and (ah) would  remain abortive only on this short ground.  But  even that  apart, let us see whether any of these provisions  can sustain  the impugned rules even on the assumption that such an  exercise otherwise remains a permissible one for the Bar Council  of  India.   Section 49(1)(af) deals  with  minimum qualifications  required for admission to a course of degree in  law  in any recognised University.  That  obviously  has nothing  to  do with the impugned rules.  Then comes  clause (ag)  which  deals  with the class or  category  of  persons entitled  to  be  enrolled as advocates.   To  recapitulate, Section 49(1)(ag) was already on the statute book since 1964 till  January 1974 when the topic of pre-enrolment  training and  examination  was solely within the domain of the  State Bar  Councils  and  once  on the said topic  the  State  Bar Council  concerned had framed the requisite rules, they were then  subject  to  approval  by the Bar  Council  of  India. Therefore,  there  was a complete code in  this  connection. Once  the State Bar Councils framed such rules and got  them approved  by  the Bar Council of India, then because of  the thrust of the parent provision of Section 24(1)(d) which was operative  at  that  time,  it became  a  pre-condition  for

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enrolment.   There cannot be two parallel pre-conditions  of enrolment  which  can be simultaneously imposed,  one  under Section  24(1)(d)  by  the concerned State  Bar  Council  by exercise  of its powers under Section 28(2)(b) which existed on  the Statute Book between 1964 to January, 1974 and  also the possible provisions for imposing such pre-conditions for enrolment  by the Bar Council of India taking resort to  the supposed  wide wordings of Section 49(1)(ag) during the very same  period as during that period Section 24(1)(d), Section 28(2)(b)  and  Section 49(1)(ag) conjointly existed  on  the statute  book.   If such a concurrent power is envisaged  by Section  49(1)(ag), then the Bar Council of India instead of being  an  approving  authority at the relevant  time  would itself  become  a prescribing authority in  connection  with pre-enrolment training.  It has also to be kept in view that on  the scheme of the Act enrolment of advocates is the task of  the  State  Bar Councils and not of the Bar  Council  of India.   It  must, therefore, be held that the  rule  making power   contemplated  by  the   legislature  under   Section 49(1)(ag)  for  being exercised by the Bar Council of  India was  pertaining  to  only  those classes  or  categories  of persons  who  were thought fit to be enrolled  as  advocates though  they  might  not be eligible to  be  enrolled  under Section  24(1)  of the Act as it stood on the statute  book. In  other  words,  this enabling rule making power  only  by which  the Bar Council of India could add to the category of eligible  persons  for enrolment which would have  otherwise remained  outside  the  sweep  of the  statutory  scheme  of eligibility for enrolment as laid down by Section 24(1), did not   contemplate   any  power  to  curtail   the   existing eligibility  of applicants under Section 24(1) for enrolment as  advocates.   It  is only for such  additional  class  or category  of persons that the enabling provision as per  the said rule making power could be available to the Bar Council of  India.  It is difficult to appreciate how by any process of  interpretation an enabling provision can be treated as a restrictive  one.  In fact, on a conjoint reading of Section 24(3)(d)  and  Section  49(1)(ag)   the  conclusion  becomes inevitable  that the Bar Council of India in exercise of its statutory  function entrusted to it under sub-section (3)(d) of Section 24(1) can frame suitable rule for bringing in the umbrella  of  enrolment provision those who otherwise  would have  remained outside.  The rule making power under Section 49(1)(ag)  has  to take colour from the  statutory  function entrusted  to the Bar Council of India by Section  24(3)(d). As  we  have  already held that Section  24(3)(d)  does  not enable  the  Bar  Council  of  India  to  impose  additional restriction  on  the eligibility of an applicant  who  seeks enrolment  as  per  Section 24(1) by  necessary  implication power  under  Section 49(1)(ag) also cannot enable  such  an impermissible exercise.  The rule making power under Section 49(1)(ag)  is ancillary to the statutory function  entrusted to  the  Bar  Council of India by Section  24(3)(d)  and  it cannot travel beyond the said statutory sphere.

     So  far as Section 49(1)(ag) is concerned, it has also to  be kept in view, as noted earlier that Section  24(3)(d) and  Section 49(1)(ag) were simultaneously introduced in the Act  in  1964.  At that time there were specific  provisions regarding  pre-enrolment training under Section 24(1)(d) and Section  28(2)(b).  Thus, the enactment of Section  24(3)(d) and  Section  49(1)(ag)  could never have been  intended  to include   implied  power/function  to   make   pre-enrolment training  Rules  and  that too by the Bar Council  of  India which had nothing to do at the initial stage of enrolment of

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advocates  on  the State rolls.  In this connection,  it  is also useful to refer to section 49(1)(ag) with section 29 of the  Act.  Section 29 in terms provides as under:-  Subject to the provisions of this Act and any Rules made thereunder, there shall, as from the appointed day, be only one class of persons  entitled to practise the profession of Law, namely, advocates.

     Section  49(1)(ag)  also  deals   with  the  class  or category  of  persons entitled to be enrolled as  advocates. Thus,  by  the  said provision the Bar Council of  India  in exercise  of  its rule making power can add to the class  of persons  contemplated  by Section 29 by enlarging  the  said class  of  advocates  entitled to practise  as  full-fledged advocates.   Entitlement  to practise the profession of  law necessarily  means  full- fledged entitlement to  plead  and argue  cases  of  their clients before the  courts  of  law. There  cannot be any truncated right to practise  profession of  law which is sought to be culled out by Shri P.P.   Rao, learned  Senior  Counsel for the Bar Council of India  on  a conjoint  reading of Sections 29 and 49 (1)(ag) of the  Act. That  takes  us to the last provision on which reliance  was placed  by  Shri  Rao,  learned   senior  counsel  for   the respondent.   That is Section 49(1)(ah).  A mere look at the said  provision  shows that it confers rule making power  on the  Bar Council of India to prescribe 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.   It  is,  therefore, obvious  that once a person has been enrolled as an advocate under  the Act, his right to practise can be made subject to certain  conditions  if  the Bar Council of India  seeks  to impose  such  conditions on an enrolled advocate.  In  other words,  rule making power under Section 49(1)(ah) deals with a  situation which is post enrolment of an advocate and does not  deal  with  pre-enrolment  situation  for  a  candidate seeking   enrolment.   The  impugned   rules   provide   for pre-enrolment  training.   It  is true that the  Rules  also provide   for   provisional   enrolment.   But   provisional enrolment  envisaged  by  the rules is  totally  dehors  the scheme  of  the Act.  To recall enrolment of advocates is  a function  entrusted  by  the legislature to  the  State  Bar Councils  and  not to the Bar Council of India.  Section  17 read with Section 24, leaves no room for doubt that a person who  seeks  enrolment  as  an   advocate  has  to  show  his eligibility  to  be brought on State roll of  advocates.   A State  roll  of advocates has to be maintained only  by  the State  Bar  Council.   Consequently, there would  remain  no occasion  for  the  Bar Council of India to  provide  for  a condition  of  pre-  enrolment   training.   The  State  Bar Councils  alone  could provide for pre-  enrolment  training till Section 24(1)(d) was on the statute book up to January, 1974.   After  an  advocate is enrolled  as  a  full-fledged advocate  how his right to practise is to be conditioned may be  made  a subject matter of rule making power of  the  Bar Council of India as per Section 49(1)(ah).  But in the facts of  the  present case, the aforesaid provision cannot be  of any  help  to  the  respondent  Bar  Council  of  India  for sustaining  the  impugned  rules for  two  obvious  reasons; firstly, provision for pre-enrolment training of prospective advocates  is  not entrusted by the legislature to  the  Bar Council  of India while laying down its statutory  functions under Section 7, as seen earlier.  Therefore, the very first part of Section 49 will hit the said rule as it would not be a  rule  for discharging the statutory function of  the  Bar

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Council of India.  But there is still a second cogent reason for  showing that clause (ah) of sub-section (1) of  Section 49 cannot support the impugned rules.  The said rules do not seek  to  regulate  the right of practice  available  to  an already  enrolled full-fledged advocate.  The entitlement of an  enrolled  advocate is to be culled out from  a  conjoint reading of Sections 17, 24(1) and the definition of advocate as  found in Section 2(1)(a).  Once a person is enrolled  as an  advocate,  how  the right to practise of  such  enrolled advocate can be regulated or monitored may legitimately form the subject matter of a rule framed under Section 49(1)(ah). But the impugned rules by providing the concept of a trainee advocate  with  only a limited right to ask for  adjournment and  mentioning  the cases of his guide totally violate  the scheme  of  the Act.  Section 17 sub-section (2) of the  Act lays  down that there can be only two classes of  advocates; senior  advocates and non-senior or ordinary advocates.   It is  difficult  to appreciate how a trainee advocates  class can  be created by exercising supposed rule making power  of the  Bar  Council of India under Section 49(1)(ah).   It  is also  interesting  to  note that the Bar  Council  of  India itself  in  exercise of its rule making power under  Section 49(1)(ah)  has framed the Rules laying down conditions under which  an enrolled advocate may not be permitted to practise or  may  be  suspended from practice or when can  he  resume practice.    Shri  Rao,  learned   senior  counsel  for  the respondent,  was  right when he contended that  even  though such  rules  might  have been framed in past,  if  the  rule making  power inheres in the Bar Council of India then  such power  can  be  exercised  from  time  to  time  by  framing additional  rules.  However, the question is whether Section 49(1)(ah)  confers such a power on the Bar Council of India. So  far as this question is concerned, it has stood answered against the respondent Bar Council of India by a three Judge Bench  judgement of this Court reported in Indian Council of Legal  Aid & Advice & Ors.  case (supra).  A.M.Ahmadi,  CJI, speaking  for the three Judge Bench, had to consider in  the said decision, the question whether the Bar Council of India could frame a rule restricting the enrolment of advocates to the  State roll to only those who had not completed 45 years of  age.  Holding such rule to be ultra vires the powers  of the  Bar  Council of India under the Act, it was  held  that such  a rule could not be sustained under Section  49(1)(ah) as the said provision dealt with a situation after enrolment of  advocates and could not take in its sweep any  situation prior  to their enrolment.  Shri Rao, learned senior counsel for  the  respondent Bar Council of India, tried to  salvage the  situation  by submitting that the said decison was  per incuriam  on  the  ground  that  Section  24(3)(d)  was  not noticed.  We have already held that Section 24 (3)(d) is the provision which permits the Bar Council of India by exercise of  rule  making power to make otherwise  ineligible  person eligible  for  enrolment  and does not act  in  the  reverse direction  to  make otherwise eligible  persons  ineligible. Once  that  conclusion is reached, Section 24(3)(d)  becomes totally  irrelevant  for deciding the question  whether  the rule  impugned  before  the three Judge Bench in  that  case could  have  been sustained by the Bar Council of  India  by taking  resort  to Section 24(3)(d).   Non-consideration  of such  irrelevant provision, therefore, cannot make the ratio of  the  decision in the aforesaid case per  incuriam.   The second  ground  on which Shri Rao tried to submit  that  the said decision was per incuriam was by inviting our attention to  a Constitution Bench judgment of this Court in re:  Lily Isabel  Thomas  case (supra).  Now it must be kept  in  view

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that  the  said decision was rendered in connection with  an entirely different statutory scheme.  Section 52 of the Act, as  noted earlier, saves power of the Supreme Court to  make Rules  under  Article 145 of the Constitution of  India  for determining  persons who are eligible to practise before the Supreme  Court.   Thus,  the  constitutional  power  of  the Supreme Court for regulating the working of advocates in the Supreme Court who were otherwise entitled to practise in any Court  in  India under the Act could be  validly  exercised. When  we  turn  to the constitutional power of  the  Supreme Court  under Article 145, we find clearly mentioned  therein that  subject  to  the  provisions of any law  made  by  the Parliament,  the  Supreme Court may from time to time,  with the  approval  of the President, make rules  for  regulating generally  the practice and procedure of the Court including rules  as  to the persons practising before the  Court.   As Section  52 of the Act has expressly saved the powers of the Supreme  Court under Article 145 for determining the persons who  shall  be  entitled to practise and  plead  before  the Supreme  Court, Article 145 could operate on its own without any fetter being imposed by any statutory law enacted by the Parliament.   Accordingly,  in the light of Article  145,  a question   arose  before  the   Constitution  Bench  in  the aforesaid  case, whether the Supreme Court was competent  to enact  a rule in connection with advocates practising before it,  who could act as an advocate on record subject to their passing  examination as laid down under the rules.  The term persons  practising  before  the  Court as  laid  down  by Article  145(1)(a) in connection with such rule making power was  interpreted  to  take  in its sweep  not  only  persons actually practising but even entitled to practise before the Supreme Court.  In this connection, the phraseology found in the  Union  List in the 7th Schedule of the Constitution  in Entry  77,  namely, persons entitled to practise before  the Supreme Court was held to be in pari materia with the phrase persons  practising  before the Court as found in  Article 145(1)(a).   In  the  light of the aforesaid wide  sweep  of Article  145(1)(a), expressly saved by Section 52 of the Act it  was  held  that the rule laying down examination  to  be undergone  by practising advocates before the Supreme  Court before  they could act as advocates on record was within the rule  making power of the Supreme Court.  It is difficult to appreciate  how  the aforesaid decision of the  Constitution Bench  rendered  in  the  light  of  an  entirely  different constitutional  scheme  can be of any assistance to the  Bar Council  of  India in the present case.  For sustaining  the rule  making power of the Bar Council of India, the  express provisions  of  Section  7 and Section  24(3)(d)  read  with Section  49(1)(ah)  would  be the only  relevant  provisions which  were considered by this Court in a three Judge  Bench judgment  Indian Council of Legal Aid & Advice & Ors.   case (supra).   The  ratio  of the  Constitution  Bench  judgment rendered  in connection with an entirely different  question posed  for decision in the light of the relevant  provisions of  the  constitutional scheme dealing with the rule  making power  of  the Supreme Court under Article  145,  therefore, cannot  be said to be laying down anything contrary to  what the  three Judge Bench judgment laid down in connection with this  very  statutory  scheme   which  squarely  arises  for consideration  in the present case.  Hence, even the  second ground canvassed by learned senior counsel, Shri Rao for the Bar  Council of India, for whittling down the binding effect of  the aforesaid three Judge Bench judgment of this  Court, cannot be sustained.

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     We  may  at  this stage note one  submission  of  Shri C.S.Vaidyanathan,  learned Additional Solicitor General.  He contended  that the impugned Rules 15A to 15C atleast can be sustained  under the rule making power of the Bar Council of India  under  section  49(1)(ah)  of the  Act.   It  is  not possible to agree with this contention for the simple reason that  by  the  impugned  rules  no  training  is  prescribed subsequent to enrolment under the Act.  Rules seek to impose pre-  enrolment  training, as noted earlier.   Consequently, such  a  rule  cannot  be   sustained  under  the  aforesaid provision  as clearly ruled by a Three Judge Bench  Judgment of  this  Court  in  Indian Council of Legal  Aid  &  Advice Boards  Case  (supra).   Even that apart, a close  look  at Section  49(1)(ah)  clearly  shows that the  said  provision enables  the  Bar  Council of India to lay  down  conditions subject  to  which an advocate who has already got  enrolled can  have  a  right  to  practise.   Right  to  practise  as available  to  an advocate duly enrolled under the Act is  a full-fledged  right  to  practise which, as  noted  earlier, would  include  not  only seeking adjournments but  also  to plead  and  argue for the client for whom he appears  before the  Court.   Thus  any  truncating of  the  very  right  to practise  itself  in  exercise of rule  making  power  under Section  49(1)(ah)  by  creating  a  new  class  of  trainee advocates  cannot  be sustained by the said provision.   All that  the said provision enables the Bar Council of India to do  is  to frame a rule under the said provision  which  may impose  conditions subject to which an enrolled advocate can carry  on his full-fledged practice as an advocate.  In this connection,  it  is  profitable to look at  the  very  Rules earlier  enacted  by the Bar Council of India under  Section 49(1)(ah)   of  the  Act.   They   are  found  in  Part  VI, Chapter-III  of  the  Bar Council of India Rules.   We  have already  referred  to  the  gist  of  these  Rules  earlier. However,  it  will be profitable to extract these  Rules  in extenso  to  highlight  the scope and ambit of  rule  making power  vested  in  the Bar Council of  India  under  Section 49(1)(ah)  as  until  now understood by the very  same  rule making authority.

     Conditions  for right to practise 1.  Every  Advocate shall be under an obligation to see that his name appears on the  roll of the State Council within whose jurisdiction  he ordinarily practices.

     PROVIDED  that  if  an  advocate does  not  apply  for transfer  of  his name to the roll of the State Bar  Council within whose jurisdiction he is ordinarily practising within six months of the start of such practice, it shall be deemed that  he  is  guilty of professional misconduct  within  the meaning of section 35 of the Advocates Act.

     2.   An Advocate shall not enter into a partnership or any  other  arrangement  for sharing remuneration  with  any person or legal Practitioner who is not an Advocate.

     3.  Every Advocate shall keep informed the Bar Council on the roll of which his name stands, of every change of his address.

     4.   The  Council or a State Council can call upon  an advocate  to  furnish the name of the State Council  on  the roll  of  which  his  name is entered, and  call  for  other particulars.

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     5.   (1)  An  Advocate who  voluntarily  suspends  his practice  for  any  reason  whatsoever,  shall  intimate  by registered  post  to the State Bar Council on the  rolls  of which  his name is entered, of such suspension together with his certificate of enrolment in original.

     (2)  Whenever any such advocate who has suspended  his practice  desires to resume his practice, he shall apply  to the  Secretary  of the State Bar Council for  resumption  of practice,  along  with an affidavit stating whether  he  has incurred  any  of the disqualifications under  Section  24A, Chapter III of the Act during the period of suspension.

     (3)  The Enrolment Committee of the State Bar  Council may  order  the  resumption of his practice and  return  the certificate  to  him  with necessary  endorsement.   If  the Enrolment  Committee  is of the view that the  Advocate  has incurred  any  of the disqualifications the Committee  shall refer the matter under proviso to Section 26(1) of the Act.

     (4)  On  suspension  and resumption  of  practice  the Secretary shall act in terms of Rule 24 of Part IX.

     6.   (1)  An Advocate whose name has been  removed  by order  of  the  Supreme  Court or a High Court  or  the  Bar Council  as  the  case  may be, shall  not  be  entitled  to practice  the profession of Law either before the Court  and authorities  mentioned  under Section 30 of the Act,  or  in chambers, or otherwise.

     (2)  An  Advocate  who is under suspension,  shall  be under  same disability during the period of such  suspension as an Advocate whose name has been removed from the roll.

     7.   An  officer  after his  retirement  or  otherwise ceasing  to be in service shall not practise for a period of two years in the area in which he exercised jurisdiction for a  period  of  3 years before his  retirement  or  otherwise ceasing to be in service.

     RESOLVED that nothing in these Rules shall prevent any such  person  from  practising in any Court or  tribunal  or authority  of superior jurisdiction to one in which he  held office.

     Explanation:   Officer  shall   include  a  Judicial Officer,  Additional  Judge of the High Court and  Presiding Officer or Member of the Tribunal or authority or such other Officer  or  authority as referred to in Section 30  of  the Act.

     Area  shall mean area in which the person  concerned exercising jurisdiction.

     8.   No  Advocate shall be entitled to practice if  in the  opinion  of  the  Council he  is  suffering  from  such contagious  disease as makes the practice of Law a hazard to the  health of others.  This disqualification shall last for such period as the Council directs from time to time.

     These  rules show that subject to the conditions  laid down  in these rules an enrolled advocate can practise as  a full-fledged  advocate.   His right once granted  cannot  be restricted  qua  his  acting  in the  Court  when  remaining enrolled  as  an  advocate  on the  State  roll.   It  must,

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therefore,  be  held that Section 49(1) (ah) cannot  sustain the  impugned  rules.  Shri Rao next contended that  Section 34(1)  of the Act which deals with the rule making power  of the High Court enabling it to lay down conditions subject to which an advocate shall be permitted to practise in the High Court  is  pari materia with Section 49(1)(ah).  It  clearly shows  that the High Court can by Rules restrict and  impose conditions  on practising advocates before it or before  any subordinate  Court.  Similarly, the Bar Council of India can also  in  exercise  of similar statutory rule  making  power under  Section  49(1)  of  the  Act,  do  so.   We  fail  to appreciate  how this analogy can be of any avail to Shri Rao for  the respondent Bar Council of India.  Once an  advocate is  already enrolled on the State roll conditions subject to which  he  can  practise  before the  High  Court  or  Court subordinate to it, can be laid down by the High Court by its rule  making power under Section 34(1).  This necessarily is a  situation  which  is post enrolment.   Similar  situation would  fall  for consideration if the Bar Council  of  India seeks  to exercise its power under pari materia rule  making power  under  Section  49(1)(ah) but as the  impugned  rules travel  backwards  and  seek  to   enter  upon  and  monitor pre-enrolment situation, the said exercise obviously remains in  a forbidden field for the Bar Council of India.  It  has also to be appreciated that the powers of the constitutional Courts like the High Courts which are Courts of record stand on  an  entirely different footing as compared to powers  of statutory  authority like the Bar Council of India which has to justify exercise of its powers within the four corners of the  Statute  which  has  created it.  It is  also  not  the submission  of any learned counsel before us that any of the High  Courts  has  framed any rule requiring the  State  Bar Councils not to enrol any advocate on its roll if he has not undertaken  any  pre-enrolment training by resorting to  its rule  making power under Section 34(1).  It is only the  Bar Council  of  India which has tried to do so by enacting  the impugned  rules.  Consequently, any assistance sought to  be received  by  Shri  Rao for the Bar Council  of  India  from Section 34(1) on the analogy of the High Courts rule making power  also cannot be any avail to him.  These were the only contentions canvassed by learned senior counsel Shri Rao for the  respondent  Bar  Council of India  for  sustaining  the impugned  rules  and  as we have found that  none  of  these contentions  can be sustained, the inevitable result is that the  impugned  rules fail and must be held to be still  born being  beyond  the rule making power of the Bar  Council  of India.   Point  No.1,  therefore,  has  to  be  answered  in affirmative  in  favour  of  the writ  petitioners  and  the appellant  in appeal arising out of SLP (C) No.13755 of 1996 and  against the respondent Bar Council of India in the writ petitions  and which is also the appellant in appeal arising out of SLP (C)No.12989 of 1998.

     Point  Nos.2  & 3:  In view of our findings  on  point no.1,  it is not necessary to consider these two points and, therefore,  were  not answered.  Before parting  with  these matters,  it  is necessary to note that in the light of  the experience   of  various  Courts  in  which  advocates   are practising  since  the time the Advocates Act has come  into force,  the Law Commission of India and other expert  bodies that were entrusted with the task of suggesting improvements in  the standards of legal education and legal practitioners felt  it  necessary  to provide for compulsory  training  to young  advocates  entering the portals of the  Court  rooms. Training  under  senior advocates with a view to equip  them

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with  court craft and to make them future efficient officers of  the  court  became a felt need and there cannot  be  any dispute  on  this aspect.  In fact, the question  of  making some  suggestions  regarding  admission   to  law  Colleges, syllabus,  training, period of practice at different  levels of  courts  etc.,  was taken up as Item No.16  in  the  last Conference  of  the Chief Justices held in  December,  1993. The  Conference  resolved that Honble the Chief Justice  of India  be requested to constitute a Committee consisting  of Honble Mr.Justice A.M.Ahmadi as its Chairman, and two other members  to  be  nominated by Honble the Chief  Justice  of India to suggest appropriate steps to be taken in the matter so  that the law graduates may acquire sufficient experience before  they become entitled to practise in the courts.  The said  High Power Committee, after inviting the views of  the Chief  Justices  and State Bar Councils as well as  the  Bar Council  of  India made valuable suggestions.  The  relevant suggestions   in  connection  with   legal   education   are suggestion  nos.1,  12, 13, 15, 16 which are required to  be noted.   They  read  as  under :  1.  In  laying  down  the standards  of  Legal  Education, the  Bar  Councils  Legal Education Committee constituted under Rule 4 of Chapter III of  the  Bar Council of India Rules, 1965 must  reflect  the participation  of representatives of (1) the Judiciary,  (2) the  Bar Council and (3) the U.G.C.  It is proposed that the Rules  be  amended  and  the Legal  Education  Committee  be restructured  to involve the bodies above-mentioned.  Xx  xx xx  12.   Rule  21 of the Bar Council Rules  directing  that every  University shall endeavour to supplement the  lecture method   with  case  method,   tutorials  and  other  modern techniques of imparting Legal Education must be amended in a mandatory  form  and it should include problem method,  moot courts,  mock  trials  and  other   aspects  and  make  them compulsory.   13.   (i) Participation in moot  courts,  mock trials,  and  debates  must  be made  compulsory  and  marks awarded,  (ii)  Practical  training in  drafting  pleadings, contracts  can  be developed in the last year of the  study, and  (i      ii) Students visits at various levels  to  the Courts must be exposu re.  ma de compulsory so as to provide a greater Xx xxxx 15.  Entrance into the Bar after 12 months@@                II or  18 months of Apprenticeship with Entry Examination.  For obtaining  the Licence/Sanad from State Bar Councils it must be prescribed that one should secure at least 50 per cent or 60  per cent marks at the Bar Council Examination.  16.   So far  as the training under a Senior Lawyer during the period of  one year or 18 months of apprenticeship, the Act or  the Rules  must stipulate that the senior must have at least  10 or  15 years standing at the District Court/High Court  and the  students  diary must reflect his attendance for  three months  in  the  grass root level in a civil court  and  for three months in a Magistrates court and at least six months in  a district court.  The Advocate in whose office he works must  also certify that the student is fit to enter the Bar. Unless  these formalities are completed, the student  should not   (sic)  be  permitted  to   sit  for  the  Bar  Council Examination.  Xx xx xx

     It  is  true that these suggestions of the High  Power Committee  clearly highlighted the crying need for improving the  standards  of legal education and the requirements  for new  entrants to the legal profession of being equipped with adequate  professional  skill  and  expertise.   There  also cannot  be  any  dispute on this aspect.   However,  as  the saying  goes  a  right  thing must be  done  in  the  right

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manner.   We appreciate the laudable object with which  the Bar  Council  of  India has framed the  impugned  rules  for providing  training to the young entrants to the  profession by laying down details as to how they should get appropriate training   during   their  formative   years  at  the   Bar. Unfortunately, for the Bar Council of India that right thing has not been done in the right manner.  We equally share the anxiety  of  the Bar Council of India for evolving  suitable methods  for improving the standards of legal education  and legal profession.  The aforesaid recommendations made by the High  Power  Committee could have been put into practice  by following  appropriate  methods   and  adopting  appropriate modalities  by the Bar Council of India.  Unfortunately, the attempt  made  by the Bar Council of India by  enacting  the impugned  rules  has resulted into firing at the  wrong  end though backed up by a very laudable purpose.  We may in this connection  usefully refer to what the High Power  Committee itself  observed at page 30 of the Report in connection with Entrance  into  the  Bar after 12 months or  18  months  of Apprenticeship  with Entry Examination :  Section 28(2) (b) of  the  Advocates Act, 1961 as it stood in 1961,  empowered the  State Bar Councils to make Rules for practical training in  Law  Courts  and  for a  Bar  Council  Examination.   In exercise  thereof  Rules were framed by Bar Councils in  the States prescribing the training and Bar Council Examination. Unfortunately  the  same was omitted later on in the Act  by amendment  and  this  has  been   the  second  major  factor responsible  for the deterioration of standards in the legal profession.   Now  that the Bar Council of India is  wanting the  reintroduction  of Section 28(2)(b) by  Parliament  for training  the Law Graduates for a period and for  conducting the  Bar  Council Examination, the Central  Government  must soon  re-enact the provision.  But the new section must  say that the method of training and the Examination must be such as  may  be prescribed by the Chief Justice of  India  after considering  the views of the Bar Council of India.  As this matter  pertains  to  entry into the  legal  profession  for practice  in Courts, the final authority in this behalf must be  with the Chief Justice of India but after obtaining  the views of the Bar Council of India.  So far as the percentage of  marks  to  be  obtained  for  purposes  of  receiving  a licence/sanad  from  the  State  Bar Councils,  it  must  be prescribed that one should secure at least 50 per cent or 60 per  cent marks at the Bar Council examination.  So far  the training under a senior Lawyer during the period of one year or  18  months  of  apprenticeship, the Act  or  Rules  must stipulate that the senior must have at least 10 or 15 years standing  at  a  District  Court/High  Court  and  that  the students diary must reflect his attendance for three months in the grassroot level in a Civil Court and for three months in  a  Magistrates  Court  and at least  six  months  in  a District  Court/High Court.  The Advocate in whose office he works must also certify that the student is fit to enter the Bar.   Unless  these formalities are completed, the  student should  not  be  permitted  to   sit  for  the  Bar  Council Examination above-mentioned.

     These observations of the High Power Committee clearly indicate  that it was the stand of the representative of the Bar Council of India before them that Section 28(2)(b) which was  earlier  on  the statute book and was  deleted  by  the Parliament,  was  required  to be  reintroduced.   In  other words, it was felt by the Bar Council of India itself before the  High  Power Committee that for providing  pre-enrolment training to prospective advocates relevant amendments to the

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Act  were required to be effected.  It is easy to  visualise that  appropriate  amendments in Sections 7 and 24(1)  would have clothed the Bar Council of India with appropriate power of  prescribing such pre-enrolment training for  prospective entrants  at the Bar.  That would have provided  appropriate statutory  peg on which the appropriate rule could have been framed  and  hanged.  It is also necessary to note  in  this connection  that  merely leaving the question  of  providing pre-enrolment training and examination to only the State Bar councils  may create difficulties in the working of the  All India  Statute.  It goes without saying that as an  enrolled advocate  is  entitled  to practise in any court  in  India, common  standard  of  professional expertise  and  efficient uniform  legal  training would be a must for  all  advocates enrolled under the Act.  In these circumstances, appropriate statutory  power  has to be entrusted to the Bar Council  of India  so  that  it  can   monitor  the  enrolment  exercise undertaken  by the State Bar Council concerned in a  uniform manner.   It  is  possible  to visualise that  if  power  to prescribe   pre-enrolment   training   and  examination   is conferred only on the State Bar Councils, then it may happen that  one  State Bar Council may impose  such  pre-enrolment training while another Bar Council may not and then it would be  easy  for  the  prospective  professional  who  has  got requisite  law degree to get enrolment as the advocate  from the   State  Bar  Council  which   has  not   imposed   such pre-enrolment  training and having got the enrolment he  may start  practice  in any other Court in India  being  legally entitled  to  practise  as per the Act.  To  avoid  such  an incongruous  situation which may result in legal evasion  of the  laudable  concept  of  pre-enrolment  training,  it  is absolutely  necessary  to entrust the Bar Council  of  India with  appropriate statutory power to enable it to  prescribe and  provide  for all India basis pre-enrolment training  of advocates  as well as requisite apprenticeship to make  them efficient  and well informed officers of the Court so as  to achieve  better  administration of justice.  We,  therefore, strongly  recommend appropriate amendments to be made in the Act in this connection.

     We  may also mention that till the Parliament steps in to  make  suitable  statutory  amendments  in  the  Act  for providing  pre- enrolment training to prospective  advocates seeking enrolment under the Act, the Bar Council of India by way  of an interim measure can also consider the feasibility of  making suitable rules providing for in-practice training to  be  made  available  to  enrolled  advocates.   Such  an exercise may then not fall foul on the touchstone of Section 49(1)(ah).  The impugned rules can be suitably re-enacted by deleting   the  condition  of   pre-enrolment  training   to advocates  and instead of treating them to be a hybrid class of  trainee  advocates  with limited right  of  audience  in courts, may provide in-practice training to already enrolled advocates  atleast  for the first year of their practice  as professionals.   Such rules can also provide for appropriate stipend  to be paid to them by their guides, if during  that period  such enrolled junior advocates are shown to have  no independent  source of income.  Then in the light of Section 17(2)  of  the  Act such newly enrolled  advocates  who  are required to undergo in- practice training for first one year of  their  entry in the profession can legitimately fall  in the   category  of  other   advocates  apart  from  senior advocates as contemplated by that provision.

     We  may also mention that all learned counsel for  the

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petitioners  and  the appellant, Bar Council of  Maharashtra readily  agreed to framing of such a rule by the Bar Council of  India.  This would remove the infirmity in the  impugned rules  in so far as they tried to create an entirely new and truncated  class  of trainee advocates who can only ask  for adjournment  and may mention the matters in the courts.   It would  make them full-fledged advocates entitled to practise law  with full vigour in the very first year of their  entry in  the  profession if they are entrusted with the  task  of arguing  matters either by their seniors or by their  guides or by their clients who may impose confidence in them.  This would  also  avoid  unnecessary   complications  of   deemed seniority and subsequent retrospective grant of seniority on successful completion of training.  This will also guarantee them  proper training in the chamber of senior advocates  as their   guides.   Successful  completion   of  training   by advocates  who are new entrants to the profession of law and the corresponding obligation of their guides would make them liable  to disciplinary action by the State Bar Councils  on the  ground  of  misconduct if they do not  discharge  their obligations  either as stipendiary or non-stipendiary junior advocates on the one hand and their guides on the other.  As they  would  be  full-fledged   advocates  the  disciplinary jurisdiction  of  the  State  Bar   Council  can  also   get effectively  attracted  in  connection  with  their  alleged misconduct  if any.  This type of in-practice training would remove  all  the  unnecessary  hardship   and  can  be  well sustained under the statutory scheme of the Act and the rule making  power of the Bar Council of India.  We recommend the Bar  Council  of  India  to look into this  aspect  for  the benefit of legal profession as a whole so that the void that will  be created by our striking down of the impugned  rules and  till future statutory amendment, if any, is carried out by the Parliament as recommended by us in this judgment, can be effectively filled in by exercise of rule making power by the Bar Council of India, as aforesaid.

     Before  parting with this aspect of the matter, we may also  mention that in the present proceedings at an  earlier stage  a  bench of this court which was then seized of  this matter  after listening to arguments of the parties for some time had observed that the Legal Education Committee and the Bar  Council  of  India  should   once  again  consider  the recommendations  of the Honble Three Judges Committee,  the Law  Ministers  Conference and the recommendations made  in the  Fourteenth  Law Commission Report at pages 548 to  550. The  Court  also  gave appropriate  suggestions.   The  said suggestions  have been brought on the record of this case by way  of copy of a letter addressed by advocate Shri  Sanjeev Sachdeva  dated  24th September, 1977 to the  Chairman,  Bar Council of India.  The said suggestions read as under :- a. Only  graduates should be allowed to take the degree  course in law.

     b.   The University course in law should extend for  a period  of two years and should be confined to the  teaching of  theory and principles of law.  Procedural, taxation  and other  laws of a practical character should not be  included in the University Course.

     c.   Entry to the law colleges should be restricted by a  system of strict tests so that only deserving  candidates are admitted.  This restriction of admission is necessary so that proper standards of teaching may be maintained.

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     d.   A person who after obtaining his degree wishes to enter  the  profession should pursue a  professional  course conducted  by  the Bar Council in procedural  and  practical subjects.

     e.   The Bar Councils should arrange lectures for  the benefit of apprentices undergoing this professional course.

     f.   Attendance by the apprentice of a certain minimum number of lectures should be made compulsory.

     g.   Those  who  wish to enter  the  legal  profession should be required to work in the chambers of an experienced lawyer and maintain diaries showing the work done by them.

     h.   The  apprentice  course should be of  one  years duration.

     i.   The  apprentices  should be subjected to  a  very stiff practical test.

     These suggestions were communicated to the Bar Council of  India by its advocate Shri Sanjeev Sachdeva in the  said letter.   It is profitable to extract what was sought to  be conveyed to the Bar Council of India as recommendations from this  Court  :  It also fell from their Lordships that  the training  should be part of the curriculum of the University and  should  not  extend  the period  of  study  beyond  the existing  three years or five years as the case may be.   It also  fell  from their lordships that the Training could  be under  the supervision of the respective High Courts of  the State and the State Bar Councils.

     It  also  fell from their Lordships that the  training need  not  be restricted to merely attending to the  Chamber but  may  also  include  attending to the  court  under  the supervision of the concerned Court staff.

     It  is  also to be considered whether  post  enrolment training  for one year or less is at all required for  those entrants  to  the  profession  who have  already  worked  as solicitors  article  trainees for a number of years  before they  apply for being enrolled as advocates.  The nature  of the  training  which  they  have  already  undertaken  while working  in  the firms of solicitors may pose  the  question whether  any  duplication  of  training  or  any  additional training  is  required  for  them  for  entering  the  legal profession  as  advocates.   Another aspect  which  requires consideration  by the Bar Council of India is as to  whether the  corporate  lawyers  meaning   those  who  have  already acquired  sufficient  legal  training while working  in  the corporate  offices  as law officers should be  subjected  to such   post  enrolment  training   either  wholly  or   even partially.  The Bar Council of India may do well to consider all  these  relevant aspects before taking any  decision  on this  vexed  question.  We hope and trust that at least  now the  Bar  Council  of India may do well to look  into  these suggestions  as  well as the observations made by us in  the present  judgment for salvaging the situation for the entire legal  profession in India and for putting young entrants at the bar on right track so that after appropriate in-practice training  which  they  get from senior advocates  and  their guides  they  can  turn out to be  efficient  advocates  for serving  the suffering humanity having legal problems to  be redressed  through them and for helping the cause of justice

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more  effectively.  [Before concluding these proceedings, we must  mention that it would be necessary to direct that  the present  judgment  will operate only prospectively to  avoid unnecessary  confusion and complications.  It is, therefore, made  clear  that  because of the quashing of  the  impugned rules,  only  applicants  who apply for the first  time  for enrolment  after the date of the present judgment, will  not have  to  undergo  pre-enrolment training.   However,  those applicants  who  have  already applied  for  such  enrolment during  the  time the impugned rules were in  operation  and have  completed  their pre-enrolment training or are in  the process  of completion of their training and have still  not been  enrolled  will  not  get the benefit  of  the  present judgment.]

     A  copy of this judgment is directed to be sent to the Chairman,  Law Commission of India, Secretary, Department of Law  and  Justice, Government of India for considering  what appropriate steps can be taken in this connection.

     In  the result, these writ petitions are allowed.  The impugned  rules are struck down.  Appeal arising out of  the S.L.P.   filed  by the Bar Council of Maharashtra &  Goa  is allowed.   The  impugned judgment of the High Court  is  set aside.   The  writ  petition  filed by the  Bar  Council  of Maharashtra & Goa is accordingly, allowed.  The appeal filed by  the Bar Council of India arising out of SLP  (C)No.12989 of  1998  is  dismissed  on the  ground  that  the  question regarding  retrospective  effect of the impugned rules  will not  survive  as the Rules themselves are struck down.   The final  decision of the High Court allowing the writ petition of  the  respondent  is sustained on the  aforesaid  ground. There will be no order as to costs in all these cases.

     J.  [S.B.  Majmudar ]

     ...J.   [ S.N.Phukan ] New Delhi, March  12, 1999.

     After this judgment was pronounced on 12th March, 1999 and  before it could be signed by both of us, at the request of  learned  counsel for the parties, this matter was  fixed today   for  further  directions  in  connection  with   the retrospective operation of this judgment as mentioned in the last  paragraph  of  page  79.  The said  paragraph  put  in bracket after hearing the parties, will stand substituted as under :

     Before  concluding these proceedings, we must mention that  it  would  be  necessary to direct  that  the  present judgment   will   operate  only   prospectively   to   avoid unnecessary  confusion  and complications.  It is  clarified that  this judgment will have no retrospective effect in the sense  that  it  will  not apply  to  those  applicants  for

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enrolment  who  have earlier applied for enrolment and  have successfully  completed their pre-enrolment training as  per the  impugned  rules.   However,  all those  who  apply  for enrolment  after  this  judgment will not  have  to  undergo pre-enrolment  training.   This will be irrespective of  the fact whether they had earlier applied for enrolment and have not  completed  their  pre-enrolment   training  under   the impugned  rules  till the date of this judgment  or  whether they  had not earlier applied for enrolment despite  getting their law degrees prior to the date of this judgment.